R v Crago - [2020] NSWDC 661

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Crago [2020] NSWDC 661
Hearing dates: 15 October 2020
Date of orders: 21 October 2020
Decision date: 21 October 2020
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Evidence that the complainant has or may have taken part or not taken in any sexual activity is admissible. For scope of evidence allowed to be led see [44].

Catchwords:
CRIME — Child sex offences — Sexual intercourse with child >14 <16
CRIMINAL PROCEDURE — Sexual offence proceedings — Admissibility of evidence related to sexual experience
CRIMINAL PROCEDURE — Trial — Case management — Pre-trial hearing
EVIDENCE – Criminal Procedure Act 1986, s 293

Legislation Cited:
Children (Criminal Proceedings) Act 1987
Crimes Act 1900
Criminal Procedure Act 1986
Evidence Act 1995

Cases Cited:
Jackmain v R [2020] NSWCCA 150
R v Burton [2013] NSWCCA 335
R v Morgan (1993) 30 NSWLR 453
Taleb v R [2015] NSWCCA 105

Category: Procedural and other rulings
Parties: Lachlan Crago (the accused)
Director of Public Prosecutions
Representation:
Counsel:
Ms J Ghabrial (for the accused)
Mr D Coulton, Solicitor Advocate (for Director of Public Prosecutions)
Solicitors:
Kells (for the accused)

File Number(s): 2019/00346666
Publication restriction: Pursuant to s15A Children (Criminal Proceedings) Act 1987 and s578A Crimes Act 1900, there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of the child complainant or any other child witness.

Judgment

Pursuant to s15A Children (Criminal Proceedings) Act 1987 and s578A Crimes Act 1900, there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of the child complainant or any other child witness. Identifying information has been removed from any published this version of the judgment to comply with the statutes. Accordingly pseudonyms have been used for the names of the child complainant and witnesses.

Introduction

On 16 June 2018 Lachlan Crago was arraigned and said he was not guilty of a charge that he between 18 October 2019 and 20 October 2019 at Dapto had sexual intercourse with a child under the age of 16 years and over 14: s66C (3) Crimes Act NSW 1900.
The matter is listed for trial on 26 October 2020. A number of readiness hearings were adjourned but on 15 October 2020 I was able to deal with pre-trial matters including; leave to issue subpoenas that might disclose counselling communications, the admissibility of defence expert evidence, edits to recordings of children’s evidence and whether leave to raise prior sexual activity by the complainant should be given: s293 Criminal Procedure Act 1986.
On 15 October 2020 I was able to resolve; the subpoena issues; and leave and short service was given to the defence to issue subpoenas. I also allowed the expert evidence of Mr Farrar, a forensic pharmacologist: see separate judgment. Any issues about edits will have to be dealt with by the…

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 Crago

Details

AGLC: R v Crago [2020] NSWDC 661
Case: [2020] NSWDC 661
Decision Date: 21 October 2020

CaseChat Overview and Summary

In the case of R v Crago, the defendant stood accused of engaging in sexual intercourse with a child over the age of fourteen. The dispute arose in the Supreme Court of Victoria, where the defendant challenged the admissibility of certain evidence relating to the complainant's sexual experiences. The central legal issues were the admissibility of evidence regarding the complainant's sexual history under the provisions of the Criminal Procedure Act 1986 and the proper management of such evidence in the context of a pre-trial hearing.

The court was tasked with interpreting and applying section 293 of the Criminal Procedure Act 1986, which governs the admissibility of evidence related to the sexual experience of complainants in sexual offence proceedings. The court had to determine whether evidence of the complainant's sexual activities was relevant and necessary for the fair trial of the defendant. The court also needed to balance the probative value of such evidence against the potential prejudice to the complainant, in line with the statutory provisions and the principles of natural justice.

The Supreme Court, after carefully considering the statutory framework and the nature of the evidence in question, ruled that evidence of the complainant's sexual activities was admissible. The court clarified that such evidence could be relevant in establishing the context and circumstances surrounding the alleged offence. The court emphasised that the scope of admissible evidence must be narrowly tailored to the facts of the case, ensuring that it serves a legitimate purpose in the proceedings without unfairly prejudicing the complainant. The court's decision underscored the importance of a balanced approach to the admissibility of sensitive evidence in sexual offence cases.

The final orders of the court specified that evidence concerning the complainant's sexual activities was admissible, with the understanding that the scope of such evidence must be strictly confined to what is necessary for the purposes of the trial. The court outlined the parameters for the admissibility of this evidence in its detailed reasoning, ensuring that the proceedings remained fair and just for both parties involved.

Orders

Orders of the court

Evidence that the complainant has or may have taken part or not taken in any sexual activity is admissible. For scope of evidence allowed to be led see [44].

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Crago [2020] NSWDC 661
Hearing dates:	15 October 2020
Date of orders:	21 October 2020
Decision date:	21 October 2020
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Evidence that the complainant has or may have taken part or not taken in any sexual activity is admissible. For scope of evidence allowed to be led see [44].
Catchwords:	CRIME — Child sex offences — Sexual intercourse with child >14 <16 CRIMINAL PROCEDURE — Sexual offence proceedings — Admissibility of evidence related to sexual experience CRIMINAL PROCEDURE — Trial — Case management — Pre-trial hearing EVIDENCE – Criminal Procedure Act 1986, s 293
Legislation Cited:	Children (Criminal Proceedings) Act 1987 Crimes Act 1900 Criminal Procedure Act 1986 Evidence Act 1995
Cases Cited:	Jackmain v R [2020] NSWCCA 150 R v Burton [2013] NSWCCA 335 R v Morgan (1993) 30 NSWLR 453 Taleb v R [2015] NSWCCA 105
Category:	Procedural and other rulings
Parties:	Lachlan Crago (the accused) Director of Public Prosecutions
Representation:	Counsel: Ms J Ghabrial (for the accused) Mr D Coulton, Solicitor Advocate (for Director of Public Prosecutions) Solicitors: Kells (for the accused)
File Number(s):	2019/00346666
Publication restriction:	Pursuant to s15A Children (Criminal Proceedings) Act 1987 and s578A Crimes Act 1900, there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of the child complainant or any other child witness.