Citation: R v Gene David Scorringe [2009] NSWDC 154
Court: District Court of New South Wales
Date: 20 April 2009
Judge(s): Cogswell SC DCJ
Background
The accused was charged with non-consensual sexual intercourse. The complainant was examined by a doctor shortly after the alleged incident, and the doctor identified signs of acute trauma, including lacerations and marked redness with fresh bleeding, consistent with vaginal penetration by a finger, penis, or other object.
The accused did not deny that a sexual encounter had taken place with the complainant. His position was that the encounter was consensual.
Defence counsel sought to cross-examine the doctor in a way that would elicit evidence that the acute trauma occurred within the previous twenty-four hours. The Crown objected, arguing that this evidence was inadmissible under s 293(3) of the Criminal Procedure Act 1986 because it implied the complainant may have taken part in prior sexual activity not the subject of the complaint.
Legal Issues
- Whether the proposed evidence from the doctor disclosed or implied prior sexual activity by the complainant, triggering the exclusionary rule in s 293(3) of the Criminal Procedure Act 1986.
- Whether the exception in s 293(4)(c) applied, specifically whether the phrase "the accused person does not concede the sexual intercourse so alleged" extends to situations where an accused admits a sexual encounter occurred but disputes that it was non-consensual.
Decision
The court accepted the Crown's first argument without difficulty. Evidence that acute trauma occurred within the previous twenty-four hours, given its location in the complainant's genitalia and the doctor's finding that it was consistent with vaginal penetration, carried an implication that the complainant may have engaged in prior sexual activity. That was sufficient to engage the prohibition in s 293(3).
On the exception in s 293(4)(c), defence counsel relied on an argument advanced (but left unresolved) in the Court of Criminal Appeal in R v Tubou [2001] NSWCCA 243. That argument proposed that "so alleged" in the provision should be read liberally to distinguish between sexual intercourse as a physical act and non-consensual intercourse as alleged by the Crown, so that an accused who disputes consent, not occurrence, could still rely on the exception.
The court declined to adopt that construction. Cogswell SC DCJ preferred the interpretation that Hayden JA had indicated, without finally deciding, was more likely correct in Tubou. Support was also drawn from the Second Reading Speech quoted in R v Dimian (1995), in which the Attorney-General explained the provision was directed at the situation where an accused denies that any sexual encounter with the complainant occurred at all and suggests the offence was committed by someone else.
The court held that the words "does not concede the sexual intercourse so alleged" refer to a situation where the accused denies that any sexual encounter with him or her took place. The exception does not extend to an accused who admits a sexual encounter but disputes the complainant's account of its nature. Because the accused in this case admitted the encounter, s 293(4)(c) did not apply and the evidence was inadmissible.
Orders Made
The proposed evidence from the doctor was ruled inadmissible.
Key Takeaways
- The District Court held that medical evidence implying a complainant may have engaged in prior sexual activity, even if not explicitly stating so, is sufficient to engage the exclusionary rule in s 293(3) of the Criminal Procedure Act 1986.
- Under s 293(4)(c), the phrase "the accused person does not concede the sexual intercourse so alleged" is confined to situations where the accused denies that any sexual encounter with the complainant occurred, not where the accused admits the encounter but disputes consent.
- An accused who concedes that sexual contact took place but argues it was consensual cannot rely on the s 293(4)(c) exception to lead evidence implying prior sexual activity by the complainant.
- Attorney-General's Second Reading Speech, as discussed in R v Dimian, was treated as a confirmatory interpretive aid, reinforcing that the exception was designed for "someone else did it" defences rather than consent disputes.
- The interpretation favoured in Tubou by Hayden JA (without a final ruling) was followed: construing "so alleged" broadly would effectively render the exclusion in s 293(4)(c) meaningless across a significant category of cases, an outcome the court considered unlikely to be correct.
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 (NSW), ss 293(3) and 293(4)(c)
Cases
- R v Tubou [2001] NSWCCA 243
- R v Dimian (1995) 83 A Crim R 358