R v Remington [2021] NSWDC 380

R v Remington [2021] NSWDC 380

The complainant's sexual intercourse with Mr O'Keefe within a short time of the alleged forced intercourse was relevant to the jury's consideration. Although the evidence was captured by the exclusionary rule in s 293, it fell within the exceptions in s 293(4)(a), and its high probative value outweighed the additional distress, humiliation or embarrassment to the complainant, particularly given protections including non-publication of identity, closed court evidence and AVL arrangements.

Jurisdiction
Australia
Judgment Date
04 June 2021
Procedural Posture
Criminal / Notice of Motion by Accused for Leave to Cross Examine Complainant Under S 293(4)(a) and S 293(6) of the Criminal Procedure Act
Outcome
Application allowed. Leave granted to the defence to cross-examine on the topics (i) – (v) outlined at paragraph [4].
Legal Topics
['sexual Assault Proceedings' 'cross Examination of Complainant' 'evidence of Sexual Experience' 'relevance' 'exclusionary Rule' 'probative Value']
['criminal Law' 'evidence'] ['sexual Assault Proceedings' 'cross Examination of Complainant' 'evidence of Sexual Experience' 'relevance' 'exclusionary Rule' 'probative Value']

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Procedural Posture

Criminal / Notice of Motion by Accused for Leave to Cross Examine Complainant Under S 293(4)(a) and S 293(6) of the Criminal Procedure Act

Legal Issues

  1. 1 ['Whether the proposed evidence was relevant' 'Whether the proposed evidence was caught by the exclusionary rule in s 293 of the Criminal Procedure Act' 'Whether the proposed evidence qualified as an exception to the exclusionary rule under s 293(4)' 'Whether the probative value of the evidence outweighed any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission']

Ratio Decidendi

The complainant's sexual intercourse with Mr O'Keefe within a short time of the alleged forced intercourse was relevant to the jury's consideration. Although the evidence was captured by the exclusionary rule in s 293, it fell within the exceptions in s 293(4)(a), and its high probative value outweighed the additional distress, humiliation or embarrassment to the complainant, particularly given protections including non-publication of identity, closed court evidence and AVL arrangements.

Court Disposition

Application allowed. Leave granted to the defence to cross-examine on the topics (i) – (v) outlined at paragraph [4].

Orders

  • ['I allow the application and grant leave for Ms Hall to cross-examine the complainant on topics (i) to (v) set out in her written submissions dated 4 March 2021 and marked MFI # 1.']