Director of Public Prosecutions v Timalsina

[2023] ACTSC 232

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Timalsina

Citation: 

[2023] ACTSC 232

Hearing Date: 

7 August 2023

Decision Date: 

7 August 2023

Reasons Date:

23 August 2023

Before:

McWilliam J

Decision: 

The Prosecution is granted leave to admit evidence of the complainant’s sexual history pursuant to s 76(1) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT).

Catchwords: 

CRIMINAL LAW – EVIDENCE – Unopposed application to adduce evidence of complainant’s “sexual activities” – s 76 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) – where evidence constitutes lack of past sexual activity – whether leave required – leave required and granted

Legislation Cited: 

Crimes Act 1900 (ACT) ss 52(1), 60(1)

Evidence Act 1971 (ACT) s 76G(2)

Evidence (Miscellaneous Provisions) Act 1991 (ACT) ss 75, 76, 78

Cases Cited: 

Director of Public Prosecutions v Earle (No 2) [2023] ACTSC 134

R v Alas (No 2) [2017] ACTSC 333

R v Byczko (No 1) (1977) 16 SASR 506

R v Kader [2022] ACTSC 56

R v Narayanaswamy [2011] ACTSC 41

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

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

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

Texts Cited:

Explanatory Statement to the Evidence (Miscellaneous Provisions) Amendment Bill 2003

Parties: 

Director of Public Prosecutions

Abhishek Timalsina ( Accused)

Representation: 

Counsel

T Hickey ( DPP)

J Purnell SC ( Accused)

Solicitors

ACT Director of Public Prosecutions

Aulich Law ( Accused)

File Number:

SCC 45 of 2023

McWILLIAM J:          

1․Mr Abhishek Timalsina (the accused), was tried by jury on indictment containing four counts of an act of indecency without consent, contrary to s 60(1) of the Crimes Act 1900 (ACT) (Crimes Act), and two counts of sexual intercourse without consent, contrary to s 54(1) of the Crimes Act.

2․All of the alleged offences arise out of an incident which occurred at a store in Belconnen Mall on 3 November 2022.

3․Before the start of the trial on 7 August 2023, the Prosecution moved on an application dated 4 August 2023, seeking leave to adduce evidence of a lack of prior sexual activities of the complainant, which were referred to in her Evidence in Chief interview; namely that the complainant had never had sex before prior to the incident on 3 November 2022.

4․The application was not opposed by the accused.  I granted leave for the evidence to be adduced, reserving my reasons.  These are my reasons for making that ruling.

The court’s power

5․Division 4.4.2 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (the Act) governs the use of evidence of a complainant’s sexual reputation and past sexual activities. Sections 75, 76 and 78 relevantly provide:

75Immunity of sexual reputation

Evidence of the complainant’s sexual reputation is not admissible in a sexual offence proceeding.

76General 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.

78Decision 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).

6․“Substantial” relevance in s 78(1)(a) of the Act means evidence that has “considerable importance”, “concerning the essentials” or “important in material terms”: W v The Queen [2006] TASSC 52; 16 Tas R 1 at [46], applied in R v ST (No 2) [2014] ACTSC 52 (R v ST (No 2)) at [22]; and R v Alas (No 2) [2017] ACTSC 333 at [9].

7․It can also be seen from s 78(4) that written reasons are required, notwithstanding the fact that the application was not opposed.

The rationale behind the legislation

8․Recently, in Director of Public Prosecutions v Earle (No 2) [2023] ACTSC 134 (Earle (No 2)) at [7], McCallum CJ explained the purpose behind the requirement for a grant of 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.

9․The Chief Justice later went on to state at [32]:

The whole point of the provision is to impose a higher threshold, to address the vice of humiliating and traumatic cross-examination that is barely relevant to the facts in issue. The guiding principles set out in what is now s 78 direct attention in that context to some of the misconceptions that used to inform that determination thereby contributing to the unnecessary trauma suffered by complainants in sexual assault proceedings.

10․The current division 4.4.2 is similar in substance to the former regime previously contained in the division. In that regard, the purpose referred to above is consistent with earlier authorities in this court describing one of the objectives as furthering the protection of the privacy of complainants in sexual assault proceedings: R v Byczko (No 1) (1977) 16 SASR 506 at 539, cited in R v ST (No 2) at [27] and R v QX (No 4) [2021] ACTSC 246 at [21]. I have also set out the legislative history to the regime in R v Kader [2022] ACTSC 56 at [10]-[12]. It is unnecessary to repeat the history here.

11․The principles applying to the former regime have been applied in respect of the current regime: see, for example, R v Sutton (No 2) [2019] ACTSC 340 at [5]. To the extent that there may now be some doubt about the proper construction of s 76(2) of the Act (see Earle (No 2) at [12], [28] and [34]) that is not a matter affecting the current application.

Grounds of the application

12․The application was made on the grounds that the evidence had substantial relevance to a fact in issue (being the issue of consent) at the trial for two reasons:

(a)The complainant’s sexual inexperience (including hating to talk about sex) informs the inherent improbability that she consented to sexual activity with a stranger, who is the subject of the charges.

(b)The evidence is substantially relevant to assessing the complainant’s conduct and state of mind at the time of the alleged offences.

13․As to the first, the Prosecution submitted that the complainant’s youth, sexual inexperience and virginity are relevant to the issue of the likelihood that the complainant would enthusiastically engage in sexual intercourse with a total stranger.

14․As to the second, the Prosecution submitted that the evidence was relevant to the complainant’s statements that she stopped reacting during the acts of indecency and intercourse because she was not sure what to do and felt scared. 

Is leave required?

15․For the reasons that follow, leave is required to adduce evidence of the kind sought to be led by the Prosecution.

16․The Act does not contain any definition of “sexual activities”. 

17․The Prosecution fairly raised the possibility that the evidence in question here may not fall within the scope of those words, because the fact to be adduced is a lack of any history of sexual activity, rather than establishing any fact of sexual activity. 

18․The Prosecutor drew attention to the legislative history of the provision, and the fact that the words of the former s 76G(2) of the Evidence Act 1971 (ACT) were as follows (emphasis added):

(1)...

(2)No evidence may be adduced and no question may be asked in prescribed sexual offence proceedings, except with the leave of the judge, relating to any sexual experience of the complainant with a person other than the accused person.

19․The current wording of s 76 was described as a restatement of s 76G(2) above, with the different wording a reflection of certain recommendations made by the Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General: Explanatory Statement to the Evidence (Miscellaneous Provisions) Amendment Bill 2003.

20․The Prosecutor submitted that against the background and the legislative purpose discussed above, there may be some doubt about whether the term “sexual activities” in s 76 was meant to capture the absence of sexual activity.

21․In R v Narayanaswamy [2011] ACTSC 41 (Narayanaswamy), Rares J considered an issue of whether leave was required (under the earlier statutory regime) to lead evidence of the complainant’s prior intention to remain a virgin until she had met the right person. His Honour stated (at [13]) that on one view of s 51 (the predecessor to s 76 of the Act) leave may not have been required, “since the evidence is not evidence of the complainant’s sexual activities but of lack of them.”

22․However, his Honour went on to make two points at [18]. First, that evidence of the complainant’s desire to maintain her virginity and to avoid in engaging in particular sexual activities with certain persons was evidence of sexual activity, rather than her lack of engagement in that field of activity. Second, that the intention of the legislative regime was not to preclude evidence of that kind, in the proceedings there before the Court.

23․Narayanaswamy is an example of the wide scope given to the term “sexual activities”.  I similarly consider that the purpose of the legislative regime discussed above, combined with the lack of any definition of what constitutes sexual activity, warrants a broad construction given to those words. 

24․The Prosecutor submitted, and I accept, that the primary purpose of the provision was not to prevent evidence of a complainant’s virginity, but to prevent evidence which may erroneously sexually demean a complainant, or cast doubt on the complainant’s credibility. That may be a discretionary reason to favour the grant of leave, if the requisite statutory satisfaction (being either of the limbs in s 78(1)) is otherwise met.

25․However, as set out above, the legislative intention is also directed to the personal privacy of complainants; to provide a measure of protection, through court supervision, from a complainant having their sexual history exposed (unless it has substantive probative value or is a proper matter for cross-examination on credit), regardless of what that history is. Here, the fact that the complainant had not had sex before is equally a matter about which a complainant may feel sensitive or embarrassed, or otherwise be reluctant to voluntarily discuss. To that end, the objective of the legislation would best be furthered by the protection afforded by the Act extending to apply to the evidence of the kind sought to be adduced here.

26․Moreover, such evidence forms part of the complainant’s personal, and private, sexual experience. The legislative history of the provision, set out above, referred to a person’s “sexual experience” and the explanatory memoranda makes it clear that the rephrasing was not intended to exclude such evidence from the application of the Act. Thus, although the evidence sought to be adduced here is not evidence of specific sexual conduct or the complainant being sexually active, it is nevertheless evidence to which the broader term “sexual activities” applies.

27․As I have found that the evidence in question is caught by the provision, leave is required to adduce it.

Conclusion

28․Assisted by the consent of the accused and the detailed and helpful written submissions of the Prosecution, I was satisfied following the hearing of the application that the evidence had substantial relevance to the fact in issue (s 78(1)(a) of the Act) for the reasons described above.

29․Accordingly, the Court made the following order:

(1)The Prosecution is granted leave to admit evidence of the complainant’s sexual history pursuant to s 76(1) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT).

I certify that the preceding twenty-nine [29] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice McWilliam.

Associate:

Date: 2 July 2025