R v RJ (No. 2) [2023] NSWDC 156

District Court New South Wales

Medium Neutral Citation: R v RJ (No. 2) [2023] NSWDC 156 Hearing dates: 1 May – 16 May 2023 Date of orders: 4 May 2023 Decision date: 04 May 2023 Jurisdiction: Criminal Before: Abadee DCJ Decision: See paragraph 26 Catchwords: EVIDENCE – Crown application to cross-examine unfavourable witness - Evidence Act 1995 (NSW) s 38 – where witness is alleged to have been present in relation to 2 counts on the indictment – witness is a 'special witness' – Criminal Procedure Act 1986 (NSW) s 306A – application granted Legislation Cited: Criminal Procedure Act 1986 (NSW) s 306A Evidence Act 1995 (NSW) ss 38, 103, 137, 192, 192A Cases Cited: Barney v R [2023] NSWCCA 85 Texts Cited: Nil Category: Procedural rulings Parties: Office of the Director for Public Prosecution (ODPP) RJ (accused) Representation: Counsel: Mr A O'Connor for the Crown Mr P Butterfield for the accused

Solicitors: ODPP David Kelly Lawyers for the accused File Number(s): 2019/00305678 Publication restriction: Non-publication of accused's and complainant's names

judgment 1. As indicated in an earlier evidentiary ruling, the accused is charged on indictment of multiple offences arising from six alleged incidents of indecent assault and sexual intercourse with a child, his granddaughter, throughout the overall period 1 January 2015 to 1 July 2019. All of the incidents were alleged to have occurred in the accused's home at Umina Beach. 2. The Crown adduced evidence about the extended family connecting the complainant, the accused, and all of the complainant's cousins, (Exhibit A). It suffices to say that the accused had three children. Each of those children have many children of their own. There were the CJ siblings, the J siblings, and the E siblings. The parties did not dispute the accuracy of my articulating my impression of it being a large Polynesian family. 3. Returning to the complainant. It is alleged that the first of those incidents occurred between 1 January 2015 and 1 August 2015. The complainant gave evidence that she was in a room with family cousins, among them TE, when the accused came into the bedroom to beckon the complainant and TE out of the room and took them to his bedroom. There, the complainant alleged, he engaged in similar acts of sexual offending against each of TE, and the complainant. 4. This evidence from the complainant was, consistently with the provisions of the Criminal Procedure Act, in the form of pre-recorded interviews with a police officer. The complainant gave three such interviews. The first of those was the most substantial, in terms of its content. Notably, the complainant's evidence of the first of the incidents was omitted from the first, primary, interview that she had with police, and it only emerged in the second interview. (All of the other five incidents were the subject of evidence in that primary interview). 5. In this context, the Crown proposes to call TE. It also seeks an advance ruling pursuant to s 192A of the Evidence Act 1995 (NSW), for leave to cross-examine her under, s 38(1) of the Evidence Act. Mr Crown relied primarily upon s 38(1) (a) and, as became apparent in argument, also s 38 (3) of the Evidence Act. 6. TE is a child. She is 16. In early 2015, at the time of the first alleged incident, she was 8 years of age. In the last quarter of 2019, she was 13. For the purposes of that application the Crown supplied the Court with the transcript of a child interview that TE had with a police officer, DSC Harrison. DSC Harrison is the same officer who had interviewed the complainant. The interview with TE occurred on 18 March 2022, shortly before the original trial. 7. The accused's Counsel does not dispute that the content of that interview was unfavourable to the Crown. In particular, TE denied being indecently assaulted or having sexual intercourse with the accused; and she went so far as to say that she believed that the complainant was lying about what had occurred to TE. Further, she also denied being present when sexual misconduct had been perpetrated by the accused upon anybody else, including the complainant. 8. Nor does the accused's counsel contest that leave should be granted to enable the Crown to cross-examine TE. That concession is appropriate. In this respect, I note that the application does not take the accused by surprise: no point was taken about s 38(6)(a) of the Evidence Act. 9. Counsel for the accused not only accepted that the cross-examination is permissible under s 38(1)(a). He also accepted that the grant of leave should extend to cross-examination of TE under s 38(3), as to certain topics. 10. For the purposes of s 192 of the Evidence Act, leave should be granted. Necessarily, the cross-examination will add to the length of the trial, but not unduly: TE's evidence is material to only one of the six alleged incidents in question. It is not unfair in circumstances where the accused consents to the grant of leave in relation to TE's unfavourable evidence and has anticipated it. Further, the cross-examination by the Crown will occur before the accused's counsel cross-examines TE. Neither of the considerations in s 192(2)(d) or (e) are material. 11. TE's evidence in respect to these issues is important. In his Opening to the jury, counsel for the accused drew to the jury's attention the circumstance of the first alleged incident, also involving TE, was not adverted to by the complainant in her first recorded interview with police. He also referred to other difficulties in the complainant's life. These references in the Counsel's brief opening signalled that the accused intends to attack both the credibility and reliability of the complainant. Both of those things are important, especially in the context of multiple alleged incidents and charges, since, as the Court of Criminal Appeal recently observed in Barney v R [2023] NSWCCA 85, if the trier of fact found that the complainant was less than honest about the circumstances of one incident, that may infect the trier of fact's assessment of her overall honest in a comparatively greater way than if the trier of fact merely doubted the reliability of her recollections about a single incident. Those observations are particularly in point here, given that the first alleged incident (2015) was, to a not insignificant degree, separated in time from the other alleged incidents (2018 and 2019) and at a time when the complainant was only nine years old. 12. As I have noted, subject to qualification, counsel for the accused also generally accepts that the Crown be permitted to cross-examine TE as to her credit. That course is permitted with reference to considerations in s 103(1) of the Evidence Act. He concedes, further, that this challenge to her credit could embrace TE's account of whether or not the accused ever sexually touched her and her own relationship to the accused and also, her loyalty to the family. 13. The real issue is the scope of the cross-examination. Here, the dispute was narrow. In the document (MFI 9) Mr Crown supplied the Court with a document which delineated proposed topics, the disputed topic was described as "The reaction of her (TE's) parents/family to the complainant's disclosure and discussions she had with them". 14. That description implied that TE could be cross-examined on what her parents or other family members had said to her. Indeed, alongside the description in MFI 9, reference was inserted in a passage of TE's interview with Detective Senior Constable Harrison (question and answer 91 to 115) although, in fuller context, the exchange perhaps relevantly started earlier (at least at answer 84). TE, in that passage, indicated that she understood that the complainant was implying that she, TE, had been assaulted by the accused. Then she evinced her awareness of a 'thing' that had come out concerning "Pop" (the accused), and a book. This was possibly a reference to a notebook that the complainant said she had prepared, in which she inserted entries relevant to the alleged incidents, which, for reasons which need not now be referred to, was later destroyed. 15. The interviewer then drew out that it was TE's mother who had told her, for the first time, that the complainant had reported that TE had been 'touched' or sexually assaulted by the accused. 16. In this context, argument centred on whether the topic of the reactions of TE's family to the complainant's disclosure (of what the accused did to her) and discussions that TE had with her family should be the subject of cross-examination. 17. This argument became further refined. Counsel for the accused accepted that the Crown could, effectively, put to TE that she gave evidence out of a sense of family loyalty (family in the broadest sense). His essential point was that it was unnecessary for the Crown to adduce evidence from her as to what other family members actually said to her. Evidence of that kind did not, in his submission, satisfy the requirements in s 103(1), or, if it did, it would not be admissible under s 137 of the Evidence Act. As to the last matter, Mr Butterfield expressed concern that it would be difficult to counteract any prospective evidence from TE about other family members' reactions and could lead the Court down an unnecessary evidentiary line of inquiry about what the E family members, especially her parents, might have said to TE. Specific reference was made also to LE, the father, being TE's support person when she gives evidence. 18. The Crown maintains that evidence of her parents' reaction satisfied s 103(1). The complainant had given some evidence, in effect, of being 'cut off' by the E family, and perhaps other members of the extended family as well, after the complainant had made a disclosure. This was significant in circumstances where, until the complainant's disclosure, the complainant was close to her cousins. The cousins, or other family members, appeared to be aware of the complainant's account of what the accused had done to her in about October 2019; even if it was not until January 2020 when they found out what the complainant had said about what the accused had done to TE. Mr Crown referred to other evidence to suggest that TE had not co-operated with the investigators from October 2019. Evidence about what other family members had said to TE about the complainant, or what the complainant had said about the accused might help explain to the jury why TE, at the age that she was, had given the evidence that she did. 19. On s 137, the Crown emphasised that its focus was not really upon what the E parents or other family members said to TE, or even believed, about what the Complainant had asserted. What counted was only TE's perceptions of the family members' attitudes. Mr Crown envisaged that he could lead TE on this matter in his examination‑in‑chief and thereafter cross‑examine her, assuming her evidence was unfavourable to the Crown. 20. In response, and as a fallback position to this submission, counsel for the Accused accepted (if his primary argument was rejected) that the Crown could cross‑examine TE on her perceptions of how her parents or family had reacted to the Complainant's disclosure and her discussions with them. He also submitted that there was a concern that the jury might draw adverse conclusions against the Accused from whatever evidence might be adduced about what other family members had said to TE. 21. I find the distinction between TE's perceptions of other family members' attitudes and what they actually said to her, to be rather elusive. Conceivably, what, if anything, they said to TE might influence her course of conduct. It appears, moreover, from her recorded interview that TE's mother did speak to her daughter about the Complainant's assertion that the Accused had sexually abused TE, and that this, to a degree, set the stage for TE's confrontation with the Complainant at the end of 2019, about which some evidence was given. 22. Counsel for the Accused did not point to s 103(2)(b) as presenting a barrier to cross examination on this topic. In my opinion, evidence of what other family members had said to TE was substantially probative. She was, at late 2019, only 13 years of age. At the risk of crass cultural stereotyping a jury might think that family links between a Polynesian family are very strong and important and the effect of the Complainant's disclosure about what the Accused had done to her and to TE could cause those links to be gravely impaired. Aside from that mode of thought, there was evidence pointing to a sharp decline in the attitude of the E family, in particular, towards the Complainant after she had made disclosure: if, as counsel for the Accused in my view correctly accepted, she could be challenged on her loyalty to her family, it is but a short step to permit the Crown to cross examine her on what, if anything, that was said by her family, especially her parents, which instilled, or possibly reinforced, in her a sense of loyalty, which in turn might explain her reluctance to speak about what the Accused had done to her or to TE. 23. I am also satisfied for similar reasons as I did in relation to the Crown's apprehension about proposed unfavourable evidence, that the considerations in s 192 favour a grant of leave that would otherwise follow under s 38(3). 24. That then leaves the question of s 137. As I understand the position, neither Mr nor Mrs E are Crown witnesses. In my view, the probative value of the evidence is not outweighed by the danger of prejudice. It is plain the Crown will not be suggesting to TE that the Accused himself, had anything to do about influencing what she might say to police. The focus on the questioning is what the parents or other family members said to her. If sought, I would be inclined (subject to receiving further argument) further to direct the jury in the summing up that evidence of what, if anything, those other family members said to her was not itself evidence relating to the probability of the Accused committing the alleged offences but related only to the credit of TE and, further, no inference adverse to the Accused could be drawn from what she said in that regard. 25. I think some break or control should be imposed. The Crown should only be permitted to enquire about TE's discussions with her parents and her siblings. 26. Pursuant to s 38(1) and to the extent it does not coincide, s 38(3), leave is granted to the Crown to cross-examine TE on the matters that are referred to in paragraph 5 of MFI 9, with this variation. In the dot point which carries the subtitle "Credibility", it seems to me for the sake of clarity and reflective of the reasons that I have given, that the Crown is permitted to cross‑examine TE about what her immediate family had said to her and her own perceptions as to the Complainant's disclosure and discussions she had with them.