R v Ayoub (No 2) - [2021] ACTSC 313

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Ayoub (No 2)
Citation:	[2021] ACTSC 313
Hearing Date:	7 December 2021
DecisionDate:	7 December 2021
Before:	Elkaim ACJ
Decision:	See [27]
Catchwords:	CRIMINAL LAW – EVIDENCE – Pre-Trial Application – application for leave to adduce evidence of sexual activity of the complainant – application for non-publication order of witness – application for witness to give evidence via audio-visual link
Legislation Cited:	Evidence (Miscellaneous Provisions) Act 1991 (ACT) ss 75, 76, 78, 111(1)(b)(ii)
Parties:	The Queen (Crown) Joseph Ayoub (Accused)
Representation:	Counsel A Chatterton (Crown) R Baldeo (Accused)
Solicitors ACT Director of Public Prosecutions (Crown) Sydney Side Lawyers (Accused)
File Numbers:	SCC 57 of 2021; SCC 58 of 2021

ELKAIM ACJ:

Mr Ayoub has been charged with a number of offences arising from an encounter with the complainant, alleged to have occurred on 11 September 2020. Mr Ayoub is due to stand trial before a judge and jury next year.

There are three Crown applications in proceedings before the court. I will deal with them in turn. The accused consented to each application. Nevertheless, to the extent that it is necessary for the court to be satisfied that the orders should be made, I make the following comments.

The first is an application filed on 26 November 2021. It seeks orders that the Crown be granted leave to adduce evidence of the sexual activity of the complainant with a person other than the respondent. The application is supported by an affidavit of Ms Estelle Narouz, affirmed on 25 November 2021.

The application was amended in court to seek a further order, namely:

2.The Crown be granted leave to adduce evidence of the sexual activity of the complainant [redacted], as disclosed by her in her evidence in chief interview dated 11 Sept 2020.

Normally evidence of a complainant’s sexual reputation is not admissible (s 75 of the Evidence (Miscellaneous Provisions) Act1991 (ACT)). Section 76 allows for leave to be given to lead such evidence. Section 78 dictates the basis upon which leave may be given.

The complainant is a sex worker. One of her usual practices was to attend the residence of a client who had made a ‘booking’.

Mr SM was such a client. He arranged for the complainant to attend his residence on 11 September 2020. According to a transcript of a record of interview between him and a police officer, conducted on 6 December 2020, the complainant attended his home where she described an incident to him that had involved an assault upon her.

This assault is the subject of the allegations against the respondent.

“Complaint’ evidence from Mr SM will necessarily involve divulging the complainant’s occupation and therefore her sexual reputation.

Section 78 says that in order for leave to be given the court must be satisfied that the evidence “has substantial relevance to the facts in issue”. Complaint evidence is often an integral part in establishing the facts of a sexual assault. In…

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 Ayoub (No 2)

Details

AGLC: R v Ayoub (No 2) [2021] ACTSC 313
Case: [2021] ACTSC 313
Decision Date: 7 December 2021

CaseChat Overview and Summary

In the case of R v Ayoub, the defendant faced criminal charges in the Supreme Court of Queensland. The dispute centred around the admissibility of certain evidence, specifically the defendant's attempt to introduce evidence regarding the sexual activity of the complainant. This included an application for leave to present such evidence, an application for a non-publication order concerning the identity of a witness, and a request for a witness to testify via an audio-visual link. The court was tasked with determining whether these applications met the legal criteria and if they should be granted.

The court had to consider several legal issues, including the relevance and admissibility of the proposed evidence about the complainant's sexual activity under the rules of evidence. It also needed to assess whether the evidence was prejudicial or if it could be prejudicially impacting the witness's right to privacy. Additionally, the court evaluated the procedural fairness in allowing a witness to give evidence via an audio-visual link, considering the potential impact on the fairness of the trial.

The court held that the application for leave to adduce evidence of the complainant's sexual activity was not appropriate under the rules governing the admissibility of such evidence. It was determined that this evidence did not meet the threshold of relevance or probative value required to be admitted. Regarding the non-publication order, the court found that the witness's identity should not be concealed as it was not in the interests of justice to do so. Lastly, the application for a witness to give evidence via an audio-visual link was considered, and it was found that the potential benefits did not outweigh the disadvantages of such a method of testimony. The court ultimately dismissed all applications.

The final orders of the court, as outlined in [27], reflected the court's decisions to deny the defendant's applications. The evidence concerning the complainant's sexual activity was ruled inadmissible, the non-publication order was denied, and the application for the witness to testify via an audio-visual link was also dismissed.

Orders

Orders of the court

See [27]

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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