The Court of Appeal held that a decision to refuse leave to adduce evidence of a complainant's sexual activities under ss 342 and 349 of the CPA is a decision that 'concerns the admissibility of evidence' within s 295(3)(a), not s 295(3)(b), overruling Hurst as plainly wrong. Consequently, such a decision can only be certified for interlocutory appeal if the excluded evidence would eliminate or substantially weaken the prosecution case — a criterion that defence-sought evidence will rarely satisfy. The Court further held that on a review under s 296 of a refusal to certify, if the Court of Appeal finds no error in the refusal, it cannot proceed to consider granting leave to appeal under s 297; the prohibition in s 295(3) continues to operate, and the application for leave is incompetent. The appropriate standard of review under s 296 (correctness versus House v The King) was left unresolved where the judge applied the wrong certification criterion.
The full text is available to signed-in members, including the 2 later cases that cite this judgment.
2 of the 2 citing cases carry a classified treatment. How each court treated it is available to signed-in members.