Citation: R v A-Z [2022] NSWDC 440
Court: District Court of New South Wales
Date: 28 September 2022
Judge(s): Wass SC DCJ
Background
The accused faced charges including aggravated sexual assault, with the Crown alleging he had repeatedly inserted his fist into the complainant's vagina ("fisting"). The accused denied the fisting allegation, though both parties accepted that consensual penile-vaginal intercourse had occurred at the relevant time.
A central plank of the Crown's case was that the complainant had suffered significant vaginal trauma and bleeding on the night in question. The Crown's expert, Dr Wang, characterised this trauma as "highly unusual in normal penile-vaginal intercourse," inviting the inference that it was caused by the alleged fisting. The Crown also led evidence that, in a separate earlier incident in September 2018, the complainant had bled extensively following digital penetration by the accused.
The accused sought leave to adduce evidence from a 2017 medical note recording that the complainant had experienced persistent and heavy vaginal bleeding each time she had penile-vaginal intercourse over several weeks, with an observed partial tear of the hymen and apparent tearing of the vaginal wall. The accused also sought leave to cross-examine Dr Wang in light of this note, of which the expert was unaware.
Legal Issues
- Whether the 2017 medical note, which disclosed the complainant's prior sexual experience and associated vaginal bleeding, was prima facie inadmissible under s 294CB(3) of the Criminal Procedure Act 1989 (NSW)
- Whether the statutory bar against adducing evidence of a complainant's sexual experience was displaced in the circumstances, such that the evidence should be admitted
- Whether the Crown's case had implied, without direct evidence, that the complainant had no prior propensity to bleed during ordinary penile-vaginal intercourse, thereby risking unfair prejudice to the accused if the medical note was excluded
Decision
His Honour found that the 2017 medical note was prima facie inadmissible under s 294CB(3) of the Criminal Procedure Act 1989 (NSW), as it plainly disclosed the complainant's prior sexual experience. However, the court concluded that the provision did not apply in the circumstances and that the evidence was admissible.
Applying the approach in R v Edwards [2015] NSWCCA 24, his Honour reasoned that a documented susceptibility to vaginal tearing and bleeding upon ordinary digital or penile penetration constituted an existing state arising from historical sexual experience at or about the time of the alleged offences. The court found that this prior history was also part of a connected set of circumstances surrounding the alleged offence, because the Crown itself had drawn comparisons between the September 2018 bleeding and the bleeding on the night in question to support the fisting allegation.
His Honour found the evidence highly probative. Without it, the jury would be left with a misleading impression that the extent of bleeding pointed to fisting as its cause, when the complainant's demonstrated propensity to bleed from conventional penetration provided an alternative explanation. The court was also satisfied that the Crown had effectively implied, through the complainant's own evidence, that she had little or no prior sexual experience before her encounters with the accused, making cross-examination on this point a matter of fairness.
Having weighed the probative value of the evidence against any hurt, embarrassment or humiliation to the complainant, the court was satisfied that the former far outweighed the latter. The evidence was admitted, and the accused was also found entitled to cross-examine the complainant on the potential inconsistency between her evidence and the 2017 medical note.
Orders Made
• Evidence of lack of bleeding on penile vaginal intercourse is admissible
• The accused is entitled to cross-examine the complainant on potential inconsistencies in her evidence regarding her sexual history
• Counsel for the accused must provide a set of questions or bullet points on topics for cross-examination
Key Takeaways
- The District Court held that a complainant's documented physiological susceptibility to vaginal tearing and bleeding during ordinary penetrative intercourse constitutes an "existing state of sexual experience" within the meaning of R v Edwards, capable of engaging the exceptions to the s 294CB(3) bar on sexual experience evidence.
- Where the Crown itself leads comparisons between bleeding from a prior incident and bleeding associated with the alleged offence, the prior medical history of the complainant's propensity to bleed can form part of "a connected set of circumstances" in which the alleged offence was committed.
- Admitting this kind of historical medical evidence may be warranted where excluding it would leave the jury with a materially misleading impression about the likely cause of physical injuries said to corroborate the Crown's account.
- Under the Criminal Procedure Act 1989 (NSW), the statutory protection against adducing sexual experience evidence does not operate as an absolute bar where the Crown's own case has implied the absence of such experience, and where the accused could be unfairly prejudiced without the ability to challenge that implication.
- Expert opinion evidence offered without knowledge of a complainant's relevant medical history may itself be a ground on which an accused can seek leave to cross-examine that expert, particularly where the opinion directly supports an inference adverse to the accused.
Legislation and Cases Referenced
Legislation:
- Criminal Procedure Act 1989 (NSW), s 294CB(3)
Cases:
- R v Edwards [2015] NSWCCA 24