R v Paterson CA10/06

The appellant in this case, Bruce Jason Paterson, was found guilty in the District Court of one count of sexual violation by digital penetration and one count of sexual violation by object, a bottle. He also pleaded guilty to six charges of male assaults female. All charges related to one complainant. The appellant appealed against his convictions in relation to the two sexual violation charges, arguing there had been a miscarriage of justice. Specifically, he argued that new evidence from the complainant gave rise to a miscarriage or a risk of that.

The court had to decide whether there had been a miscarriage of justice in relation to both sexual violation charges, given the new evidence from the complainant. In relation to the charge of sexual violation by object, the court found that the conviction must be quashed as the complainant had clearly stated that no bottle was involved. The court rejected the argument that the incident could be regarded as separate, amounting to a second charge of sexual violation by digital penetration.

In relation to the charge of sexual violation by digital penetration, the court found that the new evidence did not significantly change the position as it was at trial. The complainant had recanted her evidence, but the court found that her conduct was objectively not consent. The court also found that there had been no significant change to the basis for reasonable belief in consent. The court concluded that there was no risk of a miscarriage in relation to this conviction. The court then considered the sentence and decided that a reduction of one year from the six-year term reflected the appellant's reduced culpability. The court substituted a sentence of five years imprisonment on the charge of sexual violation by digital penetration, while all other sentences remained as fixed by the District Court Judge.