Director of Public Prosecutions v Smith (No 4)

[2024] ACTSC 301

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Smith (No 4)

Citation: 

[2024] ACTSC 301

Hearing Date: 

2 September 2024

Decision Date: 

2 September 2024

Reasons Date:

10 October 2024

Before:

Loukas-Karlsson J

Decision: 

(a) Leave is granted (if leave is required) pursuant to s 76(1) Evidence (Miscellaneous Provisions) Act 1991 (ACT) to cross examine the complainant in relation to sexual activities with the accused on prior occasions during the period of their relationship.

(b) Leave is not granted pursuant to s 76(1) Evidence (Miscellaneous Provisions) Act 1991 (ACT) to cross-examine the complainant in relation to sexual activities with X and Y.

(c) Leave is granted pursuant to s 76(1) Evidence (Miscellaneous Provisions) Act 1991 (ACT) to ask the complainant during cross-examination one specific question as to cheating.

Catchwords: 

CRIMINAL LAW – EVIDENCE – Pre-trial application – sexual offence proceedings – counsel for the accused sought to cross-examine complainant in relation to sexual activities – whether leave granted under s 76(1) Evidence (Miscellaneous Provisions) Act 1991 (ACT)

Legislation Cited: 

Crimes Act 1900 (ACT) ss 54(1), 60(1)

Evidence (Miscellaneous Provisions) Act 1991 (ACT) ss 76, 77, 78

Cases Cited: 

Director of Public Prosecutions v Earle (No 2) [2023] ACTSC 134; 378 FLR 1

R v CH and JW [2010] ACTSC 75

R v Fernando [2009] ACTSC 137; 238 FLR 64

R v No [2017] ACTSC 372

R v NX [2019] ACTSC 5

Parties: 

Director of Public Prosecutions

Lachlan Smith ( Accused)

Representation: 

Counsel

M Howe ( DPP)

J Purnell SC and K Bolas ( Accused)

Solicitors

ACT Director of Public Prosecutions

Kim Bolas Legal Group ( Accused)

File Number:

SCC 106 and 107 of 2023

LOUKAS-KARLSSON J:     

Introduction

1․The accused Mr Smith, who is the applicant in this matter, sought an order that “leave be given pursuant to s 76(1) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT), to cross-examine the complainant in relation to her sexual activities with the accused on prior occasions during the period of their relationship and with other men, namely X and Y.”

2․The application was made on the following grounds:

(a)The evidence has substantial relevance to the facts in issue; and/or

(b)The evidence is a proper matter for cross-examination about credit, in that if accepted, it would be likely to substantially impair confidence in the reliability of the complainant’s evidence.

3․Mr Smith, is charged on indictment with the following:

(a)one count of sexual intercourse without consent, contrary to s 54(1) of the Crimes Act 1900 (ACT); and

(b)one count of an act of indecency without consent, contrary to s 60(1) of the Crimes Act 1900 (ACT).

4․For clarity and convenience, I will refer to the applicant as the accused and the respondent to this application as the prosecution.

5․On 2 September 2024 I made orders (see paragraph [32]) and reasons were reserved. The reasons for the orders now follow, after the “outline of the Application” below.

Outline of the application

6․On 26 August 2024, the accused filed an Application in Proceeding, with a supporting affidavit affirmed by Ms Bolas, solicitor. The Application in Proceeding sought an order that leave be granted pursuant to s 76(1) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (EMP Act), concerning certain evidence.

7․The application as argued at the hearing stated that the evidence to be relied upon is as follows:

(a)First, the evidence sought to be cross-examined on, will include evidence of prior acts of sexual intercourse between the accused and the complainant. The accused asserts that the complainant consented to sexual intercourse with the accused on these occasions and that a pattern of behaviour leading to consensual sex was established between them and that this pattern is relevant to the facts in issue in respect of the two Counts on the indictment.

(b)Second, the accused further asserts that he was “sure” the complainant was having sexual intercourse with another man, X, who the accused met in AMC, and who was residing at the complainant’s father’s house. Another person, Y, was also mentioned in this context, referred to below at [8].

8․The supporting affidavit stated that the accused had instructed counsel that the complainant has made claims that the accused was always accusing her of sleeping with someone else.

9․Further, the supporting affidavit stated that the accused met X at the AMC and names X as a person who he says the complainant was spending time with at her father’s house and the accused was “sure” the complainant was cheating. The supporting affidavit further stated that the accused’s mother has identified a person named Y, as someone the complainant was sleeping with.

10․Counsel for the accused submitted that this evidence is relevant to the complainant’s credit. Further, counsel for the accused submitted that there is a sexual history between the accused and the complainant of rough oral sex that the accused says was consensual, and preferred by the complainant once she was pregnant.

11․At the outset I note the following concerning my orders on 2 September 20224:

(a)First, I concluded that the complainant may be cross-examined as to sexual activities with the accused on previous occasions during their relationship.

(b)Second, I concluded that the complainant should not be cross-examined concerning sexual relations with X and Y.

Consideration

Legislation

12․76 of the EMP Act provides:

76 General immunity of evidence of complainant’s sexual activities

(1)Evidence of the sexual activities of the complainant is not admissible in a sexual offence proceeding without leave of the court dealing with the proceeding.

(2)Subsection (1) does not apply to evidence of the specific sexual activities of the complainant with an accused person in the sexual offence proceeding.

(emphasis added)

13․Section 77 of the EMP Act provides:

77 Application for leave under s 76

Application for leave under section 76 in a sexual offence proceeding must be made––

(a)in writing; and

(b)if the proceeding is before a jury––in the absence of the jury; and

(c)in the absence of the complainant, if an accused person in the proceeding requests.

14․Section 78 of the EMP Act provides:

78 Decision to give leave under s 76

(1)The court must not give leave under section 76 unless satisfied that the evidence—

(a)has substantial relevance to the facts in issue; or

(b)is a proper matter for cross-examination about credit.

(2)Evidence (sexual activity evidence) that relates to, or tends to establish, the fact that the complainant was accustomed to engage in sexual activities is not to be regarded as having a substantial relevance to the facts in issue because of any inference it may raise about general disposition.

(3)Sexual activity evidence is not to be regarded as being a proper matter for cross-examination about credit unless the evidence, if accepted, would be likely to substantially impair confidence in the reliability of the complainant’s evidence.

(4)If the court gives leave under section 76, it must give written reasons for its decision.

(5)In this section:

proper matter for cross-examination about credit—evidence is a proper matter for cross-examination about credit if the credibility rule under the Evidence Act 2011, section 102 does not apply to the evidence because of that Act, section 103 (Exception—cross‑examination as to credibility).

(emphasis added)

Decisions concerning ss 76 and 78

15․Section 76(1) makes it clear that, without leave, evidence of the complainant’s sexual activities is not admissible. Section 76(2) underlines that leave is not required, concerning “the specific sexual activities of the complainant with an accused person in the sexual offence proceeding.” Thus, the first question I must deal with concerns whether or not leave is required in relation to prior acts of sexual intercourse between the accused and the complainant.

16․Reference was made by both counsel to the decision of McCallum CJ in DPP v Earle (No 2) [2023] ACTSC 134; 378 FLR 1 at [7] – [9], where comments were made by her Honour concerning the construction of ss 76 and 78:

[7]Uninformed by authority, I would have construed s 76(2) differently. The general position is stated in s 76(1): evidence of the complainant's sexual activities is not admissible without leave. The clear purpose of s 76(1) is to protect complainants against the trauma and humiliation of having the sexual assault proceeding become, as such proceedings historically had become, a forum for a broad investigation of their sexual activities, with all the misconceived assumptions that entailed. The protection is achieved by mandating judicial focus on the purpose of such broad-ranging humiliation. The requirement for leave is not a mere formality; the discretion to grant leave is closely constrained by s 78 in terms that draw attention to some of the historical misconceptions about rape.

[8]Section 76(2) disapplies the requirement for leave in respect of certain (“specific”) evidence. The clear purpose of qualifying the general protection in subs (1) is to draw the line at which the status quo was to be preserved; that is, to specify the point beyond which Parliament accepted the humiliation entailed in a public exploration of sexual activities of the complainant to be a necessary incident of the prosecution of sexual offences.

[9]The evidence as to which leave is not required is evidence of “the specific sexual activities of the complainant with an accused person in the sexual offence proceeding” (emphasis added). It does not make sense to me that Parliament would have removed the protection of the requirement for leave in respect of any sexual activity on any other occasion between the complainant and the accused. The requirement for leave requires counsel and the trial judge to interrogate the utility of the kind of endless humiliation to which complainants used to be subjected in rape trials. It shifted the paradigm, restricting such evidence to that which had substantial relevance as determined on a disciplined basis (in accordance with the guiding principles stated in s 78).

17․In discussing this question of leave, McCallum CJ expressed doubt concerning the view of Penfold J that leave was not required in such a case. Penfold J, as referred to by the Chief Justice, had expressed this view in R v Fernando [2009] ACTSC 137; 238 FLR 64, R v NO [2017] ACTSC 372 (NO) and R v CH and JW [2010] ACTSC 75.

18․McCallum CJ noted at [33] that in R v NX [2019] ACTSC 55, Mossop J relied on the decisions of Penfold J:

Finally, in R v NX [2019] ACTSC 55, Mossop J relied on the decisions of Penfold J in Fernando and NO to conclude that leave was not necessary to cross-examine the complainant about whether the accused had filmed them involved in fellatio on occasions other than the occasion the subject of the charges. His Honour noted that the parties in that case had failed to draw his attention to the decision of CH and JW but said that, had they done so, he would have followed that decision and concluded that leave was not necessary. His Honour noted at [4] that he was invited by the Crown in that case to adopt the course adopted by Penfold J in NO of making an order granting leave in case, on a proper construction of the section, an order was necessary. With respect, that was a sensible course to adopt.

19․Ultimately, McCallum CJ stated at [34] that the correctness of Penfold J’s interpretation of s 76(2), that leave is not required to cross-examine a complainant about prior sexual activity with the accused himself, was a question that could be revisited in a relevant case:

However, in my view, the correctness of the interpretation of s 76(2) that leave is not required to cross-examine a complainant about any prior sexual activity with the accused may be doubted and warrants revisiting in an appropriate case.

20․Thus, there was no final determination by McCallum CJ, as to the question of the statutory construction of s 76(2). Nor, in my view, is it necessary, on the facts of the case before me, to finally determine the question of the statutory construction of s 76(2) for the reasons that appear below at [21] - [24].

Proposed evidence of prior acts of sexual intercourse between the accused and the complainant

21․The application to cross-examine the complainant on evidence of prior acts of sexual intercourse between the accused and the complainant was, in my view, properly not opposed by the prosecution.

22․This lack of opposition by the prosecution, was in the context of the submission by counsel for the accused that the basis for the cross-examination was the accused’s case that, when the complainant became pregnant, the complainant suggested that the accused and complainant take part in fellatio for the duration of the pregnancy, as the complainant was concerned that the baby might be damaged from intercourse. Counsel for the accused submitted that this pattern of behaviour in the relationship is relevant to the state of mind of the accused as to whether the complainant was consenting to the act the subject of the indictment.

23․The prosecution therefore properly did not oppose cross-examination on this focussed topic. Nevertheless, it was correctly noted that consent on prior occasions does not mean there will be consent for the same sexual act in question charged on the indictment. I note that is the correct position as a matter of law. A person who consents to sexual activity with a person on one occasion is not, by reason only of that fact, to be taken to consent to sexual activity with that person on another occasion.

24․While the prosecution did not oppose the proposed cross-examination, it is important for this court to make it clear, for the purposes of the Court’s decision, that prosecution opposition or otherwise does not, and cannot, settle the matter. Nevertheless, on the facts of this case, I have determined that the proposed cross-examination concerning prior sexual activities during the relationship of the complainant and the accused is appropriate and leave should be granted. I am not necessarily of the view that leave is required on the specific facts of this case. Nevertheless, if leave be required, leave is granted as the evidence has substantial relevance to the facts in issue in this case. 

Proposed evidence of complainant “cheating” with X and Y

25․The application to cross-examine the complainant as to “cheating” with X and Y was opposed by the prosecution.

26․Counsel for the accused, submitted that evidence of the complainant’s infidelity was relevant to the credibility of the complainant, as the topic was raised by both the accused and the complainant.  Counsel for the accused submitted that the following excerpts from the prosecution case statement demonstrated that the issue of whether the complainant was cheating led to physical altercations between the complainant and the accused.

4.     Before going out, the accused asked the complainant to go to his mother’s house and sleep there as he did not trust her to not cheat on the accused. The complainant did not agree to this as she wished to stay at home and the accused left.

…

8.     The accused then began saying words to the effect “you’ve got with someone else” and touched the complainant’s vagina and said words to the effect “oh, who’s been in there?” The complainant responded to the effect “no cunt has been here” and “I’ve been sleeping all fucking day and all fucking night.”

9.     The accused then grabbed the complainant by the arm and pulled her out of bed to the floor so she was positioned on her knees in front of the accused who was sitting on the bed with his legs over the edge. As he was doing this the accused was saying words to the effect “obviously…. You don’t love me if you can’t do that for me,” “you’ve been getting with other guys” and “you’ve got to do this.”

…

15.   The complainant then went back to be[d] and the accused lied down with her for at time before the pizza delivery arrived. When it did, the accused stated to the complainant words to the effect of he would “cave [her] head in” and “smash [her] face” as he believed a person that the complainant had cheated on him with was sneaking around the back of the house.

…

18.   The accused then began arguing with the complainant, continuing the accusation a person had been at the house overnight and that she was cheating on him. The complainant became concerned that the accused may become violent so she contacted…. The accused’s mother by phone and told her that she needed help… the accused then began saying words to the effect “what? So there’s someone better?” and then began yelling words to the effect “you fucked someone else last night,” “you’re a dirty slut,” “you don’t deserve to have your kid[.]”

…

25.   While the accused was outside, the complainant took part in a recorded conversation during which the complainant reported that the accused had been out the night before, he has schizophrenic paranoia and was saying that someone had been in the house while he was gone at about 9:30am. He had arrived home around 6:00am while she was sleeping.  She was 36 weeks pregnant and can’t put up with that stress, he needs to get off the drugs and he needs help. He became intimidating in the way he talks and stands, standing over the complainant, throwing accusations at her that aren’t true. She yelled back at him as it “gets too much.” She did not recall a lot of what was said but recalls him saying “I’ll smash your face in shut up” once or twice because he thought the Dominos pizza was someone “creeping around the house.” She denied that anything physical happened as when she starts yelling he gets scared….

(footnotes omitted)

27․I was not persuaded by the submission made by counsel for the accused. This is for the following reasons:

(a)First, the matter at issue in this case is the question of consent. Consent on a prior occasion with another person, cannot inform the issue of consent with the accused on the occasion in question, that is alleged on the indictment.

(b)Second, in my view, such cross-examination concerning other men is directly contrary to the rationale behind the promulgation of ss 76 and 78.

28․The test in s 78(1) of the EMP Act, is that “the Court must not give leave under section 76 unless satisfied that the evidence - (a) has substantial relevance to the facts in issue; or (b) is a proper matter for cross-examination about credit.” As referred to above, I was not persuaded on either basis. Further, s 78(3) states “Sexual activity evidence is not to be regarded as being a proper matter for cross-examination about credit unless the evidence, if accepted, would be likely to substantially impair confidence in the reliability of the complainant's evidence.” In my view this is not such a case.

One question

29․At the hearing, it was subsequently proposed that only one question be asked of the complainant, that is, whether the complainant was cheating.

30․Counsel for the accused submitted in this context concerning this one focussed question that the prosecution rationale for the accused allegedly touching the complainant’s vagina (constituting the second count on the indictment), was the issue of cheating. Thus, it is clear that, the issue of cheating, was specifically raised in the prosecution case, in the context of the circumstances surrounding the charge on the indictment of indecent assault. In light of this, it was proposed that Counsel for the accused ask only one question: “were you cheating.” Further, that the questioning on this topic would end there regardless of whether the answer was “yes” or “no.”

31․Importantly, in determining the issue of whether the one question on “cheating” could be asked the following factor is important. “Cheating” is raised as part of the prosecution case. Part of the prosecution case is the accused allegedly stating, “you’ve got with someone else.” In these circumstances, where the topic is raised in the prosecution case, and is part of the prosecution case, the prosecution properly accepted, and I agree, on the unusual facts of this case, that, the specific question can be asked as it is in accordance with ss 76 and 78. This is because there is substantial relevance to the facts in issue in this case as the topic is raised on the prosecution case concerning the direct circumstances surrounding the specific count on the indictment.

Orders

32․For the above reasons the following orders were made on 2 September 2024:

(a)Leave is granted (if leave is required) pursuant to s 76(1) Evidence (Miscellaneous Provisions) Act 1991 (ACT) to cross-examine the complainant in relation to sexual activities with the accused on prior occasions during the period of their relationship.

(b)Leave is not granted pursuant to s 76(1) Evidence (Miscellaneous Provisions) Act 1991 (ACT) to cross-examine the complainant in relation to sexual activities with X and Y.

(c)Leave is granted pursuant to s 76(1) Evidence (Miscellaneous Provisions) Act 1991 (ACT) to ask the complainant during cross-examination one specific question as to cheating.

I certify that the preceding thirty-two [32] numbered paragraphs are a true copy of the Reasons for  Judgment of her Honour Justice Loukas-Karlsson

Associate:

Date: 10 October 2024