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Act 1933 (ACT) ss 68B, s 68B(3A)(b) (expired) Evidence (Miscellaneous Provisions) Act 1991 (ACT) div 4.4.2, div 4.2.4 (repealed), ss 41, 75, 76, 77, 78 Evidence Act 2011 (ACT) ss 55, 103 Director of Public Prosecutions Act 1990 (ACT) s 7
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 Byczko (No 1) (1977) 16 SASR 506 R v ST (No 2) [2014] ACTSC 52 R v TF [2018] ACTSC 13 R v CH and JW [2010] ACTSC 75 W v The Queen [2006] TASSC 52; 16 Tas R 1 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…

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 Nash (No 2)

Details

AGLC: R v Nash (No 2) [2021] ACTSC 268
Case: [2021] ACTSC 268
Decision Date

CaseChat Overview and Summary

In the Supreme Court of the Australian Capital Territory, the accused, Sammual James Nash, was on trial for charges of indecency without consent and sexual intercourse without consent against his former partner, NN, on 7 February 2013. The case involved a legal challenge by the accused to adduce evidence of the complainant's prior sexual activities, specifically her consensual sexual intercourse with another man on 6 February 2013, which the defence argued had substantial relevance to the facts in issue.

The central legal issue was whether the evidence of the complainant's prior sexual activities with another man, disclosed to Detective Leading Senior Constable Giuliana Milner and Dr Amanda Barry, should be admitted under s 76 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT). The accused sought leave to cross-examine the complainant about this evidence, asserting that it had substantial relevance to the facts in issue. The court had to consider the statutory framework, particularly ss 76 and 78 of the EMP Act, which governs the admissibility of evidence of a complainant's sexual activities in sexual offence proceedings. The court had to determine if the evidence had "substantial relevance" to the facts in issue and if it was a proper matter for cross-examination about credit.

Justice Loukas-Karlsson granted the accused's application, allowing the evidence of the complainant's prior consensual sexual activity with another man on 6 February 2013. The court found that the evidence had substantial relevance to the facts in issue because it could rationally affect the assessment of the probability of the existence of a fact in issue in the proceeding. Specifically, the injuries observed by Dr Barry and the complainant's disclosure of her prior sexual activity with another man provided context that was crucial to understanding the circumstances surrounding the alleged offences on 7 February 2013. The court's decision was based on the principle that such evidence could be relevant in assessing the credibility of the complainant and the nature of the injuries observed.

Following the granting of leave to adduce the contested evidence, the prosecution filed a Notice Declining to Proceed further in the prosecution of the indictment on 17 September 2021, thereby ending the trial. The accused was formally excused.

Orders