Y v Regina [2009] NSWCCA 287

New South Wales Court of Criminal Appeal

CITATION: Y v Regina [2009] NSWCCA 287

HEARING DATE(S): 11 November 2009

JUDGMENT DATE: 9 December 2009

JUDGMENT OF: Allsop P at 1; Howie J at 88; Hislop J at 89

1. Appeal allowed. DECISION: 2. Quash the appellant's convictions. 3. Order a new trial.

CATCHWORDS: CRIMINAL LAW – procedure – sexual assault against children– admissibility of evidence – application to cross examine complainant about sexual experience – evidence of other sexual activity over period of offences - Criminal Procedure Act NSW 1986 (NSW) s 293(4)(a) – "connected set of circumstances" – whether motivation to fabricate allegations - whether miscarriage of justice – prejudice given corroborative nature of evidence – matter not argued in terms below – no miscarriage of discretion in refusing to admit evidence - CRIMINAL LAW – procedure – sexual assault against children– admissibility of evidence – application to cross examine complainant about sexual experience – evidence of other sexual abuse by another adult - Criminal Procedure Act 1986 (NSW) s 293(4)(a) – whether sexual activity occurred "at or about the time" – whether temporal requirement question of fact that should be left to jury – temporal requirement to be assessed by judge and finding made – no miscarriage of discretion in refusing to admit evidence - CRIMINAL LAW – appeal against conviction – sexual assault - comments of Crown to jury in contradiction with evidence inadmissible under Criminal Procedure Act 1986 (NSW) s 293 – whether trial unfair – s 293 rulings should not be used to create misleading factual and evidentiary framework for jury – substantial miscarriage of justice – appeal allowed - Criminal Procedure Act 1986 (NSW) – s 293