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District Court 4 June 2021

R v Remington

[2021] NSWDC 380

Sexual offences
CRIMINAL LAW S293 CRIMINAL PROCEDURE ACT PROBATIVE VALUE OF EVIDENCE EXCLUSIONARY RULE

Citation: R v Remington [2021] NSWDC 380
Court: District Court of New South Wales
Date: 4 June 2021
Judge: Grant DCJ

Background

The accused faced five charges arising from an Australia Day party in Albury in January 2020. The complainant alleged she was subjected to a series of non-consensual sexual acts at the party, including digital penetration, fellatio (on two occasions each), and penile-vaginal intercourse. The accused denied most of the allegations and told police the only contact was a single consensual episode of fellatio.

After leaving the party, the complainant contacted a male friend, who collected her and drove her home. The two then had unprotected consensual sexual intercourse. The complainant explained this by saying she felt awful after the alleged assaults and wanted to feel good again with someone who cared for her.

The accused applied for leave under s 293(4)(a) and s 293(6) of the Criminal Procedure Act 1986 to cross-examine the complainant about her alleged interest in having a sexual experience at the party, her efforts to secure one, and her consensual intercourse with the friend shortly after leaving.

  • Whether evidence of the complainant's sexual conduct after the alleged assaults was relevant under s 55 of the Evidence Act 1995
  • Whether that evidence was caught by the exclusionary rule in s 293 of the Criminal Procedure Act 1986
  • Whether the evidence qualified under the exception in s 293(4)(a), requiring satisfaction of both sub-limbs (i) and (ii)
  • Whether the probative value of the evidence outweighed any distress, humiliation, or embarrassment the complainant might suffer if it were admitted

Decision

Grant DCJ worked through four sequential questions to resolve the application.

Relevance: The court found the evidence relevant. Relying on R v Morgan (1993), Grant DCJ accepted that a complainant engaging in consensual intercourse within a short time of alleged forced intercourse is, in the relevant sense, unlikely or contrary to human experience. That assessment made the evidence capable of rationally affecting the jury's assessment of a fact in issue, satisfying the test in s 55 of the Evidence Act.

Exclusionary rule: The court confirmed that s 293 captured the evidence in question. Grant DCJ acknowledged that s 293 is a complex and much-criticised provision, noting repeated judicial calls for reform. The rule exists to prevent offensive and demeaning cross-examination premised on the now-rejected inference that prior consent to sex with one person implies consent to sex with another.

Exception under s 293(4)(a): The court was satisfied that the evidence fell within the exception. Following Morgan, Grant DCJ applied a broad rather than narrow construction to the exception, finding that both sub-limbs of s 293(4)(a) were satisfied. The party and the subsequent consensual intercourse were, in the court's view, capable of being treated as one connected set of circumstances.

Probative value versus distress: The court found the probative value of the evidence to be high. Grant DCJ applied the principle from R v Morgan that the relevant distress, humiliation, or embarrassment is that which arises over and above the distress inevitably flowing from the trial itself. Several protective measures were noted: the complainant's identity cannot be published, her evidence would be given in a closed court via audio-visual link, and she would not be able to see the accused or the jury. Those factors, the court found, diminished any additional distress beyond the inevitable.

Orders Made

  • Leave granted for defence counsel to cross-examine the complainant on topics (i) to (v) as set out in the written submissions dated 4 March 2021 (MFI #1), covering the complainant's interest in and pursuit of a sexual experience at the party, her consensual intercourse with the friend after leaving, and the likelihood of such conduct following alleged forced intercourse.

Key Takeaways

  • The District Court confirmed that a complainant's consensual sexual activity shortly after alleged forced intercourse can be relevant under s 55 of the Evidence Act, on the basis that such conduct is contrary to common human experience and capable of rationally affecting the jury's assessment of the central issue.
  • Under s 293 of the Criminal Procedure Act, the exceptions to the exclusionary rule are to be construed liberally, not narrowly, consistent with the Court of Criminal Appeal's approach in Decision Restricted [2021] NSWCCA 51 and the earlier reasoning of Gleeson CJ in R v Morgan.
  • Satisfying s 293(4)(a) requires both sub-limbs (i) and (ii) to be established, and then the probative value of the evidence must outweigh the additional distress, humiliation, or embarrassment to the complainant beyond what the trial itself inevitably produces.
  • Protective measures available at trial, including closed court proceedings, statutory identity suppression, and evidence by audio-visual link, are relevant considerations when the court weighs distress against probative value.
  • Grant DCJ noted that s 293 has been repeatedly criticised by senior Australian jurists as problematic in its drafting and operation, reflecting a long-running judicial view that the provision is in need of legislative reform.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), s 293
- Evidence Act 1995 (NSW), ss 55, 56
- Crimes Act 1900 (NSW), s 409B (predecessor provision, repealed)

Cases:
- Decision Restricted [2021] NSWCCA 51
- R v Burton [2013] NSWCCA 335
- R v Morgan (1993) 30 NSWLR 543; 67 A Crim R 526
- R v White (1989) 18 NSWLR 332