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District Court 9 September 2020

R v Whatman

[2020] NSWDC 562

Sexual offences
CRIMINAL PROCEDURE APPLICATION BY ACCUSED TO CROSS EXAMINE COMPLAINANT SECTION 409B CRIMES ACT SEXUAL INTERCOURSE WITHOUT CONSENT

Citation: R v Whatman [2020] NSWDC 562
Court: District Court of New South Wales
Date: 9 September 2020
Judge: Grant DCJ

Background

The accused was charged with two counts relating to alleged sexual offences against a 21-year-old complainant at a rodeo campsite in Hay, New South Wales on 3 March 2019. The accused admitted to digital penetration but maintained it was consensual, and denied penile intercourse. The complainant's account was that she had been asleep when the offending occurred, having earlier engaged in separate consensual intercourse with another man, referred to as Wood.

The Crown case included eyewitness evidence from Wood, who said he had observed the accused alongside the sleeping complainant on two separate occasions that night. Wood described hearing the complainant express pain and protest, and observed the accused with his fly undone when confronted. A forensic medical examiner had also prepared two reports, though the Crown indicated it would not lead certain portions of that expert opinion.

The key procedural question before the court arose when defence counsel sought leave to cross-examine the complainant about her earlier consensual intercourse with Wood that same evening.

  • Whether evidence of the complainant's prior consensual sexual activity with Wood was relevant under s 55 of the Evidence Act 1995
  • Whether such evidence was caught by the exclusionary rule in s 293 of the Criminal Procedure Act 1986
  • Whether any exception under s 293(4) applied, particularly the "injury" exception, to permit the cross-examination

Decision

Relevance: Grant DCJ found that evidence of the complainant's consensual intercourse with Wood was not relevant to any fact in issue. Following Simpson J's reasoning in R v Burton [2013] NSWCCA 335, the court held that the fact a complainant had engaged in consensual sexual activity with one person cannot rationally affect the assessment of whether she consented to sexual activity with the accused. The defence argument that the evidence was needed to "fill in the gaps" or give the jury a complete picture did not establish the required rational connection to the issue of consent.

Expert evidence and relevance: The defence also sought to use the prior sexual activity evidence in conjunction with Dr Magee's second report, which expressed opinions about post-coital pain being more likely following non-consensual intercourse. Because the Crown stated it would not lead that expert opinion, the court found the pain complaint alone, without the supporting expert framework, did not make the prior consensual activity relevant. The jury would be left to assess the complainant's pain evidence without any expert opinion anchoring it to the question of consent.

Exclusionary rule and exceptions: Even proceeding on the assumption that the evidence was relevant, the court found it was caught by the exclusionary rule in s 293 of the Criminal Procedure Act. The court then considered whether the "injury" exception in s 293(4) applied, drawing on Dimian v R (1995) 83 A Crim R 358. In Dimian, the Court of Criminal Appeal had interpreted that exception broadly, but the facts there involved visible physical injuries to the complainant. No comparable injury evidence was present in this case, and the exception was therefore unavailable.

Orders Made

No orders were made in this decision.

Key Takeaways

  • The District Court confirmed that a complainant's consensual sexual activity with one person on the same occasion as an alleged offence does not, without more, have rational relevance to whether she consented to sexual activity with the accused.
  • Following R v Burton, the mere fact that a complainant exhibited or acted upon sexual interest in another person cannot support an inference about consent to the conduct charged.
  • Where the Crown declines to lead expert opinion that would otherwise contextualise or give significance to the complainant's physical symptoms, evidence of prior sexual activity loses any associated relevance it might otherwise have claimed.
  • Under s 293(4) of the Criminal Procedure Act, the "injury" exception to the exclusionary rule requires facts resembling those in Dimian: observable physical injuries that might be explained by prior consensual sexual activity. The exception does not apply merely because pain was reported.
  • Section 293 of the Criminal Procedure Act operates as an exclusionary rule that catches sexual history evidence even where some relevance might be argued, and exceptions to that rule are construed with reference to their statutory purpose and the facts of each case.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61I
- Criminal Procedure Act 1986 (NSW), s 293
- Evidence Act 1995 (NSW), ss 55, 56

Cases:
- Adams v R [2018] NSWCCA 303
- R v Burton [2013] NSWCCA 335
- R v White (1989) 18 NSWLR 332
- Dimian v R (1995) 83 A Crim R 358