Y v Regina [2009] NSWCCA 287

Y v Regina [2009] NSWCCA 287

Although the trial judge did not miscarry in refusing the two s 293 applications, the Crown's address relied on an incomplete and false evidentiary framework created by the exclusion of sexual experience evidence, suggesting that the complainants lacked sexual understanding and that stepdaughter S's fear of pregnancy corroborated intercourse with the appellant. That conduct had a clear capacity to prejudice the appellant, caused an unfair trial and a substantial miscarriage of justice. Because credit was central to the joint trial, all convictions had to be quashed and a new trial ordered.

Jurisdiction
Australia
Judgment Date
09 December 2009
Procedural Posture
Criminal Appeal Against Conviction / Court of Criminal Appeal Judgment
Outcome
Appeal allowed; convictions quashed; new trial ordered.
Legal Topics
['sexual Offences Against Children' 'admissibility of Evidence Relating to Sexual Experience' 'cross Examination of Complainants' 'criminal Procedure Act 1986 (nsw) S 293' 'unfair Trial' 'miscarriage of Justice']
['criminal Law' 'criminal Procedure' 'evidence'] ['sexual Offences Against Children' 'admissibility of Evidence Relating to Sexual Experience' 'cross Examination of Complainants' 'criminal Procedure Act 1986 (nsw) S 293' 'unfair Trial' 'miscarriage of Justice']

Case Brief

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Procedural Posture

Criminal Appeal Against Conviction / Court of Criminal Appeal Judgment

Legal Issues

  1. 1 ['Whether the trial judge erred in refusing an application under s 293 of the Criminal Procedure Act 1986 (NSW) to cross-examine stepdaughter S about her sexual relationship with AP.' 'Whether the trial judge erred in refusing an application under s 293 to cross-examine cousin N about sexual abuse by her stepfather DP, including whether the temporal requirement in s 293(4)(a)(i) was a question for the judge or jury.' "Whether the Crown Prosecutor's comments about the complainants' naivety, limited sexual education, and stepdaughter S's fear of pregnancy made the trial unfair." 'Whether convictions relating to friend A should stand separately if the appeal otherwise succeeded.']

Ratio Decidendi

Although the trial judge did not miscarry in refusing the two s 293 applications, the Crown's address relied on an incomplete and false evidentiary framework created by the exclusion of sexual experience evidence, suggesting that the complainants lacked sexual understanding and that stepdaughter S's fear of pregnancy corroborated intercourse with the appellant. That conduct had a clear capacity to prejudice the appellant, caused an unfair trial and a substantial miscarriage of justice. Because credit was central to the joint trial, all convictions had to be quashed and a new trial ordered.

Court Disposition

Appeal allowed; convictions quashed; new trial ordered.

Orders

  • ['Appeal allowed.' "Quash the appellant's convictions." 'Order a new trial.']