R v Afshar-Doust

[2006] NSWDC 130

CITATION:	R v Afshar-Doust [2006] NSWDC 130
HEARING DATE(S):	30 November 2006
JUDGMENT DATE:	30 November 2006
JUDGMENT OF:	Williams DCJ at 1
DECISION:	Application to cross examine victim as to hypersexuality refused
CATCHWORDS:	Alleged sexual asault - crossexamination of victim - hypersexuality - refused
LEGISLATION CITED:	Criminal Procedure Act section 293
PARTIES:	Regina Javad Afshar-Doust
FILE NUMBER(S):	05/11/0908
COUNSEL:	Crown Prosecutor: Ms Cash Defence: Mr Chicken
SOLICITORS:	Solicitor for Public Prosecutions Legal Aid Commission

1. The defence has made an application that it be allowed to cross-examine Dr Crimmins and the complainant’s mother, in regard to reference made by Dr Crimmins in a report in 1994 to the term “hypersexuality” in connection with the complainant.

2. The complainant is aged 27 and alleges that she was sexually assaulted by the accused in 2004. She was adopted and at about 22 months suffered a serious head injury as a result of which she has quite substantial mental and physical deficits. It is said that she has the behavioural maturity of a 10 to 12 year old but only a mild intellectual incapacity. Not unnaturally she has been the subject of medical attention over the years for a variety of reasons, both behavioural and physical. The complainants mother and Dr Crimmins have been called on the voir dire.

3. In his report of the 13th May 1994 Dr Crimmins says this

“ Her mother describes over a number of years problems with hyperphagia (a propensity to eat dog and cat food) and any other food around the house. Aggressive and temper tantrums [as written] and a problem more recently with mixing with strange men, which may represent hypersexuality.”

4. That expression “hypersexuality” thereafter then appeared in a number of reports from other medical and psychological professionals, although no diagnosis of hypersexuality was ever or has ever been made.

5. Dr Crimmins in his evidence on the voir dire indicated that hypersexuality is behaviour whereby a person actively seeks out sex being stimulated by the chase, the seduction or the act itself. Dr Crimmins indicated that in all his dealings with the complainant from 1994 through to 2004 he found no evidence of hypersexuality in her at all. The evidence from the mother was in a similar vein, that there was no evidence or reports of that sort of behaviour in regard to the complainant in any way. The concern that the mother and Dr Crimmins had in 1994, was that because of her deficits, one of which caused her to be over-friendly with anyone she met, then she may have intercourse with people that she was mixing with, in a situation where she was incapable of protecting herself from sexually transmitted disease. The complainant was already on the contraceptive pill because of her inability to deal with having her periods.

6. In a report dated the 6th of April 2004, Dr Crimmins said that

“Since last being seen the complainant’s behavioural issues have become quite prominent. This includes her absconding behaviour where, without any warning, she left home and lived down in Sydney for about 2 to 3 months, both in the inner city and then out west. I have no doubt that she was quite sexually active during this period of time and therefore have suggested to her mother that she may wish to have the complainant checked quite closely to see whether or not she may have been exposed to sexually transmitted diseases and probably should have AIDS and Hepatitis serology taken.”

7. Dr Crimmins conceded in evidence that the information as to her being sexually active was a supposition he made from what the complainants mother had told him. In cross-examination Dr Crimmins said that the expression ‘hypersexuality’ was a bad term that he had used that had been carried through in other reports. He said that he didn’t think the complainant was suffering from hypersexuality but conceded, when the circumstances of the defence case were put to him, that if those circumstances were true, that behaviour could be consistent with a diagnosis of hypersexuality.

8. The defence case in brief is that the complainant forced her attentions on an unwilling accused and without his consent. This involved the complainant putting her hand inside the accused’s pants and putting his penis in her mouth. The defence argues that if they are able to elicit the evidence as to hypersexuality from Dr Crimmins that would go towards proving the likelihood of a fact in issue, namely the accused's assertion that the complainant was the sexual aggressor rather than himself.

9. Apart from giving rise to a question of the complainant’s sexual reputation, which would be contrary to the provisions of s293 of the Criminal Procedure Act, what would such evidence tend to prove other than raise in the jury’s mind a speculation or suspicion as to what might have occurred, rather than them determining, one way or the other, what in fact occurred.

10. Had there been some evidence from anyone as to sexual behaviour on the part of the complainant that satisfied the diagnosis of hypersexuality, for example previous complainants of unwanted sexual approaches or activities and things of that nature, the situation may have been different. But there is not.

11. This case has had somewhat of an unfortunate history in that the first trial was aborted part way through the accused’s cross-examination because this medical information, which had not previously been disclosed to the defence, was disclosed. The defence successfully argued that the trial should be aborted to enable them to investigate the position.

12. However there is no expert report from the defence that either comments on, or makes any reference to, the reports that I have before me on the voir dire, or on the behaviour of the complainant alleged in this case or generally in regard to hypersexuality and its relationship to frontal lobe damage. A complaint is made by counsel for the defence, which I don’t find it necessary to have to resolve, that the defence sought to have the complainant examined by their own neuropsychologist, presumably for the purpose of being able to make a diagnosis of hypersexuality. The complainant was not made available and therefore the accused is at a disadvantage. I personally find it difficult to see that an examination of the complainant at this point of time by a neuropsychologist, or anyone else, would be likely to have provided any assistance to a jury in determining what did or didn’t occur on the occasion in question.

13. Dr Crimmins prefaced a number of responses to questions in cross-examination by saying that “if that proposition was true” then that could be consistent with a diagnosis of hypersexuality, although no diagnosis of hypersexuality has been made in 10 years of treatment.

14. The crux of the matter lies in what Dr Crimmins prefaced his responses with, namely, that if the factual situation was true, then that could be consistent with a diagnosis of hypersexuality. It seems to me that making an assessment of what the accused alleges is a fundamental matter for the jury to determine. The state of the evidence at the moment is that there is no evidence that the complainant is suffering from hypersexuality, so that the jury would be in no better position to be able to determine what occurred in December 2004, if they were aware of the admittedly bad terminology used by Dr Crimmins in 1994 than if they weren’t. In those circumstances allowing that material in would lead to impermissible speculation, so that I am not prepared to allow the cross-examination of Dr Crimmins in that regard.