R v Shreyas Seethi Narayanaswamy

[2011] ACTSC 41

R v SHREYAS SEETHI NARAYANASWAMY
[2011] ACTSC 41 ( 15 February 2011)

EX TEMPORE JUDGMENT
(REVISED FROM THE TRANSCRIPT)

No. SCC 460 of 2009

Judge:          Rares J
Supreme Court of the ACT
Date:   15 February 2011

IN THE SUPREME COURT OF THE     )
  )          No. SCC 460 of 2009
AUSTRALIAN CAPITAL TERRITORY           )

BETWEEN:THE QUEEN

AND:SHREYAS SEETHI NARAYANASWAMY

ORDER

Judge:  Rares J
Date:  15 February 2011
Place:  Canberra

THE COURT ORDERS THAT:

1. The accused have leave pursuant to s 51 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) to cross-examine the complainant as to her sexual activities prior to 1 March 2009.

1. The accused is standing trial before a jury on an indictment alleging 4 counts of unlawful sexual activity with the complainant on 1 March 2009.

1. The first event charged is that he committed an act of indecency by kissing the complainant’s breasts, knowing that she had not consented or being reckless as to whether she consented or not, contrary to s 60(1) of the Crimes Act 1900 (ACT). The second event charged is a further act of indecency of rubbing his penis against her buttocks. The third event charged is that the accused engaged in sexual intercourse with the complainant, by an act of cunnilingus, without her consent and was reckless as to whether or not she had consented, contrary to s 54(1) of the Crimes Act.  The fourth event charged is a further act of sexual intercourse by penile/vaginal penetration.  The accused pleaded not guilty to each count.  The substantial issue in the proceeding is whether the acts charged occurred with the consent of the complainant.

1. The accused applied in writing under s 52 of the Evidence (Miscellaneous Provision) Act 1991 (ACT) (the Act) yesterday, the first day of this trial, for leave to cross-examine the complainant about her sexual activities.  The Crown had foreshadowed that it would lead evidence from the complainant of her prior intention to remain a virgin until she had met the right person.  The solicitor for the accused swore an affidavit recounting that the complainant had given a number of accounts of the events the subject of the counts in the indictment.

1. I deferred ruling on the application until the prosecution had completed the complainant’s examination in chief so as to be able to assess the issues which may arise.  She gave evidence without objection that prior to 1 March 2009 she had decided not to have any sexual intercourse at all.  She explained that this meant she was “… not prepared to engage in any penis/vagina intercourse, any touching of that area, or oral intercourse”.

1. Under s 51 evidence of the sexual activities of the complainant is not admissible in sexual offence proceedings such as these without leave of the Court. Section 53 provides:

“53     Decision to give leave under s 51

(1)The court must not give leave under section 51 (General immunity of evidence of complainant’s sexual activities) 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 51, it must give written reasons for its decision.”

1. Here s 103 of the Evidence Act 1995 (Cth) would not preclude cross-examination of the complainant because it could substantially affect assessment of her credibility as a witness.

1. The scheme of Div 4.4 of the Act is similar to other “rape victim shield legislation”, to use the shorthand coined by Prof Wigmore:  cf:  R v Allingham [1991] Qd R 429 at 431 per Connolly J.

1. The decision of the complainant as to her preparedness to engage in particular sexual activities was led by the Crown as probative of the likelihood of her not being prepared to consent to, at least, the second, third and fourth events alleged in the chronology of the occasion of 1 March 2009.

1. The prosecution relied on the facts that the complainant had been so intoxicated earlier in the night of 28 February-1 March 2009 that she had stayed in the accused’s bed in his apartment while he and other participants in a party that had commenced there went to nightclubs in Civic.  The complainant had only met the accused when she arrived at the party and began to consume alcohol.  The prosecution case was that she could not have consented because she was and remained so affected by alcohol that she was either passed out or asleep.

1. The present alleged facts are somewhat similar to those in R v Wannan (2006) 94 SASR 521, although the legislative scheme is not exactly in the same terms as here. Doyle CJ, with whom Besanko and Anderson JJ agreed on this point, held that at common law, evidence of a complainant’s lack of preparedness to engage in sexual intercourse or activity when she was menstruating was of substantial probative value because it was directly relevant to the accused’s defence of consent: Wannan 94 SASR at 527-528 [46].

1. The evidence of the complainant here, would have been admissible at common law to show her lack of preparedness to engage in sexual intercourse or sexual activity of any kind since she wished to remain a virgin.  That evidence was of substantial probative value for the reasons explained in Wannan 94 SASR at 527-528 [44]-[49] per Doyle CJ with whom Besanko J, and on this issue Anderson J, agreed.

1. In my opinion, the complainant’s evidence about her decision as to her own sexual activities is a proper matter for cross‑examination as to her credit within the meaning of s 53 of the Act because cross‑examination on that issue, if accepted, would be likely to substantially impair confidence in the reliability of her evidence.

1. I note that the prosecution did not apply for leave to adduce this evidence. It may not have required leave on one view of s 51, since the evidence is not evidence of the complainant’s sexual activities but of lack of them.

1. Evidence in chief of a complainant of limitations on the range of sexual activities in which she was accustomed or prepared to engage is arguably evidence of the kind referred to in s 51(1). Had the prosecution applied to adduce this evidence, or had an objection been taken to it, an issue may have arisen as to whether or not it was admissible: Wannan 94 SASR at 528 [50].

1. However, the evidence given by the complainant is the very kind of evidence that traditionally has been admissible:  Wannan 94 SASR at 526 [36]-[39]. In that case the issue was whether or not the complainant would have consented to sexual intercourse involving cunnilingus when she was menstruating. She had said that she never had any form of sexual intercourse when she was menstruating.

1. Additionally, s 53(2) suggests that evidence that “the complainant was accustomed” to engage in sexual activities is not to be regarded as having substantial relevance to the facts in issue merely because it may raise an inference about her (or his) general disposition.  However, here the evidence led by the prosecution was directed to raising an inference about the complainant’s disposition so as to suggest the inherent improbability that she would have consented to the accused engaging in sexual intercourse or committing the acts of indecency charged in the indictment.

1. In Wannan 94 SASR at 528 [53] the Full Court held that evidence of this nature, as well as evidence of frequency of sexual activity with an accused with whom she was in a relationship, will often disclose a disposition of a complainant and would be admissible at common law. Doyle CJ explained that it was unlikely that the South Australian legislation, which was differently worded to ss 51-53 of the Act, was intended to exclude evidence about a complainant’s particular disposition to engage in sexual activities.  He construed that legislation as prohibiting evidence of the complainant’s sexual activities, when these were not directly relevant to the case at hand and were only relevant as establishing a general disposition, as distinct from a particular disposition relevant to the particular circumstances, to which the case at hand was linked:  Wannan 94 SASR at 528-529 [56], [59].

1. I am likewise of opinion that the intention of ss 51-53 of the Act was not to preclude evidence of the kind in issue in present proceedings.  Evidence of the complainant’s desire to maintain her virginity and to avoid engaging in particular sexual activities with certain persons is evidence of her sexual activities rather than her lack of engagement in that field of activity, for the reason on which she relies.

1. The evidence given by the complainant here was capable of being seen by the jury as cogent evidence of the unlikelihood that she would engage in sexual activity consensually with a complete stranger.  For that reason cross‑examination on the topic of her sexual activities should be allowed as being likely to substantially impair confidence in the reliability of her evidence.  That is because it may go to the complainant’s particular disposition, in respect of each of the acts charged which are live facts in issue.  And, evidence about the extent to which the complainant had engaged, before 1 March 2009, in some sexual activity, if accepted, is also likely to substantially impair confidence in reliability of her evidence.  Because that issue has been opened by the Crown adducing the evidence, I am of opinion that the complainant’s sexual activity before 1 March 2009 is plainly a proper matter for cross‑examination about credit:  Allingham [1991] 1 Qd R at 435 per McPherson J, 441 per Williams J; R v Danine [2004] QCA 102 at [9] per McPherson JA.

1. The evidence and the proposed cross-examination in this case is not merely about the complainant’s general disposition.  Rather, the cross-examination is directed to the particular facts of this case:  Wannan 94 SASR at 258‑259 [50]‑[60]; Allingham [1991] 1 Qd R at 431‑433 per Connolly J with whom Williams J agreed, and see at 441, see per McPherson J, dissenting, at 434, Danine [2004] QCA 102 at [9] per McPherson JA. In Allingham [1991] 1 Qd R at 431 and 440-441 Connolly J and Williams J held that evidence of the complainant’s youth, sexual inexperience and virginity were relevant on the issue of the likelihood that she would enthusiastically engage in sexual intercourse with a complete stranger.

1. In my opinion, the requirement in s 53(4) that the Court give written reasons in a case such as the present, can cause proceedings before a jury or, even, a judge alone to be unduly protracted and can cause difficulties in the conduct of trials where such evidence can effectively only be ruled on during the course of the trial.  It imposes an undue obligation on the judge to prepare a written set of reasons, when an ex tempore judgment would achieve the same purpose, namely to expose the judge’s reasons for deciding as he or she did.  The legislature should consider removing the word “written” in s 53(4) so that the judge will still be obliged to justify the exercise of his or her power under s 53, but may do so efficiently in accordance with the requirements of justice and the case at hand.

1. Because of the overlap and interconnection of this evidence, I will grant leave to the defendant to cross‑examine the complainant about her previous sexual activities relating to the conduct, the subject of each of the counts in the indictment.

1. I do not propose to limit the cross-examination in a way in which the prosecution sought by excluding cross‑examination in relation to the fourth count in the indictment, being the first chronological incident of the accused kissing the complainant’s breast.

1. For these reasons I am satisfied that evidence in cross-examination of the complainant’s sexual activities has substantial relevance to the facts in issue and is also a proper matter for cross-examination about her credit.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Rares

Associate:

Date:    9 March 2011

Counsel for the Crown:  Ms K Weston-Scheuber

Solicitor for the Crown:  Director of Public Prosecutions

Counsel for the Accused:  Mr J Pappas

Solicitor for the Accused:  Ben Aulich & Associates

Date of hearing:  15 February 2011

Date of judgment:  15 February 2011