R v MZ (No 2)
[2021] ACTSC 43
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title:
R v MZ (No 2)
Citation:
[2021] ACTSC 43
Hearing Date:
24 March 2021
DecisionDate:
25 March 2021
Before:
Elkaim J
Decision:
See [33]
Catchwords:
CRIMINAL LAW – EVIDENCE – Pre-Trial Application – Scope of subpoena – application to edit or exclude evidence – relevance – capacity to affect probability of facts in issue
Legislation Cited:
Evidence Act 2011 (ACT) s 55
Cases Cited:
MZ v The Queen [2020] ACTCA 41
Parties:
The Queen ( Crown)
MZ ( Accused)
Representation:
Counsel
A Chatterton ( Crown)
M Thangaraj SC with M Jones ( Accused)
J Larkings (Interested Party)
Solicitors
ACT Director of Public Prosecutions ( Crown)
Kamy Saeedi Law ( Accused)
Dobinson Davey Clifford Simpson (Interested Party)
File Numbers:
SCC 318 of 2018; SCC 319 of 2018
ELKAIM J:
1. MZ is due to stand trial in the week commencing 6 April 2021. He is facing an indictment containing one count, namely that he engaged in sexual intercourse with GR without her consent. The offence is alleged to have taken place on 17 August 2018.
2. This will be MZ’s second trial. He first came to trial before Mossop J and a jury on 8 October 2019. On 14 October 2019 the jury found him guilty. On 3 December 2019 Mossop J found MZ guilty of a summary charge that had been transferred from the Magistrates Court.
3. MZ appealed. He said that directions given to the jury were incorrect. The Court of Appeal agreed and directed a retrial (MZ v The Queen [2020] ACTCA 41).
4. There are three matters before me by way of pre-trial application.
5. On 18 March 2021 MZ filed an Application in Proceeding seeking a number of orders, mostly relating to recordings of evidence from the first trial and editing of a record of interview given by MZ on 17 August 2018. The application is supported by an affidavit of Mr James Maher.
6. Orders 1 and 2, sought in the above application, are not opposed by the Crown. Orders 3, 4 and 5 are opposed. The opposed orders relate to the editing of evidence given in the first trial and of the record of interview.
7. There is also an application filed by the Crown on 5 March 2021 seeking an order that a witness be able to give evidence by audio-visual link from China. This application is supported by an affidavit of Ms Harriet Slee affirmed on 5 March 2021.
8. Thirdly, MZ asked the Court to decide on a claim for privilege arising from documents produced under subpoena by a firm of solicitors, Phelps Reid Foster Johnson Lawyers. This request is supported by a separate affidavit of Mr Maher, affirmed on 22 March 2021.
9. I was informed that the Crown’s application had already been agreed between the parties. There is no need for any orders.
10. The subpoena application was dealt with first. Its result to some degree dictated the course taken by the parties in the accused’s application.
11. Some background is necessary. In the first trial, evidence was given to the effect that on the morning before the alleged offence the complainant visited a solicitors’ office and sought advice on the law pertaining to rape in Australia. Under cross-examination it was put to her that her seeking this advice was part of a plan on her part to ‘set up’ the accused.
12. Not surprisingly, the accused in preparation for his forthcoming trial issued a subpoena to the firm of solicitors consulted by the complainant in order to ascertain whether or not the complainant had sought the advice mentioned above.
13. After an exchange of correspondence, the breadth of the subpoena was reduced. In response to the subpoena the solicitors Phelps Reid Foster Johnson Lawyers, produced the file note of the relevant consultation. The complainant however claimed privilege in respect of its contents. The accused’s position was that any privilege had been waived by the evidence given by the complainant in the first trial.
14. In order to resolve the issue I read the file note. Suffice to say that while a particular sentence fell within the scope of the subpoena, there was no entry consistent with the above advice having been sought. I made an order that the sentence just referred to be made available to the accused and the Crown.
The application for editing
15. The editing orders are sought specifically in regard to the complainant’s evidence in chief interview, her evidence at the first trial, and MZ’s police record of interview.
16. The contents of the above evidence sought to be edited were said to fall within one or more of five categories. These five categories, in summary, are as follows:
(i)Details about a family violence incident which allegedly occurred in 2012.
(ii)Details of other incidents of sexual intercourse without consent which the complainant said had occurred prior to the offence before the Court.
(iii)Degrading or insulting statements made by the applicant about the complainant, in particular about her use of drugs.
(iv)Negative statements made by the complainant about the accused.
(v)Various other examples of evidence said to be irrelevant.
17. The parties ultimately agreed that the material referred to in the first two categories should be excluded. The agreement arose from the results of the application in relation to the subpoena. The agreement however, was predicated on the following assumption: That the accused will not suggest to the complainant that she consulted her solicitor about the law of rape in Australia for the purpose of fabricating an allegation of rape against the accused.
18. The accused undertook to inform the Crown if he decided not to abide by this assumption.
19. In respect of the remaining categories the following was accepted by the Crown:
(a)That the alleged offending was correctly characterised as opportunistic.
(b)That the balance of the material that would be before the Court indicated that the parties were in the midst of a divorce process, their relationship was not harmonious and the dislike between them extended to immediate family members, for example the complainant’s parents.
20. Given this acceptance the accused said that the disputed material was simply not relevant. The Crown’s response was that the material displayed a degree of antagonism, certainly an attitude, on the part of the accused that “informed” the reason for him taking the opportunity to have sexual intercourse with his sleeping wife.
21. An opportunistic crime is one which arises from a person observing circumstances which encourage him, or her, to commit the crime. Invariably this occurs over a short period of time. A car thief walking past an unlocked vehicle, might take the opportunity to steal the vehicle. There is generally no planning leading up to the commission of the crime.
22. In this case the opportunity that is said to have been taken by the accused is the complainant asleep on her bed which prompted him (in his mind) the opportunity to have sexual intercourse with her.
23. I do not see that the degree of animosity between the accused and the complainant plays any part in the offence. On one view it might even be said that the opportunity that was presented to the accused would have been equally available if he was on good terms with the complainant.
24. I informed the Crown that I was of the initial view that the material was not relevant in the manner described in s 55 of the Evidence Act 2011 (ACT). I invited the Crown to identify any specific comments which it wished to highlight. The Crown, as it was entitled to do, maintained its opposition to the editing of all the passages that had not been agreed upon between the parties.
25. I issued this invitation because although the unchallenged portions of evidence make very plain the state of the relationship between the parties, I was open to the argument that there might have been some expressions of antagonism which were relevant to the accused’s motivation to take advantage of the opportunity with which he was presented.
26. After hearing further argument I came to the view that, perhaps at something of a stretch, the Crown’s submissions concerning acts of aggression, or at least an environment of aggression, could be seen as falling within the context of the accused taking the opportunity to commit an act of violence. For this reason I think that those passages relating to aggression on the part of the accused should not be removed. I am specifically referring to Questions 41, 49 and 50 of the evidence in chief interview between the police and the complainant recorded on 17 August 2018.
27. As to the balance, I think they go beyond the purpose of the Crown in establishing the alleged atmosphere behind the taking of the opportunity and are not relevant. In my view the remaining evidence more than sufficiently establishes the background, or context, suggested by the Crown.
28. I think specific mention needs to be made of the accused’s allegations about the use of illicit drugs, in particular “ice”, by the complainant. It seemed to me that these allegations may be described as a double-edged sword. If they are accepted, they will no doubt affect the credit of the complainant. On the other hand, and this is why the Crown wishes to rely on them, if they are not accepted, they will give rise to an inference that the accused is prepared to say ‘anything’ to discredit the complainant.
29. The difficulty facing the Crown is that even if its submission is correct, namely that the accused was making up the allegations to diminish, in the eyes of the police, the strength of the allegations against him, they do not advance a reason for him taking the opportunity to sexually assault his wife.
Orders
30. I make the following orders:
31. On the application filed by the accused on 18 March 2021:
(i)Subject to the orders below, Orders 1 to 5 inclusive of the orders sought in the application.
(ii)Questions 41, 49 and 50 are not to be edited under Order 3.
(iii)The Court notes that the accused did not press certain edits and others were agreed by the Crown, as shown in the table annexed to these orders.
(iv)The Crown provide the accused’s legal representatives with one copy of the full recording of the in chief interview of the complainant conducted on 17 August 2018 on the undertaking that it will remain with the accused’s legal representatives and be returned at the conclusion of the proceedings. The legal representatives of the accused are permitted to make 1 copy and be subject to the same undertaking.
(v)A copy of the recorded evidence of the complainant recorded in these proceedings on 8 and 9 October 2019 is to be provided to the Crown by the Court and edited in accordance with orders (i)-(iii) above.
(vi)A copy of the edited versions of both recordings are to be provided by the Crown to the accused’s legal representatives, on the same undertaking as referred to in order (iv).
32. On the application filed by the Crown on 5 March 2021, the Court notes that this application has previously been dealt with by agreement between the parties.
33. In respect of the application by the accused for access to documents produced by Phelps Reid Foster Johnson Lawyers, the solicitor for the complainant is to inform the accused and the Crown of the portion of the documents found by me to fall within the scope of the subpoena.
I certify that the preceding thirty-three [33] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim.
Associate:
Date: 25 March 2021
ANNEXURE
[REDACTED]