Citation: [2023] NSWDC 386
Court: District Court of New South Wales
Date: 11 September 2023 (with addendum 12 September 2023)
Judge(s): Montgomery DCJ
Background
The accused stood charged with a prescribed sexual offence. During the trial, a question arose concerning evidence of the complainant's prior sexual history, specifically sexual activity that occurred at or about the time of the alleged offence.
Section 294CB of the Criminal Procedure Act 1986 (NSW) generally prohibits the admission of evidence of a complainant's prior sexual history in prescribed sexual offence proceedings. However, exceptions exist under subsection (4), and the issue before the court was whether those exceptions applied to the evidence in question.
Both the Crown and defence counsel took a joint position on the admissibility of the evidence, which shaped the nature of the ruling the court was asked to make.
Legal Issues
- Whether the complainant's sexual activity at or about the time of the alleged offence fell within the exception under s 294CB(4) of the Criminal Procedure Act 1986 (NSW)
- Whether that sexual activity formed part of, or was connected to, the circumstances in which the alleged prescribed sexual offence was committed
- Whether the scope and nature of the evidence had been sufficiently described for the purposes of s 294CB(8), as required before leave can be granted
Decision
The court noted that both parties jointly accepted that the complainant's sexual activity, occurring at or about the time of the alleged offence, formed part of a connected set of circumstances in which the alleged offence was committed. This position engaged the relevant exception under s 294CB(4) to the general prohibition in s 294CB(3).
Defence counsel confirmed that the evidence's nature and scope was accurately described in paragraphs 20 and following of the Crown's written submission on admissibility of DNA evidence and the s 294CB ruling, a document tendered and marked MFI 1. The court was satisfied this description met the requirements of s 294CB(8), which requires the court to be informed of the scope and nature of evidence before granting leave.
On that basis, Montgomery DCJ ruled the evidence admissible. The following day, the court extended its ruling by addendum to include evidence of the complainant masturbating the accused's penis, incorporating that specific act within the scope of the leave granted under s 294CB.
Orders Made
- Leave granted under s 294CB(4) of the Criminal Procedure Act 1986 (NSW) to admit evidence of the complainant's sexual activity at or about the time of the alleged offence, as described in MFI 1
- Leave extended by addendum on 12 September 2023 to include evidence of the complainant masturbating the accused's penis
Key Takeaways
- Under s 294CB of the Criminal Procedure Act 1986 (NSW), evidence of a complainant's prior sexual history in prescribed sexual offence proceedings is generally prohibited, but an exception under s 294CB(4) applies where the activity occurred at or about the time of the alleged offence and formed part of a connected set of circumstances surrounding it
- The District Court confirmed that before granting leave, s 294CB(8) requires the nature and scope of the proposed evidence to be properly described to the court, a requirement here satisfied by reference to the Crown's written submissions
- A joint position between the parties on admissibility does not remove the court's obligation to satisfy itself that the statutory preconditions for the exception are met
- The court's ruling was extended by addendum the following day, demonstrating that leave under s 294CB can be supplemented to encompass additional specific conduct not addressed in the original ruling
- Suppression obligations attach to proceedings of this kind, and any use of material from the judgment remains subject to any applicable suppression orders or statutory publication restrictions
Legislation and Cases Referenced
Legislation:
- Criminal Procedure Act 1986 (NSW), s 294CB (including subsections (1), (3), (4), and (8))
Cases cited:
- None cited in the provided text