R v Alas (No 2)

[2017] ACTSC 333

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Alas (No 2)

Citation:

[2017] ACTSC 333

Hearing Date:

6 November 2017

DecisionDate:

7 November 2017

Before:

Mossop J

Decision:

Leave be granted so as to permit the accused to adduce evidence from the complainant in cross-examination of the existence of a sexual relationship with Mr Scott Campbell between 1999 and 2001.

Catchwords:

EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – Evidence of sexual activities of the complainant – application to admit evidence only admissible with leave of the Court – leave granted to adduce sexual relationship evidence from the complainant in cross-examination – operation of definition of “proper matter for cross-examination about credit” where evidence is also relevant for a non-credibility purpose

Legislation Cited:

Crimes Act 1900 (ACT), ss 92E(3), 92K(3)

Evidence Act 2011 (ACT), ss 97, 101A, 102, 103

Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 51, 53, 53(1)(a), 53(1)(b), 53(4), 53(5)

Cases Cited:

R v Alas [2017] ACTSC 272

The Queen v ST (No 2) [2014] ACTSC 52

W v The Queen (2006) 162 A Crim R 264

Parties:

Baltazar Leiva Alas (Applicant)

The Queen (Respondent)

Representation:

Counsel

K Musgrove (Applicant)

E Beljic (Respondent)

Solicitors

Legal Aid ACT (Applicant)

ACT Director of Public Prosecutions (Respondent)

File Number:

SC 290 of 2016

MOSSOP J:

Introduction

1. The accused is facing seven counts on an indictment filed on 14 March 2017.  Two of the counts allege that he committed an act of indecency upon a person under the age of 16 and the five remaining counts are allegations of sexual intercourse with a person under the age of 16 years.  The offences are alleged to have occurred between 31 December 1999 and 30 September 2001.

1. A basic outline of the allegations was given in the earlier decision of Elkaim J in R v Alas [2017] ACTSC 272 at [5]-[6]:

According to the case statement, the accused met the complainant when she was 14 years of age and living in the same apartment complex as the accused.  It is alleged that the accused became friendly with the complainant and kissed her.  A short time later, they began a sexual relationship.  This resulted in the complainant becoming pregnant on two occasions, before she reached 16 years of age.

The first pregnancy miscarried but the second led to the birth of a child.  DNA testing revealed that the overwhelming likelihood that the accused is the father of the child.  In discussion today, it appears that this point is not in dispute, although no formal admissions were made.  It also emerged that, subject to the Crown proving its case, the focus of the defence would be that the accused reasonably believed that the complainant was over the age of 16.

Complainant’s sexual activity

1. The accused has sought leave under s 51 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) to cross-examine the complainant and hence adduce evidence of the sexual activity between the complainant and Scott Campbell in the period 1999 to 2001.

1. Section 51 provides that 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. Section 53 provides:

Decision to give leave under s 51

(1) The court must not give leave under section 51 (General immunity of evidence of complainant’s sexual activities) 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 51, 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).

1. The accused places principal reliance upon the first limb “substantial relevance to the facts in issue” and only relies upon the second limb as a fall back argument.

1. The accused submits that the evidence of sexual activity will be relevant to two issues at the trial:

(a)The statutory defences available to the accused that he believed on reasonable grounds that the complainant was of or above the age of 16 years.  The accused submits that evidence that a person is engaging in sexual activity with a third person is evidence relevant to whether or not any belief held by the accused as to her age was a reasonable one.  The chain of reasoning which the accused apparently wishes to invoke is that sexual activities are activities which are generally only undertaken by persons lawfully entitled to engage in such activities and if the fact was that prior to any activities involving the accused the complainant was, to the accused’s knowledge, engaging in such activities, a jury would be more readily able to conclude that the belief of the accused was reasonable.

(b)The date at which any sexual relationship between the accused and the complainant commenced and, as a result, whether the alleged offending occurred as particularised.  If the relationship with Mr Campbell was a sexual one, the accused wishes to suggest that any sexual relationship with the complainant only occurred after that date which would be inconsistent with the earlier counts in the indictment.

1. The factual basis for the application is set out in the affidavit of the accused’s solicitor, which records that she is instructed that:

(a)The applicant met the complainant in 1999, at which time both the applicant and the complainant were residing at the “Stuart Flats” in Griffith, ACT;

(b)The applicant was introduced to the complainant by a mutual friend named Scott Campbell;

(c)At the time the applicant was introduced to the complainant, she was in a relationship with Mr Campbell;

(d)The complainant and Mr Campbell advised the applicant that they were in a sexual relationship with one another; and

(e)Mr Campbell moved interstate, to Adelaide, South Australia, in or around
mid-2001, at which time his relationship with the complainant ended.

Consideration

1. The prohibition in s 51 is on evidence of “sexual activities” that are not sexual activities of the complainant with an accused person. Therefore leave of the Court is only required in relation to element (d) as set out above. Leave would be required to elicit evidence in cross-examination as to how long the sexual relationship continued and whether or not there was a sexual relationship with Mr Campbell during the same period when the accused is alleged to have committed the act giving rise to the counts on the indictment.

1. So far as the first of the two purposes is concerned, I am satisfied that the evidence has “substantial relevance” to the facts in issue.  “Substantial” means “considerable importance”, “concerning the essentials” or “important in material terms”: see W v The Queen (2006) 162 A Crim R 264 at [46], quoted with approval by Refshauge J in The Queen v ST (No 2) [2014] ACTSC 52 at [22]. The section refers to “substantial relevance” rather than “substantial probative value” (cf Evidence Act 2011 (ACT), s 97).

1. Whether or not any belief held by the accused existed and was based on reasonable grounds will necessarily be a fact in issue because the accused has indicated that he will rely upon the defences provided by s 92E(3) of the Crimes Act 1900 (ACT) in relation to the sexual intercourse charges and s 92K(3) of the Crimes Act in relation to the act of indecency charges. For the purposes of s 53(1)(a) of the Evidence (Miscellaneous Provisions) Act, I consider that the evidence of previous sexual activity with Mr Campbell would be of substantial relevance as it goes to a central issue in the defence that the accused proposes to raise because it could be used by the jury to support a finding that the belief that the accused held about the complainant’s age was a reasonable one for the reason that I have set out earlier.  In coming to this conclusion, I have not overlooked the Crown submission that the chain of reasoning is flawed because it equates engagement in sexual intercourse with age.  It is true that the engagement in sexual intercourse would not prove the complainant’s age.  However, it is not being used to directly for that purpose; rather it is being used to support both (a) the subjective existence of the state of mind of the accused that the complainant was over the age of 16 (which may itself involve faulty or illogical reasoning), and (b), the existence of reasonable grounds for such a belief.  So far as (b) is concerned, I accept that the evidence by itself would be unlikely to provide reasonable grounds for a belief but that it may do so in combination with other factors.  The other factors to be relied upon by the accused have not yet been disclosed.

1. Because the state of satisfaction required by s 53(1)(a) has been reached, it is not necessary to determine whether or not I have reached the state of satisfaction under
   s 53(1)(b). Had I been satisfied that the evidence was relevant but not substantially so, then some difficulty would have arisen in relation to the operation of s 53(1)(b). That would arise because “proper matter for cross-examination about credit” is defined in
   s 53(5). It is defined by reference to the operation of ss 102 and 103 of the Evidence Act. The effect of the definition is to limit the concept of a proper matter of
   cross-examination about credit to credibility evidence that falls within the exception to the credibility rule in s 102 which is provided by s 103. It is notable that the credibility rule, prima facie, excludes “credibility evidence”. That term is defined in s 101A so that it is limited to evidence relevant only because it affects the assessment of the credibility of the witness or because it is only relevant for that purpose and some other purpose for which it is not admissible under the prior parts of the Evidence Act.  If the evidence was relevant but not substantially relevant for a non-credibility purpose, not excluded by the earlier parts of the Evidence Act, and also relevant for a credibility purpose, then s 53 does not appear to accommodate its admission. It is at least theoretically possible that there is evidence which would be compelling in relation to credit, but which is otherwise relevant albeit not substantially so in relation to a fact in issue, that would be inadmissible because of the manner in which the term “proper matter for cross-examination about credit” is defined. Fortunately in the present case, because of my satisfaction that
   s 53(1)(a) is satisfied, it is not necessary to determine how to deal with such a situation.

1. So far as the second of the two purposes is concerned, it is notable that there is no evidence that any sexual activities with the Mr Campbell continued for any particular period or continued until he moved to Adelaide.  However, if the complainant’s evidence is that there was a sexual relationship with Mr Campbell, the accused is likely to wish to explore with the complainant whether or not that occurred at the same time or prior to the acts alleged to have involved the accused.  Evidence so adduced would have substantial relevance to the fact in issue, namely whether or not the sexual acts alleged to have occurred between complainant and accused occurred at the time alleged.

1. Section 53 is a constraint on granting leave. I am satisfied that the requirements of that section have been met. The next question is whether leave should be granted. The accused has expressly disavowed any intention to ask about the nature of the sexual activity or practices occurring between the complainant and Mr Campbell. He only seeks to adduce the evidence for the purposes outlined above. The trial judge will be able to control the extent of the cross-examination and give any directions to the jury necessary in the light of the cross-examination about the reasons why the evidence was adduced and the use to which it may properly be put. In those circumstances, I consider that it is appropriate to grant the leave sought.

1. For these reasons I consider that leave should be granted so as to permit the accused to adduce evidence from the complainant in cross-examination of the existence of a sexual relationship with Mr Scott Campbell between 1999 and 2001.

1. These reasons will be reduced to writing and provided to the parties as required by
   s 53(4) of the Evidence (Miscellaneous Provisions) Act.

I certify that the preceding fifteen [15] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

Associate:

Date:  8 November 2017