R v MCB[2012] QDC 88

[2012] QDC 88

DISTRICT COURT

CRIMINAL JURISDICTION

JUDGE R JONES

Indictment No 1905 of 2011

THE QUEEN

v.

MCB

BRISBANE 

DATE 01/05/2012

PRE-TRIAL HEARING

JUDGMENT

HIS HONOUR:  This proceeding is concerned with an application pursuant to section 590AA of the Queensland Criminal Code. Essentially the applicant seeks leave to have the complainant cross‑examined about her past sexual activities and, as I understand it, leave to cross‑examine a psychiatrist Dr Cook about those past sexual activities of the complainant. I should also note that the cross‑examination would not be limited solely to sexual activities with two young men referred to as J and L but also include other sexual conduct which I will deal with in more detail in a moment.

The applicant is charged with three counts of raping the complainant on 1 November 2010. At the time, the complainant was 15. She is now 17. The passage of time to date together with the date fixed for the giving of the complainant's evidence, 1 June 2012, makes it desirable that this application be disposed of as quickly as is practicable.

In particular the applicant seeks leave to cross‑examine the complainant in respect of the following matters: the complainant's sexual activities from 20 October 2010, 12 days prior to the alleged rape, up to the day of the alleged rape including with one J and one LS and including her behaviour at a Halloween party on 30 November 2010, which was two nights before the alleged rape; and also to cross‑examine the complainant about her psychological condition of bipolar II disorder hypomania and how that affects her sexual behaviour.

Leave is required because of the operation of section 4 of the Criminal Law (Sexual Offences) Act 1978. Section 4 relevantly provides, "The following rules shall apply in relation to any examination of witnesses or trial in relation to a sexual offence whether or not the examination or trial relates to a charge of an offence other than a sexual offence against the same or any other defendant". Subsection 1, "The Court shall not receive evidence of and shall disallow any question as to the general reputation of the complainant with respect to chastity". 2, "Without leave of the Court, a, cross‑examination of the complainant shall not be permitted as to the sexual activities of the complainant with any person; b, evidence shall not be received as to the sexual activities of the complainant with any person". 3, "The Court shall not grant leave under rule 2 unless it is satisfied that the evidence sought to be elicited or led has substantial relevance to the facts in issue or is [a] proper matter for cross‑examination as to credit". 4, "Evidence relating to or tending to establish the fact that the complainant has engaged in sexual activity with a person or persons must not be regarded as having substantial relevance to the facts in issue only because of any inference it may raise about general disposition. Without prejudice to the substantial relevance of other evidence, evidence of an act or event that is substantially contemporaneous with any offence with which a defendant is charged in an examination of witnesses or a trial or that part of a sequence of acts or events that explains the circumstances in which such an offence was committed shall be regarded as having substantial relevance to the facts in issue". 5, "Evidence relating to or tending to establish the fact that the complainant has engaged in sexual activity with a person or persons is not a proper matter for cross‑examination as to credit unless, because of special circumstances, the Court considers the evidence would be likely to materially impair confidence in the reliability of the complainant's evidence. The purpose of this rule is to ensure that a complainant is not regarded as less worthy of belief as a witness only because the complainant has engaged in sexual activity".

I will deal, firstly, with the issues raised concerning hypomania. It is contended on behalf of the applicant that there is evidence that the complainant suffered from a bipolar disorder and that a subcondition or related condition is that known as hypomania. That medical evidence is not disputed. 

In the report of the consultant psychiatrist Dr Cook, Exhibit 1, he relevantly states: "There is little doubt that one of the features of hypomania is an increase in sexual desire and sexual interest, excessive involvement in pleasurable activities". And, "The standard nosology used in Australian psychiatry is DSMIVTR, and that defines a hypomanic episode as a distinct period of persistently elevated, expansive or irritable mood lasting throughout at least four days that is clearly different from the usual non-depressed mood, and during the period of mood disturbance, three or more of the following symptoms have persisted (four if the mood is only irritabile) and have been present to a significant degree)".

Dr Cook then goes on to set out the various symptoms and then in subparagraph 7 goes on to say: "Excessive involvement in pleasurable activities that have a high potential for painful consequences (i.e. the person engages in unrestrained buying sprees, sexual indiscretions, or foolish business investments). As you will see, one of the features of a hypomanic episode is criterion 7, where there is often an increase in sexual desire and a tendency to make judgments which one later regrets".

It is contended on behalf of the applicant in paragraphs 24 to 27 of Mr Edwards's, counsel for the applicant, written submissions, that: "It is apparent from the complainant's psychiatric records that as part of her bipolar disorder she is prone to mood swings, including hypomania and also prone to overly sexualised behaviour. It is apparent from the complainant's text messages retrieved by police that in the eight days prior to intercourse with the applicant she had intercourse with two other young men both of which she arranged through text messages. In text correspondence the complainant had told one of the young men that he need not wear a condom because she was on the pill. This assumes some importance because of its similarity to what the applicant says the complainant said to him. It is apparent from the text messages that those sexual encounters between the complainant and the other two young men had not ended terribly well with a level of rejection from each of those other two men afterwards. The fact that the complainant has a diagnosed mental illness which makes her prone to periods of overt and sometimes inappropriate sexualised behaviour and potentially hypersexuality is submitted to be highly relevant to the issue of whether or not the complainant, in fact, consented to intercourse with the applicant. Equally, her sexualised behaviour with others in the days leading up to her encounter with the applicant is submitted to be relevant to the issue of whether or not she was in a hypomanic or hypersexual state such that she was more likely to consent to intercourse with the applicant. The nature of those encounters and the way she was treated afterwards is also relevant to a motive to make false complaint.” 

The sexualised behaviour the applicant relies on includes certain events that occurred between 18 January 2010 and 5 March 2010. These matters are set out in paragraph 29 of Mr Edwards's submissions and I do not intend to set them out in detail here.

Other behaviour relied on includes sexual encounters with the two young men J and L, also sexualised behaviour at a Halloween party including exposing her breast or breasts, wearing provocative clothing and passionately kissing a number of boys. There was also an episode of her texting a photograph of her breasts to the boy J.

In my view, none of these incidents should be permitted to be part of the cross‑examination of either the complainant or Dr Cook. In respect of Dr Cook, I mean that any cross‑examination of him should not be such that it would implicate the complainant with any of the behaviour to which I have referred.

The last of the episodes of sexual behaviour, which are particularised in paragraph 29 of Mr Edwards' written outline, occurred on 5 March 2010, almost eight months prior to the date of the alleged rape. The following entries in that paragraph reveal no sexual behaviour. The last entry dated 1 October 2010 records, "The complainant is noted as much better and more stable. However, on 4/10/2010 she is noted as having a lot of suicidal thoughts".

The events of sexual activity particularised in paragraph 29 of Mr Edwards's outline of argument, in my view, occurred at a time too remote to the alleged incidents.

As to the behaviour of the complainant at the Halloween party, that has to be seen in context. The theme of the party was a very provocative one. Given that theme, it is not surprising that the complainant and no doubt other young women at that party acted and dressed in a provocative way. And given the common evidence that those present or many of those present at the party including the complainant were drinking alcohol, it is again not at all surprising that the other sexual activities referred to took place. That includes the exposing of her breasts and kissing a number of young men.

In my view, there is nothing in this evidence that suggests that on the day in question the complainant could have or would have been suffering a hypomanic episode. The fact that the complainant might have had a sexual encounter with J and L does not, in my view, add to the strength of the application on this point, neither does the fact that the complainant appeared to be behaving normally in the drive from the place where the alleged rapes occurred to her home. It is not difficult to imagine that a 15‑year‑old girl who had just been raped might behave quite differently in a car occupied by her alleged attacker and his friends than she would behave when she arrived home and spoke to her mother. As I said, none of this evidence, in my view, could reasonably suggest that at the time the complainant was suffering a hypomanic episode. There is also no evidence to suggest that when she arrived at the house where the applicant was she was behaving in any overtly sexualised way. In fact, contrary to this, the applicant’s own evidence is that she was a reluctant sexual partner. 

In any event, in my view, the evidence of Dr Cook is conclusive against the applicant on this issue. At page 2 of his report Dr Cook in part reports in response to a question posed, "On balance, in my opinion, the evidence was that, at the time of this offence, [the complainant] was not hypomanic, or indeed frankly manic. The evidence for this is that I saw her one month before the alleged offence occurred, that is, on 4 October 2010, and I also saw her on the night that the alleged event occurred, that is 1 November 2010, and on neither of those two occasions was she noted to be hypomanic.” 

Later at page 2 Dr Cook reports: "The important thing is that, at that presentation, she was initially quite calm, but then became quite distressed as she reported to me the events that had occurred. However, this was stress but she certainly was not hypomania. Accordingly, in my opinion, there was no evidence to support a diagnosis that, at the time of the offence, she was hypomanic". That view is expressed later also at page 3 of Exhibit 1.

Turning then to the evidence concerning J and L, as I understand Mr Edwards's submissions, any cross‑examination of the complainant concerning sexual activity with J was linked to the application concerning the condition of hypomania. Accordingly, my ruling concerning that evidence should also dispose of that part of the application concerning J. If I am wrong about the effect of Mr Edwards's submissions, I would in any event disallow any cross‑examination of the complainant about sexual encounters assuming that they did occur with J.

This evidence does not go to the complainant's credit in any relevant way, nor does it have any substantial relevance to the substantive fact in issue in this case, namely whether or not the complainant consented to intercourse on 1 November 2010.

Turning then to the evidence concerning L. The applicant's submissions in effect had three elements. First, evidence concerning L was a part of the history of the complainant's hypomania. That has been disposed of against the applicant. The second limb is that there are a number of features in respect of the relationship with L common to events that occurred leading up to and including the sexual activity that occurred on 1 November 2010. The first of these was that a common denominator was the use of texting with messages describing the defendant as, "UR hot”. And to L as, "UR good as”. And also references to the fact that just before the sexual encounter with the defendant she described herself as being bored. The complainant also indicated to L prior to conduct with him that she was bored.

It was also pointed out that the applicant stated in his record of interview that when he went to use a condom the complainant is alleged to have said to the effect, "You don't need one. I am on the pill."  A text to similar effect was sent from the complainant to L on 24 October 2010.

Mr Edwards also noted, although it wasn't contained in his written submissions, that another potential common feature was the apparent lack of enthusiasm of the complainant in the sexual encounter with the applicant and on at least one occasion with L.

Again, it is my view that none of these matters either on their own or together warrant the complainant being cross‑examined about her sexual relations with L. Any sexual encounters with L are not sufficiently connected with the alleged rape in time, place or, in my view, any other relevant circumstance.

In this context, I should also note that I do not consider that there is any merit in the submissions concerning the complainant's reaction to being effectively avoided by J and/or L after sexual contact. The same can be said in respect of the complainant's message to L that on 24 October 2010 to the effect that she hoped to soon find a new sexual partner.

The third limb of the applicant concerning L is that the complainant's version of her relationship with L, if left untested, could leave a false impression as to the nature of that relationship with the jury. That is, the jury on the evidence as it stands might wrongly conclude that the relationship between the complainant and L was such that it would have been unlikely that she would have consented to sex with any other person and, in particular, the applicant.

In her account given under section 93A of the Evidence Act, the complainant described her relationship with L in these terms. She was asked whether she had any conversation with the accused during intercourse and she replied, "Just, um, ‘to get off and I don't want to have sex with him’ because I already have, I already have a buddy that I do with it and I'm not…because I trust this guy heaps and yes he, he doesn't force me to have sex with him and that he's really a nice guy."  And the complainant then went on to say, "He was like, ‘yeah, okay you can have more than one fuck buddy’ and I'm like ‘yeah, I'm not like that, though. I can't do that to my friend, my best friend’." 

During her record of interview she gave a version quite consistent with that where she referred to L as being, among other things, her partner. These statements tend to suggest a relationship having a not insignificant degree of emotional attachment. However, an exchange of texts between the complainant and L might suggest that the relationship was something quite different to that which she described.

These texts are dealt with in paragraph 42 of Mr Edwards written submissions. There, various text messages between the complainant and L are set out. These messages occurred on the 25th of October 2010 and 26th of October 2010.

At one stage L sent a text saying he felt bad for what had occurred between them and doubting whether he wanted to continue the relationship. The complainant sent a text inquiring why that might be. L then sent a text to the effect that he didn't want a, "Fuck buddy" and that such an arrangement would not be likely to end well. The complainant responded with a text which read, "Why won't it end well if we fuck buddies and got no feelings apart from good mates?" 

L replies by sending a text, "Let's just be regular friends…  no sex."  She replies, "I don't c y [see why], cuz [because] we both don't got feelings, and want to sleep with someone and I can trust sleeping with you,  we r [are] just friends."  L then replied to the effect of, "Let's leave it for now." 

On the 26th of October 2010, L states that he is not interested in continuing the relationship and the complainant responded to the effect that, "Because I had sex with you and now you don't want to again., must have been bad at it or fucked it up and didn't listen." 

It is true that those texts or the contents of those texts might in the mind of a 15 year old girl be consistent with the other descriptions she gave of her relationship. It is also true that even if she was overstating the nature of the relationship between her and L to the applicant, that was done simply to provide a reason or an excuse to the applicant as to why she was not prepared to have sex with him.

However, in cases such as this, the evidence of a complainant about the matter of consent is critical. In this context,  I'll refer to the judgments of their Honours Justice Thomas and White in R v. Lawrence [2001] QCA 441, particularly Justice Thomas at paragraph 31 and Justice White at paragraph 48.

I accept the submission made by Mr Edwards to the effect that if the jury were to accept that the relationship between the complainant and L was materially different to that which she described to the authorities when giving her account of what occurred that day, then the jury might be less likely to consider that the strength or nature of that relationship was or would have been a reason why the complainant would not have been prepared to have sex with the applicant.

On balance, I consider that the jury's understanding of the nature of the relationship is a substantially relevant consideration regarding the question of consent and for that reason I would allow the cross‑examination of the complainant about the true nature of her relationship with L.

I note in this regard that the Prosecutor initially responsible for the carriage of this matter was prepared to concede that if cross‑examination of the complainant was limited to the status of the relationship at the relevant time and its nature as to whether it was a casual or committed relationship, the Crown would not oppose this aspect of the application.

Mr Lehane, who appeared today, did not accept that that concession was reasonably made and that the complainant should not be allowed to be cross‑examined about it. But on balance, for the reasons I have given, I consider it is appropriate to allow cross‑examination to that limited extent. I refer only to Mr Nardone's concession as a matter of completeness.

I should also note perhaps, finally, that whilst I have reached this conclusion on the basis that this evidence is materially relevant to the question of consent, it is also likely, as Mr Edwards acknowledged, to have potentially some flow-on effects in respect of the complainant's credit generally.

For the reasons given, the application is allowed but only to the extent of permitting the complainant to be cross-examined as to the status of her relationship with LS at material times.

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