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of the witness – Leave to call complainant to give evidence in hearing of preliminary issue refused – Application withdrawn.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)

1. The accused is charged with sexual intercourse without consent contrary to s 192(3) of the Criminal Code 1983 (NT).

2. 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.

3. 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.

4. 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.

5. The evidence in question is clearly not evidence directed to the complainant’s “general reputation as to chastity” within the meaning of s 4(1)(a) of the Sexual Offences (Evidence and Procedure) Act. Nor is the evidence sought to be called to suggest that the complainant was “accustomed to engage in sexual activities with another person” within the meaning of s 4(2) of the Sexual Offences (Evidence and Procedure) Act. However, the evidence does relate to the complainant’s “sexual activities” with another person within the meaning of s 4(1)(b) of the Sexual Offences (Evidence and Procedure) Act, such that leave is required before the evidence may be adduced. 

6. Under the terms of the provision, only evidence of this type having substantial relevance to the facts in issue may be admitted: see AM v The Queen [2006] NTCCA 18 at [46].

7. Counsel for the accused says this evidence is relevant to the complainant’s credit, because it demonstrates that she has made false allegations of sexual intercourse without consent against another person, and subsequently withdrawn those allegations.  The doctor who made the record in the Palmerston Regional Hospital notes has been spoken to and has no recollection beyond what is recorded in the notes.  The police records speak for themselves.  Counsel for the accused subsequently made application to call the complainant to give evidence in a preliminary hearing to explore the nature of the complaints she made at those times.  The application to call the complainant for that purpose is refused, for two reasons.

8. First, the evidence, even taken at its highest for the accused, does not disclose a false allegation of rape against the complainant’s partner.  At its highest, it suggests an account given by the complainant that she had previously been subjected to episodes of non-consensual physical intercourse by her partner.  There is no reason to doubt that account, even allowing for the fact that the complainant has not pursued any formal complaint to police in relation to the issue.  In any event, the account sought to be relied on by counsel for the accused is somewhat confused across the various recordings, no doubt because it was given by the complainant to different people in circumstances where she was intoxicated and in the aftermath of an alleged physical assault by her partner.  Quite apart from not demonstrating a false allegation, the evidence also does not demonstrate any withdrawal of the allegation.

9. Second, evidence of that type is not admissible except, so far as is relevant for these purposes, in cross-examination as to credibility.  It will only satisfy the test for admissibility for that purpose if it could substantially affect the assessment of the credibility of the witness: see Evidence (National Uniform Legislation) Act (NT), ss 102, 103. In making that determination, the court may have regard to whether the evidence could prove that the witness knowingly or recklessly made a false representation when she was under an obligation to tell the truth, and the period that has elapsed since the actual events to which the evidence relates were done or occurred. For the reasons I have attempted to describe, the evidence could not prove that the complainant has made a false representation, and does not establish that the representations were made when the witness was under an obligation to tell the truth in the relevant sense. Given the circumstances in which the complaints are said to have been made, the complainant’s position and intoxication at the time the relevant representations were made tells against any submission that the evidence might substantially affect her credibility.

10. In those circumstances, there was no legitimate forensic purpose in calling the complainant in an attempt to elucidate the alleged representations further for the purpose of a preliminary application.  Given the refusal to require the complainant to give evidence for that purpose, the application to adduce evidence at trial of the complainant’s sexual activities with another person was withdrawn.

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