Edward Price (a pseudonym)[1] v The Queen - [2022] VSCA 169

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2022 0038

EDWARD PRICE (a pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

[1]To prevent any risk of prejudice in the proper administration of justice, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	PRIEST, KYROU and MACAULAY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	12 August 2022
DATE OF JUDGMENT:	22 August 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 169
JUDGMENT APPEALED FROM:	DPP v [Price] (Unreported County Court of Victoria, Judge Syme, 29 March 2022)

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CRIMINAL LAW – Interlocutory appeal – Applicant charged with rape – Trial judge refused defence application to cross-examine complainant on previous sexual activities with applicant – Whether cross-examination has substantial relevance to fact in issue – Whether in the interests of justice to permit cross-examination – Appeal allowed – Criminal Procedure Act 2009 ss 342 and 349.

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Counsel
Applicant:		Mr T Kassimatis QC with Mr R de Kretser
Respondent:		Mr C Boyce QC with Ms V Jones
Solicitors
Applicant:	Tony Hargreaves & Partners
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
KYROU JA
MACAULAY JA:

Introduction

Charge 34 of an indictment filed in the County Court alleges that the applicant raped a female, ‘RS’, then aged 16 or 17 years, on a date between 1 March 1988 and 16 April 1988. The indictment also alleges a host of sexual offending against another female, ‘JB’,[2] but the present application is limited to evidence relevant to charge 34.
[2]The indictment contains 33 charges of sexual offending against JB, in the period between 1 May 1985 and 20 July 1995, including: nine charges of indecent assault pursuant to s 44(1) of the Crimes Act 1958 as amended by the Crimes (Sexual Offences) Act 1980 (charges 1, 2, 3, 8, 13, 14, 23, 28 and 29); 10 charges of sexual penetration of a child between 10 and 16 pursuant to s 48(1) of the Crimes Act 1958 as amended by the Crimes (Sexual Offences) Act 1980 (charges 5, 7, 10, 12, 16, 18, 20, 22, 25 and 27); five charges of rape pursuant to s 45(1) of the Crimes Act 1958 as amended by the Crimes (Sexual Offences) Act 1980 (charges 4, 11, 19, 24 and 33); eight charges of rape at common law (charges 6, 9, 15, 17, 21, 26, 30 and 32); and one charge of attempted rape (charge 31).
The applicant’s ‘defence’ to charge 34 (and the other charges) may be gleaned from the Defence Response to Summary of Prosecution Opening, dated 20 May 2020:
5. The [applicant] engaged in consensual sexual acts – including intercourse – with both complainants.
6. He denies outright engaging with either complainant in sexual activity that was not consensual; alternatively, he denies engaging with either complainant in sexual activity whilst aware that the complainants were not consenting, or might not be, consenting.
7. The [applicant] denies outright engaging with either complainant in sexual activity that occurred…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] VSCA 169
Decision Date: 22 August 2022

CaseChat Overview and Summary

Edward Price, the applicant, appealed against the trial judge's refusal to allow him to cross-examine the complainant about her previous sexual activities with him. The issue before the court was whether the trial judge erred in law in refusing to grant the applicant leave to cross-examine the complainant on her previous sexual activities with him. The applicant argued that the evidence of his previous sexual activities with the complainant was relevant to the facts in issue and that it was in the interests of justice to permit the cross-examination. The Crown argued that the evidence was not relevant to the facts in issue and that it was not in the interests of justice to permit the cross-examination.

The court found that the trial judge erred in law in concluding that the evidence of the applicant's previous sexual activities with the complainant was not relevant to the facts in issue. The court held that the evidence was relevant to the facts in issue because it had substantial relevance to the issue of consent. The court also found that the trial judge did not adequately consider whether it was in the interests of justice to permit the cross-examination. The court held that it was in the interests of justice to permit the cross-examination because the probative value of the evidence outweighed the distress, humiliation and embarrassment that the complainant may experience as a result of the cross-examination, having regard to the nature and number of the questions that the applicant intended to ask. The court allowed the appeal and remitted the matter to the trial judge for further consideration.

The court ordered that the matter be remitted to the trial judge for further consideration of the application for leave to cross-examine the complainant on her previous sexual activities with the applicant. The court also ordered that the applicant be given an opportunity to adduce evidence of his previous sexual activities with the complainant, if the trial judge grants leave to do so. The court did not make any orders as to the costs of the appeal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The major focus of the present application is s 342, which is in the following terms:342 Restriction on questions and evidence concerning complainant’s sexual activities The complainant must not be cross-examined, and the court must not admit any evidence, as to the sexual activities (whether consensual or non-consensual) of the complainant (other than those to which the charge relates), without the leave of the court. It may be noted that s 342 does not allude to ‘sexual history evidence’. Instead, the section provides that a complainant must not be cross-examined, and the court must not admit evidence, of a complainant’s ‘sexual activities’. On the other hand, s 343 is directly concerned with ‘sexual history evidence’, and provides that sexual history evidence ‘is not admissible to support an inference that the complainant is the type of person who is more likely to have consented to the sexual activity to which the charge relates’. The circumstances in which a court may grant leave under s 342 to cross-examine the complainant, or admit evidence, as to his or her ‘sexual activities’, is governed by s 349, which provides:349 Determination of application for leave during summary hearing, committal proceeding or trialIn the course of a summary hearing, committal proceeding or trial, the court must not grant leave under section 342 unless it is satisfied that the evidence has substantial relevance to a fact in issue and that it is in the interests of justice to allow the cross-examination or to admit the evidence, having regard to—(a) whether the probative value of the evidence outweighs the distress, humiliation and embarrassment that the complainant may experience as a result of the cross-examination or the admission of the evidence, in view of the age of the complainant and the number and nature of the questions that the complainant is likely to be asked; and(b) the risk that the evidence may arouse in the jury discriminatory belief or bias, prejudice, sympathy or hostility; and(c) the need to respect the complainant’s personal dignity and privacy; and(d) the right of the accused to fully answer and defend the charge. The effect of s 349 is that the court may only grant leave to cross-examine, or admit evidence, of a complainant’s ‘sexual activities’, if satisfied that the evidence of those sexual activities has ‘substantial relevance to a fact in issue’ – if the evidence did not have relevance to a fact in issue it would be inadmissible in any event[5] – and ‘that it is in the interests of justice’ to do so, having regard to the four enumerated considerations.[5]See Evidence Act 2008, ss 55 and 56. Although ‘fact in issue’ is not defined, it is plain that, in a criminal trial, the facts in issue will be those that bear on the existence of the elements of the offence (or offences), and behind those there will be facts relevant to those facts in issue.[6] The applicant does not dispute that he sexually penetrated RS. Hence, the principal facts in issue in his trial will be, first, whether he intentionally sexually penetrated RS without her consent; and, secondly, whether he did so while being aware that she was not consenting or might not be consenting.[7][6]See Smith v The Queen (2001) 206 CLR 650, 654 [7] (Gleeson CJ, Gaudron, Gummow and Hayne JJ); Bauer (a pseudonym) v The Queen (No 2) [2017] VSCA 176, [47] (Priest, Kyrou and Kaye JJA); Danny (a pseudonym) v The Queen [2018] VSCA 223, [25] (Whelan, Priest and Kaye JJA).[7]See, eg, R v Flannery [1969] VR 31; DPP v Morgan [1976] AC 182; R v Saragozza [1984] VR 187.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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