District Court New South Wales Medium Neutral Citation: R v DLW (No. 2) [2020] NSWDC 282 Hearing dates: 25-27 May 2020 Date of orders: 27 May 2020 Decision date: 27 May 2020 Jurisdiction: Criminal Before: Abadee DCJ Decision: See paragraphs 45-46 Catchwords: CRIMINAL LAW – trial by judge alone – alleged child sexual offences – application by Crown for leave to cross-examine a witness – whether evidence is unfavourable to the Crown – whether late notice precludes the application – consideration of discretionary considerations as to whether leave should be granted Legislation Cited: Evidence Act 1995 (NSW), ss 38, 137, 192 Cases Cited: Doyle v R; R v Doyle [2014] NSWCCA 4 R v Adam (1999) 47 NSWLR 267 R v Le (2002) 54 NSWLR 474 Category: Procedural and other rulings Parties: Director of Public Prosecutions Mr DLW Representation: Counsel: Ms K Tennant for the Director of Public Prosecutions Mr S Schaudin for the accused Solicitors: Solicitor for the Director of Public Prosecutions David Kelly Lawyers for the accused File Number(s): 2017/134016 Publication restriction: Non Publication Order on the names of the complainant, any members of the complainant's family, and the accused, or any information that may identify any of them. Pseudonyms have been used for the names of the complainant and the accused. EX TEMPORE Judgment BACKGROUND 1. This is day 3 of a trial in which the accused is charged with having committed serious child sexual offences in the period from 2009 to 2010 when, it is said, the complainant was 7 years old. 2. So far, the complainant has given evidence. His evidence in chief primarily consisted of recorded interviews given by him to the police in 2016 and early 2017, followed by cross-examination. 3. The Crown has now called the complainant's younger brother. A video of a recorded interview of that witness has been played. That interview occurred in August 2016. 4. The Crown now brings an application under s 38(1)(a) and also s 38(3) of the Evidence Act 1995 (NSW) ('the Act') for leave to cross-examine the witness on the ground that evidence within that recorded interview is 'unfavourable' to the Crown. The accused opposes the application. 5. The application was notified to Counsel for the accused in writing only yesterday, 26 May 2020. By its terms, no indication was supplied in that notice as to the prospective topics for cross-examination. Madam Crown supplied notice of the areas she proposed to cross-examine the witness upon at the time the application was made. REASONS FOR THE APPLICATION 1. The application is to be viewed with appreciation of the Crown's case, the evidence of the complainant and the evidence of this witness as it emerged through the witness' record of interview. 2. The Crown case, relevantly, is substantially based upon acceptance of the complainant's evidence. It is that the complainant was sexually assaulted by the accused at a party that occurred one evening at 101 M Road, Budgewoi (the street name being redacted) in 2009 or 2010. The accused was said to be the partner of the complainant's (and witness') biological mother. The Crown case is that the venue of the party was a place where the accused was an occupant. It contends that the complainant and the witness were staying with their biological mother only temporarily, due to custody arrangements, at 58 M Road, Budgewoi (the street name being redacted); and that on the night in question they all walked to the accused's place at 101 M Road arriving at about 7:00pm. The complainant says that a group of adults, including his biological mother, were largely gathered at the front of the home where the accused was occupant. The complainant says that he was eating in the kitchen, which he recalled as being towards the back of the house, before being dragged away by the accused and taken into a nearby bedroom. It was then that the offending conduct allegedly occurred. 3. During the application, Counsel for the accused pointed out that part of the evidence in chief for the complainant was a record of interview that the complainant gave on 9 February 2017. He contended that the purpose of that interview (as disclosed in Q42-43) was to get the complainant to consider the proposition – apparently sourced from the witness' interview in August 2016 – that someone else was in the room when he was assaulted. The complainant said that there was no one else in the room. At that point, the complainant was not asked whether he complained to the witness about what had occurred. The complainant had given evidence of his complaining to others, but not this witness. 4. A feature of the complainant's cross-examination was when Counsel for the accused suggested, but the complainant denied, that he complained about the alleged assaults to the witness. It was also suggested, but again denied, that the complainant had met the accused once before, when he and the witness had gone to 101 M Road for a swim. 5. The witness' evidence, in his recorded interview has, so far, been different in material respects. The witness says that he heard report of the complaint by the complainant the next morning. The witness also says that although he did not see or hear the alleged assaults being perpetrated, he was in the room at the time that they occurred. He recalled the complainant yelling out to his mother. There are other differences as well, but for the purpose of the application, they do not need to be addressed. ARGUMENT 1. The Crown accepts that no notice was given to the accused about this application until yesterday. Madam Crown disclosed, from the Bar Table, that she conferenced with the witness last Thursday (21 May 2020), at which point, the witness confirmed the correctness of the video recorded evidence. It was only between then and yesterday that Madam Crown divined that the witness' evidence may be unfavourable to the Crown. 2. As indicated, the written notice did not divulge the topic areas for the proposed cross-examination. But in making her application, Madam Crown explained that she wanted to cross-examine the witness on two topics. The first was the location where the assault occurred, and/or perhaps where the report of the assault was received. The second was a broader area, concerning circumstances in which the complainant made complaint of the alleged assaults to the witness. 3. Madam Crown estimated that her cross-examination might extend up to 20 minutes. 4. In relation to the mandatory statutory considerations that the Court is to take into account under s 192 of the Act, Madam Crown submitted that: 1. the cross-examination, if permitted, would not unduly extend the trial; 2. there is no unfairness to the accused since he has had the witness' record of interview, as part of the prosecution brief and might have anticipated this application being brought; and 3. the evidence is important to the Crown. Madam Crown identified that at least two parts of the witness' evidence directly contradicted the complainant's evidence: the complainant's evidence that he did not complain to the witness; and the alleged assault occurred at 58 M Road, where the complainant said it occurred at 101 M Road. The Crown added, with reference also to s 38(6)(b), that on the present state of the evidence, if Counsel for the accused chose not to cross-examine the witness, then the Court might be left with a distorted picture of what occurred. 1. Madam Crown made no submissions about s 192(2)(d) or (e) of the Act. 2. As noted, Counsel for the accused took issue with the lateness of the notice. Having regard to the multiple instances in which the complainant gave evidence, and especially the recorded interview of 9 February 2017, the Crown was on notice as to the potential conflict in evidence as between the complainant and the witness as to the circumstances in which the alleged assaults occurred; and more precisely, where they occurred and whether the witness was in the room at the time they occurred. Counsel contended that, being placed on notice, it was open to the Crown to interview the witness again to clarify any discrepancies between his evidence and that of the complainant. 3. Counsel for the accused did not cavil with Madam Crown's disclosure, or explanation, of the circumstances as to how and when this application was brought; though he did say that she did not provide notes of that conference to him (thereby waiving privilege over them). 4. Counsel for the accused did not dispute that there were material differences in the accounts given by the complainant and the witness. But with reference to what Bathurst CJ said in Doyle v R; R v Doyle [2014] NSWCCA 4 at [292], evidence should not be regarded as "unfavourable", for the purposes of s 38, simply because the evidence does not fit the prosecution's case theory. 5. Counsel accepted that litigation, even that of a criminal proceeding, is not static, and acknowledged that parties and their Counsel have to be responsive to 'bumps in the road', but he emphasised that the Crown was on notice of at least one significant discrepancy between the evidence of the complainant and the witness since February 2017. To accede to this application, he submitted, would lead to a loss of forensic advantage to the accused. 6. When invited to make submissions as to the application of the considerations in s 192(2) of the Act, Counsel for the accused indicated that he could not accurately say how long the trial may be delayed if the cross-examination proceeded, even if Madam Crown's estimate was to be accepted for this purpose. All he could say is that it may affect how he might cross-examine other witnesses, and presumably this witness. 7. I asked Counsel whether, if the application was granted, this may prejudice the accused's position on account of irrevocable forensic tactics taken by him in cross-examining the complainant. He could not discount that possibility and foreshadowed the prospect that the complainant might need to be recalled. For that purpose he might need some time for the proceeding to be adjourned so that he could take instructions from the accused and his instructing solicitor. 8. Counsel did, however, remind me of the highly serious nature of the offences for which the accused has been charged by reference to the maximum penalties as a factor pointing against the grant of leave. DETERMINATION 'Unfavourable evidence' 1. The first question is whether the witness' evidence, as it stands, is "unfavourable" to the Crown, for the purposes of s 38(1)(a). The word "unfavourable" is not defined in the Act. Although different views have been taken in the authorities, I interpret the word as taking its plain meaning and the context (including in the ALRC report) suggests that the word should not be interpreted in too narrow a fashion. 2. In my view, the evidence of the witness, in respect to the matters identified by Madam Crown, is unfavourable in the requisite sense. 3. The nature of the proceeding involves an allegation of serious crime committed against a complainant, then a very young child. The Crown's case depends to a large degree upon acceptance of evidence he gave many years after the alleged event when his credibility and reliability has been challenged. The difference between the complainant's evidence of not complaining to the witness, and the witness' evidence, that the complainant did complain to him, is not only significant but, if the witness' evidence was to stand, could be relied upon as undermining the reliability of the complainant's recollection. So too might the witness' evidence as to the location of the alleged assaults and the circumstances of the alleged assaults, such as the witness' presence in the room. 4. The circumstance that the witness' evidence does not fit the Crown's theory is, with great respect, a matter of significant weight as I consider the question of unfairness to the accused under s 192 of the Act. But with respect to those of a contrary view, it would add a gloss to the ordinary meaning of 'unfavourable evidence' under s 38(1)(a) if some implied limitation arose on the status of a proceeding as criminal or the status of the 'party' seeking to cross-examine. It is also contrary to the line of authority that a prosecutor may seek to avail itself of this provision (s 38(3)) to challenge the credibility of a witness (R v Le (2002) 54 NSWLR 474). It is difficult to see how that line of authority could stand if the narrow construction of s 38, invoked by the accused, was correct. 5. I am satisfied, therefore, that there is a valid basis under s 38(1)(a) for the application to proceed. Notice 1. The notice is plainly late. 2. It is not a precondition to the operation of s 38 that a party is only unexpectedly confronted with evidence that is not favourable to it: R v Adam (1999) 47 NSWLR 267. In my view, that implicitly means that circumstances may arise where the Crown is on notice, in advance, that the evidence of a witness might be unfavourable to it. That must be so, having regard to the Crown's obligation to call material witnesses. 3. I accept the submission for the accused that the Crown was on notice of the potential conflict in evidence at least from 2017. 4. No authority was supplied to me as to illustrations in which an application under s 38 is refused on account of the circumstance in s 38(6)(a) of the Act. No authority was put to me, for example, to consider whether the notion of "earliest opportunity" is to be regarded subjectively or objectively. 5. I do not read the limitation as intending to have the operative effect of placing a party in a procedural straitjacket; or to punish a party for lateness in notification. That might undercut the beneficial operation of the provision. As Counsel for the accused acknowledged, circumstances can arise in criminal litigation where "bumps" can arise. In this case, I accept the Crown's explanation that, as a matter of fact, it only became apparent to the Crown that the evidence of the witness might be unfavourable only last Thursday. It still is somewhat curious that it took quite a number of days before notice was given; even as I appreciate that there are many features of the trial that the Crown prosecutor needed to prepare for. 6. I accept that there has been delay, but I am not prepared to reject the application on the basis of s 38(6)(a) alone. 7. The other matter to which I must consider under s 38(6)(b) does not tell against the application. I accept the Crown's submission that, if the witness' evidence is left as it currently stands, it would be open to the accused to not cross-examine the witness at all. Section 192 of the Act 1. Though I accept that the estimate was necessarily imprecise, Madam Crown's indication as to how long the cross-examination might last does not indicate that the trial will be excessively protracted. The evidence from the witness, to date, is that he did not see or hear, the alleged acts. The Crown does not seek to rely upon the witness' evidence of the circumstance of a complaint being made because the Crown case, centred upon the complainant's evidence, is that no complaint about the events was made to this witness. With the possible exception of the prospective evidence of the complainant's real mother, I do not see how allowing this cross-examination will blow out to any substantial degree the length of evidence of other Crown witnesses. 2. Unfairness is, in my view, the most important consideration. I accept that if the evidence remains as it is, the accused has a forensic advantage, in the form of a conflict between the complainant's evidence and the witness' (current) evidence. But that does not mean that it is 'unfair', for the purposes of s 192, to allow the Crown to cross-examine the witness. If that was so, it would be difficult to see how s 38 could have effective operation. 3. I have noted that, when asked, Counsel for the accused was unable to point to irremediable prejudice to the accused if the application was allowed, in the sense of the way that he conducted his cross-examination of the complainant. I note that Counsel suggested to the complainant that he had made complaint to the witness and the complainant denied that. If, say, there is some material alteration in the witness' evidence in the light of cross-examination, it is not easy to foresee any occasion for the recall of the complainant. 4. In relation to the witness himself, I would anticipate that, if the witness does alter his evidence if cross-examination was permitted, then opportunity will present itself to the accused to challenge the witness' credibility and reliability. 5. Further, as I indicated during argument, if with the benefit of some reflection, there is cause for Counsel for the accused to seek the complainant's recall, then the nature and circumstances of this application (including the lateness with which it is brought) would be factors which might incline the Court to require that recall. 6. The same thing might be said about the prospect of any adjournment application to enable Counsel to seek instructions from the accused or his solicitor. 7. It follows that I am not persuaded that to accede to the Crown's application will be unfair to the accused. 8. It was not suggested that the differences which the Crown identified as supporting the application were unimportant. 9. I am certainly cognisant of the extremely serious nature of the offences the subject of this proceeding; and the very significant liability which the accused is exposed. But I do not read the consideration in s 192(2)(d) as requiring the Court to view it through the prism of the perspective of the party opposing the grant of leave. A strong countervailing view is that the application is made by the Crown, as representative of the state. In the circumstances, I consider this particular criteria is to be neutrally evaluated. 10. I note that no submission was made on behalf of the accused that the provision in s 137 of the Act is enlivened. In any event, even if it was, I consider that the considerations under s 192 overlap with that provision. 11. In conclusion, I accept that notice of the application is late, but when considering the application as a whole, including the matters in ss 38(6)(b) and 192, I consider that it is appropriate that leave be extended to the Crown to cross-examine the witness on the subject matters identified by Madam Crown during argument. 12. Prior to delivery of these reasons, I inquired of Madam Crown whether she also applied under s 38(3). She indicated out of an abundance of caution that she did. Counsel for the accused indicated his concern as to whether any challenge to the witness' credibility might be based on material not served on the accused. Madam Crown said in response that to the extent that challenge was made to the witness' credibility, it would not be based on material other than that which has been disclosed to the accused. On that basis, to the extent that this may involve Madam Crown challenging the witness' credibility, then leave is extended (under s 38(3)) for her to do so. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 June 2020