R v Tubou [2001] NSWCCA 243

R v Tubou [2001] NSWCCA 243

The appeal was dismissed because, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of guilt. The complainant's injuries, distress and early complaints supported a sexual assault following physical assault, and the inconsistencies relied on by the appellant were explicable and did not make the verdict unreasonable. The excluded evidence of prior sexual activity had little or no probative value on the issue of consent or cause of tenderness, its probative value did not outweigh likely distress, humiliation or embarrassment, and its exclusion did not make the trial unfair. There was no relevant delay in complaint, the direction adequately dealt...

Jurisdiction
Australia
Judgment Date
28 June 2001
Procedural Posture
Criminal Appeal Against Conviction / Appeal to the New South Wales Court of Criminal Appeal From a District Court Jury Conviction
Outcome
Appeal dismissed
Legal Topics
['sexual Intercourse Without Consent in Circumstances of Aggravation' 'unreasonable Verdict' 'miscarriage of Justice' 'corroboration' 'delay in Complaint' 'jury Directions' "admissibility of Evidence of Complainant's Prior Sexual Activity"]
['criminal Law' 'criminal Procedure' 'evidence'] ['sexual Intercourse Without Consent in Circumstances of Aggravation' 'unreasonable Verdict' 'miscarriage of Justice' 'corroboration' 'delay in Complaint' 'jury Directions' "admissibility of Evidence of Complainant's Prior Sexual Activity"]

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Procedural Posture

Criminal Appeal Against Conviction / Appeal to the New South Wales Court of Criminal Appeal From a District Court Jury Conviction

Legal Issues

  1. 1 ['Whether the conviction was unreasonable within s 6(1) of the Criminal Appeal Act 1912 (NSW).' "Whether the trial judge erred in excluding evidence of the complainant's sexual activity with another person on 12 May 2000 under s 105 of the Criminal Procedure Act 1986 (NSW)." 'Whether exclusion of that evidence rendered the conviction unsafe or caused a miscarriage of justice.' 'Whether the trial judge failed properly to direct the jury regarding delay in complaint of sexual assault.' 'Whether leave should be granted under r 4 of the Criminal Appeal Rules (NSW) where no objection was taken to the direction at trial.']

Ratio Decidendi

The appeal was dismissed because, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of guilt. The complainant's injuries, distress and early complaints supported a sexual assault following physical assault, and the inconsistencies relied on by the appellant were explicable and did not make the verdict unreasonable. The excluded evidence of prior sexual activity had little or no probative value on the issue of consent or cause of tenderness, its probative value did not outweigh likely distress, humiliation or embarrassment, and its exclusion did not make the trial unfair. There was no relevant delay in complaint, the direction adequately dealt...

Court Disposition

Appeal dismissed

Orders

  • ['Appeal dismissed.']