R v Mm - [2016] NTSC 40

R v MM [2016] NTSC 40
PARTIES:THE QUEEN

v
MM

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:21552070
DELIVERED:  11 August 2016
HEARING DATES:  24 June 2016
JUDGMENT OF:  HILEY J
CATCHWORDS:
CRIMINAL LAW — EVIDENCE — Sexual offences — Admissibility —
Leave to cross-examine or lead evidence of complainant’s sexual activities

with another person — “Substantial relevance to the facts in issue” — state of mind of the accused — Sexual Offences (Evidence and Procedure) Act 1984 (NT) s 4
Crimes Act 1900 (NSW) s 293
Criminal Law (Sexual Offences) Act 1978 (Qld) s 4
Evidence (National Uniform Legislation) Act 2011 (NT) s 135
Sexual Offences (Evidence and Procedure) Act 1984 (NT) s 4 (1)-(4)
AM v The Queen [2006] NTCCA 18, (2006) 18 NTLR 110; R v Burton
[2013] NSWCCA 335, (2013) 237 A Crim R 238; R v Lawrence [2001] QCA
441, [2002] 2 Qd R 400, applied.
Bull v The Queen [2000] HCA 24, (2000) 201 CLR 443; R v Fernando
[2009] ACTSC 137, (2009) 238 FLR 64; R v MAG [2004] QCA 397, referred
to.
REPRESENTATION:
Counsel:
Crown:D Dalrymple
Defendant:J B Lawrence SC
Solicitors:
Crown:Director of Public Prosecutions
Defendant:Pipers Barristers and Solicitors
Judgment category classification:    B
Judgment ID Number:  Hil1605
Number of pages:  18

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
R v MM [2016] NTSC 40

No. 21552070
BETWEEN:

THE QUEEN

AND:

MM

CORAM: HILEY J
REASONS FOR JUDGMENT
(Delivered 11 August 2016)
Introduction

The Crown submits that the following evidence should not be led, nor the subject of cross-examination, because of the restrictions imposed under s 4 of the Sexual Offences (Evidence and Procedure) Act 1984 (NT) (the Act):
(a)two passages in the tape-recorded conversation between the complainant (JH) and Senior Constable Hoffman on 22 October 2015 (of which Ex P1 is a transcript), namely:
(i) Passages on pp 10 – 13 that relate to two occurrences of sexual intercourse with an Indian man, M, on a particular day a few weeks before the alleged offending on 21 October 2015, immediately before and after she had consensual sex with the accused. At p 10.8 the complainant implied that she had consensual sex with M immediately before she had consensual sex with the accused.[1] At p 10.3 and from p 11.4 she said that M returned to her unit and sexually assaulted her soon after the accused had left. She complained to police about that sexual assault by M but did not “press charges”.
(ii) Passages on pp 27 – 33 that relate to consensual sexual intercourse between the complainant and three other men on 20 and 21 October prior to the alleged offending.
(b)DNA results relating to one of those three men, AAH (contained in Ex P2).
(c)Photographs that include condom wrappers, condoms and dildos on the floor of the bedroom and lounge /…

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 Mm

Details

AGLC: R v Mm [2016] NTSC 40
Case: [2016] NTSC 40
Decision Date: 11 August 2016

CaseChat Overview and Summary

The case of R v Mm was heard in an Australian court, where the accused, MM, was facing charges related to sexual offences. The complainant alleged that MM had engaged in non-consensual sexual acts. The legal dispute centred around the admissibility of certain evidence related to the complainant's credibility and the accused's state of mind. Specifically, the Crown sought to exclude evidence that the accused might have had knowledge of the complainant's alleged promiscuity, as well as certain photographic evidence from the crime scene.

The primary legal issue before the court was whether the proposed exclusion of certain evidence had "substantial relevance to the facts in issue" as required by the relevant legislation. The Crown argued that the evidence, which suggested that the accused had some knowledge of the complainant's sexual history, was relevant to the accused's state of mind concerning the complainant's consent. Defence counsel contended that the accused's state of mind was already established by his level of intoxication at the time of the alleged offence. Furthermore, the Crown sought to exclude photographs from the crime scene, including those depicting condom wrappers and dildos, arguing they were irrelevant to the accused's state of mind.

The court concluded that the evidence proposed to be excluded did not meet the threshold of "substantial relevance" as it was not probative of the facts in issue. The court found that the accused's state of mind was already sufficiently established by other evidence, including his level of intoxication. The court also determined that the proposed evidence of the accused's knowledge of the complainant's sexual history was irrelevant and inadmissible, as it was based on unsourced hearsay. As a result, the court ruled that the proposed exclusion of the evidence was not justified, and the relevant documents should be edited accordingly. The court did not grant leave for the Crown to use or elicit the excluded evidence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In both his written submissions and his oral submissions Mr Lawrence SC repeated what the complainant told the police about the alleged offending, and stressed that this is consistent with the complainant having consented to have sex with the accused on the occasions that are the subject of the charges. But the Crown is not seeking to exclude that evidence. The fact that there is likely to be admissible evidence consistent with consent having been given does not, in my opinion, support the contention that cross-examination of the complainant about those other matters would be likely to materially impair the confidence in the reliability of the complainant’s evidence.Conclusions I am not satisfied that the material which the Crown proposes to exclude has “substantial relevance to the facts in issue.” Accordingly leave is not granted for such evidence to be used or elicited. The relevant documents should be edited accordingly.

Ratio Decidendi

Legal Principle Established

Although s 293 of the Crimes Act 1900 (NSW) is worded quite differently to s 4 of the Act, the overall purposes of both sets of provisions are the same.Consideration A fundamental difference between the factual circumstances in those cases and the present case is that MM’s knowledge or belief, such as it is, did not result from something that the complainant had said or indicated to him or done in his presence, shortly before the alleged offending. Moreover, his knowledge or belief that the complainant was promiscuous was based upon unsourced hearsay, and therefore prima facie inadmissible, even before one gets to consider s 4 of the Act.[9]Substantial relevance to the accused’s state of mind – s 4(1) The only evidence which relates to counsel’s primary contention, namely evidence that suggests some knowledge by the accused of other sexual conduct on the part of the complainant, is that contained in his record of interview (Ex P4). Applying what was said in the passages in Burton quoted above such evidence is irrelevant and therefore inadmissible. Even if, contrary to what I have just said, the evidence was relevant, for example to the accused’s state of mind concerning the complainant’s consent or absence of consent, I do not consider that the evidence has “substantial relevance”. It is common ground that the accused was very intoxicated at the time of the alleged assault. In his record of interview he initially denied having sex with the complainant. Later, after some of the complainant's allegations were put to him, he said that he was so drunk that he did not remember any of that. He said that if he did have sex with her it would not have been against her will because she has previously wanted to have sex with him. According to the complainant she and the accused had previously engaged in a consensual sex. It appears that the accused was so drunk that any belief that he did have as to the complainant's consent was based upon the fact that she had previously consented to sexual intercourse with him. Any understanding that he might have had when being interviewed by police concerning her general promiscuity, even if relevant, would not have substantial relevance to a fact in issue. Defence counsel also contended that the presence of the condom wrappers and dildos would also have led the accused to think that the complainant would be, and was, consenting to sexual intercourse with him. However, although the complainant talks about telling the accused where to get some condoms, there is no suggestion, from either the complainant or the accused, that the accused was aware of those other items. Counsel stressed that the photographs which included pictures of the condom wrappers and dildos were photographs of the alleged crime scene and should therefore be made available to the jury. However the fact that evidence, for example of a crime scene, is relevant and prima facie admissible does not preclude its exclusion or editing in some circumstances, for example under s 135 of the Evidence (National Uniform Legislation) Act 2011 (NT).