R v Whatman [2020] NSWDC 562

District Court New South Wales

Medium Neutral Citation: R v Whatman [2020] NSWDC 562 Hearing dates: 04 September 2020 Date of orders: 09 September 20202 Decision date: 09 September 2020 Jurisdiction: Criminal Before: Grant DCJ Decision: The evidence sought to be cross-examined on is irrelevant. It is caught by the exclusionary rule and does not qualify as an exception to the exclusionary rule under s 293(4). Catchwords: CRIMINAL PROCEDURE- application by accused to cross-examine complainant - Section 409B Crimes Act – sexual intercourse without consent Legislation Cited: Crimes Act 1900 Criminal Procedure Act 1986 Evidence Act 1995 Cases Cited: 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 Category: Procedural and other rulings Parties: Regina (Crown) Matthew Whatman (accused) Representation: Counsel: Mr Bailey (DPP) Mr Watson

Solicitors: Ms Coleman (DPP) Mr Davidge File Number(s): 2019/00068809 Publication restriction: Non publication order in relation to the name of the complainant.

Judgment 1. Mathew Whatman has been arraigned and pleaded not guilty to a two count indictment which alleges, "On 3 March 2019 in Hay in the State of New South Wales did have sexual intercourse with MB without her consent and knowing that MB had not consented to the sexual intercourse contrary to s 61I of the Crimes Act 1900. And the Director of Public Prosecutions further charges that Mathew Whatman on 3 March 2019 at Hay in the State of New South Wales did attempt to have sexual intercourse with MB without her consent and knowing that MB had not consented to the sexual intercourse contrary to s 61I." 1. He says that he placed his finger inside the vagina of the complainant and that that sexual engagement was consensual. He denies inserting his penis into her vagina. 2. The complainant was then 21. She drove to Hay after work to go to a rodeo. She met friends including TC who she had known the majority of her life. With her friends was the accused. This was the first time she had met him. It was her intention to camp in the car park. She commenced drinking alcohol while watching the rodeo. She had a discussion with the accused. She asked him if he was single. He said he was. She told him she was single. They then spoke about sex. She said to him, "Do you want to hook up later?" He said, "Yeah". 3. She continued to drink alcohol. Toward the end of the rodeo she met a cowboy named David (David Wood). Once the rodeo finished she and David walked to the Crown Hotel. When walking to the pub the group that she was with said, "Show us your tits", which she did. The Crown does not intend to adduce this evidence. She and David left the pub at about 1am. They went back to the showgrounds and she had consensual intercourse with David in her swag. He used a condom. He says the condom was provided to him by the accused. Once the sex was complete she fell asleep and David left. 4. Her next memory is sleeping on her back and feeling that someone was trying to have sex with her. She could feel horrible pain. She "sort of come-to and yelled out 'You need to stop'", and she pushed him with her hands to his chest. She rolled over and started crying. She then fell asleep, and then someone was holding her neck and feeling her pulse. She then heard someone say her name, who shook her and said, "You need to wake up. Someone has raped you. I have called the police and they are coming". 5. Later that morning she was examined by Dr Marion Magee, a general practitioner, who has been the regional forensic sexual assault examiner for the Riverina area for 23 years. Mr Wood made a statement to the police. He confirmed that he had consensual intercourse with the complainant. He left her sleeping and returned back to his mates. Out of the corner of his eye he saw the accused walking over to where the complainant was. He went over to where the complainant was to get a drink. He saw the accused lying next to her. She was on her left side and asleep. He could not see what the accused was doing with his left hand but the complainant said, "It hurts, it hurts". Wood then said to the accused, "Fuck off and go back to the party". The accused said, "Nah, it should be all right". The accused got up and went back to the party. Wood went back to the party. 6. Fifteen minutes later Wood noticed that the accused was not there so he walked back to where MB was. He could see the accused on top of her. There was a blanket covering them from the waist down. Wood could hear the complainant say, "It hurts, it hurts. Stop, please stop". Wood said to the accused, "Mate get your swag and get over there before I knock you out". The accused did not say anything. He got up. The front of his pants was open, his fly was undone. Wood telephoned the police. 7. Dr Magee expressed the following opinion: "1. The absence of genital and physical findings neither precludes nor includes the possibility/probability of sexual activity either consensual or non‑consensual. 2. The appearance of the stretched skin at the posteria fourchette would support there had been recent sexual activity." 1. The Crown indicated during oral argument they would not lead opinion 1. This is consistent with the view of Campbell J in Adams v R [2018] NSWCCA 303 at [134]. His Honour was there referring to DNA evidence and its neutrality. His Honour explained that a criminal trial is an accusatorial and adversarial process. The Crown will not lead opinion 2 in light of the consensual intercourse with Wood. 2. A second statement of Dr Magee dated 31 August 2020 has been served on the defence. She expresses the following opinion at para 11: "I have been asked to provide further expert opinion regarding post coital pain. In general terms post coital pain is rare after consensual intercourse due to the presence of lubrication and the lengthening of the vagina induced by arousal in women. Post coital pain is more likely to follow non-consensual intercourse due to the increased likelihood of tissue trauma from the likely lack of lubrication and an increased likelihood of the uterus being impacted by thrusting when there is lack of vaginal lengthening". 1. The Crown does not intend to lead that opinion subject to my ruling. 2. Mr Watson, on behalf of the accused, seeks to cross-examine the complainant about her engagement with Wood in consensual intercourse. The application raises three questions: 1. Is the evidence relevant. 2. If relevant, is it caught by the exclusionary rule of s 293 of the Criminal Procedure Act. 3. If so, does the evidence qualify as an exception to the exclusionary rule under s 293(4).