R v Nash (No 2)

In the Supreme Court of the Australian Capital Territory, the accused, Sammual James Nash, was on trial for charges of indecency without consent and sexual intercourse without consent against his former partner, NN, on 7 February 2013. The case involved a legal challenge by the accused to adduce evidence of the complainant's prior sexual activities, specifically her consensual sexual intercourse with another man on 6 February 2013, which the defence argued had substantial relevance to the facts in issue.

The central legal issue was whether the evidence of the complainant's prior sexual activities with another man, disclosed to Detective Leading Senior Constable Giuliana Milner and Dr Amanda Barry, should be admitted under s 76 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT). The accused sought leave to cross-examine the complainant about this evidence, asserting that it had substantial relevance to the facts in issue. The court had to consider the statutory framework, particularly ss 76 and 78 of the EMP Act, which governs the admissibility of evidence of a complainant's sexual activities in sexual offence proceedings. The court had to determine if the evidence had "substantial relevance" to the facts in issue and if it was a proper matter for cross-examination about credit.

Justice Loukas-Karlsson granted the accused's application, allowing the evidence of the complainant's prior consensual sexual activity with another man on 6 February 2013. The court found that the evidence had substantial relevance to the facts in issue because it could rationally affect the assessment of the probability of the existence of a fact in issue in the proceeding. Specifically, the injuries observed by Dr Barry and the complainant's disclosure of her prior sexual activity with another man provided context that was crucial to understanding the circumstances surrounding the alleged offences on 7 February 2013. The court's decision was based on the principle that such evidence could be relevant in assessing the credibility of the complainant and the nature of the injuries observed.

Following the granting of leave to adduce the contested evidence, the prosecution filed a Notice Declining to Proceed further in the prosecution of the indictment on 17 September 2021, thereby ending the trial. The accused was formally excused.