R v Meredith (No 2)

[2024] NSWDC 247

District Court

New South Wales

Medium Neutral Citation:

R v Meredith (No 2) [2024] NSWDC 247

Hearing dates:

26 June 2024

Decision date:

27 June 2024

Jurisdiction:

Criminal

Before:

Bennett ADCJ

Decision:

294CB Application

Legislation Cited:

Crimes Act 1900

Criminal Procedure Act 1986

Cases Cited:

R v Edwards [2015] NSWCCA 24

Category:

Procedural rulings

Parties:

Rex (Crown)
Timothy William Meredith (Accused)

Representation:

Counsel:
Crown Prosecutor Michelle Swift
Defence Counsel Linda McSpedden

File Number(s):

2022/00143438
2022/00280631

JUDGMENT

Introduction

1. Timothy William Meredith appears for trial upon an indictment reference 202205730_52.2 charged with 24 counts for offences of Indecent assault contrary to s 61M(2) Crimes Act 1900, observing a person engaged in a private act to obtain sexual arousal contrary to s 91J(3) Crimes Act 1900, sexual intercourse contrary to s 66C(1) and s 61J(1) Crimes Act 1900, assault contrary to s 61 Crimes Act 1900, sexual touching contrary to s. 66DB(a) Crimes Act 1900, assault with intent to have sexual intercourse contrary to s 66D Crimes Act 1900, attempted sexual touching contrary to s 66DB(a) in conjunction with s 344A(1) Crimes Act 1900, and sexual touching contrary to s 66DA(a) Crimes Act 1900.

2. Counts 22 and 23 are upon allegations by A. C. Both alleges that the accused,

Between 1 January 2019 and 8 November 2019, at Mudgee in the State of New South Wales, did intentionally sexually touch [KC], a child then under the age of 10 years, namely eight years.

S 66DA(a) Crimes Act 1900 Law part code 93702

The Application

3. The accused asks to cross examine the complainant upon her representations that there were another two males who sexually touched her, which she disclosed in her interviews with the investigating police. The transcripts of the interviews with the Joint Investigation Response Team in which these representations were made, and a diary entry written by her, were included in the material provided to the accused by the prosecution.

4. Initially the Crown indicated that the application to adduce evidence of these representations was made jointly, but in due course, upon reflection submitted that this was evidence that could not be led because it was proscribed by s 294CB Criminal Procedure Act 1986.

5. This provides,

294CB   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)

6. The offences against the provision upon which these counts are brought are prescribed sexual offences as defined in s 3 Criminal Procedure Act 1986 and thus s 294CB applies.

The Evidence the Subject of the Application

7. The Crown tendered on the voir dire transcripts of the interviews in which the complainant participated on 14 February 2021 and 7 December 2022, last two years afterward. The Crown also tendered a photocopy of the handwritten diary entry made by the complainant photographs by a detective on 15 July 2022. Together these were marked Exhibit C on the voir dire.

8. The Crown had before this filed an affidavit by the instructing solicitor for consideration in the determination of pre-trial questions, including as an annexure a copy of the Crown Case Statement, according to which the Crown anticipates the following:

151. KC recalled one occasion when she stayed overnight at the home of the accused.88 This occurred while she was living with her mother at [address]. This was likely in 2019 and prior to about 8 November 2022 (sic). KC could not be sure of her age at the time,89 but in this period she was aged 8 years.

152. She and her two brothers slept on couches in the lounge room. She woke in the morning. The accused was standing in front of her, facing towards her. Using his hands from across the side of her body, he touched her breasts over the top of her clothing: Count 22 Intentionally sexually touch child under 10 years (DV) s.66DA(a) Crimes Act 1900.

53. At the same time, the accused also touched KC’s genital area over the top of her clothing: Count 23 Intentionally sexually touch child under 10 years (DV) s.66DA(a) Crimes Act 1900. 91

154. KC described these parts of her body as her “privates”– her “boobs” and “fanny”, which was that part of her body she used to go to the toilet. The accused touched KC three times in the one moment.

155. She told the accused: “Stop doing it” and he did. She could not recall if he said anything to her.

9. The specification of the date 8 November 2022 is an error when one looks to the period specified in Courts 22 and 23, ending on 8 November 2019, and the context provided by the paragraph.

10. In the first interview, of 4 February 2022, the complainant represented the following:

1. At her Mum’s three people touched her in the wrong spots: QQ 34, and 36.

2. One of “them” was at the “other person’s” place. She said Tim did it at his house 37, 79. She later said she could not remember where the other two people touched her: Q Q81, 82.

3. She did not remember where Tim lived, but it was in the same street and she provided a description: QQ 84, 85, 86, 87, 88, 110.

4. She could not remember when this happened: QQ 35, 36.

5. The three were “Tim” which I accept is a reference to the accused, “Ranga” and her father’s friend “Sausage”: QQ 38, 39, 40.

6. She could not remember any of them the most “out of those times.”: Q 42.

7. She could not remember whereabouts was her Mum’s: Q 43.

8. She could not remember how old she was at the time but it was a long time before: QQ 44, 45.

9. She did not know Tim’s last name: Q 47, but provided her father’s name: QQ 49, 50.

10. Both Tim and “Sausage” touched her once “near the private part “over her clothing: QQ 51, 52, 59, 60, 63, 64, 65, 66, 72.

11. She did not remember whether she was inside or outside at the time, or whether there was anyone else there: QQ 61, 62.

12. She could not remember whether this occurred on the same day: Q 66.

13. She last saw Tim “ages ago” but could not remember when she last saw Ranga: QQ 68, 69, 70.

14. She identified on a diagram where “Ranga" touched her, near her head and arms: QQ 73, 74.

15. She could not remember all that happened from the very start to the very end for any of the occasions: Q 113.

16. She could not remember how often she went to Tim’s house, or if Tim came to her house: QQ 116, 117.

17. She received a diary for her birthday but did not write anything down in it until she began to write letters to her Mum a long time ago: QQ 123, 124, 125, 126, 127, 128, 129, 130.

18. She wrote things about Tim, Sausage, and Ranga in the diary, what she told the interviewer, but could not remember how long ago: QQ 130, 132,134.

19. She could not remember what Tim looked like: Q 136. Ranga had red hair and beard: Q 137. She could not remember what Sausage looked like: Q 139.

20. She told her Mum (now deceased) that Tim, Sausage, and Ranga touched her: Q 144.

11. The diary entry is difficult to read because of her inability to spell. It is apparent that the words she recorded were on the face of things constructed phonetically but misused letters chosen. The entry was the subject of questions in the second interview, 7 December 2022. According to this the entry reads:

Nan, Tim has touched me on my fanny when I had my pants on. Was an (inaudible): Q 34

I can’t understand the word I just writ: Q 35 referring to the second line third last word.

Touched me on my fanny when I had my pants on. Was to and rar (sic) touch me on my boobs. That’s all. Was: Q 38.

12. The third last word which she identified appears as “Soshich” which phonetically is consistent with the nick name “Sausage.” The word “Rar” might be consistent with “Ranga” as used in the transcript of the interview.

13. The diary entry thus might be seen to record that Tim touched her on what she recorded as her “Fene” or “Fanny,” when she had her pants on, “Sausage” touched her on her “Fene” or “Fanny” when she had her pants on, and “Ranga touched her on her “boobs.” After each of these representations she wrote the word “Yus” which is not explained.

14. There is no evidence before me regarding the other two men, though I understood the Crown to say that those aspects were investigated. I know nothing more about that.

15. The accused’s case is that he did not engage in any such conduct toward the complainant.

Submissions

16. Notwithstanding the initial indication, the Crown opposes leave to the accused to cross examine the complainant about her assertions concerning the other two men. The Crown submits that none of the exceptions to the proscription imposed by this section are here engaged.

17. Specifically, the Crown argues with reference to s 294CB(4) of the Act that there is no basis upon which to find that the sexual activity involving the other two men was at or about the time of the commission of the offences alleged against the accused or were events that formed part of a connected set of circumstances in which the alleged offences were committed.

18. With regard to s 294CB(6) the Crown submits that the accused person will not be unfairly prejudiced if the complainant could not be cross-examined on behalf of the accused in relation to the disclosure or implication of sexual experience or a lack of sexual experience in the conduct she alleges of the other two men since questions might be framed testing the veracity of her allegations against the accused without the need for examination of the other allegations.

19. The accused’s counsel on the other hand submits that upon the face of the representations by the complainant that she suffered sexual assault at the hands of three men, including the accused, although there is no specific temporal connection offered by the complainant, an inference of sufficient proximity is available from the nature of the allegations she has made against all three on the one occasion, and the comparisons between what is alleged against the accused and the man identified as “Sausage”.

20. Counsel summarised the scope of the proposed cross examination which was to test the question whether the complainant has transferred her attention to the accused from what she might have experienced at the hands of the other two men or either of them.

21. Counsel also referred to s 294CB(6) and submitted that the accused would be unfairly prejudiced if the complainant could not be cross-examined by or on behalf of the accused person in relation to her disclosure of the conduct of the other men.

Consideration

22. During argument, the Crown referred to R v Edwards [2015] NSWCCA 24 as offering guidance upon the interpretation of the phrase “connected set of circumstances” used in s 294CB(4)(a)(ii) Criminal Procedure Act 1986. Harrison J with whom Hoeben CJ at CL and McCallum J agreed, considered the phrase as it appeared in the earlier and comparable iteration of this provision then found in s 293(4)(a) (ii) of the Act. The case arose upon the Crown’s application to adduce evidence of sexual activity beyond that alleged of the accused which upon the Crown case involved grooming of the complainants thereby facilitating the misconduct alleged of the accused.

23. His Honour noted with reference to authority that the purpose of the section was to limit the circumstances in which complainants in sexual assault matters would have to endure public revelation of what otherwise be personal and sensitive matters. The purpose for which the Crown sought to adduce the evidence had nothing to do with the purpose identified in the authorities, but which did not find expression within the section. His Honour noted that the exception provided was directed to cases where the sexual activity or lack of it is connected with the alleged offences in time and place, regardless of the purpose for which the tendering party might wish it. At para [30] and [31]his Honour wrote:

Consistently with the views that I expressed in GEH v R, the complainants’ sexual experience, in the sense of their historical engagement in sexual activity over some years, is necessarily their existing state of sexual experience at or about the time of the alleged sexual offences with which [the accused] has been charged. Section 293(4)(a)(i) is concerned with the complainants’ “sexual experience…at the time of the commission of the alleged prescribed sexual offence.” The evidence of the sexual experience of the complainants that the Crown wishes to tender satisfies the temporal conditions of admissibility with which the section is concerned.

Moreover, the evidence in question is of events that the Crown alleges form part of a connected set of circumstances in which the alleged prescribed sexual offence was committed. The term “connected” is not defined at all, and so its meaning is not confined to particularly close circumstantial or factual situations limited by reference to a specified range or class of participants or activities in which they may be involved. The evidence need only be of events allegedly forming part of a connected set of circumstances. Be that as it may, in the present case, the complainants’ sexual experience is clearly evidence of events that are alleged to form part of a connected set of circumstances. The sexual experience of the complainants is directly referable to a series of events that actually form part of the circumstances in which the alleged offences occurred. The complainants were handed around or passed between or among a series of individuals, including Mr Edwards, who groomed them with gifts and other favourable treatment before engaging in acts of sexual intercourse with them on regular and reoccurring occasions. The evidence does not, for example, relate merely to the sexual experience of the complainants with individuals unconnected to Mr Edwards or in isolated or unique circumstances

24. The issues before the court in R v Edwards ibid contrast with those in the present matter but the principles found in his Honour’s reasoning are apposite. Here it is the accused who wishes to ask the complainant about the allegations she made regarding the other two men, provided at the time she alleged the accused’s misconduct, said to have occurred when she was eight years of age. There is sufficient proximity in time and place between her allegations against the three men to satisfy the terms of the exception in s 294CB(4)(a) of the Act.

25. I agree with the submission that the accused should be permitted to cross examine the complainant within the bounds of the scope of the questions counsel advised. I am satisfied that there is available an inference from the representations by the complainant to be read as a whole, including what is written in her diary, that they are of sexual activity to which she was subject at the hands of the men named as Sausage and Ranga about the time of the commission of the alleged prescribed sexual offences, and are of events that form part of connected circumstances in which the prescribed sexual offences were allegedly committed by the accused. Significant in this context are the following features of the complainant’s representations:

1. She received a diary for her birthday but did not write anything down in it until she began to write letters to her Mum a long time ago. She wrote some things about Tim, Sausage, and Ranga in the diary, what she told the interviewer, but could not remember how long ago. On the face of it the diary entry was made at the onetime referring to the three men and what is alleged of them.

2. The complainant said that at her mother’s three people touched her in the wrong spots, subsequently qualified in terms that one of them was at that person’s place, and she named Tim as having done so at his house. She later could not remember where the other men touched her, which I understand to be a geographical reference.

3. She did not remember where Tim lived, other than it was in the same street and she provided a description: of the premises.

1. She could not remember when these events happened and could not remember any one of them more than the other.

2. She could not remember where her mother’s home was.

3. She could not remember how old she was at the time but it was a long time before.

4. Both Tim and “Sausage” touched her once “near the private part” over her clothing. She did not remember whether she was inside or outside at the time, or whether there was anyone else there.

5. She could not remember whether this occurred on the same day.

6. She last saw Tim some time ago but could not remember when.

7. She identified on a diagram where “Ranga" touched her, near her head and arms, which is consistent with the assertion that he touched her “boobs” over her clothing.

8. She could not remember all that happened from the very start to the very end for any of the occasions. She could not remember how many times she went to Tim’s house, or if Tim came to her house.

9. She could not remember what Tim looked like but said Ranga had red hair and beard. She could not remember what Sausage looked like. She told her Mum (now deceased) that Tim, Sausage, and Ranga touched her.

26. The same considerations I find engaged s294CB(6). All are relevant to the consideration of this provision, but significantly there is the comparison to be drawn between the misconduct alleged, the time that passed since it is alleged to have occurred, and the inability to provide definitive information about the accused including a description of him.

27. I am satisfied that  the accused might be unfairly prejudiced if the complainant could not be cross-examined in relation to the disclosure of the sexual activity at the hands of the other two men, against the possibility that what she alleges of the accused is a transfer to him of which she experienced elsewhere.

The Decision

28. After I heard the submissions I indicated that I would permit the cross examination proposed in terms by Ms McSpedden and accordingly, for the reasons herein, the Crown has leave if it wishes to examine the complainant, and the accused’s counsel has leave to question the complainant upon her representations that there was sexual activity to which she was subject as alleged of the man identified as Ranga and the man identified as Sausage.

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Decision last updated: 28 June 2024