R v RA (No 1)

[2019] NSWDC 375

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v RA (No 1) [2019] NSWDC 375
Hearing dates:	26 March 2019
Date of orders:	26 March 2019
Decision date:	26 March 2019
Jurisdiction:	Criminal
Before:	Wilson SC DCJ
Decision:	Leave granted for the Crown to cross-examine the complainant
Catchwords:	CRIMINAL LAW – EVIDENCE – section 38 application – leave granted to Crown to cross-examine complainant
Legislation Cited:	Evidence Act 1995
Cases Cited:	R v Le [2001] NSWSC 174
Texts Cited:	Odgers, 'Uniform Evidence Law', (Thomson Reuters, 14th ed, 2019)
Category:	Procedural and other rulings
Parties:	Regina (Crown) RA (Accused)
Representation:	Counsel: Ms K Tennant (Crown) Mr S Healy (Accused)   Solicitors: ODPP (Crown) Newton’s Law (Accused)
File Number(s):	2016/270427
Publication restriction:	Non-Publication Order with regards to the name of the Accused or the complainant

Introduction

1. Shortly after the commencement of the cross-examination of the complainant, an application was made by the Crown to question the complainant as though the Crown was cross-examining the complainant, on the basis that it related to evidence given by the witness which was unfavourable to the Crown case (s38(1)(a) of the Evidence Act).

2. The trial related to two incidents giving rise to four counts on an Amended Indictment, the latter two being referred to as ‘Count 3A and Count 3B’; the latter in the alternative to the former.

3. The first incident is said to have occurred between 1 December 1977 and 29 February 1980 at a town in the Central Coast region in the State of New South Wales.

4. The second incident is said to have occurred between 29 August 1980 and 31 December 1981 at another town in the Central Coast region in the State of New South Wales

5. The complainant was born in early 1972. The Accused was born in late 1963.

6. Time was of the essence in relation to the offending for two reasons. First, the Accused turned 14 years of age in late 1977, prior to which date issues relating to doli incapax would have arisen. Secondly, the complainant turned 10 years of age in early 1982, which is of significance as Counts 3A and 3B related to carnal knowledge and attempted carnal knowledge of a girl under the age of 10 years, stated to be 8 or 9 years. Accordingly, to avoid issues of doli incapax, the offending for the first count must have occurred after 1 December 1977 and to satisfy a necessary element of Counts 3A and 3B, that offending must have occurred prior to early 1982.

7. In a statement dated 27 October 2014, the complainant told Police that:

“12. I remember that I was in Year 1 (one) and I remember that I had Miss Brown [a pseudonym] as my school teacher. I remember that it was my first year at [Redacted] Primary School. I know that it was in the summer months that my uncle [RA] came to stay with us in the above house. I can’t remember exactly whereabout he said in the bus; but I think it may have been on the lounge as we had no spare beds or anything like that.”

8. The age chart tendered in the trial (Exhibit C) demonstrated that the complainant was in Year 1 at the age of 6 in 1978. At that time, the Accused would have been older than 14 years of age.

9. In the course of her evidence-in-chief, the complainant confirmed that in 1977 she was in Kindergarten (T25.31). She was then asked questions about when the Accused came to visit them and stated “I think I was in first class then” (T26.30).

10. In further evidence-in-chief, this evidence became confused, commencing at T31.25:

“Q: So the time that you remember the Accused visiting, can you just tell us again when you think that was?

A: I remember I was in primary school, possibly Kindergarten or Year 1, yes.”

11. She also remembered that it was in the warmer months.

12. The complainant was in Kindergarten in 1977. Her evidence-in-chief left open the possibility that the first offending took place at a time when the Accused was under the age of 14. This was inconsistent with the initial part of her evidence-in-chief and also the statement made to Police on 27 October 2014, in which she stated quite clearly that she was in Year 1 when the Accused visited her home and the offending occurred.

13. It was said by the Crown that the evidence that she may have been in Kindergarten (or Year 1) was unfavourable to the Crown, as Count 1 had been framed in a particular date range (1 December 1977 to 29 February 1980) which avoided the doli incapax issue.

14. The Crown sought leave to cross-examine the complainant as to the contents of paragraph 12 of her Police Statement. That application was opposed. Leave was granted.

15. The other counts on the Indictment identified a period of between 29 August 1980 and 31 December 1981. That date range was relevant, so far as Counts 3A and 3B were concerned, as those counts were framed on the basis that the complainant was under the age of 10.

16. In her statement to the Police, the complainant said:

“26. I think I was in year two (2) or year three (3) years; I would have been about 7 or 8 years of age. I can’t remember the exact year but I know I had an operation on my ears at [Redacted] Hospital. I underwent surgery to have my ears pinned back.

27. My uncle [RA] came to visit again. This was the first time that my uncle had been to our new house. I think it was warm weather and I think my ear surgery had been done. I was at [Redacted] Public School.”

17. She then went on to describe the second incident, giving rise to Counts 2, 3A and 3B.

18. According to Exhibit C, the complainant was 7 years of age in Year 2 (1979) and 8 years of age in Year 3 (1980). She turned 10 in early 1982. Her evidence-in-chief departed, to some extent, from the clarity of her recollection exposed in the extract of the Police Statement above. When asked what year she was in when they moved houses, she stated that she was about 9 and would have been in Year 5 (T34.37-42).

19. She was then asked about the second visit by the Accused. Again, she recalled that it was summertime as it was not cold (T36.27). The following exchange then occurred:

“Q: Do you remember what year at school you were in when he visited you that time?

A: I think in around Year 5, 4 or 5.”

20. The difficulty for the Crown in that answer is that in Year 5 the complainant was 10 years of age, which if accepted, resulted in the Crown failing to prove an essential element of Counts 3A and 3B.

21. There was further evidence-in-chief as to various schools attended by the complainant (commencing at T43). The following facts were established by the evidence:

1. as at 30 November 1978, the complainant was attending [Redacted] Public School;

2. in 1978, the complainant was in Year 1;

3. her teacher in Year 1 was Ms Brown [a pseudonym];

4. in 1979, the complainant was in Year 2;

5. she completed Year 2 at [Redacted] Public School; and

6. her teacher in Year 2 was Ms Brown [a pseudonym].

22. An application was made by the Crown under s32 of the Evidence Act for the complainant’s memory to be revived, using her Police Statement. The application was refused on the basis that the statement was not made at a time when it was fresh in the memory of the complainant. That is, the events said to have occurred between December 1977 and December 1981. The statement was dated October 2014.

23. Cross-examination then commenced and continued up until the lunch adjournment. Of the cross-examination which occurred during that period, only one question bore upon the issue of age and timing. The following exchange occurred at T58.27:

“Q: The evidence you have already given is that you were 9 or 10 years old at the time you say the under the house incident occurred, correct?

A: Yes.”

24. Immediately following the lunch adjournment, the Crown made an application pursuant to s38. Section 38 provides as follows:

38 UNFAVOURABLE WITNESSES

(1) A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about:

(a) evidence given by the witness that is unfavourable to the party, or

(b) a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence, or

(c) whether the witness has, at any time, made a prior inconsistent statement.

(2) Questioning a witness under this section is taken to be cross-examination for the purposes of this Act (other than section 39).

(3) The party questioning the witness under this section may, with the leave of the court, question the witness about matters relevant only to the witness's credibility.

(4) Questioning under this section is to take place before the other parties cross-examine the witness, unless the court otherwise directs.

(5) If the court so directs, the order in which the parties question the witness is to be as the court directs.

(6) Without limiting the matters that the court may take into account in determining whether to give leave or a direction under this section, it is to take into account:

(a) whether the party gave notice at the earliest opportunity of his or her intention to seek leave, and

(b) the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party.

(7) A party is subject to the same liability to be cross-examined under this section as any other witness if:

(a) a proceeding is being conducted in the name of the party by or on behalf of an insurer or other person, and

(b) the party is a witness in the proceeding.

25. The matter relied upon by the Crown was that evidence was given by the complainant which was unfavourable to the Crown (s38(1)(a)).

26. Section 38 of the Evidence Act provides an exception to the general rule that a leading question must not be put to a witness in examination-in-chief or re-examination (s37).

27. As observed, s38(1)(a) permits a party to call the witness and cross-examine the witness in certain circumstances, including where the witness gives evidence which is unfavourable to the party calling the witness.

28. Such evidence is to be given before the witness is cross-examined by the other party unless the Court otherwise directs (s38(4)). There is a general discretion in the Court as the order in which parties may question witnesses (s38(5)).

29. Section 38(6) sets out a non-exhaustive list to which the Court is to have regard in exercising its discretion generally under s38.

30. In deciding the Crown’s application I had regard to the matters referred to in s38(6)(a)-(b). In respect of the notice being given to the other side, it was only provided after the cross-examination had commenced, but whilst the cross-examination was on foot.

31. In relation to the question of the matters on which the complainant has been or was likely to be questioned by the other party, as the cross-examination had just commenced, there was ample opportunity for counsel for the Accused to address the topics, the subject of the s38 application, in cross-examination.

32. Section 38 was introduced into the Evidence Act following consideration by the Australian Law Reform Commission. The provision replaces the common law with respect to “hostile witnesses” and was intended to effect a significant change to the common law principles. Instead of requiring the party calling the witness to establish that the witness is “unwilling to tell the whole truth” before allowing cross-examination, the provision permits cross-examination if the witness gives “unfavourable evidence”. This is plainly a lower threshold than that which existed at common law. [1]

    1. Stephen Odgers, Uniform Evidence Law (Thomson Reuters, 14th ed, 2019) [EA 38.60].

33. It is apparent from considering the ALRC paper, which led into the introduction of the Evidence Act, that the purpose of s38 is to ensure that all relevant and admissible evidence is placed before the Court. I note the observations of McClellan J in R v Le [2001] NSWSC 174 at [15], where his Honour stated:

[T]he word "unfavourable" should be given a broad meaning thereby ensuring that in the course of any criminal trial the Court would not be denied evidence as to any relevant issue and would not be denied the opportunity for that evidence to be appropriately tested.

34. As stated, the application was opposed. One of the bases upon which it was resisted by the Accused was that the timing of the application was irregular. Whilst it is true that the application ought to have been made prior to cross-examination commencing, the Court accommodated the request of counsel for the Accused that he be allowed to complete his cross-examination before the s38 questioning was undertaken by the Crown, reserving the right for counsel for the Accused to ask additional questions.

35. In my opinion, the evidence given by the complainant in-chief as to the two incidents, being the foundation of the charges on the Indictment, left open some degree of confusion as to when the incidents occurred. The Crown was exposed to the possibility of the first incident occurring at a time when the Accused was under the age of 14 and the second incident occurring at a time when the complainant was over the age of 10. Plainly, the evidence, to the extent that it permitted such findings, was unfavourable. The jury was entitled to have that aspect of the evidence clarified.

36. In exercising the discretion under s38, I had regard to s192 of the Evidence Act, which provides as follows:

192 LEAVE, PERMISSION OR DIRECTION MAY BE GIVEN ON TERMS

(1) If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit.

(2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account:

(a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing, and

(b) the extent to which to do so would be unfair to a party or to a witness, and

(c) the importance of the evidence in relation to which the leave, permission or direction is sought, and

(d) the nature of the proceeding, and

(e) the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence.

37. The most pertinent consideration arising under s192(2) is in s192(2)(c), namely the importance of the evidence in relation to which the leave is sought. I form the opinion that in order to avoid a miscarriage of justice, it was appropriate for leave to be given.

38. Accordingly, leave was given to question the complainant as to the following:

1. whether or not she was Kindergarten, Year 1 or Year 2 at the time of the first offence (T76.39); and

2. the school which the complainant was attending at the time of the second offence (T81.28).

39. Following that ruling, counsel for the Accused completed his cross-examination.

40. In re-examination (commencing at T91) the complainant was shown her statement dated 27 October 2014 and confirmed that the first incident occurred when she was in Year 1 or 2, attending [Redacted] Public School, being taught by Ms Brown [a pseudonym].

41. Further, she confirmed that the second incident occurred when she was still at [Redacted] Public School and most probably aged 9.

42. Counsel for the Accused then undertook further cross-examination of the complainant.

43. In granting leave I found:

1. that the evidence given by the complainant was unfavourable to the Crown (s38(1)(a));

2. that the evidence was sufficiently important to warrant the exercise of discretion (s192(2)(c)); and

3. that it was in the interests of justice that the Court ought not to be denied relevant evidence which could by tested by cross-examination.

44. Leave to the Crown to question the complainant as though the Crown was cross-examining her is granted, limited to the topics referred to in paragraphs 38(a) and (b) above.

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Endnote

Amendments

05 August 2019 - References added.

05 August 2019 - Information likely to identify complainant and Accused further redacted.

Decision last updated: 05 August 2019