R v Cust

[2021] NSWSC 893

Supreme Court

New South Wales

Medium Neutral Citation:

R v Cust [2021] NSWSC 893

Hearing dates:

19 July 2021

Date of orders:

19 July 2021

Decision date:

20 July 2021

Jurisdiction:

Common Law

Before:

Wilson J

Decision:

1. Evidence of the sexual orientation of the accused and the deceased, except insofar as it may have been towards each other, is excluded;

2. Evidence of the history given by the accused to a sexual assault examiner on 18.12.2018 is excluded

Catchwords:

CRIME – trial – murder – voir dire admissibility of evidence issue – s 23 Crimes Act 1900 (NSW) – challenge to admissibility of evidence of sexual orientation of accused and deceased – question of relevance of homosexual tendencies of deceased or accused to partial defence – right to silence – whether right to silence breached by evidence of history taken from accused during sexual assault examination - question of abrogation of right to silence

Legislation Cited:

Crimes Act 1900 (NSW)

Evidence Act 1995 (NSW)

Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)

Category:

Procedural rulings

Parties:

Regina (Crown)
Jamie Cust (Accused)

Representation:

Counsel:
B Queenan (Crown)
P Rosser QC (Accused)

Solicitors:
Solicitors for Public Prosecutions (NSW) (Crown)
Turner Freeman Lawyers (Accused)

File Number(s):

2018/00389548

Publication restriction:

Nil

Judgment

1. HER HONOUR: Prior to the commencement of evidence in the accused’s trial on an indictment charging him with the murder, on 17 or 18 December 2018, of Jesus Bebita, the Court was asked to determine the admissibility of two aspects of the evidence intended to be led by the Crown, to which objection was taken by the accused. The first relates to evidence of the accused’s sexual orientation; the second to his participation in a medical examination as a possible victim of a sexual offence.

2. The Court made orders on 19 July 2021, reserving full reasons for the orders made until today.

Background

3. It is useful to place the disputed evidence in the context of the evidence more broadly.

4. The allegation against the accused is that, on 17 or 18 December 2018, he stabbed Jesus Bebita to death whilst staying overnight as a guest in his home in Scone. The accused does not dispute stabbing Mr Bebita, or killing him. His case is that he acted as he did because, as he told his step-father soon after the fatal incident, Mr Bebita “tried to rape” him. He told his step-father, “I woke up, my pants were down, and he was rubbing his dick on me”.

5. Although the accused was initially reluctant, his step-father persuaded him to go to the police and report what he had done. After showering, the accused went to Muswellbrook Police Station where he spoke to a constable. He told Con. Cavallaro-Laverty that “I killed” or “I think I killed someone who tried to rape me”. When he spoke to detectives soon after, the accused was observed to be distressed and crying. He told the officers:

“I went to bed and when I woke up my pants were down and he was rubbing his penis on me. I woke up and we were in bed together and he was touching my penis and I freaked out”.

6. He asked if there had been reports of a house burning down at Scone, saying:

“I stabbed Jesus several times and to cover it up I lit the doona alight to burn down the house. I should have got on a boat and left the country”.

7. Mr Bebita’s body was found later that morning at his home. He had sustained some 49 wounds to his face and body.

8. The accused’s case is that he was the subject of an indecent assault or attempted sexual assault which went beyond what might be regarded as a non-violent sexual advance, and he reacted to extreme provocation within the meaning of s 23 of the Crimes Act 1900 (NSW). The Crown disputes this.

The Evidence

9. The evidence the Crown seeks to lead was before the Court on the voir dire as Exs. VDA, VDB, VDC, VDD, and VDE. Exhibits VDA – VDD contain evidence relevant to the accused’s sexual orientation; Ex. VDE relates to the conduct of a sexual assault examination upon him.

10. Exhibit VDA is a copy of the Crown Case Statement. Exhibit VDB consists of:

1. A series of photographs extracted from the accused’s mobile telephone which – with the exception of a photograph of the accused exotically attired – might be broadly referred to as pornography, almost exclusively depicting men in sexual poses or performing sexual acts;

2. Information also extracted from the mobile phone which establishes the origins of this material (and noting that, although the Crown relies on the images of male pornography that the accused had in his possession, it is conceded that he also had female pornography, in a much greater volume);

3. Statements of witnesses relevant to an allegation against the accused of a sexual assault upon a male complainant on or about 23 October 2018.

11. Exhibit VDC contains printouts showing text message exchanges between the accused and his stepfather in the period 30 October 2018 and 16 December 2018. Apart from exchanges about day to day matters – constituting the vast majority of the messages – there is a message that might be taken to refer to Mr Bebita from 8 November 2018 when the accused sent a message to the effect that he was “staying at a workmates place in scone”; and a couple of messages which refer to the accused’s workplace. There are messages on 16 December 2018 in which the accused said he had been fired from “Vic’s Meats”, and that he was picking up his “steels”, understood to mean knives used in the course of the accused’s employment.

12. Exhibit VDD consists of messages exchanged between the accused and the deceased from 19 November 2018 to 8:02pm on 17 December 2018. There are a number of messages discussing employment, and a series of exchanges in which the two men discussed the accused’s place of employment and the possibility of the deceased obtaining work with the same employer, potentially sharing accommodation with the accused “for cheaper rent”. There are also some messages which, in a different context might be referred to as “locker room talk”, concerning sex with girls, and penis sizes. Messages on 17 December 2018 concern a plan to meet up for drinks, with the accused accepting the deceased’s invitation to him to stay overnight at Scone, and Mr Bebita arranging to pick the accused up from his family’s home in Muswellbrook.

13. Exhibit VDE contains a statement from Sgt Hobson, the Custody Manager at Muswellbrook Police Station at the time the accused attended there to report Mr Bebita’s death; the Custody Management Record from the period; a certificate from Sister (“Sr”) Bourke RN, who examined the accused as a possible victim of sexual assault; and the documentary record of that examination, generally referred to as the “SAIK”, for sexual assault investigation kit.

14. Sgt Hobson received the accused into custody on the morning of 18 December 2018 and explained his rights to him, providing him with a summary of the information, commonly referred to as “the Part 9”, being a reference to Part 9 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). Those rights included a right to seek legal advice, and to silence under questioning. The officer observed that the accused had bandages applied to some of his fingers.

15. The accused sought legal advice by telephone, and accepted advice that he decline to be interviewed or to submit to any forensic procedure. That decision was formally noted by Sgt Hobson, and the accused’s solicitor also sent an email to Sgt Hobson to confirm the accused’s position.

16. Various inquiries were made during the course of the day by other officers investigating Mr Bebita’s death. Later on 18 December the accused was taken to John Hunter Hospital where he was examined by Sr Bourke. The following day Sgt Hobson had an (unrecorded) conversation with the accused during a smoking break, in which the accused made admissions to stabbing Mr Bebita. I do not understand there to be an issue as to the admissibility of that evidence.

17. The Custody Management Record has an entry for 14:50 – 18:25 on 18 December 2018 which shows that the accused was taken to John Hunter Hospital for an “examination of private parts”.

18. Sr Bourke is a Registered Nurse and Sexual Assault Nurse Examiner. In her report of 20 September 2019 she states that she saw the accused at about 5.30pm on 18 December 2018 as a victim of an alleged sexual assault. Sr Bourke explained the purpose and procedure of a forensic medical examination to the accused. She said:

“He gave written consent to a medical examination and to the recording of findings for forensic purposes. He consented to the collection of specimens for forensic testing, and understood that these may be used in evidence in Court proceedings.”

19. Sr Bourke took a history from the accused of the events surrounding the alleged sexual assault. The history was recorded in the third person, and has the general flavour of a summary. The report noted that the accused said his friend took his shirt off and put on a film of female genitals. This made the accused uncomfortable and he put music on. He lay on a mattress and his friend lay down next to him. The accused again felt uncomfortable and went outside. On returning the accused “went to the bed” and was trying to sleep. He woke to find the male “’touching him’” (this phrase being enclosed by quotation marks in the report). The report continues:

“Jamie gestured to his penis / genitals. He also stated his friend was rubbing his penis against Jamie’s bum. Jamie stated he was upset and shocked and things went wrong after that”.

20. Sr Bourke noted that the accused had both showered, and changed his clothing since the relevant events. Apart from injuries to the accused’s hands, the examination was normal. There were no ano-genital abnormalities. Swabs were obtained for forensic testing (with, inferentially, no relevant result).

21. The SAIK contains a “Consent for Sexual Assault Examination and Evidence Collection” section which the accused signed. The consent is the standard consent for victims of a sexual assault. The accused acknowledged that he understood that the examination was for “medical purposes and to gather evidence as part of a Police investigation” and further, that:

“* undertaking this examination does not oblige me to provide a Statement to the Police or to continue with Police or legal action;

* I have options regarding the release of this information to the Police;

* this evidence may be used in court […]”.

The Submissions

Evidence of Sexual Orientation

22. Mr Rosser of Queens Counsel submits that the evidence of the accused’s sexual orientation is irrelevant to the determination of the issues in the trial. Underpinning the argument for the admissibility is, he contends, an offensive and outdated notion that a homosexual man, or a man with a sexual interest in men, would be less likely than would a heterosexual man to object to a sexual assault committed by a male assailant, and thus that the accused’s claim to have “freaked out” at the alleged assault upon him can be discounted.

23. The evidence relating to a separate allegation of sexual assault by the accused upon a male complainant suffers from the same fallacious underpinning, and is additionally highly prejudicial, since it would expose the accused to a “trial within a trial” and make the jury aware of an allegation against him of serious unconnected criminality.

24. It is submitted, on the other hand, that the evidence of the deceased’s sexual orientation is relevant to demonstrate his tendency to have a sexual interest in men, and thus to make more likely the accused’s assertions with respect to the alleged assault by Mr Bebita upon him.

25. The Crown argues that the evidence of the accused’s sexual orientation is highly relevant to the jury’s determination of the only issue in the trial, the partial defence raised by the accused pursuant to s 23. It is submitted that it will be important for the jury to examine the accused’s personal characteristics when considering whether he lost control as a consequence of a sexual advance by Mr Bebita, and a relevant personal characteristic is his homosexual interest. Those interests speak to the likelihood of the accused responding as he says he did to a sexual advance, an advance that caused him to lose control (s 23C(2)(a) and (c)).

26. It is contended that it is particularly important for the jury to be aware of the homosexual tendencies of the accused and the deceased in determining these issues in circumstances where the evidence will be that each man had a long term female partner.

The Evidence from the SAIK

27. The accused argues that, having chosen to exercise his right to silence, and having communicated that very clearly to investigating police, it would be grossly unfair to him if the Crown was permitted to adduce evidence of an account he gave to a medical practitioner in another context, in which he gave an account of an assault upon him, having been advised that the examination was for a purpose unconnected with his prosecution for a crime, and having consented on that limited basis.

28. The Crown submits that, in his history to Sr Bourke, the accused gave an account of the alleged sexual assault which was inconsistent in some regards with his account to police and family, significantly with respect to having gone to bed on the night of 17 December 2018, as opposed to sleeping on a mattress, or in a spare room. That suggests that the two men were sleeping together in the same bed, and supports the Crown case in that it points to a consensual sexual relationship between the two men, rendering the accused’s response to an asserted assault less probable.

Determination

29. The disputed evidence is said to be relevant to the determination of those things the jury must consider in assessing the s 23 partial defence. Section 23 provides:

23   Trial for murder—partial defence of extreme provocation

(1)  If, on the trial of a person for murder, it appears that the act causing death was in response to extreme provocation and, but for this section and the provocation, the jury would have found the accused guilty of murder, the jury is to acquit the accused of murder and find the accused guilty of manslaughter.

(2)  An act is done in response to extreme provocation if and only if:

(a)  the act of the accused that causes death was in response to conduct of the deceased towards or affecting the accused, and

(b)  the conduct of the deceased was a serious indictable offence, and

(c)  the conduct of the deceased caused the accused to lose self-control, and

(d)  the conduct of the deceased could have caused an ordinary person to lose self-control to the extent of intending to kill or inflict grievous bodily harm on the deceased.

(3)  Conduct of the deceased does not constitute extreme provocation if:

(a)  the conduct was only a non-violent sexual advance to the accused, or

(b)  the accused incited the conduct in order to provide an excuse to use violence against the deceased.

(4)  Conduct of the deceased may constitute extreme provocation even if the conduct did not occur immediately before the act causing death.

(5)  For the purpose of determining whether an act causing death was in response to extreme provocation, evidence of self-induced intoxication of the accused (within the meaning of Part 11A) cannot be taken into account.

(6)  For the purpose of determining whether an act causing death was in response to extreme provocation, provocation is not negatived merely because the act causing death was done with intent to kill or inflict grievous bodily harm.

(7)  If, on the trial of a person for murder, there is any evidence that the act causing death was in response to extreme provocation, the onus is on the prosecution to prove beyond reasonable doubt that the act causing death was not in response to extreme provocation.

(8)  This section does not exclude or limit any defence to a charge of murder.

(9)  The substitution of this section by the Crimes Amendment (Provocation) Act 2014 does not apply to the trial of a person for murder that was allegedly committed before the commencement of that Act.

(10)  In this section:

act includes an omission to act.

30. The accused argues that the assault upon him by Mr Bebita of which he complained on 18 December 2018 was a serious indictable offence, being an offence of sexual touching pursuant to s 61K of the Crimes Act or an attempt to commit an offence of sexual assault contrary to s 61I of the Act, and was an act which the jury may conclude could have caused an ordinary person to lose control to the extent referred to in s 23(2)(d). The deceased’s predilection for sex with male partners makes the accused’s account of events more likely to be credible.

31. The Crown argues that the accused’s homosexual interests make it less likely that he would respond in the way he did to a sexual advance from Mr Bebita.

32. The basis upon which the parties seek to admit evidence of the sexual orientation of one or both of the significant individuals is, in my opinion, flawed, and relies upon assumptions that cannot be made, and upon the drawing of inferences that are not open to draw.

33. Setting aside for the moment the evidence of the sexual assault alleged to have been committed by the accused on a male complainant in an unconnected incident, the Crown in seeking to lead evidence of the accused’s sexual interest in men other than Mr Bebita necessarily relies upon the prospect of the jury drawing an inference that a homosexual man is more likely than a heterosexual man to accept a sexual assault by a same sex assailant, and less likely to object in an uncontrolled way to such an advance.

34. In seeking to adduce evidence of Mr Bebita’s homosexual interest in men other than the accused, the accused necessarily relies upon the prospect of the jury drawing an inference that a homosexual man is more likely than a heterosexual man to commit a serious sexual offence against a male victim.

35. Neither proposition is rational, or logical, and each mistakes the nature of a sexual assault.

36. Sexual assault is a crime of violence and domination; it is not an act reflective of sexual pleasure, to either the assailant or the victim. For the assailant the act is one which centres on the subjugation of another; for the victim it represents a wholesale and devastating assault on his or her personal and sexual integrity. The gender or sexual orientation of the assailant cannot make a sexual assault any less destructive, or any more palatable. It is a violent and damaging act regardless.

37. Similarly, it cannot be legitimately assumed or inferred that a homosexual man is more likely than a man without those interests to be a rapist of a same sex victim. There is no basis upon which to conclude that, because there is some evidence that Mr Bebita engaged in sexual acts with consenting male partners, he would have been more likely to engage in sexual acts with a non-consenting male partner. There is a vast difference between a mutually desired sexual encounter with a same sex partner, and a sexual assault upon an unwilling victim, of the same sexual orientation or not.

38. The partial defence pursuant to s 23 falls to be determined against the evidence of the relationship of the deceased and the accused, and by assessing the nature of the accused’s response to Mr Bebita’s act, should the jury conclude that the Crown has failed to negative the occurrence of the act complained of.

39. On that basis, evidence that relates to the deceased’s sexual interest in men other than the accused, or evidence that relates to the accused’s sexual interest in men other than the deceased, is irrelevant. Even if accepted, such evidence can say nothing that could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the trial.

40. Even if it has some relevance that is opaque to me, I would exclude the evidence in the exercise of my discretion pursuant to s 135(a) and (c) of the Evidence Act 1995 (NSW). Evidence of the accused’s sexual interest in men other than Mr Bebita, particularly bearing in mind the graphic nature of the images in particular, could only prejudice him, for the very reason that some members of the jury may jump to the sort of unjustified conclusion based on irrational assumptions that I have already referred to. The same risk attaches to the Crown case if the accused is permitted to adduce evidence of Mr Bebita’s sexual activity with other males at other times.

30. The evidence of the unconnected alleged sexual assault upon an male by the accused raises a different issue, in that it is an assault that is not, as I understand it, admitted, and which would necessarily portray the accused as a sexual criminal. Not only is the evidence inadmissible on the basis to which I have already referred, but it should be excluded pursuant to s 137 of the Evidence Act. Its probative value is negligible; its potential for prejudice to the accused is overwhelming, and could not be cured by direction.

31. It is likely to be inevitable that evidence of the accused’s relationship with a female is referred to in evidence, and that the deceased’s status as a married man is referred to. On the basis that both relationships, and not one only, is before the jury, that evidence is admissible as part of the evidence of the ordinary context of the lives of the accused and the deceased.

32. The Court excluded the evidence of the history given by the accused during the conduct of the SAIK on a different basis, that being that, to permit the Crown to rely upon it was to allow the abrogation of the accused’s right to silence.

33. Having sought legal advice, the accused determined to exercise his right to silence. He declined to be interviewed, or to participate willingly in any other evidence gathering procedure. When he spoke with Sr Bourke it is clear from the consent form that he signed that he understood that any evidence gathered was in connection with his asserted experience as a victim of crime. It is also clear that he understood that he had “options” regarding the release of the information to the police. The account of what he said during the medical examination is not a direct speech quotation, but an account rendered in the third person.

34. If the evidence is adduced, the information given to the accused by Sr Bourke would be rendered entirely misleading, to the accused’s detriment. Whilst he understood by signing the consent that the evidence obtained during the examination “may” be given in a court, he was not warned contemporaneously that what he said might be given in a court against him. Had he not received assurances to the contrary it is highly likely if not certain that he would have continued to conduct himself in accordance with the advice he had received and maintain his silence.

35. The evidence should be excluded in the exercise of the Court’s discretion, as unfairly prejudicial to the accused. Since its probative value is limited to the inconsistency in the accused’s reference to going to bed, a reference made by the accused in any event in the account he gave to detectives, its value to the Crown is slight, and it is outweighed by the significant prejudice to the accused in allowing his right to silence to be unfairly undermined.

36. There is evidence of an unremarkable ano-genital examination which is of some limited relevance, in that it revealed no signs of sexual assault, an outcome to be expected in any event given the nature of the alleged assault as outlined by the accused. That evidence can be given, if the parties regard it as having any value, perhaps to prevent speculation on that aspect of the matter.

Conclusion

48. For these reasons, the Court made orders excluding evidence of the sexual interest of either the accused or Mr Bebita in men other than each other, and excluding the evidence of the sexual examination of the accused on 18 December 2018. The Crown can adduce the evidence of injuries to Mr Cust’s hands through other means.

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addendum of 21 july 2021

49. After the publication to the parties of the Court’s reasons for the orders of 19 July 2021 the Crown Prosecutor raised an objection to the account given in the judgment of the Crown’s submissions on the admissibility of evidence of sexual orientation. The Crown objects to the Court’s conclusion that the underpinning of the argument advanced by the Crown in support of the admissibility of that evidence was necessarily an assumption that a homosexual man would respond differently to a sexual assault by a male assailant than would a heterosexual man.

50. A request for the Court to “revise” its reasons was declined, with this Addendum noting the Crown’s complaint added instead.

Decision last updated: 15 December 2022