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

1. 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.

1. 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.

1. 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

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

1. 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.

1. 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.

1. 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.

1. 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”.

1. 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.

1. 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 messages of January 2020 were a joke and/or reflected an AutoCorrect rather than an intentional admission that consent was not obtained.

1. The prosecution case hinges on the messages sent in January 2020, which the prosecution says contain admissions that the accused anally penetrated the complainant without her consent.

1. It is understood that, in the trial, the accused will submit that, in the January 2020 messages, the accused was not apologising for engaging in sexual activity without consent but was apologising for engaging in consensual sexual activity in the context that he knew that the complainant was upset because she had previously been assaulted.

Consideration

1. Section 78(1) of the EMPA provides:

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.

1. The central fact in issue is whether the accused anally penetrated (or engaged in an act of indecency with) the complainant when she was asleep.

1. The evidence concerning the previous sexual assault has substantial relevance to the facts in issue in that it:

(a)explains why the complainant went to the accused’s room on the night of the alleged offences and elucidates the nature of the friendship between the complainant and the accused at that time and later;

(b)explains the complainant’s state of mind on the night of the alleged offences;

(c)facilitates 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

(d)helps to date the act the subject of the charges.

1. Consequently, the evidence will be admitted. However, the evidence (both in chief and in cross-examination) should not extend beyond that which is necessary to enable a proper consideration of the facts in issue.

I certify that the preceding sixteen [16] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell.

Associate:

Date:

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Amendments

8 December 2021 Pseudonym changed to Mr Clark Paragraph: [9]