Supreme Court New South Wales Medium Neutral Citation: R v Paterson (No 3) [2014] NSWSC 57 Hearing dates: 10 February 2014 Decision date: 10 February 2014 Before: Bellew J Decision: 1. The evidence is admitted. Catchwords: CRIMINAL LAW - Evidence of sexual reputation and experience - whether evidence admissible Legislation Cited: Criminal Procedure Act 1986 Cases Cited: R v Paterson [2014] NSWSC 29 Category: Procedural and other rulings Parties: Regina - Crown Rodney Paterson - Accused Representation: Counsel: Mr K McKay - Crown Mr J Stratton SC and Ms B O'Reilly - Accused Solicitors: Solicitor for Public Prosecutions (NSW) - Crown Peter Murphy - Accused File Number(s): 2011/248808 Publication restriction: NIL Judgment 1Prior to the empanelment of the jury in this matter Mr Stratton SC, who appears on behalf of the accused, raised an issue concerning the operation of s 293 of the Criminal Procedure Act 1986 ("the Act") which is in the following terms: 293 Admissibility of evidence relating to sexual experience (1) This section applies to proceedings in respect of a prescribed sexual offence. (2) Evidence relating to the sexual reputation of the complainant is inadmissible. (3) Evidence that discloses or implies: (a) that the complainant has or may have had sexual experience or a lack of sexual experience, or (b) has or may have taken part or not taken part in any sexual activity, is inadmissible. (4) Subsection (3) does not apply: (a) if the evidence: (i) is of the complainant's sexual experience or lack of sexual experience, or of sexual activity or lack of sexual activity taken part in by the complainant, at or about the time of the commission of the alleged prescribed sexual offence, and (ii) is of events that are alleged to form part of a connected set of circumstances in which the alleged prescribed sexual offence was committed, (b) if the evidence relates to a relationship that was existing or recent at the time of the commission of the alleged prescribed sexual offence, being a relationship between the accused person and the complainant, (c) if: (i) the accused person is alleged to have had sexual intercourse (as defined in section 61H (1) of the Crimes Act 1900 ) with the complainant, and the accused person does not concede the sexual intercourse so alleged, and (ii) the evidence is 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, (d) if the evidence is relevant to: (i) whether at the time of the commission of the alleged prescribed sexual offence there was present in the complainant a disease that, at any relevant time, was absent in the accused person, or (ii) whether at any relevant time there was absent in the complainant a disease that, at the time of the commission of the alleged prescribed sexual offence, was present in the accused person, (e) if the evidence is relevant to whether the allegation that the prescribed sexual offence was committed by the accused person was first made following a realisation or discovery of the presence of pregnancy or disease in the complainant (being a realisation or discovery that took place after the commission of the alleged prescribed sexual offence), (f) if the evidence has been given by the complainant in cross-examination by or on behalf of the accused person, being evidence given in answer to a question that may, pursuant to subsection (6), be asked, and if the probative value of the evidence outweighs any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission. (5) A witness must not be asked: (a) to give evidence that is inadmissible under subsection (2) or (3), or (b) by or on behalf of the accused person, to give evidence that is or may be admissible under subsection (4) unless the court has previously decided that the evidence would, if given, be admissible. (6) If the court is satisfied: (a) that it has been disclosed or implied in the case for the prosecution against the accused person that the complainant has or may have, during a specified period or without reference to any period: (i) had sexual experience, or a lack of sexual experience, of a general or specified nature, or (ii) had taken part in, or not taken part in, sexual activity of a general or specified nature, and (b) the accused person might be unfairly prejudiced if the complainant could not be cross-examined by or on behalf of the accused person in relation to the disclosure or implication, the complainant may be so cross-examined, but only in relation to the experience or activity of the nature (if any) so specified during the period (if any) so specified. (7) On the trial of a person, any question as to the admissibility of evidence under subsection (2) or (3) or the right to cross-examine under subsection (6) is to be decided by the court in the absence of the jury. (8) If the court decides that evidence is admissible under subsection (4), the court must, before the evidence is given, record or cause to be recorded in writing the nature and scope of the evidence that is so admissible and the reasons for that decision. 2The effect of s 293 (2) and (3) is to render, amongst other things, evidence relating to the sexual reputation, experience or activity of a complainant inadmissible. Section 293(4) creates a number of exceptions to the operation of those earlier provisions. In the event that I come to the view that the evidence is admissible I am obliged by s. 293(8) of the Act to record or cause to be recorded in writing, prior to the evidence being given, the nature and scope of the evidence that is so admissible and the reasons that I have reached that decision. 3A summary of the case brought by the Crown, as well as a summary of the case for the accused, are set out in an earlier judgment given in this matter in relation to a number of evidentiary issues (see R v Paterson [2014] NSWSC 29 at [3] to [17].) 4It will be evident from those paragraphs that it is part of the Crown case that the deceased was sexually assaulted, without her consent, by the accused and others shortly prior to her death. That alleged sexual assault includes allegations of non-consensual vaginal and anal intercourse. The Crown will rely upon DNA analysis of swabs taken from the deceased to support the proposition that the accused was one of those responsible for that sexual assault. 5The Crown will also lead evidence, from previous partners of the deceased, that she was not in the habit of engaging in consensual anal sex. I gather that this evidence will be led by the Crown in support of an inference that the anal sex which is partly the subject of count 2 was not consensual. In addition, there will be evidence concerning the fact that the deceased had been employed in the period leading up to her death as a sex worker. 6It is part of the case for the accused, as I understand it, that he had consensual sex with the deceased on the day prior to her death. As indicated to me by senior counsel for the accused, this may incorporate an assertion that this included consensual anal sex. 7Senior counsel for the accused submitted that evidence of the general nature of that to which I have referred was evidence to which s. 293(2) and/or (3) was directed. He did not object to such evidence being given and submitted that it came within one or more of the exceptions for which provision is made in s 293(4). In this regard he drew my attention, in particular, to the provisions of s. 293(4)(b) and (c). 8The Crown made no submission contrary to those advanced by senior counsel for the accused. I therefore did not understand the Crown to cavil with anything which had been put. 9On the basis of what I understand to be the cases advanced by the Crown and the accused respectively, I am satisfied evidence of the kind to which I have referred in [5] - [7] above is evidence to which s. 293(2) and/or (3) of the Act relates. However, I am satisfied that such evidence falls within the terms of the exceptions created by s. 293(4)(b) and or s. 293(4)(c). I am also satisfied that the probative value of the evidence outweighs any distress, humiliation or embarrassment that the deceased might suffer as a result of its admission. In this regard, I note that the deceased, on the Crown case, died some 22 years ago. 10For these reasons I have come to the view that the evidence is admissible. ORDER: 11I make the following order: 1.The evidence is admitted. ********** 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: 03 March 2014