R v Um

[2021] ACTSC 44

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v UM

Citation:

[2021] ACTSC 44

Hearing Dates:

29 March 2021 

DecisionDate:

29 March 2021

Before:

Elkaim J

Decision:

See [6]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Pre-trail Application – Leave to adduce evidence of complainant’s extra-marital affair

Legislation Cited:

Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 78

Parties:

The Queen ( Crown)

UM ( Accused)

Representation:

Counsel

S Naidu ( Crown)

J Sabharwal ( Accused)

Solicitors

ACT Director of Public Prosecutions ( Crown)

Legal Aid ACT ( Accused)

File Number:

SCC 143 of 2020

ELKAIM J:

1. This matter commenced today. Before opening, the Crown requested leave to file an application in proceeding dated 26 March 2021. Neither the filing nor the application were opposed.

1. The application sought leave to lead evidence “of the sexual activities of the complainant, only in so far that she had an extramarital affair and that it was known to her husband (the accused).”

1. The reason the Crown wish to lead the evidence is because the alleged facts constituting the charges include the accused acting against the background of his knowledge of the affair.

1. The actions of the accused are said, at least in part, to be a reaction to his knowledge of the affair and his resentment of it.

1. I was of the view, enhanced by the consent of the accused, that the affair, as required by s 78 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT), had “substantial relevance to the facts in issue”.

1. Accordingly I made Order 1 in the above application.

I certify that the preceding 6 [six] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim

Associate:

Date: 29 March 2021