The Queen v Babui - [2021] NTSC 74

CITATION: The Queen v Babui [2021] NTSC 74
PARTIES:THE QUEEN

v
BABUI, Joseph

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:22019151
DELIVERED:  16 September 2021
HEARING DATES:  13 and 16 September 2021
JUDGMENT OF:  Grant CJ
CATCHWORDS:

EVIDENCE – Discretions – Exclusion of evidence
Whether evidence concerning complaint of prior sexual assault and subsequent withdrawal within the scope of s 4 of the Sexual Offences (Evidence and Procedure) Act 1983 (NT) – Whether evidence had substantial relevance to the facts in issue – Evidence did not disclose false complaint or withdrawal of complaint – Relevant only to complainant’s credibility – Representations not made when witness under obligation to tell the truth – Evidence could not substantially affect the assessment of the credibility of the witness – Leave to call complainant to give evidence in hearing of preliminary issue refused – Application withdrawn.
Evidence (National Uniform Legislation) Act (NT) s 102, s 103
Sexual Offences (Evidence and Procedure) Act (NT) s 4
AM v The Queen [2006] NTCCA 18, referred to.
REPRESENTATION:
Counsel:
Crown:I Rowbottam
Accused:J Razi
Solicitors:
Crown:Office of the Director of Public Prosecutions
Accused:North Australian Aboriginal Justice Agency
Judgment category classification:    B
Judgment ID Number:  GRA2116
Number of pages:  6

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The Queen v Babui [2021] NTSC 74
No. 22019151
BETWEEN:

THE QUEEN

AND:

JOSEPH BABUI

CORAM: GRANT CJ
REASONS FOR JUDGMENT
(Delivered ex tempore on 16 September 2021)

The accused is charged with sexual intercourse without consent contrary to s 192(3) of the Criminal Code 1983 (NT).
Counsel for the accused initially made an application to adduce evidence of the complainant’s “sexual activities” with another person. Those “sexual activities” were said to involve sexual intercourse between the complainant and her partner at a time approximately six months after the alleged sexual intercourse without consent by the accused took place.
Section 4 of the Sexual Offences (Evidence and Procedure) Act 1983 (NT) relevantly provides:
Rules of evidence in relation to sexual offences
(1) In an examination of witnesses or a trial, whether or not it relates also to a charge of an offence other than a sexual offence against the same or another defendant, except with the leave of the court, evidence shall not be elicited or led, whether by examination in chief, cross-examination or re-examination, relating to:
(a) the complainant's general reputation as to chastity; or
(b) the complainant's sexual activities with any other person,
and the leave of the court shall not be granted unless the court is satisfied that the evidence sought to be elicited or led has substantial relevance to the facts in issue.
(2) For the purposes of subsection (1)(b), evidence that relates to or tends to establish the fact that the complainant was accustomed to engage in sexual activities with any other person, shall not be regarded:
(a) as having substantial relevance to the facts in issue by reason only of an…

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 The Queen v Babui

Details

AGLC: The Queen v Babui [2021] NTSC 74
Case: [2021] NTSC 74
Decision Date: 16 September 2021

CaseChat Overview and Summary

The defendant was charged with various sexual offences and sought leave to lead evidence that the complainant had previously complained of a sexual assault by her partner, which she subsequently withdrew. The case was heard in the Supreme Court of the Northern Territory. The court was required to determine whether the evidence sought to be led was within the scope of section 4 of the Sexual Offences (Evidence and Procedure) Act 1983 (NT), and whether it had substantial relevance to the facts in issue. The court found that the evidence did not disclose a false complaint or the withdrawal of a complaint, but rather related to the complainant’s credibility. The representations were not made when the witness was under an obligation to tell the truth, and therefore could not substantially affect the assessment of the credibility of the witness. The court refused leave to call the complainant to give evidence in the hearing of the preliminary issue, and the application was subsequently withdrawn.

The court considered the purpose of section 4 of the Act, which was to prevent the use of evidence that was not substantially relevant to the facts in issue, and to protect complainants from having their sexual history or reputation put before the court. The court found that the evidence did not relate to the complainant's general reputation as to chastity, or her sexual activities with any other person, and therefore did not fall within the scope of section 4. However, the court also found that the evidence did not have substantial relevance to the facts in issue, as it did not disclose a false complaint or the withdrawal of a complaint. The evidence was only relevant to the complainant’s credibility, and the representations were not made when the witness was under an obligation to tell the truth. The court concluded that the evidence could not substantially affect the assessment of the credibility of the witness, and therefore did not have substantial relevance to the facts in issue. The court refused leave to call the complainant to give evidence in the hearing of the preliminary issue, and the application was subsequently withdrawn.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Section 4 of the Sexual Offences (Evidence and Procedure) Act 1983 (NT) relevantly provides:Rules of evidence in relation to sexual offences(1) In an examination of witnesses or a trial, whether or not it relates also to a charge of an offence other than a sexual offence against the same or another defendant, except with the leave of the court, evidence shall not be elicited or led, whether by examination in chief, cross-examination or re-examination, relating to:(a) the complainant's general reputation as to chastity; or(b) the complainant's sexual activities with any other person,and the leave of the court shall not be granted unless the court is satisfied that the evidence sought to be elicited or led has substantial relevance to the facts in issue.(2) For the purposes of subsection (1)(b), evidence that relates to or tends to establish the fact that the complainant was accustomed to engage in sexual activities with any other person, shall not be regarded:(a) as having substantial relevance to the facts in issue by reason only of an inference it may raise as to general disposition; or(b) as being proper matter for cross-examination as to credit, in the absence of special circumstances by reason of which it would be likely materially to impair the confidence in the reliability of the evidence of the complainant.(3) For the purposes of subsection (1)(b), and without derogating from the relevance of other evidence in an examination of witnesses or a trial, evidence of an act or event that is substantially contemporaneous with an offence with which a defendant is charged, or that is part of a sequence of acts or events that explain the circumstances in which the alleged offence was committed, shall be regarded as having substantial relevance to the facts in issue.(4) An application for leave of the court for the purposes of subsection (1)(b) shall be made in the absence of the jury, if any, and, if the defendant so requests, in the absence of the complainant, and shall be determined after the court has allowed such submissions or evidence, given on oath or otherwise, as it considers necessary for the determination of the application. The evidence sought to be adduced and on which the application was predicated may be summarised as follows:(a)There is a note in the clinical records of the Palmerston Regional Hospital made during an attendance by the complainant at 02:40 hours on 29 December 2020 recording that the complainant reported a sexual assault by her partner, in addition to a physical assault involving the same partner punching her to the head.(b)There is a case note entry made by a police officer at 11:24 hours on 29 December 2020 recording that the complainant had told doctors she had been sexually assaulted (inferentially, by her partner).(c)There are notes made by a nurse at 13:24 hours on 29 December 2020 recording that account by the complainant that she had consensual sex with her partner on 28 December 2020, but there had been intermittent episodes of physical assault and some non-consensual sex prior to that time.(d)There is a statement made by a police officer in respect of an attendance on the complainant at 15:57 hours on 29 December 2020 where the complainant is recorded as saying that her partner had sex with her without her consent, without specifying a particular time or occasion. That is repeated in a subsequent briefing note.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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