R v Tatola (No. 1) [2023] NSWDC 386

District Court New South Wales

Medium Neutral Citation: R v Tatola (No. 1) [2023] NSWDC 386 Hearing dates: 11 September 2023 Date of orders: 11 September 2023 Decision date: 11 September 2023 Jurisdiction: Criminal Before: Montgomery DCJ Decision: See [3]-[4] Catchwords: EVIDENCE – admissibility of evidence – whether exceptions under s 294CB(4) of the Criminal Procedure Act 1986 (NSW) are engaged – whether prior sexual history at or about the time of the alleged offence is admissible Legislation Cited: Criminal Procedure Act 1986 (NSW), s 294CB Category: Procedural rulings Parties: Rex (Crown) Mateo Lisi Tatola (Accused) Representation: Counsel: Ms K James (Crown) Ms E Hile (Accused)

Solicitors: Office of the Director of Public Prosecutions (Crown) Tang Lawyers (Accused) File Number(s): 2022/00164198 Publication restriction: Statutory non-publication order regarding the name of the complainant or anything that might identify them.

Judgment EX TEMPORE

Application Regarding Complainant's Prior Sexual History 1. HIS HONOUR: Pursuant to s 294CB(1) of the Criminal Procedure Act 1986 (NSW) ('CPA'), I note that it is the joint position of the parties that the complainant's sexual activity taken part in at or about the time of the commission of the alleged prescribed offence and that those events are part of, or form part of, a connected set of circumstances in which the alleged proscribed sexual offence was committed, is to be led. 2. For purposes of s 294CB(8) CPA I am assured by counsel for the defence that the evidence as it is referred to in [20] and following of the Crown written submission entitled, "Admissibility of DNA evidence and s 294CB ruling", handed up today which document will be marked MFI 1, properly describes for the purposes of s 294CB(8) CPA the scope of the evidence and the nature of the evidence that is to be so admitted under the s 294CB(4) CPA exception to s 294CB(3) CPA. 3. On those bases and as the evidence has been described to me as to nature and scope, I rule that the evidence is to be admitted. 4. Addendum 12/09/2023: In relation to the judgment I gave yesterday, granting leave under s 294CB CPA, I extend it to a matter of the complainant masturbating the accused's penis.