R v RB (No 6) [2020] NSWDC 600

District Court New South Wales

Medium Neutral Citation: R v RB (No 6) [2020] NSWDC 600 Hearing dates: 07 October 2020 Date of orders: 07 October 2020 Decision date: 07 October 2020 Jurisdiction: Criminal Before: Grant DCJ Decision: The application for a permanent stay is refused. Catchwords: CRIMINAL PROCEDURE – sexual offence proceedings – permanent stay application – exceptional remedy – need to identify fundamental defect and unfair consequences or proceedings amount to abuse of process – no evidence of actual unfairness caused - ex tempore judgment Legislation Cited: Evidence Act 1995 Criminal Procedure Act 1986 Cases Cited: R v Moore (2015) 91NSWLR 276 Jackmain (a pseudonym) [2020] NSWCCA 150 R v RD [2016] NSWCCA 84 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.

EX TEMPORE Judgment 1. The accused applies for a permanent stay of the trial. The power to stay proceedings permanently will only be granted in extreme or exceptional cases. It is an exceptional remedy. A permanent stay is tantamount to a continuing immunity from prosecution. 2. There is a public interest in serious allegations being disposed of on the merits: R v Moore (2015) 91NSWLR 276 at [24]. 3. In evaluating an application for a permanent stay there is a: "weighing process involving the subjective of balancing of a variety of factors and considerations including the requirement of fairness to the accused, the legitimate public interest in the disposition of charges for serious offences and the need to maintain public confidence in the administration of justice.":R v RD [2016] NSWCCA84 at [56]: "The yard stick is not simply fairness to the particular accused. Rather, it is whether the continuation of the prosecution is consistent with the recognised purpose of criminal justice and so constitutes an abuse of the process of the court…to justify a permanent stay of criminal proceedings there must be a fundamental defect which goes to the root of the trial of such a nature that there is nothing the Court can do to relieve against it's unfair consequences." : R v RD at [53]. 1. Ms Graham, who appears on behalf of the accused submits that a stay should be granted for the following reasons; s 293 of The Criminal Procedure Act and it's operation has prevented the accused painting a picture before the jury that JQ has a tendency to fabricate allegations of sexual impropriety. 1. There is evidence that has been rejected that as a high school student she has told many people that she had been sexually assaulted by various boys and men. Leeming JA was not satisfied that the exclusion of that evidence would come close to establishing the sort of fundamental defect to a criminal trial that would warrant a permanent stay: Jackmain (a pseudonym) [2020] NSWCCA 150 at [217]. 2. The complainant wrote a long letter as described by Heather Campbell. Heather Campbell read it. The Crown in evidence in chief adduced evidence from the witness Campbell that the complainant asserted in the letter that she had been raped. Ms Graham was then, entitled to cross-examine on the letter's contents, and she did. The cross-examination proved that the complainant had asserted that Daniel and Leon had bashed and raped the complainant, and what the complainant said in the letter did not make sense. Although s 293 binds the Crown, there is now evidence before the jury of the falsity of the contents of the letter. There can be no argument that an unfairness has been occasioned to the accused. 3. The complainant made a complaint to the police that S had sexually assaulted her on a number of occasions. She has been cross-examined about S without infringing s 293. The complainant has maintained her allegations against S. It has not been proven that the allegations against S are untrue. On voir dire there is evidence from the complainant's mother, Ms Atwell, that it could not have happened because the complainant was not working for Sam when it is alleged that she had been sexually assaulted. The way Ms Graham was required to cross-examine the complainant about S does not raise a fundamental defect in the trial. 4. The complainant showed a typed letter purportedly from a firm of solicitors to Heather Campbell. At a later point, police were called. JQ left the Campbell house and ripped up the letter. Later, Ms Campbell, with assistance, pieced the letter back together. A redacted form of the letter, to comply with s 293, is now before the jury. Leeming JA at [218] could; "see no reason why the complainant could not be asked whether she has ever been involved in the fabrication of a solicitor's letter, which implied that she had been attacked by a man, such restrictions on cross-examination are outside the operation of s 293". 1. Ms Graham has done what Leeming JA suggested. There is evidence from Ms Campbell that the letter indicated that JQ was going to court over a serious offence of violence. Allegations involved a Mr Saunders and Mr Saunders' male friends. Contrary to the evidence of Ms Campbell, JQ did not recognise the document nor have any memory of it. She did not recall making an allegation against Mr Saunders or giving the letter to Ms Campbell. Later in cross-examination, she denied writing the letter. 2. Although the letter has been redacted to comply with s 293, its evidential value is in the conflict between the evidence of JQ and Ms Campbell. It goes to the questions of honesty and reliability on the part of the complainant. The redaction has not resulted in a fundamental defect of the trial. 3. Contained in the Crown bundle and exhibited in the trial is the court extract from the Echuca Magistrate's Court. JQ pleaded guilty to making a false report. The falsity of the report was allegations of a sexual assault by Leon in her own home, vaginally raping her from behind with an unknown object. She was transported by ambulance to Kyabram Hospital and then to the Shepparton Hospital. A medical examination took place, and a rape kit was administered. To comply with s 293, Ms Graham was required to cross-examine the complainant, that it was an allegation of serious violence by Leon. The complainant agreed with that proposition. She also agreed that it was fabricated, and she fabricated serious violence in her own home. Leeming JA at [225] was of the view; "I accept that the section gives rise to prejudice to the applicant. But it is quite possible that a cross-examination of the complainant will lead to addresses to the jury and a summing-up by the judge directing them to the fact that they must bear in mind that the complainant has previously lied, about a serious claim against a man inflicting violence upon her, and that she pleaded guilty to a charge of making a false statement to police, and that the jury must assess her evidence concerning the events in 2014 with that in mind. That will not completely address the prejudiced occasion by 293. But it may go a considerable way in doing so." 1. In my summing-up, I will direct the jury that in assessing the honesty and the reliability of the complainant, that she has previously lied about a serious claim against a man inflicting violence upon her, and that she pleaded guilty to a charge of making a false statement to police, and the jury must assess her evidence concerning the events of 2014 with that in mind. Such a direction will ameliorate the prejudice. 2. Ms Graham, in her written submissions, dated 6 October but received by my associate on 7 October at 9.22AM, submits that the constraint imposed upon the complainant's oral evidence by s 293 at the trial in particular circumstance of this case is fraught with difficulty. The depth and extent of that difficulty can be seen in the Crown's approach to what the complainant be told before she is sworn to give her evidence: "You may be asked about circumstances where it is alleged, or where you have admitted, that you have made false statements. You should answer these questions as truthfully as you are able, but you should not refer to any sexual conduct that may have been contained in those allegedly false or false statements. If you are asked a question that you believe requires you to disclose sexual conduct in order to answer it fully and truthfully, then you should not answer the question, but you should ask his Honour for a break." 1. It is submitted on behalf of the accused that a witness given this direction cannot take the prescribed oath to swear or affirm the evidence they give will be "the truth, the whole truth, and nothing but the truth". It is submitted that the ability of the Court to administer an oath to tell the truth goes to the heart of the judicial process and the Court's integrity. Such a direction or instruction to the witness and the distorted approach to evidence exacerbates the unfairness to the accused and further undermines the confidence in the administration of justice by this trial. 2. This aspect was considered by Leeming JA at [227], where his Honour said; "Nor am I persuaded that the course proposed by the Crown will necessarily lead to the jury being materially misled or to the prosecutor behaving unfairly. As was explained during oral submissions, the notion that a witness will be questioned so as not to adduce evidence on a particular topic, and indeed will be told that as a matter of law he or she should not volunteer evidence so as to mention that subject, is not uncommon in jury trials. The Crown accepts that during the hearing that the position was accurately described as follows: 'Johnson J: Is what you say in that respect that in the same way as from time to time in criminal trials when there is either an agreement between the parties or a ruling by judge that some particular topic should not be discussed or mentioned that care is taken by counsel and the witness is informed about the limits for the purpose of what is asked and answered befor the jury is restricted, not to sanitise it but to ensure that what is before the jury is permissible questions and answers'." In light of what was said by Leeming JA, I reject the argument of the accused. 1. The accused has a heavy burden of establishing that the continuation of the prosecution is inconsistent with the recognised purpose of criminal justice and should be stayed as an abuse of the Court's process. 2. The accused focus on prejudice to him at trial to the exclusion of other considerations, namely the broader factors of public interest and public confidence, tell against a permanent stay. The complainant attests to very serious criminal assaults inflicted upon her by the accused. Her account to some extent is supported by Dr Orr and Jolene Shearer (Vella). There is a powerful public interest in those serious allegations being resolved by a jury. 3. I am not persuaded that there is a fundamental defect going to the root of the trial that warrants the grant of a permanent stay, nor am I satisfied that the cumulative arguments presented by Ms Graham in her helpful written submissions result in a fundamental defect going to the root of the trial that warrants the grant of a permanent stay.