R v Mattiussi

[2022] NSWDC 234

District Court

New South Wales

Medium Neutral Citation:	R v Mattiussi [2022] NSWDC 234
Hearing dates:	21 June 2022 – 27 June 2022
Date of orders:	22 June 2022
Decision date:	22 June 2022
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraph 68
Catchwords:	EVIDENCE – criminal proceeding – complainant in relationship with the accused - sexual assault offences – proscription upon admissibility of evidence of sexual experience or reputation of the complainant – exception to proscription where sexual activity occurs at or about the time of the commission of the alleged offending – additional exception to proscription where sexual activity forms part of connected circumstances in which the alleged offending occurred – where the evidence relates to relationship between the accused and complainant existing or recent at the time of the alleged offending – whether the probative value of the disputed proposed evidence to be admitted outweighs any distress, humiliation or embarrassment the complainant might suffer if the evidence was admitted - Criminal Procedure Act 1986 (NSW), ss 294CB(4)(a)(i) & (ii) and 294CB(4)(b)
Legislation Cited:	Criminal Procedure Act 1986 (NSW) s 294CB
Category:	Procedural rulings
Parties:	Office of the Director of Public Prosecutions (ODPP) Mr M Mattiussi (accused)
Representation:	Counsel: Ms E Winborne (solicitor advocate) for the Crown Mr E McMahon for the accused Solicitors: ODPP Total Legal for the accused
File Number(s):	2020/00145510
Publication restriction:	Non-publication of complainant’s identity pursuant to s 578A Crimes Act 1900 (NSW).

Judgment

Background

1. The accused is to be tried on indictment on 5 counts involving the same complainant. Counts 1-3 involve allegations of sexual assault all perpetrated against the complainant at Paxton on 10 April 2020. Counts 4 and 5 concern non-sexual activity occurring on 12 April 2020 at Kearsley.

2. Both the Crown and the accused bring applications in relation to the sexual experience or reputation of the complainant as exceptions to the general proscription against such evidence contained in ss 294CB(2) and (3) of the Criminal Procedure Act 1986 (NSW) (the ‘CP Act’).

3. For the purpose of determining those applications, the Crown relies upon a range of documents (Exhibit A on the voir dire) comprising the Crown case statement, three police statements of the complainant and two other documents, comprising notes of a conference (apparently with the officer in charge) and a medical and forensic examination record of the complainant undertaken at John Hunter Hospital dated 18 April 2020.

4. The parties’ legal representatives made their arguments through written submissions: the Crown’s submissions dated 22 November 2021 and 20 June 2022; and the accused’s Counsel’s written submissions dated 22 November 2021. These will be respectively marked MFI 1-3. The accused’s Counsel supplemented these written submissions with a brief oral submission.

5. As I understand the parties’ positions, the accused does not object to the Crown’s application. Indeed, he embraces it, so long as he gets the chance to cross-examine on the parts of the evidence that the Crown is permitted to adduce. What is essentially in contest is whether the accused is permitted to go further, and the question is raised as to the extent to which he should be permitted to cross-examine the complainant on the parts of the Crown evidence adduced, and, secondly, other parts of the complainant’s police statements which the Crown does not apply to adduce evidence about, although there is additional evidence he wishes to adduce.

6. Argument primarily centred upon the first and longer of the complainant’s police statements (dated 20 April 2020) the third of the statements (16 June 2022) is also material.

The Crown’s Case statement

7. This is based upon the police statements of the complainant. Putting the matter in very broad terms, the Crown case is that on 7 February 2020 the complainant met the accused. A short time thereafter, they commenced a relationship.

8. In March 2020, the accused ran into his former partner, Ms Sarah Robertson, with whom he had two children. The complainant knew of Ms Robertson before dating the accused. Thereafter the accused regularly corresponded with her, by text. In late March 2020, he admitted to the complainant that he had had sex with Ms Robertson.

9. The Crown case is that on 10 April 2020, whilst they were at the complainant’s home, the accused proposed to the complainant that they should engage in a ‘threesome’ with Ms Robertson. Ms Robertson was agreeable to this. On the Crown case, the accused proposed in general terms what would occur during the sexual activity, at least in the sense of his prioritising his attention to the complainant and not Ms Robertson.

10. Ms Robertson came around to the complainant’s home in the afternoon the same day. After watching some porn on television, the three commenced to engage in consensual sexual activity. An aspect of that involved the accused engaging in penile-vaginal intercourse with Ms Robertson. The complainant was angered by observing that particular activity, believing that this was not what she had been led to believe would occur. She glared at the accused and left the room for a short time, but on her return, resumed her participation in consensual sexual activity with the accused and Ms Robertson.

11. On the Crown case, the accused started alternating in having penile-vaginal sex with the complainant and Ms Robertson, but the accused was displeased with the complainant’s attitude. He asked the complainant to leave the room on occasions in the next 10 minutes.

12. After that 10 minutes, Ms Robertson left the home. By this stage, the accused had not ejaculated. Once Ms Robertson left, the complainant vented her anger towards him. They argued and the complainant indicated that she was going to bed. Whilst the complainant sat on the lounge room floor, with her back to the lounge, on the Crown case, the accused, who was standing in front of her, would not let her rise, but instead pushed her to the floor.

13. Thereupon the Crown case is that the accused perpetrated, in succession, the different acts of sexual assault that make up counts 1-3. In a nutshell, the Crown case is that count 1 comprised penile-anal intercourse; count 2 fellatio and count 3 dildo-anal penetration.

The Crown application

14. The Crown applies to adduce evidence in substance, first, of paragraphs 28 – 30 of the complainant’s first police statement. This sets out, in summary, evidence of the provenance of the plan proposed by the accused to the complainant, conceived on 10 April 2020, that they engage in a threesome and the expectations engendered in the complainant. Paragraph 30 referred, in particular, to the complainant’s agreement to the part of the plan whereby the accused foreshadowed engaging in penile-anal intercourse with Ms Robertson and disclosure that this was a form of previous sexual activity she, the complainant, had personally consented to engage in with him in the past. I note, further, that penile-anal intercourse was the form of sexual intercourse which the accused allegedly perpetrated with the complainant comprising count 1 on the indictment.

15. The Crown submits that both ss 294CB(4)(a) and (4)(b) are satisfied. As to paragraph 28, the statement that the complainant was ‘open-minded’ and had no issues with the proposed threesome with Ms Robertson showed that the complainant was capable of expressing and, logically, withdrawing, her consent to particular sexual activity with the accused. As to paragraph 29, it was argued that the expectations the accused generated may be relevant to his mental state regarding the absence of consent. As to paragraph 30, the proposed evidence would show the complainant’s consent to prior anal intercourse with him, which features (in different ways) in relation to counts 1 and 3 on the indictment. The Crown indicates that the evidence is relevant to showing the complainant’s capacity to indicate her consent to that form of sexual intercourse.

16. I agree that, at least, all the proposed paragraphs satisfy the exception in s 294CB(4)(b)(i). Being part of the Crown case, being matters already given by the complainant to the police, it is not clear whether there is any distress, humiliation or embarrassment if they were the subject of evidence and, if there is, I am satisfied that the probative value of the evidence outweighs these matters as a result of the admission of the evidence given.

17. The second part of the evidence which the Crown proposes is at paragraphs 34-41 of the complainant’s first police statement. These paragraphs, in summary form, set out the complainant’s recollections of her engaging in the consensual sexual activities as between herself, the complainant, the accused and Ms Robertson on 10 April 2020. In this part of her statement, the complainant gave evidence of the watching of pornography, the preparations to engage in sexual activity, the engagement in consensual sexual activity and the complainant’s account of how part of that sexual activity disappointed her expectations – namely, the accused’s engagement in penile-vaginal intercourse with Ms Robertson – her angered reaction to that and what the Crown appears to characterise as the accused’s response, which was to justify what he had done. At the endpoint of this part of the complainant’s narrative, Ms Robertson left the home. There is no suggestion of anything unlawful about any of this.

18. The Crown pinpoints paragraphs 37 to 41 as particularly being relevant. This would exclude the lead up, or preparatory steps to the engagement in the sexual activity, but focusses, more specifically, upon the consensual sexual activity between all three participants (paragraph 37), the accused’s penile-vaginal intercourse with Ms Robertson (paragraphs 38-39) and the deterioration in the quality of the experiences derived from the sexual activity and general feeling of dissatisfaction in the complainant (paragraphs 40-41).

19. Paragraph 37, it was said, was relevant to the issue of consent on the counts on the indictment. Paragraphs 38-39, read in isolation of, or in combination with, paragraphs 40-41, tended to show that the complainant had a motive for withdrawing consent to the subsequent acts of sexual intercourse which make up the charges.

20. I agree that the evidence in paragraphs 37-41 inclusive fall within the exception to s 294CB(4)(a)(ii). As before, and for the same reason as my conclusion in relation proposed paragraphs 28-30, I find that any distress, humiliation or embarrassment that would be occasioned to the complainant if this evidence was adduced is outweighed by its probative value.

21. The third part of the evidence that the Crown proposes to adduce concerns paragraphs 49 to 50 of her first statement. In summary, this was part of the conversation which occurred during the activity constituting count 3, when the accused referred to the consensual sexual activity that had occurred earlier, as between the complainant and Ms Robertson and involved the former’s use of a dildo. The complainant’s evidence in this part of her statement was to the effect that the accused was motivated to engage in the alleged offending conduct, amounting to dildo-anal penetration of her, because he was jealous, or resentful, that the complainant had satisfied Ms Robertson’s sexual needs with her use of that dildo whereas the accused had not been able to do so in his own sexual activities with Ms Robertson. The Crown submits that this proposed evidence is relevant to prove the accused’s motivations, to ‘punish’ or humiliate the complainant, which might tend to establish knowledge of an absence of consent in the complainant.

22. I agree that this is relevant, at least, to the issue of the accused’s knowledge as to an absence of consent relevant to all counts generally but, in particular, count 3, featuring the alleged use of the dildo. I find that this evidence falls within the exception in s 294CB(4)(a)(ii). For the same reasons as earlier paragraphs, I find that any distress, humiliation or embarrassment that would be occasioned to the complainant if this evidence was adduced is outweighed by its probative value.

The Accused’s application

23. The Crown accepts that, by reason of s 294CB(6) of the CP Act, the accused should be permitted the opportunity to cross-examine the complainant on the paragraphs of her first statement which the Crown wishes itself to adduce. The Crown also accepts that the accused should fairly have the opportunity to cross-examine the complainant about the sexual activity with the accused prior to the events (involving just the complainant and the accused) of 10 April 2020.

24. However, as I understand the Crown’s position, it seeks to confine the scope of cross-examination of the complainant on that earlier evidence and prevent the admission of other matters concerning the recent sexual history of the complainant and the accused (and others) in the lead up to and aftermath of the alleged offending.

25. The accused wishes to adduce other information contained in Exhibit A. That is:

1. detail about Paragraphs 37-41 of the complainant’s first statement;

2. the nature of the sexual activities that make up Paragraphs 42 to 50 the complainant’s first statement;

3. sexual activities on 10 and 11 April 2020 that go beyond the charged conduct;

4. The content of the medical examination of the complainant conducted on 18 April 2020;

5. other sexual activities within the history of the relationship between the complainant and the accused.

Sexual activities prior to the alleged sexual offending

26. The Crown objects to the accused being permitted to cross-examine the complainant on paragraphs 37-41 of the complainant’s first statement, which paragraphs generally comprise what might be regarded as the consensual sexual activities between the complainant, the accused and Ms Robertson prior to the alleged offending. It submits that she should not be asked to expand on what is contained in those paragraphs by reference to explicit details of sexual activity.

27. The accused submits (paragraphs 4(a) and 14(d) of his submissions) that this part of the complainant’s first statement discloses or implies that the complainant may have taken part in: consensual sexual activity in the context of a ‘threesome’ with the accused and Sarah Robertson on 10 – 11 April 2020, including:

1. ‘streaming’ pornography;

2. bondage;

3. penile-vaginal penetration;

4. implied but not specified anal penetration among the participants.

28. As already indicated, I find that the paragraphs 34-40 in particular, set out the preparatory steps and the actual sexual activities that satisfy the exception in s 294CB(4)(a)(i) and (ii). They may also satisfy the exception in s 294CB(4)(b) and have already permitted the Crown to adduce it.

29. The Crown argues that any cross-examination that goes to the detail of the sexual activities is irrelevant or would not be consistent with the purposes of s 294CB and would not be required to satisfy the requirement of fairness.

30. I disagree. Although I do not accept the accused’s submission that there is anything within this part of the complainant’s first statement that suggests the complainant’s participation in bondage, there are clearly references in this part of the complainant’s police statement that indicate the complainant’s willing viewing of pornography, the engagement in penile-vaginal intercourse (involving the accused and complainant) and, when construed with what the complainant says in paragraph 30 of her police statement, arguably also penile-anal penetration. Although the complainant does not expressly give evidence in this part of her statement about consenting to penile-anal sexual intercourse with the accused, and although there is evidence about the accused’s proposed planning to have only penile-anal intercourse with Ms Robertson, the earlier reference in paragraph 30 might permit an inference that this was also consenting activity engaged in over the 2-hour period estimated. In other words, there is potential for the evidence to be adduced which is relevant to the nature of the sexual intercourse, which is the subject of count 1, and whether or not the complainant consented to such sexual intercourse at a time very closely connected to the circumstances in which the conduct comprising that count on the indictment occurred. I also consider that such evidence is also capable of being highly probative.

31. For the purpose of s 294CB(6)(ii), I also find that it would be unfairly prejudicial to the accused if the complainant could not be cross-examined on the accused’s behalf as to what form of sexual intercourse she engaged in with the accused on 10 April 2020.

32. The difficulty with the Crown’s position, as it seeks to spare the complainant of elaborating on the details of, say, paragraph 37 of her first police statement, is that it deprives the accused of the opportunity of testing the credibility and reliability of the complainant’s evidence. Any absence of recollection of the detail of the actual sexual activity engaged in is relevant both to her credibility and reliability.

33. It might be thought that it is irrelevant to obtain an account of what sexual activity she engaged in with Ms Robertson until it is appreciated that on the Crown’s case, the content of the sexual activity which the complainant engaged in with Ms Robertson helps explain the context for the offending, particularly for count 3, but all counts generally.

34. To be clear, and with reference to sub-paragraph 4(a) of the accused’s written submission, I permit the complainant to be cross-examined on items (iii) and (iv) of that sub-paragraph. I do not regard the content of the pornography (item (i)) to be relevant nor consider that it would be unfairly prejudicial to deprive the accused of the opportunity of probing the nature of that sexual activity. Nor do I think that it is unfairly prejudicial to deprive the accused of cross-examining on the extent to which bondage activities were engaged in. To reiterate, I do not consider it to be relevant or unfairly prejudicial to deprive the accused of the opportunity of probing whether any bondage occurred. Whether or not the complainant had any proclivity for bondage activities is irrelevant in a context where there is no suggestion in the evidence on this application that the offending occurred in that context: the accused did not suggest, for example, that any use by him of a dildo on count 3 was done in the context of role-playing.

Sexual activities constituting the offending

35. The accused submits that paragraphs 42-50 of the complainant’s first statement (and, by extension, paragraphs 4-6 of her second statement) should be the subject of questioning, as these parts of the statements constitute the context in which the charged allegations are said to occur. More than a description of the context, however, these parts of the complainant’s statements to the police sets out the detailed account from the complainant as to how the events giving rise to counts 1 to 3 actually occurred. It might be said that this part of the complainant’s first statement marks the point of departure from the time when the sexual activities that had been occurring as between the accused and complainant went, on the Crown’s case, from consensual to non-consensual.

36. It is not entirely clear whether the Crown objects to cross-examination on this part of her statement, although it is more probable that the Crown consents to it (see paragraph 35(c) of its written submissions). They are plainly matters about which the accused should be permitted to cross-examine the complainant. Indeed it is unnecessary to resort to s 294CB(4) at all since, in my view, they would not fall within the proscription of s 294CB(3). The proscription in that provision, properly construed, goes to prior sexual activity which the complainant engaged in – not the sexual activity constituting the charges.

Subsequent sexual activities after the alleged offending

37. The Crown accepts that the accused should fairly have the opportunity to cross-examine the complainant about sexual activity engaged in with the accused occurring after 10 April 2020. As to the latter, the complainant provided information to the police about this in her third, and recent statement. In this statement, the complainant disclosed (at paragraphs 4-5) one further sexual incident occurring as between the complainant, the accused and Ms Robertson between the Friday and Saturday, 10 and 11 April 2020, and the date he was arrested (17 April 2020), at the same house in which the alleged offending had occurred.

38. The complainant did not pinpoint a particular date. As indicated, there are two potential dates apparent in the evidence. Both are indicated in the medical examination record dated 18 April 2020. It is presumed that the complainant is the source of the information contained in the medical examination record.

39. As to the first of those dates, the medical examination record refers to an assault in the early hours of 11 April 2020. Reference is made to the accused ‘penetrating her vagina, anus and mouth.’ But there are no details of how the penetration occurred. In my view, although this sexual activity occurred after the alleged offensive conduct, it still fell within the exceptions to s 294CB(4)(a)(i), if not also s 294CB(4)(b). The evidence of what form of sexual intercourse was the subject of the complainant’s report is relevant to the issues of absence of consent and the accused’s knowledge relating to counts 1-3.

40. As I said in relation to earlier sexual activity, prior to the offending, admission of the evidence may be capable of establishing what the nature of the sexual intercourse engaged in relating to this incident and, especially if it may tend to reveal penile-anal intercourse. Even if it did not, the preparedness to engage in sexual intercourse very soon after the alleged offending is plainly probative to the issues of absence of consent and knowledge of an absence of consent. Generally, it would present an artificial, if not distorted picture to the jury if the complainant was immunized from giving details of her recollections of what sexual activity was engaged in on or about the same day as the offending. An absence of recollection of detail may relate to her credibility and reliability. Further, in circumstances where the complainant referred to this activity in her third police statement, the accused would be unfairly prejudiced if the complainant could not be cross-examined on the details.

41. I propose to permit the accused to cross-examine the complainant about the nature of the sexual intercourse said to have occurred in the early hours of 11 April 2020, referred to in paragraph 23 of the medical examination report.

42. As to the second, there is another part in the medical examination record of an alleged assault on the early hours of the morning on 16 April 2020, which would fit within the period recalled by the complainant in her third statement to police; involving, as it does, sexual activity in which Ms Robertson also apparently participated.

43. As to the substance of her recollection of this incident in her third police statement, she expressed her view, however, that although she consented to such activity, she felt she had no choice but to participate; albeit that she did not voice her concerns or non-consent to the accused or Ms Robertson because she was too scared.

44. In that medical record directed to 16 April 2020, there is express reference to penile-vaginal intercourse, penile-anal intercourse, digital penetration involving a finger into the complainant’s vagina, as well as digital penetration involving the insertion of a dildo into the complainant’s vagina, and digital penetration involving the insertion of the accused’s finger, and penis, into the complainant’s anus.

45. I am satisfied those paragraphs 4-5 of the complainant’s third statement would satisfy the exception in s 294CB(4)(a)(i) and (b), and also s 294CB(4)(b). It is relevant to the issue of consent applicable to all three counts, and arguably also the state of the accused’s knowledge therein.

46. I understand that the Crown argues against cross-examination on the details of the sexual activities. In this respect, its position is stronger than it was in connection with its opposition to exposure of the details of the pre-offending consensual sexual activities involving the complainant, the accused and Ms Robertson. Here at least, the nature of the sexual intercourse engaged in after the alleged offending on 16 April 2020 has been identified in a contemporary document.

47. However, there is force in the accused’s argument that the medical note forms part of the foundation for expert opinion, and it is permissible for the accused to have the opportunity of challenging expert opinion by undermining the assumptions underpinning it. Further, conceivably, the Crown may wish to rely upon the report as complaint evidence, utilised not only as proof of the complainant’s credibility, but also as to the truth of what is reported. It would, in my view, be unfairly prejudicial to the accused if he was deprived the opportunity to test the complainant’s recollection as to what occurred in the incident that occurred on 16 April 2020.

48. Thus, I accede to the accused’s application to the extent that is contained in sub-paragraph 4(c) of his Counsel’s written submissions.

Other aspects of sexual relationship evidence in the period proximate to the offending

49. At paragraph 12 of his Counsel’s written submissions, the accused submits that on different occasions in the period from 7 February 2020 to 17 April 2020, there were certain instances of consensual sexual intercourse between the complainant and the accused. (The submission in turn did not refer to Ms Robertson’s involvement). The submission referred to features which were said to be common to the charged allegations of sexual offending. These features are:

1. the accused inserting his penis into the complainant’s anus and engaging in anal intercourse on various occassions;

2. immediately following one such occasion of anal intercourse, the complainant noticing a bad taste and then alerting the accused to the presence of faecal matter underneath the foreskin of his penis;

3. on one occasion, the insertion of a dildo by the accused into the anus of the complainant in the shower.

50. In the submission, the accused does not give any dates of other sexual activity beyond that which is referred to in the evidence of this application. Nevertheless, to the extent that there is other sexual activity that fits the characteristics so identified within the nominated period, in my opinion, it would satisfy the exception in s 294CB(4)(b), if not also s 294CB(4)(a)(i) of the CP Act. Those earlier incidents satisfy the low threshold of relevance to the issues of absence of consent and knowledge in connection with the charged incidents.

51. More than that, however, although there is no indication that the accused has flagged any reliance upon co-incidence evidence, the circumstance that there may be some similarity between the sexual activity giving rise to the offending, and consensual activity as part of the same sexual relationship makes the evidence significantly probative.

52. In my view, the probative value of such evidence will exceed the distress, humiliation and embarrassment that the complainant may likely suffer if evidence of other incidents in the relationship is admitted.

53. Further, given that the complainant has given an account of certain incidents which, according to the argument, resemble the additional incidents that the accused has signalled that he wishes to rely upon, for the purposes of 294CB(6)(b), it would be unfairly prejudicial to the accused if the complainant was permitted to give what might turn out to be a selective account of incidents in her sexual relationship with the accused at a point very proximate to the alleged offending.

Other consensual activities prior to and after 10 and 11 April 2020

54. At paragraph 14 of Counsel for the accused’s written submissions, the accused seeks to rely upon other consensual sexual activities within the broader period he nominates (7 February 2020 to 17 April 2020). This includes:

1. the complainant and the accused were involved in an initial ‘threesome’ with Sarah Robertson prior to 10 – 11 April 2020;

2. the complainant and the accused were involved in a further ‘threesome’ in the days following 10 – 11 April 2020 with another male;

3. that sexual activity between the accused and the complainant, including on 10 – 11 April 2020, often involved the use of prohibited drugs;

4. that the ‘threesome’ on 10 – 11 April 2020:

1. involved all participants streaming pornography;

2. spanned across more than 12 consecutive hours;

3. commenced with the accused repairing the floor while wearing a G-String under the direction of the complainant.

5. That sexual activity between the accused and the complainant regularly involved the use of implements such as ‘dildos’ and ‘vibrators’, as well as bondage practices.

55. I am prepared to accept that such evidence would fall within s 294CB(4)(a)(i) and (ii) and (4)(b).

56. Nevertheless, I generally do not accept that such evidence has probative value or, if it does, that it is so probative as to outweigh the distress, humiliation or embarrassment to the complainant by allowing evidence to be adduced.

57. The complainant’s disclosure of a threesome between the complainant, the accused and Ms Robertson provided context for the subject offending (particularly for count 3) but the general dynamics of their involvement in consensual sexual activity does not constitute a fact in issue, such that evidence of any additional threesome prior to the subject date (10-11 April 2020) is irrelevant or, if relevant, has low probative value.

58. The suggestion (paragraph 14(b) of the accused’s submission) of the complainant’s participation in a threesome involving the accused and another male in the days following the alleged offending is, I think relevant. It satisfies the exception in s 294CB(4)(a)(i) of the CP Act. The accused has indicated that he does not concede to engaging the in the conduct constituting the charges (paragraph 12 of his submissions). There is medical evidence before the Court on the application conducted on 18 April 2020. If there was sexual activity involving the complainant and another man, other than the accused, subsequent to the alleged offending but before the medical examination, it may be relevant to determine whether sexual contact with parts of the complainant’s body was by the accused, or some other person. Further the evidence of the complainant’s willingness to engage in other sexual activity with the accused after the alleged offending, albeit in a threesome with another person, is relevant also to the issues of absence of consent and the accused’s mental state. In my view also, whilst any evidence of another threesome involving a third person other than Ms Robertson is likely to be very embarrassing for the complainant, the probative value of this sexual experience exceeds that, and other distress occasioned in her.

59. As to the suggestion that the threesome between the complainant, the accused and Ms Robertson featuring the frequent use of prohibited drugs (paragraph 14(c)), because of the interconnectedness in time between the threesome involving the complainant, the accused and Ms Robertson, with the subject offending, evidence of this kind falls within s 294CB(4)(a)(ii) of the CP Act. Evidence that any of the participants in that activity, and particularly the complainant, the accused took drugs may have affected their capacity to recall what happened on that day or days and accordingly may affect their credibility and reliability. Although such evidence is prejudicial, it is not plainly any more prejudicial to the accused than it is the complainant and if the accused wishes to test the complainant on the point, he will hardly be able to complain if he is asked about his own ingestion of drugs. Relevant in this regard is that, if it was found that the accused was intoxicated, that would be irrelevant to the element of knowledge on the counts, and the jury would have to be directed about that. If there is any distress, humiliation or embarrassment, it would not arise from the central or core feature of prior sexual activity in itself but only activities incidental to it. I permit the accused to adduce evidence of the kind set out in paragraph 14(c) of his Counsel’s written submission.

60. As to the other features of the ‘threesome’ occurring on 10-11 April, referred to in paragraph 14(d) of the accused’s written submissions, regarding the use of pornography, the duration of the observation of the pornography and what implicitly seems to indicate a suggestion of bondage, this also may be taken to fall within the exceptions in s 294CB(4)(a)(i) and (ii) and arguably s 294CB(4)(b).

61. However, I do not regard evidence of those particular features as having any probative value. An accused has no entitlement, under any of those exceptions, to have carte blanche with a complainant, to involve an inquisition into any kind of proximate sexual activity to the offending. There must still be relevance and, indeed, relevance of activity that is probative. Stimulation to engage in sexual activity because of the observation of pornography, even over a long period, even if it may depict bondage, are not matters that are relevant to the bilateral sexual activity engaged in between the complainant and the accused after the consensual threesome had concluded and Ms Robertson left the complainant’s home. On the complainant’s account, it was the mutual disenchantment as to how she and the accused interacted during the threesome involving Ms Robertson that provided the context for what occurred in the alleged offending. The connection between stimulants to the sexual activity within the threesome and the issues arising in relation to the subject offending is too remote and certainly too remote to outweigh the distress, humiliation or embarrassment that the complainant is likely to suffer should this line of questioning be permitted.

62. This leaves, finally, the accused’s application (in paragraph 14(e) of the accused’s written submissions) to adduce evidence of the regular use of implements such as dildos and vibrators and bondage practices, as part of the sexual relationship and history in the period from 7 February 2020 to 17 April 2020.

63. I am prepared to accept that this evidence falls within the exception in s 294CB(4)(a)(i) and (ii) and 294CB(4)(b).

64. It is to be recalled that count 3 features an allegation of dildo-anal penetration. On the Crown case, based on the complainant’s account, the use of the dildo was attributable to a burst of anger in the accused regarding the sexual dealings as between the complainant and Ms Robertson. However, it is inferred that the accused wishes to adduce evidence to indicate that far from that being his motivation, it was part of regular practice within their sexual relationship proximate to the time of the offending. At paragraph 48 of her first police statement, the complainant said that the dildo was grabbed from inside the shower, in contradistinction to a statement that the accused had brought it into the shower. An available inference is that it was already within the shower recess for ready use (if not necessarily to all kinds of sexual intercourse, or intercourse the subject of count 3). In this way, it is relevant to the issue of consent and the knowledge of absence of consent in relation to count 3. I also accept that evidence of prior use of the dildo at a time proximate to the offending is substantially probative in a way that will exceed the natural distress, humiliation and embarrassment likely to be occasioned to the complainant.

65. I do not, however, accept that evidence about the regular use of vibrators or engagement in bondage practices is either relevant or, if it is, of sufficient probative value to exceed the distress, humiliation or embarrassment that the complainant would likely suffer as a result.

66. The accused has supplied no evidentiary indication that the activity engaged in which made up any of the counts, but especially count 3 was on a par with earlier consensual sexual activities bilaterally engaged in with the complainant, in response to the Crown case that the use of the dildo was forced, and on the Crown case, humiliating circumstances.

67. So, the accused is permitted to ask the complainant about the use of dildos in their sexual relationship, as requested in paragraph 14(e), but not otherwise.

Summary

68. On the Crown’s application, for the purpose of s 294CB(8) and for the foregoing reasons, I find that the nature and scope of the evidence that is admissible is as follows:

1. paragraphs 28 – 30 of the complainant’s first police statement;

2. paragraphs 34 - 41 of the complainant’s first police statement; and

3. paragraphs 49 - 50 of the complainant’s first police statement,

69. On the accused’s application, for the purpose of s 294CB(8) and for the foregoing reasons, I find that the nature and scope of the evidence that is admissible is as follows:

1. detail of the sexual intercourse engaged in as part of the threesome involving the accused, the complainant and Ms Robertson on 10-11 April 2020, before and after the alleged offending;

2. details of any use of prohibited drugs as being incidental to the threesome involving the accused, the complainant and Ms Robertson on 10-11 April 2020, before the alleged offending;

3. (for the avoidance of doubt), questioning about paragraphs 42-51 of the complainant’s first police statement ;

4. details of the sexual intercourse engaged in with the complainant and Ms Robertson on 16 April 2020;

5. details of other sexual intercourse between the complainant and the accused bearing the characteristics identified in paragraph 12 of the accused’s written submissions in the period from 7 February 2020 to 17 April 2020, including the use of dildos;

6. details of any sexual intercourse engaged in as part of a threesome involving the accused, the complainant and another man in the days following 10-11 April 2020 before 17 April 2020.

70. I have, in the reasons, indicated particular areas where cross-examination is to be excluded. The foregoing statement of the proposed scope of questioning is intended to apply strictly with reference to the exclusions I have indicated.

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Decision last updated: 28 June 2022