R v TB[2021] QDCPR 12

DISTRICT COURT OF QUEENSLAND

1. [1]
   The defence has applied to cross-examine the complainant at the trial commencing next Monday 22 February 2021, as to an alleged rape which occurred in April of 2019.

1. [2]
   In the present case, the defendant is charged with a number of counts, namely burglary in the night, four counts of rape and one count of sexual assault. The complainant is JB. The alleged offences occurred on the 22^nd of January 2017 at Wynnum West. The facts of the case as far as I rather gather, is that the complainant and the defendant had been in a relationship for some months prior to the alleged offending.

1. [3]
   It is alleged by the Crown that there was domestic violence by the defendant towards the complainant. About a week before the alleged offending there was a fight and the defendant was verbally aggressive. She ended the relationship and hadn’t seen the defendant after that. The alleged offending occurred, as I say on 22 January 2017. It is alleged he broke into the house with intent, raped her four times and indecently assaulted her. That offending happened in her bedroom. She was asleep when he arrived. It’s alleged he used a key in his possession to enter the house. It’s alleged during the offending, she was crying and was fearful. After the last alleged rape, he rolled off the bed and passed out, intoxicated. She allegedly vomited. She woke her son up. She drove to her friend’s house. The defendant messaged her, asking why she had left. She returned at about 1 pm. He was still in the house. He tried to hug her. There were text messages exchanged. It’s alleged there’s an admission in one or more of those messages, which is the subject of debate.

1. [4]
   Relevantly, no formal complaint was made to police until about a year afterwards, February 2018. A statement was given then, and on the 8^th of November 2018, the defendant was arrested. He gave his version saying that she had invited him over, and there were multiple consensual sexual interactions.

1. [5]
   An indictment presented on 8 October 2019, and as I understand the situation, gentlemen, the matter came on for trial before Judge Rafter.

1. [6]
   The jury was discharged as evidence was given by the complainant regarding preliminary complaint evidence which had not been investigated or made available to the defence and probably took the prosecution by surprise as well.

1. [7]
   As a result various subpoenas were issued and the document sought involved inter alia protected counselling communications, hence Mr Webber and Ms Sarkozy’s presence today, which is another matter to be discussed later, and it became evident from that material that the complainant had made another complaint of rape relating to events on the 17^th of April 2019. That material was provided to the defence and a subpoena was issued to a hospital regarding that matter.

1. [8]
   A QPRIME report shows the complainant withdrew that complaint by writing on 29 May 2019, saying she didn’t wish to proceed. The defence had possession of social media posts relevant to this, and the defence are in possession of a statement signed by the alleged defendant in that subsequent rape in which he says that the sexual activity was consensual. He was unaware of being accused of rape by the complainant, and he’s prepared to give evidence at this trial.

1. [9]
   Now, with that background, the defence seeks leave to cross-examine the complainant about the fact of the complaint and the details of it. The Crown doesn’t oppose leave being granted to allow the defence to ask about the fact a complaint was made, but opposes details of that being elicited in cross-examination and opposes BJ, the alleged defendant in the April 2019 rape, to give evidence at the trial.

1. [10]
   The rules relating to these matters are set out in s 4 of the Criminal Law Sexual Offences Act 1978 (Qld). That section provides:

“4 SPECIAL RULES LIMITING PARTICULAR EVIDENCE ABOUT SEXUAL OFFENCES

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 also to a charge of an offence other than a sexual offence against the same or any other defendant—

1. 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.

1. 2
   Without leave of the court—

1. (a)
   cross-examination of the complainant shall not be permitted as to the sexual activities of the complainant with any person; and
2. (b)
   evidence shall not be received as to the sexual activities of the complainant with any person.

1. 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 proper matter for cross-examination as to credit.

1. 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.

Example of inference about general disposition—

an inference that the complainant, because of having engaged in conduct of a sexual nature, is more likely to have consented to the conduct involved in the offence

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 is 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.

1. 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 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.

1. 6
   An application for leave under rule 2 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 (sworn or unsworn) as the court considers necessary for the determination of the application.”

1. [11]
   Clearly enough, the spirit of the legislation is to prevent cross-examination or the eliciting of evidence solely relevant to credit and which seems only to raise evidence of general disposition about a complainant’s sexual activity. One can understand that, of course, because just because a woman or man has sex with somebody else is not of itself relevant to whether they’re telling the truth about whether they’ve been raped or assaulted sexually on a different occasion. So the defence needs to establish, firstly, there’s a substantial relevance to the facts in issue, or it’s a proper matter for cross-examination for credit. In that regard, there must be special circumstances which materially impair the confidence and the reliability of the complainant’s evidence.

1. [12]
   There is no doubt in this case the credibility of the complainant is a critical issue on this matter. There’s a relevant decision relied on by the defence, R v Lawrence [2002] 2 Qd R 400. It was noted by Justice McPherson at paragraph 13:

“In charges of sexual misconduct where the central issue of guilt often depends entirely on resolving you’re a conflict in testimony between the complainant and the accused, courts in England have recently been prepared to relax the finality rule in the interests of justice.”

1. [13]
   Further, Justice Thomas at paragraph 31 noted:

“Statements in appellate courts that the credibility of the complainant’s account was the critical issue are now commonplace. It seems to me that when such a case comes down to the word of the complainant against the word of the accused, there are some circumstances in which collateral conduct of the complainant may properly be regarded as going to the central issue of guilt or innocence.”

1. [14]
   In Lawrence itself in 1999, the appellant and complainant were prisoners in the Moreton Bay Correctional Centre, the complainant being held on remand. It was alleged the appellant engaged in anal intercourse with the complainant without his consent, and indeed, he was found guilty at trial. The appellant appealed his convictions and complained the trial judge wrongly excluded evidence from a man called Galley, who the defendant wished to call as a witness. In cross-examination, the complainant was cross-examined about other complaints he had made, including complaints about Mr Galley. Mr Galley was going to give evidence that these complaints were untrue. Ultimately, it was held the trial judge was in error and evidence contradicting his denial that he had previously threatened to report another prisoner for sexual assault was wrongly excluded.

1. [15]
   I consider Lawrence to be analogous to the present case, particularly when one is concerned with the central issue of credibility here.

1. [16]
   As Justice White noted in Lawrence at paragraph 44:

“The court is not bound to the view that the exclusionary rule is absolute, or that the categories of exceptions to it are closed. It is a rule of practice related to the proper management of litigation. A trial judge should not be precluded from determining in an appropriate case that the matter on which the witness’s credit is tested is sufficiently relevant to that credit, as it bears upon the issues in the case that such evidence may be admitted.”

1. [17]
   In all of the circumstances, I am satisfied in light of the allegations that the evidence of the facts surrounding this complaint, which was withdrawn, have a substantial relevance to the facts at issue and/or are a proper matter for cross-examination as to credit. This is because the evidence would be likely to materially impair the confidence in the reliability of the complainant’s evidence. It doesn’t relate solely to general disposition. In the circumstances, I allow the defence to fully cross-examine the complainant on these issues.

1. [18]
   As to the calling of the witness, my preliminary view is the evidence is admissible in light of Lawrence’s case, but I will leave that to the trial judge who will hear all of the evidence, to make a final determination about the topic.….

1. [19]
   Now, this is an application by the defence under s 14H of the Evidence Act 1977 (Qld) to inspect and copy protected counselling and communication records of the Centre Against Sexual Violence, and records from the Royal Brisbane and Women’s Hospital.

1. [20]
   I have referred to the facts earlier in my ruling concerning the Criminal Law (Sexual Offences) Act application for leave.

1. [21]
   The defence submits that in light of leave being granted to cross-examine the complainant concerning the events of April 2019, then the records achieve a substantial probative value and the public interest in admitting the communication outweighs the public interest in preserving the confidentiality of the communication and the protected counselling person from harm.

1. [22]
   The counselled person, on the other hand, submits that the records held by the Centre Against Sexual Violence do not achieve those matters, although it is conceded that some records from the Royal Brisbane and Women’s hospital do achieve that necessary by reason of my earlier ruling, although submits that in closed court, redactions should be discussed.

1. [23]
   Some of the records from the Centre against Sexual Violence have been released by a formal waiver. The counselled person opposes leave to inspect the balance of the records. I have considered the unredacted records which have been placed in the envelope. These are Exhibits 7 and 8, and I have also considered the statement of harm, which I have marked as an exhibit. That has also been placed in the sealed envelope. I’ve had regard to all of the matters mentioned in s 14H of the Evidence Act. I am satisfied, having considered the submissions, the relevant records are protected counselling records as defined.

1. [24]
   With respect to the Centre against Sexual Violence records, I have compared the redacted version against the unredacted version. In particular, I’ve had regard to the allegation she makes when she was a child. I am satisfied that those records in the redacted section do not have any substantial probative value, and the public interest in admitting the communication does not substantially outweigh the public interest of preserving the confidentiality of the communication and protecting the counselled person from harm. I therefore decline the defence request to inspect those records.

1. [25]
   Turning then to the Royal Brisbane and Women’s Hospital records, in light of the findings I made concerning the Criminal Law (Sexual Offences) Act, I am satisfied that the records relating to the complaint from April 2019 do achieve a substantial probative value. Additionally, the public interest admitting the communication to evidence substantially outweighs the public interest of preserving the confidentiality of the communication and in protecting the counselled person from harm. I allow leave to the defence to inspect those records subject to my discussing with Mr Webber in closed court, proposed redactions and the leave will extend to inspecting the redacted copies of those documents.

1. [26]
   CLOSED COURT SESSION ENSUED

1. [27]
   PUBLIC SESSION RESUMED

1. [28]
   Well, I’ve heard submissions in closed court from the counselled person and going to the 49 pages of the Royal Brisbane and Women’s Hospital records, I make these determinations. Page 1 is not to be disclosed. Page 2 is to be disclosed. Page 3 is not to be disclosed, and page 4 is to be disclosed with the redactions discussed with you, Mr Webber. Similarly, page 5 is to be disclosed, with the redactions discussed. Pages 6, 7 and 8 are to be disclosed. Page 9 is not to be disclosed. Page 10 is not to be disclosed. Page 11, not disclosed. Page 12, where it is headed Trauma History, that section is to be disclosed, but not the rest. Page 13 is not to be disclosed. Page 14 is not to be disclosed. Page 15 is, and onwards, are to be disclosed.