R v KE [2019] NSWDC 349

District Court New South Wales

Medium Neutral Citation: R v KE [2019] NSWDC 349 Hearing dates: 15 July 2019 Date of orders: 16 July 2019 Decision date: 16 July 2019 Jurisdiction: Criminal Before: Grant DCJ Decision: Evidence excluded pursuant to s 137 Catchwords: CRIME - DNA evidence – Whether probative value of evidence outweighed by risk of unfair prejudice – Evidence ruled inadmissible. Legislation Cited: Evidence Act 1995 Cases Cited: Adams v The Queen [2018] NSWCCA 303 DPP (VIC) v Wise [2016] VSCA 173 DPP v Paulino (No 3) [2017] VSC 345 R v Beowulf [2019] ACTSC 64 R v GZ [2015] ACTSC 229 Category: Procedural and other rulings Parties: Regina (Crown) KE (Accused) Representation: Counsel: Mr N Marney (Solicitor Advocate, Crown) Ms Lewer (Accused) File Number(s): 2018/00024014 Publication restriction: Identification of Complainant

Judgment

INTRODUCTION 1. The accused seeks the exclusion of DNA evidence that the Crown intends to rely upon. The accused has been arraigned and pleaded not guilty to a seven count indictment. Counts 6 and 7 assume importance on this application. It is alleged that on 21 January 2018 on two separate occasions the accused performed cunnilingus on the complainant. The Crown seeks to adduce DNA evidence and the defence objects to its reception.

THE FACTS 1. At about 11am on Sunday 21 January 2018 the complainant was 14 years old and the accused was 30 years old. The complainant returned to Claremont Meadows, after spending time at her father's residence. At this time the accused was using his computer in the lounge room listening to music, and the complainant's mother was not at home. The accused and the complainant watched the movie Jawbreaker, in the lounge room of the premises, before cooking pancakes. The complainant ate these pancakes and became aware that the accused had been awake all night drinking alcohol and playing computer games. 2. At about 2pm the accused told the complainant to put a movie on for him within the master bedroom as he wanted to go to sleep. The complainant went into the master bedroom and put on a DVD of the television show, The Sopranos. The complainant lay on the bed and placed the doona over her legs as she watched an episode of The Sopranos, whilst the accused was eating. The accused entered the bedroom some time later, after eating the pancakes they had cooked earlier. 3. At this time the complainant was wearing a Tweetie Bird nightie, grey shorts, and pink underwear; whilst the accused was wearing a white thermal top and either green shorts or black tracksuit pants. The accused lay on the bed next to the complainant and said, "Take off your pants". The accused then motioned with his hand for the complainant to come to him and said, "Sit on my face", as he motioned for her to face towards the television. 4. As the complainant did this the accused told her to, "Turn around", and held her by the buttocks and thighs whilst he inserted his tongue into her vagina and performed cunnilingus upon the complainant. After 15 to 20 minutes the complainant said, "My legs are hurting". The accused stopped and let go of the complainant who lay down next to him and pulled her pants back up. The accused then got up and left the room. 5. The complainant remained in the master bedroom as she was unsure what to do. Approximately five minutes later the accused returned to the master bedroom and said to the complainant, "Get back up, I want to eat again". The complainant removed her shorts and underwear and straddled the accused's face. The accused inserted his tongue into the complainant's vagina and performed cunnilingus upon her, causing her pain. 6. A few minutes later the complainant said, "It hurts". The complainant lay down next to the accused and began to cry, the accused said, "You're crying because you have a guilty conscience, you didn't say no or do anything to stop it". The complainant began to cry more, and the accused said, "I can't deal with this", and went to sleep. 7. Once the accused was asleep the complainant went out into the lounge room and watched the rest of the movie, Jawbreaker. Whilst there she texted her friend JR about what happened. JR texted back and said, "If you want me to tell someone I will definitely tell someone because I want to if I know you don't want me to tell someone then I won't". 8. Once the complainant was sure the accused was asleep she changed her clothes and packed a bag of belongings and left the house, walking to her grandmother's house nearby. Once there the complainant disclosed the assault upon her, and the police were called. 9. On Sunday 21 January 2018 the complainant underwent a sexual assault investigation at Nepean Hospital. 10. On Monday 22 January 2018 the complainant attended the Office of the Child Abuse Unit (Penrith) and provided an audio visual statement. During this statement the complainant presented as age appropriate and demonstrated an understanding of truth, lies, and consequences. During this audio visual statement the complainant was able to particularise six incidents. She stated that the sexual incidents similar in nature to those described in the interview happened on a regular basis, starting when she was 11 years old and ending with the last incident on Sunday 21 January 2018.