R v Peridot [2014] NSWDC 261

R v Peridot [2014] NSWDC 261

The proposed context and relationship evidence, except for the general evidence in paragraph 12 of exhibit VD B unless further particularised, had high probative value in explaining the relationship and the complainant's conduct, and any unfair prejudice could be addressed by clear jury directions. The two counts were properly tried together because they involved alleged physical violence in a domestic context between a married couple in the matrimonial home and the accused would not be prejudiced or embarrassed in his defence. Cross-examination about sexual activity on 15 and 17 October 2013 and activity led by the Crown fell within the s 293 exceptions because it was connected with the...

Jurisdiction
Australia
Judgment Date
18 November 2014
Procedural Posture
Criminal / Procedural and Other Rulings
Outcome
Accused's application for separate trials rejected; rulings made that s 293(3) of the Criminal Procedure Act 1986 did not apply to specified cross-examination and evidence of sexual activity.
Legal Topics
['assault Occasioning Actual Bodily Harm' 'sexual Intercourse Without Consent' 'domestic Relationship Evidence' 'context Evidence' 'separate Trials' 'cross Examination About Other Sexual Activity']
['criminal Law' 'evidence' 'criminal Procedure'] ['assault Occasioning Actual Bodily Harm' 'sexual Intercourse Without Consent' 'domestic Relationship Evidence' 'context Evidence' 'separate Trials' 'cross Examination About Other Sexual Activity']

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Procedural Posture

Criminal / Procedural and Other Rulings

Legal Issues

  1. 1 ['Whether proposed relationship and context evidence from the complainant should be excluded under s 137 of the Evidence Act 1995 (NSW) because its probative value was outweighed by the danger of unfair prejudice to the accused.' 'Whether the accused should have separate trials for the assault occasioning actual bodily harm count and the sexual intercourse without consent count.' 'Whether s 293(3) of the Criminal Procedure Act 1986 prevented cross-examination of the complainant about sexual activity on 15 and 17 October 2013 and sexual activity led by the Crown.' 'Whether the Crown should have leave to lead evidence from the complainant regarding the sexual relationship between the complainant and the accused.']

Ratio Decidendi

The proposed context and relationship evidence, except for the general evidence in paragraph 12 of exhibit VD B unless further particularised, had high probative value in explaining the relationship and the complainant's conduct, and any unfair prejudice could be addressed by clear jury directions. The two counts were properly tried together because they involved alleged physical violence in a domestic context between a married couple in the matrimonial home and the accused would not be prejudiced or embarrassed in his defence. Cross-examination about sexual activity on 15 and 17 October 2013 and activity led by the Crown fell within the s 293 exceptions because it was connected with the...

Court Disposition

Accused's application for separate trials rejected; rulings made that s 293(3) of the Criminal Procedure Act 1986 did not apply to specified cross-examination and evidence of sexual activity.

Orders

  • ["I reject the Accused's application for separate trials in respect of the two counts on the indictment." 'I rule that s 293(3) of the Criminal Procedure Act 1986 does not apply to cross-examination of the complainant in respect of any sexual activity that occurred on 15 and 17 October 2013 and in respect of any...