District Court New South Wales Medium Neutral Citation: R v RM (No 3) [2023] NSWDC 92 Hearing dates: 14 March – 27 March 2023 Date of orders: 23 March 2023 Decision date: 23 March 2023 Jurisdiction: Criminal Before: Abadee DCJ Decision: See paragraph 15 Catchwords: CRIMINAL PROCEDURE – child sexual offences - 11 alleged sexual offences by biological father against biological daughter – Crown indication of intention to rely upon a statutory alternative to Count 5 on indictment – indication opposed – whether reliance on s 80AB of the Crimes Act 1900 (NSW) can be invoked after trial has already commenced Legislation Cited: Crimes Act 1900 (NSW) ss 61Q, 66C, 66E, 80AB, 80AF Criminal Procedure Act 1986 (NSW) ss 20, 21 Cases Cited: Borodin v R [2006] NSWCCA 83 Stephens v The Queen [2022] HCA 31 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. On 23 April 2021, the accused was arraigned and pleaded not guilty to 11 counts on an indictment of sexual offences allegedly committed against the complainant, his daughter. The counts on the indictment arise from nine alleged incidents, which, as indicated in the indictment, spanned a period whose date range began on 1 June 2011 and ended on 19 July 2020. 2. It is an agreed fact that the complainant was born on 17 January 2002, which means that for the date range of offences the subject of the counts on the indictment, it is alleged that the offences occurred when she was aged between 9 and 18. 3. Count 5 is currently in the following terms, being that contrary to s 66C(2) of the Crimes Act 1900 (NSW) (the "Crimes Act"): "Between 17 January 2015 and 31 December 2015 at Glendenning in the state of New South Wales, the accused had sexual intercourse with [the complainant] a person above the age of 10 years and under the age of 14 years, namely 13 years in circumstances of aggravation, namely [the complainant] was under his authority." 1. The Crown proposes to rely upon a statutory alternative charge based upon s 66(4). Section 66(4) is in the following terms: "Any person who has sexual intercourse with another person who is of or above the age of 14 years and under the age of 16 years in circumstances of aggravation is liable to imprisonment for 12 years." 1. The alternative charge, as I understand it, is in the following terms: "That between 17 January 2015 and 16 January 2017, at Glendenning in the state of New South Wales, the accused had sexual intercourse with [the complainant] a person above the age of 10 years and under the age of 16 years, namely 13 or 14 years, in circumstances of aggravation; namely, [the complainant] was under his authority." 1. The Crown relies upon the now s 80AB of the Crimes Act, which is in materially the same terms to the former s 66E(4). 2. The accused objects to the proposed alternative charge. 3. He submits, firstly, that the alternative charge extends the date range from existing count 5. The accused notes that the complainant, in her evidence, indicated (at T 38.50) that she thought she was 13 or 14 when giving evidence about the alleged event giving rise to count 5. The evidence‑in‑chief was left in that state, and the accused's Counsel made, so it was said, forensic decisions on the basis of that evidence. If the true position was that she was 14, then the alleged occurrence would have fallen outside of 31 December 2015, which is the later date range for count 5. For the Crown to use an alternative charge through extension of the range of the victims age was extremely prejudicial as the accused faces the prospect of losing a chance of acquittal on count 5. 4. Secondly, the accused submits that s 80AB cannot be available. In this respect, the accused notes that, initially, the Crown foreshadowed its reliance upon s 80AF of the Crimes Act 1900 (NSW), but it later abandoned that reliance. Section 80AB came into operation at the same time as s 80AF. Instead, at the time of the commission of the alleged offence, s 61Q was in operation. There was no equivalent provision to s 80AB(9) within s 61Q of the Crimes Act, as it then was. The accused argues that the reasoning in the High Court's decision of Stephens v The Queen [2022] HCA 31 ("Stephens"), though expressly directed at s 80AF, extends also to s 80AB. In particular, after a trial had commenced, as it had been here, it was improper for the Crown to rely upon a provision which would extend the accused's criminal liability. 5. The Crown submits that the Crown is entitled to rely upon the statutory alternative in s 66(4), facilitated by s 66E(4), where the complainant said she was unsure whether she was aged 13 or 14 at the time. There was no unfairness to the accused in a context where it is apparent that his defence, as articulated in a body cam discussion with police and in his ERISP, is that he never engaged in any sexually improper conduct towards the complainant. Besides, dates and times were beside the point. The Crown submitted that the accused has not demonstrated how his case would have been conducted differently or pointed to a loss of any tactical advantage. In those circumstances, the consideration of fairness should work the other way: the Crown should be entitled to rely upon the statutory alternative. 6. In relation to Stephens, the Crown implicitly argues that s 80AF(9) is addressed to a different situation to that of s 80AB. Amongst other things, it allowed the Crown to rely upon a less serious offence where there was a change in legislation. In particular, the provision was different, directed for the type of situation addressed in the decision of Gilson. Consideration 1. I shall deal with the accused's first submission about prejudice. In the sense that no application to amend is actually made, but the Crown is laying an alternative under s 80AB(9), strictly speaking, in my view, considerations of fairness which might attend an application to amend under s 20 or s 21 of the Criminal Procedure Act are irrelevant. But even if they were, it is difficult to accept the complaint about unfairness, when legislative provision has indicated the prosecution's entitlement to rely upon an alternative charge, being s 66(4), in the circumstances that have occurred. Even if, which is highly doubtful, the accused's Counsel took any tactical decision on the basis of the complainant's age, as it had been left from the complainant's evidence in chief, it would not follow that the accused would refuse leave to amend simply because the tactical decision would be rendered fruitless: Borodin v R [2006] NSWCCA 83 per Howie J (Sully J and Simpson J agreeing) at [25]. 2. As to the accused's second submission, it appears that s 80AB(9) and s 80AF both came into operation on the same date, being 1 December 2018. Unlike the accused's position in Stephens, s 80AF (and s 80AB(9)) came into force before the accused in this trial had entered pleas. Indeed, the provisions came into effect before the last of the alleged incidents had occurred (being 19 July 2020), before police received complaint and even before the accused was even charged. Nevertheless, as the High Court explained in Stephens at [45] -[47], s 80AF may be invoked by the prosecution only at the commencement of a trial, not after the trial has already commenced. 3. The question becomes whether the reasoning in s 80AF extends to s 80AB(9). I am not persuaded that it does. The plurality of reasoning at paragraphs [14] - [19] indicates that s 80AF is directed to different legislative purposes to that of s 80AB(9). Section 80AB(9) is substantively in the same terms as the former s 66E(4), which operated at the time of the offences in question and before the trial commenced. There has not been any material change to s 66C(2), or s 66C(4), from the date when the alleged offending occurred and from the date when the trial commenced. There is no retrospective extension of criminal liability. It is the case that the Crown relying upon an alternative charge which statutory provision was in place at the time that the trial commenced authorised. There is no indications in the text, or legislative context or purpose, that s 80AB(9) would have the serious effect of visiting a restriction upon the Crown's capacity to rely upon an alternative charge. 4. The accused's opposition to the Crown's reliance upon the alternative to count 5 is rejected. ********** 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