R v WR [No 1] - [2015] ACTSC 198

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…

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 WR [No 1]

Details

AGLC: R v WR [No 1] [2015] ACTSC 198
Case: [2015] ACTSC 198
Decision Date: 11 March 2015

CaseChat Overview and Summary

The case of R v WR [No 1] involved a dispute concerning the admissibility of certain evidence in sexual offence proceedings. Defence counsel sought to cross-examine the complainant, E, about claims of sexual abuse made by another complainant, A, in relation to a person not party to the trial. The primary legal issue before the court was whether evidence of sexual activities of the complainant, in this case, A, is relevant and admissible under the Evidence Act 2011 (ACT). The court had to determine if the evidence of other sexual assaults of the complainant was a proper matter for cross-examination of the complainant.

The court found that the evidence in question was not evidence of the sexual activities of the complainant, E, but rather evidence of the sexual activities of another complainant, A. The court accepted that the evidence might be relevant to the extent that it could have led to A making claims of activities by WR that were similar to those she made to E in relation to “Dave and his son”. However, the court held that the material in question was not evidence of the sexual activities of A and was not rendered inadmissible by s 51 of the Evidence Act 2011 (ACT). The court concluded that the evidence, if relevant at all, was relevant as evidence of a conversation about certain events, not as evidence of the events themselves. The court noted that even if the evidence was relevant, it would not be admissible as evidence of the events described in A’s report to E, as those events were not relevant in the current trial.

The court granted leave for defence counsel to cross-examine the complainant, E, about the incident of alleged sexual abuse of another complainant, A, to the extent necessary. This decision allowed the defence to explore the potential influence of A’s statements on E’s own allegations, while ensuring that the evidence remained relevant and admissible under the Evidence Act 2011 (ACT). The court's reasoning focused on the relevance of the evidence and its admissibility under the specific provisions of the Act, ultimately permitting the cross-examination to proceed within the bounds of the law.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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. 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: 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. 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.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.