R v Chute (No 8)
[2019] ACTSC 68
•18 March 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Chute (No 8) |
Citation: | [2019] ACTSC 68 |
Decision Date: | 18 March 2019 |
ReasonsDate: | 28 March 2019 |
Before: | Mossop J |
Decision: | See [6] |
Catchwords: | CRIMINAL LAW – EVIDENCE – Application to adduce evidence of complainant’s prior sexual activities – operation of s 76 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) – operation of s 78 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) – other alleged abusers – change in evidence may show complainant’s evidence unreliable – leave granted |
Legislation Cited: | Evidence (Miscellaneous Provisions) 1991 (ACT), ss 76, 76(1), 77, 78, 78(3), 78(4) |
Parties: | The Queen (Crown) John Chute (Accused) |
Representation: | Counsel K Lee (Crown) G Walsh (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Greg Walsh & Co (Accused) | |
File Number: | SCC 178 of 2016 |
MOSSOP J:
Introduction
By application in proceeding filed 18 March 2019, the accused sought leave under s 76(1) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) to adduce evidence of the sexual activities of one of the complainants in the proceedings. Previously I have identified the complainants as Complainants 1 to 6. I will continue to identify them in that way. The present application relates to Complainant 1. I made an order granting leave. I am required under s 78(4) to give written reasons for that order and these are those reasons.
As it was ultimately articulated, the application was targeted to the exploration of the credibility or reliability of Complainant 1’s evidence arising out of allegations which were directed to other Brothers of the Marist Brothers religious order but who Complainant 1 now stated were wrongly identified as the alleged perpetrators and that other Brothers were in fact responsible. These allegations are not allegations made relating to the accused, although the accused is recorded as being present during some of events relevant to the allegations. The unusual circumstance that gives rise to the application is that, at least insofar as is disclosed on the material presently available, the complainant has completely retracted allegations made against other Brothers, while adding newly identified brothers as perpetrators. Counsel for the accused seeks to be able to explore in cross-examination how that change in evidence came about and, I infer, whether it involved recently recovered memories, reconstruction of events or some other process. Counsel for the accused submitted that in order to do so it was necessary to explore the sexual history of the accused insofar as it involved the other matters which he, either in the past or currently, alleges occurred. Evidence so elicited may cast doubt upon the reliability of the evidence given in relation to the present accused both as to identification as well as generally.
The relevant statutory provisions are as follows:
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.
77 Application for leave under s 76
Application for leave under section 76 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.
78 Decision to give leave under s 76
(1)The court must not give leave under section 76 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 76, 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 2011, section 102 does not apply to the evidence because of that Act, section 103 (Exception—cross-examination as to credibility).
Section 78(3) requires that the evidence about sexual activities will, if accepted, be likely to substantially impair confidence in the reliability of the complainant’s evidence. No submissions were addressed to the meaning of this subsection. There are a number of issues buried within it which are worthy of exploration. However, because of the limited submissions on the application, this was not an appropriate case in which to examine them.
The forensic goal of the cross-examination in the present case will be to seek to demonstrate unreliability of the Complainant’s evidence either by the giving of those two different versions, or by evidence as to how one or both of those two different versions was arrived at. It is not possible to predict the evidence that will ultimately be given in cross-examination. However, the evidence before the court concerning both the change in evidence about the identity of the alleged abusers and how that change came about is sufficiently closely connected with the circumstances of the present alleged offending and a matter of such significance for the credibility or reliability of the Complainant that, in my view, the threshold requirement of s 78(3) was met. It was therefore appropriate that, insofar as was necessary in order that the change in allegations made by Complainant 1 be able to be properly explored, leave should be granted. That involves some limitation on the broad grant of leave that was sought.
Therefore the order that I made was:
1. The accused is granted leave under s 76(1) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) to adduce evidence of the sexual activities of [Complainant 1] limited to evidence concerning the sexual activities involving other members of the Marist Brothers religious order in the common room at the Marist College monastery for the purposes of challenging the credibility or reliability of the complainant’s evidence.
| I certify that the preceding six [6] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 28 March 2019 |
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