R v Ayoub (No 3) - [2022] ACTSC 230

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Ayoub (No 3)
Citation:	[2022] ACTSC 230
Hearing Date:	20 July 2022
DecisionDate:	20 July 2022
ReasonsDate:	30 August 2022
Before:	McWilliam AJ
Decision:	The application filed 19 July 2022 is dismissed.
Catchwords:	CRIMINAL LAW – EVIDENCE – application in proceeding to adduce evidence of sexual activity of the complainant – leave refused
Legislation Cited:	Evidence Act 2011 (ACT) ss 55, 101A, 102, 103 Evidence (Miscellaneous Provisions) Act 1991 (ACT) ss 41, 60, 75, 76, 77, 78
Cases Cited:	R v Alas (No 2) [2017] ACTSC 333 R v Ayoub (No 2) [2021] ACTSC 313 R v CH and JW [2010] ACTSC 75 R v Fernando [2009] ACTSC 13 R v Nash (No 2) [2021] ACTSC 268 R v ST (No 2) [2014] ACTSC 52 W v The Queen [2006] TASSC 52; 16 Tas R 1
Parties:	The Queen (Crown) Joseph Ayoub (Accused)
Representation:	Counsel A Chatterton (Crown) FJ Purnell SC (Accused)
Solicitors ACT Director of Public Prosecutions (Crown) Tu’ulakitau McGuire Legal (Accused)
File Number(s):	SCC 57 of 2021; SCC 58 of 2021

McWilliam AJ

The accused in these proceedings has been charged with a number of offences relating to an encounter with the complainant, alleged to have occurred on 11 September 2020, for which he is due to stand trial before a judge and jury later this year. Those charges include that the accused inflicted actual bodily harm upon the complainant with intent to engage in sexual intercourse with the complainant, and an alternative charge that the accused intentionally and unlawfully choked, suffocated or strangled the complainant.

The matter was before the Court on 19 and 20 July 2022 for the taking of pre-trial evidence from the complainant, pursuant to s 60 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (EMP Act).

At that time, the accused sought to cross-examine the complainant in respect of various matters that related to their sexual activities other than the alleged encounter between the accused and the complainant on 11 September 2020. I refused the application and indicated at the time of the ruling that reasons would follow. These are the reasons for my ruling.

Application

On 19 July 2022, the accused filed in court an application in proceeding seeking leave to adduce evidence of the sexual activities of the complainant pursuant to s 76(1) of the EMP Act. Section 76 provides:

76 General immunity of evidence of complainant’s sexual activities
(1) 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.
(2) Subsection (1) does not apply to evidence of the specific sexual activities of the complainant with an accused person in the sexual offence proceeding.

A written application was required in accordance with s 77 of the EMP Act and the application was heard on 20 July 2022 in the absence of the complainant. The Court has previously dealt…

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 3)

Details

AGLC: R v Ayoub (No 3) [2022] ACTSC 230
Case: [2022] ACTSC 230
Decision Date: 20 July 2022

CaseChat Overview and Summary

The case of R v Ayoub (No 3) involved the accused seeking leave to adduce evidence of sexual activity of the complainant in proceedings under the Evidence (Miscellaneous Provisions) Act 1989 (ACT). The court was tasked with determining whether the evidence proposed to be led by the accused was relevant and of substantial importance to the facts in issue. The accused argued that the evidence was relevant to the complainant's credit and would substantially affect the assessment of her credibility. The Crown, on the other hand, opposed the application, asserting that the evidence would not adduce any substantial relevance to the facts in issue but would instead raise an inference about the complainant's general disposition.

The legal issues before the court were whether the proposed evidence met the threshold of being substantially relevant to the facts in issue and whether it constituted a proper matter for cross-examination about credit. The court examined the provisions of the Evidence Act 2011 (ACT) and the Evidence (Miscellaneous Provisions) Act 1989 (EMP Act) to determine the admissibility of the evidence. Under s 78(1)(a) of the EMP Act, evidence is admissible if it is relevant to the facts in issue and substantially relevant. The court found that the evidence proposed by the accused did not meet the threshold of being substantially relevant because it pertained to services provided by the complainant before, on, and after the date in question, which were not relevant to the specific facts in issue.

In reaching its decision, the court considered the definition of relevance under s 55 of the Evidence Act and the requirement for evidence to be substantially relevant, not merely relevant. The court determined that the evidence proposed by the accused did not meet the threshold of substantial relevance because it concerned the complainant's practices as a sex worker, which were not relevant to the specific occasion in question. The court further found that the proposed evidence would not adduce any substantial relevance to the facts in issue and was therefore inadmissible.

The court dismissed the application filed on 19 July 2022, denying the accused's request to adduce the proposed evidence. The court held that the evidence did not meet the statutory requirements for admissibility under the EMP Act and was therefore not relevant or substantially relevant to the facts in issue.

Orders

Orders of the court

The application filed 19 July 2022 is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Otherwise, evidence is a “proper matter for cross-examination about credit” essentially if the scheme provided for by ss 102 and 103 of the Evidence Act 2011 (ACT) (Evidence Act) is followed: s 78(5) EMP Act. Under the Evidence Act, evidence that is only relevant to credit is excluded by s 102. Section 103 provides an exception in cross-examination if the evidence could “substantially affect the assessment of the witness’s credibility”. Those words tie in with what constitutes credibility evidence, as prescribed in s 101A of the Evidence Act: For completeness, “credibility of a witness” is defined in the Evidence Act Dictionary as follows: The accused submitted that the proposed line of questioning would meet the threshold of substantial relevance to the facts in issue and constitute a proper matter for cross-examination about credit: see s 78(1) of the EMP Act. The Crown opposed the orders sought, relying, inter alia, upon s 78(2) of the EMP Act, to argue that the proposed questioning would not adduce any evidence of substantial relevance to the facts in issue but rather merely raise an inference about general disposition. Consequently, the issues for the Court on the application for leave were whether the proposed evidence would either: In the context of s 78(1)(a) of the EMP Act, relevance has the same meaning as that expressed in the Evidence Act at s 55: R v CH and JW [2010] ACTSC 75 at [44], and R v Nash (No 2) [2021] ACTSC 268 at [11] (Nash). Relevant evidence is defined in the Evidence Act at s 55 as: As was noted by the Crown during the hearing, the test under s 78(1)(a) of the EMP Act also requires that the evidence be substantially relevant, not just relevant. This has previously been taken to mean of “considerable importance”, “concerning the essentials” or “important in material terms”: Nash at [12] citing W v The Queen [2006] TASSC 52; 16 Tas R 1 at [46]; R v ST (No 2) [2014] ACTSC 52 at [22]; R v Alas (No 2) [2017] ACTSC 333 at [9]. Senior Counsel for the accused submitted during the hearing that he was seeking to put to the complainant in cross-examination that choking was part of the complainant’s repertoire before 11 September 2020, on 11 September 2020 and after that date. The reason for such cross-examination was said to be to establish that choking was part of the complainant’s practices as a sex worker and was in effect part of the contract between the accused and the complainant on the occasion that is the subject of the criminal charges. I was not satisfied that the evidence proposed to be led in the accused’s application would have substantial relevance to the facts in issue because the charges were not directed to a course of conduct over the period of time that was to be the subject of cross-examination; they were directed to a particular day and a particular occasion. Whether the complainant agreed to provide certain services to the accused on the specific occasion in question is obviously a fact in issue. However, questions relating to services that the complainant may or may not generally agree to provide, or has previously provided to other people, or may be providing now, are not relevant to establishing that fact. Part of the evidence that the accused wished to put to the complainant concerned services currently being advertised; two years after the encounter with the accused that is the subject of the charges.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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