R v Cust [2021] NSWSC 893

Supreme Court New South Wales

Medium Neutral Citation: R v Cust [2021] NSWSC 893 Hearing dates: 19 July 2021 Date of orders: 19 July 2021 Decision date: 20 July 2021 Jurisdiction: Common Law Before: Wilson J Decision: 1. Evidence of the sexual orientation of the accused and the deceased, except insofar as it may have been towards each other, is excluded; 2. Evidence of the history given by the accused to a sexual assault examiner on 18.12.2018 is excluded Catchwords: CRIME – trial – murder – voir dire admissibility of evidence issue – s 23 Crimes Act 1900 (NSW) – challenge to admissibility of evidence of sexual orientation of accused and deceased – question of relevance of homosexual tendencies of deceased or accused to partial defence – right to silence – whether right to silence breached by evidence of history taken from accused during sexual assault examination - question of abrogation of right to silence Legislation Cited: Crimes Act 1900 (NSW) Evidence Act 1995 (NSW) Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) Category: Procedural rulings Parties: Regina (Crown) Jamie Cust (Accused) Representation: Counsel: B Queenan (Crown) P Rosser QC (Accused)

Solicitors: Solicitors for Public Prosecutions (NSW) (Crown) Turner Freeman Lawyers (Accused) File Number(s): 2018/00389548 Publication restriction: Nil

Judgment 1. HER HONOUR: Prior to the commencement of evidence in the accused's trial on an indictment charging him with the murder, on 17 or 18 December 2018, of Jesus Bebita, the Court was asked to determine the admissibility of two aspects of the evidence intended to be led by the Crown, to which objection was taken by the accused. The first relates to evidence of the accused's sexual orientation; the second to his participation in a medical examination as a possible victim of a sexual offence. 2. The Court made orders on 19 July 2021, reserving full reasons for the orders made until today.