R v Du (No 3)
[2019] ACTSC 397
•11 November 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v DU (No 3) |
Citation: | [2019] ACTSC 397 |
Hearing Date(s): | 11 November 2019 |
DecisionDate: | 11 November 2019 |
Before: | Burns J |
Decision: | See [4] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Pre-trial Application – application to lead complainant’s sexual history – whether proposed evidence has substantial relevance to the facts in issue |
Legislation Cited: | Crimes Act 1900 (ACT) ss 54, 56, 60, 67 |
Parties: | The Queen (Crown) DU (Accused) |
Representation: | Counsel R Christensen (Crown) K Archer (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Aulich Law (Accused) | |
File Number: | SCC 15 of 2018 |
BURNS J:
The accused, on an indictment dated 21 June 2019, has been charged with one count of maintaining a sexual relationship with a person under 16 years of age and under his special care, contrary to s 56 of the Crimes Act 1900 (ACT) (the Crimes Act). In the alternative to Count 1, the accused has been charged with 6 counts of engaging in sexual intercourse without consent, contrary to ss 54 and 67 of the Crimes Act, and one count of act of indecency without consent, contrary to ss 60 and 67 of
the Crimes Act. The trial of the accused is set down for 25 November 2019.
Counsel for the accused has made an application for the Court to grant leave to allow evidence of prior sexual activities of the complainant contained in the accused’s record of interview to be led at trial. The Crown opposes this application on the basis that it is not necessary in the context of the record of interview, and that even it were admissible, it had not been put to the complainant.
I propose to make an order permitting that material to remain in the accused’s record of interview, on the basis that it does provide a context to the events that are said to have occurred between the complainant and the accused and in circumstances where the Crown's case is that the complainant was uncomfortable or unwilling to engage in conversation or subsequent sexual activity with the accused. This material is capable of supporting the proposition, which I understand is to be put on behalf of the accused, that the complainant was not uncomfortable and, in fact, engaged in conversation about these matters.
With respect to the application which has been filed today, 11 November 2019, I am satisfied that the proposed evidence has substantial relevance to the facts in issue and as such I propose to grant leave under s 76 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) for evidence of prior sexual activities of the complainant contained in question 308 of the accused’s record of interview conducted on 24 May 2017, to be led at his trial.
| I certify that the preceding four [4] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: |
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