R v RB; Attorney-General (NSW) as Intervenor (No 3) [2019] NSWDC 588

District Court New South Wales

Medium Neutral Citation: R v RB; Attorney-General (NSW) as Intervenor (No 3) [2019] NSWDC 588 Hearing dates: On the papers Date of orders: 23 October 2019 Decision date: 23 October 2019 Jurisdiction: Criminal Before: GRANT DCJ Decision: The fabrication evidence is caught by s 293(3) of the Criminal Procedure Act, with no applicable exception in s 293(4). Catchwords: CRIMINAL PROCEDURE — Sexual offence proceedings — Admissibility of evidence related to lack of sexual experience — Admissibility of evidence related to false complaints — Legislation Cited: Criminal Procedure Act Cases Cited: Allan v R [2017] NSWCCA 6 Dimian v R (1995) 83 A Crim R 358, R v RB; Attorney-General (NSW) as Intervenor (No 2) [2019] NSWDC 511 R v RB; Attorney-General (NSW) as Intervenor [2019] NSWDC 368 Rolfe v R [2007] NSWCCA 155 Spratt v Director of Public Prosecutions [2010] NSWSC 355 Taleb v R [2015] NSWCCA Category: Procedural and other rulings Parties: Regina (Crown) RB (Accused) Representation: Counsel: M Kumar (Crown) F Graham (Accused)

Solicitors: Solicitor for Public Prosecutions (Crown) Aboriginal Legal Service NSW/ACT (Accused) File Number(s): 2017/0056625 Publication restriction: Identifier of Accused and Complainant

Judgment 1. These reasons for judgment must be read in conjunction with R v RB; Attorney-General (NSW) as Intervenor [2019] NSWDC 368 and R v RB; Attorney-General (NSW) as Intervenor (No 2) [2019] NSWDC 511. 2. By notice of motion dated 1 October 2019 the accused seeks "reasons to be given in relation to grounds 6(b) and 6(c) of the amended notice dated 2 November 2018". It is agreed between the parties that the reasons may be given by way of further judgment or amendment of the original judgment without the Court reconvening. 3. The relevant parts of the 2 November notice of motion read: "6b. The exception in subsection 293(4)(c) CPA applies: whereby the accused is alleged to have had sexual intercourse with the complainant and does not concede the sexual intercourse so alleged and the evidence of the complainant's history of fabrications is relevant to whether injury (in the nature of bruised ribs and/or bleeding anus is attributable to the sexual intercourse so alleged in particular, the complainant's history of fabricating sexual assault allegations and assault allegations, including reporting injuries as a result of the fabricated incidents, is relevant to whether the complainant should be believed when she asserts that certain injuries are attributable to the alleged sexual intercourse with the accused. 6c. The exception in subsections 293(4)(f), (5) and (6) CPA applies to some or all of the evidence: whereby the evidence has been disclosed or implied in the case for the prosecution against the accused and the accused might be unfairly prejudiced if the complainant could not be cross-examined on behalf of the accused in relation to the evidence." 1. S 293 of the Criminal Procedure Act ('CPA') provides: "293 Admissibility of evidence relating to sexual experience (1) This section applies to proceedings in respect of a prescribed sexual offence. (2) Evidence relating to the sexual reputation of the complainant is inadmissible. (3) Evidence that discloses or implies — (a) That the complainant has or may have had sexual experience or a lack of sexual experience, or (b) has or may have taken part or not taken part in any sexual activity, is inadmissible. (4) Subsection (3) does not apply— (a) if the evidence — (i) is of the complainant's sexual experience or lack of sexual experience, or of sexual activity or lack of sexual activity taken part in by the complainant, at or about the time of the commission of the alleged prescribed sexual offence, and (ii) is of events that are alleged to form part of a connected set of circumstances in which the alleged prescribed sexual offence was committed, (b) if the evidence relates to a relationship that was existing or recent at the time of the commission of the alleged prescribed sexual offence, being a relationship between the accused person and the complainant, (c) if— (i) the accused person is alleged to have had sexual intercourse (within the meaning of Division 10 of Part 3 of the Crimes Act 1900) with the complainant, and the accused person does not concede the sexual intercourse so alleged, and (ii) the evidence is relevant to whether the presence of semen, pregnancy, disease or injury is attributable to the sexual intercourse alleged to have been had by the accused person, (d) if the evidence is relevant to— (i) whether at the time of the commission of the alleged prescribed sexual offence there was present in the complainant a disease that, at any relevant time, was absent in the accused person, or (ii) whether at any relevant time there was absent in the complainant a disease that, at the time of the commission of the alleged prescribed sexual offence, was present in the accused person, (e) if the evidence is relevant to whether the allegation that the prescribed sexual offence was committed by the accused person was first made following a realisation or discovery of the presence of pregnancy or disease in the complainant (being a realisation or discovery that took place after the commission of the alleged prescribed sexual offence), (f) if the evidence has been given by the complainant in cross-examination by or on behalf of the accused person, being evidence given in answer to a question that may, pursuant to subsection (6), be asked, and if the probative value of the evidence outweighs any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission. (5) A witness must not be asked— (a) to give evidence that is inadmissible under subsection (2) or (3), or (b) by or on behalf of the accused person, to give evidence that is or may be admissible under subsection (4) unless the court has previously decided that the evidence would, if given, be admissible. (6) If the court is satisfied— (a) that it has been disclosed or implied in the case for the prosecution against the accused person that the complainant has or may have, during a specified period or without reference to any period— (i) had sexual experience, or a lack of sexual experience, of a general or specified nature, or (ii) had taken part in, or not taken part in, sexual activity of a general or specified nature, and (b) the accused person might be unfairly prejudiced if the complainant could not be cross-examined by or on behalf of the accused person in relation to the disclosure or implication, the complainant may be so cross-examined, but only in relation to the experience or activity of the nature (if any) so specified during the period (if any) so specified. (7) On the trial of a person, any question as to the admissibility of evidence under subsection (2) or (3) or the right to cross-examine under subsection (6) is to be decided by the court in the absence of the jury. (8) If the court decides that evidence is admissible under subsection (4), the court must, before the evidence is given, record or cause to be recorded in writing the nature and scope of the evidence that is so admissible and the reasons for that decision. (9) (Repealed)"