DPP v Paterson
[2004] NSWSC 693
At a glance
Source factsCourt
Supreme Court of NSW
Decision date
2004-04-28
Before
Dowd J
Source
Original judgment source is linked above.
Judgment (20 paragraphs)
Background to Proceedings 4 The Defendant was charged with having committed sexual offences against seven persons, including a charge of Sexual Intercourse Without Consent under s61I of the Crimes Act 1900 in relation to the complainant "M.E.". The Defendant was committed for sentence in respect of three of the complainants; committed for trial with respect to one of the complainants; and the proceedings relating to the other two complainants were discontinued. 5 The matter involving the complainant "M.E." was fixed for a hearing purportedly under s93 of the Criminal Procedure Act 1986 before the Second Defendant on 22 January 2004, and in the course of argument Mr Walsh for the Defendant in those proceedings made an application for "M.E." to attend the Defendant's committal proceedings for the purpose of giving evidence. As the First Defendant was charged before the commencement of that section of the Act came into force, the relevant provision was in fact part of s48E of the Act which, however, is in substantially the same terms as s93 of the Criminal Procedure Act. After both oral and written submissions from counsel for the Defendant and the DPP, the Second Defendant made the order for the witness to attend the committal proceedings for the purpose of giving oral evidence, and in doing so, made the order contingent upon the Defendant providing an undertaking to give evidence himself at the committal. 6 The facts alleged in the charge against the Defendant are that "M.E." was a neighbour of the Defendant at the time of the alleged incident, living in the same street as the Defendant and his wife, and knew him as a neighbour. In November 2001 she was diagnosed with cervical cancer, and underwent a hysterectomy. Around Christmas 2001 she was diagnosed with Bells Palsey, and from the end of February 2002 sought psychiatric help from a Dr Michael Quirk, psychologist, for some months. 7 In late March 2002, on a Friday night, M.E. alleged that the Defendant invited himself over to her house, bringing a bottle of whisky liqueur. They drank and talked and listened to music for some hours. At some point, M.E. went to the toilet, and on the way there became aware that she was very drunk and so got into bed, having removed her clothing as was her custom The next thing she became aware of was a man lying on top of her, who she recognised as the Defendant, and of being then thrown up against the bed head. She said in a statement of 10 January 2003 that she could feel the Defendant's penis penetrating her vagina and moving in and out, and that she passed out and did not remember him leaving. 8 The next morning she found a lump on her head and noticed that the room was in some disarray. She remembered that the Defendant had had sexual intercourse with her. After having a shower, she went to her daughter's room and cried. At 9 am that morning she rang Dr Quirk and told him "I was raped last night". In his statement of 24 January 2003, Dr Quirk said that "M.E." told him that she did not want to put the matter on record because the Defendant was a policeman, and that she did not want to leave the area or tell her children. That afternoon, "M.E." alleged that the Defendant came to her front door and said words to the effect of, "I just wanted to see if you're all right and that we're still friends… I know I was wrong. It was all my fault. It wasn't your fault at all". She said, 'I know it wasn't my fault… I would never have let that happen if I wasn't drunk". 9 In early May 2002, "M.E." told a friend, Maureen Catt, that she had been raped. Catt encouraged her to contact the Police, and told her, according to her statement of 26 February 2004, that she was aware of a police investigation into the Defendant. On 20 May 2002, "M.E." attended the Avoca Beach Surgery and saw a Dr Judith Woolley in order to obtain a checkup for sexually transmitted diseases. In Dr Woolley's statement of 6 March 2003, Dr Woolley said that "M.E." told her that she had been raped one month previously at home following a meeting with her neighbour, and that she had been drunk at the time. M.E. reported the matter to the Police on 4 January 2003.