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). RELEVANCE 1. Simpson J as she then was in R v Burton [2013] NSWCCA 335 (R A Hulme and Barr JJ agreeing) at [62] held that the starting point for determining the admissibility of evidence is relevance under s 56 of the Evidence Act. Section 55(1) of the Act provides; "The evidence that is relevant in a proceeding is evidence that if it were accepted could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding." 1. Mr Watson submits that the evidence is relevant for a number of reasons. Firstly, it is relevant to the opinion of post coital pain as expressed by Dr Magee in her second report, coupled with the complainant complaining of a horrible pain and a hammering pain. The Crown does not intend to adduce that evidence if my ruling is unfavourable to the accused. Secondly, he submits that the evidence is relevant to fill in the gaps to give the jury a full and complete picture. It allows the jury to understand the relationship between Wood and the complainant and the accused and the complainant. And thirdly, it goes to the question of consent. 2. I fail to see how consensual intercourse between Wood and the complainant could rationally affect (directly or indirectly) the assessment of the probability that she engaged in consensual engagement with the accused. As Simpson J said in Burton the fact "that the complainant had exhibited sexual interest in another man (whether or not at or near the time the offence is alleged to have been committed) is irrelevant to any question concerning her consent to sexual engagement with the respondent": [68]. 3. In Burton the trial judge ruled that evidence to be given by a witness who was a friend of both the complainant and the respondent was admissible. His evidence was that earlier in the night of the offence and whilst at Kings Cross the complainant had exhibited sexual interest in a man that she met at a bar. That man did not reciprocate those feelings. Later in the evening when the complainant saw the man at a gentlemen's club with a couple of hostesses she said to the witness, "why would he go with them when he could have had me for free?". The trial judge ruled this admissible. Her Honour then went on to find that s 293 did not arise for consideration because the evidence was not relevant. 4. The Crown does not intend to adduce the expert evidence of Dr Magee that "In general terms post coital pain is rare after consensual intercourse ... post coital pain is more likely to follow non-consensual due to the increased likelihood of tissue trauma from the likely lack of lubrication and the increased likelihood of the uterus being impacted by thrusting when there is a lack of vaginal lengthening". 5. As the Crown does not intend to adduce this evidence then a prior consensual sexual engagement is irrelevant. The Crown is entitled to lead the evidence of the complainant of a sensation of the pain but without the opinion evidence of Dr Magee it will become an issue for the jury as to what they make of it. If I am wrong I proceed to give consideration to the other questions raised on this application; is the consensual engagement between Wood and the complainant caught by the exclusionary rule of s 293 of the Criminal Procedure Act? The short answer is yes. 6. The object of the legislation was considered in R v White (1989) 18 NSWLR 332 where the following was said of the progenitor s 409B at 340, "The evident purpose of the legislation is to limit the circumstances in which the complainants in sexual assault cases will have to endure having what might otherwise be personal and sensitive matters made public knowledge by virtue of evidence given in court." 1. In R v Burton Simpson J at [70] said, "... s 293 was introduced into the legislation (originally as s 409B of the Crimes Act 1900) for the specific purpose of putting an end to offensive and demeaning cross-examination but proceeded on the basis that evidence of consent by a person (then invariably female) to sexual engagement with one person (person A) provided the foundation for an inference that the person also consented to sexual engagement with another person (person B). That process of reasoning has been banned from the criminal courts first by s 409B of the Crimes Act and subsequently by s 293 of the Criminal Procedure Act ...". 1. The exclusionary rule captures the evidence. 2. Mr Watson submits that it falls within the exception in s 293(4) in that the proposed evidence was "at or about the time" of the alleged prescribed sexual offence and the proposed evidence "was of events that are alleged to form part of a connected set of circumstances" in which the alleged prescribed sexual offence was committed. I do not accept that prior consensual engagement with Wood is connected to the circumstances of the offence faced by the accused and bears on the objective likelihood of the offence having been committed, nor am I satisfied that the prior consensual engagement forms part of a connected set of circumstances. Participating in consensual sexual engagement does not connect it to non-consensual sexual engagement. 3. Mr Watson relies upon Dimian v R (1995) 83 A Crim R 358. The appellant was charged with a number of sexual assaults. The Crown relied upon the complainant's distress, dishevelment and injuries as supporting her evidence that the sexual assaults had taken place. There was evidence in the Crown case given by the complainant herself which implied that she had had sexual intercourse with another man earlier the same evening. Her police statement disclosed expressly that she had had sexual intercourse but it asserted it had been consensual. 4. Application was made by the accused pursuant to s 409B of the Crimes Act for leave to cross-examine the complainant in relation to the earlier episode. Leave was refused without reasons being given. The Court held, 1. The evidence was admissible pursuant to s 409B(3C) and leave to cross‑examine should have been granted. 2. The expression in that paragraph "attributable to ... injury" must be construed broadly and in accordance with the purpose for which s 409B was introduced. It is not limited to injury caused directly by sexual intercourse such as damage to the complainant's genitalia. 1. Hunt CJ at CL said, "I do not see how the fact that the complainant in the present case had sexual intercourse with her boyfriend some six hours before she was alleged to have had it with the appellant is by itself logically probative to the issue as to whether sexual intercourse in fact took place on the second occasion with the appellant ...". 1. His Honour then considered the legislation and the application of the facts. Section 409B(3C) is the progenitor to s 293(4)(c)(i) and (ii) of the Criminal Procedure Act. Section 409B(3) provided; "In prescribed sexual offence proceedings evidence which discloses or implies that the complainant has or may have had sexual experience or a lack of sexual experience, or has or may have taken part or not taken part in any sexual activity is inadmissible except ... (c) where (i) the accused person is alleged to have had sexual intercourse ... with the complainant and the accused person does not concede the sexual intercourse so alleged; and (ii) it is evidence relevant to whether the presence of semen, pregnancy, disease, or injury is attributable to the sexual intercourse alleged to have been had by the accused person." 1. Dimian denied having sexual intercourse with the complainant. It came within c(i). Did c(ii) come into play? A security guard and police all gave evidence of the complainant's state of considerable stress when they saw her. They also saw redness on the complainant's wrist. Her mother subsequently saw that the complainant was very distressed and crying with all her hair messed up. There were indentations on her wrists, cuts in her mouth and on the inside of her lower lip, and her lips were swollen. She was later examined by a doctor who also observed the same distress, a graze on the inside of her lower lip consistent with a blow, a bump on her head consistent with her hair having been pulled, a graze on one shoulder, a bruise on her shin, and three bruises on her arm consistent with a strong grabbing of the arms. There were fine red lines on her left wrist consistent with pressure by an object with a fine edge to it. She also observed grass stains on her trousers and shirt. 2. In cross-examination the complainant agreed that she had earlier that evening attended a rave party and that she had left the party with a boy named Abdullah (who was described as being her boyfriend) and had spent about 45 minutes in a car with him. She denied having suffered any injury or having soiled her clothing while she had been in the car with him. 3. The Crown's argument in Dimian was that subs (c) is directed to injury caused directly by sexual intercourse such as damage to the complainant's genitalia. It was said that such an interpretation makes the reference to injury consistent with its collocation of "semen, pregnancy, disease, or injury". 4. Hunt CJ at CL found that such a narrow interpretation is inconsistent with the Second Reading Speech where in relation to para (c) the Attorney General said, "If the accused denies that intercourse occurred at all and says that the offence must have been committed by someone else it would not be fair to deprive him of the right to cross‑examine the complainant as to whether the complainant had at around the relevant time been having intercourse with another person or other persons". 1. The facts in Dimian do not resemble those here. The complainant had indentations on her wrists (she alleged she had been handcuffed), cuts inside her mouth and swollen lips. She was very distressed, crying, and her hair was all messed up. None of those facts appear here. This case does not fall within the injury exception and the broad interpretation given by the Court of Criminal Appeal in Dimian. 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). ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 September 2020