District Court New South Wales Medium Neutral Citation: R v A-Z [2022] NSWDC 440 Hearing dates: 28 September 2022 Date of orders: 28 September 2022 Decision date: 28 September 2022 Jurisdiction: Criminal Before: Wass SC DCJ Decision: Section 294CB(3) does not apply. The evidence is admissible Catchwords: CRIME — Sexual offences — Aggravated sexual assault — Inflicts actual bodily harm — Sexual assault — Consent Legislation Cited: Criminal Procedure Act 1989 (NSW) Cases Cited: R v Edwards [2015] NSWCCA 24 Category: Procedural rulings Parties: Office of the Director of Public Prosecutions (Plaintiff) A-Z (Defendant) Representation: Mr Poulos (ODPP) Mr Ozen (Defence) File Number(s): 2019/00182632 Publication restriction: NIL JUDGMENT 1. Application to admit evidence of sexual experience. 2. This is a proceeding in respect of a prescribed sexual offence. It includes an allegation that the accused made a fist and punched into the complainant's vagina on a number of occasions ("fisting"). That act is denied by the accused. It is accepted that the two engaged in consensual penile vaginal intercourse at that time. 3. The accused wishes to adduce evidence disclosed in a medical note: that in 2017, the complainant having been sexually active for a few weeks, had been bleeding from her vagina for three weeks each time she had sex and visited a doctor for treatment. She described, to quote from the note, "a lot of bleeding that could fill a pad" and which stopped after having sex. It is accepted that this is a reference to penile vaginal intercourse. 4. There is an available interpretation from the note that the doctor formed the impression that the complainant was bleeding from the right lateral wall of her vagina and with a partial tear of the hymen observed. The accused proposes, if leave is granted, to call expert evidence from Professor Gall that the partial tear of the hymen is likely to be irrelevant to the bleeding, and that it is more likely to have arisen by reason of the tear in the vagina wall. 5. It is notable that the fact that the complainant suffered tearing of the vaginal wall on the night in question is relied on by the Crown to support an inference that the complainant was fisted by the accused. 6. The accused also seeks leave to cross-examine the Crown's expert witness, Dr Wang, who asserts without being aware of this medical note that there was "notable vaginal trauma" arising from the allegations, which was "highly unusual in normal penile-vaginal intercourse" (leaving in the context of the evidence the inference that it was caused by the fisting). 7. The evidence is prima facie inadmissible under s 294CB(3) of the Criminal Procedure Act 1989 (NSW) ("the Act") as it discloses that the complainant has had sexual experience. 8. I have formed the view that s 294CB(3) of the Act does not apply and that the evidence is admissible. In the context of an ongoing trial and with a jury waiting, I record briefly my reasons. 9. Evidence has been led by the Crown that in September 2018 upon what the complainant described as "fingering" with one finger and where, according to the complainant, the accused said "we need to loosen you up", "right? As in, it's like preparing the stage for us, like, when we would get intimate"; the complainant saw blood on the accused's hands and described "a big, red blood patch on the seat"; she dressed and the blood was coming through her underwear; it was "dripping down leaving a trail of blood" and that there was "so much blood" and it "didn't seem to stop"; she had to put on a sanitary pad and continued to bleed overnight, and she was still bleeding the following day. 10. The complainant's ongoing susceptibility to bleeding on penetration by either a finger or a penis, as opposed to fisting, is therefore in my view, evidence of the complainant's sexual experience at or about the time of the commission of the alleged prescribed sexual offence. To use the language of R v Edwards [2015] NSWCCA 24 ("Edwards") at [30] historical experience - that is to say, a susceptibility to tear and to bleed from the vagina when, for example, either a penis or a finger is introduced into it - is necessarily an existing state of sexual experience at or about the time of the sexual offences. 11. The Crown relies on the facts and the extent of bleeding in support of its allegation that the complainant was fisted. Indeed, the Crown sought to compare the extent of bleeding resulting from the digital penetration in September 2018 with the bleeding on the night in question. The Crown led no evidence of the likelihood of bleeding upon penile vaginal intercourse, which is accepted by all to have taken place at about the same time and was consensual. 12. The fact of a propensity to bleed upon penile vaginal intercourse is also, therefore, an event that is alleged to form part of a connected set of circumstances in which the alleged prescribed sexual offence was committed. 13. The evidence is highly probative. It will provide the jury much clearer evidence as to the complainant's propensity to bleed, and which is not tainted by the evidence being given by the complainant in respect of the accused. 14. It is noted in that respect, the Crown led from the complainant the fact that the accused was engaging in digital penetration of the complainant in September 2018, and that whilst consensual, it was motivated by the accused to "loosen her up" - a matter that may indeed have a bearing on the later allegation of fisting. 15. Accordingly, the Crown has left the jury, if the evidence is not admitted, with the impression at least that the alleged fisting offence was more likely to have occurred by reason of the excessive bleeding. Indeed, the Crown led from the complainant the comparison between the bleeding upon the digital penetration and the bleeding as a result of the alleged fisting, inviting the jury to infer by reason of the increased pain and blood that the fisting occurred. That will be an entirely misleading impression if the evidence is not admitted. 16. Accordingly, I am also satisfied that sexual experience, that is a lack of bleeding on penile vaginal intercourse, has been implied in the case for the prosecution so far and will continue to be implied from what is sought to be led from the Crown's expert witness. 17. I am satisfied that the accused might be unfairly prejudiced if the complainant could not be cross-examined in relation to that implication. 18. Given the subject matter of her evidence and the way that the complainant has given her evidence to date, I am satisfied that the probative nature of the evidence far outweighs any hurt, embarrassment or humiliation that might arise by reason of that evidence being led. 19. I find the evidence to be admissible. It is otherwise highly relevant to rebut the Crown's evidence that the bleeding must have been caused by the alleged offence. 20. A close regard to the transcript also shows, in my view, that the Crown has already implied, if not said so in terms, that the first penile vaginal sexual intercourse between the complainant and the accused was her first sexual experience of that kind. That is clearly implied from the complainant's evidence that one single finger into her vagina hurt, that the accused had to loosen her up to prepare her for when they would "get intimate", and that she bled as a result of that finger being inserted. 21. That being the case, the accused is also entitled to cross examine the complainant on the potential inconsistency in her evidence, having regard to the medical note, and indeed, having regard to the disclosure in the Crown case in her statement at paragraph 16 that she had not, prior to her doing so with the accused, engaged in penile vaginal intercourse. 22. I require a set of questions from the accused's counsel or at least bullet points on topics. ********** 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: 21 March 2023