R v Gene David Scorringe [2009] NSWDC 154

New South Wales District Court

CITATION: R v Gene David Scorringe [2009] NSWDC 154

JUDGMENT DATE: 20 April 2009

JURISDICTION: District Court of New South Wales

JUDGMENT OF: Cogswell SC DCJ

DECISION: The evidence that is proposed to be led is inadmissible.

CATCHWORDS: CRIMINAL LAW - admissibility of evidence - allegation of non-consensual sexual intercourse - application to adduce evidence which may imply previous sexual activity - interpretation of "so alleged" in s 293(4)(c) Criminal Procedure Act 1986

LEGISLATION CITED: Criminal Procedure Act 1986 s293(3) s 293(4)

CASES CITED: R v Dimian (1995) 83 A Crim R 358 R v Tubou [2001] NSWCCA 243

PARTIES: R Gene David Scorringe

FILE NUMBER(S): 2008/2276

COUNSEL: Ms C Dobraszczyk (NSWDPP) Mr L Brasch (Def)

SOLICITORS: NSW Director of Public Prosecutions Legal Aid Commission of NSW

JUDGMENT

1. The complainant in this case, involving an allegation of non-consensual sexual intercourse, was examined by a doctor not long after the event that she (the doctor) said was non-consensual. The doctor found what she described as signs of acute trauma. The signs included two lacerations and marked redness. The lacerations were accompanied by bleeding. The doctor has given evidence that the fresh bleeding indicated that the injuries were acute and that there were no signs of healing. The doctor has also given evidence that the signs of trauma which she detected were consistent with blunt force trauma from vaginal penetration by objects such as a finger, a penis or other objects. The complainant alleges that she was penetrated by the accused's finger and penis.

2. Mr Brasch, who appears for the accused, wants to ask a question in cross-examination of the doctor which will elicit evidence from the doctor that the signs of acute trauma occurred within the previous twenty-four hours. Ms Dobraszczyk, who appears as the Crown Prosecutor, objects to any question which would produce that evidence. Her objection is founded on s 293 of the Criminal Procedure Act 1986. She argues that such evidence is rendered inadmissible by s 293(3) because it would be evidence which discloses or implies that the complainant had or may have taken part in sexual activity other than that which is the subject of her complaint.