R v Mattiussi (No.2) [2022] NSWDC 235

District Court New South Wales

Medium Neutral Citation: R v Mattiussi (No.2) [2022] NSWDC 235 Hearing dates: 21 June 2022 – 27 June 2022 Date of orders: 23 June 2022 Decision date: 23 June 2022 Jurisdiction: Criminal Before: Abadee DCJ Decision: See paragraph 21 Catchwords: EVIDENCE – criminal proceeding – application by Crown to cross-examine Crown witness – whether evidence of witness 'unfavourable' to the Crown case – where it is asserted that the basis or bases for lay opinions by the Crown witness have not been developed, or fully developed, means that the lay opinions cannot be regarded as unfavourable – Evidence Act 1995 (NSW), s 38(1)(a) – exercise of discretion - scope of cross-examination Legislation Cited: Evidence Act 1995 (NSW) ss 38, 78 Cases Cited: DPP (Vic) v Garrett (2016) 257 A Crim R 509 R v Le (2002) 54 NSWLR 474 Category: Procedural rulings Parties: Office of the Director of Public Prosecutions (ODPP) Mr M Mattiussi (accused) Representation: Counsel: Ms E Winborne (solicitor advocate) for the Crown Mr E McMahon for the accused

Solicitors: ODPP Total Legal for the accused File Number(s): 2020/00145510 Publication restriction: Non-publication of complainant's identity pursuant to s 578A Crimes Act 1900 (NSW).

Judgment

Background 1. The Crown applies for leave under s 38(1) of the Evidence Act 1995 (NSW). At the time the application was brought, the second day of this trial had virtually concluded and the Crown was leading evidence in chief from Ms Sarah Robertson. 2. As indicated in my reasons for a pre-trial evidentiary ruling concerning sexual relationship evidence, Ms Robertson was a former partner of the accused before the alleged offending and had delivered birth to two of his children. This was before the accused entered into the relationship with the complainant. The latter occurred in early February 2020. There is evidence to indicate that the accused saw Ms Robertson at some time in March 2020 and, according to the complainant, engaged in regular correspondence with her. The complainant knew about this and the accused was aware of that. The complainant indicated that this contact with the accused's ex-partner caused tension and difficulties in her own relationship with the accused throughout March and the early part of April 2020. 3. On the Crown case, the accused put to the complainant a proposal, on 10 April 2020, that the complainant, the accused and Ms Robertson engaged in a 'threesome' at the complainant's place. On the complainant's account, corroborated to some extent by Ms Robertson, the accused had gotten the complainant to agree to this proposal upon the understanding that he would treat her like a 'princess', and engage in penile-vaginal intercourse with her; whilst he would give relatively less attention to Ms Robertson, by engaging in penile-anal intercourse with Ms Robertson. To the complainant's mind, an advantage of this was to effectively send a message to Ms Robertson that the accused was committed to the complainant, and not to Ms Robertson. 4. But, on the Crown case, from the complainant's perspective, the threesome went awry: the complainant was displeased with the particular sexual activities that the accused had with Ms Robertson. She made her displeasure known to the accused who, in turn, was displeased with her. Ms Robertson left early the next morning, 11 April 2020, and it was after this, on the Crown case, in a spirit of mutual dissatisfaction, as between the accused and the complainant, that the accused committed the alleged sexual offences against the complainant. 5. The Crown relies, in part, upon complaint evidence. During the evidence of the complainant, evidence was adduced of written communications between the complainant and Ms Robertson which occurred after those alleged offences. They are in Exhibit E. In one of the messages, the complainant wrote to Ms Robertson that the accused had "fucked me 3 times after you left too. I didn't really get a choice". There were also conversations. It is Ms Robertson's evidence about these communications that have given rise to the current issue. 6. The transcript (T 110-112) indicates the following exchange in Ms Robertson's evidence in chief: EXHIBIT E SHOWN TO WITNESS Q. Ms Robertson, firstly, do you recognise-- A. Yes. Q. --those screenshots? A. Yes. Q. Are they messages between you and (the complainant)? A. Yes. Q. Can I ask you to turn to the third page of that document? A. Yep. Q. I draw your attention about a third of the way down, and I read, "He fucked me three times after you left, too. I didn't really get a choice." Do you recall reading those words from (the complainant)? A. Yes. Q. What did you understand that to mean? A. Basically, she's said that he's raped her. Q. Did you believe her? A. No. Q. Did (the complainant) at any point tell you any detail about any of the three offences? A. Yes. Q. Did she tell you anything about an incident involving faeces on Mr Mattiussi's penis? A. Yes. Q. Do you recall the date on which she told you of that incident? A. No. Q. Do you recall what else she said to you about the three alleged offences? A. The complainant said that they were having sex and he stuck it up her butt, like, anal sex. They went and had a shower, he put it in her mouth, she sucked his dick and got poop in her mouth. She was quite happy to tell me that and it was a joke, like, they - she laughed about. Q. Well, in that message, would you agree that she says in that message that she didn't have a choice about it? A. Yes, she does. Q. And is that your view? A. No. Q. Well, what is it that you say that she said? A. Am I being asked is that what I'm seeing? If that's what I'm seeing, yes. But that's not my opinion of yes. Q. So, in terms of what you're seeing-- A. Mm-hmm. Q. --it is clear there that she says, "I didn't have a choice". Do you accept that part? A. Yes, yes. I see that, yes. Q. In terms of your opinion of it - your opinion that she did have a choice-- A. Yes. Q. --was that to do with anything that she told you, or was that simply your view? A. My view. 1. After this evidence, Ms Crown asked Ms Robertson, "Ms Robertson, are you concerned about your children having a father present in their lives?" But prior to Ms Robertson answering, I intervened.