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Supreme Court 10 February 2014

R v Paterson (No 3)

[2014] NSWSC 57

Sexual offencesHomicide
CRIMINAL LAW WHETHER EVIDENCE ADMISSIBLE

Citation: R v Paterson (No 3) [2014] NSWSC 57
Court: Supreme Court of New South Wales
Date: 10 February 2014
Judge(s): Bellew J

Background

This decision arose as a pre-trial ruling in a murder and sexual assault prosecution. The accused was alleged to have sexually assaulted the deceased, without her consent, shortly before her death approximately 22 years prior to trial. The Crown case included allegations of non-consensual vaginal and anal intercourse, supported in part by DNA evidence from swabs taken from the deceased.

The Crown proposed to lead evidence from the deceased's former partners that she did not habitually engage in consensual anal sex, apparently to support an inference that the anal intercourse alleged in the indictment was non-consensual. The Crown also intended to lead evidence that the deceased had worked as a sex worker in the period leading up to her death. The accused, by contrast, maintained that he had engaged in consensual sexual intercourse with the deceased, potentially including consensual anal sex, on the day before her death.

Before the jury was empanelled, senior counsel for the accused raised a question about whether this body of evidence was admissible under section 293 of the Criminal Procedure Act 1986. Notably, the defence did not object to the evidence being led; rather, it invited the court to rule that the evidence fell within the statutory exceptions permitting its admission.

  • Whether the proposed evidence relating to the deceased's sexual reputation, experience, and activity was caught by the exclusionary provisions in section 293(2) and (3) of the Criminal Procedure Act 1986.
  • Whether any of the exceptions in section 293(4) applied to render that evidence admissible, particularly the exceptions in sections 293(4)(b) (existing or recent relationship between accused and complainant) and 293(4)(c) (relevance to attribution of semen, pregnancy, disease or injury).
  • Whether the court was required to record its reasons and the nature and scope of the admissible evidence in writing, as required by section 293(8).

Decision

Bellew J first confirmed that the evidence proposed to be led by the Crown, including evidence about the deceased's sexual habits and her employment as a sex worker, was prima facie caught by the exclusionary provisions in section 293(2) and (3). Those subsections render evidence of a complainant's sexual reputation, experience, and activity inadmissible in proceedings for a prescribed sexual offence.

His Honour was satisfied, however, that the evidence fell within the exceptions created by sections 293(4)(b) and 293(4)(c). Section 293(4)(b) applies where evidence relates to a relationship that was existing or recent between the accused and the complainant at the time of the alleged offence. Section 293(4)(c) applies where the accused does not concede the sexual intercourse alleged, and the evidence is relevant to whether physical findings such as semen, pregnancy, disease or injury are attributable to that intercourse.

His Honour also addressed the separate requirement under section 293(4)(f) that the probative value of the evidence must outweigh any distress, humiliation or embarrassment that admission might cause the complainant. He was satisfied that this threshold was met, observing in particular that the deceased had died some 22 years earlier. The Crown did not oppose any of the submissions advanced by the defence on this issue.

Consistent with section 293(8), which requires the court to record in writing the nature, scope and reasons for any decision to admit evidence under the exceptions, Bellew J issued this judgment as the written record of that ruling.

Orders Made

  • The evidence is admitted.

Key Takeaways

  • Section 293(2) and (3) of the Criminal Procedure Act 1986 create broad exclusions of sexual reputation and sexual history evidence in prescribed sexual offence proceedings, applying even where the complainant is deceased.
  • The exceptions in section 293(4) are capable of operating in cases where the proposed evidence relates to a recent or existing relationship between the accused and complainant, or where the evidence is relevant to attributing physical findings to the alleged intercourse.
  • Where a court rules evidence admissible under section 293(4), section 293(8) imposes a mandatory obligation to record in writing the nature and scope of the evidence admitted and the reasons for that decision, prior to the evidence being given.
  • Bellew J's treatment of the section 293(4)(f) balancing exercise confirms that the absence of a living complainant remains a relevant consideration when weighing probative value against potential distress or humiliation.
  • In dismissing any objection to admission, the court noted that both the Crown and defence were in agreement that the exceptions applied, which informed the ruling although the court independently assessed the statutory criteria.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), s 293
- Crimes Act 1900 (NSW), s 61H(1)

Cases
- R v Paterson [2014] NSWSC 29 (earlier evidentiary ruling in the same proceedings)