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District Court 18 November 2014

R v Peridot

[2014] NSWDC 261

Sexual offencesAssault & violenceDomestic & family violence
CRIMINAL LAW PARTICULAR OFFENCES OFFENCES AGAINST THE PERSON ASSAULT OCCASIONING ACTUAL BODILY HARM SEXUAL INTERCOURSE WITHOUT CONSENT DOMESTIC RELATIONSHIP

Citation: R v Peridot [2014] NSWDC 261
Court: District Court of New South Wales
Date: 18 November 2014
Judge(s): Cogswell SC DCJ

Background

The accused faced two charges on indictment. The first was assault occasioning actual bodily harm, alleged to have occurred on 21 or 22 August 2013, involving a physical altercation in the family home during which the complainant alleged the accused strangled her and forcibly twisted her wrist. The second was sexual intercourse without consent, alleged to have occurred on 16 October 2013. Both complainant and accused were married, having known each other since 2004 and wed in 2009.

The Crown proposed to lead four pieces of relationship evidence from the complainant: a 2007 incident during consensual intercourse in which the accused slapped her repeatedly; a general pattern of aggressive sexual behaviour since 2011 following arguments; an incident in 2013 involving the forcible taking of her phone and pouring water on her bed; and a separate 2013 incident in which the accused threw a lamp at her.

The defence objected to all four pieces of proposed evidence under s 137 of the Evidence Act 1995. The defence also applied for separate trials on each count, and separately sought leave to cross-examine the complainant about sexual activity on the nights immediately before and after the alleged sexual assault.

  • Whether the four proposed items of relationship evidence should be excluded under s 137 of the Evidence Act 1995 on the basis that their probative value was outweighed by the danger of unfair prejudice to the accused
  • Whether the accused was entitled to a separate trial on each count under the Criminal Procedure Act 1986
  • Whether the Crown required leave under s 293 of the Criminal Procedure Act 1986 to lead evidence of the sexual relationship between the complainant and the accused
  • Whether the defence should be granted leave under s 293 to cross-examine the complainant about other sexual activity, including on the nights before and after the alleged assault

Decision

Relationship evidence under s 137: Cogswell SC DCJ admitted three of the four proposed items of relationship evidence, finding their probative value to be high. The Crown's purpose was to provide the jury with context for the complainant's conduct during a lengthy sexual encounter and for her two-day delay in reporting the alleged assault. The court accepted that appropriate jury directions would address any risk of unfair prejudice, relying on the principle that juries are presumed to follow a trial judge's directions. The fourth item, describing a general behavioural pattern since 2011, was considered too vague in its current form; the Crown was invited to obtain more specific particulars from the complainant before any ruling on its admission.

Separate trials: The application for separate trials was refused. The court found that the two counts formed part of a series of offences of a similar character, satisfying the requirements of s 21 of the Criminal Procedure Act 1986. There was no sufficient basis to conclude the accused would suffer prejudice or embarrassment from a joint trial.

Crown leave to lead sexual relationship evidence: The court granted the Crown leave under s 293(4)(b) of the Criminal Procedure Act 1986 to lead evidence of the sexual relationship between the parties. That provision permits such evidence where it relates to a relationship that was existing or recent at the time of the alleged prescribed sexual offence. The admissible evidence was defined by reference to the complainant's statements tendered as exhibits, subject to any supplementary particulars regarding the general behaviour paragraph.

Defence leave to cross-examine on sexual activity: The court granted the defence leave to cross-examine the complainant about sexual activity on the nights immediately before and after the alleged assault, finding that evidence qualified under s 293(4)(c) as forming part of a connected set of circumstances in which the alleged offence was committed. The court also granted leave to cross-examine about any sexual activity specifically led by the Crown in its own case, finding that the high probative value of such cross-examination outweighed any distress, humiliation, or embarrassment the complainant might suffer, particularly given the level of detail already contained in her own statements.

Orders Made

• Leave granted to cross-examine Ms Peridot in relation to sexual activity on the nights before and after the claimed sexual assault
• Leave granted to cross-examine Ms Peridot in relation to any sexual activity specifically led in evidence by the prosecution
• Leave granted to Mr Hughes to lead evidence from Ms Peridot regarding the sexual relationship between her and the accused, Mr Peridot
• Evidence admissible is limited to that contained in VD B and VD C (statements by Ms Peridot)
• Leave granted to supplement evidence with further particulars provided in respect of para 12 of exhibit VD B
• Leave granted for cross-examination by Mr Miller of any sexual encounter between his client and Ms Peridot on 15 and 17 October 2013

Key Takeaways

  • Three of the four proposed items of context evidence were admitted, with the court finding that relationship history in a domestic violence prosecution can carry high probative value in explaining a complainant's conduct during an alleged offence and any post-offence delay in reporting.
  • Where the risk of unfair prejudice from context evidence can be addressed by clear jury directions and a transparent statement of the purpose of the tender, s 137 of the Evidence Act 1995 will not operate to exclude the evidence.
  • Context evidence tendered for a permissible purpose is distinct from tendency evidence, and the court confirmed that making this distinction explicit to the jury is a proper mechanism for managing prejudice.
  • Under s 293(4)(b) of the Criminal Procedure Act 1986, evidence of a sexual relationship that was existing or recent at the time of an alleged prescribed sexual offence is admissible with leave, and the scope of that leave is defined by the nature and content of the evidence to be called.
  • Leave to cross-examine a complainant about other sexual activity may be granted under s 293 where the activity forms part of a connected set of circumstances surrounding the alleged offence, provided the probative value outweighs the potential for distress, humiliation, or embarrassment to the complainant.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), s 137
- Criminal Procedure Act 1986 (NSW), ss 21, 29, 293

Cases:
No cases were cited in the provided text.