R v SQ (No 4)

[2021] ACTSC 134

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v SQ (No 4)
Citation:	[2021] ACTSC 134
Hearing Date:	30 June 2021
Decision Date:	30 June 2021
Before:	Elkaim J
Decision:	The application is granted
Catchwords:	EVIDENCE – CRIMINAL LAW – Application to Adduce Evidence – Complainant’s sexual reputation – whether the evidence has
substantial relevance – proper matter for cross-examination about credit – application granted
Legislation Cited:	Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 76, 77, 78
Parties:	SQ (Applicant)
The Crown (Respondent)
Representation:	Counsel
S Whybrow with C Carnell (Applicant) R Christensen (Respondent)
Solicitors
Aulich Law (Applicant) ACT Director of Public Prosecutions (Respondent)
File Number:	SCC 217 of 2020
ELKAIM J:

1. These reasons relate to an application by the accused under ss 76 and 77 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT). Section 76 says that evidence

“of the sexual activities of the complainant is not admissible in a sexual offence

proceeding without leave of the court…”

2. Section 77 dictates the manner in which an application should be made. The requirements of s 77 have been met.

3.       Section 78 provides mandatory guidance on whether or not leave should be granted. The applicant says that the evidence is necessary both because it has substantial relevance to the issues in the case and it has significant credit implications.

4.       The allegations made by the complainant are of actions of a sexual nature. Nevertheless it is not suggested that they were carried out for the sexual gratification of the accused. Rather their purpose was to establish and reinforce controlling and intimidatory behaviour on the part of the accused over the complainant.

5.       To this end the complainant has given a good deal of oral evidence about the attitudes and behaviour of the accused. In addition the Crown has tendered a number of text messages between the accused and the complainant endeavouring to paint a picture consistent with the type of relationship described above.

6.       The overwhelming scenario that the Crown has endeavoured to create is that the alleged offences occurred within the context of this relationship.

7.       Part of this context relates to a relationship that the complainant was having with a Mr E. There is little doubt, in my view, that this relationship was an integral part of the dynamics of the evolving antagonism between the accused and the complainant. I think evidence of the relationship with Mr E is substantially relevant to creating an accurate picture of the context in which the offences are alleged to have occurred.

8.       In addition, some of the answers given by the complainant in her record of interview with the police are susceptible to attack on the subject of the commencement and evolving nature of the relationship with Mr E.

9.       Accordingly the application, which is not opposed but still requires the Court’s approval,

is granted, but restricted to the evidence relevant to the four subjects stated in
paragraph one of the application.

I certify that the preceding nine [9] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim

Associate:

Date: 30 June 2021