R v Whatman [2020] NSWDC 562

R v Whatman [2020] NSWDC 562

The complainant's prior consensual intercourse with Wood could not rationally affect the assessment of whether she consented to sexual engagement with the accused. Once the Crown did not intend to adduce Dr Magee's post-coital pain opinion, the prior consensual sexual engagement was irrelevant. In any event, the evidence was caught by the exclusionary rule in s 293 of the Criminal Procedure Act 1986 and did not fall within s 293(4), because the consensual engagement with Wood was not connected to the circumstances of the offence alleged against the accused and the case did not fall within the injury exception considered in Dimian.

Jurisdiction
Australia
Judgment Date
09 September 2020
Procedural Posture
Criminal Proceeding for Sexual Intercourse Without Consent and Attempted Sexual Intercourse Without Consent / Application by Accused to Cross Examine Complainant
Outcome
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).
Legal Topics
['sexual Assault Proceedings' 'cross Examination of Complainant' 'relevance' 'sexual Experience Evidence' 'exclusionary Rule Under S 293 of the Criminal Procedure Act 1986']
['criminal Law' 'criminal Procedure' 'evidence'] ['sexual Assault Proceedings' 'cross Examination of Complainant' 'relevance' 'sexual Experience Evidence' 'exclusionary Rule Under S 293 of the Criminal Procedure Act 1986']

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Procedural Posture

Criminal Proceeding for Sexual Intercourse Without Consent and Attempted Sexual Intercourse Without Consent / Application by Accused to Cross Examine Complainant

Legal Issues

  1. 1 ["Whether evidence of the complainant's consensual intercourse with David Wood was relevant." 'If relevant, whether the evidence was caught by the exclusionary rule in s 293 of the Criminal Procedure Act 1986.' 'If caught by s 293, whether the evidence qualified as an exception under s 293(4).']

Ratio Decidendi

The complainant's prior consensual intercourse with Wood could not rationally affect the assessment of whether she consented to sexual engagement with the accused. Once the Crown did not intend to adduce Dr Magee's post-coital pain opinion, the prior consensual sexual engagement was irrelevant. In any event, the evidence was caught by the exclusionary rule in s 293 of the Criminal Procedure Act 1986 and did not fall within s 293(4), because the consensual engagement with Wood was not connected to the circumstances of the offence alleged against the accused and the case did not fall within the injury exception considered in Dimian.

Court Disposition

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).

Orders

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