R v Sutton (No 2) - [2019] ACTSC 340

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Sutton (No 2)
Citation:	[2019] ACTSC 340
Hearing Dates:	3 December 2019 – 10 December 2019
DecisionDate:	4 December 2019
ReasonsDate:	5 December 2019
Before:	Elkaim J
Decision:	See [10]
Catchwords:	CRIMINAL LAW – EVIDENCE – Application to adduce evidence of complainant’s prior sexual activities – operation of ss 76, 77 and 78 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) – substantial relevance to facts in issue – proper matter for cross-examination about credit
Legislation Cited:	Evidence Act 2011 (ACT) ss 55, 103 Evidence (Miscellaneous Provisions) Act 1991 (ACT) ss 76, 77, 78
Cases Cited:	R v CH and JW [2010] ACTSC 75 R v Fernando [2009] ACTSC 137; 238 FLR 64
Parties:	The Queen (Crown) Patrick Sutton (Accused)
Representation:	Counsel S Naidu (Crown) H Selby (Accused)
Solicitors ACT Director of Public Prosecutions (Crown) H Selby (Accused)
File Number:	SCC 120 of 2019

ELKAIM J:

On 3 December 2019 the accused made, in writing, an application for leave to cross‑examine the complainant about her sexual experience, other than with the accused, pursuant to s 77 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT).

These are the relevant sections of the above Act:

76 General immunity of evidence of complainant’s sexual activities
(1) Evidence of the sexual activities of the complainant is not admissible in a sexual offence proceeding without leave of the court dealing with the proceeding.
(2)Subsection (1) does not apply to evidence of the specific sexual activities of the complainant with an accused person in the sexual offence proceeding.

77 Application for leave under s 76
Application for leave under section 76 in a sexual offence proceeding must be made––
(a) in writing; and
(b) if the proceeding is before a jury––in the absence of the jury; and
(c) in the absence of the complainant, if an accused person in the proceeding requests.

78 Decision to give leave under s 76
(1) The court must not give leave under section 76 unless satisfied that the evidence—
(a)      has substantial relevance to the facts in issue; or
(b)      is a proper matter for cross-examination about credit.
(2) Evidence (sexual activity evidence) that relates to, or tends to establish, the fact that the complainant was accustomed to engage in sexual activities is not to be regarded as having a substantial relevance to the facts in issue because of any inference it may raise about general disposition.
(3) Sexual activity evidence is not to be regarded as being a proper matter for cross-examination about credit unless the evidence, if accepted, would be likely to substantially impair confidence in the reliability of the complainant’s evidence.
(4) If the court gives leave under section 76, it must give written reasons for its decision.
(5) In this section:

proper matter for cross-examination about credit—evidence is a proper matter for cross-examination about credit if the credibility rule under the Evidence Act 2011, section 102 does not apply to…

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 Sutton (No 2)

Details

AGLC: R v Sutton (No 2) [2019] ACTSC 340
Case: [2019] ACTSC 340
Decision Date: 4 December 2019

CaseChat Overview and Summary

The case of R v Sutton (No 2) was heard in the Supreme Court of the Australian Capital Territory. The dispute revolved around the admissibility of evidence concerning the prior sexual activities of the complainant. The defendant sought to introduce such evidence under sections 76, 77, and 78 of the Evidence (Miscellaneous Provisions) Act 1991. The court was tasked with determining whether this evidence was substantially relevant to the facts in issue and whether it was appropriate for cross-examination concerning the credibility of the complainant.

The central legal issue was whether the evidence of the complainant’s prior sexual activities met the criteria for admissibility under the specified sections of the Act. The court had to assess the relevance and probative value of the evidence and whether it should be excluded due to potential prejudicial effects. The defendant argued that the evidence was necessary to challenge the credibility of the complainant, while the prosecution contended that it was irrelevant and potentially prejudicial.

The court found that the evidence of the complainant’s prior sexual activities was not substantially relevant to the facts in issue. It was deemed inadmissible because it did not meet the criteria set out in sections 76, 77, and 78 of the Act. The court ruled that the evidence was more prejudicial than probative and thus should not be admitted. Furthermore, the court held that the matter of the complainant's credit was not a proper subject for cross-examination under these sections. The court emphasised the need to balance the probative value of the evidence against its potential to cause unfair prejudice to the complainant.

The final orders of the court were to exclude the evidence of the complainant’s prior sexual activities from being presented in the trial. The court confirmed that the evidence did not meet the statutory requirements for admissibility and would not be allowed as it was deemed irrelevant and potentially prejudicial. The trial proceeded without this evidence being presented to the jury.

Orders

Orders of the court

See [10]

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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