R v Seneviratne - [2021] ACTSC 277

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Seneviratne
Citation:	[2021] ACTSC 277
Hearing Date:	20 October 2021
DecisionDate:	21 October 2021
Before:	Murrell CJ
Decision:	Evidence admitted
Catchwords:	CRIMINAL LAW – PRE-TRIAL APPLICATION – Admissibility of evidence – admissibility of evidence of complainant’s sexual activities other than those the subject of the charges – consideration of whether evidence has substantial relevance to the facts in issue
Legislation Cited:	Evidence (Miscellaneous Provisions) Act 1991 (ACT) ss 76, 78
Parties:	The Queen ( Crown) Chavin Seneviratne ( Accused)
Representation:	Counsel K Lee ( Crown) K Archer ( Accused)
Solicitors ACT Director of Public Prosecutions ( Crown) Kamy Saeedi Law ( Accused)
File Number(s):	SCC 2 of 2021

MURRELL CJ:

Application

The accused is to be tried for the offences that, between 1 January and 31 December 2017 at Canberra he engaged in sexual intercourse with the complainant without her consent or, alternatively, committed an act of indecency on the complainant without her consent.

Pursuant to s 76(1) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (EMPA), the prosecution seeks leave to adduce evidence of the sexual activities of the complainant (other than those the subject of the charges), being evidence concerning a sexual assault by a third party on the complainant in April 2017.

The accused consents to the grant of leave, noting that the complainant will be cross-examined in relation to the evidence admitted under s 76 of the EMPA.

Crown Case

The prosecution case is that the complainant and the accused were friends. Both were students at the Australian National University (ANU).

In April 2017, the complainant was sexually assaulted by someone other than the accused and reported the incident to police. The complainant discussed the incident with the accused.

On a night in 2017, the complainant went to the accused’s room at Burton and Garran Hall, a residential college at ANU. The complainant was upset and wanted to speak with the accused about the earlier sexual assault.

The complainant and the accused engaged in consensual sexual interaction. The accused said that he needed to complete an assignment. The complainant fell asleep on the accused’s bed. The following morning, they agreed that they would not talk about what had occurred because the accused had a girlfriend.

In January 2020, the complainant and the accused exchanged messages. On 1 January 2020, the accused apologised for “taking advantage”. On 3 January 2020, the accused said, “I stuck a thumb in your ass remember” and “I didn’t really get consent”. The complainant replied, “I really didn’t know anything happened”.

The complainant told Mr Clark (a pseudonym) that the accused had raped her. In March 2020, Mr Clark spoke to the accused, who said that he had had consensual sex with the complainant.

In August 2020, the accused was interviewed by police. He told them that he had sought the complainant’s consent to various sexual interactions, including digital/anal penetration and penile/anal penetration, and the complainant had verbally consented. 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 Seneviratne

Details

AGLC: R v Seneviratne [2021] ACTSC 277
Case: [2021] ACTSC 277
Decision Date

CaseChat Overview and Summary

The Supreme Court of the Australian Capital Territory heard an application in the matter of R v Seneviratne. The accused, Chavin Seneviratne, stands charged with engaging in sexual intercourse with the complainant without her consent or, alternatively, committing an act of indecency on the complainant without her consent between 1 January and 31 December 2017. The prosecution sought leave to adduce evidence of the sexual activities of the complainant other than those that were the subject of the charges, being evidence concerning a sexual assault by a third party on the complainant in April 2017. The accused consented to the grant of leave, noting that the complainant would be cross-examined in relation to the evidence admitted under s 76 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (EMPA). The court was required to determine whether the evidence had substantial relevance to the facts in issue. The court held that the evidence had substantial relevance to the facts in issue as it explained why the complainant went to the accused’s room on the night of the alleged offences and elucidated the nature of the friendship between the complainant and the accused at that time and later, explained the complainant’s state of mind on the night of the alleged offences, facilitated an understanding of the accused’s state of mind on the night of the alleged offences and in January 2020 when he sent text messages to the complainant, and helped to date the act that was the subject of the charges. The evidence would be admitted. However, the evidence (both in chief and in cross-examination) should not extend beyond that which was necessary to enable a proper consideration of the facts in issue.

Orders