R v RB (No 5) [2020] NSWDC 583

District Court New South Wales

Medium Neutral Citation: R v RB (No 5) [2020] NSWDC 583 Hearing dates: 30 September 2020 Date of orders: 30 September 2020 Decision date: 30 September 2020 Jurisdiction: Criminal Before: Grant DCJ Decision: I refuse the Crown application to adduce tendency evidence. I refuse the application seeking leave to cross-examine the complainant. Catchwords: CRIMINAL PROCEDURE - evidence - sexual offence proceedings - single complainant - pre trial orders - context eviddence- s 130A Criminal Procedure Act 1986 - tendency evidence - s 135 Evidence Act 1995 - s 137 Evidence Act 1995 - s293 Evidence Act 1995 - admissibility Legislation Cited: Crimes Act 1900 Evidence Act 1995 Criminal Procedure Act 1986 Cases Cited: R v GK [2001] NSWCCA 413 R v Bo [2012] NSWDC 194 JG v R [2014] NSWCCA 138 Rogers v The Queen (1994) 181 CLR 251 Jackmain (a pseudonym) v R [2020] NSWCCA 150 Category: Procedural and other rulings Parties: Regina (Crown) RB (Accused) Representation: Counsel: Mr Kerr (Crown) Ms Graham (Offender)

Solicitors: Ms Brown (Crown) Ms Gidlow (ALS) File Number(s): 2017/0056625 Publication restriction: Non publication order in relation to the names of the complainant and the accused.

Judgment 1. By indictment dated as long ago as 5 December 2017, the accused stands charged with one count of assault occasioning actual bodily harm, contrary to s 59(1) of the Crimes Act (1900), and three counts of sexual intercourse without consent, contrary to s 61I of the Crimes Act. There is a single complainant (JQ). She is the accused's former wife. He had previously faced charges in relation to AW. 2. On 18 October 2016, the Director of Public Prosecutions served a written notice on the accused's legal representatives, indicating that the Crown intended to adduce tendency evidence, the substance of which was contained in JQ's statement to police on 1 April 2016 (first tendency notice). 3. In December 2016, before the trial in relation to AW was able to commence, the prosecutor notified the accused and the Court that the Crown no longer intended to adduce tendency evidence against the accused. On 31 October 2017, a joint indictment of eight counts (AW and JQ) was served on the accused. On 28 November 2017, the Director of Public Prosecutions served notice intending to adduce tendency evidence, which included JQ's statement and a statement of Dr Orr and her clinical notes (the second tendency notice). On 30 November 2017, a third tendency notice was served, which superseded the previous tendency notices. The notice relied upon the statements of JQ and AW. 4. On 4 December 2017, the accused was arraigned, and pleaded not guilty, before King SC DCJ. The original indictment contained eight counts, containing two complainants, JQ and AW. The accused objected to tendency evidence sought to be led by the Crown, and also applied to sever the indictment to separate the JQ and AW counts. 5. On 5 December 2017, King SC DCJ rejected the tendency evidence sought to be adduced by the Crown, and acceded to the accused's application to sever the indictment. The Crown presented a new indictment in relation to JQ (the same indictment in these proceedings). The trial commenced. That afternoon, the Crown sought to adduce context evidence. 6. In the proceedings before me, the Crown filed a tendency notice, dated 14 September 2020. The substance of that notice is the same as the context evidence which the Crown sought to adduce as context evidence in the trial before King SC DCJ. 7. On 6 December 2017, King SC DCJ excluded the evidence now sought to be adduced by the Crown, pursuant to ss 135 and 137 of the Evidence Act. The solicitor advocate had the matter stood down to speak to the Director's chambers about an appeal. After the luncheon adjournment, she advised the Court that there would be no appeal pursuant to s 5F. 8. On 7 December 2017, the trial proceedings before King SC DCJ were discontinued, following the disclosure of material relevant to an assessment of JQ, and to permit further material to be obtained. 9. The Crown tendency notice raises the application of s 130A of the Criminal Procedure Act 1986. That section provides: "(1) A pre-trial order made by a Judge in proceedings on indictment is binding on the trial Judge in those proceedings unless, in the opinion of the trial Judge, it would not be in the interests of justice for the order to be binding. (2) … (3) If proceedings on indictment before a trial Judge are discontinued for any reason, a pre-trial order made by a Judge, or an order made by the trial Judge, in relation to those proceedings is binding on a trial Judge hearing any subsequent trial proceedings relating to the same offence as the discontinued proceedings unless, in the opinion of the trial Judge hearing the subsequent trial proceedings, it would not be in the interests of justice for the order to be binding. (4) … (5) To avoid doubt, this section extends to a ruling given on the admissibility of evidence." 1. It is not in dispute that the proceedings before King SC DCJ were discontinued, and subs (3) and (5) operate. Section 130A is designed to avoid the unnecessary reventilation of issues, which often lead to delays in criminal trials: R v Bo [2012] NSWDC 194 at [11]; JG v R [2014] NSWCCA 138. 2. Mr Kerr, on behalf of the Crown, made three submissions: 1. I should rule all of the evidence contained in the tendency notice as tendency evidence; 2. In the alternative, that the uncharged material excluded by King SC DCJ should be admitted as tendency evidence; 3. All of the evidence, including the pre-2014 evidence, should be admissible as context evidence. 1. He conceded that the onus was on the Crown to demonstrate that it would not be in the interests of justice that King SC DCJ's order be binding. Mr Kerr referred me to R v GK [2001] NSWCCA 413. In that case, the Director of Public Prosecutions submitted two questions of law to the Court of Criminal Appeal under s 5A(2) of the Criminal Appeal Act 1912. Question 1 was as follows: "Where a trial Judge makes a discretionary ruling on the admissibility of certain evidence is a trial Judge at a subsequent trial following a failure by the first jury to agree on its verdict bound to follow that ruling with respect to the admissibility of the same answer?" 1. The answer provided by the Court of Criminal Appeal was no. 2. One must be cautious of the test applied by the Court of Criminal Appeal. Section 130A of the Criminal Procedure Act did not then exist. Section 130A came into existence, by the Criminal Procedure Amendment (Sexual Offence Case Management) Act 2005, on 1 December 2005. Originally, the section only applied to sex offences; it was expanded to all offences commencing 1 February 2010. 3. In R v GK, Moore DCJ believed that he was bound by the earlier ruling of Ford DCJ, upon a careful analysis of the decision in Rogers v the Queen (1994) 181 CLR 251. That is not the applicable test in this case. 4. When looking at s 130A, I do not consider it on the basis that one of the parties may not agree with his Honour's ruling, or that I may have reached a different conclusion. The test applicable is that it would not be in the interests of justice for the order made by King SC DCJ to be binding. That is the test in the language of s 130A: JG v R, Simpson J at [110]. Mr Crown submits that the judge applied the wrong test, and that there was a paucity of reasoning. 5. His Honour ruled in favour of the Crown for the admission of tendency. Overnight, and the morning of 5 December 2017, his Honour "spent a considerable number of hours this morning re-reading and reconsidering all of the material". After having considered the material and the benefits of that time to reflect on the arguments raised in relation to the separate of counts to which, of course, tendency was a major consideration, contrary to what he said the day before, he rejected the tendency evidence. 6. It is clear from the transcript that his Honour had given careful consideration to the materials provided to him and the arguments presented to move to the position of rejecting the tendency evidence. I see nothing in his earnest consideration that leads me to a position that it would not be in the interests of justice to follow his ruling. 7. Judges, upon reflection, do change their minds. To do so does not speak of error; it speaks of a desire to come to the correct decision. From questioning by his Honour of Ms Graham on 6 December 2017, who appears for the accused, that Ms Graham was "objecting to all evidence the Crown was relying on as context evidence", and that Ms Graham was "Not objecting to evidence that forms part of the narrative of the transaction relating to the four counts" (see transcript p 1, 6 December 2017). 8. His Honour then delivered reasons occupying 18 pages of transcript rejecting the crown application to lead context evidence. I have read his Honour's reasons carefully and have considered Mr Kerr's arguments. I am not satisfied that it would not be in the interests of justice for the ruling made by King SC DCJ to be binding. 9. This is a case where tendency and context evidence have been rejected. The Crown informed the Court that there would be no s 5F appeal (transcript 6 December 2017 p 4, lines 11-12). A tendency notice was filed on 14 September 2020 for a trial which commenced ten days later. One of the purposes of s 130A is to avoid the unnecessary reventilation of issues. I have taken that purpose into account when coming to my decision. 10. Ms Graham who appears for the accused seeks leave to cross-examine the complainant about twelve instances of asserted false complaint as set out in Jackmain (a pseudonym) v R [2020] NSWCCA 150 at [42]. She seeks leave to put evidence before the Court to mount a submission that the trial should be permanently stayed. She submits that s 293 of the Criminal Procedure Act does not apply to this application. She further submits that the dictum of Wilson J at [248] is not relevant. Her Honour said: "Where it is necessary to hold a preliminary inquiry to determine the admissibility of disputed evidence, s 293 does not prevent that course. However, consistent with the purpose of the provision, any voir dire should ordinarily be conducted on the documents. It would be highly inconsistent with the intention of the legislature in introducing s 409B of the Crimes Act in maintaining its operation of s 93 of the Criminal Procedure Act (complainant to be required to give viva voce and endure the sort of humiliating and distressing cross-examination that parliament sought to prevent)." 1. Ms Graham relies upon what was said by Leeming JA at [92]. His Honour said: "In short, subs (1) makes the section apply to proceedings on a voir dire and an interlocutory appeal, but it is clear that the 'inadmissibility' to which subss (2) and (3) speak does not extend to proceedings seeking to determine whether or not those rules apply, as was noted in decision Restricted v R [2020] NSWCCA 115 at [54] - [58] and [94]. I see no reason to conclude that subs (2) or (3) would prevent the tender of evidence on an application for a permanent stay, or a constitutional challenge to the validity of the subsections, or even a collateral challenge in separate civil proceedings. No party suggested to the contrary.The prohibition although expressed in unqualified terms applies only to the trial and committal. This, incidentally, is the first of a number of instances of broad language in s 293 necessarily being construed so as to bear a slightly narrower meaning." 1. Paragraph 92 must be read in conjunction with paragraph 91 where his Honour said: "Subsections (2) and (3) makes certain evidence 'inadmissible'. That does not bear its literal unqualified meaning. It must mean inadmissible in the prosecution before the tribunal of fact. So much is clear from s 293(7), which leaves questions as to the operation of the exclusionary rule to the 'court in the absence of the jury' and by necessary implication means that evidence which is contended to be inadmissible by reason of either, or both rules, will be tendered on the voir dire in the jury's absence." 1. I understand from his Honour's reasoning that s 293 makes the evidence inadmissible before the trier of fact (jury), but is admissible for tender for the consideration of: 1. Voir dire proceedings seeking to determine whether or not those rules (subsections (2) and (3)) apply; or 2. A permanent stay; or 3. A constitutional challenge to the validity of the subsection; or 4. A collateral challenge in separate civil proceedings. 1. I do not understand his Honour's reasoning to suggest as contended by Ms Graham that as this is a voir dire about a permanent stay, she is entitled to cross-examine the complainant about the alleged sexual fabrications which are caught by s 293. I take a narrow view about the interpretation of the word, tender, as used by his Honour. It includes documentary evidence. It does not include the ability to cross-examine the complainant. To do so would be contrary to the course set out by Wilson J at [248] and agreed to by Johnson J at [234] where any voir dire should be done on the documents. 2. I do accept that they were discussing a voir dire under s 293. However I see no reason why that reasoning, that is that it should be done on the documents should not apply to an application for a permanent stay. In my view, the trial commenced upon the arraignment of the accused. This is an application for a voir dire to cross-examine the complainant. In those circumstances, Leeming JA said subs (1) applies to proceedings on a voir dire. 3. I refuse the application seeking leave to cross-examine the complainant on the twelve incidents set out at [42] in Jackmain. The accused is not precluded from tendering documents which relate to the sexual representation of the complainant, or disclose or imply that the complainant has, or may have had, or lack, sexual experience, or may or may not have taken part in sexual activity in consideration of a permanent stay application.