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:

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.

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.

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.

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.

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”.

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)…

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.

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Details

Case: [2011] ACTSC 41
Decision Date

CaseChat Overview and Summary

In the Supreme Court of the Australian Capital Territory, the accused, Shreyas Seethi Narayanaswamy, is on trial for four counts of unlawful sexual activity with a complainant. The crux of the trial is whether the alleged acts occurred with the complainant's consent. The Crown had intended to lead evidence about the complainant's intention to remain a virgin until she met the right person. In response, the accused applied for leave to cross-examine the complainant about her sexual activities prior to 1 March 2009. The legal issues before the court were whether such evidence has substantial relevance to the facts in issue and whether it is a proper matter for cross-examination about the complainant's credit.

The court held that the complainant's decision to remain a virgin and avoid certain sexual activities was relevant and probative to the issue of consent. The evidence had substantial relevance because it could significantly affect the assessment of her credibility as a witness. The court noted that the complainant had decided not to engage in any sexual intercourse at all, which included oral intercourse, prior to the events in question. The court concluded that this evidence was not barred by the Evidence (Miscellaneous Provisions) Act 1991 (ACT) and that it was a proper matter for cross-examination about credit. The court granted the accused leave to cross-examine the complainant about her sexual activities, but did not impose any limitations on the scope of the cross-examination. The court observed that the requirement for written reasons in such cases could unnecessarily prolong the proceedings and suggested that the legislature consider allowing for ex tempore judgments in these instances.

Orders