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. 3. The second piece of evidence has already been led. They were answers in response to questions put by defence counsel to the complainant. In those questions, defence counsel put to the complainant the account given by his client in the record of interview about what he claimed she told him concerning her sexual relationship with her partner. 4. The third piece of evidence is yet to be led and has prompted the ruling being given at this time and these reasons being given now. The trial advocate is about to re-examine the complainant. The complainant, in response to defence counsel's questions alleging that she had complained to the accused about her sexual relationship with her partner, denied that she made any such complaints. The trial advocate wishes to ask the complainant in re-examination about the nature of the complainant's relationship with her partner. The trial advocate anticipates that the complainant will respond that it was a normal healthy sexual relationship and had none of the features which the accused claimed, in his record of interview, that the complainant complained to him about. 5. The ruling which I must give about the first piece of evidence concerns s293 of the Criminal Procedure Act . The evidence contained in the record of interview of assertions made by the accused is evidence that discloses or implies that the complainant had sexual experience. Such evidence is therefore rendered inadmissible by s293(3) of the Criminal Procedure Act . However, s293(4) provides that subsection (3) does not apply if the evidence to be led is of the complainant's sexual experience taken part in by the complainant about the time of the commission of the alleged offence and is of events which are alleged to form part of a connected set of circumstances in which the alleged offence was committed. 6. I am satisfied that the evidence, being assertions by the accused of complaints made by the complainant about her sexual relationship with her partner, was evidence of sexual experience at about the time of the commission of the alleged offence. The complainant was at the time living with her partner. Her partner was, at the time of the alleged offence, overseas. The evidence comprises in my opinion events which form part of a connected set of circumstances in which the alleged assault was committed. The events are the claimed assertions by the complainant, a short time before the sexual encounter, of difficulties in her sexual relationship with her partner. I am therefore satisfied that s293(4)(a) applies, which has the consequence that the evidence in the form of the record of interview is not rendered inadmissible by s293(3). 7. The second piece of evidence comprises the answers given by the complainant when she was cross-examined this morning by defence counsel. I should add this in relation to the second piece of evidence. A separate question arose as to whether defence counsel ought to be allowed to ask those questions. Section 293(5) prohibits a witness being asked to give evidence that is inadmissible under subsection (2) or subsection (3) or evidence which may be admissible under subsection (4), unless I had decided that it would be admissible. I allowed the questions because the subject matter of the evidence was not inadmissible under subsection (3) for the reasons which I have just given and I indicated yesterday that I would permit the questions. In my opinion the questions were permissible and the evidence permissible for the same reasons that the first piece of evidence was admissible. 8. Finally I turn to the third piece of evidence which are the answers which the Trial Advocate expects to receive from the complainant in re-examination, raising questions of the complainant's relationship with her partner. 9. Before turning to the third piece of evidence I should add in respect of the second piece of evidence that I permitted defence counsel to ask the questions which he did because I was satisfied of the matters contained in s 293(6). It had been implied in the case of the prosecution that the complainant had sexual experience of a specific nature, namely a sexual relationship with her partner. That was raised both by the prospect that the record of interview was to be tendered by the prosecution and also by reference, in evidence-in-chief by the complainant, of the nature of the living arrangements with her partner at that time, which included the joint occupancy of a bed. In my opinion the accused in this case would be unfairly prejudiced if defence counsel was not able to cross-examine on his behalf, by putting to the complainant the matters which were raised in the record of interview by the accused. Indeed it would have been unfair to the complainant had that evidence been admitted as part of the prosecution case without the opportunity for her to comment on it. The cross-examination was, in accordance with subs (6), limited to the conversation which the accused alleged he had with the complainant about her sexual relationship with her partner. 10. I should also add in relation to both the first and second pieces of evidence that I am satisfied that the probative value of the evidence outweighed any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission. As to the evidence concerning the claims in the record of interview, the probative value is high because those claims go to the likelihood of the complainant giving consent to the sexual encounter, which both parties agree occurred. The giving of the evidence I expect did involve distress and humiliation as well as embarrassment to the complainant but the probative value was high and in my opinion, as I have said, outweighed the impact on the complainant. 11. I now turn to the third piece of evidence to be led by the Trial Advocate, if I permit it, in re-examination. In fact a number of issues arise in relation to that evidence, the first is whether it breaches s 293 of the Criminal Procedure Act . Because defence counsel was permitted to cross-examine the complainant on the allegations contained in the record of interview, the re examination on the same topic falls within s293(4)(f). I will return to the question of the probative value after addressing the second issue which is the relevance of the evidence. 12. Relevance is dealt with in the Evidence Act under s 55. The Trial Advocate argues that one of the facts in issue in these proceedings is whether or not the complainant gave her consent to the sexual encounter which, as I said, both parties agree occurred. That is, I accept, clearly a fact in issue. The cross-examination which I permitted on claimed assertions about the complainant's sexual relationship with her partner went to the likelihood of that consent being forthcoming. The relevance of the questions which the Trial Advocate now wishes to ask is to the likelihood of the complainant having made those assertions to the accused. Although the relevance of the asserted complaints is the fact that they were said rather than whether or not they were true, in my opinion evidence from the complainant that they are or were at the relevant time untrue, is relevant to the likelihood of her having made those assertions. I appreciate that the claimed assertions do not depend for their relevance on being true: it could well be argued that the words were said falsely in order for the complainant to encourage the accused into a sexual encounter. But in my opinion, evidence of a healthy sexual relationship without the asserted problems is evidence that, if it were accepted, could rationally affect the assessment of the probability of the complainant making those assertions to the accused on that evening. There are other factors which are relevant to the assessment of that likelihood but, in my opinion, the truth of the claimed assertions is one such factor. I therefore regard them as relevant. 13. The probative value, returning to s 293(4), is in my opinion high because it touches upon an essential issue in this case, namely whether or not consent was forthcoming from the complainant. I expect that the distress, humiliation and embarrassment occasioned to the complainant will be lower than that occasioned by being cross-examined on the topic and I am therefore comfortably satisfied that the probative value of the anticipated evidence will outweigh such distress, humiliation and embarrassment. I therefore regard the proposed questions by the Trial Advocate as not inadmissible, nor the proposed or anticipated answers as inadmissible. 14. Finally, defence counsel argues that the questions should be prohibited because they breach s 137 of the Evidence Act . He argues that I must refuse to admit this evidence because its probative value would be outweighed by the danger of unfair prejudice to his client. The unfair prejudice he argues is that the truth or otherwise of the relationship between the complainant and her partner is collateral to the primary question, that is whether she made those assertions or not. There is some force to that point. The truth of the assertion is, as I said in relation to my reasons concerning the relevance, one of the factors which could assist in assessing the probability of the words being said by the complainant. The evidence is collateral in the sense that, as I have said, what is in issue is whether the words were said, not the actual relationship between the complainant and her partner, but in my opinion as I have already said, the truth or otherwise of the assertions is relevant to the likelihood of whether they were said. The probative value, as I have already determined, is high. Provided the answers are limited, as I expect they will be, to relatively short evidence concerning a healthy sexual relationship between the complainant and her partner not attended by any of the difficulties asserted by the accused, then I do not regard the answers as straying too far into what defence counsel terms collateral territory. I do not see any danger of unfair prejudice to the accused which would be occasioned by the questions and answers which the Trial Advocate proposes to ask and to elicit, and therefore I rule those questions and answers as admissible. oOo 01/04/2011 - Removal of Accused's name - Paragraph(s) Coversheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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