R v Kader (No 3)

[2022] ACTSC 159

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Kader (No 3)
Citation:	[2022] ACTSC 159
Hearing Date:	29 June 2022
Decision Date:	29 June 2022
Before:	McCallum CJ
Decision:	1)  Pursuant to r 4752 of the Court Procedure Rules 2006, grant leave for the following witnesses to give evidence at the trial by audio visual link from a place that is outside the ACT or

outside the court room:
a) UG;
b) Dr Sarah Quercini; and
c) Professor Johan Duflou.

2) Pursuant to s 76(1) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT), grant leave to the Crown to adduce the following evidence of sexual activity of the complainant as referred to in her evidence in chief interview

dated 11 July 2020 at A316: “…occasionally when I’ve had

sex in the past, I’ve had bleeding afterwards”.

3)    List the matter for trial before McCallum CJ on Tuesday 5 July 2022 at 10am.

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 the evidence is relevant to a fact in issue — Where
there is no suggestion of prejudice to the accused beyond any resulting from the probative value of the evidence
CRIMINAL LAW — PROCEDURE — Application for witnesses to give evidence by audio visual link — Where witnesses are giving medical expert evidence — No unfairness to the accused
Legislation Cited:	Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 76, 78
Cases Cited:	R v Kader (No 2) [2022] ACTSC 56
Parties:	The Queen (Crown)
Imran Kader (Accused)
Representation:	Counsel
R Christensen SC (Crown) J Nottle (Accused)
Solicitors
ACT Director of Public Prosecutions (Crown)
Legal Aid ACT (Accused)
File Numbers:	SCC 200 of 2021 SCC 201 of 2021
McCALLUM CJ:

1.       The accused in these proceedings stands charged with a number of sexual offences.

He stood trial for those offences earlier this year. However, the jury could not agree on

verdicts and was discharged. The re-trial is scheduled to commence before me next

week.

2.       A number of pre-trial applications are brought forward by the parties. First, there are

three applications, two from the Crown and one from the accused, for particular

witnesses to give their evidence by audio-visual link. Those applications are not

opposed and in each case there is a good reason for the witness to give evidence in

that manner.

3.       In each case, the reason is that the witness in question is a busy medical practitioner.

The time is long past, I think, when the Court, as it used to, would seek to assert its

greater authority over the medical profession by insisting that such witnesses attend in

person. If the experience of the COVID-19 pandemic has taught us anything, it is that

we can and should be more flexible and more accommodating to members of the

community, particularly other busy professionals, as to the manner in which they might

give evidence even in serious criminal trials, subject always to fairness to the accused.

4.       In the presence case, it is not suggested that there would be any unfairness to the

accused in any of the witnesses giving their evidence by audio visual link and

accordingly I accede to each of the applications, being the Crown's application

concerning UG dated 22 June 2022, the Crown's application concerning Dr Sarah

Quercini dated 24 June 2022 and the application by the accused concerning Professor

Johan Duflou dated 28 June 2022.

5. The other application before the Court today is an application for leave under s 76 of

the Evidence (Miscellaneous Provisions) Act 1991 (ACT). That section provides:

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.

6.       The application is brought by the Crown. The Crown seeks leave to adduce the

following evidence of sexual activity of the complainant recorded in her evidence-in-

chief interview dated 11 July 2020 at answer 316:

“Occasionally when I've had sex in the past I've had bleeding afterwards”.

7.       The position of the accused in respect of the application is that it is neither consented

to nor opposed. The discretion to grant leave under s 76 is circumscribed by s 78(1)

of the Act, which provides:

78 Decision to give leave under s 76

The court must not give leave under section 76 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.

8. In the present case, the Crown seeks leave on the basis specified in s 78(1)(a). The

relevance of the evidence to a fact in issue is that there is a dispute or contest in the

trial as to whether the accused digitally penetrated the complainant's vagina. The

significance of the answer the subject of the application is that the complainant's

evidence will be that she had at the time of the alleged offence an intra-uterine device

known as a Mirena, as a result of which she has not had a menstrual cycle or

experienced periods for the time she has had that device.

9.       However, as answer 316 set out above indicates, her evidence will be that she has

observed vaginal bleeding after penetrative sexual intercourse. The relevance of the

answer to the fact in issue, whether there was penetration, is plain.

10.     At the first trial of these proceedings, the evidence was admitted. In accordance with

the requirement of s 78(4) of the Evidence (Miscellaneous Provisions) Act, the judge

who presided over that trial, McWilliam AJ, gave written reasons for permitting the

evidence to be led by the Crown: see R v Kader (No 2) [2022] ACTSC 56.

11.     McWilliam AJ gave a careful and detailed account of the statutory history leading to the

requirement for written reasons to be given for what is after all a relatively

straightforward evidentiary issue. I am grateful for her Honour's careful account of that

history. Her Honour observed that, in the present case, while there is a statutory

requirement for written reasons, that requirement can be discharged with relatively brief

reasons and the position is the same here. In short, the relevance of the evidence to

a fact in issue is plain and the application is not opposed by the accused. There is no

suggestion of any prejudice to the accused if the evidence is led, beyond any prejudice

resulting from its probative value.

12.     For those reasons, I make the following orders:

1)    Pursuant to r 4752 of the Court Procedure Rules 2006, grant leave for the

following witnesses to give evidence at the trial by audio visual link from a

place that is outside the ACT or outside the court room:
a) UG;

b) Dr Sarah Quercini; and

c) Professor Johan Duflou

2) Pursuant to s 76(1) of the Evidence (Miscellaneous Provisions) Act 1991

(ACT), grant leave to the Crown to adduce the following evidence of sexual

activity of the complainant as referred to in her evidence in chief interview

dated 11 July 2020 at A316:

“…occasionally when I’ve had sex in the past, I’ve had bleeding

afterwards”

3)    List the matter for trial before me on Tuesday 5 July 2022 at 10am.

I certify that the preceding twelve [12] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum

Associate:

Date: 1 May 2024