R v NX - [2019] ACTSC 55

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v NX
Citation:	[2019] ACTSC 55
Decision Date:	5 March 2019
ReasonsDate:	6 March 2019
Before:	Mossop J
Decision:	See [6]
Catchwords:	CRIMINAL LAW – EVIDENCE – application to adduce evidence of complainant’s prior sexual activities – operation of s 76 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) – operation of s 78 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) – s 76 does not apply to evidence of sexual activities of complainant and accused
Legislation Cited:	Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 76, 76(1), 76(2), 78, 78(4)
Cases Cited:	R v CH and JW [2010] ACTSC 75 R v Fernando [2009] ACTSC 137; 238 FLR 64 R v NO [2017] ACTSC 372
Parties:	The Queen (Crown) NX (Accused)
Representation:	Counsel K Lee (Crown) R Davies (Accused)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused)
File Numbers:	SCC 212 of 2018 SCC 216 of 2018 SCC 217 of 2018

MOSSOP J:

Introduction

The accused has pleaded not guilty to charges of sexual intercourse without consent and sexual assault in the third degree. Both prosecution and defence have applied for leave to adduce evidence of the sexual activities of the complainant. Both applications relate to sexual activities between the complainant and the accused. Sections 76 and 78 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) provide:

76 General 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.

…
78 Decision 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).

So far as the Crown’s application was concerned, the evidence for which leave was sought was of statements made by the…

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 NX

Details

AGLC: R v NX [2019] ACTSC 55
Case: [2019] ACTSC 55
Decision Date: 5 March 2019

CaseChat Overview and Summary

In the case of R v NX, the appellant sought to introduce evidence concerning the complainant's past sexual activities in a trial for sexual assault. The case was heard in the Supreme Court of the Australian Capital Territory. The primary dispute centered on the admissibility of this evidence under sections 76 and 78 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT), which relate to the exclusion of evidence of the complainant's sexual experiences with anyone other than the accused.

The court was required to determine whether section 76 of the Act, which generally excludes evidence of the complainant's sexual experiences with others, applied in this case. Additionally, the court had to consider section 78, which permits the introduction of such evidence if it is relevant to an issue in the case other than the complainant's character. The appellant argued that the evidence was pertinent to the issue of consent, which was a critical element of the charge against him.

The court ruled that section 76 did not apply because the evidence in question related to the sexual activities of both the complainant and the accused. Therefore, the court found that this evidence could be considered under section 78. The court held that the evidence was relevant to the issue of consent and was not solely for the purpose of impugning the complainant's character. Consequently, the trial judge's decision to admit the evidence was upheld.

The court ordered that the decision of the trial judge to admit the evidence of the complainant's prior sexual activities with the accused was correctly made, and no error was found in the process.

Orders

Orders of the court

See [6]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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