The correctness standard of appellate review, not the House v The King standard, applies to a trial judge's decision under s 137 of the Evidence Act 1995 (NSW) to admit or exclude evidence. In delayed complaint sexual assault cases, the cumulative effect of the absence of corroboration, contradictory evidence from family members, significant forensic disadvantage from delay, and the limited probative value of medical records may render a conviction unreasonable even where the complainant's evidence is believed. Trial counsel's failure to make an available application under s 293(4)(c) of the Criminal Procedure Act 1986 (NSW) to adduce evidence of an alternative explanation for a pregnancy test that was the centrepiece of the Crown case constitutes a miscarriage of justice. Rothman J's construction of 'presence of semen' in s 293(4)(c)(ii) as requiring actual located semen (not merely fear or perception of its presence) was not adopted by the majority and remains an open question.
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