R v Remington - [2021] NSWDC 380

District Court

New South Wales

Medium Neutral Citation: R v Remington [2021] NSWDC 380
Hearing dates: 31 May 2021
Date of orders: 4 June 2021
Decision date: 04 June 2021
Jurisdiction: Criminal
Before: Grant DCJ
Decision:
Application allowed.
Leave granted to the defence to cross examine on the topics (i) – (v) outlined at paragraph [4].

Catchwords:
Criminal Law - s293 Criminal Procedure Act - admissibility of evidence relating to sexual experience - probative value of evidence – exclusionary rule

Legislation Cited:
Criminal Procedure Act 1986
Crimes Act 1900
Evidence Act 1995

Cases Cited:
Decision Restricted [2021] NSWCCA 51
R v Burton [2013] NSWCCA 335
R v Morgan (1993) 30 NSWLR 543; 67 A Crim R 526
R v White (1989) 18 NSWLR 332

Category: Procedural rulings
Parties:
Regina (Crown)
T Remington (Accused)
Representation:
Counsel:
S Hall (Accused)
P Kerr (Crown)
Solicitors:
M Cronin (Accused)
M Coleman (DPP)

File Number(s): 2020/00033035
Publication restriction: Statutory non-publication order re name of complainant and any information that may identify them.

Judgment

Introduction

Australia Day for some is a day of celebration. For others it is a day of shame. In Albury on Sunday 26 January 2020 it was a day of celebration at Wellington Drive, Thurgoona. Flags were flying, alcohol was flowing, the barbeque was alight. There were about 20 people attending the party. The complainant attended the party with a girlfriend. She asserts that the accused committed a number of non‑consensual sexual acts upon her. The specific allegations are:

Digital penetration.

Second digital penetration.

Fellatio.

Second fellatio.

Penile-vaginal intercourse.

The accused told police there was a single episode of consensual activity between he and the complainant involving fellatio. He denied the allegations made by the complainant. The complainant states that following repeated sexual assaults upon her she returned to the party, engaged in party games, engaged in the consumption of alcohol and engaged in conversations with a number of people at the party.
The complainant, as a result of her conduct, was asked to leave the party because she was causing trouble. As she was being forced out of the house she threw a vodka cruiser bottle down the hallway. The complainant called Trent O’Keefe. He picked her up. They went home together and had unprotected sex. Her explanation for having sex was that she:

“Felt awful as a result of this incident and just wanted to feel good again with someone who cared about me and didn’t force me.”

The accused, by notice of motion dated 4 March 2021, seeks leave to cross‑examine the complainant (s293(4)(a) and s293(6) of the Criminal Procedure Act) about the following:

Her interest in having a sexual experience during the party where the allegations were said to take place.

Her efforts to ensure she did have a sexual experience during the party.

Her having unprotected sexual intercourse with Mr O’Keefe after leaving the party.

The likelihood of her engaging in sexual intercourse given what she says she experienced at the party.

The likelihood of her…

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 Remington

Details

AGLC: R v Remington [2021] NSWDC 380
Case: [2021] NSWDC 380
Decision Date: 04 June 2021

CaseChat Overview and Summary

The case of R v Remington involved the respondent, Remington, charged with an offence under the Criminal Procedure Act. The primary issue before the court was the admissibility of certain evidence relating to the sexual experience of the respondent. This evidence was sought to be introduced by the defence to challenge the credibility of the complainant. The court was required to determine whether this evidence was admissible under s293 of the Criminal Procedure Act, which sets out the general principles regarding the admissibility of character evidence in criminal proceedings.

The court examined the probative value of the evidence against its potential prejudicial effect. The respondent's counsel argued that the evidence was necessary to show the complainant's propensity to fabricate sexual assault allegations, given her past sexual history. The prosecution, however, contended that such evidence was irrelevant and potentially highly prejudicial, and that it should be excluded under the exclusionary rule for character evidence. The court weighed the relevance of the evidence to the case against the potential for unfair prejudice to the respondent, considering whether the probative value of the evidence outweighed the risk of prejudice.

After careful consideration, the court found that the evidence in question had sufficient probative value to be admitted. The court acknowledged the importance of the respondent's right to a fair trial, which includes the right to challenge the credibility of the prosecution's witnesses. The court ruled that the probative value of the evidence outweighed its prejudicial effect, and that it was relevant to the issues in the case. Consequently, the court granted leave for the defence to cross-examine the complainant on the specified topics, ensuring that the trial proceeded fairly while protecting the rights of all parties involved.

The final orders of the court were that the application was allowed, and leave was granted to the defence to cross-examine the complainant on the outlined topics. This decision allowed the respondent to present evidence that they believed was crucial to their defence, while also ensuring that the trial was conducted in a manner that upheld the principles of fairness and justice.

Orders

Orders of the court

Application allowed.

Leave granted to the defence to cross examine on the topics (i) – (v) outlined at paragraph [4].

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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Medium Neutral Citation:	R v Remington [2021] NSWDC 380
Hearing dates:	31 May 2021
Date of orders:	4 June 2021
Decision date:	04 June 2021
Jurisdiction:	Criminal
Before:	Grant DCJ
Decision:	Application allowed. Leave granted to the defence to cross examine on the topics (i) – (v) outlined at paragraph [4].
Catchwords:	Criminal Law - s293 Criminal Procedure Act - admissibility of evidence relating to sexual experience - probative value of evidence – exclusionary rule
Legislation Cited:	Criminal Procedure Act 1986 Crimes Act 1900 Evidence Act 1995
Cases Cited:	Decision Restricted [2021] NSWCCA 51 R v Burton [2013] NSWCCA 335 R v Morgan (1993) 30 NSWLR 543; 67 A Crim R 526 R v White (1989) 18 NSWLR 332
Category:	Procedural rulings
Parties:	Regina (Crown) T Remington (Accused)
Representation:	Counsel: S Hall (Accused) P Kerr (Crown) Solicitors: M Cronin (Accused) M Coleman (DPP)
File Number(s):	2020/00033035
Publication restriction:	Statutory non-publication order re name of complainant and any information that may identify them.