Oscar Raul Diaz Gutierrez v The Queen
[2017] VSCA 228
•30 August 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0079
| OSCAR RAUL DIAZ GUTIERREZ | Applicant |
| v | |
| THE QUEEN | Respondent |
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APPLICATION FOR LEAVE TO APPEAL AGAINST CONVICTION (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)
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| JUDGES: | WHELAN JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 23 August 2017 |
| DATE OF JUDGMENT: | 30 August 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 228 |
| JUDGMENT APPEALED FROM: | DPP v Gutierrez (Unreported, County Court of Victoria, Judge Tinney, 21 November 2016) |
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CRIMINAL LAW – Application for leave to appeal against conviction – Applicant convicted of indecent assault (one count) and rape (two counts) – Trial judge refused application for leave to lead evidence of complainant’s prior conviction of loitering for purpose of sex work – Whether trial judge erred in refusing application for leave – Whether evidence of prior conviction is evidence as to the ‘sexual activities’ of complainant – Whether evidence of prior conviction is ‘sexual history evidence’ – Leave to appeal refused – Criminal Procedure Act 2009 ss 340, 342, 343, 349, Sex Work Act 1994 s 13(2).
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr G Hughan | C Marshall & Associates |
| For the Crown | Mr B Kissane QC | Mr J Cain, Solicitor for Public Prosecutions |
WHELAN JA:
The applicant, Oscar Gutierrez, was charged with one count of indecent assault (charge 1) alleged to have occurred between 1 January 2013 and 18 January 2013, and a further count of indecent assault (charge 2) and two counts of rape (charges 3 and 4) alleged to have occurred on 1 February 2013. The complainant on all charges was the same person.
On 21 November 2016, following a trial in the County Court, the applicant was acquitted of the charge of indecent assault alleged to have occurred in January 2013 and convicted of the three charges alleged to have occurred on 1 February 2013.
The applicant was, in effect, the landlord of a boarding house where the complainant, a 30 year old disabled woman, and other tenants lived. There was conflict within the house which led to the applicant attending the premises on 1 February 2013. The offending was alleged to have occurred when the applicant and the complainant were alone in the complainant’s room.
The applicant’s defence in relation to charges 2 (indecent assault) and 3 (rape) was that the events alleged did not occur. The applicant’s defence to charge 4 (rape) was that a consensual act of sexual penetration had occurred.
The act of penetration which was the subject of charge 4 was an act of penile oral penetration. The complainant spat the applicant’s ejaculate into toilet paper. She gave that toilet paper to the Police. In the initial account which the applicant gave to Police he denied that any sexual activity had taken place between himself and the complainant. DNA testing revealed the presence of his sperm in the toilet paper given to the Police by the complainant. At trial the applicant gave evidence saying that there had been penile oral penetration but that it had been consensual.
The complainant gave evidence at a committal hearing late in 2013 and was cross-examined. Before the trial she died. The trial judge ruled in favour of the admission into evidence of statements she had made to Police and of her evidence at the committal. An application for leave to appeal that interlocutory decision was refused.[1]
[1]Luna (a Pseudonym) v The Queen [2016] VSCA 10.
The applicant seeks leave to appeal his convictions on a single proposed ground of appeal which is as follows:
The trial judge erred in law in excluding evidence of the complainant’s prior conviction on 7 February 2012 for the offence of ‘for the purpose of sex work loiter in a public place’.
At the trial counsel for the applicant sought leave to introduce evidence of a prior conviction, said to be of the complainant, at the Melbourne Magistrates Court on 7 February 2012 for an offence, under s 13(2) of the Sex Work Act 1994, of loitering for the purpose of sex work. There was an issue about whether that was in fact a conviction of the complainant, but, for the purpose of dealing with the matter, the trial judge proceeded on the assumption that it was the complainant’s conviction. Little was known as to the circumstances of the conviction.
The application for leave to admit evidence of the conviction was made by the applicant’s counsel pursuant to s 342 of the Criminal Procedure Act 2009 (‘the Act’). In written submissions made to the trial judge the relevance of the conviction was said to be the following:
It is the defence case that on 1 February 2013, Mr Gutierrez attended [residential address] to meet with [the complainant] to discuss complaints made by other tenants and her possible eviction from the property. It was in the context of this conversation that consensual oral sex took place.
A central issue in dispute is whether [the complainant] did engage in consensual oral sex.
The evidence of [the complainant’s] criminal history is substantially relevant as to her preparedness in using sexual experiences as a form of currency to achieve material gain. In the past she was willing to engage in sexual services for financial gain. In this case, the defence contend, she engaged in a sexual act to prevent her eviction.
In the course of oral submissions made to the trial judge, counsel for the applicant described the relevance as follows:
The point of relevance is this, your Honour. The prior is for — there’s no evidence that sex took place in regards to that prior, but the prior relates to I guess attitude by the complainant to use sex for material gain and in this context the prior it is for money and it is the defence case that in this case she has used a sexual act also for gain, a material gain, and that’s to avoid eviction from the house.[2]
[2]Transcript of Proceedings DPP v Gutierrez (County Court of Victoria, Judge Tinney, 14 November 2016) 38–9.
Section 342 of the Act relevantly provides:
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.
Section 349 of the Act provides that leave must not be granted under s 342 unless the evidence has ‘substantial relevance to a fact in issue’, and it is in the interests of justice to allow admission of the evidence having regard to; whether the probative value outweighs the distress, humiliation and embarrassment that might be caused to the complainant; the risk that the evidence may arouse in the jury discriminatory belief or bias, prejudice, sympathy or hostility; the need to respect the complainant’s personal dignity and privacy; and the right of the accused to fully answer and defend the charge.
In the course of submissions the trial judge raised the potential application of s 343 of the Act.[3] It provides:
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.
[3]Ibid 41.
The expression ‘sexual activities’ in s 342 of the Act does not have a statutory definition. The expression ‘sexual history evidence’ is defined in s 340 of the Act which relevantly provides:
Sexual history evidence means evidence that relates to or tends to establish the fact that the complainant —
(a) was accustomed to engaging in sexual activities; or
(b)had freely agreed to engage in sexual activity (other than that to which the charge relates) with the accused person or another person.
The trial judge gave a ruling on the application to lead the evidence before the jury was empanelled.[4]
[4]Ibid 47–55.
In his ruling the judge set out the procedural history of the matter, noting the failure to comply with the requirements of the Act in relation to notification. The judge set out the manner in which the applicant’s counsel had maintained that the evidence was relevant.
The judge determined that the evidence did not have substantial relevance to a fact in issue. He said that there was no connection of any kind between the alleged conviction and the events which were the subject of the charges. He observed that, on analysis, what was being put was that the complainant was the type of person who would have consented to sexual activity for material gain. He said that sexual history evidence was not admissible on that basis pursuant to the provisions of the Act. This was obviously a reference to s 343 of the Act. The judge said that although the applicant’s submission had not been couched in those terms that was really the way in which the evidence was proposed to be used.
In his ruling the judge also addressed the issue in terms of s 342 and s 349 of the Act, concluding that the evidence did not have substantial relevance to any fact in issue and that there was a risk of arousing a discriminatory belief or bias against the complainant. He accepted that, given the complainant’s death, considerations of embarrassment and the need to respect dignity and privacy were different to the usual cases, but he observed that they did not cease to exist because the complainant had ceased to exist.
The judge concluded that the evidence was not necessary to permit the accused man to fully answer and defend the charge.
At the conclusion of his ruling the judge reiterated that:
Really the inferences that are sought to be raised are ones just of general disposition or the type of person and they are the very things that are prohibited under the terms of the provisions.
Again, this was obviously a reference to s 343 of the Act.
In the written case filed on behalf of the applicant it is submitted, firstly, that the evidence does not fall under s 342 of the Act as it is not evidence of ‘sexual activities’ at all.
The applicant submits that the decision of this Court in R v Warrell,[5] where it was said to be debatable whether evidence of being on the contraceptive pill involved evidence of ‘sexual activities’;[6] and an observation of McHugh, Gummow and Hayne JJ in Bull v The Queen[7] to the effect that witnessing sexual activity did not fall within the scope of ‘sexual experiences’,[8] supported a conclusion that the term ‘sexual activities’ in s 342 should be understood as being limited to evidence of sexual acts in which the complainant had engaged.
[5][1993] 1 VR 671.
[6]Ibid 684.
[7](2000) 201 CLR 443.
[8]Ibid 461 [62].
The applicant submits that evidence of the conviction for loitering for the purpose of prostitution ‘says nothing about whether the applicant engaged in sexual activity on that occasion or on any other occasions’. The applicant submits that the conviction demonstrated a willingness to engage in sexual activity for the purposes of material gain without showing that she had acted on that willingness.
The cases cited are not of assistance. In R v Warrell the reason given by the complainant for not consenting to intercourse was a fear of becoming pregnant. Counsel for the accused was not permitted to put to her that she was on the contraceptive pill at the time. The Court held this was an important credit issue which the accused ought to have been permitted to pursue. The observation concerning what might be ‘debated’ was whether the evidence related to her ‘sexual activities other than with the accused’, which was the relevant statutory expression applicable in that case. The observation in Bull v The Queen was just that, an observation in the course of addressing the potential ambit of the applicable statutory expression there, which was ‘sexual experiences … with any person’. These general observations in cases concerning different fact situations and different legislative expressions do not assist, in my view.
Alternatively, it is submitted in the applicant’s written case that if s 342 and s 349 do apply then the only reasonable conclusion which was open to the trial judge was that it was in the interests of justice to permit the admission of the evidence.
The relevance of the evidence as set out in the applicant’s written case is said to have been the following:
The jury were entitled to consider that the circumstances of the complainant engaging in consensual oral sex with the applicant, as he testified, were unusual. However his evidence was to the effect that she did so to gain a material advantage, namely that she would not be evicted and could continue to live at the rooming house. The evidence that on an earlier occasion, the complainant demonstrated a willingness to engage in sexual activity for the purposes of material gain (financial gain in that instance), although not showing that she acted on that willingness, could substantially have affected the jury’s assessment of the probability of the existence of the fact in issue.
The applicant submits that there was little or no significance to be attached to the protective matters set out in s 349, given the complainant’s death.
The applicant’s written case did not address s 343 of the Act. In oral submissions counsel for the applicant submitted that s 343 did not apply because the evidence did not fall within the definition of ‘sexual history evidence’ in s 340 of the Act. The evidence did not relate to or tend to establish that the complainant was ‘accustomed to’ engaging in sexual activities or had ‘freely agreed’ to engage in any relevant sexual activities. The evidence only showed a preparedness to engage in sexual activities for material gain, in other words a ‘motivation’ for engaging in sexual activity which had been present on a prior occasion as revealed by the conviction and which, according to the defence case, was the reason she consented in relation to charge 4. Further, the applicant submitted that the evidence revealed a ‘motivation’ but that this did not amount to an attempt to support an inference the complainant was the ‘type of person’ who was more likely to have consented.
In my opinion the proposed ground of appeal is not arguable.
The manner in which counsel for the applicant characterises the evidence has shifted from the way in which it was put at the trial. At the trial counsel for the applicant accepted that s 342 applied. He expressly applied for leave pursuant to that section. Trial counsel’s intention must have been, accordingly, to lead evidence ‘as to the sexual activities … of the complainant’. That evidence was constituted by the prior conviction. The submission that the evidence did not fall within s 342 was not one made to the trial judge. The significance of this is not that a forensic choice was made by counsel, or that an issue was waived or conceded, but rather that the application made reveals the purpose for which the evidence was sought to be led.
In any event, the evidence of the conviction was, in my view, clearly evidence ‘as to’ the sexual activities of the complainant. Evidence of a willingness or a preparedness to engage in sex for material gain is evidence ‘as to’ the sexual activities of the complainant. Section 342 did apply, as the applicant’s trial counsel accepted.
Once it is accepted that s 342 applied, in my opinion the judge’s conclusions were well open to him and I see no arguable error in his analysis of the position under s 342 and s 349.
As to s 343 of the Act, this aspect of the matter is less clear, given the terms of the definition in s 340. The issue of whether the evidence fell within the definition of ‘sexual history evidence’ is arguable. If it did fall within that definition, it was rightly excluded by the judge as it was evidence that the complainant was the ‘type of person’ who is more likely to have consented.
Accepting that the position under s 343 is arguable, in my view s 342 nevertheless applied and the applicant has demonstrated no arguable error by the judge in his conclusions in that respect.
Leave to appeal will be refused.
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