R v Mm [No 2] - [2016] NTSC 55

R v MM [No 2] [2016] NTSC 55
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:  2 November 2016
HEARING DATES:  31 October 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” —
consent of complainant — Sexual Offences (Evidence and Procedure) Act
1984 (NT) s 4.
Criminal Code (NT) s 192
Sexual Offences (Evidence and Procedure) Act 1984 (NT) s 4 (1)-(4)

R v Burton [2013] NSWCCA 335, (2013) 237 A Crim R 238; Bull v The Queen [2000] HCA 24, (2000) 201 CLR 443; R v MM [2016] NTSC 40, 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:    C
Judgment ID Number:  Hil1610
Number of pages:  9

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
R v MM [No 2] [2016] NTSC 55

No. 21552070
BETWEEN:

THE QUEEN

AND:

MM

CORAM: HILEY J
REASONS FOR JUDGMENT
(Delivered 2 November 2016)
Introduction

On 11 August 2016 I ruled that leave should not be granted for certain evidence to be used or elicited during the trial of this matter, mainly because it did not have “substantial relevance to the facts in issue” within the meaning of s 4(1) of the Sexual Offences (Evidence and Procedure) Act 1984 (NT) (the Act).[1] Subsequent to me making that ruling, the Crown received and disclosed a number of reports in relation to the mental health of the complainant JH (the fresh evidence).
Counsel for the accused, Mr Lawrence SC, has renewed the application for such leave in light of those further reports and contended that the evidence now has substantial relevance to the fact of consent. My previous ruling primarily concerned a different fact in issue: the state of mind of the accused.
In short, counsel contends that prior to and at the time when the complainant had sexual intercourse with the accused, she may have been experiencing a personality disorder as a result of which she was in fact consenting to sexual activity with anyone, including the accused.
The evidence which counsel seeks leave to use or elicit is identified in [1] of my previous ruling.[2] In short the evidence comprises:
(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 October2015, immediately before and after she had consensual sex with the accused.
(ii) Passages on pp 27 – 33 that relate…

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 [No 2]

Details

AGLC: R v MM [No 2] [2016] NTSC 55
Case: [2016] NTSC 55
Decision Date: 2 November 2016

CaseChat Overview and Summary

The case of R v Mm [No 2] involved the accused, Mm, who was charged with sexual offences. The primary dispute centred around the admissibility of certain evidence concerning the complainant's mental health and sexual history. The case was heard by A/Prof Parker in the relevant Australian court.

The legal issues that A/Prof Parker had to decide were whether the evidence of the complainant's mental health history and her sexual conduct on the day in question was admissible. Specifically, the court needed to determine whether this evidence could prejudice the jury against the accused by implying the complainant's propensity to engage in consensual sexual activities, thus affecting her credibility and the assessment of her consent.

A/Prof Parker examined the evidence presented and concluded that there was no substantial relevance of the complainant's prior mental health disclosures or sexual activity to the events of the day in question. The court found that the complainant's mental state during her interview was not indicative of any relevant mental illness that would affect her ability to understand questions or respond appropriately. Furthermore, the court held that the introduction of evidence about her sexual activity with others on the same day, without expert opinion suggesting she had a relevant mental illness at the time, could lead to the jury erroneously concluding that she was the kind of person who would willingly engage in sexual conduct with the accused. This was considered to contravene the purpose of section 4 of the relevant Act, which aims to prohibit such prejudicial reasoning.

As a result, A/Prof Parker ruled that the contested evidence was inadmissible. The court's reasoning was that the evidence did not substantially relate to the issue of the complainant's consent to the accused's actions and could unfairly prejudice the jury against the accused. The final orders were made in accordance with this ruling, excluding the contested evidence from the trial.

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

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Ratio Decidendi

Legal Principle Established

A/Prof Parker considered that “[JH’s] mental state during her interview with Senior Constable Hoffman did display some mild features of Asperger’s syndrome” but that this did not have “any impact on [her] ability to understand questions posed to her by Senior Constable Hoffman or to respond appropriately or intelligently to such questions.” He said that:There did not appear to be any indication that [JH] was experiencing clinical symptoms of Dissociative Identity Disorder or Adult Attention Deficit Hyperactivity Disorder during her interview that may have impacted on the quality of information that she provided to Senior Constable Hoffman.Consideration There is nothing in this material that suggests that JH was suffering from any relevant mental condition at the time when she was interviewed by Senior Constable Hoffman on 22 October 2015, or five or so hours before that when she says that she was sexually assaulted by the accused and made it plain to him that she was not consenting. Her earlier disclosures to doctors, in particular of “risky behaviour with men” in April 2015 and of her “four other personalities inside her head” in February 2005, cannot have any substantial relevance to what might have been her mental state on 21 October, some six months later. If anything, the absence of any evidence of medical consultations since April 2015 after she had been taking dexamphetamine, might more readily lead to the conclusion that the earlier problems had abated if not resolved. The principles and authorities to which I referred in my original ruling, particularly the High Court’s decision in Bull v The Queen[3] and that of the New South Wales Court of Criminal Appeal in R v Burton,[4] are equally apposite here.[5] The introduction of the evidence, for example, evidence relating to her sexual activity with three other people earlier that day, absent expert opinion that shows the possibility of her in fact having a relevant mental illness at the time of her sexual activity with the accused, can only result in the strong risk of a jury reasoning that she is the kind of person who would willingly have engaged in sexual conduct with the accused.[6] As I said in my previous ruling, this is the very sort of reasoning which s 4 of the Act is designed to prohibit.[7] Further, with or without such expert opinion, I do not consider that the evidence can be substantially relevant to the issue of JH’s consent to having sexual intercourse with the accused. Even if there was evidence that she was in some kind of mental state when she engaged in consensual sex with others, followed by sexual intercourse with the accused, her evidence is to the effect that she was not consenting to the latter and that she was resisting the assaults by the accused. The present matter might be contrasted with a situation where a complainant does not protest or physically resist and or is “unconscious or so affected by alcohol or another drug as to be incapable of freely agreeing”.[8] If that were the case here, and the complainant was in fact in a relevant mental state at the time of engaging in the sexual activity, interesting questions may arise as to whether she was capable of “free and voluntary agreement”.[9]