Director of Public Prosecutions v Sheridan (a pseudonym) (No 3)

[2025] ACTSC 57

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Sheridan (a pseudonym) (No 3)

Citation: 

[2025] ACTSC 57

Hearing Dates: 

24 February 2025 – 25 February 2025

Decision Date: 

26 February 2025

Before:

Baker J

Decision: 

See [9]

Catchwords: 

CRIMINAL LAW – application for evidence of prior sexual activity of complainant to be admitted - where complainant engaged in sexual intercourse with another person shortly after alleged offending – where complainant gave evidence she sustained significant injuries during the course of alleged sexual offending – evidence admitted

Legislation Cited: 

Evidence (Miscellaneous) Provisions Act 1991 (ACT), s 76

Cases Cited:

DPP v Razayee [2024] ACTSC 151

DPP v Sheridan(a pseudonym) [2025] ACTSC 25

Khamis v R [2018] NSWCCA 131

R v QX(No 4) [2021] ACTSC 246

R v ST (No 2) [2014) ACTSC 52

Wu v The Queen [2006] TASSC 52; 16 Tas R 1

Parties: 

Director of Public Prosecutions ( Crown)

Steve Sheridan (a pseudonym) ( Accused)

Representation: 

Counsel

S Saikal-Skea ( Crown)

S Jerome ( Accused)

Solicitors

ACT Director of Public Prosecutions

Hugo Law Group ( Accused)

File Number:

SCC 52 of 2024

BAKER J:

EDITED EX TEMPORE REASONS

Introduction

1․I grant leave pursuant to s 76 of the Evidence (Miscellaneous) Provisions Act 1991 (ACT) (EMP Act) to the accused to cross-examine the complainant in the proceedings in relation to sexual activity evidence, specifically, sexual activity between the complainant and [redacted] on or about 21 December 2018.

2․In brief, the complainant has recorded in her diary that the day after the alleged offending, which is the subject of the present trial, she met up with [redacted], who was a friend of the complainant. At the time, the complainant and [redacted] were sleeping together, although they were not in a relationship. She told him about the assaults. The complainant recorded in her diary that she then had consensual sexual intercourse with the accused after this discussion.

3․The accused first sought leave to adduce this evidence in a pretrial application that was heard by McCallum CJ on 11 February 2025. At that time, her Honour indicated that there was insufficient evidence to found a grant of leave, as “there is no account of what took place with the friend, either from the complainant or from the friend”: DPP v Sheridan(a pseudonym) [2025] ACTSC 25. Subsequent to this judgment, the prosecution had a conference with the complainant. After that conference, the prosecutor confirmed that the sexual intercourse engaged in was penile/ vaginal intercourse.

4․Generally speaking, the fact that a complainant had sexual intercourse with another person in the days after an alleged sexual assault will not be sufficient to meet the s 76 threshold. As Gleeson JA held in Khamis v R [2018] NSWCCA 131 at [56] – [58], “great care needs to be taken not to impose stereotypical assumptions about how a victim of sexual assault is ‘supposed’ to behave”.

5․However, that is not the use that is sought to be made of the evidence in the present case. Rather, counsel for the accused notes that the complainant’s evidence is that she sustained significant injuries during the course of the alleged assault. These injuries included injuries to her right labia, black and blue bruising, and tears to her anus and vagina. The complainant states that she was in pain both when walking and when attempting to sit down on the day after the sexual assault.

6․Counsel for the accused submits that if the evidence that the complainant engaged in consensual sexual activity with [redacted] is accepted, it follows that the complainant has either lied or is mistaken about the injury and/ or the extent of the injury to her labia, tears to her anus and vagina and internal pain. Specifically, she contends that it is unlikely that a person suffering vaginal and anal tears and a bruised labia would engage in a form of physical activity which would put repeated pressure on and/or cause friction to the area that is torn or bruised within hours of incurring the injury, and would fail to indicate discomfort during the sexual activity. Counsel for the accused also contends that it is unlikely that [redacted] would fail to notice the complainant’s discomfort or injury, if the injuries were as extreme as those described by the complainant.

7․The prosecution does not oppose the grant of leave sought by the accused.

8․I am satisfied that the evidence that the complainant had sexual intercourse with [redacted] at a time when she said that she was suffering from significant genital injuries has substantial relevance to the facts in issue. That is, the evidence is potentially of “considerable importance” and/ or “is important in material terms”: DPP v Razayee [2024] ACTSC 151 at [21]; R v QX(No 4) [2021] ACTSC 246 at [23] and R v ST (No 2) [2014) ACTSC 52 at [22], citing Wu v The Queen [2006] TASSC 52; 16 Tas R 1 at 20 [46]. This is not to say that the complainant may not have a good explanation for engaging in consensual sexual intercourse whilst she was suffering from these injuries; it is simply to conclude that the evidence will be important to the jury’s consideration of the evidence as a whole, and to their assessment of the complainant’s credibility and/or reliability.

Orders

9․For those reasons, I make the following orders:

(1)I grant leave pursuant to s 76 of the EMP Act to the accused to cross-examine the complainant in the proceedings in relation to sexual activity evidence, specifically, sexual activity between the complainant and [redacted] on or about 21 December 2018.

I certify that the preceding nine [9] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker

Associate: A McKay

Date: 9 April 2025