R v Norris [2014] NSWCCA 76

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v Norris [2014] NSWCCA 76 Hearing dates: 17 April 2014 Decision date: 09 May 2014 Before: Beazley P at [1]; R A Hulme J at [2]; Bellew J at [35] Decision: 1. Appeal allowed. 2. The ruling of his Honour Judge Lerve on 30 January 2014 excluding the evidence of Ms Sandra Trabuio in relation to the detection of spermatozoa in smears made during the examination of the complainant on 20 April 2011 and her opinion as to the possible period between ejaculation and the creation of the smears is vacated. Catchwords: CRIMINAL LAW - appeal against exclusion of prosecution evidence during trial - Criminal Appeal Act 1912, s 5F(3A) - expert evidence relating to likelihood of obtaining intact spermatozoa more than 72 hours after ejaculation erroneously excluded - trial judge failed to take into account evidence at its highest and upon the assumption that the jury would act upon it - exclusion substantially weakened prosecution case - ruling vacated Legislation Cited: Criminal Appeal Act 1912 (NSW) Evidence Act 1995 (NSW) Cases Cited: R v ELD [2004] NSWCCA 219 Category: Principal judgment Parties: Regina Lee Robert Norris Representation: Counsel: Mr P Ingram SC (Crown) Mr C Smith with Ms C Feiner (Respondent) Solicitors: Solicitor for Public Prosecutions Legal Aid Commission File Number(s): 2011/304383 Decision under appeal Jurisdiction: 9101 Before: Lerve DCJ File Number(s): 2011/304383