R v ST (No 2)

[2014] ACTSC 52

THE QUEEN v ST (NO 2)
[2014] ACTSC 52 (28 February 2014)

CRIMINAL LAW – EVIDENCE – Judicial discretion to admit or exclude Evidence – Evidence of sexual activities of the complainant admissible only by leave of the Court – Exceptions to the credibility rule – Application to admit evidence of cross-examination of the complainant in relation to allegations by the complainant that she was the subject of the same sexual activities committed by her paternal grandfather as those she claimed she had been subjected to by her father – Leave given to adduce evidence of the complainant about alleged sexual activities with her paternal grandfather

Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 40, 51, 53, Div 4.2A
Evidence Act 2011 (ACT), ss 102, 103
Evidence Act 2001 (Tas), 103

Report, Responding to Sexual Assault, the Challenge of Change (2005, ACT:  Canberra)

R v Byczko (No 1) (1977) 16 SASR 507
R v CH and JW [2010] ACTSC 75
R v Gun;  Ex parte Stephenson (1977) 17 SASR 165
R v RPS (Unreported, New South Wales Court of Criminal Appeal, Gleeson CJ, Hunt CJ at CL and Hidden J, 13 August 1997)
W v The Queen (2006) 162 A Crim R 264

No. SCC 85 of 2013

Judge:             Refshauge J
Supreme Court of the ACT

Date:              28 March 2014

IN THE SUPREME COURT OF THE     )
  )          No. SCC 85 of 2013
AUSTRALIAN CAPITAL TERRITORY           )          

R

V

ST

ORDER

Judge:  Refshauge J
Date:  28 February 2014
Place:  Canberra

THE COURT ORDERS THAT:

1. Leave be given to adduce the evidence of the complainant about alleged sexual activities with her paternal grandfather, being the cross-examination of her on that issue.

1. The accused, ST, is the father of the complainant, AT, who disclosed to her mother on 31 January 2013 a complaint that, on a number of occasions, the accused had committed acts of a sexual nature on her.

1. This led to ST being arrested and charged with one count of incest and four counts of committing an act of indecency on AT.

1. As is now standard practice in this Territory, the police interviews with AT were recorded and an audio-visual recording of the interviews made with a view to it being admitted as the evidence-in-chief of AT. See Div 4.2A of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (the Miscellaneous Provisions Act).

1. This is a welcome reform, which had its immediate genesis in a Report by Margaret Jones, a prosecutor in the Office of the Director of Public Prosecutions (ACT), and Sergeant Anthony Crocker of the Australian Federal Police.  That Report, Responding to Sexual Assault, the Challenge of Change (2005, ACT:  Canberra), made a number of recommendations, including Recommendation 6.2 that the evidence-in-chief of child witnesses should be pre-recorded.  This recommendation was based on experience in four other States of Australia and New Zealand where the procedure had been in operation for some years.

1. While the substantial and very real advantages of this procedure were set out in the Report…