R v Banks (No 2) [2020] NSWDC 495

District Court New South Wales

Medium Neutral Citation: R v Banks (No 2) [2020] NSWDC 495 Hearing dates: 12 May 2020 Date of orders: 12 May 2020 Decision date: 12 May 2020 Jurisdiction: Criminal Before: Grant DCJ Decision: 1. The evidence of MS that AB complained to her is excluded. 2. The Crown is not allowed to rely upon tendency reasoning in proof of counts 5-7. Catchwords: Criminal procedure-application to adduce complaint evidence-child complainants-cross admissible tendency- Judge alone trial Legislation Cited: Evidence Act 1995 Cases Cited: R v XY [2010] NSWCCA 181 Singh v The Queen [2011] VSCA 263 R v Gregory‑Roberts [2016] NSWCCA 92 (decision restricted) Category: Procedural and other rulings Parties: Regina (Crown) Joseph Banks (accused) Representation: Counsel: Ms Morgan (Crown) Mr Fokkes (accused)

Solicitors: Ms Hanshaw (Crown) Mr Keane (Accused) File Number(s): 2019/00238218 Publication restriction: Non-publication order re identities of complainants.

Judgment 1. The Crown seeks to admit complaint evidence.

COMPLAINT EVIDENCE OF GB 1. GB in her JIRT interview conducted on 31 May 2019 said she had told her two aunties and her nan about the conduct of the accused. She said she told them "half of it". 2. GS is the cousin of GB, she participated in a JIRT on 23 July 2019. She said that GB told her the accused had locked her in a room, she got out and ran into the lounge. At question 42/answer, she said this: "...Joseph made Gabby touch here and I don't if it was suck or touch or both but here". 1. On the video GS was indicating her chest. 2. MS gave evidence on 7 May 2020, she is the auntie of GB, AB, GS and JB. All four children were living with her from 23 April 2019 in Canberra. GS reported that GB had told her that something was not right, MS then questioned GB who told her that: "Joseph had done things that she didn't think were right". 1. She had GB show her on a porcelain doll what she meant. GB showed touching of the breasts, rubbing of the tummy, two fingers down below in between the legs and rubbing. GB said: "He put the penis in me mouth and holds your head and pushes it up and down". 1. The Crown submits the evidence is admissible complaint evidence. Mr Fokkes who appears on behalf of the accused concedes that the complaint evidence of GB both to MS and GS is admissible pursuant to s 66 and he does not resist the Crown application. Therefore, it is unnecessary for me to rule on that application.