R v TF
[2018] ACTSC 13
•2 February 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v TF |
Citation: | [2018] ACTSC 13 |
Hearing Date: | 29 January 2018 |
DecisionDate: | 2 February 2018 |
Before: | Mossop J |
Decision: | See [36] |
Catchwords: | EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – Sexual offence proceeding – prohibition on admission of evidence of complainant’s sexual activities without leave – evidence of substantial relevance to the facts in issue – leave granted |
Legislation Cited: | Court Procedures Act 2004 (ACT), s 76 Crimes Act 1900 (ACT), Pt 3 Evidence Act 2011 (ACT), ss 102, 192A Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 38, 48, 49, 50, 51, 52, 53 |
Cases Cited: | R v Alas (No 2) [2017] ACTSC 333 R v WR [No 1] [2015] ACTSC 198 |
Parties: | TF (Applicant) The Queen (Respondent) |
Representation: | Counsel S Littlemore QC (Applicant) R Christensen (Respondent) |
| Solicitors Ben Aulich & Associates (Applicant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCC 217 of 2017 |
MOSSOP J:
Introduction
The accused has, by an application dated 6 December 2017, sought an order granting him leave pursuant to s 53 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (EMP Act) to cross-examine the complainant in relation to certain sexual activities. Although there is some awkwardness in making an advance ruling under s 192A of the Evidence Act 2011 (ACT) in relation to the operation of the EMP Act, no party raised any issue about the capacity of the Court to make such a ruling and it is not obviously outside the scope of one or other of sub-ss 192A(a) or (b) of the Evidence Act. I have therefore proceeded on the basis that the section may operate in the present circumstances.
The nature of the case
The accused is charged with:
(a)two counts of an act of indecency without consent;
(b)one count of assault with intent to commit an act of indecency; and
(c)two counts of attempted sexual intercourse without consent.
The Crown case is articulated in a case statement filed 23 August 2017.
The events in question are alleged to have occurred on 25 June 2016 and 24 July 2016. They involve locations and organisations not infrequently mentioned in cases in this Court: the Australian Defence Force Academy (ADFA), the “Mr Wolf” nightclub and the “Mooseheads” drinking establishment (Mooseheads).
The events on 25 June 2016 are alleged to have occurred at the Mooseheads nightclub. The accused, along with another cadet from the ADFA, was there with the complainant and three of her friends. The accused and complainant are alleged to have met near the pool table and commenced dancing and kissing. The accused turned the complainant so that her back was facing the accused and attempted to undo the front button and zip of her jeans. The complainant did not consent to this conduct and did the button and zip of her jeans back up. The accused attempted to put his hand under the complainant’s pants and shirt. The complainant tried to make him stop by pushing him away and then turned round and said “Stop”. The accused responded by saying “No, it’s fine, don’t worry”. They continued dancing. The accused started rubbing the complainant’s genital area from the outside of her jeans. This is alleged to be count 1, an act of indecency. The complainant is alleged not to have consented to this conduct and attempted to distance herself from the accused although, because of the cramped conditions, she was unable to cause the accused to stop. She turned round to face the accused and while they were kissing, she bit down hard on his lip. The accused left the complainant alone and she rejoined her friends. She walked home by herself. There was some private messaging on Facebook in relation to these incidents subsequently.
Counts 2 to 5 are alleged to have occurred on 24 July 2016. On 23 July 2016 the complainant and two of her friends travelled to the Mr Wolf nightclub. The complainant’s two friends ordered alcoholic drinks. The complainant only took a sip of one of her friends’ drinks. At about midnight the complainant and her friends went to Mooseheads. She had earlier in the evening consumed ecstasy and only drank water. Sometime later she saw the accused breaking up a fight. She and the accused then spent about two hours together in the company of her friends. She did not observe him consuming alcohol.
At about 3:30am the accused and the complainant agreed to leave Mooseheads and return to the complainant’s residence. There was some discussion about sexual intercourse and the complainant insisted on returning to her residence where she had access to latex free condoms. The complainant understood that she was allergic to latex and she had access to latex free condoms whereas the accused did not. The complainant and the accused went to the McDonald’s restaurant in East Row. The accused suggested that they go back to his residence at ADFA. The complainant agreed to return there on the basis that they would not have sexual intercourse as the accused did not have access to latex free condoms and she would not have unprotected intercourse. The accused is alleged to have agreed to that course of conduct.
When at the residence of the accused at ADFA, the accused removed his clothing and got into bed. The complainant removed her clothes except for her underwear. She also got into bed and the accused removed her underwear almost immediately. She performed oral sex upon him and then they commenced kissing. While the complainant was on top of the accused he attempted to insert his penis into her vagina. This is count 2 on the indictment, attempted sexual intercourse without consent. There was then a conversation between the two in which the complainant indicated that they were not going to have sexual intercourse and that she was allergic to the condoms which he had. He said words that indicated that he agreed not to have sexual intercourse. The sexual interaction continued with the complainant stimulating the accused’s penis, the accused digitally penetrating her vagina and then her anus. He returned to penetrating her vagina but was asked not to continue and did not. The accused then commenced rubbing the head of his penis around the complainant’s anus before attempting to push his penis into her anus. The complainant stopped him and no penetration occurred. This gives rise to count 3, attempted sexual intercourse without consent.
The complainant immediately told the accused to stop and said that he was not listening to what she was saying and that “I’m done”. She rolled over and faced away from him. He said “You’re not going to sleep yet, I’m not done”. He pulled her into the middle of the bed onto her back and sat on top of her hips. He commenced masturbating himself. She unsuccessfully attempted to escape from this position. The accused moved further up her body so that he was sitting on her rib cage, remaining there until she stopped struggling and then moved back to her hips. This gives rise to count 4, an act of indecency in the third degree. That offence involves an assault with the intention of committing an act of indecency upon the complainant. The accused then masturbated while sitting on the complainant for three to five minutes until he ejaculated on her chest. This gives rise to count 5 on the indictment, an act of indecency.
The complainant left the accused’s residence at about 9:00am the same day. There is reference in the case statement to evidence of contemporaneous complaint and of admissions being made by the accused. Those admissions are alleged to have occurred during a covertly recorded conversation, which occurred 2 August 2016, when the accused and the complainant had a meeting at the complainant’s residence, a residential college at the Australian National University. During the course of that conversation, the complainant is recorded as saying:
I am someone who has always been a very clear person, being active in the BDSM community … where consent boundaries and a simple word that is two letters are so important, and I know for a fact that I was clear, because in every situation I approach, I make it abundantly clear.
It appears to be uncontroversial that the reference to “BDSM” in the transcript of the covert recording should be understood as a reference to bondage, discipline (or domination), sadism and masochism.
Late written submissions
The grounds for the application set out in the Application in Proceeding, dated 6 December 2017, merely repeated the statutory formula and as a consequence did not serve to articulate the substance of the argument to be put on the application. Similarly, the written submissions filed by the accused in accordance with the timetable for such submissions set by the Court did not articulate in any detail the argument to be made at the hearing of the application. At the hearing of the application, counsel for the accused provided further written submissions which articulated in some detail the actual argument that was put in support of the application.
While it is always useful to the Court to ultimately have, in written form, an outline of the argument put in support of the application, the late provision of such a document is prejudicial not only to the opposing party, but also to the capacity of the Court to dispose of such applications in a timely manner. There are obviously many circumstances, worthy and unworthy, which might lead to a failure to fully articulate the arguments of a party in accordance with directions for the provision of written submissions made by a court. Legal practitioners must, however, recognise that for the reasons that I have articulated, it is an undesirable practice to fail for any reason to properly articulate the arguments to be put when required to do so in written submissions.
It was not necessary for the purposes of the present application to explore the reasons for the late provision of submissions articulating the argument actually to be put on behalf of the accused and hence not appropriate to make any comment as to whether or not the late provision of such submissions arose from worthy or unworthy causes. I only remark on the issue lest it be thought that by failing to do so the Court is seen as condoning or encouraging such an approach to the preparation of written submissions. As I have indicated, it must be emphasised that practitioners only do their duty to the Court if they comply both in form and substance with directions to file and serve written submissions prior to a hearing.
Statutory provisions
Division 4.2.4 of the EMP Act provides:
Division 4.2.4 Evidence of complainant’s sexual reputation and activities
48Meaning of complainant and sexual offence proceeding—div 4.2.4
(1)For this division, the complainant, in relation to a sexual offence proceeding, is the person, or any of the people, against whom a sexual offence the subject of the proceeding is alleged, or has been found, to have been committed.
(2)For this division, a sexual offence proceeding is––
(a)a proceeding for a sexual offence; or
(b)a proceeding in relation to bail for a person charged with a sexual offence, whether or not the person is also charged with any other offence; or
(c)a sentencing proceeding for a person convicted or found guilty of a sexual offence, whether or not the person is also convicted or found guilty of any other offence; or
(d)an appeal arising out of a proceeding mentioned in paragraphs (a) to (c).
(3)For subsection (2) (a), a proceeding for a sexual offence includes—
(a)a proceeding for a sexual offence and any other offence; and
(b)a proceeding for a sexual offence and any other offence as an alternative to the sexual offence; and
(c)a proceeding for a sexual offence that may result in a finding of guilt (or committal for trial or sentence) for any other offence.
(4)To remove any doubt, for this section, a proceeding includes a committal proceeding.
49When does div 4.2.4 apply?
This division applies to evidence in a sexual offence proceeding.
50Immunity of sexual reputation
Evidence of the complainant’s sexual reputation is not admissible.
51General 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.
52Application for leave under s 51
Application for leave under section 51 (General immunity of evidence of complainant’s sexual activities) 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.
53Decision to give leave under s 51
(1)The court must not give leave under section 51 (General immunity of evidence of complainant’s sexual activities) 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 51, 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).
Consideration
The evidence relevant to the present application is that which is set out at [9] above. It forms part of the covert recording made on 2 August 2016.
The manner in which counsel for the accused articulated the relevance of the evidence was that the statement of the complainant recorded in the transcript would be used as a basis to suggest to her that in fact she had no actual recollection of whether or not she had articulated a refusal to consent to any particular act but instead was basing her evidence upon her usual practice derived from her experience in the area of BDSM sexual activities.
Counsel for the accused relied only upon s 53(1)(a) as he submitted that the evidence had “significant relevance” to a fact in issue, namely whether or not the complainant had made it clear that she did not consent to particular sexual acts. He did not rely upon s 53(1)(b) insofar as that provision was targeted at attacks on credit because any
cross-examination, while ultimately potentially affecting credit, was not limited to that issue as it also went directly to a fact in issue.
The cross-examination for which leave is sought was limited to identifying why consent was an issue of particular importance in the context of BDSM sexual activities and then putting the proposition that it was only by reason of her invariable practice in that context (and not because of any actual recollection) that she gave evidence of any explicit statements indicating a lack of consent to particular sexual acts with the accused.
In R v WR[No 1] [2015] ACTSC 198 at [17] Penfold J identified the following steps to be adopted in an application for leave under s 53:
(a)first to work out the nature of the evidence;
(b)then to determine whether the evidence is relevant in the trial;
(c)then to determine whether s 51 applies to it; and
(d)finally, to consider whether leave should be granted for the evidence to be admitted.
I will adopt the same approach.
Nature of the evidence
The nature of the evidence is the evidence to the effect of that recorded in the transcript that the complainant had a practice of very clearly dealing with the issue of consent which arose from her experience in BDSM sexual activities.
Relevance of the evidence
The evidence is relevant in the trial because it goes to a fact in issue in the case, namely, whether or not the complainant communicated a lack of consent to the accused prior to the acts in question. That is relevant both to establishing the fact of lack of consent, as well as to the state of mind of the accused, both of which are matters that the Crown must establish for one or more of the offences.
Given the centrality of these issues, exploration of the basis for the complainant’s evidence about what was said is evidence that has “substantial relevance to the facts in issue” as that expression was explained in R v Alas (No 2) [2017] ACTSC 333 at [9]. Having regard to the limited purpose of the cross-examination for which leave was sought, I do not accept the Crown submission that because there was no BDSM activity engaged in between the accused and complainant, and because the accused was unaware of the complainant’s BDSM activity, the evidence was denied substantial relevance.
Application of s 51
The proceedings are clearly a proceeding for a “sexual offence” and hence the proceeding is a “sexual offence proceeding” for the purposes of s 51. That is because the term “sexual offence” includes all of the offences in Pt 3 of the Crimes Act 1900 (ACT): EMP Act s 38 and hence includes each of the offences charged in the present case.
Section 51 applies to the cross-examination about the relevant part of the covert recording because the evidence of participation in BDSM activities is “Evidence of the sexual activities of the complainant” and is therefore not admissible without the leave of the Court. Similarly, cross-examination about the nature of those activities sufficient to demonstrate the significance of the issue of consent would also be evidence of the sexual activities of the complainant and hence require leave.
Should leave be granted?
The accused seeks to use the statement made in the covert recording as a basis for cross-examination to suggest an absence of actual (or good) recollection of what was said during the course of the sexual interaction with the accused. That will obviously be a central issue in the trial.
In a pre-trial ruling such as this, it is necessary to address a number of different circumstances which may exist at the trial.
The accused, at this stage, proposes to object to the admissibility of the covert recording. An Application in Proceeding as to its admissibility has been adjourned until the first day listed for the trial. If that application is pursued by the accused and is successful, then none of the recording or its transcript would be admitted into evidence.
In the event that the application to exclude the covert recording is unsuccessful, then the Crown would seek to have admitted into evidence the whole of the covert recording except that which refers to the complainant’s BDSM activity. The Crown contended that the portion of the transcript which makes reference to the reasons why the complainant stated she knew she was clear about what she consented to was credibility evidence that would be inadmissible under s 102 of the Evidence Act. The accused however contended that if the recording is admissible, then the whole of the recording should be admitted not merely part of it. It is not necessary or appropriate to attempt to resolve this aspect of the admissibility of the recording for the purposes of this application.
Therefore there are three possible situations:
(a)the covert recording not in evidence;
(b)the covert recording except BDSM references in the evidence; or
(c)the whole of covert recording in evidence.
If the covert recording was not in evidence then I would not grant leave to the accused to raise in cross-examination the involvement in BDSM activities. Clearly involvement in such activities involves minority sexual practices which are very personal, private and may be embarrassing to disclose in the context of a trial. If the covert recording is not part of the Crown case there appears to me to be insufficient reason to permit
cross-examination on that subject matter. That conclusion is reinforced by the fact that a refusal of leave does not prevent cross-examination on the substantive issue of whether the complainant has an actual recollection of what occurred. Such cross-examination may or may not result in evidence being given by the complainant that provokes an application for leave to cross-examine similar to that now made. However, such an application should be dealt with at the time that the evidence is given and is not appropriate for an advance ruling.
If the covert recording is admitted into evidence (either with or without the BDSM references) then I would grant leave to the accused to cross-examine in the limited fashion contemplated. If the whole of the recording is admitted, then the sexual activity of the complainant will have already been disclosed. The cross-examination would not involve any further significant intrusion into the complainant’s privacy than that caused by the admission of the whole of the recording.
If the recording is admitted but the reference to BDSM is excluded (whether because of the credibility rule or otherwise) I would grant leave for the limited cross-examination proposed. There are four reasons for that. First, the BDSM references only arise because the complainant volunteered that information in a recording that she made in circumstances where, I infer, she contemplated that it may not remain private. In those circumstances it is not unreasonable to permit cross-examination which relies upon things that she said where that recording is being used for the purposes of the proceedings. Second, the application was put on the basis that cross-examination would be limited in a manner which confined it to its legitimate forensic purpose, namely testing the basis for the complainant’s evidence as to what occurred and only identifying the nature of the BDSM activities to the extent necessary in order to identify why the issue of consent in relation to such activities is more than usually important. So long as
cross-examination is confined within such boundaries then the risk of unnecessary embarrassment or invasion of privacy, and the risk that the jury might misuse the evidence, is reduced. Third, the introduction of evidence making reference to other sexual practices, particularly minority sexual practices such as BDSM, may be prejudicial to the Crown case. That is because it may, to a greater extent than appropriate, influence the jury’s assessment of the complainant as a witness. No submissions were made by the Crown to this effect on the application for leave. While the avoidance of such issues may have been a purpose behind Div 4.2.4 of the EMP Act, having regard to the content of the covert recording and, if admitted, its significance in the case, this does not, so long as the cross-examination is confined in the manner proposed, provide a sufficient reason to warrant a refusal to grant leave. Fourth, insofar as the position of the Crown (as opposed to the complainant) is concerned, there would be an element of unfairness to the accused in permitting the balance of the covert recording to be used while at the same time refusing leave under s 53 to cross-examine on a fact in issue using material disclosed in that recording.
In the ruling that I will make, I will be specific as to the nature of the cross-examination which is permissible. I do so because the limited nature of the cross-examination has been a significant factor in my determination that it is appropriate to grant leave and so that the orders make clear to the parties and the trial judge what is permitted by the grant of leave.
I had contemplated that, in order to ensure that the trial judge retained some flexibility in relation to my ruling in the light of events at trial, it might be appropriate to build into the order granting leave the capacity of the trial judge to order otherwise. I have not done so because s 76(3) of the Court Procedures Act 2004 (ACT) contains within it sufficient flexibility. That flexibility arises from the fact that a ruling will not remain binding where “in the opinion of the trial judge it is not in the interests of justice for the order, ruling or direction to remain binding”. A change in evidence in the case from that which was anticipated when a pre-trial ruling was made is one reason why a trial judge may reach the conclusion that it is not in the interests of justice for the ruling to remain binding.
Ruling
The ruling of the Court is:
1. In the event that the recording, a transcript of which is Exhibit 1 on this application, is admitted into the evidence at the trial, the accused may
cross-examine the complainant upon the material at page 7 and 8 “I am someone … abundantly clear”, such cross-examination being limited to identifying the reason for the need for particular care in relation to consent for such activities and so as to put the suggestion that her evidence as to what occurred was based wholly or partly upon her practice in relation to such activities rather than upon her actual recollection of what occurred.
2. These reasons are not to be published on the internet or available for inspection on the file until the conclusion of the trial.
| I certify that the preceding thirty-six [36] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 2 February 2018 |
4
2
4