District Court
New South Wales
Medium Neutral Citation: R v Paatero [2025] NSWDC 108 Hearing dates: 1 April 2025 Date of orders: 2 April 2025 Decision date: 02 April 2025 Jurisdiction: Criminal Before: Fitzsimmons SC DCJ Decision: [45] In the circumstances, the notice of motion filed 26 March 2025 is dismissed and the evidence that the accused was infected with herpes virus at the time of the sexual intercourse is admissible.
Catchwords: CRIME — Pre-trial ruling — Sexual offence proceedings — Admissibility of evidence related to sexually transmitted infection — Accused removed condom during consensual sexual intercourse — Accused infected with herpes virus — Application of Part 3 Division 10 Subdivision 1A of the Crimes Act — Change to circumstances in which consent was given — Whether complainant consented to removal of condom — Whether accused knew complainant not consenting — Recklessness — Reasonable belief
Legislation Cited: Crimes Act 1900 (NSW)
Evidence Act 1995 (NSW)
Public Health Act 2010 (NSW)
Cases Cited: IMM v the Queen (2016) 257 CLR 300
R v Riley, Christopher [2020] NSWCCA 283
R V SG [2017] NSWCCA 202
Texts Cited: New South Wales, Parliamentary Debates, Legislative Council, 12 November 2021, 6632 (Natalie Ward, Minister for Sport, Multiculturalism, Seniors and Veterans).
Category: Procedural rulings Parties: Crown, Paatero Representation: Crown: R Murray
Defence: P Hogan
File Number(s): 2022/00180906
JUDGMENT
The accused’s application
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By notice of motion filed 26 March 2025 the accused sought an order in the following terms:
That the body of evidence that the accused was infected with herpes virus at the time of sexual intercourse, and that he disclosed that condition to the claimant on 20 June 2022, be excluded from the trial.
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The affidavit of Michael Bellingham solicitor dated 26 March 2025 was read without objection. The affidavit noted that the objection was pursuant to ss 135 and 137 of the Evidence Act 1995 (NSW). The basis of the evidence would be unfairly prejudicial to the accused, irrelevant to the issues in the case and should be excluded from the trial. Whilst the accused in written submissions contended that the evidence was irrelevant, in oral submissions Counsel conceded that the evidence overcame the relevance threshold provided in s 55 of the Act.
The trial issues
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The accused is charged with one count of sexual intercourse without consent contrary to section 61I of the Crimes Act 1900 (NSW). The Crown case is that the accused removed the condom during consensual sexual intercourse without the complainant's consent. The accused does not deny that he had sexual intercourse with the complainant and that during the intercourse he removed the condom and thereafter ejaculated inside the complainant’s vagina.
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It is the defence case that after sexual intercourse with the condom the accused received an affirmative answer when he asked the complainant words to the effect “Can I finish inside you?" It is contended by the accused that this was tantamount to consent…
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- AGLC
- R v Paatero [2025] NSWDC 108
- Case
- [2025] NSWDC 108
- Decision Date
CaseChat Overview and Summary
The court needed to decide whether the complainant had consented to the removal of the condom and whether the defendant knew or should have known that the complainant was not consenting to the removal. The central legal issue was whether the defendant's actions constituted recklessness, as defined by the Act, and whether there was a reasonable belief that the complainant had consented. The court had to interpret the statutory provisions to determine the admissibility of the evidence in question and its relevance to the defendant's knowledge and intent.
The court examined the evidence and statutory provisions to conclude that the complainant did not consent to the removal of the condom. The defendant was deemed to have acted recklessly because he knew he had the herpes virus but proceeded to remove the condom without ensuring the complainant was informed and consenting. The court found that the defendant did not have a reasonable belief that the complainant was consenting to the removal, leading to the conclusion that the evidence of the defendant's infection was admissible. This evidence was crucial in establishing the defendant's state of mind and intent at the time of the offence.
The court dismissed the notice of motion filed on 26 March 2025, ruling that the evidence concerning the defendant's infection with the herpes virus at the time of the sexual intercourse was admissible. This decision underscored the importance of informed consent in sexual offences and the need for the accused to take reasonable steps to ensure that their partner is fully aware of the risks involved.
Orders
Orders of the court
[45] In the circumstances, the notice of motion filed 26 March 2025 is dismissed and the evidence that the accused was infected with herpes virus at the time of the sexual intercourse 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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