BB v The Queen (No 2)

[2017] NSWCCA 142

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	BB v R (No 2) [2017] NSWCCA 142
Hearing dates:	9 June 2017
Date of orders:	23 June 2017
Decision date:	23 June 2017
Before:	Hoeben CJ at CL at [1] Garling J at [2] Hamill J at [43]
Decision:	Leave to appeal granted to applicant BB; appeal dismissed – Crown appeal dismissed.
Catchwords:	CRIMINAL LAW – whether context evidence improperly excluded – where context evidence of uncharged illegal acts post-dating charged offences – whether necessary to assist jury in understanding complainant’s evidence – whether necessary to explain why an immediate complaint was not made – whether risk of unfair prejudice to applicant by jury conflating charged and uncharged acts – whether risk of jury engaging in impermissible tendency reasoning – whether Crown case substantially weakened  CRIMINAL LAW – application for permanent stay – leave to appeal against refusal – interlocutory judgment or order – where complainant’s evidence to be presented by playing recording of evidence given in earlier trial – re-trial after successful appeal – relevant legislation – absence of discretion in trial judge – where conduct of earlier trial said to be incompetent – failure to distinguish counts from uncharged acts – cross-examination lacking forensic purpose – whether court can predict whether future trial will be unfair – whether stay appropriate when unfairness the result of statute – appeal against refusal to stay dismissed
Legislation Cited:	Children (Criminal Proceedings) Act 1987 Crimes Act 1900 Criminal Appeal Act 1912 Criminal Procedure Act 1986 Director of Public Prosecutions Act 1986 Evidence Act 1995
Cases Cited:	B v The Queen [1992] HCA 68; (1992) 175 CLR 599 Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75 BB v R [2015] NSWCCA 308 Browne v Dunn (1893) 6 R 67 Grills v The Queen [1996] HCA Trans 273; (1996) 70 ALJR 905 HML v The Queen, SB v The Queen, OAE v The Queen [2008] HCA 16; (2008) 235 CLR 334 IMM v The Queen [2016] HCA 14; (2016) 257 CLR 300 Jago v District Court of New South Wales [1989] HCA 46; (1989)168 CLR 23 Qualtieri v R [2006] NSWCCA 95; (2006) 171 A Crim R 463 R (Cth) v Rapolti [2016] NSWCCA 264 R v AH (1997) 42 NSWLR 702; 98 A Crim R 71 R v ATM [2000] NSWCCA 475 R v Glennon [1992] HCA 16; (1992) 173 CLR 592 R v Littler [2001] NSWCCA 173 R v MSK and MAK [2004] NSWCCA 308 R v PJE unreported CCA (NSW) 9 October 1995 (Cole JA, Grove and Sperling JJ) R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228 R v SJRC [2007] NSWCCA 142 R v Westley [2004] NSWCCA 192 R v X [2014] NSWCCA 168 S v The Queen [1989] HCA 66; (1980) 168 CLR 266 X7 v R [2014] NSWCCA 273
Texts Cited:	Not Applicable
Category:	Principal judgment
Parties:	The Crown (Applicant/Respondent) BB (Applicant/Respondent)
Representation:	Counsel: E. Balodis J. Mitchell     Solicitors: K Ginges (BB) C Hyland (Crown)
File Number(s):	2012/73909
Publication restriction:	Published on completion of trial and sentencing on 20 November 2019
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 16 March 2017 Before: North DCJ File Number(s): 2012/73909

Judgment

1. HOEBEN CJ at CL: I agree with the judgments of Garling J and Hamill J and the orders they propose.  Nothing in this judgment should be taken as precluding BB from pursuing his appeal rights (if available) at the conclusion of the trial

2. GARLING J: The history of these proceedings, the chronology of relevant events and the allegations which found them are set out in the judgment of Hamill J. I gratefully adopt his Honour’s summary of these matters which includes the evidence the exclusion of which the Crown impugns in its appeal.

3. I agree with Hamill J that BB’s application for leave to appeal ought to be granted, and that the appeal ought to be dismissed. I agree with his Honour’s reasons for those orders.

4. However, it is necessary to deal with the Crown Appeal. On 17 March 2017, the Acting Director of Public Prosecutions filed a Notice of Appeal pursuant to s 5F(3A) of the Criminal Appeal Act 1912.

5. The appeal was against a decision or ruling given by North DCJ (“the primary Judge”) in the District Court on 16 March 2017. At the conclusion of a voir dire, the primary Judge refused to admit context evidence of sexual contact and an ongoing sexual relationship between the complainant and BB in the period after 1 January 2000 and up to December 2002, which post-dated the alleged criminal offending in Count 6 on the Indictment. I will refer to this conduct as the “disputed context evidence”. The Crown argued that the primary Judge erred in refusing to admit that evidence.

6. The Crown’s right of appeal is constrained in s 5F(3A) of the Criminal Appeal Act to a decision or ruling which “… eliminates or substantially weakens the prosecution’s case”.

Voir Dire Judgment

7. The judgment of the primary Judge, which he delivered on 16 March 2017 after a voir dire, covered the application made by the accused, BB, for a permanent stay and also the issue of the admissibility of the disputed context evidence.

8. His Honour’s judgment said this:

“In regard to evidence post-dating the final charge, namely 1 July 2000, I have come to the conclusion that the evidence is irrelevant. It cannot be said to assist the jury to understand the six charges on the Indictment. It could only have been tendency evidence going to propensity and there is no tendency notice and the time is passed for one to be filed. Further, if led as relationship evidence, it could cause confusion and lead to the jury applying tendency reasoning. Accordingly, such evidence, apart from the 2010 complaint evidence, which post-dates 1 July 2000, is not admissible and in accordance with s 306B and s 306C of the [Criminal Procedure Act] the original evidence should be edited.”

9. Immediately prior to stating his conclusion in this way, his Honour also considered other evidence which was described as context evidence dealing with the time during the whole period encompassed by the indictment. With respect to that evidence, he said:

“With originally 7 charges and now 6 extending over 7 years, I find that the purpose of the evidence is to place the specific allegations in the Indictment in the context of the complainant’s overall allegations against the accused in order to assist the jury in understanding the particular allegations in the charges. I find evidence of occurrences between and near to the time of the offences is capable of providing context to the complainant’s allegations. Without such evidence, the actual charges being spread over 7 years may give the jury the false impression that they are out of the blue or occurred in startling isolation or may help to explain the long delay between the 1993 and the 2010 complaints.”

Crown Case Statement

10. In order to deal with the objection to the disputed context evidence, the Crown put before the primary Judge as the basis for its argument as to admissibility, its case statement which included the following paragraphs relevant to the disputed context evidence. That case statement said in part:

“The relationship between the accused and the complainant after the events, the subject of Count 6

37.   In August 2000 [the accused’s wife] and the accused separated. The accused moved out of the family home in […] and moved a short distance away to […]

38.   The complainant began to stay at the home of the accused once or twice per week.

39.   On most of her visits, the complainant was sexually assaulted by the accused. This would take place in his bed in his bedroom. The complainant states that the sexual assaults were always the same. The accused would insert his erect penis into the complainant’s vagina whilst in the missionary position. The accused would then ejaculate inside the complainant. The sexual assaults never took place in any other part of the bedroom or other parts of the house. The accused never deviated away from sexually assaulting the complainant in the missionary position.

...

46.   On 30 June 2010, the complainant disclosed the history of sexual abuse to [her mother]. On 1 July 2010, the complainant and [her mother] attended Parramatta Police Station and reported the history of sexual abuse to police.”

11. What has been extracted here does not include paragraph 40 to 45 of the Crown case statement which was tendered to the primary Judge as part of the disputed context evidence which the Crown intended to lead. That material no longer falls for consideration because the Crown, in this Court, properly conceded that such evidence was not admissible, and that it would form no part of the Crown case at any retrial. These matters are described in outline by Hamill J at [78].

12. In the proposed opening to the jury, a copy of which was also provided to the Judge, the Crown proposed to explain to the jury this:

“The Crown relies on the evidence of sexual contact after the events of Count 6 as follows:

●   It places the earlier events into their proper and understandable context – without the evidence of the continuation of the sexual contacts, the evidence would end, abruptly and strangely, with the complainant’s evidence concerning Count 6. That unreal scenario would be difficult for you to understand and accept and would have an adverse effect on your assessment of the complainant’s credibility.

●   The continuation of sexual contact, and the close intimate relationship with the accused, helps to explain why the complainant did not complain to anybody at the time.”

13. These extracts make plain the Crown’s intention that evidence of the post-2000 conduct of the accused would be adduced as context evidence to establish, inter alia, the break-up of the marriage between the accused and the complainant’s mother, and an ongoing sexual relationship which in combination would provide an explanation for the time which elapsed between Count 6 on the Indictment (which was alleged to have occurred between January 1998 and January 2000) and the complainant’s complaint in 2010.

Crown Submissions

14. The Crown submitted that the fundamental difficulty with the ruling of the Judge is that “… there is no clear point within the transcript of [the complainant’s] evidence in chief where a sensible edit could be made to remove incidents of a sexual nature that post-date 1 January 2000”.

15. The Crown submitted that without the relevant body of evidence, the conclusion of the sexual abuse will appear as a sudden stop after the conduct in Count 6 without a satisfactory explanation, which may raise a question in the mind of the jury about the reliability of the account given by the complainant.

16. In particular, the Crown pointed to the fact that in November 2001, the accused took the complainant to visit Disneyland for a second time. That trip, the Crown contends, shows the extent of the relationship between the accused and the complainant, and the attitude of the complainant’s mother. The Crown submitted that it also demonstrates a continuation of the favouritism which the accused had shown to the complainant throughout the course of the events covered by the Indictment, and the type of gifts which the accused bought for the complainant.

17. The Crown submitted in this Court that:

“The evidence of the subsequent sexual conduct and gifts given by the accused to [the complainant] goes to explain why she did not complain despite opportunity afforded to her by the respondent no longer living with her mother. It might be thought that that was the perfect opportunity for a complaint to be made, especially when [the complainant] was already prepared to complain in 1993. On the contrary, the evidence discloses that [the complainant] became corrupted by the respondent and so her delay in complaint even until 2010, is understandable.”

18. The Crown also contended that the trial Judge erred in characterising the disputed context evidence as “irrelevant” in light of the Crown’s earlier submission that that evidence had some, as opposed to no, probative value.

Legal Authority

19. There are two legal principles which are identified in this application. The first is whether this Court has jurisdiction to determine the appeal by the Crown because in order to have that jurisdiction this Court must determine that the “decision or ruling eliminates or substantially weakens the prosecution’s case”.

20. In R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228 at [39], Spigelman CJ said:

“The jurisdictional issue posed for this Court under s 5F(3A) of the Criminal Appeal Act is not intended to involve an enquiry into the weight to be given to the evidence excluded. Questions of weight are for the jury. The section directs attention to ‘the prosecution’s case’, to be considered as a ‘case’. This section is not concerned with the weight of the Crown’s evidence.

21. That decision was applied in R v SJRC [2007] NSWCCA 142 at [56], where Rothman J observed:

“In my view the words ‘substantially weakens’ used in the context of an alternative to ‘eliminates’ must mean that the effect of the evidence must be to weaken the Crown case more than ephemerally or more than nominally. The weakening effect of the exclusion of the evidence must be significant. This will occur when evidence of cogency or force is withheld. …”

22. N Adams J in R (Cth) v Rapolti [2016] NSWCCA 264 said at [150], a passage with which Ward JA and I agreed, this:

“Instead, for the prosecution case to be considered as ‘a case’, the Court proceeds upon the assumption that the evidence will be accepted by the jury and that such [evidentiary material] upon which the prosecutions depends are valid.”

23. As N Adams J explained, in that case for the purposes of that appeal the “prosecution’s case” is taken to be the case presented by the prosecutor on the voir dire.

24. The second area of principle concerns the question of context evidence. Although this issue loomed large in written submissions, it became apparent in oral argument that the relevance of the disputed context evidence was the real issue which needed to be decided, as opposed to whether there was adequate compliance with the requirements for the adducing of context evidence as described by McClellan CJ at CL at [72]-[73] in Qualtieri v R [2006] NSWCCA 95; (2006) 171 A Crim R 463.

25. However, it is convenient to identify the principles which describe the proper basis for the admissibility of context evidence.

26. Context evidence, particularly about a sexual relationship, when dealing with conduct other than the particular charged acts, may be led to place the evidence of the charged acts into their true context as part of the essential background against which the evidence of a complainant is to be evaluated: see R v AH (1997) 42 NSWLR 702; 98 A Crim R 71 at 708E; B v The Queen [1992] HCA 68; (1992) 175 CLR 599 at 610; Qualtieri at [74].

27. It is also important to note that evidence admitted as context evidence is not tendency evidence, as the primary Judge here recorded.

28. For context evidence to be admitted, it is first necessary to identify whether any issue has been raised, or is likely to be raised, which makes the evidence relevant: R v ATM [2000] NSWCCA 475 at [72]. It is then incumbent on a trial Judge to consider the issues raised by ss 135 and 137 of the Evidence Act 1995, and whether the prejudicial effect outweighs the probative value of the evidence.

Discernment

29. When questioned on the relevance of the disputed context evidence to the conduct contained in the Indictment, the Crown submitted that the post-2000 conduct derived its probative value from its capacity to explain the lateness of the complainant’s complaint in 2010 and from its ability to explain how and why the relationship between BB and the complainant came to an end.

30. On the issue of the ending of the relationship between BB and the complainant, the Crown submitted that this fact was relevant because it was necessary to explain the nature of the relationship to the jury so that the jury did not erroneously believe that the offending was isolated, and also because it helped to explain the 10 years which elapsed between the end of the period covered by the Indictment and the making of a complaint by the complainant.

31. The Crown’s submission, that the disputed context evidence was relevant to assist the jury to understand that the offending was not isolated, cannot be accepted. First, the offending, finishing with Count 6, has as its context the range of offending commencing with the first count on the Indictment five years earlier, and continuing during the period alleged. The fact that the charged conduct comes to an end at a point in time is unsurprising. The Crown’s case is that at the times specified, the conduct occurred. Other than a simple statement that there is no charged conduct relied upon by the Crown after Count 6 which is latest in point of time, there is no need for any explanation to be provided to avoid a risk of undue consideration of “isolation”.

32. Secondly, the fact that a sexual relationship is said to have continued after the offending in Count 6, does nothing to explain why that is the last count charged. On the contrary, it may raise a question as to why there have been no further charges brought.

33. Thirdly, there is no relationship between the credibility of the complainant’s account of the facts charged in Count 6 on the Indictment, and evidence as to what happened afterwards. That evidence cannot relate back to, in the circumstances here alleged, the earlier conduct.

34. For these reasons the primary Judge was correct to conclude that if the evidence was to be led for this purpose, it was of no relevance.

35. The second basis upon which the Crown relied for the admissibility of the disputed context evidence is that it explained, or helped to explain, the 10 year delay between the conduct covered by Count 6 of the Indictment and a complaint first being made by the complainant.

36. To the extent that this evidence is relevant, it could only be relevant to a two year portion of that 10 year period. It cannot explain, or help to explain, the eight years following during which there was no complaint. Any possible relevance is limited in that way.

37. There is no evidence to be adduced by the Crown which is intended to explain the balance of the 10 year period. There is no evidence to be adduced which in any way attempts to connect the disputed context evidence with the balance of the period. Accordingly, the disputed context evidence has very little, if any, probative value in the Crown case. An appropriate explanation for a delay in making a complaint may assist a jury in assessing a complainant’s credibility. To that extent it may, depending upon the particular case, have probative value. But in all the circumstances here, I have concluded that the probative value is minimal.

38. The primary Judge characterised the disputed context evidence as “irrelevant”. That was said by the Crown to be an error of law. But I am not persuaded that in the context of the entirety of his Remarks, it is proper to construe his Honour’s use of the word “irrelevant” as indicative of anything other than that the probative value of the evidence was very slight. That is particularly so in light of his Honour’s later reference to the evidence, if admitted, causing confusion (i.e. prejudice) and raising the unwanted risk of being used as tendency reasons (i.e. further prejudice).

39. Although it is unnecessary for the disposition of this appeal for this Court to consider the balancing exercise between the probative value of the evidence and the prejudicial effect of it, it is clear in this case that in any balancing exercise the very slight weight of the probative value would be well outweighed by the prejudicial effect of the evidence.

40. However, having regard to the conclusion which I have reached, namely that the evidence was of very low or slight probative value when considered with the entirety of the Crown case, I am wholly unpersuaded that the Crown has discharged its onus of satisfying this Court that the consequence of the interlocutory decision of the primary Judge has had the effect of either eliminating or substantially weakening the case for the prosecution at trial.

29. The Crown has not demonstrated that this Court ought to consider its appeal and, accordingly, this Court’s jurisdiction is not enlivened under section 5F(3A) of the Criminal Appeal Act.

30. I propose that the Crown’s appeal be dismissed.

31. HAMILL J: BB is charged with a number of historic child sexual assault offences relating to a complainant who was the daughter of BB’s (now) ex‑wife. The case has an unusual and sorry history to which it will be necessary to return. BB sought an order from the District Court of New South Wales that the proceedings on the indictment be permanently stayed. On 17 March 2017, Judge North refused the application for a permanent stay. Pursuant to section 5F(3) of the Criminal Appeal Act, BB seeks leave to appeal against this interlocutory judgment or order. In the course of delivering his judgment on the application for permanent stay, Judge North made a ruling that certain evidence, categorised as “context evidence”, was inadmissible. Pursuant to section 5F(3A), the Crown appeals against the ruling excluding the evidence on the basis that the exclusion of the evidence substantially weakens the prosecution case.

32. I agree with Garling J that the appeal by the Crown should also be dismissed. I agree with his Honour’s reasons.

33. I have concluded that BB should have leave to appeal but that the appeal against the refusal to grant a permanent stay should be dismissed. These are my reasons for that conclusion.

34. It is appropriate to set out in brief terms the chronology of events including the litigation history, commencing with the allegations made against BB and concluding with the application and appeals brought to the Court.

35. The complainant was born in February 1986. She was 7 years of age at the time of the first alleged offence. Because of her age and relevant statutory provisions, it is necessary to anonymise the accused’s name and disguise the names of her relatives who feature in the evidence. Nothing should be published that has a capacity of identifying the complainant. [1]

    1. Children (Criminal Proceedings) Act 1987, s 15A.

36. In 1991, BB entered a relationship with the complainant’s mother. In 1993, the complainant alleges that BB commenced to indecently and sexually assault her. Two of the counts on the indictment relate to the period from 1 January 1993 to 1 July 1993. In June 1993, the prosecution alleges (and it seems not to be disputed) that the complainant made a complaint of inappropriate touching to her grandmother. As a result of that complaint, the Department of Family and Community Services and the police were briefly involved. The complainant was removed from the home of BB and her mother for a few days but, for reasons of no present relevance, no charges were laid against BB at that time. Further, the complainant was returned to the home shared by her mother and BB.

37. The prosecution alleges that indecent and sexual touching continued from that time until late 2002.

38. In around January 1995, the family moved to the Blue Mountains. It was shortly after that time that the third offence (count 3 on the current indictment) was allegedly committed.

39. In March 1996, the complainant made a statement to police. That statement appears to have been made in the context of an apprehended violence order sought against her grandparents. The complainant implied that the earlier allegations were influenced by her grandparents. For example she said “I talked to a police officer but my grandparents were in the room and answered it for me.” She also accused her grandparents of kidnapping her. She was asked “Has your father ever hurt you or done something that you didn’t like?” and she replied “no”. The reference to her father was a reference to BB.

40. In August 1996, the incident alleged in the fourth count on the indictment allegedly occurred. This was an allegation of penile/vaginal penetration. The fifth offence charged in the indictment allegedly took place in 1997 and comprised an allegation of penile/anal penetration, although the extent of penetration was not clear. The sixth and final offence allegedly took place at some time between January 1998 and January 2000. The complainant alleged that the sexual assaults continued after that time.

41. In August 2000, BB and the complainant’s mother separated. However, the prosecution case was that the complainant continued to see BB, even staying at his house. It is alleged that sexual and indecent assault offences continued to occur until late 2002. There was a particular allegation that the complainant went on a trip to Los Angeles in 2001 and that sexual relations occurred between her and BB. It is this evidence of uncharged acts occurring after the events comprised in count 6 that the trial Judge excluded in the course of his Judgment refusing the permanent stay.

42. In late 2002, the complainant commenced a relationship with a boy from school. It was at that time that she stopped visiting BB and there are no further allegations of sexual assault after that time.

43. In early 2003 the complainant realised she was pregnant. The evidence suggested that the father was the complainant’s boyfriend. Nevertheless, the prosecution case was that the BB believed that he (BB) may be the father and said certain things to the complainant and others that were said to demonstrate a consciousness of guilt. In November 2003 the complainant gave birth to a child.

44. On 30 June 2010 the complainant made a complaint to another person and then reported the matter to the police. She made a statement on 20 July 2011. [2]

    2. The material as to whether this occurred in 2010 or 2011, or whether there was a delay of one year before the statement was taken, is inconsistent. It is not a matter of significance for present purposes.

45. Further statements were taken over time and BB was arrested and charged with a number of offences. In addition to the specific counts to which I have made reference in the foregoing analysis, there was also an allegation of sexual offending at a particular time (in 1996), which took place at the Jenolan Caves.

46. BB stood trial before her Honour Judge Quirk and a jury in May and June 2013. He was represented by counsel. The complainant gave evidence in the usual way and was cross-examined extensively. While the cross examination was extensive, there is a real question as to both its effectiveness and its forensic purpose.

47. The jury found BB not guilty of those counts said to have taken place at the Jenolan Caves, but convicted him in respect of the other 6 offences with which he stood charged.

48. BB appealed against his conviction and, on 23 November 2015, the Court of Criminal Appeal (Leeming JA, Price and RA Hulme JJ) granted leave to appeal, allowed the appeal and quashed the conviction and sentence. [3] The matter was remitted to the District Court for retrial. The sole ground of appeal was that the trial miscarried in consequence of the incompetence of BB’s counsel at the trial. It should be noted, however, that the single respect in which the Court found counsel’s conduct to be incompetent was the failure to lead evidence of BB’s good character. The Court did not consider a more general assertion (now made) that trial counsel’s conduct of the case was incompetent, for example, as a consequence of the cross-examination to which I have fleetingly referred. Nor did the Court of Criminal Appeal consider the failure to object to the extent and form of evidence of criminal acts, that is other sexual acts, that were led at the trial but which did not relate to any particular count on the indictment and was not said to be evidence establishing a tendency in BB to commit the kind of offences with which he was charged.

    3. BB v R [2015] NSWCCA 308.

49. It was in the light of that history that the matter came before Judge North. BB relied on an affidavit annexing a number of relevant documents and the record of the first trial. Submissions were heard over 2 days.

50. The general thrust of the argument was (and is) that BB is unable to receive a fair trial as a result of the way in which the first trial was conducted. In particular, complaint is made that there was a failure by the Crown Prosecutor, defence counsel and the trial Judge properly to distinguish between the evidence of charged acts and evidence of uncharged acts. There are many examples of this throughout the transcript and, in the most egregious examples, it is not clear from the record precisely what allegation the BB was being required to answer.

51. For example, the evidence in relation to counts 1 and 2 on the indictment was elicited in the following way:

“Q. In those first six months of 1993, did anything happen involving you and [BB]?

A. Yes.

Q. What was that?

A. What happened sometimes was he would put his finger inside my vagina and he would grab my left hand and get me to touch his penis.

Q. Did you touch his penis when he did that?

A. Yes.

Q. Did he put finger singular or fingers more than one in?

A. Singular.

Q. How did that feel?

A. It felt sore and I remember his nails were – felt sharp to me and that seemed to hurt inside me.

Q. Inside your vagina?

A. Yes.

Q. When he took your hand and put it on his penis, was there any period of time that that normally went on for?

A. It – it felt about ten maybe 15 minutes but I can’t be sure of the exact time. It seemed to me like it was a fair while.

Q. Obviously beds have blankets or doonas or things to keep people warm most of the time at least?

A. Yes.

Q. Were there any such things on this bed?

A. Yes, there was a doona over the top.

Q. Were you on top of or under the doona?

A. I was under the doona.

Q. In particular when he put his finger inside your vagina, were you under the doona?

A. Yes.

Q. When he put your hand on his penis were you under the doona?

A. Yes

Q. How did you feel about that? I am sorry, let me ask that again, I am sorry. I said ‘that’. How did you feel about it when he put his finger inside your vagina?

A. It made me feel yuk and dirty.

Q. How did you feel when he put your hand on his penis?

A. I just felt horrible.

Q. Do you have a particular memory of those things actually happening?

A. Yes.

Q. Your mother was in the bed with the two of you when these things happened?

A. Yes.

Q. Are you able to say now if she was awake or asleep?

A. She was asleep.

Q. Did you ever see any behaviour of your mother when you were in bed when these happened that made you think that she was aware of what was happening?

A. No, what would happen if she fidgeted or rolled over he would quickly take his finger out and I’d move my hand back to the side.

Q. Did the accused make any noise when these things were happening during this time?

A. No.

Q. Do you remember if he was wearing anything and, if so, what?

A. I remember he used to always wear jocks, he referred to them as jocks, to bed, but they were just underpants.

Q. To bed?

A. Yes.”

64. That passage (with my emphasis) offends the principles of latent duplicity and the requirement for the Prosecutor to particularise the offence or be put to an election. These principles were discussed authoritatively by the High Court in S v The Queen. [4] There were similar problems with some of the other counts charged against BB where the evidence of the particular count and the evidence of similar uncharged conduct were not distinguished from one another. This is similar to the situation described by Dawson J in S v The Queen (at 273):

“Thus, notwithstanding that each count on the indictment charged the applicant with one offence only, the evidence revealed a multiplicity of offences with nothing to identify any one of them as the offence with which the applicant was charged in any particular case.”

4. (1980) 168 CLR 266; [1989] HCA 66 especially at, for example, 273, 277-279, 282 and 285-287.

65. Gaudron and McHugh JJ put the problem in this way (at 285):

“The problems which attend duplicitous counts also attend proceedings in which the prosecution seeks to lead evidence of multiple offences answering the description of the offence or offences charged.”

66. Their Honours concluded (at 287) that the trial was “fundamentally flawed” and that:

“At the very least, as Dixon J observed in Johnson v Miller, [5] it would have been necessary for it to have been made clear what acts were said to be offences charged and what acts were said to be similar facts. Without that, it would be impossible to instruct the jury as to the use properly to be made of the evidence of other offences. More significantly in the present case, evidence of other acts of carnal knowledge was not left to the jury on the basis that such acts might prove the offences charged, but on the basis that the jury might be satisfied that one act of carnal knowledge occurred within each of the periods specified in the indictment.”

5. [1937] HCA 77; (1937) 59 CLR 467.

67. The second general argument is that the alleged incompetence of trial counsel at the first trial meant that the complainant was not properly cross examined in relation to the six specific charges with which he currently stands charged. It was put on the hearing of the appeal that apart from the bare compliance with the rule in Browne v Dunn [6] (that is, to put to the complainant that the allegations were not true), there was scarcely any other cross examination on the specific counts in the indictment. Further, it was put that the cross-examination exacerbated the problem created by the failure to distinguish between charged acts and uncharged acts. It was also submitted that the cross-examination served to strengthen the prosecution case by placing before the jury more prejudicial and incriminating evidence. In one quite lengthy passage, counsel read large slabs of the complainant’s statement with no obvious forensic purpose.

    6. (1893) 6 R 67.

68. For the reasons that follow, I do not propose to come to any concluded findings in relation to these assertions of incompetence other than to make the observation that they do not appear to be either untenable or unarguable.

69. The problem arises as a consequence of provisions in the Criminal Procedure Act 1986 allowing the complainant’s evidence from the first trial to be played to the jury on the re-trial after a successful appeal. These provisions contain no discretionary power in the trial judge either to prevent the playing of the evidence given in the first trial or to require the complainant to attend for further cross-examination. The relevant statutory provisions are as follows:

“S 306B Admission of evidence of complainant in new trial proceedings

(1) If a person is convicted of a prescribed sexual offence and, on an appeal against the conviction, a new trial is ordered, the prosecutor may tender as evidence in the new trial proceedings a record of the original evidence of the complainant.

(2) For the purposes of this Division, the "original evidence" of the complainant means all evidence given by the complainant in the proceedings from which the conviction arose (referred to in this Division as the "original proceedings"), including the evidence given by the complainant on examination in chief in the original proceedings and any further evidence given on cross-examination or re-examination in those proceedings.

(3) Despite anything to the contrary in the Evidence Act 1995 , or any other Act or law, a record of the original evidence of the complainant is admissible in the new trial proceedings if:

(a) the prosecutor gives written notice to the accused person, in accordance with the regulations, of the prosecutor’s intention to tender the record under this section, and

(b) the prosecutor gives written notice to the court of the prosecutor’s intention to tender the record under this section, and

(c) the notices referred to in paragraphs (a) and (b) are given no less than 21 days before the court commences hearing the new trial proceedings or within such other period as the court may allow.

(4) The hearsay rule (within the meaning of the Evidence Act 1995 ) does not prevent the admission of a record of the original evidence of the complainant under this Division or the use of that record to prove the existence of a fact that the complainant intended to assert by a representation made in the original evidence.

(5) The court hearing the new trial proceedings does not have any discretion to decline to admit a record of the original evidence of the complainant if it is admissible under this Division.

(6) However, the court may give directions requiring a record of the original evidence of the complainant to be altered or edited for the purpose of removing any statements that would not be admissible if the original evidence of the complainant had been given orally before the court hearing the new trial proceedings in accordance with the usual rules and practice of the court.

(7) In addition, a record of the original evidence of the complainant may be altered or edited in accordance with an agreement between the prosecutor and the accused person or his or her Australian legal practitioner (if any).

(8) This Division applies in respect of proceedings for a new trial in which a person stands charged with a prescribed sexual offence whether or not the person stands charged with that offence alone or together with any other offence (as an additional or alternative count) and whether or not the person is liable, on the charge, to be found guilty of any other offence.

(9) This Division extends to proceedings for a new trial ordered before the commencement of this Division, including new trial proceedings that have been commenced or partly heard.

306C Complainant not compellable to give further evidence:

If a record of the original evidence of the complainant (or any part of the record) is admitted in proceedings under this Division, the complainant is not compellable to give any further evidence in the proceedings (despite anything to the contrary in this Act or the Evidence Act 1995), including for the purpose of any examination in chief, cross-examination or re-examination by or at the request of the accused person or his or her Australian legal practitioner.

306D Complainant may elect to give further evidence:

(1) If a record of the original evidence of the complainant (or any part of the record) is admitted in proceedings under this Division, the complainant may, with leave of the court hearing the proceedings, and only if the complainant so chooses, give further oral evidence in the proceedings.

(2) The court is to give leave to the complainant to give such further evidence in the proceedings only if the court is satisfied, on application by one of the parties to the proceedings, that it is necessary for the complainant to give further oral evidence:

(a) to clarify any matters relating to the original evidence of the complainant, or

(b) to canvas information or material that has become available since the original proceedings, or

(c) in the interests of justice.

(3) The court is to ensure that the complainant is questioned by any party to the proceedings only in relation to matters that are relevant to the reasons for the grant of leave by the court.

(4) Subject to subsection (3), if a complainant gives any further oral evidence under this section, the complainant is compellable (for the prosecution or the accused person) to give evidence. This applies despite section 306C.”

70. It was indicated that the complainant does not wish to give further evidence and, as a consequence, she is not compellable to give evidence. Further, the power in the trial judge in section 306D cannot arise because that power can only be exercised “if the complainant so chooses” (to give further evidence).

71. The consequence of the provisions in the present case is that BB is essentially bound by what he submits is the incompetent eliciting of evidence and failure to challenge the evidence which took place in the course of the 2013 trial proceedings.

72. It is for those reasons, which I have set out in relatively brief form, that BB says that his trial cannot be a fair trial and that the Court should intervene to take the drastic step of ordering a permanent stay of the proceedings.

70. It is unnecessary to repeat the many statements of principle that a trial judge (or an intermediate appellate court) will rarely order the permanent stay of criminal proceedings and that the remedy is reserved for extreme cases where the proceedings represent an abuse of the Court’s processes. [7] There have been cases where this Court has ordered a permanent stay of proceedings in historic sexual assault cases because an accused person was unable to receive a fair trial. [8] However those were exceptional cases. BB, ably represented by Mr Mitchell of counsel, does not shrink from the stringency of the tests set out by the appellate courts. However, he maintains that the circumstances prevailing here are of such an extreme nature that Judge North at first instance, and this Court now, should exercise the power to permanently stay the proceedings on the indictment. I am unable to accept this submission. There are two fundamental reasons why this is so.

    7. See, for example, Barton v The Queen (1980) 147 CLR 75; [1980] HCA 48, Jago v District Court of New South Wales (1989)168 CLR 23; [1989] HCA 46, R v Glennon (1992) 173 CLR 592; [1992] HCA 16, R v X [2014] NSWCCA 168, X7 v R [2014] NSWCCA 273.

    8. R v Littler [2001] NSWCCA 173, R v Westley [2004] NSWCCA 192.

71. The first reason concerns the reality that this application and this state of affairs exists as a consequence of the proper application of the statutory provisions set out above. Similar applications have been made, and have failed, in cases where an accused was prevented from cross-examining about a complainant’s prior sexual history, even though that cross-examination was relevant and may have been extremely important in undermining the credibility of the complainant’s evidence. In spite of the unfairness created by the prohibition in s 409B Crimes Act 1900, [9] the Court refused to intervene by ordering a permanent stay of proceedings. [10] The reason was explained by Sperling J in R v PJE when his Honour said: –

“The question of principle which arises in the present case is whether the jurisdiction to stay and indictment extends to include a perception of unfairness arising from the operation, in accordance with its terms, of a validly enacted statute of the Parliament. In my view, it does not. To hold otherwise would, in effect, to elevate the court’s judgment above that of the Parliament. That would particularly be so in the present case because the statutory provision embodies the judgement of the Parliament on the very matter for which a claim is made for the exercise of judicial power.”

9. The precursor to s 293 Criminal Procedure Act.

10. See, for example, R v PJE, unreported CCA (NSW) 9 October 1995 (Cole JA, Grove and Sperling JJ), R v MSK and MAK NSWCCA 308 at [42] – [47] and Grills v The Queen [1996] HCA Trans 273; (1996) 70 ALJR 905.

75. That judgment, along with the decision in Grills v The Queen, came before the High Court on a special leave application. In refusing special leave Brennan CJ said: –

“The decisions below are clearly correct. To grant special leave would elevate to the level of arguability the proposition that a court may decline to exercise its jurisdiction to try a criminal case because it forms the view that a law enacted by the Parliament is unfair. That is not a view to which a court is entitled to give effect in determining whether to exercise its jurisdiction when it is properly invoked.”

76. Those observations are applicable here although the added element is the assertion of incompetence and the problems attending the way in which the evidence was adduced at the first trial. However, whatever view the Court may have of the fairness of the provisions in ss 306B, 306C and 306D, it is not open to the Court to decline to exercise jurisdiction because of any such views.

77. The second reason why the refusal to accede to the application for a permanent stay was correct, and why the appeal against that decision must be dismissed, is that it is impossible to predict whether the trial of the applicant will be relevantly unfair until it has taken place. While such a prospective judgment may be possible in some circumstances, such cases must necessarily be rare. [11]

    11. See the cases of R v Littler and R v Westley referred to above.

78. Before the evidence of the complainant is played to the jury, the trial judge will be called upon to give directions requiring the record of the original evidence to be edited for the purpose of removing any statements that are not admissible. [12] For example, the Crown Prosecutor appearing on the appeal conceded that the evidence of the complainant’s pregnancy, and the consciousness of guilt evidence that flowed from it, could not be led in the retrial. This is because evidence of the complainant’s other sexual history is inadmissible pursuant to s 293 of the Criminal Procedure Act. There may be other portions of the evidence that will have to be edited from the recording. On that matter, it is not appropriate to express any concluded view.

    12. Section 306B(6).

79. A nice and interesting question was canvassed at the hearing of the appeal as to whether it would be open to defence counsel to object to large slabs of the earlier cross examination on the grounds that it was forensically unwise, to put the matter mildly. That is not a question that needs to be determined here but I can envisage that certain portions of that cross examination might be excluded, for example, because the probative value of the evidence is substantially outweighed by the danger that it may cause an undue waste of time. [13]

    13. Section 135 Evidence Act; and cf IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [58].

80. There were other aspects of the evidence that may need to be edited or excised if objection is taken. For example, at one stage during the evidence in chief the complainant was shown an earlier statement to “refresh her memory” and extracts were read to her. However, when asked about those matters, she said that she could not recall them. Such evidence may be held to be inadmissible if objection is taken.

81. It is unnecessary, and inappropriate, to go further than this. Whoever has the responsibility and privilege of appearing for BB at the trial will inevitably raise such concerns with the Crown Prosecutor who, acting fairly and in accordance with their duties, may agree to a number of edits. If agreement cannot be reached, the trial judge can make rulings in advance of the recording being played to the jury.

82. In addition to the capacity of the parties to agree, or the trial judge to rule, that parts of the evidence are not admissible, there are other matters that are capable of placing the accused in a less invidious position to that described by counsel on the hearing of the appeal.

83. For example, a deal of evidence that was not cross-examined upon, and which BB is prevented from putting to the complainant in the new trial, may be elicited through the evidence of other witnesses such as the investigating police and members of the complainant’s family who will be called to give evidence. This includes evidence of the earlier complaints, retractions and allegations of influence by the grandparents.

84. Further, the trial judge will be required to give the jury clear direction as to the manner in which the evidence is given and any forensic disadvantage occasioned to the accused as a result of the delay, the history of the litigation and his inability to cross examine the complainant before the jury. The evidence adduced at the trial, and the stance taken by the parties will determine the form of the directions but they will be calculated to ensure the fairness of the trial. Whether such directions are sufficient to alleviate the concerns raised on the application for permanent stay cannot be determined prospectively.

85. The failure to adduce evidence of BB’s prior good character can be remedied in the new trial.

86. Finally, and perhaps most fundamentally, those representing the accused will no doubt make a request for the Crown to particularise the individual counts on the indictment and will then be in a position to raise any objections to the evidence of uncharged acts and the form in which that evidence is adduced. While some such evidence is likely to be admissible to place the events in context and to ensure the complainant’s account of an ongoing history of sexual abuse is not presented in an unrealistic manner, it may be a case where the observations of Gleeson CJ in HML v The Queen will find favour with the trial judge. [14] His Honour said at [28]:

“There may be cases in which fairness is best served by confining the evidence of uncharged acts to brief and general evidence that the occasion the subject of an alleged offence was not an isolated instance.”

14. HML v The Queen, SB v The Queen, OAE v The Queen (2008) 235 CLR 334; [2008] HCA 16.

87. How the evidence is to be edited will be a matter for the parties having consulted together and then, if necessary, in accordance with any rulings made by the trial judge.

88. The foregoing analysis is neither prescriptive nor exhaustive. My purpose is merely to canvass some of the steps that can be taken to ensure that the re-trial is as fair as it can be in the context of the legislative provisions binding its conduct. It is not my intention to bind the trial judge or the parties, or to predict the way in which the re-trial is to run, assuming the Director determines to exercise his discretion to put the applicant to trial in the circumstances that now prevail. [15] However, that very brief analysis as to the steps that may be taken leads inexorably to the conclusion that this Court is unable to predict that the trial of the applicant will be unfair in the relevant sense. If BB were to be convicted of some or all of the offences, he would have an avenue of appeal in which this Court could evaluate the unfairness he fears with the benefit of the trial record.

    15. Cf Director of Public Prosecutions Act, s 7; “Prosecution Guidelines of the Office of the Director of Public Prosecutions for New South Wales”, < Guideline 4 (The Decision to Prosecute).

89. For those reasons, Judge North was correct to refuse BB’s application for a permanent stay of the proceeding on the indictment. Because the case raises important issues and was arguable, notwithstanding the decision I have reached and the observations of Brennan CJ in Grills v The Queen, I am of the opinion that leave to appeal should be granted. However, the appeal against the interlocutory judgment and order must be dismissed.

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Endnotes

Amendments

13 April 2021 - Published on completion of trial and sentencing on 20 November 2019

Decision last updated: 13 April 2021