R v Ayoub (No 3)
[2022] ACTSC 230
•20 July 2022
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 |
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 with an application by the Crown for leave to adduce evidence of sexual activity of the complainant: see R v Ayoub (No 2) [2021] ACTSC 313.
The present application made by the accused sought that leave be given to cross-examine the complainant in respect of:
(a)advertisements of the complainant’s or “CC Rose’s” services as a sex worker before and after 11 September 2020;
(b)the complainant’s willingness to provide a variety of sexual services, including without limitation, sexual bondage services, for payment before and after 11 September 2020;
(c)the complainant’s practices as a sex worker before and after 11 September 2020; and
(d)the sexual services the complainant provided to clients before and after 11 September 2020.
The applicable legislative framework
There was no issue that the proceedings met the definition of “sexual offence proceeding” in s 41 of the EMP Act.
Pursuant to s 78(1) of the EMP Act, in order for leave to be granted under s 76, the court must be satisfied that the evidence:
(a)has substantial relevance to the facts in issue; or
(b)is a proper matter for cross-examination about credit.
As to the first limb, evidence suggesting that a complainant was accustomed to engage in sexual activities is not to be regarded as having substantial relevance to the facts in issue merely because it may raise an inference regarding the complainant’s general disposition: s 78(2) EMP Act.
As to the second limb, sexual activity evidence is not to be regarded as a proper matter for cross-examination about credit unless it would be likely to substantially impair confidence in the reliability of the complainant’s evidence: s 78(3) EMP Act.
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:
101A Credibility evidence
Credibility evidence, in relation to a witness or someone else, is evidence relevant to the credibility of the witness or person that—
(a) is relevant only because it affects the assessment of the credibility of the witness or person; or
(b) is relevant—
(i) because it affects the assessment of the credibility of the witness or person; and
(ii) for some other purpose for which it is not admissible, or cannot be used, because of a provision of parts 3.2 to 3.6.
For completeness, “credibility of a witness” is defined in the Evidence Act Dictionary as follows:
the credibility of any part or all of the evidence of the witness, and includes the witness’s ability to observe or remember facts and events about which the witness has given, is giving or is to give evidence.
Issues for resolution
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:
(a)have substantial relevance to the facts in issue, or
(b)be a proper matter for cross-examination about credit.
Did the evidence have substantial relevance to the facts in issue?
The applicable test
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:
55 Relevant evidence
(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
(2) In particular, evidence is not taken to be irrelevant only because it relates only to—
(a) the credibility of a witness; or
(b) the admissibility of other evidence; or
(c) a failure to present evidence.
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].
Consideration
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.
Even if it could be said that there was some marginal or tangential relevance, that does not meet the substantial relevance threshold required by s 78(1)(a) of the EMP Act. The Crown argued that, at its highest, the above questioning may permit an inference as to a general disposition on the part of the complainant, to the effect that the complainant generally provided the service of choking. That is, the inference to be drawn from the proposed questioning was to suggest that the complainant had a general disposition to engage in that sort of behaviour and would have done so on the night in question. Such an inference is deemed not to be of substantial relevance by the operation of s 78(2) of the EMP Act.
Senior Counsel for the accused further argued that the proposed line of questioning could be substantially relevant to the issue of what the accused understood the complainant to be consenting to, when he cited the following passage from R v Fernando [2009] ACTSC 137 at [41] (Fernando):
… the evidence in question has substantial relevance to the facts in issue in this proceeding, and that its relevance arises from the possible impact of the complainant's sexual activities shortly before the alleged offences on Mr Fernando's beliefs about consent and on Mr Fernando's ability to give convincing evidence about those beliefs.
It was argued that on the assumption that the accused would give evidence, the same reasoning applied to the application. The Crown indicated that there was no objection to the question being asked as to whether, on the night in question, the service of choking was one of the services that the complainant offered, which was sufficient to deal with any issue based on the above extract from the judgment in Fernando.
Was the evidence a proper matter for cross-examination about credit?
The applicable test
The statutory provisions that have been set out above largely dictate the task for the Court in determining whether the evidence proposed to be led is a ‘proper matter’. In the present case, the words of s 78(3) of the EMP Act are critical, and the question is whether the evidence, if accepted, would be likely to substantially impair confidence in the reliability of the complainant’s evidence.
Consideration
The accused submitted that evidence that the complainant offered the service of choking before, on and after the date in question was also relevant to the complainant’s credit.
The Crown argued that the proposed line of questioning did not amount to credibility evidence at all, let alone evidence that surpassed the threshold in s 103 of the Evidence Act or 78(3) of the EMP Act.
I put to one side the issue whether the service of “choking” included being choked as well as performing the choking. At the time the application was made, no question had been asked of the complainant to raise credibility concerns about the service of choking being an available service at the brothel on the night in question.
If there was any evidence from the complainant to the effect that choking was not a service offered at all, the evidence the accused sought to lead through cross-examination may have been considered in a different light. However, that was not the case. There was no prior inconsistent statement made by the witness in evidence in chief. There was therefore nothing by which the proposed line of questioning might be said to “substantially impair confidence in the reliability of the complainant’s evidence”.
As I explained at the hearing, and as the Crown accepted, a permissible line of questioning that either did not breach the general immunity provided by s 76 of the EMP Act or surpassed the threshold of substantial relevance in the first limb of s 78(1) would be to limit the cross-examination to whether the service of choking was a service offered by the complainant at the brothel on the night in question. That is, if paid and if the complainant agreed, choking was a service the complainant would have provided.
Because the accused had not laid any foundation for the wider area of cross-examination proposed, I was not satisfied that the proposed questioning in the accused’s application was a proper matter for cross-examination about credit, in particular because it did not surpass the threshold set out in s 78(3) of the EMP Act.
Orders
Accordingly, the order of the Court was as follows:
1.The application filed 19 July 2022 is dismissed.
| I certify that the preceding thirty-three [33] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Acting Justice McWilliam. Associate: Kristen Cummings Date: 30 August 2022 |
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