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District Court 22 June 2022

R v Mattiussi

[2022] NSWDC 234

Sexual offences
EVIDENCE CRIMINAL PROCEEDING SEXUAL ASSAULT OFFENCES

Citation: R v Mattiussi [2022] NSWDC 234
Court: District Court of New South Wales
Date: 22 June 2022
Judge: Abadee DCJ

Background

The accused faced trial on five counts arising from events involving a single complainant. Counts 1 to 3 alleged three separate acts of sexual assault committed on 10 April 2020 at Paxton, comprising penile-anal intercourse, fellatio, and penetration with a dildo. Counts 4 and 5 involved non-sexual conduct on 12 April 2020 at Kearsley.

The accused and the complainant had been in a relationship since February 2020. The Crown's case centred on events following a consensual three-way sexual encounter between the accused, the complainant, and the accused's former partner. The complainant alleged that after the former partner left the home, the accused committed the charged offences during an ensuing argument.

Both the Crown and the accused applied to lead evidence of the complainant's prior sexual experience or activity. Such evidence is generally prohibited under the Criminal Procedure Act 1986 (NSW), and both parties sought to bring their proposed evidence within the statutory exceptions. The applications were determined on the papers, supplemented by brief oral argument, with the complainant's police statements forming the principal evidence on the voir dire.

  • Whether proposed evidence of the complainant's prior sexual experience or activity fell within the exceptions to the general prohibition under s 294CB of the Criminal Procedure Act 1986 (NSW)
  • Whether the relevant evidence was admissible under s 294CB(4)(a)(i) or (ii) as sexual activity occurring at or about the time of the alleged offending, or forming part of the connected circumstances in which it occurred
  • Whether the relevant evidence was admissible under s 294CB(4)(b) as relating to the existing or recent relationship between the accused and the complainant
  • Whether the probative value of any proposed evidence outweighed the potential distress, humiliation, or embarrassment to the complainant from its admission

Decision

The Crown's application sought to adduce three sections of the complainant's first police statement. The first (paragraphs 28 to 30) concerned the origins of the proposed threesome, the expectations it generated, and the complainant's prior consensual anal intercourse with the accused, which was directly relevant to counts 1 and 3. The second (paragraphs 34 to 41) described the consensual sexual activity on 10 April 2020 and the complainant's growing dissatisfaction during it, which bore on her consent to the subsequent charged acts and potentially on the accused's mental state. The third (paragraphs 49 to 50) was also admitted. Abadee DCJ found all of the Crown's proposed evidence satisfied at least the exception in s 294CB(4)(b)(i), and that any distress, humiliation, or embarrassment to the complainant was outweighed by the probative value of the evidence.

The accused's application sought to go further. His Honour permitted the accused to cross-examine on the detail of the sexual activity forming part of the threesome on 10 to 11 April 2020, any drug use incidental to that occasion, paragraphs 42 to 51 of the complainant's first police statement, sexual intercourse with the complainant and Ms Robertson on 16 April 2020, and details of prior sexual activity between the accused and the complainant bearing particular characteristics, including the use of dildos. The accused was also permitted to question about a second threesome involving the complainant and another man occurring before 17 April 2020.

However, the accused's application was refused in some respects. His Honour declined to permit questioning about prior consensual anal intercourse not sufficiently linked to count 1, and declined to permit broader cross-examination about dildo use beyond whether dildos had been used in the parties' sexual relationship generally. The Court found that the accused had supplied no evidentiary basis to suggest that the alleged dildo penetration in count 3 was comparable to earlier consensual activity, particularly given the Crown's case that it occurred in humiliating circumstances.

Throughout, his Honour applied the statutory balancing exercise, requiring the probative value of any proposed evidence to outweigh the distress, humiliation, or embarrassment its admission might cause the complainant.

Orders Made

On the Crown's application, the following evidence was admitted:
- Paragraphs 28 to 30 of the complainant's first police statement
- Paragraphs 34 to 41 of the complainant's first police statement
- Paragraphs 49 to 50 of the complainant's first police statement

On the accused's application, the following evidence was admitted:
- Details of the sexual intercourse during the threesome on 10 to 11 April 2020, before and after the alleged offending
- Details of any prohibited drug use incidental to the threesome on 10 to 11 April 2020 before the alleged offending
- Questioning about paragraphs 42 to 51 of the complainant's first police statement
- Details of sexual intercourse involving the complainant and Ms Robertson on 16 April 2020
- Details of other sexual intercourse between the complainant and accused from 7 February 2020 to 17 April 2020 bearing identified characteristics, including the use of dildos
- Details of any threesome involving the accused, the complainant, and another man occurring after 10 to 11 April 2020 and before 17 April 2020

The scope of cross-examination was stated to apply strictly subject to exclusions identified in the reasons.

Key Takeaways

  • Under s 294CB of the Criminal Procedure Act 1986 (NSW), evidence of a complainant's sexual experience or reputation is presumptively inadmissible in criminal proceedings, but exceptions exist where the activity occurred at or about the time of the alleged offending, forms part of its connected circumstances, or relates to an existing or recent relationship between the accused and the complainant.

  • The District Court confirmed that evidence of prior consensual sexual activity between an accused and a complainant can satisfy multiple exceptions simultaneously, particularly where the nature of that activity is directly mirrored in the acts alleged to constitute the offence.

  • Where a Crown case relies on the complainant's expectations about a sexual encounter to establish the absence of consent, evidence of how those expectations arose, including prior sexual activity that informed them, may be admissible under the relationship exception in s 294CB(4)(b).

  • The required balancing exercise between probative value and potential distress, humiliation, or embarrassment to the complainant is not merely formal. The Court refused some of the accused's proposed cross-examination on the basis that the accused had not established a sufficient evidentiary link between the proposed material and the specific circumstances of the alleged offences.

  • Consent to sexual activity on one occasion does not automatically open the door to cross-examination about all prior activity of a similar kind. The connection between the proposed evidence and the specific acts charged remains a central consideration in applying the statutory exceptions.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), s 294CB (including ss 294CB(2), (3), (4)(a)(i), (4)(a)(ii), (4)(b)(i), and (8))

Cases cited: None identified in the judgment.