AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Supreme Court 20 July 2021

R v Cust

[2021] NSWSC 893

Sexual offencesHomicide
CRIME TRIAL MURDER S 23 CRIMES ACT 1900 ( NSW) RIGHT TO SILENCE

Citation: R v Cust [2021] NSWSC 893
Court: Supreme Court of New South Wales
Date: 20 July 2021
Judge(s): Wilson J

Background

The accused was charged with the murder of Jesus Bebita, who was stabbed to death on 17 or 18 December 2018 at his home in Scone, NSW. The accused did not dispute the stabbing. His case was that he acted in response to extreme provocation after waking to find the deceased sexually assaulting him, and he relied on the partial defence under s 23 of the Crimes Act 1900 (NSW).

After reporting the incident at Muswellbrook Police Station, the accused received legal advice and formally exercised his right to silence, declining to be interviewed or to submit to forensic procedures. Later that day, police took him to John Hunter Hospital where a Sexual Assault Nurse Examiner conducted a forensic medical examination, treating him as a possible victim of sexual assault.

Before trial, the Crown sought to lead two categories of contested evidence: first, material relating to the sexual orientation of the accused and the deceased; and second, the history the accused gave to the nurse during that medical examination. The accused objected to both, and Wilson J conducted a voir dire (a preliminary hearing to determine admissibility) to resolve the issues.

  • Whether evidence of the accused's sexual interest in men, including pornographic images on his phone and allegations of a prior sexual assault on a male complainant, was relevant and admissible in a case where the partial defence of extreme provocation was raised.
  • Whether evidence of the deceased's sexual orientation was relevant to that same partial defence.
  • Whether the history given by the accused to a sexual assault nurse examiner, after he had formally exercised his right to silence, had been obtained in circumstances that breached or undermined that right.
  • Whether the evidence from the medical examination should be excluded on discretionary grounds under the Evidence Act 1995 (NSW) as unfairly prejudicial.

Decision

Sexual orientation evidence: Wilson J excluded evidence of the sexual interest of either the accused or the deceased in men other than each other. The Crown's argument in support of admissibility rested, in the Court's view, on an implicit assumption that a homosexual man would respond differently to a sexual assault by a male assailant than a heterosexual man would. Wilson J rejected that reasoning as an insufficient basis to establish relevance. The text messages between the accused and the deceased, and their broader communications, remained available to the parties as context, but the specific sexual orientation material was excluded.

The medical examination history: The accused had formally and clearly exercised his right to silence, confirmed in writing by both the custody manager and his solicitor. The consent form for the sexual assault examination made no reference to the possibility that statements made during the history-taking could be used against the accused in criminal proceedings. Wilson J found that the assurances implied by the conduct of the examination were inconsistent with the accused's understanding of his rights. The accused had not been warned that what he said might be used against him, and he proceeded on the understanding that his silence would be maintained.

Wilson J held that admitting the history would effectively undermine the right to silence in a manner that was unfair to the accused. The probative value of the disputed parts of the history was limited, since the account the accused gave to the nurse was substantially consistent with what he had already told detectives. That limited probative value was outweighed by the significant prejudice of admitting material obtained in circumstances where the accused's right to silence had not been properly respected.

One aspect of the examination was permitted: the unremarkable ano-genital findings (showing no physical signs of sexual assault) could be adduced by the parties if regarded as useful, primarily to prevent speculation on that aspect.

Orders Made

  • Evidence of the sexual interest of either the accused or the deceased in men other than each other was excluded.
  • Evidence of the accused's sexual assault examination conducted on 18 December 2018 (including the history taken) was excluded.
  • Evidence of injuries to the accused's hands could be adduced by the Crown through other means.
  • Evidence of the unremarkable ano-genital examination findings could be led by the parties if regarded as having value.

Key Takeaways

  • Evidence of a party's sexual orientation is not automatically relevant in a murder trial where extreme provocation is raised; admissibility requires a logical basis for relevance that does not rely on assumptions about how persons of a particular orientation would respond to a sexual assault.
  • Where an accused has formally exercised the right to silence under Part 9 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), statements subsequently obtained during a medical examination conducted without a contemporaneous warning that the material could be used against the accused risk being excluded on discretionary grounds.
  • Under the Evidence Act 1995 (NSW), a court may exclude evidence whose probative value is outweighed by unfair prejudice to the accused, particularly where that prejudice arises from an effective undermining of a fundamental procedural right.
  • Consent forms used in sexual assault examinations that do not clearly distinguish between evidence collected against the accused and evidence relevant to the accused's own complaint can give rise to ambiguity with significant evidentiary consequences.
  • Following publication of reasons, the Crown objected to Wilson J's characterisation of the Crown's submissions on sexual orientation. The Court declined to revise the reasons and instead recorded the Crown's complaint by way of addendum on 21 July 2021.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 23 (partial defence of extreme provocation)
- Evidence Act 1995 (NSW)
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), Part 9 (rights of persons in custody)

Cases cited: No specific cases were cited in the portions of the judgment provided.