R v RB; Attorney-General (NSW) as Intervenor (No 2)

[2019] NSWDC 511

District Court

New South Wales

Medium Neutral Citation:	R v RB; Attorney-General (NSW) as Intervenor (No 2) [2019] NSWDC 511
Hearing dates:	06 September 2019
Date of orders:	06 September 2019
Decision date:	06 September 2019
Jurisdiction:	Criminal
Before:	Grant DCJ
Decision:	I decline to make the orders sought in the Notice of Motion dated 6 August 2019
Catchwords:	CRIMINAL PROCEDURE — Sexual offence proceedings — Admissibility of evidence related to lack of sexual experience — Admissibility of evidence related to false complaints — Misleading — s 135 Evidence Act 1995 — Unfair Prejudice — s 137 Evidence Act 1995
Legislation Cited:	Criminal Procedure Act 1986 Evidence Act 1995
Cases Cited:	Adam v R (2001) 207 CLR 96 BB (No 2) [2017] NSWCCA 142 BBH v R (2012) 245 CLR 499 Gypsy Jokers Motorcycle Club Incorporated v Commissioner of Police [2008] HCA 4 IMM v R (2016) 257 CLR 300 KS v Veitch (No 2) (2012) 84 NSWLR 174 Papakosmas v R (1999) 196 CLR 297 R v Clarke (2001) 123 CLR 506 R v PJE (Court of Criminal Appeal unreported 9 October 1995) R v RB; Attorney General (NSW) as Intervenor [2019] NSWDC 368
Category:	Procedural and other rulings
Parties:	Regina (Crown) RB (Accused)
Representation:	Counsel: M Kumar (Crown) F Graham (Accused)   Solicitors: Solicitor for Public Prosecutions (Crown) Aboriginal Legal Service NSW/ ACT (Accused)
File Number(s):	2017/00056625
Publication restriction:	Identifiers of complainant, accused.

Judgment

1. On 2 August 2019 I delivered an advance ruling pursuant to s 192A of the Evidence Act 1995 dealing with false complaint evidence. I ruled that:

1. the evidence was relevant, probative of a fact in issue and admissible;

2. the evidence disclosed a tendency on the part of the complainant to make false sexual allegations, the tendency is significantly probative and is admissible;

3. the exclusionary rule of s 293 of the Criminal Procedure Act operates and catches the evidence;

4. the evidence does not qualify as an exception to the exclusionary rule under s 293(4);

5. S 293 of the Criminal Procedure Act is valid;

6. I declined to permanently stay the proceedings: R v RB; Attorney General (NSW) as Intervenor [2019] NSWDC 368.

2. Subsequent to my ruling the accused’s legal representatives filed a Notice of Motion dated 6 August 2019.

3. The accused seeks the following order:

4. An advance ruling or finding pursuant to s 192A of the Evidence Act 1995 (NSW) that the evidence proposed to be adduced by the Crown from the complainant JQ and from the complainant’s friend JS and her medical practitioners (“Complaint Witnesses”) is inadmissible pursuant to s 135 and/or s 137 of the Evidence Act 1995.

5. The accused relies upon the following grounds:

1. The probative value of the evidence sought to be adduced by the Crown is substantially outweighed by the danger that the evidence might be misleading in circumstances where the evidence will imply that the complainant is a credible and reliable witness and the accused is prohibited from adducing evidence that she demonstrates that she is not a credible and reliable witness: s 135(b) Evidence Act 1995 NSW;

2. The probative value of the evidence sought to be adduced by the Crown is outweighed by the danger of unfair prejudice to the accused because the accused is effectively unable to meaningfully cross-examine or otherwise challenge the evidence of the complainant and the complaint witnesses: s 137 Evidence Act 1995 NSW.

6. The accused relies on the evidence adduced in the proceedings on the determination of the accused’s Notice of Motion dated 2 November 2018. There were two affidavits in support of that Notice of Motion from Susie Gidlow, the accused’s solicitor, dated 31 August 2018 and 17 June 2019. In short, the affidavits contained the following:

(a) Indictment;

(b) Crown case statement;

(c) Statement of Complaint JQ dated 1 April 2016;

(d) Notice in relation to tendency evidence served on the Crown on 21 August 2018;

(e) Summary of incidents or fabrication by the complainant;

(f) Correspondence from Victoria Police in relation to their response to a subpoena issued by the accused;

(g) Documents in relation to the complainant making false reports in 2001;

(h) Fabricated letter by the complainant in 2002;

(i) Documents in relation to the complainant making false reports in 2002 of sexual assaults by a former employer;

(j) Documents in relation to an offence of arson committed by the complainant in 2004;

(j1) Documents disclosed to the accused by the Crown;

(j2) Documents returned on subpoena by Victoria Police;

(j3) Documents provided by the County Court of Victoria;

(k) Documents in relation to an offence of making a false report to the police committed by the complainant in 2009 being a false report of a sexual assault allegation;

(k1) Documents disclosed to the accused by the Crown;

(k2) Documents returned on subpoena by Victoria Police;

(k3) Documents provided by the Echuca Magistrates Court Victoria;

(l) Victorian criminal record for complainant disclosed to the accused by the Crown;

(m) A copy of consultation note made by Dr Orr on 3 June 2014;

(n) Conference notes between DPP and complainant 27 and 28 August 2018;

(o) Rulings by King SC DCJ delivered on 5 and 6 December 2017.

7. On the previous application, statement of JQ dated 16 November 2018 was tendered and I have taken the statement into account.

8. The orders sought in the application is identical to the orders sought in 3A of the previous application. 3A was not pressed at the previous hearing, it is now pressed in this hearing. In my previous ruling at [1] and [2] I set out the charges, at [3]-[19] I set out the allegations. At [28]-[29] I set out the proposed evidence of the false complaints. I do not intend to repeat those matters in this ruling.

STATUTORY PROVISIONS RELIED ON BY THE ACCUSED

9. Section 135 provides:

“135, general discretion to exclude evidence.

The Court may refuse to admit evidence of its probative value if its probative value is substantially outweighed by the danger that the evidence might

(a) be unfairly prejudicial to a party, or

(b) be misleading or confusing, or

(c) cause or result in undue waste of time.”

10. The accused relies upon s 135(b) in that the evidence would be misleading.

11. Section 137 provides:

“137, exclusion of prejudicial evidence in criminal proceedings.

In a criminal proceeding the Court must refuse to admit the evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.”

THE ACCUSED’S SUBMISSIONS

12. The accused anticipates that the Crown will seek to bolster the complainant’s credibility by evidence of “recent complaint” or “contemporaneous complaint” to Dr Catherine Orr and the complainant’s friend JS. It is anticipated the Crown will lead evidence of complaint for the purposes of persuading the tribunal of fact that what the complainant says about the accused is credible beyond reasonable doubt and should be relied upon to convict him.

13. The accused submits that the probative value of the evidence sought to be adduced by the Crown is substantially outweighed by the danger that the evidence might be misleading in circumstances where the evidence will imply that the complainant is a credible and reliable witness and the accused is prohibited from adducing evidence that demonstrates that she is not a credible and reliable witness relying upon s 135(b) of the Evidence Act 1995.

14. In the alternative the accused submits that the probative value of the evidence sought to be adduced by the Crown is outweighed by the danger of unfair prejudice to the accused because the accused is effectively unable to meaningfully cross-examine or otherwise challenge the evidence of the complainant and complaint witnesses relying upon s 137 of the Evidence Act 1995.

15. The accused relies upon his inability to adduce any evidence of the complainant's tendency to fabricate sexual assault allegations and the complainant's tendency to fabricate allegations has significant probative value and goes directly to the elements of the offences, namely, is the complainant an honest and reliable witness in light of her tendency to fabricate allegations and, but for the operation of s 293 of the Criminal Procedure Act, would be admissible.

THE CROWN’S SUBMISSIONS

16. Section 293 has been subjected to review but parliament has chosen to leave the provision as it is. Section 293 is valid law. Parliament intended there to be a blanket prohibition on evidence of sexual experience (or lack thereof) with specific exceptions to the prohibition.

17. The Crown maintains that the valid operation of statute cannot result in unfairness but mandates exclusion of evidence pursuant to s 135 or s 137.

18. The basis for the accused’s application under s 137 is that the complainant’s evidence will be “misused” due to the valid operation of the law (s 293). The inability to cross-examine in accordance with law cannot be a basis for “unfair prejudice” under s 137.

19. Rules of evidence and procedure may have the effect of withholding relevant material from a party or the Court itself such that “the Court will arrive at a decision on something less than the entirety of the relevant materials”: Gypsy Jokers Motorcycle Club Incorporated v Commissioner of Police [2008] HCA 4 at 24. I referred to Gypsy Jokers Motorcycle Club at [128] of my previous ruling. The DPP referred to KS and Veitch which I referred to at [125], [127], [131], [132] in my previous ruling. The DPP referred to R v PJE which I referred to at [141]-[145] and [152] in my previous ruling.

CONSIDERATION

20. My thoughts about the legislation and its consequences are of no moment. I have previously ruled that the legislation is valid and I am bound to enforce it: [154].

21. As Cole JA said in R v PJE (Court of Criminal Appeal unreported 9 October 1995):

“...It is not for the Courts or any individual judge of a court to determine that the balance determined by the legislature is inappropriate or “unfair” in the sense of depriving an accused person material which were it admitted may provide that person with a defence. To do so would be to interfere with a constitutionally valid substantive law enacted by the parliament”.

22. A question for consideration is, is the evidence of the complainant and the complaint evidence relevant?

23. Relevant evidence “in a proceeding is evidence that if it were accepted could rationally affect (directly or indirectly) the assessment of the probability of the existence of fact in issue in the proceeding”: s 55(1).

24. Except as otherwise provided by the Evidence Act evidence that is relevant in a proceeding is admissible in the proceeding: s 56(1).

25. In deciding whether evidence is relevant the trial judge is neither required nor permitted to make any assessment of whether the jury would or might accept that evidence but must proceed on the assumption that it will be accepted: Adam v R (2001) 207 CLR 96 at [22], [60].

26. The threshold test is whether there is a logical connection between the evidence and a fact in issue: Papakosmas v R (1999) 196 CLR 297 at [81].

27. A majority of the High Court in BBH v R (2012) 245 CLR 499 has endorsed the proposition that the evidence is relevant and therefore admissible so long as it has probative value. This is so notwithstanding that it ultimately may be categorised by the tribunal of fact as carrying no weight. The tribunal of fact is entitled to assess the particular piece of evidence by having regard to the whole of the evidence in the light of the issues at trial: Bell J at [196].

28. The Law Reform Commission’s intention that only a minimal logical connection between the evidence and the fact in issue was required, sufficient to make the fact in issue more probable or less probable than it would be without the evidence was accepted as the appropriate interpretation of s 55 in R v Clarke (2001) 123 CLR 506 at [111]-[112]. An assessment of the probative value of the complainant’s evidence does not take into account the “quality” of her evidence. An assessment of probative value for the purposes of s 135 or s 137 does not take into account the reliability or credibility of the evidence. The evidence is taken at its highest: IMM v The Queen (2016) 257 CLR 300 at [44], [50] and [52].

29. The evidence of the complainant and the complaint evidence is relevant, probative of a fact in issue and admissible.

30. The accused’s contention that the evidence is misleading (s 135(b)) and/or the probative value of the evidence is outweighed by the danger of unfair prejudice (s 137) must be looked at in light of s 293 of the Criminal Procedure Act.

31. Evidence of a false complaint of sexual assault is caught by the exclusionary rule established by s 293(3). This is because such a matter is evidence that discloses or implies that the complainant has a lack of sexual experience or has not taken part in sexual activity.

32. I have previously ruled that the evidence did not qualify as an exception to the exclusionary rule in terms of the statute under s 293(4).

33. Section 293 of the Criminal Procedure Act is no more than a rule of evidence that governs the admissibility of certain types of evidence in criminal proceedings for prescribed sexual offences. Like other exclusionary rules of evidence it may have the effect that potentially relevant facts will be withheld from the Court. Like other exclusionary rules of evidence it may be that there may be a disadvantage imposed on one party.

34. Section 293 represents a valid choice by the legislature as to the balance to be struck between competing public interest.

35. The accused cannot now call into play s 135 and s 137 to defeat the intention of parliament and the exclusionary rule in s 293.

36. The evidence of the complainant and the complaint evidence is relevant, probative and admissible. The evidence is not misleading.

37. There is no unfair prejudice to the accused, s 293 is a valid piece of legislation. Laws relating to evidence stand squarely within the powers of the parliament with respect to regulation of criminal trials: KS v Veitch (No 2) (2012) 84 NSWLR 174 at [64].

38. Parliament has struck a balance between competing public interests. The parliament has recognised the competing public interest that may need to be balanced in the context of sexual assault proceedings.

39. The trial can only be “as fair as it can be in the context of the legislative provisions binding its conduct”: BB (No 2) [2017] NSWCCA 142, Hamill J at [88].

40. I decline to make the orders sought in the Notice of Motion dated 6 August 2019.

**********

Decision last updated: 19 September 2019