R v Nash (No 2)
[2021] ACTSC 268
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Nash (No 2) |
Citation: | [2021] ACTSC 268 |
Hearing Date: | 13 September 2021 |
DecisionDate: | 13 September 2021 |
ReasonsDate: | 15 October 2021 |
Before: | Loukas-Karlsson J |
Decision: | The accused is granted leave to adduce evidence of the sexual activities of the complainant limited to the evidence of the complainant that she had consensual sexual intercourse with a man other than the accused on 6 February 2013 as the evidence has substantial relevance to the facts in issue. |
Catchwords: | CRIMINAL LAW – EVIDENCE – application to adduce evidence of complainant’s prior sexual activities – operation of ss 76, 77, 78 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) – substantial relevance to facts in issue – leave granted |
Legislation Cited: | Crimes Act 1900 (ACT) ss 54, 60 Supreme Court Act 1933 (ACT) ss 68B, s 68B(3A)(b) (expired) |
Cases Cited: | R v Vunilagi; R v Vatanitawake; R v Masivesi; R v Macanawai(No 2) [2020] ACTSC 274 R v Sutton (No 2) [2019] ACTSC 340 R v Alas (No 2) [2017] ACTSC 333 |
Parties: | The Queen (Crown) Sammual James Nash (Accused) |
Representation: | Counsel S Jerome (Crown) J Sabharwal (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Armstrong Legal (Accused) | |
File Number: | SCC 272 of 2020 |
LOUKAS-KARLSSON J:
Introduction
The trial of Sammual James Nash (the accused) commenced before me on 13 September 2021. The indictment against the accused contained one count of an act of indecency without consent, contrary to s 60(1) of the Crimes Act 1900 (ACT) (Crimes Act) and two counts of sexual intercourse without consent, contrary to s 54(1) of the Crimes Act. All three counts are alleged to have been committed against the accused’s former partner, NN (the complainant) on 7 February 2013.
As a result of the amendments to s 68B of the Supreme Court Act 1933 (ACT), the accused was able to make an election for a trial by judge alone, notwithstanding the offences on the indictment are “excluded offences”: s 68B(3A)(b) (since expired). The accused filed an election on 12 April 2021.
On 10 September 2021, the accused filed an application in proceeding seeking leave pursuant to s 76 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (EMP Act) to cross-examine the complainant about the prior sexual activity she disclosed to Detective Leading Senior Constable Giuliana Milner (Detective Milner) and Dr Amanda Barry. The application was made on the ground that the evidence has substantial relevance to the facts in issue. The application was heard at the outset of the trial on 13 September 2021. At that time, I indicated that the application was granted and that written reasons as required by s 78(4) of the EMP Act would be incorporated into the final judgment pertaining to the judge alone trial, as was the legal procedure adopted in R v Vunilagi; R v Vatanitawake; R v Masivesi; R v Macanawai(No 2) [2020] ACTSC 274 at [21]-[24]. As will become clear from the addendum to this judgment, a final judgment for the judge alone trial was not required. The reasons for the s 76 application now follow on their own.
Legal Principles and Legislative Regime
Division 4.4.2 of the EMP Act provides the legislative regime governing evidence of a complainant’s sexual reputation and activities in a sexual offence proceeding. The present matter is a “sexual offence proceeding” within the meaning of s 41 of the EMP Act.
Evidence of a complainant’s sexual reputation is not admissible in a sexual offence proceeding and is subject to immunity: s 75 EMP Act.
Section 76 of the EMP Act establishes the general immunity for evidence of a complainant’s sexual activities. It provides:
76General immunity of evidence of complainant’s sexual activities
(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.
(2)Subsection (1) does not apply to evidence of the specific sexual activities of the complainant with an accused person in the sexual offence proceeding.
An application for leave pursuant to s 76 must be made in writing. I note the application in the present matter complies with this requirement. If the proceeding is before a jury, the application for leave must be made in the absence of the jury. If the accused person requests, the application must be heard in the absence of the complainant: s 77 EMP Act.
Section 78 of the EMP Act provides the procedure the Court must follow when deciding whether to grant leave pursuant to s 76:
78Decision to give leave under s 76
(1)The court must not give leave under section 76 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.
(2)Evidence (sexual activity evidence) that relates to, or tends to establish, the fact that the complainant was accustomed to engage in sexual activities is not to be regarded as having a substantial relevance to the facts in issue because of any inference it may raise about general disposition.
(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 76, it must give written reasons for its decision.
(5)In this section:
proper matter for cross-examination about credit—evidence is a proper matter for cross-examination about credit if the credibility rule under the Evidence Act 2011, section 102 does not apply to the evidence because of that Act, section 103 (Exception—cross‑examination as to credibility).
The current div 4.2.2 is in substantially similar terms to former regime set out in div 4.2.4. The principles that the Court applied in respect of the now repealed 4.2.4 continue to apply in respect of the current div 4.2.2 regime: R v Sutton (No 2) [2019] ACTSC 340 at [5].
The purposes of regimes such as div 4.2.2 includes the “protect[ion] of alleged victims of sexual offences from the embarrassment and intrusion upon privacy involved in an investigation of their personal lives”: R v Byczko (No 1) (1977) 16 SASR 506 at 539, cited in R v ST (No 2) [2014] ACTSC 52 at [27] (R v ST (No 2)). Another purpose is to ensure that cross-examination is confined within appropriate boundaries to reduce the risk that “the jury might misuse the evidence”: R v TF [2018] ACTSC 13 at [33].
In respect of s 78(1)(a), “relevance” has the same meaning as it appears in s 55 of the Evidence Act 2011 (ACT) (Evidence Act): R v CH and JW [2010] ACTSC 75 at [44] (R v CH and JW). Section 55 of the Evidence Act provides:
55Relevant evidence
(1)The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
(2)In particular, evidence is not taken to be irrelevant only because it relates only to—
(a)the credibility of a witness; or
(b)the admissibility of other evidence; or
(c)a failure to present evidence.
As to the word “substantial” in s 78(1)(a) of the EMP Act, “substantial” relevance to the facts in issue means “considerable importance”, “concerning the essentials” or “important in material terms”: W v The Queen [2006] TASSC 52; 16 Tas R 1 at [46], applied in R v ST (No 2); R v Alas (No 2) [2017] ACTSC 333 at [9].
Although s 78(1)(b) was not relied upon by the accused in this matter, it is useful to set out the relevant matters that the Court must consider if an application is made pursuant to that subsection. R v CH and JW at [67] establishes that determining whether evidence is a “proper matter for cross-examination about credit” pursuant to s 78(1)(b) require the Court to ask:
(a) Could the evidence substantially affect the assessment of the credibility of the complainant? Section 78(5) EMP Act; s 103(1) Evidence Act 2011 (ACT); and
(b) Would the evidence, if accepted, be likely to substantially impair confidence in the reliability of the complainant’s evidence? Section s 78(3) EMP Act.
Consideration
Counsel for the accused noted that it was common ground that when the complainant saw Dr Barry on 7 February 2013, she informed Dr Barry that she had consensual penile-vaginal intercourse with another man other than the accused on 6 February 2013 between 9:30PM and 10:00PM. The complainant informed Dr Barry that a condom was used for the intercourse that took place with the other man on 6 February 2013. The report of Dr Barry notes that from her examination of the complainant, she observed that the complainant had multiple genital injuries which indicated penetration to the vulval area and vagina. Dr Barry noted in the report that no comment could be made with regard to the nature of consent or lack thereof from the interpretation of the injuries to the genital area.
Counsel for the accused also noted that during the complainant’s evidence in chief interview with Detective Milner, the complainant tells Detective Milner about the consensual sexual intercourse with the other man that took place on 6 February 2013. The relevant portion of the evidence in chief interview is from Q948A to Q957A of the transcript.
Counsel for the prosecution did not object to the application.
The application was granted because I was satisfied in the context of this case that the evidence had substantial relevance to the facts in issue pursuant to s 78(1)(a) of the EMP Act. The relevant context in this case was the injuries and the evidence of Dr Barry.
Orders
On 13 September 2021, I made the following order pursuant to s 76(1) of the EMP Act:
(a) The accused is granted leave to adduce evidence of the sexual activities of the complainant limited to the evidence of the complainant informing Dr Barry and Detective Milner that she had consensual sexual intercourse with a man other than the accused on 6 February 2013 as the evidence has substantial relevance to the facts in issue.
Addendum
On 17 September 2021, the prosecution filed a Notice Declining to Proceed further in the prosecution of the indictment SCC 272 of 2020 pursuant to s 7(6) of the Director of Public Prosecutions Act 1990 (ACT) thereby causing the prosecution of the accused to be brought to an end. The accused was formally excused.
| I certify that the preceding nineteen [19] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson Associate: Rhiannon McGlinn Date: 15 October 2021 |
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