The Queen v GH (No 2)

Case [2018] NTSC 23

CITATION: The Queen v GH (No 2) [2018] NTSC 23

PARTIES:THE QUEEN

v

GH

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  SUPREME COURT exercising Territory jurisdiction

FILE NO:21608932

DELIVERED:  13 April 2018

HEARING DATE:  3 and 6 April 2018

JUDGMENT OF:  Grant CJ

CATCHWORDS:

EVIDENCE – RELEVANCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS – MISCELLANEOUS MATTERS

Whether evidence concerning the complainant’s prior sexual abuse fell within the scope of s 4 of the Sexual Offences (Evidence and Procedure) Act (NT) – whether evidence was irrelevant to the determination of any issue which presented in the proceeding and therefore inadmissible in accordance with s 56(2) of the Evidence (National Uniform Legislation) Act (NT) – evidence of other episodes of prior and/or contemporaneous sexual abuse, if established, directly relevant to the reliability of complainant’s testimony that it was the applicant who had sexually abused her – expert opinion admissible only in relation to the memory process generally and the matters which might bear on that process.

Evidence of acts of self-harm by complainant in support of the allegations of sexual abuse against the accused admissible – evidence concerning the other episodes of historical sex abuse potentially provides alternative explanation for complainant’s behavioural changes. 

Confidential communications between counsellors and victims generally protected unless substantial probative value warrants grant of leave – report prepared in fulfilment of reporting obligations under child protection legislation not admissible in proceedings except with the court’s leave – reports in question predated commencement of current legislation – no obligation under former legislation precluding admission of the documents – exception to hearsay rule in s 69 of the Evidence (National Uniform Law) Act in relation to business records not confined to first and second hand hearsay.

Complaint evidence admissible notwithstanding substantial delay.

Evidence of distress at time of complaint should not be admitted if only tenuous or remote relationship between distressed condition and offence alleged – assessment one of fact and degree – relevant test for admissibility whether reasonably open for jury to draw inference that causal connection between alleged sexual abuse and the distress – evidence admissible having regard to nature of the alleged offending, age of the complainant at the time, manner in which distress manifested, and circumstances of the complaints – questions of weight arise with such evidence and jury should be warned of its limitations.

Criminal Code (NT) s 331A
Evidence Act (NT) s 21B, s 56, s 56B, s 56E
Evidence (National Uniform Legislation) Act (NT) s 38, s 55, s 56(2), s 66, s 69, s 76, s 79, s 101A, s 102, s 103, s 108C, s 137, s 164, s 192A
Sexual Offences (Evidence and Procedure) Act (NT) s 4

AM v The Queen [2006] NTCCA 18, Azarian v State of Western Australia [2007] WASCA 249, Clay v The Queen [2014] VSCA 269, Gregory v The Queen (1983) 151 CLR 566, HG v R

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The Queen v GH (No 2) [2018] NTSC 23
Case
[2018] NTSC 23
Decision Date

CaseChat Overview and Summary

The case of The Queen v GH (No 2) involved the accused, GH, charged with multiple offences of sexual abuse against a complainant, AN. The primary legal issue before the court was whether evidence concerning AN's prior sexual abuse fell within the scope of section 4 of the Sexual Offences (Evidence and Procedure) Act (NT) and if such evidence was irrelevant to the determination of any issue in the proceeding, rendering it inadmissible under section 56(2) of the Evidence (National Uniform Legislation) Act (NT). The court had to determine whether evidence of other episodes of prior and/or contemporaneous sexual abuse was directly relevant to the reliability of AN's testimony that it was GH who had sexually abused her. Additionally, the court had to decide if expert opinion could be admitted in relation to the memory process generally and the matters which might bear on that process.

The court examined the provisions of section 4 of the Sexual Offences (Evidence and Procedure) Act (NT), which generally prohibit the introduction of evidence relating to the complainant's sexual activities with any other person, except with the leave of the court. The court found that the evidence of prior sexual abuse was not barred by section 4(1)(a) as it did not pertain to AN's "general reputation as to chastity" nor was it evidence suggesting that AN was "accustomed to engage in sexual activities with another person" within the meaning of section 4(2) of the Act. The court acknowledged that the evidence related to "sexual activities" within the meaning of section 4(1)(b), and thus required leave to be adduced. The court considered whether the episodes of prior sexual abuse were "substantially contemporaneous" with the offences charged under section 4(3) of the Act, given that they occurred within three years prior to the alleged offences. The court determined that the substantial contemporaneity lent the evidence a high degree of relevance, aligning with the purpose of the provision to admit only evidence having substantial relevance to the facts in issue. Furthermore, the court held that evidence of acts of self-harm by the complainant in support of the allegations of sexual abuse against the accused was admissible, as it did not fall under the prohibitions of section 4. The court also considered that evidence concerning other episodes of historical sexual abuse potentially provided an alternative explanation for the complainant’s behavioural changes.

The court ruled that the evidence concerning the complainant’s prior sexual abuse was relevant and admissible as it pertained to the reliability of her testimony. The court also found that the evidence of acts of self-harm was admissible as it supported the allegations of sexual abuse against the accused. The court granted leave for the evidence to be adduced, finding it had substantial relevance to the facts in issue.

The final orders of the court included the admission of evidence concerning the complainant’s prior sexual abuse and acts of self-harm, subject to the conditions and considerations outlined in the judgment. The court's decision underscored the importance of balancing the relevance and probative value of the evidence against the potential prejudice to the complainant.

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 (NT) provides relevantly: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 in question is clearly not evidence relating to AN’s “general reputation as to chastity” within the meaning of s 4(1)(a) of the Sexual Offences (Evidence and Procedure) Act. Nor does the evidence suggest that AN 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 accused accepts that the evidence relates to “sexual activities” 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. The accused submits that the episodes of prior sexual abuse were “substantially contemporaneous” with the offences charged within the meaning of s 4(3) of the Sexual Offences (Evidence and Procedure) Act, because they took place over a period within the three years prior to the commission of the offences alleged against the accused. It is said that given the complainant will be recalling in her evidence events from almost 20 years ago, there is a relative or substantial contemporaneity which lends the evidence a high degree of relevance. This is said to meet the purpose of the provision, which is that only evidence of this type having substantial relevance to the facts in issue may be admitted: AM v The Queen [2006] NTCCA 18 at [46].

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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