R v CH and JW
[2010] ACTSC 75
•30 July 2010
R v CH and JW [2010] ACTSC 75 (30 July 2010)
EVIDENCE – pre-trial application for leave to adduce evidence of complainant’s prior sexual activities – operation of s 53(4) Evidence (Miscellaneous Provisions) Act 1991 (ACT) – written reasons not required to be given before trial can proceed.
EVIDENCE – pre-trial application for leave to adduce evidence of complainant’s prior sexual activities – operation of s 51 Evidence (Miscellaneous Provisions) Act 1991 (ACT) – s 51(1) does not apply to evidence of complainant’s sexual activities with accused.
EVIDENCE – pre-trial application for leave to adduce evidence of complainant’s prior sexual activities – whether alleged sexual activities have substantial relevance to the facts in issue or are a proper matter for cross-examination about credit – evidence of consensual sexual activity between the complainant and another man on the night of the charges not relevant to a fact in issue – evidence of prior consensual sexual intercourse followed by a rape allegation is a proper matter for cross-examination about credit – evidence of prior consensual sexual intercourse followed by a threat to make a rape allegation is a proper matter for cross-examination about credit.
PROCEDURE – interaction of provisions dealing with pre-trial hearings (div 4.2B Evidence (Miscellaneous Provisions) Act 1991 (ACT)) with provisions dealing with admissibility of evidence of complainant’s prior sexual activities (div 4.4 Evidence (Miscellaneous Provisions) Act 1991 (ACT)) and with obligations of counsel during examination of witnesses.
Criminal Code 2002 (ACT), s 712A
Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 50, 51, 52, 53, 72, 73
Evidence Act1995 (Cth), ss 55, 102, 103, 106
Evidence Act 1971 (ACT), s 76G(2)
Legal Profession (Barristers) Rules 2008
Explanatory Statement for Evidence (Miscellaneous Provisions) Amendment Bill 2003 (ACT)
Revised Explanatory Statement for Sexual and Violent Offences Legislation Amendment Bill 2008 (ACT)
R v Fernando [2009] ACTSC 137
Gregory v The Queen (1983) 151 CLR 566
R v Henning (unreported, New South Wales Court of Criminal Appeal, Gleeson CJ, Campbell and Matthews JJ, 11 May 1990)
R v Miller (2007) 177 A Crim R 528
Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General, Chapter 5: Sexual Offences Against the Person (1999)
No. SCC 269 of 2009 and SCC 291 of 2009
Judge: Penfold J
Supreme Court of the ACT
Date: 30 July 2010
IN THE SUPREME COURT OF THE )
) No. SCC 269 of 2009
AUSTRALIAN CAPITAL TERRITORY ) No. SCC 291 of 2009
R
v
CH
and
JW
REASONS FOR DECISION
Judge: Penfold J
Date: 30 July 2010
Place: Canberra
THE COURT ORDERED THAT:
In the trial of CH and JW scheduled to start on 17 May 2010:
(a) leave was not required under div 4.4 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) for the admission of evidence of previous consensual sexual intercourse between the complainant and either of the accused, CH and JW;
(b) leave was refused under s 51(1) for the admission of evidence that the complainant performed oral sex on MW1 at the New Year’s Eve party during which the alleged rapes were committed;
(c) leave was granted under s 51(1) for the admission of evidence of previous consensual sexual intercourse between the complainant and MW1, followed shortly afterwards by in one case an allegation of rape made by the complainant and in another case a threat by the complainant to make an allegation of rape;
(d) leave was granted under s 51(1) for the admission of evidence of previous consensual sexual intercourse between the complainant and MW2, followed shortly afterwards by an allegation of rape made by the complainant;
(e) leave was not required under div 4.4 for the admission of evidence of a text message sent by or on behalf of the complainant to MW3 on 2 January 2009.
THE COURT ORDERS THAT:
1. The names of the witnesses or intended witnesses referred to by initials in this judgment, and evidence of the name of any other person referred to by initials in this judgment, not be published.
2. Appendix D to these reasons, which contains the names of those identified only by initials in these reasons, not be published but be made available to the prosecution and the two accused only, to be used by them if required for these or any subsequent proceedings.
Introduction
CH and JW were each charged with three offences alleged to have been committed on 1 January 2009, namely for each accused:
(a) one count of abduction (the unlawful detention of the complainant with intent that the complainant should engage in sexual intercourse with him); and
(b) two counts of engaging in sexual intercourse with the complainant without consent and reckless as to whether she had consented.
Both accused pleaded not guilty to all the charges, and a trial was scheduled for May 2010.
This proceeding is a sexual offence proceeding for the purposes of div 4.2 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (the Miscellaneous Provisions Act). Section 40 of that Act makes it a strict liability offence in relation to such a proceeding to publish the name of the complainant, protected identity information about the complainant, or a reference or allusion that discloses the complainant’s identity or from which the complainant’s identity might reasonably be inferred.
Both accused, while now 19 years old, were aged 17 at the time of the alleged offences, so under s 712A of the Criminal Code 2002 (ACT) their names are also suppressed and must not be published. The names of several other people involved in this matter who are referred to in these reasons will also be the subject of orders under s 91 of the Miscellaneous Provisions Act prohibiting publication.
At the end of this judgment is an appendix identifying the people referred to only by initials in the judgment (Appendix D), which will not be published but will be made available to the prosecution and the two accused only, to be used by them if required for the purposes of these or any subsequent proceedings.
Evidence of complainant’s prior sexual activity
CH and JW seek to adduce at their trial various kinds of evidence about prior sexual activities of the complainant (including through cross-examination of her).
Division 4.4 of the Miscellaneous Provisions Act applies to the admission in sexual offence proceedings of evidence of the complainant’s sexual reputation and activities. Sections 50 to 53 are set out in Appendix A to this judgment. In summary, the provisions make evidence of a complainant’s sexual reputation inadmissible (s 50), and restrict the admissibility of evidence of the complainant’s sexual activities (s 51). Such evidence is admissible only with leave; leave must be sought as specified (s 52), and must not be granted unless the evidence has “substantial relevance” or is “a proper matter for cross-examination about credit” (s 53(1)). “Substantial relevance” of evidence cannot be established from inferences that might be drawn from the evidence about the complainant’s “general disposition” (s 53(2)). For sexual activity evidence to be “a proper matter for cross-examination about credit”, the court needs to find that the evidence, if accepted, would be likely to substantially impair confidence in the reliability of the complainant’s evidence (s 53(3)), and that s 102 of the Evidence Act 1995 (Cth) does not apply to the evidence because of s 103 of that Act (s 53(5)). The relevant provisions of the Evidence Act are also set out in Appendix A.
Section 51 restricts the admissibility of evidence of sexual activities of the complainant; it is as follows:
(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.
CH and JW will need the leave of the court to adduce some or all of the evidence covered by their applications, and they have applied for that leave in respect of that evidence. The two applications do not cover exactly the same items of evidence nor exactly the same grounds for the granting of leave; details of the differences are noted in the discussion of the applications.
Procedural matters
As required by the Miscellaneous Provisions Act, the applications were made in writing. They were heard after the accused had been arraigned but before any jury was empanelled and, without objection, in the absence of the complainant. During the same few weeks, the complainant gave evidence at a pre-trial hearing permitted by div 4.2B of the Miscellaneous Provisions Act for the evidence of certain complainants in sexual offence proceedings. Her evidence was begun before the current applications were heard, and was not completed until after the applications were determined. I note that discussions with the complainant during adjournments of the hearing of the applications were criticised by counsel for the accused, and issues were raised concerning the operation of div 4.4 and its effect on cross-examination. Those issues are discussed in more detail at [78] to [90] below.
On 29 April 2010, following oral submissions and consideration of affidavits, I indicated to counsel my decision that some of the relevant evidence was not covered by div 4.4, that leave was given for some other relevant evidence to be admitted, and that leave was refused for the admission of the remaining evidence.
Section 53(4) of the Miscellaneous Provisions Act requires a court that gives leave under s 51 to give written reasons for its decision. These are my reasons.
I took the view that s 53(4) does not require the written reasons to be given at the time the decision to give leave is conveyed to the parties. Among other things, I consider that such a requirement would be an inappropriate impediment to the expeditious conduct of a jury trial in the course of which an application for leave is made. I note that under s 409B(7) of the Crimes Act 1900 (NSW) the trial judge must, before evidence admitted under s 409B (roughly equivalent to div 4.4 of the Miscellaneous Provisions Act) is given, record in writing the nature and scope of the evidence covered and the reasons for deciding to admit the evidence; the requirement to record reasons seems to be a lesser obligation (and one more readily performed in the context of a trial) than the ACT requirement to “give” written reasons, which seems to require a published judgment.
In the interests of maintaining a common understanding among all participants in the trial despite the absence of published written reasons, I gave counsel a table setting out the evidence sought to be admitted, what I understood to be the basis for the applications, my decision in relation to each category of evidence, and summary reasons for that decision (which would probably have complied with the NSW requirement). The version of the table provided immediately before the complainant’s cross-examination began is set out at Appendix B.
The evidence in question
The evidence covered by the applications is as follows:
(a) Item 1: evidence of previous consensual sexual intercourse between CH and the complainant on three occasions in the several months preceding the incident (covered in CH’s application);
(b) Item 2: evidence of previous consensual sexual intercourse between JW and the complainant on three occasions in the several months preceding the incident (covered in JW’s application);
(c) Item 3: evidence of oral sex between the complainant and another young man (MW1) earlier in the evening on which the alleged offences took place (covered in JW’s application);
(d) Item 4: evidence of previous consensual sexual intercourse between the complainant and MW1, followed shortly afterwards by, on one occasion, an allegation of rape and, on another occasion, a threat to make a rape allegation, made against MW1 by the complainant (covered in both applications);
(e) Item 5: evidence of previous consensual sexual intercourse between the complainant and another young man (MW2), followed shortly afterwards by an allegation of rape made by the complainant (covered in both applications);
(f) Item 6: evidence of a text message sent by the complainant on the day after the alleged offences to a friend of both accused (MW3), which could have conveyed an admission of, and apology for, false allegations by the complainant about the sexual intercourse to which the charges relate (covered in both applications).
The applications
Section 53(1) of the Miscellaneous Provisions Act prohibits the court giving leave for the purposes of s 51(1) of that Act unless satisfied that the evidence:
(a) has substantial relevance to the facts in issue; or
(b) is a proper matter for cross-examination about credit.
Before setting out the various grounds on which the applicants claim that leave should be given to adduce the various kinds of evidence, it is necessary to outline the circumstances of the alleged offences and relevant events before and after the day of the offences.
Events relevant to the applications
The offences are alleged to have taken place early in the morning of 1 January 2009, during the closing stages of a New Year’s Eve party attended by the complainant and the two accused. I shall simply refer to the party, and to the evening of the party, without seeking to be precise about whether particular events took place before or after midnight.
In examination in chief, the complainant gave evidence of arriving at the venue of the party, the home of MW3, during the morning of 31 December, and of having her first drink during the afternoon and several other drinks (but, she said, not an excessive quantity of alcohol) during the course of the party. At some stage the two accused arrived at the party. On several occasions during the following few hours JW asked the complainant if she wanted to “hook up” with him, which the complainant understood to be an inquiry whether she wanted to have sex with him. None of these invitations, the complainant said, received a favourable response (although it seems that, on the complainant’s evidence, not all of them were explicitly rejected). Late in the evening, CH asked the complainant whether she would “hook up” with him, and was refused. JW, whom the complainant said was affected by both alcohol and possibly drugs, then invited the complainant to come for a drive, and she got into his car with him and CH. JW drove the car to a secluded area not far from the party venue, where sexual intercourse took place with each accused at least once. JW then drove the complainant and CH back to the party. The complainant said that when JW and CH got out, they made some demeaning comments about what had taken place between the two of them and the complainant.
Shortly after this, the complainant left the party with several friends. A statement to her friend FW1 that she had been raped was overheard by the older man who was driving the group to FW1’s house. The allegation was also passed on to FW1’s mother. Both adults told the complainant that she should contact police. She did so, and police attended. The complainant was taken to the Winchester Centre, where she was examined by a doctor, but declined to make a statement immediately, indicating that she was too tired (at this stage it was around 5:00 am on New Year’s Day).
On 2 January the host of the New Year’s Eve party, MW3, received a text message which purported to have been sent by the complainant; the complainant admits some involvement in sending that message. The text message could be read as conveying an admission of, and apology for, false allegations by the complainant about the offences to which the charges relate.
On 20 January 2009, the complainant participated in an interview with police, as a result of which the current charges were laid. During that interview she gave several answers about her prior sexual activities that counsel for both accused said were inconsistent with the evidence they sought to adduce, and that were therefore relevant to her credit. The questions and answers were as follows:
Q243 And had you had sex before that night?
A243 Yeah, twice.
...
Q305 Sorry, and how long—how long before that night had you previously had sex? When was the last time you’d had sex before that night?
A305 Mm. Not sure.
Q306 Can you give a rough time frame.
A306 I wouldn’t have a clue.
Q307 Would it have been measured in days or weeks or months?
A307 A year.
Q308 A year? Okay. And you said you told [FW1] what had happened and she was the first person you told.
A308 Yeah.
Neither accused denies having sexual intercourse with the complainant on the night of the New Year’s Eve party, but each accused asserts that it was consensual sexual intercourse.
In support of their defences, each accused seeks to adduce:
(a) evidence that he had a prior sexual relationship with the complainant;
(b) evidence that the complainant had previously made rape allegations against MW1 and MW2 after separate incidents of consensual sex with those men, and had also on another occasion threatened to make a rape allegation against MW1 after engaging in consensual sex with him; and
(c) evidence of the text message sent on 2 January 2009.
JW also seeks to adduce evidence of an act of sexual intercourse between the complainant and MW1 earlier during the New Year’s Eve party.
The evidence the subject of these applications is set out in affidavits listed in Appendix C. The applications were made in two stages; the original applications related to Items 1, 2, 3 and 5 described in the table at [27] below, and the second applications related to Item 4. Item 6 set out below was raised in argument but conceded by the prosecutor not to be covered by s 51(1) of the Miscellaneous Provisions Act; it is included here because it was covered in the table set out at Appendix B.
The applications and, in the case of Item 6, oral submissions, specified different grounds in relation to different items of evidence, which can be summarised as follows:
Nature of evidence Grounds for application Item 1: evidence of previous consensual sexual intercourse between CH and the complainant.
[raised by CH]
That the evidence is relevant to facts in issue in the trial, being:
That the evidence is a proper matter for cross-examination of the complainant as to credit.
- Whether the complainant consented to sexual intercourse with CH on the night of the party.
- Whether CH believed the complainant to be consenting to sexual intercourse with him on the night of the party.
Item 2: evidence of previous consensual sexual intercourse between JW and the complainant.
[raised by JW]
That the evidence is relevant to facts in issue in the trial, being:
That the evidence is a proper matter for cross-examination of the complainant as to credit.
- Whether sexual intercourse took place between JW and the complainant on the night of the party.
- Whether the complainant consented to sexual intercourse with JW on the night of the party.
- Whether JW believed the complainant to be consenting to sexual intercourse with him on the night of the party.
Item 3: evidence of oral sex between the complainant and another young man (MW1) earlier in the evening of the party.
[raised by JW]
That the evidence is relevant to facts in issue in the trial, being:
That the evidence is a proper matter for cross-examination of the complainant as to credit.
- Whether sexual intercourse took place between JW and the complainant on the night of the party.
- Whether the complainant consented to sexual intercourse with JW on the night of the party.
- Whether JW believed the complainant to be consenting to sexual intercourse with him on the night of the party.
Item 4: evidence of previous consensual sexual intercourse between the complainant and MW1, followed shortly afterwards in one case by an unsubstantiated allegation of rape made by the complainant and in another case by a threat to make a false rape allegation.
[raised by CH and JW]
That the evidence is a proper matter for cross-examination of the complainant as to credit. Item 5: evidence of previous consensual sexual intercourse between the complainant and another young man (MW2), followed shortly afterwards by an unsubstantiated allegation of rape made by the complainant.
[raised by CH and JW]
That the evidence is a proper matter for cross-examination of the complainant as to credit. Item 6: evidence of a text message sent by the complainant, on the day after the alleged offences the subject of this trial, to a friend of both accused which could have conveyed an admission of, and apology for, false allegations by the complainant about those offences.
[raised by CH and JW]
That if this is evidence of prior sexual activity of the complainant, s 51(2) excludes the evidence from the leave requirement in s 51(1).
That the evidence is a proper matter for cross-examination of the complainant as to credit.
Several different questions about the operation of div 4.4 of the Miscellaneous Provisions Act need to be addressed in the course of considering the applications before me.
The first is whether each kind of evidence is covered by the division at all, and if so, whether it is evidence that is only admissible with the leave of the court under that division. A finding that any particular item of evidence is not covered by the leave requirement disposes of the application for leave in relation to that evidence.
A finding that any of the items of evidence are subject to the leave requirement in div 4.4 will then require me to consider either or both of the questions whether the evidence concerned has substantial relevance to a fact in issue and whether it is a proper matter for cross-examination of the complainant as to credit. I note that the question whether evidence has substantial relevance to a fact in issue involves both whether the evidence is relevant at all and whether it has substantial relevance—this distinction presumably reflects a policy that evidence of prior sexual history should not be admitted on the basis of only minor or peripheral relevance to facts in issue.
Scope of div 4.4, Miscellaneous Provisions Act
The first question is whether any of the evidence would be inadmissible under s 51 of the Miscellaneous Provisions Act unless leave is given for it to be admitted.
First I note that I have found no definition of “sexual activities” for the purpose of div 4.4, and have not been referred to any authorities dealing with the scope of that expression. I have considered the meaning of the expression in relation to each item of evidence in question.
Items 1 and 2: Evidence of prior sexual intercourse with each applicant
Section 51(2) excludes from the operation of s 51(1) “evidence of the specific sexual activities of the complainant with an accused person in the sexual offence proceeding”. Depending on the meaning of this provision, evidence of the complainant’s prior sexual intercourse with each applicant may be excluded from the scope of div 4.4.
In R v Fernando [2009] ACTSC 137 at [32] I expressed the view that the reference to “in the sexual offence proceeding” was part of the description of the relevant accused person; that is, the subsection is intended to apply only in relation to sexual activities with any accused person in the proceeding concerned, rather than with any accused person in general. I went on at [33]:
It is possible that [s 51(2)] was intended simply to overcome a mischievous reading of s 51(1) to the effect that it might prevent the tendering of evidence of the alleged offending behaviour. However, the words of the provision, “specific sexual activities ... in the sexual offence proceeding” are not apt to describe the specific sexual activity charged against the accused person in the proceeding. Furthermore, the Explanatory Statement for the Evidence (Miscellaneous Provisions) Amendment Bill 2003 which inserted the current s 51 in the Miscellaneous Provisions Act (while misrepresenting in one respect the operation of s 51 in relation to evidence of specific sexual activities), says that s 51 “is a restatement of subsection 76G(2) of the Evidence Act”. Section 76G(2) of the Evidence Act 1971 (ACT) expressly applied only to limit the admissibility of “sexual experience of the complainant with a person other than the accused person”.
In that case, however, my conclusion that s 51(2) excluded evidence of prior sexual activity between the complainant and the accused from the scope of div 4.4 was only one of several grounds on which I considered it was appropriate to permit the evidence concerned to be adduced, and the interpretation of s 51(2) was not the subject of submissions of any substance. In this case, however, the question is more significant, and I have heard more detailed submissions from counsel.
On the basis of those submissions and some of the research that underpinned them, I am now more strongly of the tentative view I expressed in Fernando, namely that s 51(2) excludes evidence of prior sexual activities with the accused from the restrictions imposed by s 51(1). Of course, this does not mean that such evidence will be routinely admissible in sexual offence proceedings—the evidence would still have to satisfy the usual requirement of relevance, and in some cases such evidence will have no apparent relevance to the fact in issue in the proceedings.
I have already referred to my reading of the words of s 51(2), and to the statement in the relevant Explanatory Statement to the effect that s 51 is a restatement of s 76G(2) of the Evidence Act 1971 (ACT). Research by counsel (including the prosecutor, who very properly drew to my attention material not helpful to her submission that s 51(2) only applied to evidence of the particular sexual activity charged) has provided further support for my earlier approach to the legislation.
First, however, I should note the prosecutor’s submission that my reading of s 51(2) was not supported by the reference to “the specific sexual activities of the complainant”; her argument was to the effect that the subsection as I interpret it needed only to refer to “the sexual activities of the complainant with” the accused, and that the inclusion of the word “specific” must have been intended to narrow the reference, presumably to activities the subject of the proceedings. I agree with the prosecutor that “specific” is not on the face of it required to achieve the interpretation which I favour and which is supported by the Explanatory Statement.
However, an explanation for the inclusion of “specific” emerged from further research. The prosecutor provided extracts from a report called Chapter 5: Sexual Offences Against the Person prepared by the Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General and published in May 1999. At pages 217 to 245 of the report, the Officers Committee discussed two models for provisions dealing with the admissibility of prior sexual history of complainants. The first matter canvassed was reputation evidence, and with little comment or argument except to note that all Australian jurisdictions make evidence of sexual reputation absolutely inadmissible, the Officers Committee recommended the retention of that approach. The Committee then moved on to consider what was referred to in relevant headings, and in the draft legislation included in the report, as “specific sexual activities of a complainant” (pages 222 and 223). That is, “specific” is used in that part of the report to distinguish the kind of evidence there being dealt with from reputation evidence. This distinction is apparent in the relevant draft Code provisions:
5.2.38 Evidence with respect to sexual reputation of complainant not admissible
In proceedings that relate to an offence against this Part (including committal proceedings), evidence of the reputation of the complainant with respect to sexual activity is not admissible.
5.2.39 Admissibility of evidence relating to specific sexual activities of a complainant
(1) In proceedings that relate to an offence against this Part (including committal proceedings), evidence is not to be admitted as to the specific sexual activities of the complainant (other than with the accused), except with the leave of the court.
Section 51 appears to be intended to be to the same effect as 5.2.39 (1) set out above, except that s 51 has been separated into two subsections in order, apparently, to enable clarification of the admissibility of evidence where there is more than one accused in a proceeding.
It is unfortunate that in splitting the provision into two, the reference to “specific” has been removed from the provision where it might provide a useful distinction from reputation evidence, but retained in the provision exempting evidence of sexual activities with an accused person, where it serves only to confuse the issue. If the intention of the drafter was to draw a distinction between the sexual activities of the complainant with the accused in general and the sexual activity of the complainant and the accused that is the subject of the charges, then there would have been better ways of drawing that distinction than by relying on the word “specific” (especially since that word had been relied on in the model Code for the different purpose of distinguishing activity evidence from reputation evidence). However, the unfortunate use of “specific” where it appears to be unnecessary is not sufficient to persuade me that the legislative intention was to do something inconsistent with the Model Criminal Code Officers Committee model provision and with the words of the Explanatory Statement for the ACT provision.
Further, in support of my interpretation of s 51(2), I note that, almost by definition, sexual offence proceedings involving adult complainants are unlikely to concern activities that are properly described as “sexual activities of the complainant with” an accused person as mentioned in s 51(2) – rather, they will generally involve sexual activities allegedly forced on the complainant by an accused person, in which the complainant claims to be a recipient or victim rather than a participant.
Accordingly, I conclude that evidence of prior consensual sexual intercourse between the complainant and each of the applicants is not subject to s 51 of the Miscellaneous Provisions Act, so leave is not required under s 51(1) before that evidence is admissible.
Is the evidence relevant to a fact in issue?
If I had found that s 51 did apply to evidence of prior consensual sex between the complainant and either of the applicants, the next question would be the relevance of the evidence. In the light of a submission made on behalf of JW, it is useful to canvass this question briefly at this stage. Section 55(1) of the Evidence Act1995 (Cth), which applies in the ACT (see s 4 of that Act) says:
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.
The two most significant facts that will be in issue in this trial are, in relation to each accused, whether the complainant in fact consented to sexual intercourse with him and what he believed about whether she was consenting. In such circumstances, evidence of prior consensual sex between the complainant and an accused person, in particular evidence of matters such as the circumstances of that consensual sex and the method of indicating consent that was customary between the two people, could be directly relevant to either or both of the issues concerning consent identified above.
In Gregory v The Queen (1983) 151 CLR 566 (Gregory) the High Court (Gibbs CJ, Wilson, Brennan, Deane and Dawson JJ) said that the trial judge should have admitted evidence of the complainant’s consensual sexual intercourse with several other men before and after the acts of intercourse giving rise to the charges against the accused.
In considering the common law rule about evidence of consensual sex between the complainant and another man, the Court said (at 571):
The statement that evidence that the complainant on a charge of rape consented to sexual intercourse with a man other than the accused is not relevant to the question whether she consented to intercourse with the accused, although correct in most cases, is not universally true. Usually, evidence as to the sexual experience of the complainant with other men could, at most, go to her credit, and if she has been cross-examined on the subject her answers must be accepted, in accordance with the general principle that a party may not impeach the credit of his opponent’s witness by calling witnesses to contradict him or her on irrelevant matters. In some cases, however, the other acts of consensual intercourse may be so closely connected with the alleged rape, either in time and place, or by other circumstances, that evidence as to those other acts may be relevant to the issues at the trial; in those circumstances the evidence may not go solely to credit but may be probative of the fact that the complainant consented to have intercourse with the accused, or of the fact that the accused believed that the complainant was consenting. If evidence of this kind is relevant to an issue in the case, and not merely to credit, there is no rule of law that excludes it. The submission that there is some special rule of exclusion applicable to the evidence of this kind is misconceived; the evidence of other sexual experience is excluded because, and only when, it is logically irrelevant to a fact in issue. This conclusion, which seems to us correct in principle, is supported by the recent decision of the English Court of Appeal in Reg. v Viola. [Reference omitted]
In R v Henning (unreported, New South Wales Court of Criminal Appeal, Gleeson CJ, Campbell and Matthews JJ, 11 May 1990) the Court considered the operation of s 409B of the Crimes Act 1900 (NSW) relating to the admissibility of evidence about the complainant's prior sexual history. Section 409B is different in a number of important respects from div 4.4 of the Miscellaneous Provisions Act, and so care needs to be taken in using R v Henning in the interpretation of the provisions of div 4.4. In particular, the NSW provision specifically refers to a "relationship" between the accused and the complainant, a concept not relied on in the ACT provisions. However, it is clear from the Court’s comments (BC9002977 at 78) about the possible relevance of evidence of a prior sexual relationship between the complainant and an accused that the evidence must be of specific elements of that relationship, not simply of the existence of a relationship, and as such the Court’s comments about relevance seem to me to be equally applicable to the question whether evidence of particularised prior sexual activity between an accused and the complainant is relevant to a fact in issue:
... in relation to the Crown case against the appellant Delaney, the proposed cross-examination did go to an issue, namely the issue of consent. The question whether evidence of a previous sexual relationship between a complainant and an accused goes to the issue of consent is one which will need to be determined in the light of the facts and circumstances of the particular case. In the particular facts and circumstances of the present case we consider that the evidence in question, if sought to be adduced, would have gone to the issue of consent as between the complainant and the accused Delaney. Our reasons for that are as follows. The evidence was to the effect that on many previous occasions, usually related to smoking of marihuana [sic], the complainant had engaged in consensual group sexual activity with Delaney and other persons. That, according to Delaney's evidence, is exactly what occurred on the night in question.
The Court then went on to consider the issues that the jury would have needed to decide and the impact of the evidence concerned on the jury's consideration of those issues.
In this case, the affidavit evidence provided by the two accused was of incidents of consensual sex between the complainant and the two accused in circumstances similar to those alleged in this case, although it must be noted that none of the previous encounters was claimed to have involved both accused on the same occasion. Despite that difference, the evidence would have been relevant to the likelihood of the admitted sexual intercourse being consensual or of an accused believing it to be consensual.
JW’s application also identified as a fact in issue the question whether sexual intercourse between him and the complainant took place at all on the occasion in question.
JW’s counsel indicated that this was identified as a fact in issue in the sense that the prosecution was obliged to prove it beyond reasonable doubt. This is certainly true, but that does not mean that it is a fact that is likely to be proved by evidence of prior sexual intercourse with the accused. Prior consensual sexual activity between a complainant and an accused would seem to be generally far less relevant, in an evidentiary sense, to the question whether a particular instance of sexual activity took place between the two people concerned than it is to whether admitted sexual activity between them was or was believed to be consensual. It is hard to imagine a circumstance in which the prosecution could seek to rely on evidence of prior consensual sexual activity to prove later non-consensual sexual activity (as distinct, for instance, from using such evidence to bolster identification evidence), and almost as hard to imagine a case in which the defence would rely on evidence of prior consensual sexual activity to disprove the occurrence of later sexual activity. Certainly, no such circumstance was articulated on behalf of JW in connection with this application, so I concluded that, if leave were required for JW to adduce this evidence, I would not have granted leave in reliance on the claim that the evidence was relevant to the question whether JW had intercourse with the complainant at all.
Item 3: Evidence of prior sexual activity with MW1 at New Year’s Eve party
The accused JW sought leave for the admission of evidence that the complainant had performed oral sex on another young man, MW1, earlier during the party in the course of which the complainant alleges she was raped by JW and the other accused.
This evidence is said to be relevant to three facts in issue, being:
(a) whether sexual intercourse took place between JW and the complainant on the night of the party;
(b) whether the complainant consented to sexual intercourse with JW that night; and
(c) whether JW believed the complainant to be consenting to sexual intercourse with him that night.
The evidence is also said on behalf of JW to be a proper matter for cross-examination of the complainant as to credit.
Is the evidence relevant to a fact in issue?
In considering this evidence, it is useful to repeat the High Court’s comments in Gregory about how acts of consensual sexual intercourse with people other than the accused might be relevant:
In some cases, however, the other acts of consensual intercourse may be so closely connected with the alleged rape, either in time and place, or by other circumstances, that evidence as to those other acts may be relevant to the issues at the trial; in those circumstances the evidence may not go solely to credit but may be probative of the fact that the complainant consented to have intercourse with the accused, or of the fact that the accused believed that the complainant was consenting.
The sexual activity with MW1 was alleged to have taken place in the course of the same New Year’s Eve party, so relatively close in time to the alleged rapes. However, counsel for JW was not able to suggest any basis that I found credible on which the sexual activity with MW1 could have been relevant to the identified facts in issue, in the sense that evidence of that prior sexual activity, if it had been accepted, could rationally have affected (directly or indirectly) the assessment of the probability of the existence of any of those facts.
Counsel for JW disclaimed any submission to the effect that the earlier incident showed a general disposition on the complainant’s part to consent to sexual intercourse; any such submission would have run foul of s 53(2) of the Miscellaneous Provisions Act (set out in Appendix A). Instead, she put an arguably more startling proposition to the effect that a woman who has consented to sexual intercourse on a particular occasion is more likely to consent to sexual intercourse again, including with a different man, on the same occasion or within a short period thereafter.
MS WARWICK: Well, I suggest it’s not close to general disposition and I’m not trying to rely on it on that basis. I’m saying that it’s disposition on that evening and in the context of whatever drugs and alcohol and whatever else was happening at that party. And I certainly wouldn’t seek to ask any questions outside of the disposition of the complainant that night at that party, and in those limited circumstance.
HER HONOUR: The fact that you have sex with one person one night, doesn’t even, surely, suggest that you’re willing to have sex with anyone on that night? ...
MS WARWICK: I think it’s relevant to the jury’s assessment of that. It’s not decisive, certainly not. But my submission is that it’s relevant to the jury’s assessment of whether the complainant was, in fact, consenting a couple of hours later.
HER HONOUR: To sex with a different person?
MS WARWICK: Yes and a person that she’d previously had a history with.
I could see no basis in the circumstances of the particular incident or the circumstances of these offences for finding that the alleged consensual sexual activity with MW1 earlier at the New Year’s Eve party rationally increased the probability that the complainant had consented to sex with the two accused on the same night.
Is the evidence a proper matter for cross-examination as to credit?
Subsections 53(3) and (5) are relevant to determining whether particular evidence is a proper matter for cross-examination of the complainant as to credit. They are as follows:
(3) Sexual activity evidence is not to be regarded as being a proper matter for cross-examination about credit unless the evidence, if accepted, would be likely to substantially impair confidence in the reliability of the complainant’s evidence.
(5) In this section:
proper matter for cross-examination about credit—evidence is a proper matter for cross-examination about credit if the credibility rule under the Evidence Act 1995 (Cwlth), section 102 does not apply to the evidence because of that Act, section 103 (Exception: cross-examination as to credibility).
These provisions require two tests to be applied. First, does the evidence fall within the definition of “proper matter for cross-examination about credit” in s 53(5), and secondly, would it, if accepted, “be likely to substantially impair confidence in the reliability of the complainant’s evidence”?
Section 102 of the Evidence Act, containing the “credibility rule”, is set out in Appendix A. It provides that credibility evidence about a witness is not admissible. There are a number of qualifications to this rule, including that set out in s 103(1) (also set out in Appendix A) to the effect that the credibility rule does not apply to “evidence adduced in cross-examination of a witness if the evidence could substantially affect the assessment of the credibility of the witness”.
Section 102 is also subject to s 106 of the Evidence Act, which permits credibility evidence to be adduced otherwise than from the witness concerned, by leave, if in cross-examination of the witness the substance of the evidence was put to the witness and the witness denied or did not concede the substance of the evidence.
Applying the definition of “proper matter for cross-examination about credit” in s 53(5) of the Miscellaneous Provisions Act is not easy, because under s 51 of that Act the definition needs to be applied for the purpose of determining whether to give leave to adduce particular evidence before the relevant cross-examination occurs, whereas s 103 of the Evidence Act is expressed to apply to evidence that is adduced in cross-examination.
The interaction between ss 102 and 103 seems to be that if credibility evidence emerges during cross-examination of a witness, then that evidence is admissible despite s 102. The class of evidence admissible by reason of s 103 is only identifiable as, or after, the relevant cross-examination takes place; under div 4.4 of the Miscellaneous Provisions Act, however, unless leave is given, there can be no relevant cross-examination on which s 103 could operate. For that reason, it does not seem to make any sense to say, as s 53(5) in effect does, that leave may be given for the admission of evidence that is admissible under s 103. Rather, s 53(5) needs to be read as if it were expressed in the subjunctive, that is that evidence is a proper matter for cross-examination about credit:
... if the credibility rule under ... section 102 would not apply to the evidence because of ... section 103 ... if the evidence were adduced in cross-examination of the witness concerned. [suggested revisions shown in bold]
In other words, if evidence of a specified kind were adduced in cross-examination, and that evidence were such as could substantially affect the assessment of the credibility of the witness, then evidence of that kind is a proper matter for cross-examination as to credit for the purposes of div 4.4. On this reading, the definition of “proper matter for cross-examination about credit” identifies evidence by reference to its nature or content, specifically whether it is evidence that “could substantially affect the assessment of the credibility of the witness”; it does not, despite the reference to s 103 of the Evidence Act, identify the evidence by reference to how or when it is adduced. This would seem also to mean that any leave given under s 51 of the Miscellaneous Provisions Act by reference to credit would also permit the admission of evidence of the specified kind under s 106 of the Evidence Act as long as the matter is first raised and denied under s 103.
In effect, then, I consider that the two tests to be applied are as follows:
(a) could the evidence substantially affect the assessment of the credibility of the complainant? and
(b) would the evidence, if accepted, be likely to substantially impair confidence in the reliability of the complainant’s evidence?
Counsel for JW submitted that evidence that the complainant had performed oral sex on another man earlier during the New Year’s Eve party could be relevant to the complainant’s credit to the extent that it conflicted with her assertions during the police interview that before the alleged rapes she had not had sex for about a year (see [22] above).
Whether this evidence was relevant to the complainant’s credit as argued on behalf of JW depended on whether the alleged sexual activity with MW1, if accepted, rendered the complainant’s statement to police untrue, and this in turn depended on establishing that her concept of “having sex” included performing oral sex on a person. Given the complainant’s youth, and a tendency to use words and concepts fairly loosely that had already become apparent in her evidence in chief and other material tendered in the application, I was not satisfied that she would necessarily have understood the police officer’s question about having sex to include performing oral sex, and therefore not satisfied that the evidence was appropriately admitted purely on the basis of its relevance to her credit.
Accordingly, I refused leave for the admission of this evidence in the trial.
Items 4 and 5: Evidence of prior consensual sex followed by rape allegation
Both applicants sought leave to adduce evidence of previous consensual sex between the complainant and two young men, MW1 and MW2, in each case followed shortly afterwards by allegations that the sexual intercourse had amounted to rape. The claims of consensual sex with the complainant, followed by rape allegations, were set out in affidavits affirmed by MW1 and MW2. In relation to MW1, there was also an application in relation to evidence of previous consensual sex followed by a threat to make a rape allegation.
This evidence was said to be a proper matter for cross-examination of the complainant as to credit. I note that evidence of previous claims of rape as such would not have satisfied the test for admission in relation to credit without the addition of evidence that the rape claims were false, because in the absence of the latter evidence, the making of previous claims of rape would not tend to impair the jury’s confidence in the reliability of the complainant’s evidence (R v Miller (2007) 177 A Crim R 528 at [38]).
This trial concerns what the accused say are false allegations of rape made in respect of consensual sex with the complainant. Previous instances of false rape allegations made by the complainant following consensual sex may well affect the assessment of the complainant’s credibility in general, and the effect is likely to be to substantially impair confidence in the reliability of her evidence (see [67] above).
The outcome of this trial will depend largely on the credibility of the complainant, so evidence that is directly relevant to that credibility is of major importance. I considered that this was an appropriate case in which to give leave for the admission of such evidence, and therefore I gave leave to adduce evidence of prior consensual sex involving the complainant and each of MW1 and MW2, together with evidence that rape allegations had subsequently been made or threatened by the complainant in respect of the particular incidents of consensual sex.
Item 6: Evidence of text message relating to current rape allegations
On the day after the alleged offences the subject of this trial, a text message was sent, by or on behalf of the complainant, to MW3, a friend of both accused, which could be interpreted as conveying an admission of, and apology for, false allegations by the complainant about those offences. The message was as follows:
[MW3] its shorty sorry can u plz tell the boys i said sorry to i didnt like wat i done but i didnt charge them or anything coz i did wanna hook up wit [JW] k but all i said to the girls is that i didnt wanna do it but it happen k can you just tell that
The applicants argued and as previously mentioned, the prosecutor conceded, that if the contents of this text message amounted to evidence of sexual activity by the complainant at all, the evidence was of the sexual activity by the complainant with the two accused that is the subject of the charges, and the evidence was therefore excluded from s 51(1) on any interpretation of s 51(2). In the alternative, the applicants argued that the content of the text message was a proper matter for cross-examination of the complainant as to credit.
I am satisfied that leave is not required under s 51 for the admission of evidence of the sending of this text message or its contents. First, the text message is not itself sexual activity; it may be that a class of text messages could be imagined, the sending of which could constitute sexual activity between the sender and recipient, but this particular text message does not seem to fall into any such class. To the extent that the content of the text message may amount to evidence of sexual activity, it is sexual activity that falls squarely within s 51(2), however that provision is interpreted, being the sexual activity in question in this trial.
Timing of div 4.4 applications
There is one other matter that arose in the course of this application that needs to be commented on. It concerns the interaction of div 4.4 of the Miscellaneous Provisions Act with the conventions relating to counsel's dealings with witnesses during examination and cross-examination.
To explain the issue, it is necessary to describe the progress of the hearing of this application, which occurred as set out in the following chronology (see [26] above for an explanation of the original and second applications):
16 February 2010 Registrar confirms the following listings:
- Pre-trial application: 22, 23 April
- Pre-trial hearing: 3, 4, 10, 11 May
10 March 2010 After hearing submissions from counsel, Judge directs use of the listed dates as follows:
- Complainant to give evidence at pre-trial hearing: 22, 23 April
- Pre-trial application to be heard: 3, 4 May
- Three other child witnesses to give evidence: 10, 11 May
22 April 2010 Original pre-trial applications argued.
Complainant begins evidence in chief. Evidence in chief not closed, prosecutor indicates further examination may be required after applications determined.23 April 2010 Further argument on original pre-trial applications.
29 April 2010
Judge indicates decision that evidence covered in original pre-trial applications is not inadmissible under div 4.4, Miscellaneous Provision Act. 3 May 2010 Second pre-trial applications argued. 4 May 2010
Application for permanent stay made on behalf of JW but not pressed.
Leave granted to adduce evidence covered in second applications.
Complainant gives further evidence in chief and cross-examination begins.6 May 2010 Application by CH for short service on DPP of subpoena seeking all records of conversations with complainant. 10 May 2010 Complainant cross-examined and re-examined. 11 May 2010 FW1 and FW2 give pre-trial evidence.
The effect of these events and the order in which they took place was that before cross-examination of the complainant began, the prosecutor was in a position to advise her of new matters that were likely to be raised in that cross-examination. Whether and to what extent she had done so became a matter of contention between counsel, and there was some suggestion of a misunderstanding between the prosecutor and counsel for the accused about how the information would be handled by the prosecutor, but I do not consider that issue to be a matter to be dealt with in this judgment.
Possibly arising out of that misunderstanding, however, counsel for the accused expressed some concern about the operation of the Miscellaneous Provisions Act in this matter, and the effect that the legislative scheme might have in future trials involving sexual offences.
Specifically, counsel indicated that if seeking leave to adduce evidence of prior sexual history before the complainant’s examination in chief had finished meant that the complainant might be forewarned of specific matters likely to be raised in cross-examination, then in the interests of protecting their client's interests, defence counsel would feel obliged not to identify prior sexual history as an issue until the end of examination in chief. This in turn would mean that (unless there was a pre-trial hearing), the application under div 4.4 might have to be made, heard and resolved in the course of the trial, with obvious negative implications for the efficiency of the trial and the convenience of all those involved, in particular any jury.
Of course, there is nothing new about evidentiary issues having to be resolved in the course of a trial in the absence of the jury. It may be, however, that the very formal processes required by div 4.4 could have a disproportionate impact in what might often be expected to be a relatively short trial.
Counsel for JW initially suggested that the problem arose because of the interaction of div 4.4 with div 4.2B of the Miscellaneous Provisions Act, which provided for the pre-trial hearing in the course of which these issues had arisen. However, while the problem certainly arose in this case in the context of the interwoven application hearings and the pre-trial hearing, it does not seem to me that the interaction of the two sets of provisions was in any sense the source of the problem.
The problem really arose from the requirement to make a formal application under div 4.4, and the fact that for reasons of general efficiency such an application is ideally not delayed until after the complainant has finished her evidence in chief. However, to make such an application any earlier, the defence is required to advise the prosecutor, before the complainant has finished giving evidence in chief, of matters that might most usefully (from the defence point of view) be raised with the complainant in cross-examination without warning.
As it happened, the scheduling of the pre-trial hearing and the applications in this case left a period of several days in which there was scope for the prosecutor to confer with the complainant after details of the applications had been revealed and before her evidence in chief was finished. However, the same problem would have arisen in the absence of any pre-trial hearing if counsel had indicated the nature of the evidence covered by the application before or during the complainant’s examination in chief at the trial. In this particular case the schedule for the pre-trial hearing involved adjournments for several days at a time, but there is nothing inherent in a pre-trial hearing that means it is likely to be conducted over a longer period than would be occupied by the giving of the evidence during the trial; in each case the scope for the prosecutor to talk to the complainant after the application for leave to adduce evidence is made but before the complainant’s evidence in chief is finished exists whenever the application is made before evidence in chief is concluded.
In fact, it seems to me that the pre-trial hearing arrangements if anything provide more scope than the normal trial procedures for avoiding the problems identified by defence counsel in this case while maintaining the efficiency of the actual trial. The div 4.4 application could be disposed of before a jury is empanelled but without enabling the complainant to be inappropriately forewarned about what is likely to be raised in cross-examination through a process involving the following sequence:
(a) a pre-trial hearing to take the complainant's evidence in chief and for defence counsel to open the cross-examination;
(c) an adjournment to allow any div 4.4 application to be made and resolved;
(d) the resumption of the pre-trial hearing for the complainant’s cross-examination to be finished and for her or him to be re-examined.
The disadvantage of this approach is that it would detract from the purpose of the pre-trial hearing process to the extent that the process is aimed at enabling certain complainants and other witnesses to finish giving evidence as quickly as possible after the events giving rise to the charges; that aim is described at pages 4 to 5 of the Revised Explanatory Statement for the Sexual and Violent Offences Legislation Amendment Bill 2008 (ACT) as follows:
Amendments to the Evidence (Miscellaneous Provisions) Act 1991 will ensure that the evidence of children and adults with an intellectual impairment, who are witnesses in sexual assault proceedings, is taken as close as possible after the commission of an offence. The amendments permit the pre-recording of the entire evidence of these witnesses at a pre-trial hearing, which will be held as soon as possible after a committal proceeding and before the actual trial is held.
However, at this stage, the adjournment of the pre-trial hearing to enable the div 4.4 application to be dealt with is likely to be for an insignificant period compared with the total time that has elapsed since those events (although it is possible that pre-trial hearings relating to new offences may in the future be conducted substantially closer to the events in question than they currently are). A brief adjournment of the pre-trial hearing may be a small price to pay for avoiding an equivalent adjournment during the trial, especially since the pre-trial hearing approach would mean that the jury would see the complainant's evidence in chief and cross-examination without any significant break, which is probably conducive to a fair trial.
Whether there are any other ways of addressing this issue apart from defence counsel ensuring that div 4.4 applications are not made until the complainant’s cross-examination has begun is something that might usefully be considered by those responsible for the Legal Profession (Barristers) Rules 2008 or the Guidelines for Prosecutors given by the Director of Public Prosecutions.
Orders
Original orders
For the reasons set out above, the orders I made were that in the trial of CH and JW scheduled to start on 17 May 2010:
(a) leave is not required under div 4.4 of the Miscellaneous Provisions Act for the admission of evidence of previous consensual sexual intercourse between the complainant and either of the accused, CH and JW;
(b) leave is refused under s 51(1) for the admission of evidence that the complainant performed oral sex on MW1 at the New Year’s Eve party during which the alleged rapes were committed;
(c) leave is granted under s 51(1) for the admission of evidence of previous consensual sexual intercourse between the complainant and MW1, followed shortly afterwards by in one case an allegation of rape made by the complainant and in another case a threat by the complainant to make an allegation of rape;
(c) leave is granted under s 51(1) for the admission of evidence of previous consensual sexual intercourse between the complainant and MW2, followed shortly afterwards by an allegation of rape made by the complainant;
(e) leave is not required under div 4.4 for the admission of evidence of a text message sent by or on behalf of the complainant to MW3 on 2 January 2009.
Suppression orders
This case concerns the activities, and in some cases the sexual activities in particular, of a group of people most or all of whom were under the age of 18 years at the time of the events giving rise to the charges. The names of the complainant and the two accused are suppressed under specific statutory provisions (see [3] and [4] above), but I am satisfied that, because of the ages of the other participants in those events, the nature of the material dealt with in these applications and the risk, given the circumstances of this case, that the publication of any of the names would allow the identification of either the complainant or the two accused, that it would be in the interests of the administration of justice to ensure that the names of those participants not already suppressed are not published.
Accordingly, under s 91(1) of the Miscellaneous Provisions Act, I order that the names of the witnesses or intended witnesses referred to by initials in this judgment, and evidence of the name of any other person referred to by initials in this judgment, not be published.
I further order that Appendix D to these reasons, which contains the names of those identified only by initials in these reasons, not be published but be made available to the prosecution and the two accused only, to be used by them if required for these or any subsequent proceedings.
I certify that the preceding ninety-four (94) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.
Associate:
Date: 30 July 2010
Counsel for the appellants: Mr S Whybrow (for CH)
Ms T Warwick (for JW)
Solicitor for the appellants: Ben Aulich & Associates (for CH)
Paul Edmonds & Associates (for JW)
Counsel for the respondent: Ms M Jones
Solicitor for the respondent: ACT Director of Public Prosecutions
Date of hearing: 22, 23, 29 April, 3, 4 May 2010
Date of judgment: 30 July 2010
Appendix A–—Legislation
Evidence Act 1995 (Cth)
102 The credibility rule
Credibility evidence about a witness is not admissible.
Note 1: Specific exceptions to the credibility rule are as follows:
· evidence adduced in cross‑examination (sections 103 and 104);
· evidence in rebuttal of denials (section 106);
· evidence to re‑establish credibility (section 108);
· evidence of persons with specialised knowledge (section 108C);
· character of accused persons (section 110).
Other provisions of this Act, or of other laws, may operate as further exceptions.
Note 2: Sections 108A and 108B deal with the admission of credibility evidence about a person who has made a previous representation but who is not a witness.
103 Exception: cross‑examination as to credibility
(1) The credibility rule does not apply to evidence adduced in cross‑examination of a witness if the evidence could substantially affect the assessment of the credibility of the witness.
(2) Without limiting the matters to which the court may have regard for the purposes of subsection (1), it is to have regard to:
(a) whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth; and
(b) the period that has elapsed since the acts or events to which the evidence relates were done or occurred.
Evidence (Miscellaneous Provisions) Act 1991 (ACT)
Immunity of sexual reputation
Evidence of the complainant’s sexual reputation is not admissible.
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.
Application for leave under s 51
Application for leave under section 51 (General immunity of evidence of complainant’s sexual activities) in a sexual offence proceeding must be made––
(a) in writing; and
(b) if the proceeding is before a jury––in the absence of the jury; and
(c) in the absence of the complainant, if an accused person in the proceeding requests.
Decision to give leave under s 51
(1) The court must not give leave under section 51 (General immunity of evidence of complainant’s sexual activities) unless satisfied that the evidence—
(a) has substantial relevance to the facts in issue; or
(b) is a proper matter for cross-examination about credit.
(2) Evidence (sexual activity evidence) that relates to, or tends to establish, the fact that the complainant was accustomed to engage in sexual activities is not to be regarded as having a substantial relevance to the facts in issue because of any inference it may raise about general disposition.
(3) Sexual activity evidence is not to be regarded as being a proper matter for cross-examination about credit unless the evidence, if accepted, would be likely to substantially impair confidence in the reliability of the complainant’s evidence.
(4) If the court gives leave under section 51, it must give written reasons for its decision.
(5) In this section:
proper matter for cross-examination about credit—evidence is a proper matter for cross-examination about credit if the credibility rule under the Evidence Act 1995 (Cwlth), section 102 does not apply to the evidence because of that Act, section 103 (Exception: cross-examination as to credibility).
Appendix B – Notes of decision (handed out at pre-trial hearing)
CH and JW (4/5/10)
All evidence to be taken on voir dire and then admissibility to be finally determined.
| Evidence sought to be adduced | Claimed basis for grant of leave | Decision: is evidence permitted? | Explanation | |
| CH | JW | |||
| 1. Previous consensual intercourse with CH | Relevant to facts in issue: · Consent · Belief about consent Credit (given police statements re sex twice before, and not for a year) | Yes | This evidence is caught by s 51(2) and therefore leave is not required under s 51(1). If leave is required, the evidence is admissible as being relevant to the specified facts in issue, and as to credit subject to clarification of status and meaning of statement to police. | |
| 2. Previous consensual intercourse with JW | Relevant to facts in issue: · Did intercourse take place? · Consent · Belief about consent Credit (given police statements re sex twice before, and not for a year) | Yes (although it’s not clear that leave would properly be granted by reference to whether intercourse took place). | This evidence is caught by s 51(2) and therefore leave is not required under s 51(1). If leave is required, the evidence is admissible as being relevant to the specified facts in issue, and as to credit subject to clarification of status and meaning of statement to police. | |
| 3. Prior consensual intercourse with [MW1] on night of alleged rape | Relevant to facts in issue: · Did intercourse take place? · Consent · Belief about consent Credit (given police statements re sex twice before, and not for a year) | No | Relevance to facts in issue not established. Not relevant to credit unless it can be established that [the complainant] understood “having sex” to include oral sex. | |
| 4. 1 Prior consensual intercourse followed by rape allegation ([MW1]) 4.2 Prior consensual intercourse followed by threat to make rape allegation ([MW1]) | Credit | Credit | Yes. | 4. 1 · If evidence of a false rape allegation is adduced during cross-examination of the complainant, then it would satisfy the definition in s 53(5). · Evidence of a false rape allegation is not excluded under s 53(3) from being “a proper matter for cross-examination about credit” because, if accepted, the evidence would be likely to substantially impair confidence in the reliability of the complainant’s evidence. 4.2 · If evidence of a threat to make a false rape allegation is adduced during cross-examination of the complainant, then it would satisfy the definition in s 53(5). · Evidence of a threat to make a false rape allegation is not excluded under s 53(3) from being “a proper matter for cross-examination about credit” because, if accepted, the evidence would be likely to substantially impair confidence in the reliability of the complainant’s evidence. |
| 5. Prior consensual intercourse followed by rape allegation ([MW2])[ | Credit | Credit | Yes. | · If evidence of this matter is adduced during cross-examination of the complainant, then it would satisfy the definition in s 53(5). · Evidence of this matter is not excluded under s 53(3) from being “a proper matter for cross-examination about credit” because, if accepted, the evidence would be likely to substantially impair confidence in the reliability of the complainant’s evidence. |
| 6. SMS to [MW3] on 2/1/09 including apology | Covered by s 51(2) so no requirement for leave. | Covered by s 51(2) so no requirement for leave. | Yes | Evidence of the SMS is probably not covered by s 51 at all (as not being evidence of a sexual activity). If evidence of the SMS is evidence of a sexual activity, then it is evidence of the sexual activity the subject of the charges and so covered by s 51(2) on any interpretation of that provision. |
The evidence covered by items 4 and 5 is set out in three affidavits made respectively by [MW2] (29/4/10), CH (30/4/10) and [MW1] (3/5/10). The grant of leave to cross-examine does not exclude the operation of any other rules governing the admissibility of evidence, so it does not make all the material set out in those affidavits automatically available for cross-examination. Other arguments about admissibility will need to be handled in the usual way by objections during the course of the evidence.
Appendix C – Affidavit evidence
Affidavit of Paul William Edmonds, affirmed 1 March 2010
Affidavit of Sarah Elizabeth Avery, affirmed 6 April 2010
Affidavit of MW2, affirmed 29 April 2010
Affidavit of CH, affirmed 30 April 2010
Affidavit of MW1, affirmed 3 May 2010
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