R v Fernando
[2009] ACTSC 137
•19 October 2009
R v ALAN EDWARD FERNANDO [2009] ACTSC 137 (19 October 2009)
EVIDENCE – pre-trial application for leave to admit evidence of complainant’s sexual activities – operation of s 52 Evidence (Miscellaneous Provisions) Act 1991 (ACT) – obligation to make application in writing but in absence of jury, and complainant if requested by applicant – whether complainant otherwise required to be present.
EVIDENCE – pre-trial application for leave to admit evidence of complainant’s sexual activities – whether alleged sexual activities are relevant – operation of s 53(1) Evidence (Miscellaneous Provisions) Act 1991 – whether alleged sexual activities have substantial relevance to the facts in issue.
EVIDENCE – pre-trial application for leave to admit evidence of complainant’s sexual activities – operation of s 51 Evidence (Miscellaneous Provision) Act 1991 – s 51(1) does not apply to evidence of complainant’s sexual activities with accused – whether invitation to participate in sexual activities is itself “sexual activity”.
Evidence Act1995 (Cth), s 55
Evidence Act 1971 (ACT), s 76G(2)
Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 50, 51, 52, 53, 72, 73
Explanatory Statement for Evidence (Miscellaneous Provisions) Amendment Bill 2003 (ACT)
Bull v The Queen (2000) 201 CLR 443
Gregory v The Queen (1983) 151 CLR 566
R v Morgan (1993) 30 NSWLR 543
No. SCC 40 of 2009
Judge: Penfold J
Supreme Court of the ACT
Date: 19 October 2009
IN THE SUPREME COURT OF THE )
) No. SCC 40 of 2009
AUSTRALIAN CAPITAL TERRITORY )
R
v
ALAN EDWARD FERNANDO
ORDER
Judge: Penfold J
Date: 19 October 2009
Place: Canberra
THE COURT ORDERS THAT:
To the extent that leave is necessary for the purposes of s 51(1) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT), leave is given for the admission, in Alan Edward Fernando’s trial on charges of:
(a) attempted sexual intercourse without consent,
(b) act of indecency without consent, and
(c) burglary,
of evidence of sexual activities involving the complainant, the accused and C that occurred on the evening of 15 June 2008 or early the next morning.
Introduction
Alan Edward Fernando has been charged with three counts alleged to have been committed on 16 June 2008, namely:
(a) attempting to engage in sexual intercourse with [the complainant] without consent knowing that she had not consented;
(b) committing an act of indecency on [the complainant] without consent knowing that she had not consented; and
(c) burglary (constituted by Mr Fernando’s alleged entering of the complainant’s home with intent to commit an offence).
Mr Fernando has pleaded not guilty to all the charges, and a trial is scheduled for April 2010.
Admissibility of evidence of complainant’s sexual activity
At his trial, Mr Fernando seeks to lead:
evidence of certain sexual activities involving the complainant … , the accused and [another man, C] that occurred either on the evening of 15 June, 2008 or early the next morning.
Division 4.4 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (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 the Appendix 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). Leave to admit such evidence 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 as to 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)). Section 53 also makes provision about cross-examination as to credit that is not relevant in this matter.
Section 51 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.
Mr Fernando will need the leave of the court to adduce some or all of the evidence described in [3] above, and he has applied for that leave in respect of the evidence so described.
Procedural matters
As required by s 52 of the Miscellaneous Provisions Act, Mr Fernando’s application was made in writing. That section also requires the application to be made in the absence of any jury and, if the accused person so requests, in the absence of the complainant.
It is not clear what is intended by the requirement to make a written application in the absence of certain people. “Making a written application” seems to describe delivering a document that sets out the application, and it is hard to see any particular reason for requiring that delivery, whether to the court registry, to the presiding judge, or to someone else, to take place in the absence of particular people. I assume, therefore, that the section is intended to require that the application is initiated by delivery of a written document and then heard in the absence of any jury and possibly the complainant.
Since the application was made as a pre-trial application, no jury had been empanelled. No request was made under s 52(c) for the application to be made or heard in the absence of the complainant, but the complainant was not to my knowledge present in court at the hearing.
The operation of s 52 in relation to the presence or absence of the complainant is not absolutely clear. While it is clear that, on request from the accused person, the application under s 51 must be made in the complainant’s absence, it is not clear whether, if no such request is made, the application must be made in the complainant’s presence or may be made in the complainant’s presence.
In the absence of any challenge on this basis from counsel for the DPP, and also of any apparent policy reason for requiring the complainant to be present unless the accused has requested otherwise, I assume that the application was properly heard in the absence of the complainant even without a formal request to that effect on behalf of Mr Fernando.
Section 53(4) of the Miscellaneous Provisions Act requires a court that gives leave under s 51 to give written reasons for its decision.
The evidence in question
The complainant and C were neighbours, living in adjoining apartments in a block in Belconnen. They had a casual sexual relationship. C had met Mr Fernando at a garage sale on 15 June 2008, a Sunday. It is not in dispute that Mr Fernando, the complainant and C spent some time in each other’s company, in the complainant’s apartment, in C’s apartment and possibly elsewhere, during the afternoon and evening of the Sunday, and that they drank alcohol and used cannabis during that period. Nor does the complainant dispute that at some stage during that period she and C engaged in consensual sex. The complainant says that later, apparently in the early hours of Monday morning, while she was asleep, Mr Fernando got into her bed and attempted to have sexual intercourse with her. When she woke up and told him to get out, he did so.
Mr Fernando claims that the consensual sex between the complainant and C took place in his presence and that, while it was happening, the complainant invited him to join in, which he was not able to do because of an inability to get an erection.
The application
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.
Mr Fernando’s application states:
… that the evidence has substantial relevance to a fact in issue, to wit whether the accused knew that the complainant … was not consenting to the appellant’s [sic] alleged attempt to engage in sexual intercourse (Count 1).
At the hearing of this application, a claim that the evidence of the alleged sexual activity involving Mr Fernando, the complainant and C was a proper matter for cross-examination about credit was not pursued. The only question for determination, then, is whether the evidence has substantial relevance to a fact in issue.
The application to admit evidence refers to:
… evidence of certain sexual activities involving the complainant … , the accused and C that occurred either on the evening of 15 June, 2008 or early the next morning.
There are two different elements to this evidence, and it is useful to distinguish them before considering how the legislation might operate in this case.
One element of the evidence is Mr Fernando’s assertion that the complainant invited him to engage in some kind of sexual activity with her (the invitation evidence). The other element of the evidence is his assertion that this invitation was issued while the complainant and C were engaging in consensual sexual activity in Mr Fernando’s presence (the context evidence).
Is the evidence relevant to a fact in issue?
Whatever the effect of s 51, none of the evidence will be admissible unless it is relevant. Section 55 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.
One of the facts that will be in issue in Mr Fernando’s trial is whether Mr Fernando knew that the complainant did not consent to sexual intercourse or other sexual activity with him.
Because Mr Fernando, apparently as a result of heavy drinking during the afternoon and evening of the day concerned, can remember nothing of the alleged offending behaviour, he will be unable to give evidence of his state of mind during the period in which that alleged behaviour took place. Nor does the prosecution case appear to include an assertion that the complainant expressly or impliedly refused a request for sex from Mr Fernando. In proving the mental element of the offence, namely that Mr Fernando knew that the complainant did not consent to sexual intercourse with him, the prosecution will therefore have to rely on whatever inferences about Mr Fernando’s state of mind can be drawn from the evidence that is available, particularly from the complainant and other witnesses.
Mr Fernando will, however, be capable of giving evidence about his state of mind in the period before the incident took place. Evidence that, during the part of the day which he can remember, he believed the complainant was willing to have sex with him, would if accepted clearly be relevant to what inferences could be drawn about his beliefs later in the day. In particular that evidence, if accepted, might raise a reasonable doubt about any suggested inference that Mr Fernando knew later in the evening that the complainant did not consent to having sex with him. Evidence explaining how or why Mr Fernando might have formed a belief about the complainant’s willingness to have sex with him could rationally affect the assessment of the probability of the existence of the belief asserted by Mr Fernando.
On this basis, evidence of both the invitation and the circumstances in which the invitation was issued will be relevant in Mr Fernando’s trial.
The relevance of that evidence is supported by several decisions, in particular Gregory v The Queen (1983) 151 CLR 566, in which 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]
Other cases drawn to my attention, while turning on the interpretation of different State Acts taking different approaches to the issue of evidence about sexual activities, disposition or reputation, also favoured the admissibility of certain evidence of the complainant’s sexual conduct, before or after the alleged sexual offence, with a person other than the accused.
In R v Morgan (1993) 30 NSWLR 543 the NSW Court of Criminal Appeal (Gleeson CJ, Mahony JA and Sully J) agreed that the trial judge should have admitted evidence that the complainant had sex with her boyfriend around an hour after the alleged sexual assault but without mentioning the assault to him.
In Bull v The Queen (2000) 201 CLR 443, all five members of the High Court (Gleeson CJ, McHugh, Gummow, Kirby and Hayne JJ) concluded that evidence of a telephone conversation between the accused and the complainant which led to the complainant’s visit to the accused’s residence (where the alleged assault took place), and evidence explaining that conversation as a discussion about the possibility of sexual intercourse occurring, should have been admitted.
Is the evidence inadmissible under s 51?
The next question, then, is whether any of that evidence would be inadmissible under s 51 of the Miscellaneous Provisions Act unless leave is given for it to be admitted.
The invitation evidence
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 proceedings”. I read the reference to “in the sexual offence proceedings” as part of the description of the relevant accused person; that is, the subsection applies only in relation to any accused person in the proceeding concerned, not to any accused person in general.
It is possible that the provision 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”.
I consider that evidence of the claimed invitation from the complainant, however that invitation is categorised, is not inadmissible by virtue of s 51 interpreted as mentioned in [32] above. If an invitation from a complainant to engage in sexual activity amounts to “specific sexual activities of the complainant with” the person to whom the invitation is issued, as mentioned in s 51(2), then the complainant’s invitation to Mr Fernando is expressly excluded from the restriction imposed by s 51(1). Alternatively, if an invitation from a complainant does not as such amount to sexual activity of the complainant, then evidence of such an invitation is not affected by the restrictions imposed by s 51.
If I am wrong about the interpretation of s 51(1), then I would find the invitation evidence not excluded by s 51 on the grounds that it has substantial relevance to the facts in issue (for the purposes of s 53(1)) because of the possible impact of the complainant’s sexual activities shortly before the alleged offences on Mr Fernando’s beliefs about consent, and that it is not excluded by s 53(2) for the same reasons as are set out in [41] below in relation to the context evidence.
The context evidence
The more difficult question is the admissibility of evidence that the invitation was issued while the complainant was engaging in sexual intercourse with C in Mr Fernando’s presence. That evidence, being evidence of sexual activity of the complainant with a person other than the accused, falls squarely within the s 51(1) restriction.
I have already found (at [24] above), that evidence explaining how or why Mr Fernando might have formed his claimed belief about the complainant’s willingness to have sex with him would be relevant in Mr Fernando’s trial and (at [34] and [35] above) that the evidence of the invitation said to have been issued by the complainant is not excluded by s 51. Permitting Mr Fernando to give the invitation evidence only out of context would deprive Mr Fernando of whatever direct forensic benefit might be provided by the context evidence but, more significantly, such a constraint could substantially reduce the credibility of the invitation evidence itself. This is because it could easily appear to the jury that Mr Fernando, giving evidence under that constraint, was dissembling about the circumstances of the invitation or had simply invented the invitation but had been unable to invent a context for it.
Accordingly, I find that the context evidence has substantial relevance to the facts in issue for the purposes of s 53(1) of the Miscellaneous Provisions Act.
Evidence that complainant accustomed to engage in sexual activities
Subsection 53(2) of the Miscellaneous Provisions Act says that:
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.
Section 53(2) does not require evidence to be excluded just because it relates to, or tends to establish, that the complainant was accustomed to engage in sexual activities. Rather, the significance of s 53(2) is that evidence is not to be found substantially relevant to the facts in issue merely because the evidence may raise an inference about the complainant’s “general disposition”. Another basis for substantial relevance needs to be found before leave can be given to adduce the evidence.
I have found (at [38] above) that the evidence in question has substantial relevance to the facts in issue in this proceeding, and that its relevance arises from the possible impact of the complainant’s sexual activities shortly before the alleged offences on Mr Fernando’s beliefs about consent and on Mr Fernando’s ability to give convincing evidence about those beliefs. The relevance of the evidence does not arise from any inference that might be drawn about the complainant’s “general disposition”.
Conclusion
Accordingly, the requirement of substantial relevance in s 53(1) is satisfied, and s 53(2) does not prevent the admission of any of the evidence specified in Mr Fernando’s application. I therefore have the power to give leave for the purposes of s 51(1), and noting my comments about the significance of the context evidence to the credibility of Mr Fernando’s evidence about the invitation, I consider that this is an appropriate case in which to give leave for the admission of evidence under s 51(1) of the Miscellaneous Provisions Act.
What directions should be given to the jury?
The matter of jury directions was not canvassed at the hearing of Mr Fernando’s application, so I do not express any views on what might be appropriate, except to note the comments of McHugh, Gummow and Hayne JJ in Bull v The Queen (see [30] above) at [127] to the effect that if the evidence concerned (in that case evidence of the telephone conversation preceding the sexual activity) had been admitted, the judge would have had to direct the jury “that the evidence was not evidence of, and could not be used to draw inferences about, the complainant’s disposition in sexual matters or her propensity to consent to any of the acts charged … because the evidence was admitted only to prove the complainant’s state of mind”. A similar direction about what the evidence should not be used for may be needed in Mr Fernando’s trial. Directions may also be required under ss 72 and 73 of the Miscellaneous Provisions Act.
Order
For the reasons set out above, the order will be that to the extent that leave is necessary for the purposes of s 51(1) of the Miscellaneous Provisions Act, leave is given for the admission, in Mr Fernando’s trial on charges of attempted sexual
intercourse without consent, act of indecency without consent and burglary, of evidence of sexual activities involving the complainant, the accused and C that occurred on the evening of 15 June 2008 or early the next morning.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.
Associate:
Date: 19 October 2009
Counsel for the appellant: Mr R Livingston
Solicitor for the appellant: Legal Aid Office (ACT)
Counsel for the respondent: Mr J Lundy
Solicitor for the respondent: ACT Director of Public Prosecutions
Date of hearing: 16, 17 September 2009
Date of judgment: 19 October 2009
Appendix—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).
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