BG v R - [2010] NSWCCA 301

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
BG v R [2010] NSWCCA 301

FILE NUMBER(S):
2008/14424

HEARING DATE(S):
01/12/2010

JUDGMENT DATE:
13 December 2010

PARTIES:
BG
Regina

JUDGMENT OF:
James J Hislop J Price J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2008/11/1055

LOWER COURT JUDICIAL OFFICER:
Freeman DCJ

LOWER COURT DATE OF DECISION:
24/07/2009

COUNSEL:
C Davenport SC
S Dowling

SOLICITORS:
S O'Connor
S Kavanagh

CATCHWORDS:
Criminal Law - sexual offences - s 293 Criminal Procedure Act - evidence of sexual experience or sexual activity - s 293(4)(a) - evidence of sexual experience or sexual activity at or about the time of the commission of the offence - evidence of events forming part of a connected set of circumstances.

LEGISLATION CITED:
Crimes Act 1900 - ss 63, 71, 76, 79, 89, 91A, 409B
Listening Devices Act
Criminal Procedure Act 1986 - s 293
Criminal Appeal Act - s 6(1)

CATEGORY:
Principal judgment

CASES CITED:
R v Morgan (1993) 30 NSWLR 543
HG v the Queen (1999) 197 CLR 414
Rolfe v The Queen (2007) 173 A Crim R 168
The Queen v Nguyen (2010) HCA 38
Rowney v The Queen (2007) 168 A Crim R 579

TEXTS CITED:

DECISION:
Appeal against conviction is dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2008/14424
JAMES J
HISLOP J
PRICE J
MONDAY 13 DECEMBER 2010

BG v R

Judgment

JAMES J: BG appealed against his conviction after a trial in the District Court before his Honour Judge Freeman and a jury on nine charges of sexual offences allegedly committed in 1970 or 1971 against the same victim, a girl born in January 1957 (who I will refer to as “the complainant”), in contravention of sections of the Crimes Act which were in force at the times of the alleged offences but have since been repealed or substantially amended.
The charges were:-
1. Carnal knowledge of a girl aged between 10 and 16 years (s 71 Crimes Act)
2. Assaulting and committing an act of indecency against a female under the age of 16 years (s 76 Crimes Act)
3 and 7. Detaining with intent to have carnal knowledge (s 89 Crimes Act)
4, 5 and 8. Rape (s 63 Crimes Act)
6. Procuring a female under the age of 21 years for another person to have carnal knowledge (s 91A Crimes Act)
9. Buggery (s 79 Crimes Act)
It was alleged that the offence charged in the first count was committed between 4 March 1970 and 26 November 1970 and that the offences charged in all the other counts were committed between 26 November 1970 and 1 April 1971.
A feature of the case is that, although the offences were allegedly committed in 1970 or 1971, the complainant did not make a statement to police about the alleged conduct of the appellant until more than 30 years later, in October 2005.
The Crown case at the trial
Although two other witnesses were also…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading BG v R

Details

AGLC: BG v The Queen [2010] NSWCCA 301
Case: [2010] NSWCCA 301
Decision Date: 13 December 2010

CaseChat Overview and Summary

In the case of BG v R, the appellant was convicted of various sexual offences against the complainant. The central issue before the court was the admissibility of certain evidence under the Criminal Procedure Act, specifically section 293, which governs the admissibility of evidence relating to sexual experience or sexual activity in the context of sexual offences. The appellant argued that the failure to cross-examine the complainant on certain statements she had made to police regarding her past sexual experiences was a miscarriage of justice, as it prevented the presentation of relevant evidence that could have affected her credibility.

The legal issues revolved around the interpretation and application of section 293 of the Criminal Procedure Act. The appellant's counsel contended that the trial counsel's decision not to cross-examine the complainant on the contents of two statements was influenced by an incorrect understanding of the statutory provisions. They argued that the evidence in question, which detailed events that occurred before and after the alleged offences, should have been admissible under an exception in section 293(4)(a) if it pertained to the complainant's sexual experience or activity at or about the time of the alleged offences and if its probative value outweighed any potential distress or embarrassment to the complainant.

The court examined the statutory language and the context of the alleged offences. It determined that the trial counsel's decision to refrain from cross-examination was based on a reasonable interpretation of the statutory provisions, which prohibited evidence of sexual experience or activity unless it met specific criteria. The court found that the evidence in question did not fall under the exception provided in section 293(4)(a) and, even if it did, the distress and potential embarrassment to the complainant would have outweighed its probative value. The court concluded that the trial counsel's decision was not a miscarriage of justice and that the appellant's convictions were correctly upheld.

The final orders of the court were to dismiss the appeal, thereby affirming the appellant's convictions. The court found that the evidence in question was correctly excluded under section 293 of the Criminal Procedure Act and that the trial was conducted fairly. The decision underscores the importance of correctly interpreting and applying statutory provisions that govern the admissibility of evidence in sexual offence cases, balancing the probative value of the evidence against potential harm to the complainant.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Section 293 of the Criminal Procedure Act provides in part as follows:-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.… (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. Sub-section (4) of s 293 sets out a number of exceptions to sub-section (3). The only exception sought to be relied on by counsel for the appellant on this appeal was that contained in paragraph (a) of sub-section (4) which provides:-“(4) sub-section (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………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.” Counsel for the appellant submitted that trial counsel had not been prohibited by s 293 from cross-examining the complainant on the contents of the two statements and that the failure to cross-examine on the two statements had caused the appellant’s trial to be unfair. Counsel for the appellant conceded that evidence of the matters in annexure B to the appellant’s written submissions would have disclosed sexual experience or sexual activity on the part of the complainant and would have fallen within the prima facie prohibition in sub-section (3) of s 293. However, counsel submitted that evidence of the matters in annexure A would not have disclosed sexual experience or sexual activity on the part of the complainant and hence would not have fallen within the prima facie prohibition in sub-section (3)`. As to evidence of the matters in annexure B and evidence of the matters in annexure A if counsel’s first submission about annexure A was rejected, it was submitted that both sets of evidence would have fallen within paragraph (a) of sub-section (4) of section 293 and hence would have been excluded from the prima facie prohibition in sub-section (3). It was submitted that these matters had occurred “just before” or “just after” the alleged offences by the appellant were committed and as part of “the same continuum” as the alleged offences of the appellant and therefore evidence of these matters was evidence of the complainant’s sexual experience or sexual activity “at or about the time” of the appellant’s alleged offences (sub paragraph (i) of paragraph (a) of sub section (4) ) and evidence of events that formed part of a connected set of circumstances in which the appellant’s offences were committed (sub paragraph (ii) of paragraph (a) of sub section (4) ).

Decision

Reasons for decision

JAMES J

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Ratio Decidendi

Legal Principle Established

Established by: JAMES J

GT, his wife and the complainant went to GT’s home. After GT’s wife had gone to bed, GT engaged in various behaviour, including rubbing the complainant near her vagina, inserting a finger into the complainant’s vagina, forcing the complainant’s mouth on to his penis and finally forcing his penis into the complainant’s vagina and ejaculating.Consideration of the ground of appeal Apart from any statutory prohibition, evidence of the contents of these two statements could have been put to the complainant in cross-examination. Evidence that she had made statements to police in these terms in 1997 but had not made any statements to police about the alleged misconduct of the appellant until 2005 would clearly have been relevant as being capable of affecting the complainant’s credibility. However, it can be inferred that counsel for the appellant at the trial refrained from attempting to cross-examine the complainant about the contents of the two statements because of an opinion he had formed that any such cross-examination would be prohibited by s 293 of the Criminal Procedure Act. In an affidavit made for the purposes of the appeal counsel for the appellant at the trial confirmed that he had not cross-examined the complainant on the contents of the two statements because of the opinion he had formed that any such cross-examination would be in breach of s 293 of the Criminal Procedure Act. Section 293 of the Criminal Procedure Act provides in part as follows:-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.… (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. Sub-section (4) of s 293 sets out a number of exceptions to sub-section (3). The only exception sought to be relied on by counsel for the appellant on this appeal was that contained in paragraph (a) of sub-section (4) which provides:-“(4) sub-section (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………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.”