R v Stevens (No 1)
[2017] ACTSC 295
•28 February 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Stevens (No 1) |
Citation: | [2017] ACTSC 295 |
Hearing Dates: | 27, 28 February, 1, 2, 3 March 2017 |
DecisionDate: | 28 February 2017 |
Before: | Mossop J |
Decision: | Leave granted; see [11]. |
Catchwords: | CRIMINAL LAW – EVIDENCE – Evidentiary Matters Relating to Witnesses and Accused Persons – admissibility of evidence of sexual activities of the complainant – leave to admit evidence of sexual activities of the complainant – proper matters for cross-examination about credit – complainant's description of whether or not the sexual encounter was consensual had varied over time |
Legislation Cited: | Evidence Act 2011 (ACT), s 103 Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 50, 51, 52, 53 |
Parties: | The Queen (Crown) Craig Joseph Stevens (Accused) |
Representation: | Counsel R Christensen (Crown) J Stewart (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused) | |
File Number: | SCC 69 of 2016 |
MOSSOP J:
The accused is charged with four counts of sexual intercourse without consent. The first act of sexual intercourse without consent involved anal penetration of the complainant by the accused's penis. This is alleged to have occurred during what was otherwise consensual sex. The complainant gave evidence that she had specifically advised the accused that anal sex was a “no go area”. She explained in her evidence-in-chief that this was because she had previously been injured as a result of a sexual encounter some years earlier. This occurred at a time when the complainant was attending what she described as a “rave”.
In her evidence she described the encounter as involving consensual sex that ended up getting too rough. She said that she had taken drugs and was drifting in and out of consciousness and that her sexual partner, who I note was not the accused, took advantage of that situation and had "caused some damage anally," as well as bruising on her chest and neck. She gave evidence that she subsequently discovered she had a haemorrhage. I infer that it was a haemorrhage in her anus or bowel.
Sections 51–53 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) regulate the giving of evidence of sexual activities of a complainant. Section 51 provides that evidence of the "sexual activities of the complainant" is not admissible without the leave of the court. Subsection (2) provides that the prohibition does not apply to evidence of the specific sexual activities of the complainant with an accused in the sexual offence proceedings. The prohibition in sub-s (1) is broad enough to encompass not only cross‑examination on behalf of an accused, but also evidence-in-chief given by a complainant.
In this case the evidence of the complainant, so far as it related to the sexual incident leading to her anal or bowel damage, is covered by s 50(1) and not excluded by s 50(2). Section 52 contains the requirements relating to an application for leave under s 51. Section 53 requires that a court must not give leave unless satisfied that the evidence has substantial relevance to a fact in issue, or is a proper matter for cross-examination about credit.
In the present case, the evidence, given without objection by the complainant, had substantial relevance to the facts in the case. That is because it provided the reason why the complainant had no desire to engage in anal sex and was specifically motivated to say so to the accused. However, the requirements of s 52 were not complied with and the Court was therefore not asked to make a decision under s 53. This appears to be because counsel for the Crown did not anticipate the giving of a detailed explanation as to the events leading up to the anal or bowel damage by the complainant.
This is clearly an irregularity, but had an application been made under s 52 to lead the evidence, I would have given leave. Because the accused did not object, the leading of such evidence did not appear to me to infringe the purposes for which these provisions were enacted and the evidence given is potentially important evidence to understand and put in context the other evidence of the complainant. I do not consider that the failure to comply with the requirements of s 52 involved any prejudice to the accused and none was asserted on the present application.
Having regard to the fact that the evidence of the complainant's previous sexual history has been given, I consider that the accused should be entitled to test that evidence in a manner relevant to the purpose for which it was led. However, the accused seeks to cross-examine the complainant not about the occurrence of the events, but instead about how she reported them. As articulated orally, the contention was that she had previously described the events as being "abuse." That is, according to the accused's submission, involving non-consensual sex when it had been described as consensual sex by the complainant when giving evidence.
That is somewhat different to the manner in which the point was described in the grounds within the written application made by the accused. The reference to "abuse" comes from a statement given to police by the complainant's mother. Counsel for the accused submitted that if the nature of the previous sexual encounter had been described as non‑consensual sex in the past but was now described as consensual, then that was a matter which might significantly influence the jury's conclusion as to the reliability of the complainant's evidence. That is so even though in relation to the earlier incident, the change in her evidence, if it in fact existed, would be from a description of sexual intercourse as non-consensual to a description as consensual, rather than the other way around.
Section 53 governs the grant of leave. Because the cross-examination goes not to the existence or otherwise of the sexual encounter and the consequent bowel or anal damage, it does not come within s 53(1)(a) (“has substantial relevance to the facts in issue”) and instead must satisfy the requirements of s 53(1)(b) that it be a "proper matter for cross-examination about credit." That in turn requires that it satisfy the requirement in s 103 of the Evidence Act 2011 (see s 53(5)). Section 53(3) does not apply as the cross-examination is not about "sexual activity evidence" as that term is defined in s 53(2).
That leads to the operation of s 103 of the Evidence Act that permits credibility evidence to be adduced in cross-examination if "the evidence could substantially affect the assessment of credibility of the witness." If the jury formed the view that the complainant's description of whether or not the sexual encounter was consensual had varied over time so that previous representations made were inconsistent with the evidence that she gave, the jury might give that significant weight in assessing whether or not to accept her evidence that she did not consent to one or more of the acts of sexual intercourse alleged in the present case.
In my view, that is sufficient to meet the test that the evidence "could substantially affect the assessment of the credibility of the witness." Although the evidence of an inconsistency between the complainant's evidence and the evidence of her previous representations is very limited, and having regard to that limited material, cross‑examination will be constrained, I consider that the threshold in s 103 is met. As a consequence, I give leave to the accused to cross-examine the complainant as to whether there is an inconsistency between her evidence as to the extent to which she consented to the sexual activities that led to bowel or anal damage and the previous representations that she made about the extent of her consent.
| I certify that the preceding eleven [11] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 11 October 2017 |
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