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[2026] ACTSC 150
General information, not legal advice.
Supreme Court of the ACT
2026-04-21
Baker J
Original judgment source is linked above.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: DPP v Kata Citation: [2026] ACTSC 150 Hearing Date: 21 April 2026 Decision Date: 21 April 2026 Reasons Date: 20 May 2026 Before: Baker J Decision: (1) That the defence be granted leave to adduce evidence of the sexual activity of the complainant, [redacted], as follows: (a) When they were in a relationship previously, the complainant would initiate sexual contact with the respondent when her kids were around (b) “Yummy” is a word the complainant would use when she and the accused were together about having consensual sex Catchwords: CRIMINAL LAW – EVIDENCE – Application by accused to adduce evidence of prior sexual history of the complainant – s 76 of the Evidence (Miscellaneous Provisions) Act 1991 – application related to previous sexual history between the complainant and the accused – leave required under s 76 – leave granted. Legislation Cited: Evidence (Miscellaneous Provisions) Act 1991 (ACT) ss 76, 77, 78 Cases Cited: DPP v Earle (No 2) [2023] ACTSC 134; 378 FLR 1 DPP v Robertson [2024] ACTSC 268 Parties: Director of Public Prosecutions Paula Fala Kata (Accused) Representation: Counsel S McLaughlin (DPP) S Baker-Goldsmith (Accused) Solicitors ACT Director of Public Prosecutions Bevan & Co Lawyers (Accused) File Number: SCC 330 of 2024 BAKER J: Overview
The accused, Paula Fala Kata, was charged with two counts of aggravated act of indecency without consent (Counts 1 and 2), and one count of aggravated sexual intercourse without consent (Count 3).
By an application dated 14 April 2026, the prosecution sought leave to adduce evidence of the complainant’s sexual history pursuant to s 76 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (EMP Act), specifically, an answer given by the complainant in her Evidence in Chief Interview (EICI) that she had not had sexual intercourse for some weeks prior to the alleged offending.
The application was not opposed, and on 21 April 2026, I granted leave to the prosecution to adduce the evidence. Noting that the application was unopposed by the prosecution and the complainant, and that the prosecution intended to adduce evidence of injuries which were observed on the complainant’s inner labia following the alleged offending, I was satisfied the evidence had substantial relevance to the facts in issue, and that it was appropriate to grant the requested leave.
During the course of that application, counsel for the accused also indicated that an application under s 76 of the EMP Act would be made on behalf of the accused.
As foreshadowed, on 21 April 2026, the accused filed a written application seeking leave to adduce evidence of the complainant’s sexual history on concerning the following topics: (a) When the accused and the complainant were in a relationship previously, the complainant would initiate sexual contact with the accused when her kids were around; and (b) “Yummy” is a word the complainant would use when she and the accused were together about having consensual sex.
This application, which had been refined following some initial concerns expressed by the prosecution when the application had been first foreshadowed, was not opposed by the prosecution. I granted leave to the accused to adduce the evidence sought in the application.
As required by s 78(4) of the EMP Act, these are my written reasons for that decision. The prosecution case
The prosecution case was that the accused and the complainant had previously been in a relationship from December 2021 to March 2022. The accused began messaging the complainant in June 2024, telling her he wanted to see her. The accused then went to the complainant’s house in the morning of 30 June 2024.
The complainant let the accused inside, however when the accused tried to kiss her, she said “no” and told him to leave. The prosecution alleges that the accused then committed the above offences by forcibly grabbing and kissing the complainant, including forcing his tongue into her mouth (Count 1), grabbing her breasts (Count 2), and pushing his fingers inside her genitalia through her dress (Count 3).
The complainant called police shortly after the incident, and also made disclosures to her family about what had occurred.
Legislation and principles
Sections 76, 77 and 78 of the EMP Act provide as follows: 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. 77 Application for leave under s 76 Application for leave under section 76 in a sexual offence proceeding must be made–– (a) in writing; and (b) if the proceeding is before a jury––in the absence of the jury; and (c) in the absence of the complainant, if an accused person in the proceeding requests. 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).
In DPP v Robertson [2024] ACTSC 268 at [65], I held that leave is required under these provisions for a party to adduce evidence of sexual contact between the accused and the complainant, other than acts which form the res gestae of the alleged offences. In so finding, I agreed with the obiter observations of McCallum CJ in DPP v Earle (No 2) [2023] ACTSC 134; 378 FLR 1 at [27]-[34].
In Robertson at [77]-[78], I also made the following observations concerning the potential relevance of evidence of the prior sexual relationship between a complainant and an accused: As s 50A of the Crimes Act [1900 (ACT)] expressly recognises, “a consensual sexual act involves ongoing and mutual communication and decision-making by the people participating in the sexual act”. Such “ongoing and mutual communication and decision-making” cannot be understood in a vacuum. Communication of consent is contextual and requires an understanding of the relationship (if any) that existed between the accused and the complainant at the time of intercourse. For example, explicit communication of consent may be required in the case of two people who have never engaged in any form of sexual conduct together. In contrast, in a long-term relationship, a look in response to a slight touch may be enough to convey consent, provided always, in accordance with the central principle of the communicative consent model, that consent is in fact communicated in some way. For this reason, evidence of previous sexual activity between an accused and a complainant may be probative of two related issues: first, it may assist the jury in assessing any claim by an accused that they honestly believed that the complainant was consenting; second, it may assist the jury in assessing whether any belief held by the accused that the complainant was consenting was “reasonable in the circumstances”: s 67(4) of the EMP Act. Determination
In her opening statement to the jury, counsel for the accused told the jury that the accused’s case was that there was consensual touching and kissing between himself and the complainant on 30 June 2024. She indicated that there was no dispute that the accused kissed the complainant on the mouth, but that the accused denied forcing his tongue into the complainant’s mouth (Count 1) and also denied grabbing her breasts (Count 2). She also told the jury that the accused’s case was that he consensually touched the complainant’s external genitalia after she had touched his penis, but did not penetrate her genitalia with his fingers (Count 3).
I was informed that the accused’s case is that previously, the complainant had referred to the accused as “yummy” when she was engaging in consensual sexual activities with the accused. The accused’s case is that the complainant referred to him as “yummy” at the time of the alleged offences. If accepted, this evidence would be important to the jury’s assessment of whether the whether the complainant was consenting to sexual touching and/or penetration and the accused’s knowledge of lack of consent.
The complainant’s children were at home when the offences are alleged to have occurred. I was also informed that the accused’s case is that he and the complainant had previously engaged in consensual sexual activity when the complainant’s children were in the vicinity. If accepted, this evidence would be relevant to the jury’s assessment of the accused’s account that the complainant engaged in consensual kissing and hugging.
In these circumstances, I was satisfied that the evidence of prior sexual activity between the complainant and the accused as particularised in the accused’s s 76 application had substantial relevance to the facts in issue, satisfying s 78(1) of the EMP Act.
Orders
I certify that the preceding eighteen [18] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker. Associate: Date: 20 May 2026
DPP
Kata
[2024] ACTSC 268