R v CH and JW

Case [2010] ACTSC 75

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:

  1. 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…

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R v CH and JW [2010] ACTSC 75
Case
[2010] ACTSC 75
Decision Date

CaseChat Overview and Summary

In the case of R v CH and JW, the defendants appealed against the trial judge's decision to deny them leave to adduce evidence of the complainant's prior sexual activities. The nature of the dispute involved the admissibility of certain evidence in a sexual offence proceeding, governed by the Evidence (Miscellaneous Provisions) Act 1991 (ACT). The court was required to decide the legal issues concerning the scope of section 51 and section 53(4) of the Act, specifically whether the evidence in question had substantial relevance to the facts in issue or was a proper matter for cross-examination about credit. The defendants argued that the trial judge erred in law by misapplying the statutory provisions and failing to consider all the relevant evidence.

The court carefully examined the statutory provisions and the nature of the evidence sought to be adduced. It held that section 51(1) does not apply to evidence of the complainant's sexual activities with the accused. The court also found that evidence of consensual sexual activity between the complainant and another man on the night of the charges did not have substantial relevance to a fact in issue. However, evidence of prior consensual sexual intercourse followed by a rape allegation, or a threat to make such an allegation, was deemed a proper matter for cross-examination about credit. The court concluded that the trial judge did not err in law and that the evidence sought to be introduced was not relevant or proper for cross-examination about credit. The appeal was subsequently dismissed.

In the trial of CH and JW scheduled to start on 17 May 2010, the court ruled that leave was not required for the admission of evidence of previous consensual sexual intercourse between the complainant and either of the accused. Leave was refused 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. However, leave was granted 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. Leave was also granted 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. Leave was not required for the admission of evidence of a text message sent by or on behalf of the complainant to MW3 on 2 January 2009.

Orders

Orders of the court

1. 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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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 51Application 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).

Decision

Reasons for decision

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).

Ratio Decidendi

Legal Principle Established

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