R v Allen [2006] NSWDC 11

New South Wales District Court

CITATION: R v Allen [2006] NSWDC 11 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 11/09/06

JUDGMENT DATE: 11 September 2006

JUDGMENT OF: Blackmore SC DCJ

DECISION: Evidence admitted

CATCHWORDS: Sections 90, 135, 137 Evidence Act 1995 - Accused intoxicated - Whether unfair to use the admission - Admissibility of evidence

LEGISLATION CITED: Evidence Act 1995

R v BD (1997) CASES CITED: R v Helmhout (2000) 112 A Crim R 10 Papakosmas v The Queen (1999) 196 CLR 297 R v Shamouil [2006] NSWCCA 112

PARTIES: Sam David Allen

FILE NUMBER(S): 05/11/0776

COUNSEL: Ms E Walker, solicitor for Crown Mr P Stitz for Accused

SOLICITORS: S Kavanagh, Solicitor for Public Prosecutions (NSW) H Kiely, Robertson Saxton Primrose Dunn

JUDGMENT

Background

1 HIS HONOUR: The accused Sam Allen faces trial on a number of charges but in particular on two charges that he had sexual intercourse with the complainant without her consent knowing she was not consenting. In a recorded interview with the police the accused accepted that he had had sexual intercourse with the complainant on the occasions nominated in the charges but denied that it was without the consent of the complainant.

2 Part of the evidence sought to be led in the Crown case includes a note in the accused' handwriting that reads, "The thing with C There is a non publication order with respect to the name of the complainant. was half true. She did not want to have sex that night but I didn't care." The note was written by the accused shortly before he attempted suicide and after he had been drinking alcohol.