Citation: R v Peridot (No 2) [2014] NSWDC 262
Court: District Court of New South Wales
Date: 24 November 2014
Judge(s): Cogswell SC DCJ
Background
This decision is a short supplementary ruling in a criminal proceeding, delivered approximately one week after the primary judgment of 18 November 2014. The accused faced charges involving a complainant, and the proceedings raised questions about the admissibility of evidence concerning prior sexual activity between the two parties.
In the earlier judgment, the court had reserved its position on one particular piece of evidence, declining to rule on it at that stage. That evidence related to sexual activity between the complainant and the accused and was potentially subject to the restrictions contained in section 293 of the Criminal Procedure Act 1986 (NSW).
Following that reserved ruling, the Crown Prosecutor provided further particulars, which were tendered as exhibit VDD. The court then reconsidered whether the evidentiary threshold had been met in light of that additional material.
Legal Issues
- Whether evidence of prior sexual activity between the complainant and the accused was admissible under section 293 of the Criminal Procedure Act 1986 (NSW)
- Whether the further particulars provided by the Crown were sufficient to increase the probative value of the evidence to the point that it should not be rejected
- Whether section 293(3) applied so as to permit the evidence to be led
Decision
Section 293 of the Criminal Procedure Act 1986 (NSW) restricts the admission of evidence relating to a complainant's sexual experience in prescribed sexual offence proceedings. Under section 293(3), a court may rule that the section does not apply where the probative value of the evidence justifies its admission.
At the time of the primary judgment, the court found the probative value of the particular evidence insufficient to warrant a ruling in its favour, and reserved its position. The Crown Prosecutor subsequently provided additional particulars, exhibited as VDD, directed at the evidence described in paragraph 12 of exhibit VDB.
Having considered those further particulars, the court was satisfied that the probative value of the evidence had increased sufficiently. On that basis, the court declined to reject the evidence and made a ruling under section 293(3) that the section does not apply to evidence of any sexual activity between the complainant and the accused as particularised in paragraph 12 of exhibit VDB.
Orders Made
• Ruled under s 293(3) of the Criminal Procedure Act 1986 that that section does not apply to evidence of any sexual activity between the complainant and the accused which is the subject of para 12 of exhibit VDB.
Key Takeaways
- Under section 293(3) of the Criminal Procedure Act 1986 (NSW), a court may rule that the section's restrictions on sexual experience evidence do not apply where the probative value of that evidence is sufficiently established.
- A reserved admissibility ruling under section 293 can be revisited and resolved once further particulars are provided, demonstrating that the process is capable of operating in stages as new material comes to hand.
- The District Court confirmed that an increase in probative value, demonstrated through supplementary particulars from the Crown, was the operative consideration in lifting the section 293 restriction.
- Probative value assessments under section 293(3) are fact-specific: the court's original reluctance to rule, followed by its subsequent ruling once further detail was provided, illustrates that the threshold is sensitive to the quality and specificity of the evidence tendered.
- This decision does not resolve any broader question about the charges or the trial outcome; it is confined to the discrete admissibility issue concerning one item of evidence.
Legislation and Cases Referenced
Legislation:
- Criminal Procedure Act 1986 (NSW), s 293 (including s 293(3))
Cases:
- No cases were cited in this decision.