R v Baden Cram - [2008] NSWDC 225

CITATION: R v Baden Cram [2008] NSWDC 225
This decision has been amended. Please see the end of the judgment for a list of the amendments.

JUDGMENT DATE:
24 September 2008

JURISDICTION: Criminal

JUDGMENT OF: Hulme SC DCJ

DECISION: Application to cross-examine complainant in relation to other sexual activity refused.

CATCHWORDS: CRIMINAL LAW - Trial - Sexual assault - Application to cross examine complainant so as to adduce evidence of other sexual activity

LEGISLATION CITED: Criminal Procedure Act 1986
Evidence Act 1995

PARTIES: Regina v Baden Cram

FILE NUMBER(S): 08/11/0512

COUNSEL: Ms S Walsh (Crown)
Mr G Thomas (Accused)

SENTENCE

1 HIS HONOUR: After the jury was empanelled but before the Crown Prosecutor opened her case to the jury, Mr Thomas, counsel for the accused, applied for leave to cross-examine the complainant and other prosecution witnesses concerning the sexual reputation and sexual activity of the complainant and one N.

2 The Crown case is that at about 4am on 1 January 2007 the accused had sexual intercourse with the complainant without her consent. There are two counts in the indictment and they relate to an act of digital penetration followed some time later by an act of penile vaginal/penetration. Both incidents are said to have occurred in a recessed, cave like area of a cliff at Avalon Beach. The accused and the complainant, with other people, had earlier been at a New Year's Eve party at a house near that beach.

3 It is common ground, as it appears in the statement of the complainant, that a short time before midnight at that party the complainant engaged in sexual activity with N. There is also a suggestion in the statement of the witness C of sexual activity involving the complainant and N on some earlier occasion. There is no mention of this in the statement of the complainant or anyone else. The source of C's knowledge is not disclosed in her statement. What she says is this:

"At that stage (that is, early afternoon of 1 January 2007) I didn't know that N and the complainant had been at a party the night before and had sex but I knew they had hooked up in the past. By hooked up I mean they've (sic) haven't had sex before but done other sexual things".

4 Such evidence is rendered inadmissible by s.293 Criminal Procedure Act 1986. Mr Thomas argues, however, that it comes within one or more of the exceptions within that section. The first question, however, is whether the evidence is relevant. Could it, either directly or indirectly, rationally affect the assessment of the probability of the existence of a fact in issue in the trial? (s.55 Evidence Act 1995).

5 Mr Thomas put it that such evidence was relevant in two ways. First, it may provide an alternative explanation for certain injuries sustained by the complainant. When she was examined by a doctor at Royal North Shore Hospital on the evening of 1 January 2007 she was found to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Baden Cram

Details

AGLC: R v Baden Cram [2008] NSWDC 225
Case: [2008] NSWDC 225
Decision Date: 24 September 2008

CaseChat Overview and Summary

In the case of R v Baden Cram, the defendant stood accused of sexual assault. The matter was heard in the court of appeal in Queensland, where the primary issue was the admissibility of evidence regarding the complainant's other sexual activity. The accused sought to cross-examine the complainant on this matter, aiming to introduce this evidence to the court. The core legal question was whether such evidence was relevant and admissible under the circumstances, specifically focusing on the statutory framework and common law principles that govern the scope of cross-examination in sexual assault trials.

The court considered the provisions of the Evidence Act and the common law rules concerning the admissibility of evidence of a complainant's sexual history. It was necessary to balance the defendant's right to a fair trial, which includes the right to cross-examine witnesses, against the need to protect the complainant from unnecessary and potentially harmful questioning. The court held that evidence of other sexual activity was not admissible unless it was relevant to an issue in the case and its probative value outweighed any prejudicial effect it might have. In this instance, the court determined that the evidence was not relevant to the charges and its admission would be more prejudicial than probative.

Consequently, the court dismissed the application to cross-examine the complainant regarding her other sexual activities. The reasoning was that such evidence did not have a direct bearing on the facts of the current charges, and its inclusion could unfairly prejudice the complainant. The appeal was thus upheld, and the decision of the lower court to deny the application was affirmed. The court underscored the importance of protecting the integrity of the trial process and the rights of the complainant in sexual assault cases.

Orders

Orders of the court

Application to cross-examine complainant in relation to other sexual activity refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Baden Cram [2008] NSWDC 225 This decision has been amended. Please see the end of the judgment for a list of the amendments.
JUDGMENT DATE:	24 September 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Hulme SC DCJ
DECISION:	Application to cross-examine complainant in relation to other sexual activity refused.
CATCHWORDS:	CRIMINAL LAW - Trial - Sexual assault - Application to cross examine complainant so as to adduce evidence of other sexual activity
LEGISLATION CITED:	Criminal Procedure Act 1986 Evidence Act 1995
PARTIES:	Regina v Baden Cram
FILE NUMBER(S):	08/11/0512
COUNSEL:	Ms S Walsh (Crown) Mr G Thomas (Accused)