R v RM (No 2) [2023] NSWDC 91

District Court New South Wales

Medium Neutral Citation: R v RM (No 2) [2023] NSWDC 91 Hearing dates: 14 March – 27 March 2023 Date of orders: 22 March 2023 Decision date: 22 March 2023 Jurisdiction: Criminal Before: Abadee DCJ Decision: See paragraph 28 Catchwords: EVIDENCE- application pursuant to s 38 of the Evidence Act 1995 (NSW) to cross-examine Crown witness – whether earlier evidence 'unfavourable' – significance of timing of application being brought after cross-examination of Crown witness – consideration of factors relevant to whether leave should be granted Legislation Cited: Evidence Act 1995 (NSW) ss 38, 192 Cases Cited: Adam v The Queen (2001) 207 CLR 96 Burrell v The Queen (2009) 196 ACR 199 Klewer v Walton [2003] NSWCA 308 R v Parkes (2003) 147 ACR 450 Texts Cited: Nil Category: Procedural rulings Parties: Office of the Director of Public Prosecutions (ODPP) RM (accused) Representation: Counsel: Mr C Reynolds for the ODPP Ms K Hogan for the accused

Solicitors: ODPP AJA Associates for the accused File Number(s): 2020/00213495 Publication restriction: Non-publication order regarding the identity of the accused and the complainant

JUDGMENT 1. As indicated in an earlier evidentiary ruling in this trial, the accused is charged with multiple sexual offences against the complainant, his daughter, spanning a period of much of her childhood. The last of the alleged nine incidents occurred late in the evening on 19 July 2020. The complainant gave evidence that the incident occurred in her bedroom. 2. Vigorous attacks have been made on the complainant's credibility and reliability, and although complaint evidence has been adduced from other witnesses, it is plainly apparent that one line of attack on the complainant's credit is that she did not act as someone alleging child sexual abuse might have been expected to act. This, it was insinuated, was manifested, amongst other things, by the absence of her complaining to doctors or the Headspace program when she had the opportunity to do so. But it also has manifested in evidence given by a witness called by the Crown, BM, whose terms I will shortly turn to, which explains the present application. 3. To place the issue in context, there is some documentary evidence (Exhibits F and H) indicating that the complainant had recorded to William Bremner, her then boyfriend, of the last incident giving rise to counts 10 and 11, occurring between 11.31pm on 19 July 2020 and 12.16am early on 20 July 2020. 4. During the course of cross‑examining the complainant, Counsel for the accused (at T61. 5 - 61.15) had the following exchange with the complainant. The exchange was as follows: "Q. On 19 July 2020, I suggest to you that he came in and tucked you in and left and nothing sexual occurred. Do you agree or disagree? A. I disagree. Q. After he left your room, you ran to the toilet. Do you agree or disagree? A. I disagree. Q. Your father asked if you were okay. Do you agree or disagree? A. I disagree. Q. And you said, "Yeah, Shark Week." Do you agree or disagree? A. I disagree." 1. Yesterday afternoon, the Crown called BM to give evidence. BM is the brother of the complainant and nearly five years older than the complainant. 2. There is evidence (Exhibit B) to indicate that outside of BM's bedroom there is what several witnesses have identified as a lounge room, although it is described in a floor plan as a 'games room'. Another room outside his bedroom is a dining room. It is apparent on the face of the floor plan that the complainant's bedroom, where the alleged incident giving rise to the counts 10 and 11 occurred, is some distance from BM's bedroom. The floor plan also depicts the single bathroom in the home as being several rooms away from BM's bedroom. 3. In his evidence‑in‑chief, the substance of BM's evidence was that he had gone to work on 19 July, and returned home at the end of the day. He said he went to bed. 4. The exchange between the prosecutor and BM was as follows (T 209.9 – 209.29): "Q. Do you have any recollections about that evening at all? A. I did hear my door was closed, so I heard I could hear people outside my room, but I couldn't hear what they were saying. Q. Around about what time do you think it was that you could hear people outside your room? A. Probably maybe around midnight, between midnight and 1 o'clock. Q. Do you have any specific recollection of a particular time, or is that just a general estimate? A. Just a general estimate. I wasn't too sure. Q. Are you sure about who it was that you heard talking at all? A. I could hear mum, my dad's voice, and I'm pretty sure it was sister's voice. Q. You said… A. I couldn't really hear because the door was closed. Q. You said you're pretty sure. Are you sure of that, or is that something that you're uncertain about? A. I'm uncertain about." 1. In cross examination, BM was relevantly asked about the evidence he had given in his evidence in chief about hearing a conversation between the complainant and the accused (T 211.49 – 212.12): "Q. Just turning to 19 July 2020. You were just asked some questions about voices you heard. How sure can you be that it was (the complainant) and your father? A. I'm pretty sure it was. Q. Did it sound to you it was just a normal tone, or were they yelling at each other: what? A. Whispering, maybe. It was late at night, so they were probably trying to keep quiet. Q. But you're pretty sure you heard them having a conversation. A. Yeah. Q. But you couldn't hear what it was. A. No, I couldn't hear what they were talking about, no." 1. Shortly after this exchange, cross‑examination concluded. The Crown Prosecutor then applied for leave to cross‑examine BM. He indicated that he had three or four questions that he wished to ask BM about the level of his certainty, or put another way, the level of his conviction in recalling a conversation between the complainant and the accused on the relevant evening. 2. The Crown's application was opposed.