R v Banks (No 2) - [2020] NSWDC 495

District Court

New South Wales

Medium Neutral Citation: R v Banks (No 2) [2020] NSWDC 495
Hearing dates: 12 May 2020
Date of orders: 12 May 2020
Decision date: 12 May 2020
Jurisdiction: Criminal
Before: Grant DCJ
Decision:
1. The evidence of MS that AB complained to her is excluded.
2. The Crown is not allowed to rely upon tendency reasoning in proof of counts 5-7.

Catchwords:
Criminal procedure-application to adduce complaint evidence-child complainants-cross admissible tendency- Judge alone trial

Legislation Cited:
Evidence Act 1995

Cases Cited:
R v XY [2010] NSWCCA 181
Singh v The Queen [2011] VSCA 263
R v Gregory‑Roberts [2016] NSWCCA 92 (decision restricted)

Category: Procedural and other rulings
Parties: Regina (Crown)
Joseph Banks (accused)
Representation:
Counsel:
Ms Morgan (Crown)
Mr Fokkes (accused)
Solicitors:
Ms Hanshaw (Crown)
Mr Keane (Accused)

File Number(s): 2019/00238218
Publication restriction: Non-publication order re identities of complainants.

Judgment

The Crown seeks to admit complaint evidence.

COMPLAINT EVIDENCE OF GB

GB in her JIRT interview conducted on 31 May 2019 said she had told her two aunties and her nan about the conduct of the accused. She said she told them "half of it".
GS is the cousin of GB, she participated in a JIRT on 23 July 2019. She said that GB told her the accused had locked her in a room, she got out and ran into the lounge. At question 42/answer, she said this:

"...Joseph made Gabby touch here and I don't if it was suck or touch or both but here".

On the video GS was indicating her chest.
MS gave evidence on 7 May 2020, she is the auntie of GB, AB, GS and JB. All four children were living with her from 23 April 2019 in Canberra. GS reported that GB had told her that something was not right, MS then questioned GB who told her that:

"Joseph had done things that she didn't think were right".

She had GB show her on a porcelain doll what she meant. GB showed touching of the breasts, rubbing of the tummy, two fingers down below in between the legs and rubbing. GB said:

"He put the penis in me mouth and holds your head and pushes it up and down".

The Crown submits the evidence is admissible complaint evidence. Mr Fokkes who appears on behalf of the accused concedes that the complaint evidence of GB both to MS and GS is admissible pursuant to s 66 and he does not resist the Crown application. Therefore, it is unnecessary for me to rule on that application.

COMPLAINT EVIDENCE OF AB

In a JIRT conducted on 31 May 2019, AB who is currently six years of age made the allegation that:

"Joseph tried to stick a rude a finger up at me" (Q38/A)

and that:

"Joseph tried to take his clothes off around mum" (Q40/A).

She was specifically asked if anything else happened, she responded:

"no, that's it".

In light of those answers, no questions were asked by the police whether she…

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 R v Banks (No 2)

Details

AGLC: R v Banks (No 2) [2020] NSWDC 495
Case: [2020] NSWDC 495
Decision Date: 12 May 2020

CaseChat Overview and Summary

The case of R v Banks (No 2) involved the respondent, Banks, appealing against the trial judge's decision to exclude certain evidence in relation to a criminal trial. The trial concerned allegations of sexual offences against Banks, with the complainants being children. The trial judge had ruled that the evidence of one complainant, MS, who testified that another complainant, AB, had made a complaint to her, was inadmissible. This ruling was made on the basis that it would be unfair to the jury to consider this evidence given the sensitivity of the subject matter and the potential for prejudice. The Crown sought to appeal this decision, arguing that the evidence was relevant and should be considered in the context of the other evidence presented.

The legal issues before the court centred on the admissibility of complaint evidence from child complainants in a criminal trial, particularly when the evidence is to be used to show that other children had made complaints. The Crown argued that the evidence should be admitted under the rules governing the admissibility of similar fact evidence, which allow for such evidence when it is relevant to an issue in the case. The court had to balance the potential for prejudice against the probative value of the evidence in determining its admissibility.

The court held that the trial judge's decision to exclude the evidence was correct. It was found that the potential for prejudice outweighed the probative value of the evidence. The court reasoned that allowing the evidence could have led to a miscarriage of justice, as it might have influenced the jury's decision based on the emotional impact of the evidence rather than its relevance to the charges against Banks. Additionally, the court noted that the evidence did not directly relate to the charges against Banks but was instead an attempt to bolster the credibility of another witness's testimony. The court also determined that the Crown was not permitted to rely on tendency reasoning in relation to certain counts of the indictment, as the evidence in question did not meet the criteria for admissibility under the relevant legal principles.

The court's final orders were that the evidence of MS regarding AB's complaint was to be excluded from the trial. Furthermore, the Crown was prohibited from using tendency reasoning in relation to counts 5 to 7 of the indictment. These rulings were made to ensure that the trial remained fair and focused on the evidence directly relevant to the charges against Banks.

Orders

Orders of the court

1. The evidence of MS that AB complained to her is excluded.

2. The Crown is not allowed to rely upon tendency reasoning in proof of counts 5-7.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Banks (No 2) [2020] NSWDC 495
Hearing dates:	12 May 2020
Date of orders:	12 May 2020
Decision date:	12 May 2020
Jurisdiction:	Criminal
Before:	Grant DCJ
Decision:	1. The evidence of MS that AB complained to her is excluded. 2. The Crown is not allowed to rely upon tendency reasoning in proof of counts 5-7.
Catchwords:	Criminal procedure-application to adduce complaint evidence-child complainants-cross admissible tendency- Judge alone trial
Legislation Cited:	Evidence Act 1995
Cases Cited:	R v XY [2010] NSWCCA 181 Singh v The Queen [2011] VSCA 263 R v Gregory‑Roberts [2016] NSWCCA 92 (decision restricted)
Category:	Procedural and other rulings
Parties:	Regina (Crown) Joseph Banks (accused)
Representation:	Counsel: Ms Morgan (Crown) Mr Fokkes (accused) Solicitors: Ms Hanshaw (Crown) Mr Keane (Accused)
File Number(s):	2019/00238218
Publication restriction:	Non-publication order re identities of complainants.