The State of Western Australia v RA - [2014] WADC 90

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION: PERTH

CITATION: THE STATE OF WESTERN AUSTRALIA -v- RA [2014] WADC 90

CORAM: BOWDEN DCJ

HEARD: 7 JULY 2014

DELIVERED : 8 JULY 2014

FILE NO/S: IND 129 of 2014

BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
THU RA

Catchwords:

Application by the accused to lead evidence pursuant to s 36BC Evidence Act

Legislation:

Evidence Act 1906

Result:

Leave granted to the accused to lead the disputed evidence

Representation:

Counsel:

The State of Western Australia : Mr J Newton-Palmer
Accused: Ms G Clarke

Solicitors:

The State of Western Australia : Director of Public Prosecutions
Accused: Gabrielle Clarke Legal

Case(s) referred to in judgment(s):

Armstrong v The State of Western Australia [2012] WASCA 42; (2013) 228 A Crim R 274
Bolton v The State of Western Australia [2007] WASCA 27
Bull v The Queen [2000] HCA 24; (2000) 201 CLR 443; 171 ALR 613
Kelly v The State of Western Australia [2013] WASCA 114
Pollitt v The Queen (1992) 62 A Crim R 190
R v Morgan (1993) 67 A Crim R 526
VOT v The State of Western Australia [2008] WASCA 102; (2008) 184 A Crim R 284

BOWDEN DCJ: The accused is charged with three offences of sexual penetration without consent, allegedly occurring between 16 August 2013 and 19 August 2013.

A brief overview of the prosecution case

The prosecution allege that the accused was residing in the complainant's family home with the complainant, her mother and her younger brother.
Between 9.30 pm on 17 August and approximately 1.00 am on 18 August 2013 it is alleged that the accused performed without the complainant's consent an act of cunnilingus (count 1), digital penetration (count 2) and penile penetration (count 3).
The accused was arrested on 19 August and participated in an electronic record of interview with the police and allegedly admitted the act of cunnilingus and one count of penile penetration but maintained it was consensual.

The evidence the defence seek to lead

The defence seek to lead evidence that on Sunday 18 August about 12 ‑ 15 hours after the offence is alleged to have occurred but before the complainant attended the Midland Police Station and the Sexual Assault Resource Centre the complainant and her boyfriend had consensual sex (the disputed evidence).
Statements from both the complainant and her boyfriend confirmed that they had sex some time on the Sunday afternoon.
The prosecution oppose the application.

The law

Evidence Act 1906

36B.Sexual reputation of complainant, evidence of
In proceedings for a sexual offence, evidence relating to the sexual reputation of the complainant shall not be adduced or elicited by or on behalf of an accused.
36BA.Sexual disposition of complainant, evidence of
In proceedings for a sexual offence, evidence relating to the disposition of the complainant in sexual matters shall not be adduced or elicited by or on behalf of an accused.
36BC. Sexual experience of complainant, evidence of
(1)In proceedings for a sexual offence, evidence relating to the sexual experiences of the complainant, being sexual experiences of any kind, at any time and with any person, not being part of the res gestae of the proceedings, shall not be adduced or elicited by or on behalf of an accused unless leave of the court has first been obtained on application made in the absence of the jury (if any).
(2)The court shall not grant leave under subsection (1) unless satisfied that —
(a)what is sought to be adduced or elicited has substantial relevance to the facts in issue; and
(b)the probative value of the evidence that is sought to be adduced or elicited outweighs any distress, humiliation or embarrassment which the complainant might suffer as a result of its admission.

The disputed evidence tends to prove the disposition of the complainant in sexual matters and s 36BA prohibits its tender except where it is also evidence of the sexual experience of the complainant and is otherwise admissible under s 36BC: Bull v The Queen [2000] HCA 24; (2000) 201 CLR 443; 171 ALR 613; Bolton v The State of Western Australia [2007] WASCA 277 [51].

Is it evidence of sexual experiences?

The disputed evidence is evidence of sexual activity between the complainant and her boyfriend and is evidence of sexual experiences.
Such evidence is admissible, without leave of the court, if it is part of the res gestae of the proceedings.

Is the disputed evidence part of the res gestae?

Generally, the res gestae refers to conduct or statements made spontaneously by an observer or participant during or immediately after the event the subject of the charge. The conduct or statement needs to be approximately but not exactly contemporaneously with the offence, and be of a spontaneous nature such that it excludes the possibility of concoction or distortion. Bull v The Queen; Bolton v The State of Western Australia; Armstrong v The State of Western Australia [2012] WASCA 42; (2013) 228 A Crim R 274; Kelly v The State of Western Australia [2013] WASCA 114; Ratten v The Queen [1972] AC 378.
In Bull the High Court specifically dealt with the meaning of the words 'res gestae' in s 36BC, saying that:
Where an act or statement is intimately connected with the particular sexual conduct which is the subject of the charge, or in other words with 'the parts and details of the transaction' amounting to the crime' it is part of the res gestae and is so admissible under s 36BC without leave. That applies to acts or matters tending to prove the disposition of the complainant, as well to other acts or matters, relating to the sexual experience of the complainant.
The sexual activity between the complainant and her boyfriend occurred 12 ‑ 15 hours after the alleged offence and cannot be said to be intimately connected with the sexual conduct the subject of the charge or the parts and details of the transaction and is not part of the res gestae. The required nexus of contemporaneousness is absent.
Therefore the evidence is only admissible if it has substantial relevance to the facts in issue and its probative value outweighs any distress, humiliation or embarrassment which the complainant might suffer as a result of its admission.

Is the disputed evidence of substantial relevance?

For the evidence to be admissible it must have substantial relevance to a fact in issue or a fact relevant to a fact in issue.
For fact to be relevant it must either by itself or in combination with other facts, or inferences drawn from those other facts, as a matter of common experience makes more or less likely a fact in issue or a fact relevant to a fact in issue: Pollitt v The Queen (1992) 62 A Crim R 190 (Brennan J).
In VOT v The State of Western Australia [2008] WASCA 102; (2008) 184 A Crim R 284 Steytler P whilst commenting that it was unhelpful to define the phrase 'substantial relevance to the fact in issue' was of the opinion that it was evidence that carries substantial weight in tending to prove or disprove a fact.
Heenan AJA said that it was evidence that was of more than minor or insubstantial relevance and that the judge would need to be satisfied that the evidence, if adduced and not otherwise refuted or explained, did have the potential to affect a finding on a crucial issue of fact.
Heenan AJA said a ruling that the evidence had substantial relevance is no more than a ruling that, as at the time of the ruling, the evidence has the potential to be of substantial relevance and that position can be greatly changed by further developments occurring during the course of the trial.
There have been no formal admissions from the accused and the issue of whether penetration occurred and whether there was consent will be issues at the trial.
If the evidence sought to be admitted goes only to the credit of the complainant, it is clearly inadmissible: Hill v The Queen [2003] WASCA 177 [49] (McLure J). The days when an inference adverse to the credit of a complainant could be drawn from the fact that she had consensual sexual intercourse with her boyfriend are long gone.
The State intends to adduce recent complaint evidence. That evidence consists of a complaint made by the complainant to her boyfriend that she had been sexually abused. That complaint is not evidence of the truth of the matters complained about but is evidence showing the consistency of the complainant's conduct and therefore a matter that a jury can consider when evaluating the complainant's credibility.
Shortly after that complaint the defence seek to establish that the complainant had sexual intercourse with her boyfriend, an act they say is inconsistent with her having non-consensual sex shortly before the complaint (a fact in issue). The defence seek to lead this evidence on the basis that it goes beyond questions relating only to credibility and goes to a fact in issue, that is, whether the complainant consented to the sexual activity the subject matter of the charge. The defence say that if the complainant had been subject to non‑consensual sex by the accused, she would be unlikely within a short period of time to have consensual sex with her boyfriend, or, put another way the fact that she had consensual sex with her boyfriend shortly after the alleged offence makes it less likely that the offence had been committed.
In R v Morgan (1993) 67 A Crim R 526, Mr Morgan was alleged to have raped the complainant on the evening of 18 August 1989. The defence wished to cross-examine the complainant to show she had intercourse with her boyfriend within one to two hours after the alleged raped and had not made any complaint to him about the alleged offence. The defence argued that it was for the jury bringing their common sense and experience to bear to determine whether if sexual intercourse took place with the boyfriend within an hour or two of the alleged offence that made it less likely that the offence was committed.
Gleeson CJ said that the fact the victim had sexual intercourse with her boyfriend about an hour after the alleged offence could be regarded by the jury as having a bearing upon the central issue of fact at the trial and was therefore relevant (527).
Mahoney JA, said that the boundaries of what is 'usual conduct in sexual matters are seen to be wide indeed'. He did not think he should conclude that it would not be properly open to a jury of men and women to conclude that for the complainant to have sexual intercourse an hour or two after forced intercourse is, in the relevant sense, unlikely or contrary to human experience and said the defence should have been entitled to cross-examine the complainant as to whether sexual intercourse had occurred in those circumstances (532 ‑ 533).
In Morgan's case the sexual activity occurred within one to two hours of the alleged offence and there was no complainant about the alleged offence to the boyfriend, in this case, at the most favourable to the accused, sex occurred approximately 13 hours after the alleged offence and after she had disclosed it to her boyfriend.
The question is whether the fact that the complainant had intercourse with her boyfriend around about 13 hours after the alleged offence makes it objectively more or less likely that she had non-consensual sex 13 hours previously. As was recognised in Morgan so much depends upon the 'human experience' or what the jury would conclude to be such. It is a matter, on which minds may differ, and women may have a view different from men and different women and different men may differ from others (Morgan (532)).
Whilst I accept that the complainant was 17 at the time of the alleged offence, and a person's reactions to events occurring to them vary, it seems to me that the evidence does have substantial relevance to a fact in issue because as in Morgan it would not be properly open to say a jury could not conclude the act of consensual sex with her boyfriend made it more likely that approximately 13 hours previously, the complainant had consensual sex with the accused.
Although the temporal connection is not as immediate as in Morgan, the consensual sex is alleged to have occurred after the complaint to her boyfriend and before the report to the police and before she was examined by SARC.
I am persuaded that the evidence does have substantial relevance as in carries substantial weight in tending to prove or disprove a fact in issue in that it has the potential to affect a finding on the crucial issue of fact that is whether the sexual activity with the accused occurred with consent.

Does the probative value of the evidence outweighs any distress, humiliation or embarrassment?

The next issue is whether the probative value of the evidence outweighs any distress, humiliation or embarrassment which the complainant may suffer as a result of its admission. This requires a subjective assessment of objectively incommensurable issues.
It is important for the State and the accused that the jury are presented with all relevant evidence. The accused is charged with a serious offence. If convicted he will almost certainly be sentenced to a period of imprisonment.
The complainant was 17 at the time of the alleged offence and will be 18 when the matter comes to trial. In her statement she says that having sex with her boyfriend helped her to cope with the offending. I accept that the proceedings are inherently likely to be distressing, humiliating, or embarrassing for the complainant and questions relating to her sexual activity with her boyfriend will add to that distress, humiliation and embarrassment. However, in my opinion the probative value of the evidence outweighs those factors.
For those reasons I grant leave for the defence to lead the disputed evidence.