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District Court 24 September 2008

R v Baden Cram

[2008] NSWDC 225

Sexual offences
CRIMINAL LAW TRIAL SEXUAL ASSAULT

Citation: R v Baden Cram [2008] NSWDC 225
Court: District Court of New South Wales
Date: 24 September 2008
Judge(s): Hulme SC DCJ

Background

The accused faced two counts of sexual assault arising from events in the early hours of New Year's Day 2007 at Avalon Beach. The Crown alleged that the accused digitally penetrated and then had penile-vaginal intercourse with the complainant without her consent, in a recessed cliff area near where both had attended a New Year's Eve party.

The accused conceded both acts of sexual contact occurred, but contested the absence of consent in relation to the penile-vaginal penetration. The degree of digital penetration was also contested. Before the Crown opened its case to the jury, defence counsel applied for leave to cross-examine the complainant and other prosecution witnesses about the complainant's sexual activity with another man, referred to as N, both earlier that same night and, possibly, on prior occasions.

  • Whether evidence of the complainant's prior sexual activity with N was relevant within the meaning of s 55 of the Evidence Act 1995 (NSW)
  • Whether, if relevant, the evidence fell within any of the exceptions to inadmissibility under s 293 of the Criminal Procedure Act 1986 (NSW), specifically:
  • s 293(4)(a): part of a connected set of circumstances in which the offence was committed
  • s 293(4)(b): relates to the relationship between the accused and the complainant
  • s 293(4)(c): relevant to explaining physical injuries
  • s 293(4)(e): allegation first made following realisation of pregnancy
  • s 293(6): the material is disclosed or implied in the prosecution case and exclusion would be unfairly prejudicial to the accused

Decision

On the relevance of the evidence as an explanation for physical injuries, the court found that no such relevance existed. The Crown had conceded that the complainant's injuries (bruising and abrasions noted on medical examination) were equally consistent with consensual sexual activity. Because the defence did not need an alternative explanation for the injuries, evidence of earlier sexual activity with N served no relevant purpose on that basis.

The court acknowledged a possible relevance in a different respect: the complainant had contact with N multiple times after the incident without making any complaint to him. The defence argued that, if the jury knew the complainant had been sexually intimate with N, her failure to complain to him would carry greater significance for her credibility. The court noted this argument had some force, but that its weight depended entirely on what explanation the complainant would give for not complaining. The court indicated this aspect might need to be revisited after the complainant gave her evidence.

On the statutory exceptions, the court rejected each in turn. The sexual activity with N was not part of a "connected set of circumstances" simply because both occurred on the same night; that was coincidence, not relevant connection. The activity between the complainant and N could not relate to the "relationship between the accused and the complainant." The pregnancy exception in s 293(4)(e) was also dismissed: the complainant's allegation of assault clearly preceded any suggestion she seek emergency contraception, and an act of digital penetration cannot cause pregnancy and thus falls outside that provision's evident purpose.

The court also rejected the s 293(6) argument. Although reference to the complainant's sexual activity with N appeared in police witness statements, the Crown had confirmed this material would form no part of the prosecution case presented to the jury. Because there would be no disclosure or implication of that activity in the trial, the precondition for s 293(6) was not satisfied.

Orders Made

  • Application to cross-examine the complainant in relation to other sexual activity refused.

Key Takeaways

  • Under s 293 of the Criminal Procedure Act 1986, evidence of a complainant's sexual history is inadmissible unless it falls within specific statutory exceptions, and it must first clear the relevance threshold in s 55 of the Evidence Act 1995.
  • The District Court held that where the Crown concedes injuries are equally consistent with consensual activity, evidence of prior sexual activity as an "alternative explanation" for those injuries has no relevance and serves no admissible purpose.
  • The s 293(4)(e) pregnancy exception is directed at cases where a complainant discovers or suspects pregnancy and then makes an allegation; it does not extend to acts of digital penetration, which cannot cause pregnancy, even where an allegation of digital penetration was formally made only after emergency contraception was obtained.
  • Section 293(6) requires that the sexual history material be actually disclosed or implied in the prosecution case as it will be presented to the jury; material appearing in police statements that the Crown elects not to rely upon at trial does not satisfy this condition.
  • Coincidence of timing alone (two sexual encounters occurring on the same night) does not make earlier sexual activity "part of a connected set of circumstances" for the purposes of s 293(4)(a).

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), s 293 (restrictions on evidence of complainant's sexual activity; exceptions)
- Evidence Act 1995 (NSW), s 55 (relevance)

Cases
No cases were cited in the judgment.