R v Matthew Holloway; R v Michael Morris

[2014] ACTSC 54

ACT SUPREME COURT

Case Title:

R v Matthew Holloway; R v Michael Morris

Medium Neutral Citation:

[2014] ACTSC 54 (7 March 2014)

Hearing Date(s):

7 March 2014

DecisionDate:

7 March 2014

Before:

Murrell CJ

Decision:

See [10]

Catchwords:

APPLICATION - Section 51 Evidence (Miscellaneous Provisions) Act 1991 (ACT) – evidence of complainant’s sexual reputation and activities – telephone conversation – leave granted – limited cross-examination

Legislation Cited:

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

Cases Cited:

None

Category:

REASONS FOR DECISION

Parties:

The Queen

Matthew Holloway (First Defendant)

Michael Morris (Second Defendant)

Representation:

Counsel

Mr M Fernandez (The Queen)

Mr M Holloway (First Defendant)

Mr J Pappas (Second Defendant)

Solicitors

ACT Director of Public Prosecutions (The Queen)

Rachel Bird & Co (First Defendant)

Ben Aulich & Associates (Second Defendant)

File Number(s)

SCC 30/2013; SCC 32/2013

1. At the trial, there will be no dispute that there was sexual interaction between the complainant and each of the accused at the residence of the accused Morris, and that the complainant thereafter went to the bathroom, where she was vomiting and very upset.  The issue at the trial will be consent.  The complainant's credit will be very much in question.

1. The Crown proposes to tender part of the evidence that is contained in voir dire Exhibit 4, being evidence of a telephone conversation between the two accused.  In the course of that conversation, Mr Morris said:

I'm seeing a lady tomorrow morning, the police lady, but I'm going to go down to my sister's in about half an hour and talk to her.  But just so they're, just to clear, like Alastair just said that you thought that she said we raped her.  [And just to make it clear, the conversation that she had with me in the bathroom was that some older guy raped her as a young girl and that I knew who the person was.  Not that we raped her.]

As to the bracketed part of the statement, the Crown is not proposing to tender the material as it is sexual activity evidence in relation to which s 51 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) provides that the evidence is not admissible without leave of the Court.

1. The defence wishes to adduce the bracketed evidence on the basis that it puts the entirety of the conversation between the accused in a proper context.  Further, it establishes that, at the time of the conversation, Mr Morris asserted that, immediately following the sexual intercourse, the complainant revealed to him that she was raped as a young girl.  The inference is that the complainant revealed that information to him by way of explaining why she was upset in the bathroom immediately after she had sexual intercourse with the two accused, providing an alternative explanation to the explanation that she did not consent to the intercourse that had just occurred. 

1. In an interview with police, at Q 299, the complainant was speaking of the contents of a text message between herself and a girlfriend that occurred soon after the incident with the accused.  The complainant said:

I said it wasn't good.  Um, it reminded me, um, back when I was 16.  When I was 16 I used to sneak out a little bit and, um, hang out with a friend at the time.  And, um, I liked that friend and yeah, when I, we were, one night, we were at the park where we usually hung out.  And he, um, he forced me to give him head and said that if I, um, didn't he'd rape me, and I was crying, and yeah.  So I said that it kind of like reminded me of back then and I didn't tell anyone back then.

1. Section 51 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) provides:

(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.

Section 53 provides:

(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.

...

(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.

1. The reason that the complainant was extremely upset when she was in the bathroom immediately after the sexual interaction between herself and the accused is very important.  It is important to the complainant's credit on the issue of consent or lack of consent, which is the central issue in the trial.  It may also be relevant to an assessment of the credit of the accused, in the sense that it may be relevant to know whether the complainant informed the accused that the reason that she was upset in the bathroom was that she had been raped as a young girl.  There are a number of ways that a jury might approach the evidence, not all of which would assist the accused.  If accepted, there is a real possibility that the evidence may substantially impair confidence in the reliability of the complainant's evidence.  That is far from saying that it is more likely than not that the evidence would substantially impair confidence in the reliability of the complainant's evidence.  Indeed, the evidence may work in the opposite way.  However, that is a matter for the jury. 

1. I am prepared to admit the bracketed passage in voir dire Exhibit 4 and to allow limited cross examination of the complainant in relation to the reason that she was upset in the bathroom and, in particular, whether it related to the incident referred to in answer 299 of the record of interview.  However, I will not permit extensive cross-examination on this point.  

   I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Decision herein of her Honour, Chief Justice Murrell.

   Associate:

   Date:   9 April 2014