R v Paatero

[2025] NSWDC 108

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 Bauer (2018) 92 ALJR 846

R v Le [2000] NSWCCA 49

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

1. 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.

2. 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

3. 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.

4. 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 on the part of the complainant to ejaculate inside her without wearing a condom. That in the circumstances, it was reasonable for the accused to believe that the complainant was consenting to sexual intercourse with no condom.

5. It is the Crown case that whilst there was a conversation between the accused and the complainant, in which the complainant agreed to the accused ejaculating inside her, the complainant's consent was on the clear belief that at the time such consent was given the accused was still wearing a condom. The complainant maintains that at no time did she give the accused consent to have sexual intercourse with her whilst the accused was not wearing a condom.

6. The events following this encounter are generally not in dispute and some of the ongoing communication between the accused and the complainant is recorded in various text messages exchanged between them.

7. In written submissions, the Crown helpfully set out the sequence of events, reproduced below, supplemented by additional facts identified in the written submissions on behalf of the accused: –

1. After the accused had ejaculated in the complainant, she noticed that the accused did not have a condom on.

2. It is the complainant’s evidence that she said to the accused, “Where is the protection (or condom?)”, to which the accused replied, “I removed it, I couldn’t feel anything.”

3. It is the complainant’s evidence that there was argument and that she asked the accused to leave. She told him that it was a consent issue. Both eventually fall asleep.

4. The next morning, 19 June 2022, the complainant tells her flatmate Joy Yacoub about what happened with the condom.

5. There is a further episode of consensual sexual intercourse between the complainant and the accused, with the complainant insisting that the accused wears a condom.

6. The complainant and the accused go together to “The Kiosk” at Rushcutters Bay to have breakfast where the complainant paid for the accused’s breakfast.

7. After exchanging numbers over breakfast, the accused sent the complainant a photo on Instagram and they both spoke back and forth via text message. In the complainant’s statement, she stated she thought he had just made a mistake and was willing to let it slide.

8. Over the following days, the accused and the complainant exchange text messages.

9. On Monday, 20 June 2022 the complainant attends her local GP to get a STD test. Whilst waiting at the doctor’s surgery, the complainant conducts some internet research on ‘removing condom during sex’ and discovers that it is called ‘Stealthing’.

10. The complainant’s friend Samantha Carberry tells the complainant that ‘Stealthing’ is an offence.

11. The complainant sends the accused an article that ‘Stealthing’ constitutes a sexual assault offence.

12. The complainant receives a telephone call from the accused at about 5.30pm that afternoon during which he tells her that he is the carrier of genital herpes:

Complainant: “It is an offence, you can’t do this to people, if you do it to someone else, they will report you.”

Accused: “Since you were honest with me, I’ll be honest with you. You know people get cold sores, well I have it down there.”

Complainant: “Are you freaking kidding me, you’re telling me that you have genital herpes and you removed the condom knowing you have it.”

Accused: “There is so much stigma behind it, people can live with it and happy lives.”

The complainant terminated the phone call.

13. There was further text message exchange between the complainant and the accused.

14. The complainant has a conversation with Joy Yacoub about the incident and they decide to contact the accused to find out more about his health situation. A 15-minute phone call ensues during which the phone is put on loudspeaker. They talk about the statistics of the infection and Joy asks the accused, “Do you have any lesions and when was your last outbreak?” To which the accused replies, “About 4 months ago. I was really drunk, and I could not do it without taking the condom off.”

15. Within hours of the accused’s disclosure that he had genital herpes, the complainant contacts Paddington police station and makes a report.

8. On 21 June 2022 the accused was arrested and cautioned as to his right to silence. The accused thereafter voluntarily answered a series of questions from investigating police which were recorded on body worn video, a transcript being in evidence on the voir dire.

9. The following questions and answers were recorded:

Q: Throughout the sexual intercourse, you have removed the condom and then you’ve ejaculated in her

A: As per her request

Q: Per her request, but she was not of the knowledge that you removed the condom

A: Um, see I was quite intoxicated on the night and I remember telling her that I lost erection and I can’t feel her, and the type of person I am, I was worried about you know not being able to please her, and I’m not sure if I told her if I removed the condom but it was without any malicious intent, it was in the good intention of being able to please her. Which then we continued the act

Q: And then you asked her if you could, and she said yes?

A: Yes, and she said it’s alright don’t worry about it you can cum inside me, and being that drunk in my head I don’t even know what I thought

Q: So, the allegation is that, at no time you told her that you removed the condom, and she wouldn’t have consented to the sex if you didn’t remove the condom. Do you understand what I’m saying?

A: I understand what you’re saying. I can’t remember all of the facts

Q: So, you don’t know if you told her

A: No, I don’t know if I told her

...

Q: So, the question I need to ask you is, why if you know that you have an infectious disease would you remove the condom, and continue having sex regardless?

A: Been drunk and stupid and not thinking straight, in the heat of the moment

…

Q: There still is a chance though

A: There is a chance and she told me, first she told me she was not going to report it. She gained my trust and I felt comfortable enough to disclose and tell her that I actually take medication, and she got upset and she changed her mind

Q: I think it was a bit of a tipping point that she found out, I think she was possibly upset still and about you not telling her you took the condom off

A: She even told me, I gave you a free pass why didn’t you take it and I was like well I don’t know what you mean by free pass because I think I did the right thing about telling her so that she would be equipped to know

The Crown submissions

10. The Crown contends that the evidence is relevant to the following issues: –

1. It provides full context for the events that occurred after the alleged offending, including the reason the complainant ultimately reported the matter to police on the evening of 20 June 2022.

2. Whether the complainant consented to the accused engaging in sexual intercourse with her whilst not wearing a condom.

3. Whether the accused knew that the complainant did not consent to the continuation of sexual intercourse without a condom, particularly given the provisions contained in Part 3 Division 10 Subdivision 1A of the Crimes Act.

11. The Crown further contends that the accused's voluntary, free and unprompted representation to the complainant on 20 June 2022 that he had genital herpes constituted an admission pursuant to s 81(1) of the Evidence Act as an out-of-court representation against his interest.

12. Further, the Crown contended, by reference to s 137 of the Evidence Act, that the evidence taken at its highest was probative to a significant extent given the issues in the trial when considered in conjunction with other evidence. The Crown contended that there was no real possibility the tribunal of fact would impermissibly use the evidence in circumstances where they would be directed as to its permissible use confined to its relevance being whether the complainant consented to the sexual intercourse, the state of mind of the accused at the time of the alleged offence and the context as to how the complaint unfolded. The tribunal of fact would be directed in strong terms not to use the evidence to form a moral judgement as to the accused's character and it is assumed such directions would be followed. Further, the Crown would lead evidence that the accused did not infect the complainant given the negative result returned following testing.

The accused’s submissions

13. Counsel for the accused conceded the evidence was relevant to provide context to the sequence of events leading to the complainant reporting the matter to police. To this extent it had some relevance to the issue that the complainant did not consent to the act of intercourse whilst the accused was not wearing a condom.

14. However, the central contention on behalf of the accused was that it could not be relevant to the issue of whether the accused knew the complainant was not consenting to sexual intercourse whilst the accused was not wearing a condom.

15. Counsel for the accused conceded, given the terms of ss 61HF and 61HI-HK of the Crimes Act, that it was incumbent on the accused to engage with the complainant in ongoing and mutual communication, if necessary, whilst engaged in sexual intercourse. In particular, counsel acknowledged that, in circumstances where the complainant consented to sexual intercourse on the condition the accused would wear a condom, it was necessary that the accused in effect seek the complainant’s consent to engage in further sexual intercourse without wearing a condom. To that end, it is the accused’s case that by asking the complainant if he could “finish” in her he was in effect seeking permission to ejaculate inside the complainant without wearing a condom. To that extent counsel for the accused conceded that it was a matter for the jury as to whether the complainant's agreement to allow the accused to “finish" inside her, without explicit reference to the condom, was sufficient for the accused to believe that the complainant was consenting to further sexual activity whilst not wearing a condom.

16. However, it was contended that given the condition from which the accused suffered (herpes virus) was not a reportable condition pursuant to section 79(1) of the Public Health Act 2010 (NSW) (requiring a person to take reasonable precautions against the spreading of the condition), the accused was not obliged to inform the complainant he suffered from that condition as part of the ongoing and mutual communication contemplated in s 66HF(c) of the Crimes Act; ipso facto it is irrelevant to a fact in issue as to the reasonableness of the accused’s belief that the complainant was consenting to sexual intercourse whilst the accused was not wearing a condom. Rather, the accused contended that the question of whether the accused should have made the disclosure to the complainant about this condition at the time of engaging in the sexual intercourse called for a moral judgment such that it was not relevant. Further, the jury would be invited to make a moral judgement on the accused which was impermissible and incapable of being rectified by any direction.

17. Counsel submitted that the present circumstance was analogous to a person who previously had a cold sore on their mouth, being a symptom of herpes simplex. There would be no obligation to disclose that fact to a person with whom they intended to engage in oral sex. Further, it was submitted that the fact the accused had not been symptomatic for several months abrogated the accused from any obligation to disclose his infection to the complainant.

Consideration

18. As conceded by counsel for the accused, the fact that the accused was infected with the herpes virus at the time of the sexual intercourse, and his report of this to the complainant, prompting the immediate reporting to police, is relevant to provide context to the complaint generally. By extension, it is therefore relevant to a fact in issue, that is whether the complainant consented to the accused having sexual intercourse with her whilst not wearing a condom given her interactions with the accused thereafter.

19. The more significant issue is whether the accused being infected with the herpes is relevant to the Crown case that the complainant did not consent, and that the accused knew that the complainant did not consent, to sexual activity at a time when the accused was not wearing a condom.

20. Section 61HI of the Crimes Act provides that a person who consents to a particular sexual activity is not, by reason only of that fact, to be taken to consent to any other sexual activity. The example provided by the legislature immediately following this provision is the very issue in the present trial: –

“A person who consents to a sexual activity using a condom is not, by reason only of that fact, to be taken to consent to sexual activity without using a condom."

21. Section 61HJ provides for circumstances in which there is no consent. Relevantly, section 61HJ(1)(i) provides that a person does not consent to a sexual activity if the person “participates in the sexual activity because the person is mistaken about the nature of the sexual activity”.

22. Section 61HK relevantly provides as follows: –

61HK   Knowledge about consent

1. A person (the accused person) is taken to know that another person does not consent to a sexual activity if—

1. the accused person actually knows the other person does not consent to the sexual activity, or

2. the accused person is reckless as to whether the other person consents to the sexual activity, or

3. any belief that the accused person has, or may have, that the other person consents to the sexual activity is not reasonable in the circumstances.

2. Without limiting subsection (1)(c), a belief that the other person consents to sexual activity is not reasonable if the accused person did not, within a reasonable time before or at the time of the sexual activity, say or do anything to find out whether the other person consents to the sexual activity.

3. …

4. …

5. For the purposes of making any finding under this section, the trier of fact—

6. must consider all the circumstances of the case, including what, if anything, the accused person said or did, and

7. must not consider any self-induced intoxication of the accused person. (Emphasis added)

23. The provisions contained in Subdivision 1A must be considered in the context of its objective provided in s 61HF as follows:

61HF   Objective

An objective of this Subdivision is to recognise the following—

1. every person has a right to choose whether or not to participate in a sexual activity,

2. consent to a sexual activity is not to be presumed,

3. consensual sexual activity involves ongoing and mutual communication, decision-making and free and voluntary agreement between the persons participating in the sexual activity.

24. Section 61HI(1) provides that a person consents to sexual activity if, at the time of the sexual activity, the person freely and voluntarily agrees to the sexual activity.

25. Applying the provisions to the facts in the present trial, it required the complainant to freely and voluntarily agree to the accused inserting his penis, without a condom, into the complainant's vagina, and whilst inserted, ejaculating (‘the sexual activity’). Whether there was a free and voluntary agreement to engage in this sexual activity must be considered whilst mindful of the complainant’s right to choose whether or not to participate in this activity, requiring ongoing and mutual communication between the complainant and the accused. In the context of s 61HI(5) this involved consent to engage in sexual activity beyond what was previously agreed, being penile vaginal intercourse only whilst the accused was wearing a condom; in effect engaging in protected intercourse.

26. The tribunal of fact, in this case a jury, will be required to determine whether the accused knew the complainant was not consenting to the sexual activity previously articulated. Section 61HK provides that the element of knowledge is satisfied if:

1. the accused actually knew the complainant did not consent; or

2. the accused was reckless as to whether the complainant consented to the sexual activity; or

3. any belief that the accused has or may have that the complainant consented to that sexual activity was not reasonable in the circumstances.

27. Section 61HK(2) provides that an accused’s belief “is not reasonable if the accused did not, within a reasonable time before or at the time of the sexual activity, say or do anything to find out whether the other person consented to the sexual activity”. Section 61HK(5) mandates that the jury, when making a finding as to the accused's knowledge of the complainant's consent, “must consider all of the circumstances of the case including what, if anything, the accused person said or did." (emphasis added)

28. Section 55 of the Evidence Act provides as follows:

55   Relevant evidence

1. The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.

2. In particular, evidence is not taken to be irrelevant only because it relates only to—

1. the credibility of a witness, or

2. the admissibility of other evidence, or

3. a failure to adduce evidence

29. In R v Le [2000] NSWCCA 49 at [19], Sully J (with whom Hulme and Hidden JJ agreed) observed that s 55 was couched in "very broad language" suggesting “a wide rather than narrow focus to the enquiry whether a proffered piece of evidence has a rational potential which s 55 requires.”

30. In R V SG [2017] NSWCCA 202 Bellew J (with whom Hoeben CJ McCallum J agreed) at 29 said:

“The use of the word “could” in s. 55 means “it is possible that it may”. It follows that s. 55 is to be given a wide interpretation: Nye v State of New South Wales & ors [2002] NSWSC 1270 at [13]. The width of the section is also reflected in the fact that the effect of the evidence on the assessment of the relevant probability (namely the probability of the existence of a fact in issue) may be direct or indirect: Zaknic Pty Limited v Svelte Corp Pty Limited (1995) 140 ALR 701; [1995] FCA 1739 at [11]. Consistent with this approach, in IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14, the majority (French CJ, Kiefel, Bell and Keane JJ) said (at [38]):

[38] By s 55, evidence is relevant if it "could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding." There can be no doubt that the reference to the effect that the evidence "could" have on proof of a fact is a reference to the capability of the evidence to do so. The reference to its "rational" effect does not invite consideration of its veracity or the weight which might be accorded to it when findings come to be made by the ultimate finder of fact.”

31. Knowledge as required by s 61HK is ultimately a matter for the jury as the trier of fact, having considered all the prevailing circumstances including what, if anything, the accused said or did to find out whether the complainant consented to the particular sexual activity in which he engaged. I do not accept the accused's submission that the fact the accused was infected with the herpes virus was not a relevant circumstance in determining whether the accused knew the complainant was not consenting to the relevant sexual activity.

32. The mere fact that the herpes virus with which the accused was infected was not a notifiable disease for the purposes of the offence provision contained in section 79 of the Public Health Act does not render it, by reason of that fact alone, to be an irrelevant circumstance for the purposes of s 61HK(5) of the Crimes Act. Further, it is unhelpful to approach the question by reference to hypothetical circumstances which are different to the evidence in the present trial. Such approaches are inconsistent with the language and spirit of Subdivision 1A, and more particularly, s 61HK(5). There can be no absolute or unqualified rule which is uniformly applied to all such cases.

33. As was observed in the Second Reading speech on 12 November 2021 by the Hon. Natalie Ward: –

"In the context of subdivision 1A, all circumstances of a sexual encounter must be taken into account by the prosecution when determining whether to charge a person with a sexual offence, and later by the trier of fact in assessing whether an accused is guilty of an offence beyond reasonable doubt". (emphasis added)

34. The relevant circumstances of the sexual encounter between the complainant and the accused included the fact that the complainant only agreed to penile vaginal intercourse on the condition that it would be protected sexual intercourse through the accused's use of a condom. The parties engaged in protected intercourse. The accused subsequently wished to engage in ongoing penile vaginal intercourse after removing the condom and with the stated intention of ejaculating inside the complainant. The accused intended to engage in such unprotected sexual intercourse knowing at the time he was infected with a sexually transmissible disease.

35. Given that consensual sexual activity involves ongoing and mutual communication, and it is incumbent upon the trier of fact to consider all of the circumstances, including what if anything the accused person said or did, I am satisfied that the accused suffering from viral herpes is a relevant circumstance which a jury, properly instructed, would be entitled to take into account in determining whether the complainant consented to the sexual activity and whether the accused knew that the complainant was not consenting.

36. I do not accept that the fact that the accused had been, in effect, asymptomatic for several months rendered the underlying infection of no relevance. To the contrary, it would be open to the jury to consider that the failure of the accused to disclose the infection denied the complainant the opportunity to engage in further communication with the accused as to the infection, enabling her to decide, freely and voluntarily, whether to engage in the intended sexual activity. Further, it would be open to the jury to find that the accused was reckless as to whether the accused consented to the sexual activity, or that any belief as to consent was not reasonably held, in circumstances where he failed to disclose the infection, thereby denying the complainant the opportunity to make further inquiry.

37. Further, the Crown relies upon the accused's disclosure to the complainant that he was infected with the herpes virus on the evening of 20 June 2022 as an admission. Admission is defined in the Dictionary of the Evidence Act as meaning a previous representation that is: (a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding); and (b) adverse to the person's interest in the outcome of the proceeding.

38. I am satisfied that the accused's disclosure does constitute an admission in circumstances where the accused determined, at some point after engaging in unprotected sexual intercourse with the complainant, that it was relevant to tell the complainant that he suffered from the condition. The jury, as the trier of fact, would be entitled to consider this admission as a relevant circumstance of the case (s 61HK(5)) in determining whether the accused knew the complainant did not consent to the sexual activity including, relevantly, whether he was reckless as to whether the complainant consented to the sexual activity, or whether any belief that he may have had in this respect was reasonable in the circumstances.

39. Having determined the evidence is relevant, it is necessary to consider whether its probative value is outweighed by the danger of unfair prejudice to the defendant. If the court so finds, the evidence must not be admitted (s 137 of the Evidence Act).

40. Probative value is defined in Dictionary as "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue". The assessment of the probative value of the evidence does not require an evaluation of the credibility or reliability of the evidence, being matters properly left to the jury if admitted: IMM v the Queen (2016) 257 CLR 300. The possible use to which the evidence might be put is to be taken at its highest: R v Riley, Christopher [2020] NSWCCA 283.

41. For the reasons enunciated as to the relevance of the evidence I am satisfied that the evidence has significant probative value. It is a relevant circumstance which the jury is entitled to take into account in determining whether the complainant consented to the sexual activity and whether the accused knew that the complainant was not consenting to the sexual activity within the terms of section 61HK of the Crimes Act.

42. The accused contends that the evidence is highly prejudicial in that the jury may engage in improper reasoning that the accused’s behaviour in engaging in unprotected sexual intercourse without disclosing he had genital herpes was morally questionable.

43. In determining the danger of unfair prejudice to the defendant the court must consider whether or not any danger of unfair prejudice could be adequately addressed by judicial direction to the jury: R v Bauer (2018) 92 ALJR 846.

44. Whilst I accept that there is a possibility the jury might engage in such reasoning, a carefully worded direction at the time the evidence is introduced and again in final directions to the jury that the jury must not do so, and that the evidence is admitted for limited purposes, in my view can adequately address any risk of the jury engaging in such improper reasoning. Further, in the event the Crown was to open to the jury on this fact, the direction would also be given immediately after the opening.

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.

Decision last updated: 02 April 2025