R v RM (No 5) [2023] NSWDC 94

District Court New South Wales

Medium Neutral Citation: R v RM (No 5) [2023] NSWDC 94 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 17 Catchwords: CRIMINAL PROCEDURE - 11 alleged sexual offences against biological daughter – application for judicial intervention regarding Crown's closing address – inference of explanation for why there was delay in bringing complaint – distinction between evidence relating to the probability that the complainant lied and a motive for lying Legislation Cited: Nil Cases Cited: Nil 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. Yesterday, Mr Crown gave his closing address to the jury. 2. At the conclusion of that address, just before the Court adjourned for the day, and in the absence of the jury, Counsel for the accused raised two matters which she submitted Mr Crown should withdraw in the presence of the jury before she commenced her closing address this morning. 3. The first of the two matters she referred to concerned the Crown's treatment of count 1 on the indictment. The transcript of what was said on that subject was as follows, (T.298.16 to T298.29): "I submit to you, when you think about it, when you analyse it, you'll find that her account is a highly credible one. Now, you must remember that it's never for the accused to prove anything in this trial. It's the Crown that bears responsibility for proving this offence beyond a reasonable doubt at all stages. The accused has got nothing to prove. But you might consider that if [the complainant] was fabricating a story in relation to count 1, making something up that didn't happen, you might think that choosing a story where the accused was doing sexual things to her right next to her mother is a story that one wouldn't choose if one was fabricating. Again, that's one aspect that you might like to consider in relation to count 1. Again, I stress, you're never to ask yourself why would [the complainant] make up these things, but it reflects on the textured story, the detail. When you think about it in these terms, you're able to reason that this is something that really happened to [the complainant]." 1. In relation to count 3, Mr Crown submitted to the jury: "The detailed description that [the complainant] gives in relation to count 3, members of the jury, is something that you might think lends this account a higher degree of credibility. Again, the submission that I make in relation to count 1 might have some application. If [the complainant] was making up these allegations, again, it's not for you to ask yourself why would [the complainant] lie about it, but it's a situation that you might think had a ring of truth to it." 1. Counsel for the accused did not specifically object to this part of the Crown's address. It is also to be noted that subsequent to this part of the address, Mr Crown specifically addressed, as a topic in his address, the matter of the posited motive to lie. In that context, Mr Crown said (at T310.26 – 301.35): "…there were some questions asked of [the complainant] and other witnesses that may have indicated to you that [the complainant] wanted to move out of the house, either with William Bremner or Leia Ronald, and it might be suggested to you that [the complainant] may have a motive to make up these allegations because she wanted to move out of the family home. Again, I stress, and his Honour will tell you this, it's not for the accused to prove anything. The accused doesn't have to prove that [the complainant] wanted to move out of the house, but I'm putting this before you so you can assess whether that is a reasonable possibility, whether that reasonable possibility would cause you a doubt about the allegations in this trial." 1. The second matter about which complaint was made concerned the part of the Crown's address concerning complaint evidence. In that context, the Crown addressed the jury on a point he anticipated the accused's counsel would raise, concerning the complainant's omission to take advantage of earlier opportunities to complain (T306), before addressing the jury on the evidence of her complaints. He said (at T307.11 – 307.24): "Now, [the complainant] was in a position, you might think, where she'd been offended by the accused over a great many years. She was around about the age of 18 and she was developing independence. She was developing her own identity outside of the household in which the accused lived and committed offences against her. You might think that this is something of a natural progression in terms of getting to a position where you're comfortable speaking about these things, these things the accused did to her, the accused being so completely enmeshed in her life, part of the fabric of her life. He'd looked after her through a heart surgery, he'd taken care of her, washed her hair. Exhibit 3, the messages. Completely intertwined with his life. You could readily understand, members of the jury, why she wouldn't say things until the time that she did. The fact that she didn't complain immediately about the earlier events, members of the jury, would not cause you a reasonable doubt about her truthfulness concerning the 11 allegations before you." 1. Later, in a similar vein (T 308.36 – 308.44), Mr Crown said: "You'd recall, of course, Deborah Lang is Leia's mother, and she told you that after this discussion she had a discussion with [the complainant] in which [the complainant] said the accused had been sexually abusing her from when she was very young as well. It may be supportive of this finding that you might make, or your assessment of the evidence, that [the complainant] was getting old and becoming more dependent (sic), having more meaningful relationships outside the sphere of the home in which the accused was, and being more willing to make disclosures at that time about what the accused was doing to her." 1. Counsel for the accused did not object to this particular part of the Crown's address. 2. Mr Crown did not indicate any disposition to withdraw, correct, or qualify his submissions. The issues now becomes whether the Court should intervene, and if so, how.