R v HU

[2017] ACTSC 367

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v HU

Citation:

[2017] ACTSC 367

Hearing Date:

30 August 2017

DecisionDate:

30 August 2017

ReasonsDate:

6 December 2017

Before:

Burns J

Decision:

See [1]

Catchwords:

APPLICATION – Pre-Trial Application – application to cross-examine the complainant as to prior sexual activity – limited to conversations between the accused and the complainant concerning sexual activities – Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 51 – Court must be satisfied that the evidence has substantial relevance to facts in issue – written reasons required where leave is given

Legislation Cited:

Evidence (Miscellaneous Provisions) Act 1991 (ACT) ss 51, 53

Parties:

The Queen (Crown)

HU (Accused)

Representation:

Counsel

Ms S McMurray (Crown)

Ms P Burgoyne-Scutts (Accused)

Solicitors

ACT Director of Public Prosecutions (Crown)

Legal Aid ACT (Accused)

File Number:

SCC 103 of 2017

Burns J:

1. On 30 August 2017 I granted the accused leave to cross-examine the complainant in his upcoming trial on three counts of committing an act of indecency as to her prior sexual activity, limited to conversations between the accused and the complainant concerning sexual activities.

1. Leave was required because s 51 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) prohibits evidence of the sexual activities of a complainant, other than sexual activity with the accused person, in sexual offence proceedings without leave of the Court.

1. Leave is not to be given unless the Court is satisfied, relevantly for present purposes, that the evidence has substantial relevance to the facts in issue: s 53(1)(a).

1. Where leave is given, the Court must deliver written reasons for the decision: s 53(4).

1. In the present case, the Crown asserted that the accused had been enlisted by the complainant’s mother to speak to the complainant about sexual matters. It was alleged by the Crown that the acts forming the basis of the three counts of committing an act of indecency occurred in the context of the accused and the complainant engaging in these conversations.

1. I was satisfied that it was not reasonably practicable for the accused to cross-examine the complainant about the alleged acts without being able to question her about these conversations. For this reason I granted leave.

I certify that the preceding six [6] numbered paragraphs are a true copy of the Reasons for  Judgment of his Honour Justice Burns.

Associate:

Date: 6 December 2017