R v Baden Cram [2008] NSWDC 225

New South Wales District Court

CITATION: R v Baden Cram [2008] NSWDC 225 This decision has been amended. Please see the end of the judgment for a list of the amendments.

JUDGMENT DATE: 24 September 2008

JURISDICTION: Criminal

JUDGMENT OF: Hulme SC DCJ

DECISION: Application to cross-examine complainant in relation to other sexual activity refused.

CATCHWORDS: CRIMINAL LAW - Trial - Sexual assault - Application to cross examine complainant so as to adduce evidence of other sexual activity

LEGISLATION CITED: Criminal Procedure Act 1986 Evidence Act 1995

PARTIES: Regina v Baden Cram

FILE NUMBER(S): 08/11/0512

COUNSEL: Ms S Walsh (Crown) Mr G Thomas (Accused)

SENTENCE

1 HIS HONOUR: After the jury was empanelled but before the Crown Prosecutor opened her case to the jury, Mr Thomas, counsel for the accused, applied for leave to cross-examine the complainant and other prosecution witnesses concerning the sexual reputation and sexual activity of the complainant and one N.

2 The Crown case is that at about 4am on 1 January 2007 the accused had sexual intercourse with the complainant without her consent. There are two counts in the indictment and they relate to an act of digital penetration followed some time later by an act of penile vaginal/penetration. Both incidents are said to have occurred in a recessed, cave like area of a cliff at Avalon Beach. The accused and the complainant, with other people, had earlier been at a New Year's Eve party at a house near that beach.

3 It is common ground, as it appears in the statement of the complainant, that a short time before midnight at that party the complainant engaged in sexual activity with N. There is also a suggestion in the statement of the witness C of sexual activity involving the complainant and N on some earlier occasion. There is no mention of this in the statement of the complainant or anyone else. The source of C's knowledge is not disclosed in her statement. What she says is this: "At that stage (that is, early afternoon of 1 January 2007) I didn't know that N and the complainant had been at a party the night before and had sex but I knew they had hooked up in the past. By hooked up I mean they've (sic) haven't had sex before but done other sexual things".