WHS v. The King

Lower Court Judgment

20/12/2024 Supreme Court of New South Wales (Court of Criminal Appeal) (Fagan, Chen and Sweeney JJ) 

[2024] NSWCCA 242 

Catchwords

Criminal law – Charges of sexual intercourse with a child – Criminal Procedure Act 1986 (NSW) – s 293(3)  (now s 294CB(3)) –– Prohibition of evidence of sexual experience or lack of sexual experience of a complainant – s 293(6) (now s 294CB(6)) – Exception to prohibition where it has been disclosed or implied in the prosecution case that the complainant has or may have had sexual experience or a lack of sexual experience – Whether exception only applies where the prosecution “invites” the jury to draw an inference about lack of prior sexual experience – Whether exception also applies where the evidence adduced by the prosecution is likely to lead the jury to draw that inference – Whether exclusion of evidence relating to complainant’s sexual experience resulted in a miscarriage of justice – Relevance of age of complainant – Whether final address by Crown Prosecutor resulted in a miscarriage of justice.