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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Austin |
Citation: | [2023] ACTSC 185 |
Hearing Date: | 17 July 2023 |
Decision Date: | 17 July 2023 |
Reasons Date: | 18 July 2023 |
Before: | Baker J |
Decision: | (1) I make order 1 sought in the prosecution’s application in proceedings dated 16 June 2023 (and filed 19 June 2023). (2) I grant leave for the prosecution to file an application in proceeding to adduce evidence of sexual activity of the complainant dated 15 July 2023. (3) I make order 1 in the prosecution’s application in proceeding dated 15 July 2023 (and filed 17 July 2023). (4) I make order 1 in the accused’s application in proceedings dated 12 July 2023 (and filed 14 July 2023). |
Catchwords: | CRIMINAL LAW – EVIDENCE – Sexual offence proceedings — Where prosecution and counsel for the accused sought to adduce evidence of previous consensual sexual activities with the accused — Where prosecution sought to adduce evidence of the complainant lack of previous sexual activity — Whether leave required under s 76 of the Evidence (Miscellaneous Provisions) Act – leave granted. |
Legislation Cited: | Crimes Act 1900 (ACT) ss 54, 60 Criminal Procedure Act 1986 (NSW) s 294CB Evidence (Miscellaneous Provisions) Act 1991 (ACT) ss 51, 76, 77, 78 Evidence Act 2011 (ACT) s 102 Legislation Act 2001 (ACT) s 139 |
Cases Cited: | DPP v Earle (No 2) [2023] ACTSC 134 R v Byczko (No 1) (1977) 16 SASR 507 R v CH and JW [2010] ACTSC 75 R v Fernando [2009] ACTSC 137; 238 FLR 64 R v NX [2019] ACTSC 55 R v Nash (No 2) [2021] ACTSC 268 R v NO [2017] ACTSC 372 R v QX (No 4) [2021] ACTSC 246 R v TF [2018] ACTSC 13 R v ST (No 2) [2014] ACTSC 52 |
Parties: | Director of Public Prosecutions Nathan James Austin ( Accused) |
Representation: | Counsel M O’Connell ( ACT DPP) M Jones ( Accused) |
| Solicitors ACT Director of Public Prosecutions Kamy Saeedi Law ( Accused) |
File Number: | SCC 237 of 2022 |
BAKER J:
Introduction
1․ The accused, Nathan Austin, is charged with six counts of sexual intercourse without consent and one charge of an act of indecency without consent (Crimes Act 1900 (ACT) ss 54, 60). Each act is alleged to have occurred at the complainant’s room, in Australian National University accommodation, on 26 November 2021.
2․ This matter came before me for trial by jury on 17 July 2023. Prior to a jury being empanelled, counsel for the prosecution and the accused sought that orders be made in respect of three applications in proceedings that were each made under s 77 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (“EMPA”). Those applications are as follows:
(a) Application in Proceedings filed by the prosecution dated 16 June 2023 (filed on 19 June 2023) (“the prosecution’s 19 June 2023 application”);
(b) Application in Proceedings filed by the accused dated 12 July 2023 (filed on 14 July 2023) (“the accused’s 14 July 2023 application”); and
(c) Application in Proceedings filed by the prosecution dated 15 July 2023 (filed in Court, with the Court’s leave, on 17 July 2023) (“the prosecution’s 17 July 2023 application”).
3․ The prosecution’s 19 June 2023 application sought that leave be granted under s 76 of the EMPA for the prosecution to adduce specified questions and answers in the complainant’s Evidence in Chief Interview (“EICI”), in which the complainant referred to (i) acts of kissing the accused in the hours prior to the alleged offences, and (ii) the fact that she had not had sexual intercourse prior to the alleged offences. The accused did not oppose this application.
4․ The accused’s 14 July 2023 application sought that leave be granted under s 76 of the EMPA to the parties “to adduce evidence of previous sexual activities of the complainant, namely evidence that the complainant had previously kissed the defendant in the hours prior to the offences subject of the indictment”. The prosecution did not oppose this application.
5․ The prosecution’s 17 July 2023 application sought that leave be granted under s 76 of the EMPA to the prosecution to adduce evidence from the complainant’s friend of a conversation that she had with the complainant shortly after the alleged offences, in which the complainant stated “I think I lost my virginity, but I don’t know if, like, being assaulted counts as losing your virginity”. The accused did not oppose this application.
6․ I made each of the orders as set out above. Section 77(4) of the EMPA requires me to give written reasons for my decisions. These are those reasons.
Legislation
7․ Section 76 of the EMPA provides as follows concerning evidence of a complainant’s sexual activities:
76 General immunity of evidence of complainant’s sexual activities
(1) Evidence of the sexual activities of the complainant is not admissible in a sexual offence proceeding without leave of the court dealing with the proceeding.
(2) Subsection (1) does not apply to evidence of the specific sexual activities of the complainant with an accused person in the sexual offence proceeding.
8․ An application under s 76 must be made in writing and in the absence of the jury: s 77(a) and 77(b) of the EMPA.
9․ Section 78 of the EMPA provides as follows concerning the grant of leave under s 76:
78 Decision to give leave under s 76
(1) The court must not give leave under section 76 unless satisfied that the evidence—
(a) has substantial relevance to the facts in issue; or
(b) is a proper matter for cross-examination about credit.
(2) Evidence (sexual activity evidence) that relates to, or tends to establish, the fact that the complainant was accustomed to engage in sexual activities is not to be regarded as having a substantial relevance to the facts in issue because of any inference it may raise about general disposition.
(3) Sexual activity evidence is not to be regarded as being a proper matter for cross-examination about credit unless the evidence, if accepted, would be likely to substantially impair confidence in the reliability of the complainant’s evidence.
(4) If the court gives leave under section 76, it must give written reasons for its decision.
(5) In this section:
proper matter for cross-examination about credit—evidence is a proper matter for cross-examination about credit if the credibility rule under the Evidence Act 2011, section 102 does not apply to the evidence because of that Act, section 103 (Exception—cross‑examination as to credibility).
Consideration
10․ There are two categories of evidence that are the subject of the three applications for leave:
First, evidence that the accused and the complainant kissed in the hours preceding the alleged offences; and
Second, evidence that the complainant had not previously engaged in penetrative sexual intercourse prior to the alleged offences.
11․ Each of these matters is considered below.
Evidence of kissing in the hours preceding the offence
12․ A question arises as to whether leave is required to adduce evidence in the first category. As outlined above, s 76(2) of the EMPA provides that leave is not required to adduce “evidence of the specific sexual activities of the complainant with an accused person in the sexual offence proceeding”.
13․ A series of decisions of this Court have held that s 76 of the EMPA does not require leave to be granted to adduce evidence of any sexual activity between the accused and the complainant, regardless of when the sexual activity occurred: R v Fernando [2009] ACTSC 137; 238 FLR 64; R v NO [2017] ACTSC 372; R v CH and JW [2010] ACTSC 75 and R v NX [2019] ACTSC 55.
14․ However, in DPP v Earle (No 2) [2023] ACTSC 134 at [34], McCallum CJ expressed doubt about the correctness of these decisions. Chief Justice McCallum noted that in Fernando, Penfold J had rejected a possible construction of s 51(1) of the EMPA (the predecessor to s 76) as “intended simply to overcome a mischievous reading of [the provision] to the effect that it might prevent the tendering of evidence of the alleged offending behaviour”. Justice Penfold had reasoned that “the words of the provision, ‘specific sexual activities ... in the sexual offence proceeding’ are not apt to describe the specific sexual activity charged against the accused person in the proceeding”.
15․ In expressing doubt about the correctness of Fernando, McCallum CJ observed (at [28]):
Her Honour’s analysis by reference to the alternative “mischievous reading” of the section posits a false dichotomy based on an overly narrow reading of the term “the specific sexual activities of the complainant with an accused person in the sexual offence proceeding” (emphasis added). In its ordinary meaning, that expression is not confined to the unlawful acts alleged against the accused. The term ‘specific sexual activities’ could be understood to extend to all sexual acts forming part of the res gestae. The section has work to do if understood to refer to evidence of any sexual acts, including consensual acts and uncharged acts, forming part of the res gestae. It can sensibly be read as making clear that such evidence would not fall within the exclusion in s 76(1) and so would not require leave whereas evidence of sexual activity between the complainant and the accused on a different occasion would require leave.
16․ I respectfully agree with McCallum CJ. In my view, the text, history and purpose of the provision each point to a construction of s 76 which would require leave for the adducing of evidence of any sexual acts between the complainant and the accused, other than those acts which form part of the res gestae of the offence. However, as in Earle, it is not necessary for me to express a concluded view on this issue, which was not the subject of submissions in the proceedings before me.
17․ Even applying the more limited construction of s 76 proposed by McCallum CJ in Earle, there is a strong argument that leave is not required for the proposed cross-examination of the complainant, which concerns acts of kissing in the hours preceding the alleged offences. In particular, those activities could be said to form part of the res gestae of the offence, that is, the events constituting or immediately surrounding the events: Earle at [11].
18․ However, for abundant caution, I have considered whether leave is required: see similarly NX at [4], per Mossop J. I am of the view that if leave is required, such leave should be granted. As in Earle (at [15]), the present trial is likely to involve:
[a] factual contest as to whether, in that circumstance and based on the manner of communication of consent in their prior sexual activities, the accused might have honestly believed that she was consenting, even if in fact she was not.
19․ I am persuaded that the evidence relating to the complainant and the accused kissing in the hours prior to the offence would have substantial relevance to the facts in issue in the trial.
20․ Accordingly, I granted the leave sought under s 76 of the EMPA in relation to the first category of evidence, namely, to permit the prosecution to adduce evidence of specific questions and answers in the complainant’s EICI relating to acts of kissing between the accused and the complainant (Order 1 of the prosecution’s 19 June 2023 application), and, more generally, to permit the parties “to adduce evidence of previous sexual activities of the complainant, namely evidence that the complainant had previously kissed the defendant in the hours prior to the offences subject of the indictment” (Order 1 of the accused’s 14 July 2023 application).
Evidence of the complainant’s lack of prior sexual experience
21․ A question also arises as to whether leave is required to adduce evidence in the second category, namely, evidence of the complainant’s lack of prior sexual experience.
22․ I am not aware of any decisions which have considered whether s 76 extends to evidence of this nature. Section 76 requires leave for a party to adduce evidence of “the sexual activities of the complainant”. This provision may be contrasted with s 294CB(2) and (3) of the Criminal Procedure Act 1986 (NSW), which render inadmissible evidence that “discloses or implies” that the complainant“ has or may have had sexual experience or a lack of sexual experience” or that the complainant “has or may have taken part or not taken part in any sexual activity”.
23․ Prima facie, the text of s 76 would suggest that it is only evidence of sexual activity that requires the grant of leave, and that the adducing of evidence relating to a lack of sexual activity does not require a grant of leave under the provision.
24․ However, it is important to construe the text of the provision in accordance with its purpose: s 139 of the Legislation Act 2001 (ACT). The purpose of provisions such as s 76 include the “protect[ion] of alleged victims of sexual offences from the embarrassment and intrusion upon privacy involved in an investigation of their personal lives”: R v QX (No 4) [2021] ACTSC 246 at [21], citing R v Byczko (No 1) (1977) 16 SASR 507 at 539 and R v ST (No 2) [2014] ACTSC 52. Such embarrassment and intrusion upon privacy may equally be suffered by complainants where evidence of a lack of sexual activity or experience is led.
25․ Another purpose is to “ensure that cross-examination is confined within appropriate boundaries to reduce the risk that ‘the jury might misuse the evidence’”: R v TF [2018] ACTSC 13 at [33]. Evidence of a lack of sexual activity may be similarly liable to misuse or misinterpretation by a jury. The “misconceived assumptions” which may arise where sexual assault proceedings become “a forum for a “‘broad investigation of [complainant’s] sexual activities” (see Earle at [7]) include misconceived assumptions as to the implications of both sexual experience and lack thereof.
26․ Accordingly, I consider that there is a reasonable argument that, construed in accordance with its purpose, s 76 should be interpreted as extending to require the grant of the Court’s leave to adduce evidence of a lack of sexual activity on the part of a complainant.
27․ Again, it is not necessary for me to express a final view on this question. If leave is necessary for the prosecution to adduce evidence of this nature, I am of the view that it should be granted in this case. There is evidence that the complainant told the accused that she had not previously had sex before, and that this was one of the reasons that she did not wish to have sexual intercourse with him. I am satisfied that this evidence has substantial relevance both to the issues of the complainant’s lack of consent, and to the accused’s knowledge of her lack of consent. For this reason, I granted the leave sought under s 76 of the EMPA to permit the prosecution to adduce the questions and answers relating to the complainant’s lack of sexual experience, as specified in Order 1 of the prosecution’s 19 June 2023 application and Order 1 of the prosecution’s 17 July 2023 application.
28․ I note that these two applications are limited to the specific evidence identified by the prosecution in each of the 19 June 2023 and 17 July 2023 applications. The accused may wish to cross-examine the complainant in relation to the questions and answers that I have granted leave to the prosecution to adduce. The leave that I have granted in these orders is pursuant to the prosecution’s applications, which are limited to the adducing of particular questions and answers and do not extend to cross-examination on the topic generally. Fairness will require that the accused be granted leave to the accused to cross-examine the complainant about the answers that have been adduced pursuant to this grant of leave.
29․ However, s 77 requires that any application for leave made under s 76 of the EMPA be made in writing. The purpose of requiring a written application is to ensure that there is a clear specification of the parameters of the proposed evidence: Earle at [16]. Counsel for the accused has indicated that she will file a further application tomorrow morning, seeking any further leave.
Orders
30․ For the above reasons I made the following orders:
(1) I make order 1 sought in the prosecution’s application in proceedings dated 16 June 2023 (and filed 19 June 2023).
(2) I grant leave for the prosecution to file an application in proceeding to adduce evidence of sexual activity of the complainant dated 15 July 2023.
(3) I make order 1 in the prosecution’s application in proceeding dated 15 July 2023 (and filed 17 July 2023).
(4) I make order 1 in the accused’s application in proceedings dated 12 July 2023 (and filed 14 July 2023).
I certify that the preceding thirty [30] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker Associate: A Bucci Date: 18 July 2023 |