R v Sutton (No 2)
[2019] ACTSC 340
•4 December 2019
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 |
Cases Cited: | R v CH and JW [2010] ACTSC 75 |
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 the evidence because of that Act, section 103 (Exception— cross-examination as to credibility).
Although not set out in the written application, counsel for the accused outlined orally the matters upon which he sought to cross-examine. They are as follows:
(a)To cross-examine the complainant about an allegedly false dissemination, through text messages, from her to her best friend and her mother that she had contracted chlamydia through contact with the accused, notwithstanding that the sexual relationship with the accused had ended and that the complainant was in a sexual relationship with a new partner (Ms C);
(b)On the assumption that the complainant denied that she had disseminated the misinformation and that she had been in a sexual relationship, since late 2018, with Ms C, to cross-examine the complainant on a photograph taken in May 2019 suggestive of the relationship with Ms C. I note here that the text messages concerning the chlamydia had been sent in June 2019;
(c)To cross-examine the complainant on a photograph taken in April 2019 in which Ms C is seen wearing a jacket allegedly stolen by the complainant from the accused’s mother;
(d)To cross-examine the complainant about the details of Count 3 to suggest that these details were in fact fabricated, and precisely the same allegations made by the complainant in respect of another person (Mr A) with whom she had had a sexual relationship prior to the accused.
The Crown did not oppose the first and fourth topics of cross-examination. This concession was properly made. It is important to note that a very significant part of the defence to the charges is that the complainant has made up her version of events and that some of the alleged incidents simply did not happen. The other part of the defence, which is not relevant to the present argument, is that some acts alleged against the accused did not lack the complainant’s consent as asserted by her.
Both parties referred me to the decisions of Penfold J in R v CH and JW [2010] ACTSC 75 and R v Fernando [2009] ACTSC 137; 238 FLR 64 as setting out the relevant principles to be applied. The concessions made by the Crown relieve me of having to closely examine these principles.
However, in respect of the leave to cross-examine about the jacket, the opposition was not based on any part of s 77 but rather on ss 55 and 103 of the Evidence Act 2011 (ACT). The Crown submitted that the alleged stealing of the jacket did not go to a fact in issue (s 55) and it was not a matter that “could substantially affect the assessment of the witness’s credibility” (s 103(1)).
The heavy reliance on the attack of the complainant’s credibility relies to a large extent on an allegation that the offences were made up in order to divert the accused from pursuing significant debts owed to him by the complainant. I was told that it would be alleged that over the period of their relationship the complainant had borrowed substantial sums of money from the accused. On the morning following the last of the alleged rapes the accused sought the return of $650 of the alleged debts. The complainant refused to pay and offered to meet the debt through the provision of sex to the accused.
In my view the issue of the jacket falls within the general scope of the allegations of the financial dealings between the accused and the complainant and is very relevant to the complainant’s credit. Her credit is very much a fact in issue and I think the acceptance of the accused’s allegations could substantially affect the complainant’s credit.
Returning to the second topic of cross-examination, outlined in [3] above, I am of the view that leave should be given. This topic is a natural consequence of the assumption outlined in the application and it would be an unfair restriction on the leave granted in respect of the first topic to not allow the photograph to be put to the complainant and be the subject of questioning.
I make the following orders:
(a)The accused has leave to cross-examine the complainant about the text messages to her friend HF and to her mother, KD, which assert that the accused was the source of the chlamydia apparently contracted by the complainant.
(b)The accused has leave to cross-examine the complainant by showing her the photograph taken in May 2019 and asking her about the existence of a relationship with the other person shown in the photograph, Ms C. The leave given in this order only arises if the complainant denies the existence of a sexual relationship between her and Ms C.
(c)The accused has leave to cross-examine the complainant to the effect that she unlawfully took the jacket shown in the photograph dated April 2019 from the accused’s mother and made it available to Ms C.
(d)The accused has leave to cross-examine the complainant to the effect that the details making up Count 3 were fabricated and a repeat of an allegation that she had previously made against a Mr A.
| I certify that the preceding ten [10] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: 19 August 2020 |
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