R v Whatman

[2020] NSWDC 562

District Court

New South Wales

Medium Neutral Citation:

R v Whatman [2020] NSWDC 562

Hearing dates:

04 September 2020

Date of orders:

09 September 20202

Decision date:

09 September 2020

Jurisdiction:

Criminal

Before:

Grant DCJ

Decision:

The evidence sought to be cross-examined on is irrelevant. It is caught by the exclusionary rule and does not qualify as an exception to the exclusionary rule under s 293(4).

Catchwords:

CRIMINAL PROCEDURE- application by accused to cross-examine complainant - Section 409B Crimes Act – sexual intercourse without consent

Legislation Cited:

Crimes Act 1900

Criminal Procedure Act 1986

Evidence Act 1995

Cases Cited:

Adams v R [2018] NSWCCA 303

R v Burton [2013] NSWCCA 335

R v White (1989) 18 NSWLR 332

Dimian v R (1995) 83 A Crim R 358

Category:

Procedural and other rulings

Parties:

Regina (Crown)
Matthew Whatman (accused)

Representation:

Counsel:
Mr Bailey (DPP)
Mr Watson

Solicitors:
Ms Coleman (DPP)
Mr Davidge

File Number(s):

2019/00068809

Publication restriction:

Non publication order in relation to the name of the complainant.

Judgment

1. Mathew Whatman has been arraigned and pleaded not guilty to a two count indictment which alleges,

“On 3 March 2019 in Hay in the State of New South Wales did have sexual intercourse with MB without her consent and knowing that MB had not consented to the sexual intercourse contrary to s 61I of the Crimes Act 1900. And the Director of Public Prosecutions further charges that Mathew Whatman on 3 March 2019 at Hay in the State of New South Wales did attempt to have sexual intercourse with MB without her consent and knowing that MB had not consented to the sexual intercourse contrary to s 61I.”

2. He says that he placed his finger inside the vagina of the complainant and that that sexual engagement was consensual. He denies inserting his penis into her vagina.

3. The complainant was then 21. She drove to Hay after work to go to a rodeo. She met friends including TC who she had known the majority of her life. With her friends was the accused. This was the first time she had met him. It was her intention to camp in the car park. She commenced drinking alcohol while watching the rodeo. She had a discussion with the accused. She asked him if he was single. He said he was. She told him she was single. They then spoke about sex. She said to him, “Do you want to hook up later?” He said, “Yeah”.

4. She continued to drink alcohol. Toward the end of the rodeo she met a cowboy named David (David Wood). Once the rodeo finished she and David walked to the Crown Hotel. When walking to the pub the group that she was with said, “Show us your tits”, which she did. The Crown does not intend to adduce this evidence. She and David left the pub at about 1am. They went back to the showgrounds and she had consensual intercourse with David in her swag. He used a condom. He says…