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, if an accused person in the proceeding requests.

53Decision to give leave under s 51

(1)The court must not give leave under section 51 (General immunity of evidence of complainant’s sexual activities) 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 51, 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 first application

1. Counts 1 and 2 arose out of an incident in early 2011 in which, the complainant says, she went to the accused’s home late at night in response to his invitation. When she arrived, she says, he seemed to be intoxicated, and was “different”. He forced her up against a wall, subjected her to various forms of rough treatment which left visible marks on her body, and then had sexual intercourse with her despite her clear indications (in words and by physical resistance) that she was not consenting.

1. An application was made, in accordance with s 52, on behalf of the accused. The application initially only sought leave to cross-examine the complainant about aspects of her sexual relationship with the accused, but later an amended application was made also seeking leave for the accused to give evidence about that issue.

1. An affidavit from the accused’s solicitor said that he expected that the accused would give evidence that his relationship with the complainant involved “rough sex” in which there was:

i.Physical restraint during sexual intercourse by hands and other means;

ii.Grabbing around the throat during intercourse;

iii.Consensual slapping of the complainant during sexual intercourse;

iv.Sucking during sexual intercourse, resulting in “Hickies” and other marks;

1. The giving of leave was not opposed by the Crown.

Was leave needed?

1. In R v Fernando [2009] ACTSC 137; 238 FLR 64, I concluded that s 51(2) did not restrict the admissibility, in a sexual offence proceeding, of evidence of any sexual activities between the complainant and the accused, although the evidence would still not be admissible unless it was “relevant” in the trial for the purposes of the Evidence Act (these days, the Evidence Act 2011 (ACT)).

1. If that conclusion was correct, then the real question in my view was not whether leave was needed by the accused in this case, but whether the evidence of other sexual activity between the complainant and the accused was relevant for Evidence Act purposes.

1. If that conclusion was not correct, and leave was required, the question was to some extent the same, since under s 53(1) of the EMP Act, a finding of relevance (or rather, substantial relevance) is one of the two bases on which leave may be given for the purposes of s 51.

Is the evidence relevant?

1. The accused’s claim that his sexual relationship with the complainant was characterised by consensual “rough sex” had substantial relevance to the extent that it offered an alternative interpretation of apparently incriminating evidence that would presumably be given by the complainant to the effect that the injuries suffered by her were inflicted by the accused in the course of engaging in non-consensual sexual intercourse. I was satisfied that, on that basis, the evidence sought to be led, both in cross-examination of the complainant and in evidence-in-chief likely to be given by the accused, had substantial relevance at least to the facts in issue in relation to counts 1 and 2, and therefore, that it was also relevant for the purposes of the Evidence Act.

1. In this case, the evidence sought to be drawn from the complainant in cross‑examination, and given by the accused, was expected to be directly relevant to the fact in issue.  Leave was not sought on the basis that the matter would be a proper matter for cross-examination as to credit. Accordingly, there was no need to consider whether evidence that the complainant and the accused had a relationship involving “rough sex”, if accepted, would be likely to substantially impair confidence in the reliability of the complainant’s evidence, so as to be also a proper matter for cross-examination as to credit.

Conclusion

1. Accordingly, for the reasons set out at [12] above, I gave leave, if it were necessary at all, for the complainant to be cross-examined by defence counsel, and for the accused to give evidence, about the specific aspects of the complainant’s sexual relationship with the accused as set out at [7] above.

The second application

1. Later in the trial, a second application was made for leave under s 51. The evidence concerned was not clearly evidence of sexual activity by the complainant, and whether it satisfied either limb of s 53(1) was also not so clear.

1. The background to this second application was that the complainant gave evidence that after the early 2011 incident giving rise to counts 1 and 2, she did not see the accused for some weeks. In due course, however, they resumed their sexual relationship, and it continued, with several more “separations”, until they finally separated in mid-2015. During that period, the complainant gave birth to two children fathered by the accused, the first one of whom was conceived in early 2012.

1. The complainant was asked why she resumed her relationship with the accused after what she says was a violent rape, and she explained that she was “madly in love with him”.

1. Defence counsel, however, wanted to ask the complainant about a suggestion that in or around 2012 she had been using a dating website, and had spoken to other men about dating. Counsel submitted:

(a)that an admission by the complainant that she had been communicating with other men via a dating website in the course of her on-again off-again relationship with the accused would cast doubt on her claim that she had been “madly in love” with him;

(b)that this would in turn cast doubt on whether her claimed love for him was why the alleged violent rape had not led her to end the relationship; and

(c)that this would in turn raise the alternative possibility that there had been no violent rape.

Was leave needed?

1. In considering whether to grant leave, I indicated, first, that I was not convinced that simply using a dating website amounted to sexual activity.

1. It may be that in respect of some such websites, evidence could be brought to the effect that the website involved some kind of “online sex”. However, no such evidence was foreshadowed, and I saw no basis for concluding that using a website that simply enables users to arrange dates with other users of the website amounts to “sexual activity” any more than signing up to an old-fashioned introduction agency would constitute “sexual activity”.

1. However, in case this conclusion was incorrect, I again considered the appropriateness of granting leave to the defence to lead the evidence.

Should leave be given?

1. Defence counsel submitted orally that the evidence satisfied both limbs of s 53(1), in that it had substantial relevance to a fact in issue (namely the commission of the alleged rape the subject of counts 1 and 2) and that it was a proper matter for cross-examination about credit.

1. Again, I accepted that the evidence could be relevant to the facts in issue in relation to counts 1 and 2, via the reasoning relied on by the accused and explained at [18] above, although the strength and logic of that reasoning was not indisputable. In fact, counsel’s argument seemed to me to be unduly simplistic, in that the various propositions making up the argument seemed to underestimate the complexities of human emotions and behaviour and also, possibly, the curiously addictive nature of online interactions of any sort. However, whether the propositions advanced by defence counsel would survive rational scrutiny seemed to me to be a question properly left to the jury in this case.

1. I did not, however, accept that a person who claims to be “madly in love” with someone and yet talks to other people via an online dating site is therefore, in the abstract, a person whose credibility is suspect.

1. That is, the evidence of the complainant’s activities while she claimed to be madly in love with the accused was relevant and admissible only because the jury might have considered:

(a)that the complainant’s participation in those activities was inconsistent with her claim of being madly in love with the accused;

(b)that her claimed passion for the accused therefore did not explain her willingness to stay with him despite the alleged violent rape; and

(c)that another possible explanation for that willingness was that there had been no violent rape.

1. The evidence was not admitted as being a proper matter for cross-examination about credit generally.

Conclusion

1. In response to the second application I gave leave, if it were necessary at all, for the complainant to be cross-examined by defence counsel (and for the accused to adduce evidence if necessary) about her use of a dating website around 2012.

Reasons

1. Under s 53(4) of the EMP Act, a court that gives leave under s 51 must give written reasons for that decision. These are those reasons.

I certify that the preceding twenty-eight [28] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold.

Associate:

Date: 11 December 2017