R v Remington

[2021] NSWDC 380

District Court

New South Wales

Medium Neutral Citation:

R v Remington [2021] NSWDC 380

Hearing dates:

31 May 2021

Date of orders:

4 June 2021

Decision date:

04 June 2021

Jurisdiction:

Criminal

Before:

Grant DCJ

Decision:

Application allowed.

Leave granted to the defence to cross examine on the topics (i) – (v) outlined at paragraph [4].

Catchwords:

Criminal Law - s293 Criminal Procedure Act - admissibility of evidence relating to sexual experience - probative value of evidence – exclusionary rule

Legislation Cited:

Criminal Procedure Act 1986

Crimes Act 1900

Evidence Act 1995

Cases Cited:

Decision Restricted [2021] NSWCCA 51

R v Burton [2013] NSWCCA 335

R v Morgan (1993) 30 NSWLR 543; 67 A Crim R 526

R v White (1989) 18 NSWLR 332

Category:

Procedural rulings

Parties:

Regina (Crown)

T Remington (Accused)

Representation:

Counsel:
S Hall (Accused)
P Kerr (Crown)

Solicitors:
M Cronin (Accused)
M Coleman (DPP)

File Number(s):

2020/00033035

Publication restriction:

Statutory non-publication order re name of complainant and any information that may identify them.

Judgment

Introduction

1. Australia Day for some is a day of celebration. For others it is a day of shame. In Albury on Sunday 26 January 2020 it was a day of celebration at Wellington Drive, Thurgoona. Flags were flying, alcohol was flowing, the barbeque was alight. There were about 20 people attending the party. The complainant attended the party with a girlfriend. She asserts that the accused committed a number of non‑consensual sexual acts upon her. The specific allegations are:

1. Digital penetration.

2. Second digital penetration.

3. Fellatio.

4. Second fellatio.

5. Penile-vaginal intercourse.

2. The accused told police there was a single episode of consensual activity between he and the complainant involving fellatio. He denied the allegations made by the complainant. The complainant states that following repeated sexual assaults upon her she returned to the party, engaged in party games, engaged in the consumption of alcohol and engaged in conversations with a number of people at the party.

3. The complainant, as a result of her conduct, was asked to leave the party because she was causing trouble. As she was being forced out of the house she threw a vodka cruiser bottle down the hallway. The complainant called Trent O’Keefe. He picked her up. They went home together and had unprotected sex. Her explanation for having sex was that she:

“Felt awful as a result of this incident and just wanted to feel good again with someone who cared about me and didn’t force me.”

4. The accused, by notice of motion dated 4 March 2021, seeks leave to cross‑examine the complainant (s293(4)(a) and s293(6) of the Criminal Procedure Act) about the following:

1. Her interest in having a sexual experience during the party where the allegations were said to take place.

2. Her efforts to ensure she did have a sexual experience during the party.

3. Her having unprotected sexual intercourse with Mr O’Keefe after leaving the party.

4. The likelihood of her engaging in sexual intercourse given what she says she experienced at the party.

5. The likelihood of her engaging in sexual intercourse after the party with a person who was no more than a friend who had come to pick her up and drive her home, given what she says she experienced at the party.

CONSIDERATION

5. The following questions arise for determination:

1. Is the evidence relevant?

2. If relevant, is it caught by the exclusionary rule in s 293 of the Criminal Procedure Act?

3. If so, does the evidence qualify as an exception to the exclusionary rule under s 293(4)?

4. If so, does the probative value of the evidence outweigh any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission?

QUESTION 1: RELEVANCE

6. Simpson J, as she then was, in R v Burton [2013] NSWCCA 335 (RA Hulme and Barr AJ agreeing) at [62] held that the starting point for determining the admissibility of evidence is under s 56 of the Evidence Act. Evidence is relevant:

“If accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings”; s 55, Evidence Act.

7. In R v Morgan (1993) 67 A Crim R 526 the complainant alleged that the appellant, who was a friend of her boyfriend, raped her. That was denied. Counsel for the appellant sought to cross‑examine the complainant by putting to her that within about an hour of the alleged rape she had sexual intercourse with her boyfriend and made no complaint of anything being wrong.

8. The trial judge did not permit such cross-examination. The Court allowed the appeal. The line of questioning was relevant and was not excluded by s 409B (the predecessor to the current section), and it was covered by s 409B(3)(a). Gleeson CJ said at 527:

“I agree that the material which the cross-examiner wanted to put to the claimant as to her having sexual intercourse with her boyfriend about an hour after the alleged offence had been committed by the appellant could have been regarded by a jury as having a bearing upon the central issue of fact at the trial, and was therefore relevant.”

9. The appellant submitted that if it were shown that within an hour or two of the time when the offence was alleged to have been committed the complainant had sexual intercourse with Mr Holt, it was relevant to the issue of forced intercourse. The appellant submitted the jury could, from that fact, infer that it was less likely that the offence had been committed than absent that evidence it would have been. Mahony JA said at 532:

“…whether this is so, depends upon what is the human experience as to this matter or what the jury would conclude to be such. It is a matter on which minds may differ. Women may have a view different from men; different women and different men may differ from others.”

10. His Honour concluded at 533:

“There are, as I have suggested, limits to what it is open to a jury to find in this regard; Courts will not allow inferences to be drawn when they cannot be drawn. I am inclined to the view that, at least since the investigations of such as Kinsey, the boundaries of what is usual conducted in sexual matters are seen to be wide indeed. But I do not think I should conclude that it would not be properly open to a jury of men and women to conclude that for her to have such sexual intercourse an hour or two after forced intercourse is, in the relevant sense, unlikely or contrary to human experience. For these reasons, proof by cross-examination of such sexual intercourse would have been relevant.”

11. I am satisfied that the complainant engaging in sexual intercourse with Mr O’Keefe within a short time of alleged forced intercourse is, in the relevant sense, unlikely or contrary to human experience and it is therefore relevant for the jury’s consideration.

QUESTION 2: IS THE EVIDENCE CAUGHT BY THE EXCLUSIONARY RULE OF S 293 OF THE CRIMINAL PROCEDURE ACT?

12. Section 293 is a complex and much-criticised provision. It has repeatedly been the subject of judicial calls for reform, including the period between 1991 and 1996 by Gleeson CJ, Brennan CJ, Kirby P, McHugh J and (speaking of the Canadian equivalent) McLaughlin J, where her Ladyship said that the legislation;

“Offends the principles of fundamental justice underlying a fair criminal trial”; Decision Restricted [2021] NSWCCA 51 at [4].

13. The Crown relies upon what was said by Simpson J in R v Burton (supra) at [70] where her Honour said;

“…s 293 was introduced into the legislation (originally as s 409B of the Crimes Act 1900) for the specific purpose of putting an end to offensive and demeaning cross-examination, but proceeded on the basis that evidence of consent by a person (then invariably female) to sexual engagement with a person (person A) provided the foundation for an inference that the person also consented to sexual engagement with another person (person B). That process of reasoning has been banned from criminal courts, first by s 409B of the Crimes Act and subsequently by s 293 of the Criminal Procedure Act…”

14. The object of the legislation was considered in R v White (1989) 18 NSWLR 332 where the following was said of the progenitor s 409B at 340;

“The evident purpose of the legislation is to limit the circumstances in which the complainants in sexual assault cases will have to endure having what might otherwise be personal and sensitive matters made public knowledge by virtue of evidence given in court.”

15. The exclusionary rule captures the evidence.

QUESTION 3: DOES THE EVIDENCE QUALIFY AS AN EXCEPTION TO THE EXCLUSIONARY RULE UNDER S 293(4)?

16. The operation of s 293 is complicated. Read literally, it applies to a wide range of evidence, including evidence which implies that the complainant may have taken part in any sexual activity or may not have taken part in any sexual activity. If the exception in s 293(4)(a) is involved, then it is necessary to establish both limbs in sub paragraphs (i) and (ii) and, further, for the probative value of the evidence to outweigh the distress, humiliation or embarrassment to the complainant. It is established that the exclusions from the prohibition of s 293(4) are to be construed liberally: Decision Restricted (supra) at [55].

17. Ms Hall, who appears on behalf of the accused relies upon what was said by Gleeson CJ in Morgan (supra). The Chief Justice in the circumstances of that case found no difficulty in regarding the events of that evening as, “One connected set of circumstances”, at 644. His Honour noted that:

“…no narrow approach should be taken to that part of the statutory provision which permits its reception”: at 527.

18. Contrary to the Crown’s submission, I am satisfied that the evidence of the party and consensual intercourse within a short period after the party falls within the ordinary meanings of each of the subparas (i) and (ii) of s 293(4)(a).

QUESTION 4: DOES THE PROBATIVE VALUE OF THE EVIDENCE OUTWEIGH ANY DISTRESS, HUMILIATION OR EMBARRASSMENT THAT THE COMPLAINANT MIGHT SUFFER AS A RESULT OF ITS ADMISSION?

19. This is another aspect of the provision which has been regarded as problematic: see Mahony JA’s criticism in Morgan at 534 to 536 (Decision Restricted at [62]). The probative value is high. The relevant distress, humiliation or embarrassment is the distress, humiliation or embarrassment over and above that which will inevitably occur: see Mahony JA in Morgan at 536 to 537.

20. The identity of the complainant cannot be revealed by reason of statute. Her evidence will be taken in a closed court. She will give evidence by an AVL link. She will be unable to see the accused or the jury. All of these matters would tend to diminish the distress, humiliation and any embarrassment she would suffer.

ORDERS

21. I allow the application and grant leave for Ms Hall to cross‑examine the complainant on topics (i) to (v) set out in her written submissions dated 4 March 2021 and marked MFI # 1.

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Decision last updated: 05 August 2021