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R v QX (No 4)

R v QX (No 4)

Case [2021] ACTSC 246 18 December 2020

Admissibility of Evidence

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v QX (No 4)
Citation:	[2021] ACTSC 246
Hearing Dates:	19 August 2020, 2 November 2020 and 18 December 2020
DecisionDate:	18 December 2020
ReasonsDate:	29 September 2021
Before:	Loukas-Karlsson J
Decision:	See [65]
Catchwords:	CRIMINAL LAW – EVIDENCE – pre-trial 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 – proper matter for cross-examination about credit – leave granted
Legislation Cited:	Evidence (Miscellaneous Provisions) Act 1991 (ACT) div 4.4.2, div 4.2.4 (repealed), ss 41, 74, 75, 76, 77, 78, 111 Evidence Act 2011 (ACT) ss 55, 103 Crimes Act 1900 (ACT) ss 55, 61, 66
Cases Cited:	HT v The Queen [2019] HCA 40; 269 CLR 403 R v Alas (No 2) [2017] ACTSC 333 R v Byczko (No 1) (1977) 16 SASR 507 R v CH and JW [2010] ACTSC 75 R v QX [2021] ACTSC 187 R v ST (No 2) [2014] ACTSC 52 R v Stevens (No 1) [2017] ACTSC 295 R v Sutton (No 2) [2019] ACTSC 340 R v TF [2018] ACTSC 13 W v The Queen [2006] TASSC 52; 16 Tas R 1
Parties:	The Queen (Crown) QX ( Accused)
Representation:	Counsel S Jerome ( Crown) J Pappas ( Accused)
Solicitors ACT Director of Public Prosecutions ( Crown) Aulich Criminal Law ( Accused)
File Number:	SCC 58 of 2020

LOUKAS-KARLSSON J:

Introduction

QX (the accused) filed an application in proceeding dated 11 June 2020 seeking leave to cross-examine BM (the complainant) in relation to her sexual activities pursuant to ss 76 and 78 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (EMP Act). The prosecution submitted that the accused should be granted leave on a limited basis and that the application should otherwise be dismissed. On 18 December 2020, both parties made submissions in respect of the application and came to a consensus. I granted the revised orders sought with written reasons to follow, as required by s 78(4) of the EMP Act.

In order to protect the identity of the complainant (s 74 of the EMP Act) and the accused (s 111(2)(c) EMP Act), persons referred to in these reasons have been anonymised by the substitution of different names. The key to the anonymisation is contained in a schedule to these reasons, which will be provided to the parties, kept on the court file, and not published on the internet.

Background of Matter

On 30 October 2020, the prosecution filed a fresh indictment in this matter after a stay application advanced by the accused was refused on 19 August j2020: R v QX [2021] ACTSC 187. The indictment against the accused contains the following offences:

· 18 counts of sexual intercourse with a person between the age of 10 and 16 years, contrary to s 55(2) of the Crimes Act

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 QX (No 4)

Details

AGLC: R v QX (No 4) [2021] ACTSC 246
Case: [2021] ACTSC 246
Decision Date

CaseChat Overview and Summary

In the case of R v QX (No 4), the Supreme Court of the Australian Capital Territory was required to determine whether the accused should be granted leave to cross-examine the complainant in relation to her sexual activities. The legal issues before the court included whether the evidence had substantial relevance to the facts in issue and whether it was a proper matter for cross-examination about credit. The court examined the legislative provisions and previous case law to decide on the matter. Ultimately, the court granted the accused leave to cross-examine the complainant on certain matters, finding that the evidence had substantial relevance to the facts in issue and was a proper matter for cross-examination about credit. The prosecution was also granted leave to lead evidence in relation to a specific conversation between the accused and the complainant. The court's decision was based on a careful analysis of the facts and legal principles, ultimately balancing the protection of the complainant's privacy and the need for a fair trial.

Orders