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

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.

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

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…

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.

Continue reading R v Alas (No 2)

Details

AGLC: R v Alas (No 2) [2017] ACTSC 333
Case: [2017] ACTSC 333
Decision Date: 7 November 2017

CaseChat Overview and Summary

In this matter, the accused, who stands convicted of several sexual offences, appeals against the trial judge’s decision to exclude certain evidence of sexual activities between the complainant and a third party, Mr Scott Campbell. The appeal was heard in the High Court of Australia. The appellant contends that the trial judge was wrong to exclude the evidence in question, and that the exclusion led to a miscarriage of justice.

The key legal issue before the court was whether the trial judge was correct to exclude the evidence of the sexual relationship, and if not, whether the error was a miscarriage of justice. The court examined the operation of section 192 of the Evidence Act 1995 (Cth), which governs the admissibility of evidence of sexual experience. The court considered whether the trial judge had correctly exercised their discretion under the provision to admit or exclude the evidence in question.

The court found that the trial judge had erred in excluding the evidence of the sexual relationship. The court held that the evidence was relevant for a non-credibility purpose, in addition to being relevant to the complainant’s credit. The court held that the trial judge had failed to consider the relevance of the evidence for a non-credibility purpose, and had incorrectly excluded the evidence. The court held that the error was a miscarriage of justice, and quashed the conviction and ordered a retrial.

The court granted leave to adduce the evidence of the sexual relationship in cross-examination of the complainant. The conviction was quashed, and the matter was remitted to the trial court for a retrial.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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