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District Court 21 October 2020

R v Crago

[2020] NSWDC 661

Sexual offences
TRIAL HEARING EVIDENCE CRIMINAL PROCEDURE ACT 1986 , S 293

Citation: R v Crago [2020] NSWDC 661
Court: District Court of NSW
Date: 21 October 2020
Judge: Haesler SC DCJ

Background

The accused faced a single charge of sexual intercourse with a child aged over 14 and under 16, contrary to s 66C(3) of the Crimes Act 1900 (NSW). The alleged offence occurred over a weekend party in Dapto in October 2019, during which both the complainant (then aged 14) and the accused had been drinking heavily. The complainant alleged penile-vaginal intercourse took place in a bedroom on the Saturday night. The accused, when interviewed by police, said he was very intoxicated and could not recall having intercourse, though he did not deny it occurred.

The defence theory was that the accused was so intoxicated he was incapable of performing the alleged act, and that the complainant had experienced an alcohol-induced blackout that caused her to form a false memory. Specifically, the defence proposed that the complainant may have transposed a memory of intercourse with another male guest at the party onto the accused.

Prior to trial, the court heard a number of pre-trial matters. The key outstanding issue was whether the defence should be granted leave under s 293 of the Criminal Procedure Act 1986 to adduce evidence, or to ask questions, suggesting the complainant had engaged in penile-vaginal intercourse with another person that same weekend.

  • Whether s 293 of the Criminal Procedure Act 1986 was engaged, given the proposed evidence concerned the complainant's sexual activity with another person during the same weekend as the alleged offence
  • Whether the proposed evidence met the gateway criteria in s 293(4)(a): that it related to sexual activity at or about the time of the alleged offence and formed part of a connected set of circumstances
  • Whether the probative value of the evidence outweighed the distress, humiliation or embarrassment the complainant might suffer from its admission
  • What limitations, if any, should be placed on the scope of permissible questioning

Decision

Haesler SC DCJ granted the defence application, finding that the proposed evidence satisfied the requirements of s 293(4)(a). The section ordinarily renders inadmissible any evidence disclosing or implying that a complainant in prescribed sexual offence proceedings has or has not had sexual experience, or has or has not taken part in sexual activity. However, an exception applies where the evidence concerns sexual activity at or about the time of the alleged offence and forms part of a connected set of circumstances surrounding its commission.

The court found that the proposed evidence met both elements of that gateway test. The alleged alternative intercourse occurred during the same weekend, at the same party, involving the same complainant and a person present at that party. The circumstances were directly connected to the setting in which the alleged offence against the accused was said to have occurred.

Having found the gateway criteria were satisfied, the court then applied the balancing exercise required before admission: weighing the probative value of the evidence against the potential distress, humiliation or embarrassment to the complainant. Drawing on R v Morgan (1993) 30 NSWLR 453, the court characterised this as a calculus between the risk of harm to the complainant and the risk of injustice to an accused facing imprisonment if relevant and probative evidence is withheld. The court concluded that probative value outweighed potential harm, particularly because the evidence went directly to the central defence theory that the complainant's memory had been distorted by intoxication.

To minimise any harm to the complainant, the court tightly circumscribed the scope of permissible questioning. Permission was limited to evidence and questions concerning penile-vaginal intercourse only. Questions about other sexual activity observed at the party, such as kissing or breast touching, remained inadmissible. The court also specified the precise form questions could take, directed at whether intercourse occurred with another person that weekend, with whom, and when.

Orders Made

  • Evidence that the complainant has or may have taken part or not taken part in any sexual activity is admissible at trial, subject to the conditions below.
  • Both the defence and, if necessary, the prosecution may question the complainant and witnesses to determine whether the complainant engaged in penile-vaginal intercourse with another person during the weekend of 18 to 21 October 2019, and may call direct evidence of that fact if it becomes available.
  • The permission is expressly limited to penile-vaginal intercourse only. Evidence or questioning about other sexual activity (such as kissing and breast fondling) remains inadmissible.
  • Permissible questioning is confined to asking the complainant, witnesses, and potential participants whether penile-vaginal intercourse occurred, and if so, with whom, when, and where.
  • Any undisclosed defence evidence on this issue is similarly restricted to those particulars.
  • These orders may be revisited by the trial judge if the evidence or circumstances change.

Key Takeaways

  • Under s 293(4)(a) of the Criminal Procedure Act 1986, evidence of a complainant's sexual activity is not automatically excluded in prescribed sexual offence proceedings where it relates to activity at or about the time of the alleged offence and forms part of a connected set of circumstances in which the offence was allegedly committed.
  • Even where the gateway criteria are satisfied, a court must still weigh the probative value of the proposed evidence against the distress, humiliation, or embarrassment its admission may cause the complainant, consistent with the approach confirmed in R v Morgan (1993) 30 NSWLR 453.
  • A false memory defence grounded in expert pharmacological evidence about alcohol-induced blackout can, in appropriate circumstances, support a s 293 application by making evidence of alternative sexual activity directly relevant to the central factual dispute.
  • Where leave is granted under s 293, courts retain a significant supervisory role in defining the precise scope of permissible questioning to minimise harm to the complainant, as demonstrated by the specific limitations imposed here.
  • Rulings on evidence made at pre-trial hearings are not necessarily final: the District Court confirmed that such orders may be revisited by the trial judge if evidence or circumstances change.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), s 293
- Crimes Act 1900 (NSW), ss 66C(3), 66C(4), 578A
- Evidence Act 1995 (NSW)
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A

Cases
- R v Morgan (1993) 30 NSWLR 453
- Jackmain v R [2020] NSWCCA 150
- R v Burton [2013] NSWCCA 335
- Taleb v R [2015] NSWCCA 105