R v T.A.A [2009] NSWDC 115

New South Wales District Court

CITATION: R v T.A.A [2009] NSWDC 115

JUDGMENT DATE: 21 May 2009

JURISDICTION: Criminal

JUDGMENT OF: Nicholson SC DCJ

DECISION: Defence may cross-examine one complainant on the conversations and acts referred to in paragraph 6 in statement of brother. Prosecution may re-examine on any evidence adduced from this cross-examination.

CATCHWORDS: Criminal Law - Historical sexual assault trial - interlocutory judgment - defence application to cross-examine complainant on invitation to brother to participate in incestual sexual activity - purposes of cross-examination - explain away any shame claimed by complainant - potential for inconsistency of accounts - credit of complainant - probative value of evidence measured against distress, humiliation, or embarrasment complainant may experience.

LEGISLATION CITED: Criminal Procedure Act 1985 Evidence Act

PARTIES: Regina T.A.A

FILE NUMBER(S): 2007/00016123

COUNSEL: Crown: S Bowers Defence: J Gordon

JUDGMENT Application to adduce evidence of other sexual experience pursuant to s.293 (6) (b)

1. Given the alleged victims were children when the offences alleged by the Crown are said to have occurred, none of the complainants' names is to be published, nor is anything to be published which is likely to identify any of them. Given the alleged victims are children of the accused and still carrying his surname, publication of his name could lead to their identity being revealed. Thus the non-publication order to protect the identity of the victims necessarily extends to publication of the accused's surname.

2. The indictment presented to the Court charges the accused with seven counts of sexual offending, although count 3 is an alternate charge to count 2. The second and third charges relate to an allegation of rape, in the alternative, carnal knowledge by the accused of his daughter, Trish. This offence is said to have occurred between September 1969 and September 1971. Count 7 is an alleged act of indecency upon the daughter Trish. It is said to comprise cunnilingus. It is said to have occurred in April 1975.