R v Redmond
[2022] ACTSC 125
•27 May 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Redmond |
Citation: | [2022] ACTSC 125 |
Hearing Date: | 27 May 2022 |
DecisionDate: | 27 May 2022 |
Before: | Elkaim J |
Decision: | (a) The passages highlighted in yellow in the transcript of the record of interview with the complainant carried out on 11 February 2020 are to be edited from the interview. (b) The passages highlighted in red in the same transcript are to be dealt with in accordance with the rulings made in [10] herein. (c) Leave is given to adduce evidence pursuant to s 77 of the EMPA as set out in [11] and [12] herein. |
Catchwords: | CRIMINAL LAW – PRE-TRIAL APPLICATION – Admissibility of evidence – application for edits to the complainant’s evidence in chief interview – admissibility of evidence of complainant’s sexual activities other than those the subject of the charges |
Legislation Cited: | Evidence Act 2011 (ACT) s 78 Evidence (Miscellaneous Provisions) Act 1991 (ACT) ss 51, 76 |
Cases Cited: | Partington v The Queen [2009] NSWCCA 232; 197 A Crim R 380 |
Parties: | The Queen (Crown) James Redmond (Accused) |
Representation: | Counsel A Chatterton (Crown) R Baldeo (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) David Healey Solicitors (Accused) | |
File Number: | SCC 17 of 2021 |
Elkaim J:
Mr Redmond is due to face trial on a range of sexual offences said to have been committed on 6 February 2020.
There are three applications in proceeding before the Court today:
(a)An application by the Crown, filed on 10 May 2022, for the editing of evidence contained in a recorded interview between a police officer and the complainant on 11 February 2020.
(b)An application by the Crown, filed on 10 May 2022, to adduce evidence of the sexual history of the complainant prior to the alleged offences.
(c)An application by the accused, filed on 16 May 2022, for the editing of evidence in the same recorded interview which is the subject of the Crown’s application.
The editing applications are made pursuant to s 51(3)(b) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (EMPA). The application in respect of the complainant’s history is made pursuant to ss 76 and 77 of the same Act.
The Crown applications are supported by two affidavits of Ms Timara Callaghan, affirmed on 5 May and 6 May 2022 respectively. The accused’s application is supported by an affidavit of Ms Claire Natoli, affirmed on 12 May 2021.
It is necessary to set out a brief background to the asserted offending. The allegations are as follows:
The complainant was a sex worker at a brothel. The accused engaged her services on 6 February 2020. Initially the services were to be provided at a ‘call out’ address. However, upon arriving at the address the complainant was concerned about the number of persons present. She invited the accused to travel with her to the brothel for the performance of the services.
The pair returned to the brothel where the accused paid for the intended services. Prior to any activity the complainant indicated that she would not perform oral sex upon the accused if he was not wearing a condom. She also endeavoured to ask him questions constituting a health check. In the shower the accused attempted to force the complainant to have oral sex with him without a condom. In addition the accused requested anal sex. The complainant said no.
Eventually the complainant was able to place a condom on the accused’s penis and provide him with oral sex. This was followed by penile-vaginal intercourse. The complainant then began to get dressed. She was grabbed from behind and pulled to the bed by the accused. He again requested oral sex without a condom. She again refused. Eventually she applied another condom and oral sex occurred. The accused then restrained the complainant and a struggle commenced. During the struggle the accused tried to have unprotected intercourse with the complainant. He also punched her anus and attempted to insert his fist. Penetration was achieved. In addition the accused tried to insert his fist into the complainant’s vagina. Eventually the complainant was able to get assistance from the brothel’s staff.
The parties prepared a copy of the interview in which they have highlighted, in yellow, those parts of the interview which they agree should be removed from the interview. I will make an order accordingly in respect of these passages.
The transcript also has passages highlighted in red indicating disagreement between the parties. Rulings on these passages will deal with the editing applications and some of the s 77 material.
(i)Page 5: “which explains my injuries on my legs”. The accused says this is inadmissible opinion evidence. The Crown says it is lay opinion evidence admissible under s 78 of the Evidence Act 2011 (ACT). I think the evidence is not admissible. It is not necessary “to obtain an adequate account or understanding of what the person perceived…” (Partington v The Queen [2009] NSWCCA 232; 197 A Crim R 380 at [46]).
(ii)Pages 23 and 24: Questions 237 to 248 inclusive: these passages form part of the Crown’s application to adduce evidence of the complainant’s prior sexual activity. The Crown submitted that the evidence established the complainant’s capacity or experience in negotiating terms of service with clients. In my view the evidence goes more to the complainant’s record-keeping rather than her negotiating practices. Ultimately, the Crown limited its application to Questions 237 and 238 which I will allow. The balance are excluded.
(iii)Page 24: Questions 249 to 254 inclusive: the Crown relies on these passages on the question of consent. I think they are relevant for that purpose and they may remain.
(iv)Page 24: Questions 255 to 258 inclusive: the Crown says these passages establish the complainant’s history of keeping boundaries with clients. I do not see the relevance to the present facts plus the allegations cannot be tested. These questions are not allowed.
(v)Page 30: Question 325: “And I was with an ex-alcoholic and I know what stale scotch smells like. That’s what it smelt like. That he’d been drinking scotch all day”. The accused says that evidence of a past relationship is not relevant. I agree. The complainant has already stated that she could smell stale scotch emanating from the accused. If she is challenged on this evidence then her previous experience might become relevant. The words are not allowed.
(vi)Page 31: Question 343: “He knew what I wasn’t going to do. But he still went ahead with booking”. The complainant is giving evidence of matters in the mind of the accused. The evidence is not allowed.
(vii)Page 36: Question 397: I think the evidence is relevant but requires the exclusion of the following sentence: “Like, of your service, how well do you think he comprehended everything that was explained to him?”.
(viii)Page 37: Question 411: “I have never had one make me bleed. I’ve never had one make me bruise”. The Crown says the words are relevant to consent. The answer already contains the relevant evidence. The contested passage is not relevant and should be removed.
(ix)Page 38: Questions 420 to 425 inclusive: The accused is being measured against the actions of two other clients of the complainant. The fact that the accused pulled her harder than two other particular persons is not relevant. After discussion, I indicated I would allow Question 420 up to the word “ask” together with Questions 424 and 425 (other than as already excluded by consent). The balance of these passages are excluded.
(x)Page 40: Questions 439 to 442 inclusive: The Crown conceded this edit.
(xi)Page 42: Question 465: “because they can sabotage it in any shape and form they want to”. The complainant said that the sex workers put on the condoms. The balance of the answer is not relevant. It should be removed.
(xii)Page 43: Question 485: “and then went hammer in hole at 100 – he looked like a jackrabbit”. This is the complainant’s description of the accused’s actions. They are descriptive but provide her perception of his conduct. The words may remain.
(xiii)Page 55: part of Question 629 and Questions 630 and 631: The evidence about the injuries is speculative. The answer to Question 631 is not relevant. These passages should be removed.
(xiv)Page 60: Question 691: This is apparently opinion evidence but is complicated by the information that the complainant was menstruating at the time. This renders her opinion highly speculative. The question should be excluded.
(xv)Page 60: Question 700: The Crown agreed to this edit.
(xvi)Page 67: Question 791: The parties ultimately agreed this question should be removed.
(xvii)Page 68: Questions 792 to 798 inclusive: The accused says these passages are repetitive and leading. They are to a degree a summary by the police, but the complainant introduces qualifications adding factual content. I think the passages should remain.
(xviii)Page 68: Questions 801 to 803 inclusive: I think Questions 801 and 802 are simply repetitive. Question 803 is repetitive and leading. In addition, the answer is speculative and vague. These passages should be removed.
(xix)Page 69: Questions 808 to 819 inclusive: I think these passages are generally either repetitive, leading or contain unsubstantiated speculation. However there is some relevant information in Question 813 which may remain other than “and I reckon he got off on it”. The balance should be removed.
(xx)Page 76: Question 911: I think this passage is admissible as to the time consent was withdrawn but the following words should be excluded: “Do you consider he would have understood at that point that you had – that you were withdrawing your consent? A. Yeah”. (The rest of the answer is allowed).
(xxi)Page 80: Questions 951 to 959 inclusive: The accused says these passages are inadmissible opinion. I disagree, I think they are the complainant’s lay opinion of the injuries she had suffered. I do however exclude the whole of the answer to Question 953 after the word “vagina”.
To the extent not already covered, the application to adduce evidence of previous sexual experiences is allowed in respect of the following questions:
1.Questions 20–29;
2.Questions 140–190;
3.Questions 193–200;
4.Questions 411–438 (subject to the editing in [10] (viii) and (ix) above); and
5.Questions 880–900.
In respect of Questions 237 and 238, these questions fall within this category.
Orders
(a)The passages highlighted in yellow in the transcript of the record of interview with the complainant carried out on 11 February 2020 are to be edited from the interview.
(b)The passages highlighted in red in the same transcript are to be dealt with in accordance with the rulings made in [10] herein.
(c)Leave is given to adduce evidence pursuant to s 77 of the EMPA as set out in [11] and [12] herein.
| I certify that the preceding twelve [12] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: |
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