SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Kader (No 2)
Citation:	[2022] ACTSC 56
Hearing Date:	21 February 2022
Decision Date:	21 February 2022
Reasons Date:	28 March 2022
Before:	McWilliam AJ
Decision:	See [16]
Catchwords:	CRIMINAL LAW – EVIDENCE – Application to adduce evidence of complainant’s past sexual activities – operation of s 78 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) – where accused consents to evidence being adduced
Legislation Cited:	Crimes Act 1900 (ACT) ss 52, 54 60 Evidence (Miscellaneous Provisions) Act 1991 (ACT) ss 76, 78 Evidence (Miscellaneous Provisions) Amendment Act 2003 (ACT) Evidence (Miscellaneous Provisions) Amendment Bill 2003 (ACT) Royal Commission Criminal Justice Legislation Amendment Act 2018 (ACT) s 15
Cases Cited:	R v Chute (No 8) [2019] ACTSC 68 R v NX [2019] ACTSC 55 R v QX (No 4) [2021] ACTSC 246 R v Seneviratne [2021] ACTSC 277 R v SQ (No 4) [2021] ACTSC 134 R v Sutton (No 2) [2019] ACTSC 340 R v UM [2021] ACTSC 44 R v Vunilagi [2020] ACTSC 274
Texts Cited:	ACT, Parliamentary Debates, Legislative Assembly, 23 October 2003
Parties:	The Queen (Crown) Imran Kader (Accused)
Representation:	Counsel K Lee (Crown) M Jones (Accused)
	Solicitors Director of Public Prosecutions (ACT) (Crown) Lancaster Law (Accused)
File Number(s):	SCC 200 of 2021 SCC 201 of 2021

McWilliam AJ

1. Between 21 February and 15 March 2022, Mr Kader (the accused) was tried for the following offences.

(a) Count 1 – CC2021/7046 – Act of indecency without consent, contrary to s 60(1) of the Crimes Act 1900 (ACT) (Crimes Act);

(b) Count 2 – CCC2021/7047 – Sexual assault in second degree, contrary to s 52(1) of the Crimes Act;

(d) Count 4 – CC2021/7050 – Sexual intercourse without consent, contrary to s 54(1) of the Crimes Act; and

(e) Count 5 – CC2021/7049 – Sexual intercourse without consent, contrary to s 54(1) of the Crimes Act.

On 15 March, the jury was discharged after failing to agree on a verdict.

2. Before the start of the trial on 21 February 2022, the Crown moved on an application dated 20 February 2022, seeking leave to adduce evidence of prior sexual activities of the complainant, which were referred to in her Evidence in Chief interview; namely, that the complainant has occasionally experienced bleeding from her vagina following sexual intercourse.

3. The application was made on the grounds that the evidence had substantial relevance to a fact in issue (being whether the accused digitally penetrated the complainant) at the trial because:

(a) the day after the alleged sexual assault, the complainant experienced light bleeding from her vagina;

(b) the complainant has not had a menstrual cycle in 2 years because she had a Mirena IUD; and

4. The application was not opposed by the accused.

5. At that time, assisted by the consent of the accused, I was satisfied that the evidence had substantial relevance to the fact in issue. As such, orders were made following the hearing on 21 February 2022 granting leave to the Crown to adduce the evidence.

6. Although the application was not opposed, written reasons are required, pursuant to s 78(4) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (the Act). Accordingly, the reasons below further explain why the order was made.

The Court’s power

7. Division 4.4.2 of the Act governs the use of evidence of a complainant’s sexual reputation and past sexual activities. Sections 76 and 78 relevantly provide:

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.

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).

8. The purposes of regimes such as those created by division 4.4.2 of the Act have been previously considered and include protection of the complainant’s privacy and the need to ensure cross-examination is confined in such a way to reduce the risk that the jury may misuse the evidence: see R v QX (No 4) [2021] ACTSC 246 (R v QX) at [20]-[24] and the authorities there-cited.

9. The current division 4.4.2 is substantially similar to the former regime set out in division. The principles applying to the former regime have been accepted as continuing to apply in respect of the current regime: see, for example, R v Sutton (No 2) [2019] ACTSC 340 at [5].

10. The present s 78 was the former s 53 (see s 15 Royal Commission Criminal Justice Legislation Amendment Act 2018 (ACT)). Originally, the provision was introduced by the Evidence (Miscellaneous Provisions) Amendment Act 2003 (ACT). Part of the Explanatory Statement to the Bill that became that statute is as follows:

Evidence of complainant’s sexual reputation and activities
New division 4.4, evidence of complainant’s sexual reputation and activities, are provisions currently in the Evidence Act 1971.  Some sections are differently phrased from those presently in the Evidence Act.  They reflect MCCOC recommendations.
New section 48 provides definitions for complainant and sexual offence proceeding for this division.  The provision adopts the same terms as section 38.
New section 49 provides that division 4.4 is to apply to evidence in a sexual offence proceeding.  A sexual offence proceeding may be any proceeding and is not restricted to only an offence against part 3 of the Crimes Act 1900.
New section 50 provides that evidence of a complainant’s sexual reputation is inadmissible.  It is a restatement of subsection 76G(1) of the Evidence Act.  It covers such situations as an accused person asserting that the alleged offence was committed with consent based on the fact that other people had told him or her the victim was of “loose morals”.
New section 51 provides that evidence of a complainant’s sexual activities (eg. conduct or practices) is not admissible.  The evidence of the specific sexual activities of the complainant with the accused person may be admitted with the leave of the court.  The section is a restatement of subsection 76G(2) of the Evidence Act.
An application for leave to admit evidence under new section 51 must be in writing and in the absence of any jury (new section 52).  The absence of the complainant may be requested by the accused.  The grounds for consideration of an application for leave are in new section 53.  The court has to be satisfied the evidence has substantial relevance to the facts in issue or that it is a proper matter for cross-examination about credit.  The court is not to consider evidence relevant merely because it could be inferred that the complainant had a general disposition to engage in certain activities that may have been engaged in with the accused.  However, the court has discretion to consider whether a particular set of facts or circumstances in the case suggests cross-examination should be permitted.

11. A supplementary Explanatory Statement contains the following (emphasis added):

On page 11 of the report the committee suggests that subclause 53(1) of the Bill might be read in a way to displace the general rule in section 103 of the Evidence Act 1995 (the Evidence Act) on the admissibility of evidence to challenge a witnesses credibility. If the committee's suggestion is correct subclause 53(1) could have the unintended result of making it easier (rather than harder) to cross examine complainants in sexual 'offence trials on their past sexual history. This was not the intention and accordingly it is proposed to introduce an amendment to make it clear that section 103 of the Evidence Act is not displaced and that in sexual offence trials a more stringent rule will apply for allowing evidence on the past sexual history of complainants.

12. The Hansard record of 23 October 2003 (ACT, Parliamentary Debates, Legislative Assembly, 23 October 2003) indicates the subject Bill
was introduced to address the trauma of the trial process for complainants. For example, part of the Hansard records Ms Kerrie Tucker MLA participation in the debate as follows (p 4059):

If you accept that in each possible sexual encounter each participant has the fundamental right to consent or not, then it is difficult to see the possible evidentiary value in a general history of sexual activity. It is merely another means of humiliation. In cases where the accusation of rape is true, the accused, having forced sexual acts on the complainant, is then allowed to drag out more intimate information in public.
This protection is important in paving the way for more victims of rape to feel more able to bring their accusations to the criminal system so that there will be some formal consequence for more rapists. As the Model Criminal Code Officers Committee put it, "evidence of reputation, even if relevant and therefore admissible, is too far removed from evidence of actual events or circumstances for its admission to be justified in any circumstances"; that is, they believe that it is reasonable to rule out that category of evidence on general sexual reputation because it is nearly impossible to imagine how it could validly have a bearing on consent or the other circumstances of a particular sexual incident.

13. I have set out part of the legislative history as a means of considering and explaining the rationale behind why a provision that deals with an evidentiary ruling has a separate requirement for written reasons.

14. I accept that where an application is opposed or the consideration of the issue is not straightforward, written reasons may be appropriate, and that can be seen in authorities such as R v Sutton (No 2) [2019] ACTSC 340; R v Chute (No 8) [2019] ACTSC 68, R v QX.

15. However, where an application such as the present is unopposed, it is difficult to see how the requirement for written reasons aids the objective of the division. It can be seen that where the applications are not opposed, the statutorily mandated reasons do not commonly go further than recording in a perfunctory fashion that the Court was satisfied of either of the limbs in s 78(1): see R v UM [2021] ACTSC 44, R v Vunilagi [2020] ACTSC 274 at [21]-[24], R v Seneviratne [2021] ACTSC 277, R v SQ (No 4) [2021] ACTSC 134, and R v NX [2019] ACTSC 55.

16. Similarly in this case, the substantial relevance to the fact in issue was plain on the very limited aspect of evidence that required a ruling to be given. For those reasons, the Court made the following order:

Pursuant to s 76 of the Evidence Miscellaneous Provisions Act 1991 (ACT), leave is granted to adduce the evidence of past sexual activity of the complainant as referred to in the Crown’s application dated 20 February 2022.

I certify that the preceding sixteen [16] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Acting Justice McWilliam

Associate:

Date: 28 March 2022

ACT Supreme Court