R v B, DWL; R v B, CG

This case concerned appeals by two accused, CB and DB, against their convictions for unlawful sexual intercourse. The complainant alleged that both CB and DB committed six counts of unlawful sexual intercourse against her between November 2014 and January 2015, when she was 13 years old. The prosecution's case was that the offending conduct by each applicant was committed in the course of a joint criminal enterprise.

The primary legal issue before the court was whether the trial judge erred in refusing permission to cross-examine the complainant on alleged prior sexual complaints she had made against others, pursuant to section 34L of the Evidence Act. CB also raised grounds concerning the exemption of a witness from giving evidence and the admission of evidence regarding violence and neglectful parenting. DB contended that the judge failed to redirect the jury on the complainant's motive to lie and erred in not granting a mistrial following the admission of prejudicial opinion evidence.

The court analysed section 34L of the Evidence Act, which governs the admissibility of evidence concerning the sexual activities of an alleged victim in sexual offence proceedings. The section requires the judge to be satisfied that such evidence has substantial probative value, or would materially impair confidence in the reliability of the victim's evidence, and that its admission is required in the interests of justice. The judge must also consider the principle of avoiding unnecessary distress to the alleged victim. Applying these principles, the court found that the trial judge had not erred in refusing permission to cross-examine on certain alleged prior complaints, as they lacked substantial probative value or were of marginal relevance and likely to cause distress. However, the court considered that the refusal to allow cross-examination on other alleged complaints, particularly those involving DB, may have been an error.

Ultimately, the court allowed CB's appeal, quashed the convictions, and ordered a retrial. For DB, the court extended the time for filing an appeal and granted permission to appeal, but deferred final determination pending further submissions on a supplementary ground of appeal related to the absence of a witness.