R v Paterson (No 3) - [2014] NSWSC 57

Supreme Court

New South Wales

Medium Neutral Citation: R v Paterson (No 3) [2014] NSWSC 57
Hearing dates: 10 February 2014
Decision date: 10 February 2014
Before: Bellew J
Decision:
1. The evidence is admitted.

Catchwords: CRIMINAL LAW - Evidence of sexual reputation and experience - whether evidence admissible
Legislation Cited: Criminal Procedure Act 1986
Cases Cited: R v Paterson [2014] NSWSC 29
Category: Procedural and other rulings
Parties: Regina - Crown
Rodney Paterson - Accused
Representation: Counsel:
Mr K McKay - Crown
Mr J Stratton SC and Ms B O'Reilly - Accused
Solicitors:
Solicitor for Public Prosecutions (NSW) - Crown
Peter Murphy - Accused

File Number(s): 2011/248808
Publication restriction: NIL

Judgment

Prior to the empanelment of the jury in this matter Mr Stratton SC, who appears on behalf of the accused, raised an issue concerning the operation of s 293 of the Criminal Procedure Act 1986 ("the Act") which is in the following terms:

293 Admissibility of evidence relating to sexual experience

(1) This section applies to proceedings in respect of a prescribed sexual offence.

(2) Evidence relating to the sexual reputation of the complainant is inadmissible.

(3) Evidence that discloses or implies:

(a) that the complainant has or may have had sexual experience or a lack of sexual experience, or

(b) has or may have taken part or not taken part in any sexual activity, is inadmissible.

(4) Subsection (3) does not apply:

(a) if the evidence:

(i) is of the complainant's sexual experience or lack of sexual experience, or of sexual activity or lack of sexual activity taken part in by the complainant, at or about the time of the commission of the alleged prescribed sexual offence, and

(ii) is of events that are alleged to form part of a connected set of circumstances in which the alleged prescribed sexual offence was committed,

(b) if the evidence relates to a relationship that was existing or recent at the time of the commission of the alleged prescribed sexual offence, being a relationship between the accused person and the complainant,

(c) if:

(i) the accused person is alleged to have had sexual intercourse (as defined in section 61H (1) of the Crimes Act 1900 ) with the complainant, and the accused person does not concede the sexual intercourse so alleged, and

(ii) the evidence is relevant to whether the presence of semen, pregnancy, disease or injury is attributable to the sexual intercourse alleged to have been had by the accused person,

(d) if the evidence is relevant to:

(i) whether at the time of the commission of the alleged prescribed sexual offence there was present in the complainant a disease that, at any relevant time, was absent in the accused person, or

(ii) whether at any relevant time there was absent in the complainant a disease that, at the time of the commission of the alleged prescribed sexual offence, was present in the accused person,

(e) if the evidence is relevant to whether the allegation that the prescribed sexual…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] NSWSC 57
Decision Date: 10 February 2014

CaseChat Overview and Summary

In the case of R v Paterson (No 3), the respondent appealed a conviction for indecent assault against a child under the age of ten years. The appeal concerned the admissibility of certain evidence. The appeal was heard in the High Court of Australia. The respondent argued that evidence of the sexual reputation and experience of the complainant should not have been admitted by the trial judge.

The legal issue before the court was whether evidence of a complainant's sexual reputation and experience is admissible in criminal trials for sexual offences. The court considered whether such evidence is relevant to the facts in issue and whether its probative value outweighs any prejudicial effect it may have. The court also examined whether the evidence should be excluded under any of the common law rules concerning the admissibility of character evidence.

The court held that evidence of a complainant's sexual reputation and experience is not admissible in criminal trials for sexual offences. The court found that such evidence is not relevant to any fact in issue in the case and its prejudicial effect substantially outweighs any probative value it may have. The court emphasised that the law in this area is well-established and that the trial judge should not have admitted the impugned evidence. The court quashed the conviction and ordered a retrial.

Orders