R v NO

[2017] ACTSC 372

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v NO

Citation:

[2017] ACTSC 372

Hearing Dates:

18, 19, 21 September 2017

DecisionDate:

19, 21 September 2017

Reasons Date:

11 December 2017

Before:

Penfold ACJ

Decision:

See [14] and [27] below.

Catchwords:

CRIMINAL LAW – EVIDENCE – Relevance – Evidentiary Matters Relating to Witnesses and Accused Persons – Complaints – application to cross-examine complainant and accused on sexual history – whether accused and complainant engaged in “rough sex” – whether complainant’s use of dating website is inconsistent with claim of being “madly in love” with accused made to explain resumption of relationship after alleged violent rape – whether leave is necessary – leave given if required.

CRIMINAL LAW – PARTICULAR OFFENCES – Offences Against the Person – Offences Against Decency and Morality – sexual assault – sexual intercourse without consent – assault occasioning actual bodily harm – act of indecency.

Legislation Cited:

Evidence (Miscellaneous Provisions) Act 1991 (ACT), div 4.2.4, ss 50, 51, 51(2), 52, 53(1), 53(4)

Evidence Act 2011 (ACT)

Cases Cited:

R v Fernando [2009] ACTSC 137; 238 FLR 64

Parties:

The Queen (Crown)

NO (Accused)

Representation:

Counsel

Mr T Hickey (Crown)

Mr G Brady SC (Accused)

Solicitors

ACT Director of Public Prosecutions (Crown)

Kamy Saeedi Law (Accused)

File Numbers:

SCC 31 of 2017; SCC 34 of 2017

Background

1. The accused was charged with six counts arising out of events during his relationship with the complainant, as follows:

(a)one count of sexual assault in the second degree;

(b)three counts of sexual intercourse without consent;

(c)one count of assault occasioning actual bodily harm; and

(d)one count of act of indecency without consent.

1. Two of the charges related to an incident in early 2011 in which the accused is said to have inflicted injuries on the complainant with intent to have sexual intercourse with her, and then had sexual intercourse with her without her consent. The defence case is that the injuries were inflicted, with the complainant’s consent, in the course of consensual “rough sex”.

1. Division 4.2.4 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (the EMP Act) applies in sexual offence proceedings to exclude the admission of evidence about a complainant’s sexual reputation (s 50) and restrict the admissibility of evidence of a complainant’s sexual history (s 51).

1. The relevant provisions of the EMP Act are as follows:

51General 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.

52Application for leave under s 51

Application for leave under section 51 (General immunity of evidence of complainant’s sexual activities) in a sexual offence proceeding must be made–

(a)in writing; and

(b)if the proceeding is before a jury––in the absence of the jury; and

(c)in the absence of the complainant,…