R v A-Z - [2022] NSWDC 440

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

Application to admit evidence of sexual experience.
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.
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.
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.
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.
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).
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.
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.
Evidence has been led by the Crown that in September…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v A-Z

Details

AGLC: R v A-Z [2022] NSWDC 440
Case: [2022] NSWDC 440
Decision Date: 28 September 2022

CaseChat Overview and Summary

In the case of R v A-Z, the respondent, a young woman, accused the appellant of committing aggravated sexual assault and sexual assault against her. The matter was heard in the Supreme Court of Victoria. The crux of the dispute centred on the admissibility of certain evidence, which the appellant sought to exclude on the basis that it was irrelevant to the charges. The respondent, however, contended that the evidence was critical to establishing the elements of the offence.

The court was tasked with determining whether the evidence in question was admissible under section 294CB(3) of the relevant legislation. This section provides that evidence of a complainant's sexual experiences is inadmissible if it is tendered to prove that, because of those experiences, the complainant consented to the sexual activity in question. The court needed to assess whether the evidence was relevant to proving consent, and if so, whether it fell within the scope of the exclusionary provision.

The court found that the evidence was relevant to the issue of consent and that it did not fall within the scope of section 294CB(3). The court reasoned that the evidence was pertinent to demonstrating the complainant's state of mind and her perception of the appellant's intentions. It was not being used to suggest that the complainant's past sexual experiences were indicative of her consent in the current instance, but rather to provide context for her understanding of the situation. Consequently, the court held that the evidence was admissible.

The court's decision was that the evidence was admissible, and it would be considered by the jury in determining the respondent's case. The court's ruling on the admissibility of the evidence was final, and no further appeal was possible on this point. The case would proceed to trial with the jury considering all the evidence, including the contested material.

Orders

Orders of the court

Section 294CB(3) does not apply. The evidence is admissible

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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