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District Court 22 July 2008

R v GAR

[2008] NSWDC 208

Sexual offences
CRIMINAL LAW TRIAL SEXUAL ASSAULT CHARGE

Citation: R v GAR [2008] NSWDC 208
Court: District Court of New South Wales
Date: 22 July 2008
Judge(s): Cogswell SC DCJ

Background

The accused faced a charge of sexual assault without consent under section 61I of the Crimes Act 1900. The complainant and the accused had not previously met but spent an evening together with others, drinking alcohol, before the alleged assault occurred. Both parties accepted that a sexual encounter took place; consent was the central issue in dispute.

During his record of interview, the accused claimed the complainant had spoken to him shortly before the encounter about difficulties in her sexual relationship with her partner, who was overseas at the time. The prosecution intended to tender that record of interview. Defence counsel then cross-examined the complainant on those alleged statements, and the complainant denied making them. The Crown sought to re-examine the complainant about the nature of her relationship with her partner, anticipating she would describe it as a normal, healthy relationship without the difficulties the accused had alleged.

  • Whether evidence in the accused's record of interview disclosing the complainant's sexual experience with her partner was admissible under section 293 of the Criminal Procedure Act 1986
  • Whether defence counsel was entitled to cross-examine the complainant on those alleged statements under the same provision
  • Whether the Crown's proposed re-examination of the complainant on the nature of her relationship with her partner was admissible under sections 293 and 55 of the Evidence Act 1995
  • Whether the proposed re-examination evidence should be excluded under section 137 of the Evidence Act 1995 on the basis that its probative value was outweighed by the danger of unfair prejudice to the accused

Decision

First piece of evidence: the record of interview. Section 293(3) of the Criminal Procedure Act ordinarily renders inadmissible evidence disclosing or implying that a complainant had sexual experience. However, section 293(4)(a) provides an exception where the evidence concerns sexual experience at about the time of the alleged offence and forms part of a connected set of circumstances surrounding it. Cogswell SC DCJ found that the accused's alleged account of the complainant's comments, made shortly before the sexual encounter while her partner was overseas, satisfied this exception. The probative value of that evidence was assessed as high, given it went directly to the likelihood of consent, and was found to outweigh any distress, humiliation or embarrassment to the complainant.

Second piece of evidence: cross-examination of the complainant. Defence counsel was permitted to put the accused's account to the complainant in cross-examination. The court was satisfied that the subject matter fell within the same exception under section 293(4) and that the accused would have been unfairly prejudiced had he been unable to put his own account to the complainant, particularly given the prosecution itself had already implied she had a sexual relationship with her partner. Under section 293(6), the cross-examination was limited to the specific conversation the accused alleged occurred. Again, the court found probative value outweighed the impact on the complainant.

Third piece of evidence: proposed re-examination. The Crown's anticipated re-examination fell within section 293(4)(f) because defence counsel had been permitted to cross-examine on the same topic. On relevance under section 55 of the Evidence Act, the court accepted that whether the complainant in fact had a healthy sexual relationship bore on the probability that she would have made the complaints attributed to her by the accused, which in turn was relevant to the central question of consent. Probative value was again assessed as high, and any distress to the complainant from re-examination was expected to be lower than that caused by the cross-examination.

Section 137 exclusion argument. Defence counsel argued that the re-examination evidence should be excluded because the truth or otherwise of the complainant's relationship with her partner was collateral to the real question of whether she made the alleged statements. The court acknowledged some force in that point but held that the truth of the alleged assertions remained a relevant factor in assessing their probability. Provided the answers were confined to brief evidence about a healthy relationship, the court found no danger of unfair prejudice to the accused sufficient to warrant exclusion under section 137.

Orders Made

  • All three pieces of evidence were ruled admissible.

Key Takeaways

  • Section 293(4)(a) of the Criminal Procedure Act 1986 provides a pathway for admitting evidence of a complainant's sexual experience where that experience occurred at about the time of the alleged offence and forms part of a connected set of circumstances surrounding it.
  • Under section 293(5), a complainant cannot be cross-examined on evidence that would otherwise be inadmissible under section 293 unless the court has first determined it would be admissible; where the section 293(4) exception applies, such cross-examination may be permitted.
  • The probative value assessment required by section 293(4) and section 137 is conducted in light of the specific facts in issue: where consent is contested, evidence bearing on the likelihood of consent carries significant probative weight.
  • Evidence about the nature of a complainant's relationship is not automatically excluded as collateral where its truth has rational bearing on the probability of a disputed statement being made; the District Court found this connection sufficient to sustain relevance under section 55 of the Evidence Act 1995.
  • Where a prosecution has already implied the existence of a complainant's sexual relationship (whether through tendering a record of interview or through evidence-in-chief), section 293(6) may support permitting cross-examination on that topic to avoid unfair prejudice to the accused.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), section 61I
- Criminal Procedure Act 1986 (NSW), section 293
- Evidence Act 1995 (NSW), sections 55 and 137

Cases cited: None cited in the judgment.