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:

1. 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.

1. 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.

1. 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.

1. 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.

1. 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.

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

1. 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.

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

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

1. 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 this case complaint evidence will be part of the Crown case to show that the allegations, which I understand are denied, took place.

1. I am satisfied that the necessity to call complaint evidence renders the proposed evidence about the complainant’s sexual reputation to be relevant to a fact in issue, namely whether or not the alleged assaults took place.

1. In addition to the references to the visit to Mr SM, the complainant makes a number of references to her occupation during her record of interview. They necessarily involve her sexual activity. These references are not the subject of objection and form an integral part of the events surrounding the alleged criminal behaviour. The complainant’s evidence would ‘make no sense’ if her occupation was expunged. It follows that her references to her sexual reputation in the record of interview have “substantial relevance to the facts in issue”.

1. Accordingly I will make Orders 1 and 2 in the application.

1. The next application was also filed on 26 November 2021. It seeks an order that the name of a particular witness, who I will refer to as Ms SD, not be published. The order is sought under s 111(1)(b)(ii) of the above Act. Under this section a non-publication order may be made in respect of the name of a witness if to do so would be “in the interests of the administration of justice”.

1. This application is also supported by an affidavit of Ms Narouz, affirmed on 25 November 2021.

1. Ms SD is also a sex worker. She is now pregnant and regards her work in the sex industry as a “former occupation”. Publication of her name, associated with her evidence, would reveal her previous work.

1. In my view the protection afforded to the complainant is little different to that to which a witness might be entitled. The sexual reputation of a complainant is no doubt a matter personal to that complainant. The same is true of Ms SD. This is particularly so in circumstances where the witness no longer follows the above occupation.

1. I think it is in the administration of justice that the non-publication order should be made to give Ms SD protection from the social consequences that might flow from revelation of her former work.

1. I will make Order 1 in the application.

1. The final application, like the previous applications, was filed on 25 November 2021, and is supported by an affidavit of Ms Narouz, affirmed on 17 November 2021.

1. In this application an order is sought that Ms SD be permitted to give her evidence by audio-visual link. Ms SD resides in New South Wales. In addition to being pregnant she suffers from physical and emotional restrictions. In an email sent to the Crown on 8 November 2021 Ms SD says she is currently off work and is “unable to drive or travel far (or do much at all currently)”. In a separate email she says that she has “the necessary technology for an audio-visual link”.

1. Although there is no independent medical evidence confirming Ms SD’s assertions, they have also not been challenged.

1. It is important to note that if Ms SD is permitted to give evidence from a remote location, her evidence will be attended by a direction to the jury that her evidence should not be given any greater or lesser weight and that no inference should be drawn against the accused because of the manner in which the evidence is given.

1. On the assumption, which the Crown should confirm, that the audio-visual link will be reliable and productive of clear picture and sound, I can see no reason why the evidence should not be given in this way.

1. Ms SD’s statement concerns her observations of the accused behaving in an “erratic” manner. She does not witness any assault of the complainant although she did see the complainant appearing to be “in shock”.

1. I am satisfied that with the above direction to the jury the accused will suffer no prejudice if the evidence of Ms SD is given via an audio-visual link. I will make Order 1 in the application.

1. I make the following orders:

1.The Crown is granted leave to adduce evidence of the sexual activity of the complainant, namely a sexual engagement with SM.

2.The Crown is granted leave to adduce evidence of the sexual activity of the complainant to the extent that it is referred to in her record of interview.

3.No part of the name of the prosecution witness SD is to be published, pursuant to s 111(1)(b)(ii) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT).

4.The witness SD is permitted to give her evidence at the trial of the accused by audio-visual link from a place that is outside the ACT or outside the courtroom.

I certify that the preceding twenty-seven [27] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Chief Justice Elkaim.

Associate:

Date: 7 December 2021