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
Evidence Act 1995
Cases Cited: Jackmain v R [2020] NSWCCA 150
Category: Procedural and other rulings Parties: Lachlan Crago (the accused)
Director of Public ProsecutionsRepresentation: Counsel:
Solicitors:
Ms J Ghabrial (for the accused)
Mr D Coulton, Solicitor Advocate (for Director of Public Prosecutions)
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
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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
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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.
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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.
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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…
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- AGLC
- R v Crago [2020] NSWDC 661
- Case
- [2020] NSWDC 661
- Decision Date
CaseChat Overview and Summary
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
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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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