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. The Application 1. Mr Crown submitted that BM's evidence given in cross‑examination was unfavourable to the Crown case and therefore satisfied the condition in s 38(1)(a) of the Evidence Act 1995 (NSW). Asked to identify how it was unfavourable, Mr Crown said that it was evidence which conflicted with the complainant's evidence, which had omitted to give an account of conversation with the accused after the incident giving rise to counts 10 and 11. Although the prosecutor did not refer in terms to s 38(1)(c), he said that the witness' evidence was also internally inconsistent with evidence that the witness had given in his evidence‑in‑chief. 2. Mr Crown argued, with reference to s 38(6)(a), that the Crown had given notice of the Crown's intention to apply for leave to cross‑examine this witness. The content of that notice was not in evidence on the application, but no point was taken by Counsel for the accused that notice had not been given. For that matter, no point was taken by Counsel for the accused that s 38(6)(b) militated against the grant of leave. 3. With reference to matters in s 192(2), Mr Crown submitted that the matters in s 192(2)(a) and (e) were immaterial. As to s 192(2)(b), he submitted that there would be no unfairness to the accused, but if anything an unfairness to the Crown if leave was not permitted, given the inconsistency in BM's evidence. As to s 192(2)(c) and (d), Mr Crown submitted that this was the most salient consideration. If there was a conversation between the complainant and the accused after the last of the incidents giving rise to counts 10 and 11, this could be significant in aiding the accused's case for the mere fact of what a conversation occurring soon or shortly after alleged child sexual abuse might convey to the jury about the likelihood of that sexual abuse occurring beforehand. 4. Counsel for the accused submitted, firstly, that the application was too late. It was brought after the cross‑examination of the witness had concluded. Secondly, although the statement was not tendered on the voir dire, Counsel for the accused read out part of BM's police statement, in which he had told police that he had heard a conversation between the accused and the complainant at 2am on 20 July, so the Crown was on notice of this account by BM of hearing a conversation. That, BM said in his evidence, that he was pretty sure that he had heard a conversation between the complainant and the accused very early on 20 July was not 'unfavourable' but was consistent with what the witness had previously told police. 5. Alternatively, if the condition in s 38(1)(a) was satisfied, Counsel for the accused argued that, with reference to s 192(2)(b) of the Evidence Act, it would be unfair to allow the Crown to cross examine when the witness had addressed the issue, both in his evidence in chief and in cross examination, and where ex hypothesi, Counsel for the accused would be deprived of further opportunity to cross examine the witness. Consideration 1. There is no doubt that a broad interpretation can be given to s 38(1)(a), but it is not enough that the impugned evidence is neutral (Klewer v Walton [2003] NSWCA 308). 2. On the Crown's apparent alternative argument, I do not see how the jury might consider that there is an inconsistency. It may be thought that there is a degree of semantics in discriminating his evidence‑in‑chief between his being 'uncertain' about hearing his sister's voice in a conversation with or involving the accused, and being 'pretty sure' that he had heard her voice. 3. But in my view, even if there was no real inconsistency, it would be too narrow a construction of s 38(1)(a) to confine a situation where the party is seeking to rectify inconsistent accounts of a witness' evidence. Clearly, s 38(1)(a) has broader work to do than s 38(1)(c). 4. Whilst it is dangerous to gloss the section, it appears to me that whether evidence is unfavourable is practically gauged by whether it is against the interests of or unhelpful to the party calling the evidence (Adam v The Queen (2001) 207 CLR 96 at [27]). In my view, the evidence of BM of overhearing a conversation between what he identified as the accused and the complainant at a point where, according to the witness' estimation, it may well have occurred after the last alleged incident of child sexual abuse, satisfies the criterion of it being unfavourable. The fact of the conversation occurring at all could be regarded as unfavourable, even if the degree of its being unfavourable may be affected by the witness' inability to recall the content of the conversation. 5. I do not accept the circumstance that the Crown has left its application to after the cross‑examination as fatal to the application. Plainly, the witness is close to the accused, although of course the same thing can be said about his relationship to the complainant. Although it may be accepted that the Crown was on notice of the witness' likely evidence about the fact of a conversation, that is not determinative. It was not, at any rate, obviously predictable that the witness would move from what, on one view, was a diffident statement by him in hearing the voice of the complainant and the accused, to a more confident statement of having heard the complainant's voice when he gave evidence of the conversation in cross‑examination. 6. I do not regard there being unfairness in the timing of the application, even on the face of what the witness apparently said in his police statement. The issue of unfairness in the present context is, in my view, more concerned with practical forensic choices the parties may make. Counsel for the accused did not explain how she would have acted differently in a material sense if she knew that the present application would be deferred until after cross examination. What is critical is that the jury receive all relevant evidence available to it on the topic: Burrell v The Queen (2009) 196 ACR 199 ("Burrell") at [212]. I am also mindful that the Crown has already had the opportunity in evidence in chief when asking the witness his degree of confidence. But the reality is that from the point of the witness' evidence in chief to his cross examination, the witness had indicated a stronger degree of conviction in hearing the complainant in conversation, and that is the last impression that the jury has of his evidence in that respect. He moved from uncertainty as to whose voices he heard (whilst implicating his mother as a potential interlocutor) to a sense of conviction that it was (only) the voices of his sister and father. This movement is unfavourable to the Crown. 7. Turning to the considerations under s 192, the accused's Counsel only referred to s 192(2)(b), being the consideration of fairness. This type of argument was rejected in not dissimilar circumstances arising in R v Parkes (2003) 147 ACR 450, where it was determined that there was no unfairness in the Crown deferring a s 38 application until after cross examination by the defence where the prosecutor was already on notice that the witness was likely to give unfavourable evidence on a particular issue. It is true that the circumstances in that case are distinguishable, since in Parkes, the prosecutor deliberately refrained from asking questions at all about unfavourable evidence, whereas here, Mr Crown did venture into examination in chief on the evidence which he may have anticipated would be unfavourable. But pertinently, Ipp J said (with Hulme and Bell JJ agreeing), at [81] - [83], that there is nothing intrinsically unfair in the Crown utilising the provision to obtain 'the best of both worlds' by watering down the effective evidence the witness had given where, by reason of the grant of leave, a truer picture of the situation was presented to the jury than if leave was refused. 8. The accused Counsel's point that she had put to the complainant in her evidence such a conversation is not compelling. It would be open to the jury to consider that the propositions that the accused's Counsel put to the complainant in her evidence such a conversation is not compelling. It would be open to the jury to consider that the propositions that the accused's Counsel put to the complainant at T 61, presumably on the basis of the accused's instructions, may represent only a very brief encounter in which a small number of words in the nature of salutations were exchanged, rather than a 'conversation'. Be that as it may, as I have indicated, if the jury was to the find that 'conversation' occurred, as was put to the complainant, it might be that the jury would find that the conversation occurred, possibly several rooms away from the witness' bedroom, when his bedroom door was closed when, according to the witness, the voice he heard were whispers. 9. At any rate, I consider that the concern about forensic prejudice can be addressed by other means, as indicated below. 10. I accept that having regard to the way that the accused has run his case, including his challenge upon the complainant's credibility, featuring actual or implied assertions that she did not act consistently with how someone in her position would be expected to have acted, the possible circumstance of her having a conversation with the accused, after an incidence of child sexual abuse, in whispering terms, may of itself generate doubt in the jury's mind. The Crown is entitled to test whether the witness' evidence truly represents the full picture. 11. In my view, the accused's position and concern about unfairness can be protected by affording opportunity to the accused's Counsel for leave to further cross examine after the Crown has invoked the limited grant of leave. This course appears facilitated by s 38(4) and (5), and a similar expedient was approved by the Court of Criminal Appeal in Burrell at [192] and [211]. It was pointed out in that case that an alternative course for the same effect would be to admit the Crown leave to re-open in chief, followed by an opportunity to the accused to cross examination thereafter. None of the matters in s 192(2) militate against the grant of leave. To the contrary, given the narrow of the scope of the proposed cross examination, they support it. 12. For these reasons, I accede to the application in the narrow terms that the Crown has proposed. Formally, I direct that, for the purposes of s 38(4), leave to the Crown to cross‑examine the witness is granted, with further opportunity for the accused thereafter to cross‑examine, also being limited to the topic the subject of the grant of leave under s 38. ********** 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: 12 April 2023