R v Fernando

Case [2009] ACTSC 137

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:

  1. 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

  1. 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).  

  1. 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

  1. 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.

  1. Division 4.4 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (the Miscellaneous Provisions Act) applies to the admission in…

Continue reading R v Fernando

Sign in free to access the full text

Details
AGLC
R v Fernando [2009] ACTSC 137
Case
[2009] ACTSC 137
Decision Date

CaseChat Overview and Summary

The case of R v Fernando involved a pre-trial application by the accused, Alan Edward Fernando, for leave to admit evidence of the complainant's sexual activities. The application was heard in the ACT Magistrates Court. The primary dispute centred around the admissibility of the complainant's sexual activities under the Evidence (Miscellaneous Provisions) Act 1991 (ACT) and its relevance to the facts in issue. The court had to decide whether the invitation to engage in sexual activities and the context in which it was made were relevant and had substantial relevance to the facts in issue. Additionally, the court had to determine whether the invitation to participate in sexual activities was itself considered "sexual activity" under section 51 of the Act.

The legal issues addressed by the court included the interpretation of sections 51, 52, and 53 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT). The court had to determine whether the invitation to engage in sexual activities and the context in which it was made were relevant to proving whether Fernando knew that the complainant did not consent to sexual intercourse. The court also had to consider the applicability of section 51(1) of the Act, which generally excludes evidence of a complainant's sexual activities with the accused. Furthermore, the court needed to decide whether the invitation to participate in sexual activities was itself considered "sexual activity" under section 51, and whether the complainant needed to be present for the application if there was no jury.

The court concluded that the evidence of the complainant's sexual activities was relevant to the trial. The invitation to engage in sexual activities and the context in which it was made were deemed relevant as they could affect the inferences about Fernando's state of mind regarding the complainant's consent. The court found that the invitation was not itself considered "sexual activity" under section 51, thereby allowing the evidence to be admissible. The court also determined that the complainant did not need to be present for the application if there was no jury. Given these findings, the court granted leave for the admission of the evidence in Fernando's trial.

The court's final orders included granting leave for the admission of the complainant's sexual activities evidence to the extent necessary under section 51(1) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT). The court provided written reasons for its decision, ensuring transparency and clarity in the application of the relevant legal provisions.

Orders

Orders of the court

1.

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:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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). 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: 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):

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

Full text does not contain this section.