R v Gene David Scorringe

[2009] NSWDC 154

CITATION:	R v Gene David Scorringe [2009] NSWDC 154
JUDGMENT DATE:	20 April 2009
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	The evidence that is proposed to be led is inadmissible.
CATCHWORDS:	CRIMINAL LAW - admissibility of evidence - allegation of non-consensual sexual intercourse - application to adduce evidence which may imply previous sexual activity - interpretation of "so alleged" in s 293(4)(c) Criminal Procedure Act 1986
LEGISLATION CITED:	Criminal Procedure Act 1986 s293(3) s 293(4)
CASES CITED:	R v Dimian (1995) 83 A Crim R 358 R v Tubou [2001] NSWCCA 243
PARTIES:	R Gene David Scorringe
FILE NUMBER(S):	2008/2276
COUNSEL:	Ms C Dobraszczyk (NSWDPP) Mr L Brasch (Def)
SOLICITORS:	NSW Director of Public Prosecutions Legal Aid Commission of NSW

JUDGMENT

1. The complainant in this case, involving an allegation of non-consensual sexual intercourse, was examined by a doctor not long after the event that she (the doctor) said was non-consensual. The doctor found what she described as signs of acute trauma. The signs included two lacerations and marked redness. The lacerations were accompanied by bleeding. The doctor has given evidence that the fresh bleeding indicated that the injuries were acute and that there were no signs of healing. The doctor has also given evidence that the signs of trauma which she detected were consistent with blunt force trauma from vaginal penetration by objects such as a finger, a penis or other objects. The complainant alleges that she was penetrated by the accused's finger and penis.

2. Mr Brasch, who appears for the accused, wants to ask a question in cross-examination of the doctor which will elicit evidence from the doctor that the signs of acute trauma occurred within the previous twenty-four hours. Ms Dobraszczyk, who appears as the Crown Prosecutor, objects to any question which would produce that evidence. Her objection is founded on s 293 of the Criminal Procedure Act 1986. She argues that such evidence is rendered inadmissible by s 293(3) because it would be evidence which discloses or implies that the complainant had or may have taken part in sexual activity other than that which is the subject of her complaint.

3. Mr Brasch puts forward two arguments about the admissibility of the evidence. His first argument is that the evidence would not breach s 293(3) because it does not disclose or imply what Ms Dobraszczyk argues it does. I do not accept Mr Brasch's argument. The evidence of the doctor is that the signs of acute trauma are consistent with vaginal penetration, as I said, by objects such as a finger or a penis. The effect of admitting the evidence which would flow from Mr Brasch's question would be, in my opinion, an implication that the complainant may have taken part in some sexual activity, producing the signs the doctor detected, before the sexual activity with the accused of which she complains. In my opinion there may be other implications, it may be that the evidence implies that the signs of trauma were brought about by some injuries unconnected with sexual activity. But as Ms Dobraszczyk points out, the location of the signs of trauma, being in the complainant's genitalia, clearly imply - whatever else they imply - that she may have taken part in some sexual activity before that with the accused.

4. Mr Brasch's second argument is that s 293(3) does not apply to this case because it falls within one of the exceptions referred to in subs (4) and, although he has not articulated this yet, the probative value of the evidence would outweigh any distress, humiliation or embarrassment that the complainant might suffer as a result of the admission of the evidence.

5. Section 293(4)(c) applies if the accused is alleged to have had sexual intercourse with the complainant "and the accused person does not concede the sexual intercourse so alleged." If that is the case and the evidence is relevant to whether an injury is attributable to the sexual intercourse alleged by the complainant then the prohibition rendering the evidence in admissible does not apply.

6. In this case Mr Brasch's client admits that there was a sexual encounter between him and the complainant but says that it was consensual. It therefore appears that the exception contained in s293(4)(c) may not apply because Mr Brasch's client is not in a position where he does not concede the sexual intercourse so alleged. However, Mr Brasch adopts an argument which was advanced in the Court of Criminal Appeal in R v Tubou [2001] NSWCCA 243. Senior Counsel for the appellant in that case argued that the words "so alleged" in s293(4)(c) "permitted a distinction between sexual intercourse per se and the non-consensual intercourse alleged by the prosecution. The provision should be given a liberal interpretation in this regard." See [64] in Tubou where that argument is set out.

7. Hayden JA (as his Honour then was) did not find it necessary to dispose of that argument in order to determine the case. However his Honour did observe at [67] that if the argument were correct "then any divergence between the account offered by a complainant and the account offered by an accused person would mean the exception created by [s293(4)(c)] to the rule of exclusion…would cease to exist in all cases in which [s293(4)(c)(ii)] was satisfied." His Honour, with whom Wood CJ at CL and Sully J agreed, observed that it was “unlikely that its correct construction would cause it to have virtually no application over significant areas." (I should add that his Honour was interpreting a predecessor to the present provision but there is no relevant distinction.) As I said, his Honour found it unnecessary to reach a final view about the matter.

8. In R v Dimian (1995) 83 A Crim R 358 Hunt CJ at CL, with whom Smart and Simpson JJ agreed, referred to the Second Reading Speech of the Attorney General in introducing the predecessor to s 293(4)(c). His Honour quoted the Attorney as saying:

" If the accused denies that intercourse occurred at all, and says that the offence must have been committed by someone else, it would not be fair to deprive him of the right to cross-examine the complainant as to whether the complainant had, at around the relevant time, been having intercourse with another person or other persons."

9. I am inclined to favour the construction which Hayden JA, without committing himself, appeared to favour. If there is any doubt about that construction, to my mind it is cleared up by the Attorney's Second Reading Speech.

10. In my opinion the words "the accused person does not concede the sexual intercourse so alleged" refer to circumstances where the accused's position is that there was no sexual encounter with him or her at all and do not mean that the sexual encounter may have occurred but the accused does not concede that it occurred in the way alleged by the prosecution.

11. For those reasons I rule that the evidence which Mr Brasch proposes to lead from the doctor is inadmissible.

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