R v GAR [2008] NSWDC 208

New South Wales District Court

CITATION: R v GAR [2008] NSWDC 208 This decision has been amended. Please see the end of the judgment for a list of the amendments.

JUDGMENT DATE: 22 July 2008

JURISDICTION: District Court of New South Wales

JUDGMENT OF: Cogswell SC DCJ

DECISION: Evidence of the complainant is admissible.

CATCHWORDS: CRIMINAL LAW - Trial - Sexual assault charge - Judgment regarding admissibility of the evidence of the complainant - Evidence relates to the sexual experience of the complainant - Probative value outweighs the impact on complainant

Crimes Act 1900 LEGISLATION CITED: Criminal Procedure Act 1986 Evidence Act 1995

PARTIES: Regina GAR

FILE NUMBER(S): 2008/0608

COUNSEL: Mr J. Barnett for the accused GAR

SOLICITORS: Ms S. Harris (Crown Advocate) for the NSW DPP

JUDGMENT

1. This is a ruling about three pieces of evidence. The leading of those pieces of evidence raises questions under section 293 of the Criminal Procedure Act 1986 and under section 137 of the Evidence Act 1995 . In other words, they raise questions as to whether I ought to allow evidence concerning the sexual experience or otherwise of the complainant and a question as to whether such evidence must be refused to be admitted because its probative value is outweighed by the danger of unfairness to the accused.

2. The three pieces of evidence are these. The first is contained in a record of interview given by the accused in this case. He is facing a charge of sexual assault without consent contrary to section 61I of the Crimes Act 1900 . The events are alleged to have occurred between the complainant and the accused who had not met before the evening, but who had spent the evening together with others, drinking alcohol. In his record of interview, the accused said that the complainant, shortly before the sexual encounter which he says was consensual, complained to him about her own sexual relationship with her partner. That evidence is to be led by the prosecution when it, in due course, tenders the record of interview.