R v Cust [2021] NSWSC 893

Procedural Posture

Criminal Trial for Murder / Voir Dire/procedural Ruling on Admissibility of Evidence Before Commencement of Evidence

Legal Issues

1. 1 ["Whether evidence of the accused's sexual orientation or sexual interest in men other than the deceased was admissible in the murder trial where the accused relied on the partial defence of extreme provocation." "Whether evidence of the deceased's sexual orientation or sexual interest in men other than the accused was admissible to support the accused's account of an alleged sexual assault or attempted sexual assault." 'Whether evidence of an unconnected alleged sexual assault by the accused upon a male complainant was admissible.' 'Whether the Crown could adduce the history given by the accused to a sexual assault nurse examiner after the accused had exercised his right to silence.']

Ratio Decidendi

Evidence of the sexual interest of either the accused or the deceased in men other than each other was irrelevant because it depended on irrational and impermissible assumptions about sexual orientation and sexual assault, and in any event would be excluded for unfair prejudice. The unconnected alleged sexual assault by the accused had negligible probative value and overwhelming prejudicial effect. The history given by the accused during the sexual assault examination was excluded because admitting it after he had exercised his right to silence would unfairly undermine that right, and its probative value was slight compared with the prejudice to the accused.

Court Disposition

Evidence excluded in part; Crown objection to admissibility rulings rejected.

Orders

• ['Evidence of the sexual orientation of the accused and the deceased, except insofar as it may have been towards each other, is excluded.' 'Evidence of the history given by the accused to a sexual assault examiner on 18.12.2018 is excluded.']