District Court New South Wales Medium Neutral Citation: R v Peridot [2014] NSWDC 261 Decision date: 18 November 2014 Jurisdiction: Criminal Before: Cogswell SC DCJ Decision: 1) I reject the Accused's application for separate trials in respect of the two counts on the indictment. 2) I rule that s 293(3) of the Criminal Procedure Act 1986 does not apply to cross-examination of the complainant in respect of any sexual activity that occurred on 15 and 17 October 2013 and in respect of any sexual activity led by the Crown Prosecutor pursuant to paragraph 3. 3) I rule that s 293(3) of the Criminal Procedure Act 1986 does not apply to evidence of any sexual activity between the complainant and the accused, which is the subject of paragraphs 6-8 of Exhibit VD B. Catchwords: CRIMINAL LAW - particular offences - offences against the person - assault occasioning actual bodily harm - sexual intercourse without consent - domestic relationship - intimidation and physical violence - rough and aggressive ongoing sexual relationship - application for separate trials in respect of each count - offences form part of a series of offences of a similar character - no prejudice or embarrassment to accused EVIDENCE - context evidence - relationship evidence - high probative value - admissibility of evidence relating to sexual experience - events that are alleged to form part of a connected set of circumstances in which the alleged prescribed sexual offence was committed CROSS-EXAMINATION – other sexual activity – leave granted Legislation Cited: Evidence Act 1995 (NSW), s 137 Criminal Procedure Act 1986, ss 21, 29, 293 Category: Procedural and other rulings Parties: Regina (Crown) Samuel Peridot (accused) Representation: Counsel: S Hughes (Crown) A Miller (accused) Solicitors: NSW Director of Public Prosecutions (Crown) Macedone Legal (accused) File Number(s): 2013/00315163 Judgment 1. Samuel Peridot faces two charges brought by the Director of Public Prosecutions. The Director accuses him of assaulting his wife, Lisa Peridot, on 21 or 22 August 2013. The assault was an assault occasioning actual bodily harm, it is claimed. The second charge is one of sexual intercourse with Lisa Peridot without her consent knowing that she was not consenting. The Director says that occurred on 16 October 2013. 2. Mr S Hughes of Counsel, the Crown Prosecutor, is proposing to tender four pieces of evidence against Mr Peridot. All of that evidence will come from his primary witness, the alleged victim Lisa Peridot. Mr A Miller of Counsel, who appears for Mr Peridot, objects to those four pieces of evidence. 3. I should say briefly what they are. The first piece of evidence concerns an earlier occasion when the couple were having consensual sexual intercourse. I should add that they had known each other since 2004 and were married in 2009 and a son was born to them in 2012. The first incident was said to have occurred in 2007. During the consensual intercourse Lisa Peridot says that Mr Peridot slapped her repeatedly on her face and that she had to cry out, "Stop, stop, stop". She added information about his behaviour during their consensual sexual encounters as being "rough, but not aggressive". 4. The second piece of evidence concerns Lisa Peridot's observations about Mr Peridot' behaviour since 2011. She says that she noticed a "behavioural pattern". She described it as Samuel Peridot becoming "very aggressive during our sexual experiences" after they have had an argument. She says that he "will become very rough and not take the fact that he is hurting me into account at all". 5. In the third piece of evidence Lisa Peridot claimed that in 2013 she and Mr Peridot were arguing over a new phone that she had been given. She said that he "took this phone forcibly from my hand" and held it over a jug of water. He then poured water over her side of the bed and made her sleep in it, followed by confiscating the phone. 6. The fourth piece of evidence also comes from Lisa Peridot. She claimed that Samuel Peridot threw a bedside lamp at her after she said something which annoyed him. It did not hit her. 7. Mr Miller argues that all of those pieces of evidence should be rejected because their "probative value is outweighed by the danger of unfair prejudice" to his client under s 137 of the Evidence Act 1995. He argues that the slapping incident during sexual intercourse around 2007 was some six years before the alleged happening of the events contained in the indictment. It occurred before they were married. There is no suggestion that it recurred and its probative value is slight for an event which occurred in 2013. 8. In respect of the second piece of evidence he argues that it is in general and unspecific terms, thereby limiting again its probative value. 9. In respect of the third and fourth pieces of evidence Mr Miller argues that they are claimed examples of intimidation, not of physical violence. They are therefore different in nature to the allegations in the indictment. 10. All of the evidence, he argues, lacks probative value but would be unfairly prejudicial to his client and lead the jury to a process of reasoning whereby the jury might conclude that his client has a propensity to violence. He makes this submission because the evidence is not tendered as tendency evidence therefore its use in that way would be impermissible and, indeed, unfairly prejudicial to his client. 11. Mr Hughes responds that it is important to focus on the purpose of the tender of the evidence. It is tendered to put the events which are claimed to amount to the counts in the indictment into their proper context, which includes the history of the relationship between the complainant and the accused. He argues that the purpose of the tender will be made clear to the jury, including how it is not to be used. Directions that I might give will make it clear that it is not tendered as tendency evidence. He argues that it is especially important in this case. 12. The claimed sexual assault, according to the complainant, occurred during the course of an episode of sexual encounter which lasted over some three hours. Mr Hughes points out that the jury may well be inclined to the view that the complainant must have consented if the encounter lasted as long as that. Tendering the evidence of the three previous incidents, including a sexual encounter, will help to explain why, on the prosecution case, the encounter might have lasted that long, despite her claim that she withdrew her consent at some stage. It will help to explain, he argued, why the complainant behaved as she did. In addition, after the claimed sexual assault, Ms Peridot did not make any formal complaint for some two days. The evidence concerning the history of the relationship between her and Mr Peridot will assist in explaining why there may have been that delay. 13. In response to Mr Miller's criticism of the nature of the intimidation claims being different to actual violence Mr Hughes argues that to the mind of Ms Peridot that distinction may be lost. The point is that she was in a relationship which, on her account, involved intimidation and physical violence being perpetrated on her on specific occasions by Mr Peridot. 14. In response to Mr Miller's argument that the 2007 incident is too remote in time, Mr Hughes argued that it goes to prove a longstanding and entrenched behaviour relating to intimidation. In addition, if that evidence is not led then the alleged assault occasioning actual bodily harm and the alleged sexual assault may be considered to be inexplicable by the jury. They may appropriately consider that they were isolated events which would not reflect the complainant's account that there had been previous episodes of physical violence and intimidation within the context of sexual relations, as well as not in the context of sexual relations. 15. Subject to one exception, to my mind the probative value of the first, third and fourth pieces of evidence which Mr Hughes proposes to tender is very high for the reasons that he has given. The potential unfair prejudice would be appropriately dealt with by the basis of the tender being made clear to the jury by Mr Hughes and by directions from me, making the distinction clear. The High Court of Australia has made it clear that criminal trials operate on the assumption that juries will follow and comply with directions given by a trial judge. 16. The exception I have referred to is the second piece of evidence which Mr Hughes proposes to tender. It is contained in para 12 of exhibit VD B. To my mind Mr Miller has a point that the present terms of that proposed evidence is fairly general. I think that it is so general that its probative value, compared to the other pieces of evidence, is at present too low. When I say it is too low I would regard it as too low to warrant admission into evidence given that it will have inevitably some prejudicial effect, although that may not be unfair. 17. I have invited Mr Hughes to obtain more particulars from Ms Peridot about the contents of that paragraph and supply those to Mr Miller. If need be I will rule on any objection Mr Miller makes but if the particulars are more specific than the present paragraph in the statement then I would regard the probative value of evidence to that effect as increased sufficiently for me not to reject it. 18. Mr Miller has made an application in the interests of his client for me to order a separate trial in respect of each of the counts. 19. As I said there are two charges in the indictment. The first is an assault occasioning actual bodily harm. Ms Peridot says that that occurred late on 21 or early 22 August 2013. The baby woke up. They were both in the baby's room. Mr Peridot apparently intended to sleep on the floor in that room. Ms Peridot pushed the door closed, with him outside. She goes on to say this - "Samuel must have been walking towards the door at the time, as at that point the bedroom door burst open. Samuel then placed both of his hands around my neck in a strangle position where his arms were out straight and his hands were around my neck with his thumbs placed on the front of my throat. Samuel was using his momentum to drive me across the room with his hands still around my throat." Ms Peridot said she was driven back onto the baby's cot. She got out of the room and got hold of her mobile phone to call the police. Ms Peridot got to the phone first. She was trying to unlock it when, she said - "Samuel grabbed a hold of my wrist. I then began to struggle with Samuel over the phone. I can't recall how, but during the struggle with Samuel, I had a chunk of skin taken from my thumb. Samuel twisted my arm whilst he was still tightly holding onto my wrist. It was in the position of a police wrist lock. I felt immediate pain in my wrist and I felt Samuel prying the phone from my hand." 1. The allegation of sexual intercourse without consent knowing that Ms Peridot was not consenting is said to have occurred some seven weeks later, on 16 October 2013. They both went to bed on that evening and - I infer from exhibit VD B, a statement by Ms Peridot - that they commenced to engage in sex consensually. At one stage whilst he was lying on top of her and she was lying on her back, she says that "Samuel grabbed my legs and pushed them up. My legs were almost straight." She describes herself as "pretty much bent in half". She said that he "thrust his erect penis into my vagina with such force as to hurt me". It "caused severe sharp pain in both my vagina as well as my internal abdomen area". She said that he carried on for some minutes. She said that she "was in so much pain that I began to plead with him. I was crying and there was mucous running from my nose and down my face". She said she could not move. She said that during "my pleading" Samuel just said "Shh Shh" as well as "Shut up". She said she was pinned down by him and could not move. She said she was in "a lot of pain and I was afraid at this time". She said that she let out a series of involuntary single "yelps", but "Samuel seemed not to care and just kept on thrusting his penis into my vagina". She said the incident lasted about three hours. 2. Mr Miller argues that his client would be prejudiced or embarrassed in his defence by reason of the fact that he is charged with these two offences in the same indictment and that I should order a separate trial for each of the counts in the indictment. He relies on s 21 of the Criminal Procedure Act 1986. 3. On the other hand Mr Hughes, relying on s 29 of the same Act, argues that the two offences "arise out of the same set of circumstances" or, alternatively, that "the offences form or are part of a series of offences of the same or a similar character". 4. Mr Miller points out that, despite that provision, I may not hear the two offences together if I am "of the opinion that the matters ought to be heard and determined separately in the interests of justice". Again Mr Miller points to what he says is a contrast between the two alleged offences. The assault occasioning actual bodily harm is an allegation of an unprovoked physical attack clearly without consent, whereas the sexual offence charge seems to involve consensual sex initially but developing into non-consensual sex with knowledge claimed on the part of his client. He acknowledges that both can be classified as domestic violence, but he argues that they are not of a similar character. Although they may have occurred in the same place, the home of Mr and Ms Peridot, they are not the same type of offence. 5. Again Mr Miller urges that the risk of hearing the cases together is that the jury may use evidence about the assault occasioning actual bodily harm to reach a view about his client which they may improperly use in considering the other offence. He points to the prejudice that his client may experience in his helpful written submissions in para 8 of MFI 1. 6. Mr Hughes points to the law about juries following directions of trial judges. He argues that the events are not far apart in time - being about seven weeks - and that they both involve claimed domestic violence and occurred in the same context, namely between a husband and wife in the matrimonial home. He argues that the evidence of the assault occasioning actual bodily harm would also be admissible on the sexual assault count on the same basis as the other pieces of evidence I earlier referred to. It provides a context in which the claimed assault occurred and points to the history of the relationship between the parties. They may explain aspects of the behaviour of Ms Peridot. 7. I am not of the opinion that Mr Peridot would be prejudiced or embarrassed in his defence by reason of being charged with both offences in the same indictment. The basis of that is the clear distinction between the two events, but the relevance of the first event to the second event in the way I have described. The only sort of prejudice or embarrassment may be impermissible reasoning which the jury may embark upon based upon the factors outlined by Mr Miller in para 8 of his written submissions. To my mind careful and clear directions about the use that the evidence may be put to, and may not be put to, will avoid any such prejudice or embarrassment. 8. I am also of the opinion that the two alleged offences are part of a series of offences of a similar character. They are similar in that they both involve alleged physical violence in a domestic context between a married couple in the matrimonial home. 9. For those reasons I reject Mr Miller's application for me to order a separate trial in respect of the two counts. 10. Finally Mr Miller has sought leave to cross-examine the complainant, Ms Peridot, about two occasions of consensual sexual intercourse which occurred the night before and the night after the claimed sexual assault. He points out, in his helpful written submissions (MFI 2) about this specific aspect, that there will be evidence from a medical practitioner who examined Ms Peridot and found no abnormality on genital examination. He argues that the three occasions of sexual intercourse - the night before, the night after and the night in the middle where the assault is said to have occurred - are "highly relevant in relation to seeking an opinion" from the medical practitioner. 11. However, s 293 of the Criminal Procedure Act stands in his way because evidence disclosing that the complainant may have taken part in other sexual activity is inadmissible. Mr Miller asks me to form the opinion that the inadmissibility provision does not apply because under s 293(4)(a) the evidence which he proposes to lead would be of sexual activity between his client and the complainant Ms Peridot "at or about the time of the commission of the alleged prescribed sexual offence" and "is of events that are alleged to form part of a connected set of circumstances in which the alleged prescribed sexual offence was committed". I think Mr Miller is right in that submission. 12. The probative value of the proposed cross-examination about other sexual activity around the time of the alleged assault is high. But it needs to be so high that it will outweigh any "distress, humiliation or embarrassment that the complainant might suffer as a result of its admission." Mr Miller addresses that, pointing out correctly that Ms Peridot' statements include a good amount of detail of the sexual relations between her and his client. I think in that context any distress, humiliation or embarrassment arising from cross-examination about the other episodes would not outweigh the high probative value which Mr Miller expects to obtain from the cross-examination. In addition, I accept Mr Miller's argument that the prosecution case itself will include evidence about sexual activity between Mr and Ms Peridot. I have already given an example and Mr Miller argues that his client "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". 13. For that reason it seems to me that Mr Miller should have leave to cross-examine Ms Peridot in relation to any activity specifically led in evidence by the prosecution. That is in addition to the permission to cross-examine about the sexual activity the nights before and after the claimed sexual assault. 14. I also need to give leave to Mr Hughes to lead evidence from Ms Peridot regarding the sexual relationship between her and the accused, Mr Peridot. I propose to grant that leave under s 293(4)(b) of the Criminal Procedure Act because it "relates to 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." 15. In accordance with s 293(8) of the Criminal Procedure Act the nature and scope of the evidence admissible is that contained in VD B and VD C which are statements by Ms Peridot. I would permit that to be supplemented by further particulars provided in respect of para 12 of exhibit VD B and it would also include cross-examination by Mr Miller of any sexual encounter between his client and Ms Peridot on 15 and 17 October 2013. ********** 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: 12 February 2015