R v Banks (No 2)
[2020] NSWDC 495
•12 May 2020
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:
Solicitors:
Ms Morgan (Crown)
Mr Fokkes (accused)
Ms Hanshaw (Crown)
Mr Keane (Accused)
File Number(s): 2019/00238218 Publication restriction: Non-publication order re identities of complainants.
Judgment
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The Crown seeks to admit complaint evidence.
COMPLAINT EVIDENCE OF GB
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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".
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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".
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On the video GS was indicating her chest.
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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".
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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".
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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
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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".
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In light of those answers, no questions were asked by the police whether she had complained to anyone and if so, what the content of the complaint was.
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GS in her JIRT (23 July 2019) at question 51 and following was asked about AB. She was asked:
"did AB tell you anything?"
Answer,
"No".
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MS spoke to AB after she had spoken to GB. She asked AB if she had anything to tell me. AB didn't say anything she just said things happened to GB (T61 lines 2 to 8).
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Further questioning took place. The Crown concedes the questions were leading. In response to those leading questions AB said:
"Joseph did things to me" but wouldn't go into it, wouldn't tell me what he did, all she said is "he touched me down below" (T62 lines 10 to 13).
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MS recorded what the girls told her on a piece of paper three or four days later. Pursuant to s 32, she was granted leave to refresh her memory. After refreshing her memory, she gave evidence that AB told her:
"that she sucked his penis" (T64 line 18).
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The Crown was asked about the admissibility of that evidence at an earlier part of the trial when tendency was being argued. At transcript 14 lines 31 to 47, the Crown conceded that the complaint evidence was not admissible. The Crown position has changed and the Crown submits that the evidence is admissible pursuant to s 62 and 66 of the Evidence Act.
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AB in her JIRT did not allege any wrongdoing on the part of the accused. After the JIRT was played, the Crown was given the opportunity to adduce further evidence from AB (T11 lines 35 to 38). The Crown declined to adduce further evidence. Yesterday (11 May 2020) the Crown closed its case. Mr Fokkes submits that the evidence is inadmissible hearsay. He submits that the maker of the representation must be AB. He says that MS is not the maker of the representation but rather the conveyer of the hearsay representation. He says in the absence of evidence of complaint being made by AB herself, the evidence is inadmissible hearsay.
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The Crown referred me to a number of authorities in its written submissions dated 8 May 2020. I was referred to R v XY [2010] NSWCCA 181. In that case there was complaint from the complainant to CD, a friend in year six and his parents considerably later. In his interview with the police, the complainant confirmed the making of the complaint and the content of same. The Crown appealed the trial judge's ruling that the complaint (the occurrence of the asserted fact), was not fresh in the memory of the complainant.
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What is before me is not a question of freshness. There is simply no asserted fact of wrongdoing on the part of the accused from AB referrable to counts 5 to 7.
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In my view, the legislation requires that the person who made the representation must be available to give evidence about the asserted fact. AB does not give any evidence that she made a representation of complaining about the conduct of the accused.
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The Crown referred me to Singh v The Queen [2011] VSCA 263, Almond AJA at [18] held that there was a requirement that the asserted fact was fresh in the memory of the person when the representation was made. In that case, representations were made by the complainant that she had been raped by an Indian taxi driver within hours of the offence. At a later time, the complainant did not remember having made the representations. The Court allowed the evidence of the representations made to others to be given in evidence because the asserted fact was fresh in the memory of the complainant when she complained.
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AB denied any wrongdoing on the part of the accused in the JIRT. That is the evidence‑in‑chief before me. This is not a case of failing to remember making the representation as in Singh.
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The Crown referred me to R v Gregory‑Roberts [2016] NSWCCA 92 (decision restricted). The complainant complained to MG, RB and SS, who were her school friends about sexual impropriety between her and her ophthalmologist. The complainant gave a detailed account of the events which formed the basis of the charges laid. The issue for determination was whether the representations made to each of the three witnesses was at the time they were made "fresh" in the complainant's memory. What the three witnesses remembered the complainant having told them many years earlier, was consistent with what she said in her statement to the police about the offending many years later, supported the conclusion that those representations were fresh in her memory when she spoke to the witnesses.
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Unlike the above decision, there is no evidence from AB that she complained to someone. There is no representation from her. This is not a question of freshness. There is no complaint by AB, nor any allegation of wrongdoing to found a forgotten complaint.
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I accept Mr Fokkes' submission that the evidence of MS is inadmissible hearsay. The maker of the representation must be AB. It must derive from some wrongdoing on the part of the accused that AB asserts or represent. It must come from AB. MS is not the maker of the representation; she is the conveyer of the hearsay representation.
SECTION 137
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If I am wrong about that, I exclude the evidence under s 137. The evidence, if it has any probative value, which in my view it does not, if admitted would cause unfair prejudice to the accused.
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The Crown would attempt to assert a tendency to act on the part of the accused and use that tendency reasoning in proof of counts 5 to 7. This should not occur when AB makes no allegation against the accused. Nor does she give any evidence of complaint. Counts 5 to 7 should not be cross‑admissible to counts 1 to 4.
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There is a significant danger of unfair prejudice to the accused if the inadmissible hearsay evidence is admitted in the trial.
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The Crown should not be allowed to rely upon tendency reasoning in proof of counts 5 to 7 when there is no evidence of wrongdoing on the part of the accused from AB, nor any evidence from AB that she complained of the accused conduct.
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Decision last updated: 02 September 2020
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