R v Remington [2021] NSWDC 380

District Court New South Wales

Medium Neutral Citation: R v Remington [2021] NSWDC 380 Hearing dates: 31 May 2021 Date of orders: 4 June 2021 Decision date: 04 June 2021 Jurisdiction: Criminal Before: Grant DCJ Decision: Application allowed. Leave granted to the defence to cross examine on the topics (i) – (v) outlined at paragraph [4]. Catchwords: Criminal Law - s293 Criminal Procedure Act - admissibility of evidence relating to sexual experience - probative value of evidence – exclusionary rule Legislation Cited: Criminal Procedure Act 1986 Crimes Act 1900 Evidence Act 1995 Cases Cited: Decision Restricted [2021] NSWCCA 51 R v Burton [2013] NSWCCA 335 R v Morgan (1993) 30 NSWLR 543; 67 A Crim R 526 R v White (1989) 18 NSWLR 332 Category: Procedural rulings Parties: Regina (Crown)

T Remington (Accused) Representation: Counsel: S Hall (Accused) P Kerr (Crown)

Solicitors: M Cronin (Accused) M Coleman (DPP) File Number(s): 2020/00033035 Publication restriction: Statutory non-publication order re name of complainant and any information that may identify them.

Judgment

Introduction 1. Australia Day for some is a day of celebration. For others it is a day of shame. In Albury on Sunday 26 January 2020 it was a day of celebration at Wellington Drive, Thurgoona. Flags were flying, alcohol was flowing, the barbeque was alight. There were about 20 people attending the party. The complainant attended the party with a girlfriend. She asserts that the accused committed a number of non‑consensual sexual acts upon her. The specific allegations are: 1. Digital penetration. 2. Second digital penetration. 3. Fellatio. 4. Second fellatio. 5. Penile-vaginal intercourse. 1. The accused told police there was a single episode of consensual activity between he and the complainant involving fellatio. He denied the allegations made by the complainant. The complainant states that following repeated sexual assaults upon her she returned to the party, engaged in party games, engaged in the consumption of alcohol and engaged in conversations with a number of people at the party. 2. The complainant, as a result of her conduct, was asked to leave the party because she was causing trouble. As she was being forced out of the house she threw a vodka cruiser bottle down the hallway. The complainant called Trent O'Keefe. He picked her up. They went home together and had unprotected sex. Her explanation for having sex was that she: "Felt awful as a result of this incident and just wanted to feel good again with someone who cared about me and didn't force me." 1. The accused, by notice of motion dated 4 March 2021, seeks leave to cross‑examine the complainant (s293(4)(a) and s293(6) of the Criminal Procedure Act) about the following: 1. Her interest in having a sexual experience during the party where the allegations were said to take place. 2. Her efforts to ensure she did have a sexual experience during the party. 3. Her having unprotected sexual intercourse with Mr O'Keefe after leaving the party. 4. The likelihood of her engaging in sexual intercourse given what she says she experienced at the party. 5. The likelihood of her engaging in sexual intercourse after the party with a person who was no more than a friend who had come to pick her up and drive her home, given what she says she experienced at the party.