R v WR [No 1]
[2015] ACTSC 198
•11 March 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v WR [No 1] |
Citation: | [2015] ACTSC 198 |
Hearing Date: | 11 March 2015 |
DecisionDate: | 11 March 2015 |
Before: | Penfold J |
Decision: | Leave is given, to the extent necessary, for defence counsel to cross-examine a complainant about an incident of alleged sexual abuse of another complainant. |
Category: | Procedural and other rulings |
Catchwords: | CRIMINAL LAW – EVIDENCE – Evidentiary Matters Relating to Witnesses and Accused Persons – application to cross-examine complainant in sexual offence proceedings about claims of sexual abuse made by another complainant in relation to person not party to trial – admissibility of evidence of sexual activities of complainant – whether evidence is relevant – whether evidence of other sexual assaults of complainant is evidence of sexual activities of complainant – whether evidence is a proper matter for cross-examination of complainant – leave given for cross-examination. |
Legislation Cited: | Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 51, 52, 53, 53(1), 53(3), 53(4) Evidence Act 2011 (ACT), s 55 |
Cases Cited: | R v CH and JW [2010] ACTSC 75 |
Parties: | The Queen (Crown) WR (Accused) |
Representation: | Counsel Mr T Hickey (Crown) Mr K Archer (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused) | |
File Number: | SCC 179 of 2013 |
Introduction
WR is on trial for sexual offences allegedly committed against two young girls on the same night and in the same circumstances in early 2001.
Defence counsel has, by written application, sought leave under s 51 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (the EMP Act) to cross-examine one of the complainants, E, about a conversation with the other complainant, A, on 26 August 2012 in which, E says, A reported incidents of sexual interference involving persons other than WR and not in any way connected with the events with which this trial is concerned. After argument, I made an order giving leave, to the extent necessary, for that matter to be raised in evidence.
Under s 53(4) of the EMP Act, I am obliged to give written reasons for making that order. These are those reasons.
Background
It is necessary first to set out some background and a brief chronology.
The alleged offences
The trial involves complaints made of sexual interference with two girls alleged to have been committed by WR around the beginning of April 2001. On the night concerned, a party took place at a house in the Canberra suburb of Theodore. Most of the guests were adults. However, also present that night were the two daughters of the hosts (E and J), and a friend of theirs (A) whose mother was a guest at the party. The accused also attended the party.
Alcohol was consumed by the adults, and arrangements were made for most of the party guests to sleep at the house. E, then aged 10, the elder daughter of the hosts, and her friend A, then aged 9, found themselves sleeping on a sofa bed in the living room with WR.
Both girls say that during the night, WR molested them. Those allegations came to light within a few weeks after the party, via a fairly roundabout route.
A told E’s younger sister J, and she told her mother N.
N in turn spoke to A’s mother, and the two women then spoke to A, who told them that WR had touched her bum.
N reported the disclosures to police but did not make a formal complaint, and indicated that the girls would not speak to police at that stage. E, when asked, said that she had also been touched by WR on the night concerned.
The complaints
More than 11 years later, in August 2012 (probably 21 August), E went to Tuggeranong Police Station and made a formal complaint about WR’s behaviour.
E then contacted A to tell her that the complaint had been made, and that A was likely to be contacted by police.
On 3 September 2012, E went to the Winchester Centre in Belconnen and made a witness statement.
That witness statement referred to a conversation between E and A on 26 August 2012, that is, between E’s initial report to police at Tuggeranong Police Station and the making of E’s witness statement. E described what A said to her in that conversation as follows:
[A] then said that [WR] wasn’t the only person that had touched her, that the other two people that touched her were a father and son by the name of Dave and his son. [A] said that Dave and his son also made her brother watch one time while they did things to her and that Dave would make her give him head.
It is this statement about which defence counsel seeks to question E.
The legislation
The relevant provisions of the EMP Act are as follows:
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).
The issues
In order to determine whether defence counsel should be permitted to question E about this evidence, it is necessary to consider the detail of the evidence in several stages:
(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, if necessary, to consider whether I should give leave for the evidence to be admitted by being put to E in cross-examination.
The nature of the evidence
The material that defence counsel sought to put to E in cross-examination is set out at [14] above. If that material is evidence of any sexual activity by a complainant, it is not evidence of sexual activity by E but evidence of sexual activity by the other complainant, A.
Relevance of evidence (1)
Unless the evidence is relevant in this trial, it cannot be admitted, irrespective of the operation of s 51 and any orders I might make. Section 55 of the Evidence Act 2011 (ACT) is as follows:
The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
As I understand this case, defence counsel wishes to put to the jury that the complaints made by the two complainants have both changed and become more detailed over time, and for that reason cannot be relied on. It is put that establishing that the complaints made by a complainant have taken various different forms over time could rationally affect the jury’s assessment of the probability of the existence of the facts asserted by the complainants and put in issue by the defence. I accepted this proposition, which is fundamental to my reasoning set out below.
As far as I can see, the extract from E’s statement is, to the extent that it is hearsay evidence of sexual assaults on A unrelated to the circumstances of the current charges and by a person not charged in this trial, not relevant to this trial.
Defence counsel says, however, that evidence of what A said to E is relevant (irrespective of the truth of A’s statements) because this conversation could have led to A making, in the statement that she subsequently gave to police, claims of activities by WR that were similar to those she made to E in relation to “Dave and his son”. That is, the relevance of the extract from E’s statement is that it describes a possible source of the detail of A’s subsequent statement about WR.
The next question is whether, if the evidence is relevant on that basis, s 51 would apply to the evidence.
Does s 51 apply to the evidence?
In the form set out at [14] above, is the extract from E’s statement “evidence of the sexual activities of the complainant A”?
In my view, the material set out in the extract from E’s statement is not “evidence of the sexual activities of A”. If the extract from her statement is confirmed by E, it is evidence of what A told E, and is relevant as evidence of that report rather than as evidence of the events reported. Even if, having been admitted for that purpose, it would in other circumstances also be available as evidence of the events described in A’s report to E, those events as such are not relevant in this trial, so the evidence would have no work to do as evidence of those events.
That is, the only relevance of the material in this trial is as evidence of a conversation about certain events, not as evidence of the events themselves. As such, evidence of what A told E, if relevant in this trial at all, is not evidence of the sexual activities of A and is not rendered inadmissible by s 51.
I note also, although it is not a necessary part of my decision in this case, that I am yet to be convinced that evidence of the imposition of a non-consensual sexual act on a complainant (especially a child) falls within the expression “sexual activities of the complainant” at all. On the other hand, it may be that whether or not such evidence is properly described as “sexual activities of the complainant” has little practical significance.
Evidence to which s 51 applies is, in essence, admissible if the court is persuaded that it is genuinely relevant; the particular significance of the legislative provisions is to clarify that sexual reputation, and disposition to engage in sexual activities, are not proper subjects of relevant evidence, and more generally to ensure that relevance is positively established before the evidence is admitted (rather than leaving a party who objects to the admission of the material to establish irrelevance). Evidence that a complainant had been subjected to other sexual assaults would not establish reputation or general disposition, so the only question likely to arise in relation to such evidence is whether it is relevant to the instant trial, either directly or in relation to the complainant’s credibility (see R v CH and JW [2010] ACTSC 75 at [71] to [74]). On that basis, the only significance of identifying such evidence as evidence of sexual activity by the complainant is that a decision to admit it would require specific consideration and written reasons.
Relevance of evidence (2)
If I am wrong about whether evidence of what A told E is evidence of the sexual activities of A, then I would find that the evidence should be admitted under s 51.
The only direct evidence of the act in relation to A that is alleged against WR will be the evidence of A. The only supporting evidence will be evidence of her various complaints. The proposition that A has made her complaint against WR by reference to the facts of the alleged assaults by “Dave and his son”, either dishonestly or as a result of her confusion, must relate to her credibility.
If the evidence is to be admissible on that basis, I would need to be satisfied, as required by ss 53(1) and (3), that the sexual activity evidence, if accepted, would be a proper matter for cross-examination of A as to credit because it would be likely to substantially impair confidence in the reliability of her evidence.
Defence counsel’s suggestion that the details of the complaint against WR finally given to police by A might have been inspired by her conversation with E about rather different instances of sexual molestation seemed to me to be a fairly weak argument. However, I understood that, as explained above, the challenge to A’s reliability was based on an examination of all the versions of her complaint made in the course of some 11 years; one might expect that the impact of such a challenge depends on the accumulation of different versions rather than on any particular difference between any two versions. In such a case, it seemed to me that it would be appropriate to consider not only the impact of the particular piece of evidence alone but the impact of the particular piece of evidence as part of the larger collection of evidence about the complaints made by A.
The grounds for allowing the cross-examination proposed were not overwhelmingly strong. However, in this case it seemed to me that the importance of allowing the accused to make the best defence he could would outweigh the need to protect A from the suggestions to be made on behalf of the accused, especially since those suggestions, while challenging the reliability of her evidence, would not on the face of it involve any attack on her own sexual morality.
In giving my ruling during the course of the trial, I suggested that the evidence concerned might also be relevant to a fact in issue. On reflection, I consider that there are stronger arguments for admitting the evidence as a basis for cross-examination as to credit and therefore have not pursued the question whether the evidence also has substantial relevance to a fact in issue.
Conclusions
In summary, I was not satisfied that the evidence of what A said to E on 26 August 2012 was evidence of the sexual activities of A but, for the reasons set out at [32] above, I was also satisfied that if that evidence was evidence of the sexual activities of A, it would have been appropriate to admit it under s 51 of the EMP Act on the basis that it was a proper matter for cross-examination of A as to credit.
| I certify that the preceding thirty-five [35] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold. Associate: Kate Harris Date: 31 July 2015 |