R v QX (No 4)
[2021] ACTSC 246
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Legislation Cited: | Evidence (Miscellaneous Provisions) Act 1991 (ACT) div 4.4.2, div 4.2.4 (repealed), ss 41, 74, 75, 76, 77, 78, 111 Evidence Act 2011 (ACT) ss 55, 103 Crimes Act 1900 (ACT) ss 55, 61, 66 |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 |
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 1900 (ACT) (Crimes Act) (Count 2-11, 13-20);
· One count of committing an act of indecency on a young person between the ages of 10 and 16 years, contrary to s 61(2) of the Crimes Act (Count 1); and
· One count of grooming a young person by engaging in conduct with another person who has a relationship with the young person with the intention of making it more likely that the young person would take part in an act of a sexual nature, contrary to s 66(1)(c) of the Crimes Act (Count 12).
The charges of sexual intercourse with a person between the age of 10 and 16 years and the charge of committing an act of indecency on a person between the ages of 10 and 16 years all relate to the same complainant, BM. The charge of grooming a young person through a third-party relationship has been particularised as the accused communicating with the complainant’s mother (GM) to persuade her that he was a good influence on the complainant and that time spent with him would help the complainant mature.
The prosecution’s case is that the accused engaged in various frequent sexual intercourse with the complainant, who was between 14 and 15 years at the time, for an eleven month period whilst she lived with his family and up until police were alerted an commenced an investigation on 19 June 2019.
Application
By way of the application in proceeding dated 11 June 2020, the accused sought the following orders:
· That pursuant to s 76 of the EMP Act, the accused is granted leave to cross-examine the complainant in relation to her sexual activities in the following respects:
(a) Any sexual intercourse engaged in by the complainant between 5 July 2018 and 19 April 2019.
(b) Any act of sexual intercourse described by the complainant in conversation with the accused between 5 July 2018 and 16 February 2019.
(c) Entries made by the complainant in an electronic record of sexual intercourse kept by her on and after 26 December 2018 as supplied by the AFP on or about 22 June 2019 (referred to as “the sex diary”).
(d) The purpose or purposes of keeping the sex diary; the manner in which the complainant made entries therein; when those entries were made and any conversation or correspondence, whether electronic or otherwise, she had with any person concerning the sex diary; its purpose and its content prior to making it or a copy of it available to the AFP on or about 22 June 2019.
(e) Insofar as necessary, any conversation or correspondence, whether electronic or otherwise, the complainant had with any person after 5 July 2018 concerning consensual or non-consensual sexual intercourse involving her.
The application was made on the following grounds:
· The evidence has substantial relevance to facts in issue; and
· The evidence is a proper matter for cross-examination about credit, in that, if accepted it would be likely to substantially impair confidence in the reliability of the complainant’s evidence.
The application was supported by the following material:
· The transcripts of the complainant’s eight evidence in chief interviews with the police.
· The transcript of the record of conversation between police and Eve Richards dated 17 June 2019.
· The transcript of the record of conversation between police and Oliver Andrews dated 28 November 2019.
· An affidavit of Bridie Harders sworn on 11 June 2020.
Hearing
During the course of the determination of this application, various other applications in this matter were heard on 19 August 2020, 2 November 2020, and 18 December 2020. Various exhibits pertaining to the multiple applications were tendered across these three hearing dates.
For the purposes of this application, it is important to set out the following exhibits.
Exhibit 1
Exhibit 1 in the proceeding is the document referred to in the accused’s application as the “sex diary”. The original of that document is a photograph of a “note” contained within the “Notes” application on the complainant’s iPhone. It is a list of various dates with ‘–’ or a ‘þ’ following the date. In her evidence in chief interviews, the complainant states that a ‘–’ means penile vaginal sexual intercourse with no ejaculation and ‘þ’ means penile vaginal sexual intercourse with ejaculation. Exhibit 1 itself is a typed summarised version of the “note” prepared by counsel for the accused. It will be referred to as Exhibit 1 throughout the judgment.
Exhibit 3
Counsel for the accused relied upon the affidavit of the accused’s solicitor Ms Bridie Harders sworn on 11 June 2020 (the Harders affidavit). On 18 December 2020, counsel for the accused sought to hand up a copy of the Harders affidavit with an annexure, Annexure A, contained within a sealed envelope, Envelope Z. Relevantly the Harders affidavit states why Annexure A was placed in a sealed envelope:
· I am the solicitor for the accused in these proceedings.
· Annexed hereto and marked with the letter “A” is two pages of an evidence in chief interview conducted by investigating police with the complainant on Tuesday the 18th of June 2019.
· The annexure has been appropriately identified and marked by the solicitor before whom this affidavit was sworn and it was then placed in an envelope marked with the letter Z, signed by me and again marked by the solicitor before whom this affidavit was sworn.
· I seek to bring a particular question and answer contained within that transcript to the attention of this Honourable Court in support of the accused’s application for leave to cross-examine the complainant in relation to her sexual activities pursuant to s 76 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT). I seek to do so without drawing to the attention of the Director of Public Prosecutions the particular passage in the evidence in chief interview transcript for fear that the forensic advantage in cross-examining the complainant in relation to that material would be lost were it identified with precision in the course of the hearing of the accused’s application for leave to cross-examine.
· The transcript in question was supplied to me by the Director of Public Prosecutions as part of the prosecution brief in these proceedings and is thus material in the possession of the Director of Public Prosecutions.
· The accused does not seek any wider orders for cross-examination based on the material in the sealed envelope than are sought in his application in proceeding dated 11 June 2020 and as can otherwise be justified. Rather, I seek to bring the material to the attention of the court by way of amplification of the grounds in support of the accused’s application and to illustrate how it would not be possible to cross-examine upon this material in particular without touching upon directly or by necessary implication the complainant’s sexual activities.
Counsel for the prosecution had not seen the contents of Envelope Z and objected to it being received by the Court in those circumstances. Counsel for the accused submitted that the portion of the Harders affidavit adequately identified the relevant evidence in chief interview transcript to sufficiently narrow the document to the prosecution, a document which was in the prosecution brief of evidence. It was again emphasised that the accused did not wish to forego the forensic advantage of having located the relevant portion of the evidence in chief interview transcript. Counsel for the accused also voiced concern that in his experience, prosecutors having been forewarned of an avenue of forensic attack at a pre-trial application, have then obtained supplementary statements in an attempt to neutralise the forensic attack come trial.
It was noted that the High Court have dealt with decisions being made on the basis of material that is not shown to both parties: see HT v The Queen [2019] HCA 40; 269 CLR 403. After a brief adjournment, counsel for the accused no longer pressed the request for Envelope Z to be handed up to Court without the prosecution viewing the material. Counsel for the prosecution inspected Envelope Z and did not object to Annexure A being provided to the Court. The Harders affidavit and Envelope Z became Exhibit 3 in the proceedings. Annexure A contained within Envelope Z will be referred to as Exhibit 3 hereafter.
Legal Principles and Legislative Regime
Division 4.4.2 of the EMP Act provides the legislative regime governing evidence of a complainant’s sexual reputation and activities in a sexual offence proceeding. The present matter is a “sexual offence proceeding” within the meaning of s 41 of the EMP Act.
Evidence of a complainant’s sexual reputation is not admissible in a sexual offence proceeding and is subject to immunity: s 75 EMP Act.
Section 76 of the EMP Act establishes the general immunity for evidence of a complainant’s sexual activities. It provides:
76General 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.
An application for leave pursuant to s 76 must be made in writing. If the proceeding is before a jury, the application for leave must be made in the absence of the jury. If the accused person requests, the application must be heard in the absence of the complainant: s 77 EMP Act.
Section 78 of the EMP Act provides the procedure the Court must follow when deciding whether to grant leave pursuant to s 76:
78Decision 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).
The current div 4.2.2 is in substantially similar terms to former regime set out in div 4.2.4. The principles that the Court applied in respect of the now repealed 4.2.4 continue to apply in respect of the current div 4.2.2 regime: R v Sutton (No 2) [2019] ACTSC 340 at [5].
The purposes of regimes such as div 4.2.2 includes the “protect[ion] of alleged victims of sexual offences from the embarrassment and intrusion upon privacy involved in an investigation of their personal lives”: R v Byczko (No 1) (1977) 16 SASR 507 at 539, cited in R v ST (No 2) [2014] ACTSC 52 at [27] (R v ST (No 2)). Another purpose is to ensure that cross-examination is confined within appropriate boundaries to reduce the risk that “the jury might misuse the evidence”: R v TF [2018] ACTSC 13 at [33] (R v TF).
In respect of s 78(1)(a), “relevance” has the same meaning as it appears in s 55 of the Evidence Act 2011 (ACT) (Evidence Act): R v CH and JW [2010] ACTSC 75 at [44] (R v CH and JW). Section 55 of the Evidence Act provides:
55Relevant evidence
(1)The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
(2)In particular, evidence is not taken to be irrelevant only because it relates only to—
(a)the credibility of a witness; or
(b)the admissibility of other evidence; or
(c)a failure to present evidence.
As to the word “substantial” in s 78(1)(a) of the EMP Act, “substantial” relevance to the facts in issue means “considerable importance”, “concerning the essentials” or “important in material terms”: W v The Queen [2006] TASSC 52; 16 Tas R 1 at [46], applied in R v ST (No 2); R v Alas (No 2) [2017] ACTSC 333 at [9].
R v CH and JW at [67] establishes that determining whether evidence is a “proper matter for cross-examination about credit” pursuant to s 78(1)(b) require the Court to ask:
· Could the evidence substantially affect the assessment of the credibility of the complainant? Section 78(5) EMP Act; s 103(1) Evidence Act 2011 (ACT); and
· Would the evidence, if accepted, be likely to substantially impair confidence in the reliability of the complainant’s evidence? Section s 78(3) EMP Act.
Submissions
(a) Any sexual intercourse engaged in by the complainant between 5 July 2018 and 19 April 2019
Accused Submissions
Counsel for the accused referred to the complainant’s fifth evidence in chief interview which took place on 26 July 2019. During this interview, the complainant told police about someone named “Kyle” who was someone whom she met through a mutual friend whom she refused to name. The complainant informed police that she met Kyle when she was 14 years of age and he was 19 years of age. It was noted that the complainant had told police she was unable to describe Kyle because she did not remember very well what he looked like. The complainant had stated that Kyle had attended the home of the accused at her invitation on a date in October 2018. The accused and his wife were out at the time and the complainant was babysitting their children. The complainant said she went for a drive with Kyle in his Toyota Hilux to McDonald’s before retuning to the accused’s home and engaging in sexual intercourse. The complainant said she had been a virgin prior to have sexual intercourse with Kyle, that the sexual intercourse occurred without the use of a condom, that he ejaculated, and that she thought she was pregnant. The complainant confirmed that that the accused’s wife, TX, had arranged to get her the “morning after pill” as a result of the encounter with Kyle. In the complainant’s eighth evidence in chief interview on 9 April 2020, the complainant identified a photograph of a negative pregnancy test which she said was in relation to the encounter with Kyle.
Counsel for the accused noted that during the course of the complainant’s sixth evidence in chief interview on 15 August 2019, the complainant said that the date recorded in Exhibit 1 on 19 April 2019 probably did not relate to a sexual encounter with the accused. Instead the entry likely related to an encounter with someone whom she eventually identified as “Brandon” whose last name she could not recall. Police were able to identify Brendon Ashworth who confirmed that he met the complainant in March 2020. About two weeks later, he had sexual intercourse with the complainant twice on that occasion and informed police that he ejaculated twice. When asked by police why she had recorded her encounter with “Brandon” in Exhibit 1, the complainant responded that “I don’t know. I think I just popped it on. I’m just not 100% sure, but I’m pretty sure”. It was noted that in the complainant’s fourth evidence in chief interview on 22 June 2019 the complainant had informed police that Exhibit 1 related solely to instances of sexual intercourse with the accused. On this same occasion, the complainant had informed police that the last time she had sexual intercourse with the accused was on 19 April 2019, hence why that date was recorded in Exhibit 1.
Counsel for the accused submitted that the following matters went to the complainant’s credit to which the accused would seek to cross-examine:
· That the complainant could not remember “well” the appearance of Kyle and could not describe him to police.
· That the complainant thought she may have been pregnant to Kyle.
· That the complainant did not know “Brandon’s” surname.
Counsel for the accused noted that to cross-examine the complainant on the above matters the very questions would disclose the complainant’s sexual activities in order to have meaning and significance.
In respect of the photograph of the negative pregnancy test, it was submitted that it being related to the encounter with Kyle seemed an “unlikely explanation” in light of the anticipated evidence to be given by TX that she arranged for the complainant to obtain the “morning after pill”. Counsel for the accused submitted that cross-examination as to the photograph of the negative pregnancy test should be allowed because it is a matter likely to substantially impair confidence in the reliability of the complainant’s evidence.
Prosecution Submissions
Counsel for the prosecution submitted that the accused should not be granted leave pursuant to s 76 of the EMP Act in relation to “any sexual intercourse engaged in by the complainant between 5 July 2018 and 19 April 2019”. It was submitted that such evidence would not have substantial relevance to the facts in issue, nor was it a proper matter for cross-examination about the complainant’s credit.
It was submitted that the key facts that will be in issue at trial are whether the accused engaged in sexual intercourse with the complainant, committed an act of indecency on the complainant, and groomed the complainant by engaging in conduct with a third party who has a relationship with the young person (BM). The prosecution asserted that evidence that the complainant engaged in sexual intercourse with any person other than the accused between 5 July 2018 and 19 April 2019 could not rationally affect the assessment of the probability of the existence of these facts in issue: s 55 Evidence Act; R v CH and JW at [57].
The prosecution also submitted that it was unclear whether cross-examination of the complainant in the general manner as proposed was capable of meeting the threshold of could substantially affect the assessment of the complainant’s credibility or substantially impair confidence in the reliability of her evidence: R v CH and JW at [67].
In respect of the accused’s submission as to the appearance of Kyle, the prosecution referred to the complainant’s evidence being that she only met Kyle “once” in person. It was noted that when police asked the complainant to describe Kyle in the evidence in chief interview on 26 July 2019, the complainant had responded that she did not “remember what he looks like…not that well anyway”. The prosecution referred to the complainant’s reluctance thereafter to discuss her relationship with Kyle during this interview. The prosecution submitted that in light of the complainant’s evidence being that she only met Kyle once, it was unclear how cross-examination of the complainant as to her inability or reluctance to describe Kyle could substantially affect the assessment of her credibility or impair confidence in the reliability of her evidence.
As to the fear of pregnancy addressed in the accused’s submissions, the prosecution noted that the complainant’s evidence in the evidence in chief interview on 16 July 2019 is that Kyle did not use protection and she thought she was pregnant, and it was a “big deal”. It was submitted that even if it was accepted that TX arranged for the complainant to take the “morning after pill”, it was not implausible that the complainant also took a pregnancy test for confirmation in light of her age and inexperience.
The prosecution also addressed the issue raised in the accused’s submissions as to “Brandon’s” surname. The complainant’s evidence given during the evidence in chief interview on 15 August 2019 is that the entry in Exhibit 1 on 19 April 2019 may have related to a person other than the accused named “Brandon”, who was a friend of the complainant’s sister. Noting that police have spoken with Brendon Ashworth who confirmed he had sexual intercourse with the complainant, the prosecution submitted it was also unclear how cross-examination in relation to the complainant’s inability to recall “Brandon’s” surname could substantially affect the assessment of her credibility or impair confidence in her credibility.
Accused Submissions in Reply
Counsel for the accused submitted that the complainant’s “professed inability to describe Kyle” is a proper matter for cross-examination for at least three reasons. First, counsel submitted that it seems highly unlikely that the complainant would have a fractured recollection of his appearance in these circumstances. It was submitted that the more likely explanation is that the complainant had elected to feign a limited recollection so that her story could not be checked by police. Such a matter would go substantially to her credit.
Second, in the alternative counsel submitted that the complainant made a conscious decision to provide an obviously unhelpful description of Kyle as she wished to shield Kyle from police investigation. It was emphasised that on the complainant’s account, Kyle was 19 and she was 14 at the time of the encounter.
Third, counsel also submitted that if the complainant had sexual intercourse with Kyle at the accused’s home surreptitiously on one occasion, then “as seems almost inescapably correct” she may have done so on other occasions.
(b) Any act of sexual intercourse described by the complainant in conversation with the accused between 5 July 2018 and 16 February 2019
Accused Submissions
Counsel for the accused noted that it is anticipated that the accused and TX may give evidence, provided leave was granted pursuant to this application, that the accused had a conversation with the complainant in which the complainant said she had lost her virginity when she was younger to a male described as a “tradie” in a car.
Reference was also made to the record of conversation given by Eve Richards, the complainant’s best friend. On a number of occasions across the complainant’s evidence in chief interviews, the complainant had informed police that she confided in Eve by text or Snapchat when she had sexual contact with the accused from time to time. In her record of conversation, Eve told police that she understood that the complainant had been a virgin prior to having sexual intercourse with the accused. Eve also said that she did not believe the complainant at first when she said she had sexual intercourse with the accused and thought she was just bragging.
It was submitted that is immaterial whether the history given to the accused about the tradie in the car was true or not. Counsel noted that if that was a truthful account of the complainant’s sexual activity, it highlights the lies to both what the complainant told police about the encounter with Kyle and what she told Eve about her alleged encounter with the accused.
Counsel submitted that if what the complainant said was untruthful, it demonstrated that the complainant has a tendency to tell complex lies concerning her sexual experience and sexual activities. It was submitted that in any event, the evidence has substantial relevance to the issue of whether the complainant has been truthful concerning the allegations in respect of the accused. Counsel further submitted that the evidence is a matter which if accepted as truthful or untruthful would be likely to substantially impair confidence in the reliability of the complainant’s evidence.
Prosecution Submissions
The prosecution understood that (b) related to an alleged conversation between the accused and complainant in which the complainant had stated she had lost her virginity when she was younger to a “tradie” in a car. The prosecution noted that the complainant’s evidence in the evidence in chief interview on 26 July 2019 was that she had told the accused that she had engaged in sexual intercourse previously, but she actually had not at this point in time. In the same interview, the complainant had informed police that she had engaged in sexual intercourse with Kyle because she did not want the accused to take her virginity.
In reference to the accused’s submission in respect of Eve Richards’ evidence, the prosecution submitted that the accused had misconstrued the evidence. It was not that the complainant had told Eve Richards that she lost her virginity to the accused. Rather, the prosecution stated that Eve Richards’ evidence is that she thought the applicant had lost her virginity to the accused due to bleeding, which Eve assumed was due to it being the first time she had engaged in sexual intercourse.
The prosecution submitted that evidence of any sexual intercourse described by the complainant in conversation with the accused between the stipulated dates did not have substantial relevance to the facts in issue. It was submitted that the circumstances in which the complainant lost her virginity could not rationally affect the assessment of the probability of the existence of the ultimate facts in issue.
The prosecution further submitted that the evidence could not substantially affect the assessment of the complainant’s credibility or substantially impair confidence in the reliability of the complainant’s evidence. This is in light of the complainant volunteering in her evidence in chief interview that she had misrepresented to the accused that she was not a virgin prior to engaging in sexual intercourse with Kyle.
In the alternative, the prosecution submitted that in respect of (b), leave to cross-examine the complainant should be limited to the specific conversation between the accused and the complainant, pursuant to R v Stevens (No 1) [2017] ACTSC 295 at [11].
(c) Entries made by the complainant in Exhibit 1;
(d) The purpose or purposes of keeping Exhibit 1; the manner in which the complainant made entries therein; when those entries were made and any conversation or correspondence, whether electronic or otherwise, she had with any person concerning Exhibit 1; its purposes and its content prior to making it or a copy of it available to the AFP on or about 22 June 2019
Accused Submissions
Counsel for the accused noted that the complainant had given police conflicting accounts of what she says is recorded in Exhibit 1, in light of her stating that 19 April 2019 may have related to “Brandon”. Insofar as any entries therein between 26 December 2018 and 19 April 2019 do not, or may, not relate to occasions of alleged sexual intercourse with the accused, it was submitted that evidence has substantial relevance to the facts in issue at trial, where individual counts on the indictment have been particularised by reference to entries in Exhibit 1.
It was submitted that insofar as it may be shown that the complainant misled or attempted to mislead investigating police as to the significance of entries in Exhibit 1, this was another matter which would be likely to substantially impair confidence in the reliability of the complainant’s evidence, if accepted by the jury.
Prosecution Submissions
The prosecution accepted that cross-examination in relation to whether entries in Exhibit 1 may not in fact relate to occasions of sexual intercourse with the accused has substantial relevance to the facts in issue. This acceptance was made in light of the complainant’s evidence in her evidence in chief interview on 15 August 2019 that the entry in Exhibit 1 for 19 April 2019 may have related to “Brandon”. The prosecution submitted that leave to cross-examine the complainant should be limited to the forensic purpose of exploring whether the entries in Exhibit 1 relate to the accused.
The prosecution again accepted that leave should be granted to cross-examine the complainant in relation to whether there is an inconsistency between her evidence as to the purposes for keeping Exhibit 1 and her evidence relating to the entry in Exhibit 1 on 19 April 2019. The prosecution further accepted that the leave should extend to the manner and circumstances in which the entries in Exhibit 1 were made to the extent that it is necessary for the purpose of exploring whether there is any such inconsistency.
It was submitted that there is no evidence to suggest that any entries apart from the entry on 19 April 2019 relate to any person other than the accused. The prosecution submitted that it would be premature for the Court to grant leave in the broad terms as proposed by the accused. Instead, the prosecution stated that if the complainant were to give evidence that raised a specific issue as to the credibility or reliability of the complainant’s evidence regarding Exhibit 1, a further application pursuant to s 76 of the EMP Act ought to be made rather than an advance ruling: R v TF at [31].
Accused Submissions in Reply
Counsel for the accused submitted that the existence of Exhibit 1 is “unusual and unique”. It was noted that the electronic contemporaneous recording of alleged acts of sexual intercourse and the complainant’s almost total incapacity to recall details of recorded acts within a very short time thereafter demonstrated unreliability and artifice. This submission was also made in relation to the complainant’s inability to recall details of significant dates such as New Years Eve 2018 and Valentines Day 2019, as well as a date where Exhibit 1 recorded seven instances of sexual intercourse. Counsel for the accused gave an example of such cross-examination in relation to the Valentines Day 2019 entry as a question saying “and you professed, when speaking to police, to regard yourself as in love with this man, and yet you do not recall an act of sexual intercourse on what might be thought an important day”. Counsel submitted that the very nature of the complainant’s attempt at self-corroboration invites cross-examination.
It was submitted that the prosecution’s reformulation of not opposing leave to “whether entries in Exhibit 1 relate to some person other than the accused” was a “disingenuous position” and a simplistic appreciation of the art of cross-examination. It was submitted that “the walk-up wet fish in the face type of cross-examination” which the prosecution sought was rarely successful nor persuasive.
Counsel for the accused disagreed that an advance ruling was inappropriate in this matter and submitted that requiring further applications would prolong the complainant’s involvement at court and disturb the cross-examination.
(e) Insofar as necessary, any conversation or correspondence, whether electronic or otherwise, the complainant had with any person after 5 July 2018 concerning consensual or non-consensual sexual intercourse involving her
Accused Submissions
Counsel for the accused referred to an incident that the complainant recounts in her sixth evidence in chief interview on 15 August 2019 where she alleges that the accused picked her up with his three daughters and took her to accommodation in Queanbeyan where she and her father were then living. During this interview, the complainant gave a detailed account of an alleged sexual encounter that is alleged to have occurred at the Queanbeyan Crest Motel. The complainant stated that immediately after the event, she sent a Snapchat message to a male friend named “Ollie” telling him what happened using words to the effect of “oh, my god. This happened. I don’t know if, like, it was okay or not, because he just, like, kind of left after”. A second message was sent by the complainant saying, “that’s rude”.
Counsel for the accused noted that police had obtained a statement from Oliver Andrews dated 28 November 2019. It was noted that Oliver did not corroborate the complainant’s statement to police to the effect she told him what she alleges happened in Queanbeyan. Counsel further referenced Oliver telling police that at some stage the complainant told him she had been raped and that he told the complainant he did not believe her as she had previously been untruthful in her dealings with him. Beyond recounting Oliver’s statement, counsel for the accused did not expand on ground (e) in submissions. From the hearing, it appears this particular matter was abandoned.
Prosecution Submissions
The prosecution submitted that the accused should not be granted leave with respect to (e) as evidence pertaining to this could not rationally affect the assessment of the probability of the existence of the facts in issue. The prosecution also noted that akin to (a), it was unclear how cross-examination of the complainant in respect to (e) would be capable of substantially affecting the assessment of the complainant’s credibility or substantially impair confidence in the complainant’s reliability. The prosecution repeated its submission in respect of (d) pursuant to R v TF at [31] that should any evidence given by the complainant raise a specific issue as to her credibility or reliability, a further application ought to be made instead of an advance ruling.
Consideration
At the hearing on 18 December 2020, the matters to which the accused sought to cross-examine the complainant on were reformulated and refined. After robust discussion and submissions, what emerged was that the parties were broadly aligned in respect of the reformulated matters. It was not contentious between the parties that the reformulated matters had substantial relevance to the facts in issue and are proper matters for cross-examination of the complainant as to credit.
The reformulated matters were as follows:
(1) Entries made by the complainant in Exhibit 1;
(2) The complainant’s assertions in relation to her loss of virginity;
(3) The complainant’s discussions with her friend Eve Richards; and
(4) The matter identified within Exhibit 3.
In relation to (2), the assertions in relation to her loss of virginity, counsel for the prosecution noted that the complainant volunteers that she had sexual intercourse with Kyle in the evidence in chief interview on 26 July 2019. In those circumstances, counsel for the prosecution sought leave to lead that evidence when the complainant is in evidence in chief, as the complainant would also be cross-examined on it by counsel for the accused. Counsel for the accused did not wish to be heard against the prosecution being granted leave to adduce this evidence and did not take the point that the application was not in writing, as required by s 77(a) of the EMP Act. I formally excused the prosecution from complying with the requirement that the application be in writing.
I granted leave for the accused to cross-examine the complainant on the matters (1) through to (4). The prosecution conceded that the matters have substantial relevance to the facts in issue and are proper matters for cross-examination about credit. I am satisfied that those concessions were properly made, having considered the written submissions and oral submissions of both parties.
I also granted leave for the prosecution to lead evidence in the evidence in chief interview on 26 July 2019 in relation to Kyle, as it relates to matter (2). I note that the application was not made in writing by the prosecution but that there was no objection to that course by counsel for the accused. I am satisfied that this is a matter that has substantial relevance to the facts in issue.
In summary, pursuant to s 76 of the EMP Act the accused is granted leave to cross-examine the complainant in relation to (1) to (4). I am satisfied under s 78 that the evidence has substantial relevance to the facts in issue.
Orders
On 18 December 2020, I made the following orders:
(1) The accused is granted leave to cross-examine the complainant on:
(1) Entries made by the complainant in Exhibit 1;
(2) The complainant’s assertions in relation to the loss of her virginity;
(3) The complainant’s discussions with her friend Eve Richards;
(4) The matter identified within Exhibit 3.
(2) The prosecution is excused from making an application pursuant to s 76 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) in writing.
(3) The prosecution is granted leave to lead evidence from the complainant in relation to Kyle as referenced in the evidence in chief interview on 26 July 2019.
| I certify that the preceding sixty-five [65] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson Associate: Rhiannon McGlinn Date: 29 September 2021 |
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