R v Cobham [2005] ACTSC 102 (13 October 2005)

Last Updated: 28 October 2005

THE QUEEN v PETER GEORGE COBHAM [2005] ACTSC 102 (13 October 2005)

CRIMINAL LAW - evidence - general inadmissibility of evidence of complainant's sexual activities in a trial for a sexual offence - judicial discretion to admit or exclude evidence

Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 51, s 53

No. SCC 25 of 2005

Judge: Madgwick J

Supreme Court of the ACT

Date: 13 October 2005

IN THE SUPREME COURT OF THE )

) No. SCC 25 of 2005

AUSTRALIAN CAPITAL TERRITORY )

THE QUEEN

v

PETER GEORGE COBHAM

ORDER

Judge: Madgwick J

Date: 13 October 2005

Place: Canberra

THE COURT ORDERS THAT:

Leave be granted for evidence of the virginity of the complainants to be admitted.

Reasons for admitting certain evidence of complainant

1. The Crown raised questions concerning s 51 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT). Section 51 provides, so far as is material, that evidence of the sexual activities of the complainant is not admissible in a sexual offence proceeding without leave of the Court. Section 53(1)(a) provides that the Court must not give leave unless satisfied that the evidence has substantial relevance to the facts in issue.

2. The accused is charged with four counts of sexual assault against each of the two complainants - both aged, at the relevant time, fourteen. The question of whether each of the complainants consented is relevant to each of the charges relating to her. The Crown wishes to tender evidence that each of the complainants told the accused, in the course of declining to engage in sexual intercourse with him, that she was a virgin.

4. I accept that that evidence is capable of having substantial probative value. A jury might well consider that it is much more likely that a girl of fourteen would say that she was a virgin in the course of declining consent to sexual intercourse in the presence of another girl, than in the course of giving it, and that the accused would be very likely to have understood that she was urging a reason why he should desist.

5. In my view the s 53(1)(a) condition is satisfied. Accordingly I will give leave for the subject evidence to be given. The evidence will, however, be treated as only relevant to the question of consent and the accused's state of mind about consent.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Date: 13 October 2005

Counsel for the Prosecution: Ms P de Veau

Solicitor for the Prosecution: Director of Public Prosecutions (ACT)

Counsel for the Accused: Mr J Sabharwal

Solicitor for the Accused: Legal Aid Commission (ACT)

Date of hearing: 10, 11, 12, 13 October 2005

Date of judgment: 13 October 2005