R v Stevens (No 1) - [2017] ACTSC 295

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…

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.

Continue reading R v Stevens (No 1)

Details

AGLC: R v Stevens (No 1) [2017] ACTSC 295
Case: [2017] ACTSC 295
Decision Date: 28 February 2017

CaseChat Overview and Summary

In the case of R v Stevens (No 1), the respondent was charged with the sexual assault of the appellant, who was his partner at the time. The matter came before the court to determine the admissibility of evidence regarding the appellant's sexual history. Specifically, the court had to decide whether evidence of the appellant's prior sexual activities was relevant and admissible for the purposes of cross-examination about her credit and the nature of her account of the alleged assault.

The primary legal issue before the court was whether the evidence of the appellant's sexual activities could be admitted to challenge her credibility and the consistency of her accounts regarding the consensual nature of the encounter. The court considered whether such evidence was relevant to the credit of the witness and whether its probative value outweighed any potential prejudice it might cause.

The court ruled that the evidence was admissible as it was relevant to the appellant's credibility and the consistency of her accounts. The court held that the variations in her description of the events over time warranted exploration during cross-examination. The court granted leave for the evidence to be admitted, finding that it was necessary to assess the reliability of the appellant's testimony.

Orders

Orders of the court

Leave granted; see [11].

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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