Court Denies Cross-Examination Request in Hay Sexual Assault Case: Relevance of Past Consensual Encounter Disputed

Event and Time

Accused: Mathew Whatman
Charges: Sexual intercourse without consent and attempted sexual intercourse without consent, dated 3 March 2019 in Hay, New South Wales.
Allegations: The complainant, MB, claims that Whatman engaged in non-consensual sexual activity with her after a rodeo event where she was heavily intoxicated. The altercation was witnessed by another individual, David Wood, who intervened upon seeing the accused inappropriately with the complainant.

Accused's Defense: Whatman contends that he did not engage in intercourse with MB and asserts that any physical engagement was consensual.
Claim to Cross-Examine: The defense sought to cross-examine MB regarding her prior consensual sexual engagement with David Wood to challenge her credibility and illuminate potential consent-related implications.

Ruling: The application to cross-examine was denied, with the judge ruling that the evidence sought was irrelevant and fell under the exclusionary rule established by section 293 of the Criminal Procedure Act.

Defense Argument: The defense argues that evidence of MB's prior consensual intercourse with Wood is relevant as it concerns her capacity for consent and could explain her physical state post-intercourse.
Prosecution Counter: The prosecution maintains that the prior sexual engagement is irrelevant to the question of consent with Whatman, referencing precedents that support exclusionary principles in such contexts.

The ruling emphasized that the evidence of consensual intercourse with Wood was irrelevant under section 293 of the Criminal Procedure Act; thus, it did not justify an exception to the exclusionary rule. The judge cited the case of R v Burton, noting that prior sexual conduct is not indicative of consent in subsequent encounters.