R v MCB - [2012] QDC 88

[2012] QDC 88

DISTRICT COURT

CRIMINAL JURISDICTION

JUDGE R JONES

Indictment No 1905 of 2011

THE QUEEN

MCB

BRISBANE

..DATE 01/05/2012

PRE-TRIAL HEARING

JUDGMENT

HIS HONOUR: This proceeding is concerned with an application pursuant to section 590AA of the Queensland Criminal Code. Essentially the applicant seeks leave to have the complainant cross‑examined about her past sexual activities and, as I understand it, leave to cross‑examine a psychiatrist Dr Cook about those past sexual activities of the complainant. I should also note that the cross‑examination would not be limited solely to sexual activities with two young men referred to as J and L but also include other sexual conduct which I will deal with in more detail in a moment.

The applicant is charged with three counts of raping the complainant on 1 November 2010. At the time, the complainant was 15. She is now 17. The passage of time to date together with the date fixed for the giving of the complainant's evidence, 1 June 2012, makes it desirable that this application be disposed of as quickly as is practicable.

In particular the applicant seeks leave to cross‑examine the complainant in respect of the following matters: the complainant's sexual activities from 20 October 2010, 12 days prior to the alleged rape, up to the day of the alleged rape including with one J and one LS and including her behaviour at a Halloween party on 30 November 2010, which was two nights before the alleged rape; and also to cross‑examine the complainant about her psychological condition of bipolar II disorder hypomania and how that affects her sexual behaviour.

Leave is required because of the operation of section 4 of the Criminal Law (Sexual Offences) Act 1978. Section 4 relevantly provides, "The following rules shall apply in relation to any examination of witnesses or trial in relation to a sexual offence whether or not the examination or trial relates to a charge of an offence other than a sexual offence against the same or any other defendant". Subsection 1, "The Court shall not receive evidence of and shall disallow any question as to the general reputation of the complainant with respect to chastity". 2, "Without leave of the Court, a, cross‑examination of the complainant shall not be permitted as to the sexual activities of the complainant with any person; b, evidence shall not be received as to the sexual activities of the complainant with any person". 3, "The Court shall not grant leave under rule 2 unless it is satisfied that the evidence sought to be elicited or led has substantial relevance to the facts in issue or is [a] proper matter for cross‑examination as to credit". 4, "Evidence relating to or tending to establish the fact that the complainant has engaged in sexual activity with a person or persons must not be regarded as having substantial relevance to the facts in issue only because of any inference it may raise about general disposition. Without prejudice to the substantial relevance…

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 MCB

Details

AGLC: R v MCB [2012] QDC 88
Case: [2012] QDC 88
Decision Date: 1 May 2012

CaseChat Overview and Summary

The case of R v MCB, heard in the District Court of Queensland, involves the applicant, MCB, who is charged with three counts of raping a complainant on 1 November 2010. The applicant seeks leave to cross-examine the complainant regarding her past sexual activities and a psychiatrist about those activities. The applicant also seeks leave to cross-examine the complainant about her psychological condition of bipolar II disorder hypomania and how it affects her sexual behaviour. This application is subject to section 4 of the Criminal Law (Sexual Offences) Act 1978, which restricts cross-examination of the complainant about her sexual activities.

The court considered the legal issues concerning the relevance of the complainant's past sexual activities and her mental condition to the case. The applicant argued that the complainant's sexual behaviour, including encounters with two young men, J and L, and her mental health condition were relevant to the issue of whether she consented to intercourse with the applicant. The applicant also argued that the complainant's behaviour was relevant to a motive to make a false complaint.

The court, however, found that none of the incidents of past sexual behaviour should be permitted as part of the cross-examination. The court ruled that the evidence of the complainant's past sexual activities was too remote in time and not substantially relevant to the facts in issue. Furthermore, the court found that there was no evidence to suggest that the complainant was suffering from a hypomanic episode at the time of the alleged offence. The court also found that any sexual encounters with J and L were not sufficiently connected with the alleged rape in time, place or any other relevant circumstance.

However, the court allowed cross-examination of the complainant about the true nature of her relationship with L, as it was considered relevant to the question of consent. The court noted that the jury's understanding of the nature of the relationship was a substantially relevant consideration regarding the question of consent.

The final orders of the court were that the application is allowed but only to the extent of permitting the complainant to be cross-examined as to the status of her relationship with L at material times. The court disallowed any cross-examination of the complainant about her past sexual activities and her mental health condition.

Orders