R v Baden Cram [2008] NSWDC 225

R v Baden Cram [2008] NSWDC 225

The proposed evidence was not admissible. It was not relevant as an alternative explanation for injuries because the accused conceded the sexual activity alleged and the Crown accepted the injuries were equally consistent with consensual activity. To the extent it might become relevant to credibility arising from failure to complain to N, the exceptions relied on in s.293 were not made out: the sexual activity with N was not part of a connected set of circumstances, did not relate to the relationship between the accused and complainant, did not satisfy the injury-related exception where intercourse was conceded, did not fall within the pregnancy exception, and was not disclosed or implied...

Jurisdiction
Australia
Judgment Date
24 September 2008
Procedural Posture
Criminal Trial for Sexual Assault / After the Jury Was Empanelled and Before the Crown Opened, the Accused Applied for Leave to Cross Examine the Complainant and Other Prosecution Witnesses About Other Sexual Activity
Outcome
Application refused
Legal Topics
['sexual Assault Trial' 'cross Examination of Complainant' 'evidence of Sexual Reputation or Sexual Activity' 'relevance' 'admissibility Exceptions']
['criminal Law' 'evidence' 'criminal Procedure'] ['sexual Assault Trial' 'cross Examination of Complainant' 'evidence of Sexual Reputation or Sexual Activity' 'relevance' 'admissibility Exceptions']

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Procedural Posture

Criminal Trial for Sexual Assault / After the Jury Was Empanelled and Before the Crown Opened, the Accused Applied for Leave to Cross Examine the Complainant and Other Prosecution Witnesses About Other Sexual Activity

Legal Issues

  1. 1 ["Whether evidence of the complainant's sexual activity with N was relevant to an alternative explanation for injuries or to credibility arising from failure to complain to N" 'Whether the proposed evidence came within any exception to inadmissibility under s.293 of the Criminal Procedure Act 1986' 'Whether the probative value of the evidence outweighed any distress, humiliation or embarrassment to the complainant']

Ratio Decidendi

The proposed evidence was not admissible. It was not relevant as an alternative explanation for injuries because the accused conceded the sexual activity alleged and the Crown accepted the injuries were equally consistent with consensual activity. To the extent it might become relevant to credibility arising from failure to complain to N, the exceptions relied on in s.293 were not made out: the sexual activity with N was not part of a connected set of circumstances, did not relate to the relationship between the accused and complainant, did not satisfy the injury-related exception where intercourse was conceded, did not fall within the pregnancy exception, and was not disclosed or implied...

Court Disposition

Application refused

Orders

  • ['Application to cross-examine complainant in relation to other sexual activity refused.']