R v GAR [2008] NSWDC 208

R v GAR [2008] NSWDC 208

The accused's assertions and the complainant's evidence about her sexual relationship with her partner fell within the exceptions to s293 because they concerned events at about the time of the alleged offence and formed part of the connected circumstances in which the alleged offence was said to occur. The proposed re-examination evidence was relevant to the likelihood that the complainant made the asserted statements, and its probative value on the issue of consent outweighed any distress, humiliation or embarrassment to the complainant and was not outweighed by any danger of unfair prejudice to the accused.

Jurisdiction
Australia
Judgment Date
22 July 2008
Procedural Posture
Criminal Trial on a Charge of Sexual Assault Without Consent Contrary to Section 61 I of the Crimes Act 1900 / Trial Ruling on Admissibility of Evidence
Outcome
Evidence of the complainant is admissible.
Legal Topics
['sexual Assault' "admissibility of Complainant's Evidence" "evidence of Complainant's Sexual Experience" 'relevance' 'unfair Prejudice' 'probative Value']
['criminal Law' 'evidence' 'criminal Procedure'] ['sexual Assault' "admissibility of Complainant's Evidence" "evidence of Complainant's Sexual Experience" 'relevance' 'unfair Prejudice' 'probative Value']

Case Brief

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Procedural Posture

Criminal Trial on a Charge of Sexual Assault Without Consent Contrary to Section 61 I of the Crimes Act 1900 / Trial Ruling on Admissibility of Evidence

Legal Issues

  1. 1 ["Whether evidence in the accused's record of interview concerning the complainant's asserted complaints about her sexual relationship with her partner was inadmissible under section 293 of the Criminal Procedure Act 1986." 'Whether defence counsel was permitted to cross-examine the complainant about the asserted complaints concerning her sexual relationship with her partner.' 'Whether the Trial Advocate could re-examine the complainant about the nature of her sexual relationship with her partner.' 'Whether the proposed re-examination evidence was relevant under s 55 of the Evidence Act 1995.' 'Whether the proposed re-examination evidence had to be refused under s 137 of the Evidence Act 1995 because its probative value was outweighed by the danger of unfair prejudice to the accused.']

Ratio Decidendi

The accused's assertions and the complainant's evidence about her sexual relationship with her partner fell within the exceptions to s293 because they concerned events at about the time of the alleged offence and formed part of the connected circumstances in which the alleged offence was said to occur. The proposed re-examination evidence was relevant to the likelihood that the complainant made the asserted statements, and its probative value on the issue of consent outweighed any distress, humiliation or embarrassment to the complainant and was not outweighed by any danger of unfair prejudice to the accused.

Court Disposition

Evidence of the complainant is admissible.

Orders

  • ['The evidence in the record of interview is not rendered inadmissible by s293(3) of the Criminal Procedure Act 1986.' "The defence cross-examination of the complainant about the matters raised in the accused's record of interview was permissible." 'The proposed questions and anticipated answers in re-examination by...