R v Kader (No 2) - [2022] ACTSC 56

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Kader (No 2)
Citation:	[2022] ACTSC 56
Hearing Date:	21 February 2022
DecisionDate:	21 February 2022
ReasonsDate:	28 March 2022
Before:	McWilliam AJ
Decision:	See [16]
Catchwords:	CRIMINAL LAW – EVIDENCE – Application to adduce evidence of complainant’s past sexual activities – operation of s 78 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) – where accused consents to evidence being adduced
Legislation Cited:	Crimes Act 1900 (ACT) ss 52, 54 60 Evidence (Miscellaneous Provisions) Act 1991 (ACT) ss 76, 78 Evidence (Miscellaneous Provisions) Amendment Act 2003 (ACT) Evidence (Miscellaneous Provisions) Amendment Bill 2003 (ACT) Royal Commission Criminal Justice Legislation Amendment Act 2018 (ACT) s 15
Cases Cited:	R v Chute (No 8) [2019] ACTSC 68 R v NX [2019] ACTSC 55 R v QX (No 4) [2021] ACTSC 246 R v Seneviratne [2021] ACTSC 277 R v SQ (No 4) [2021] ACTSC 134 R v Sutton (No 2) [2019] ACTSC 340 R v UM [2021] ACTSC 44 R v Vunilagi [2020] ACTSC 274
Texts Cited:	ACT, Parliamentary Debates, Legislative Assembly, 23 October 2003
Parties:	The Queen (Crown) Imran Kader (Accused)
Representation:	Counsel K Lee (Crown) M Jones (Accused)
Solicitors Director of Public Prosecutions (ACT) (Crown) Lancaster Law (Accused)
File Number(s):	SCC 200 of 2021 SCC 201 of 2021

McWilliam AJ

Between 21 February and 15 March 2022, Mr Kader (the accused) was tried for the following offences.

(a)Count 1 – CC2021/7046 – Act of indecency without consent, contrary to s 60(1) of the Crimes Act 1900 (ACT) (Crimes Act);
(b)Count 2 – CCC2021/7047 – Sexual assault in second degree, contrary to s 52(1) of the Crimes Act;
(c)Count 3 – CC2020/7048 – Act of indecency without consent, contrary to s 60(1) of the Crimes Act;
(d)Count 4 – CC2021/7050 – Sexual intercourse without consent, contrary to s 54(1) of the Crimes Act; and
(e)Count 5 – CC2021/7049 – Sexual intercourse without consent, contrary to s 54(1) of the Crimes Act.

On 15 March, the jury was discharged after failing to agree on a verdict.

Before the start of the trial on 21 February 2022, the Crown moved on an application dated 20 February 2022, seeking leave to adduce evidence of prior sexual activities of the complainant, which were referred to in her Evidence in Chief interview; namely, that the complainant has occasionally experienced bleeding from her vagina following sexual intercourse.

The application was made on the grounds that the evidence had substantial relevance to a fact in issue (being whether the accused digitally penetrated the complainant) at the trial because:

(a)the day after the alleged sexual assault, the complainant experienced light bleeding from her vagina;
(b)the complainant has not had a menstrual cycle in 2 years because she had a Mirena IUD; and
(c)apart from the penetration of her vagina, the complainant could think of no other reason for the bleeding to occur.

The application was not opposed by the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Kader (No 2)

Details

AGLC: R v Kader (No 2) [2022] ACTSC 56
Case: [2022] ACTSC 56
Decision Date: 21 February 2022

CaseChat Overview and Summary

In the matter of R v Kader (No 2), the defendant, Kader, applied for the court to permit evidence of the complainant's past sexual activities, in accordance with section 78 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT). The application was unopposed by the complainant, but the court was required to consider whether it was appropriate to provide written reasons for its decision, given the absence of opposition.

The legal issue before the court was whether the requirement for written reasons under section 78(2) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) applied even when the application to adduce evidence was unopposed. The court considered the legislative intent behind the requirement for written reasons and weighed this against the potential utility of such reasons when the application was unopposed.

The court concluded that the requirement for written reasons was intended to ensure transparency and accountability in cases where the application was opposed or where the consideration of the issue was complex. In cases where the application was unopposed, the court found that the requirement for written reasons did not significantly contribute to the objectives of the division, as the reasons provided in such cases were often perfunctory. The court decided that it was not necessary to provide written reasons in this case, as the application was unopposed and the decision to permit the evidence was straightforward. The court's decision was in line with previous cases where the requirement for written reasons was not strictly enforced in similar circumstances.

No further orders were made by the court, as the decision to permit the evidence was the primary focus of the application. The court's decision was based on the principle that the requirement for written reasons was not mandatory in cases where the application was unopposed and the decision was not complex. The court acknowledged the importance of protecting complainants in sexual offence trials but found that the requirement for written reasons did not serve a significant purpose in cases where the application was unopposed.

Orders

Orders of the court

See [16]

Background

Background to the litigation

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Evidence

Evidence Before The Court

A supplementary Explanatory Statement contains the following (emphasis added):On page 11 of the report the committee suggests that subclause 53(1) of the Bill might be read in a way to displace the general rule in section 103 of the Evidence Act 1995 (the Evidence Act) on the admissibility of evidence to challenge a witnesses credibility. If the committee's suggestion is correct subclause 53(1) could have the unintended result of making it easier (rather than harder) to cross examine complainants in sexual 'offence trials on their past sexual history. This was not the intention and accordingly it is proposed to introduce an amendment to make it clear that section 103 of the Evidence Act is not displaced and that in sexual offence trials a more stringent rule will apply for allowing evidence on the past sexual history of complainants. The Hansard record of 23 October 2003 (ACT, Parliamentary Debates, Legislative Assembly, 23 October 2003) indicates the subject Bill was introduced to address the trauma of the trial process for complainants. For example, part of the Hansard records Ms Kerrie Tucker MLA participation in the debate as follows (p 4059):If you accept that in each possible sexual encounter each participant has the fundamental right to consent or not, then it is difficult to see the possible evidentiary value in a general history of sexual activity. It is merely another means of humiliation. In cases where the accusation of rape is true, the accused, having forced sexual acts on the complainant, is then allowed to drag out more intimate information in public.This protection is important in paving the way for more victims of rape to feel more able to bring their accusations to the criminal system so that there will be some formal consequence for more rapists. As the Model Criminal Code Officers Committee put it, "evidence of reputation, even if relevant and therefore admissible, is too far removed from evidence of actual events or circumstances for its admission to be justified in any circumstances"; that is, they believe that it is reasonable to rule out that category of evidence on general sexual reputation because it is nearly impossible to imagine how it could validly have a bearing on consent or the other circumstances of a particular sexual incident. I have set out part of the legislative history as a means of considering and explaining the rationale behind why a provision that deals with an evidentiary ruling has a separate requirement for written reasons. I accept that where an application is opposed or the consideration of the issue is not straightforward, written reasons may be appropriate, and that can be seen in authorities such as R v Sutton (No 2) [2019] ACTSC 340; R v Chute (No 8) [2019] ACTSC 68, R v QX. However, where an application such as the present is unopposed, it is difficult to see how the requirement for written reasons aids the objective of the division. It can be seen that where the applications are not opposed, the statutorily mandated reasons do not commonly go further than recording in a perfunctory fashion that the Court was satisfied of either of the limbs in s 78(1): see R v UM [2021] ACTSC 44, R v Vunilagi [2020] ACTSC 274 at [21]-[24], R v Seneviratne [2021] ACTSC 277, R v SQ (No 4) [2021] ACTSC 134, and R v NX [2019] ACTSC 55.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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