R v RB; Attorney-General (NSW) as Intervenor (No 3)

[2019] NSWDC 588

District Court

New South Wales

Medium Neutral Citation:	R v RB; Attorney-General (NSW) as Intervenor (No 3) [2019] NSWDC 588
Hearing dates:	On the papers
Date of orders:	23 October 2019
Decision date:	23 October 2019
Jurisdiction:	Criminal
Before:	GRANT DCJ
Decision:	The fabrication evidence is caught by s 293(3) of the Criminal Procedure Act, with no applicable exception in s 293(4).
Catchwords:	CRIMINAL PROCEDURE — Sexual offence proceedings — Admissibility of evidence related to lack of sexual experience — Admissibility of evidence related to false complaints —
Legislation Cited:	Criminal Procedure Act
Cases Cited:	Allan v R [2017] NSWCCA 6 Dimian v R (1995) 83 A Crim R 358, R v RB; Attorney-General (NSW) as Intervenor (No 2) [2019] NSWDC 511 R v RB; Attorney-General (NSW) as Intervenor [2019] NSWDC 368 Rolfe v R [2007] NSWCCA 155 Spratt v Director of Public Prosecutions [2010] NSWSC 355 Taleb v R [2015] NSWCCA
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):	2017/0056625
Publication restriction:	Identifier of Accused and Complainant

Judgment

1. These reasons for judgment must be read in conjunction with R v RB; Attorney-General (NSW) as Intervenor [2019] NSWDC 368 and R v RB; Attorney-General (NSW) as Intervenor (No 2) [2019] NSWDC 511.

2. By notice of motion dated 1 October 2019 the accused seeks “reasons to be given in relation to grounds 6(b) and 6(c) of the amended notice dated 2 November 2018”. It is agreed between the parties that the reasons may be given by way of further judgment or amendment of the original judgment without the Court reconvening.

3. The relevant parts of the 2 November notice of motion read:

“6b. The exception in subsection 293(4)(c) CPA applies: whereby the accused is alleged to have had sexual intercourse with the complainant and does not concede the sexual intercourse so alleged and the evidence of the complainant’s history of fabrications is relevant to whether injury (in the nature of bruised ribs and/or bleeding anus is attributable to the sexual intercourse so alleged in particular, the complainant’s history of fabricating sexual assault allegations and assault allegations, including reporting injuries as a result of the fabricated incidents, is relevant to whether the complainant should be believed when she asserts that certain injuries are attributable to the alleged sexual intercourse with the accused.

6c. The exception in subsections 293(4)(f), (5) and (6) CPA applies to some or all of the evidence: whereby the evidence has been disclosed or implied in the case for the prosecution against the accused and the accused might be unfairly prejudiced if the complainant could not be cross-examined on behalf of the accused in relation to the evidence.”

4. S 293 of the Criminal Procedure Act (‘CPA’) provides:

“293 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)"

GROUND 6b  - THE EXCEPTION IN SECTION SECTION 293(4)(c)

5. To bring himself within this exception the accused needs to show that (i) he does not concede the “sexual intercourse so alleged” and (ii) that the evidence is relevant to whether, relevantly, the presence of injury was attributable to the sexual intercourse alleged against him.

Accused’s submissions

6. The accused denies sexual intercourse in counts 2, 3 and 4. Therefore, he satisfies s293(4)(c)(i) CPA. In relation to count 2 the complainant complained of bleeding from her anus and bruised ribs as a result of the alleged sexual assault. In relation to counts 3 and 4 there is no evidence of any injury being attributable to the alleged sexual assaults.

7. The accused relies on the complainant’s history of fabricating sexual assault allegations and assault allegation, including reporting injuries as a result of fabricated incidents, being relevant to whether the complainant should be believed when she asserts that certain injuries are attributable to the alleged sexual intercourse with the accused in satisfaction of the second requirement for the exception in s 293(4)(c)(ii).

8. Counsel for the accused acknowledges the constraints of s 290(2) CPA which states:

“This Division applies to proceedings in which a person stands charged with a prescribed sexual offence, whether the person stands charged with that offence alone or together with other offence (as an alternative or additional count) and whether or not the person is liable, on the charge, to be found guilty of any other offence.”

9. Counsel for the accused submits that “in circumstances where the accused is only able to demonstrate criteria to satisfy an exception to s293(3) CPA in relation to a single count on the indictment (Count 2), it appears that the combined effect of s 293 and s 290(2) is to deny the accused that evidence in the joint proceedings”: submissions dated 17 September 2018 at [62].

10. Counsel concedes that “unless the evidence is admissible in relation to each prescribed sexual offence count then the Division effectively block the use of that evidence for an individual count”: at [63].

Crown submissions

11. The Crown submits that contrary to the accused’s submission at [56]-[63], the exception in s293(4)(c) does not apply. The crown further submits that it is difficult to see how events in 2001, 2002 and 2009 could possibly be “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 “ in 2014: submissions dated 14 November 2018 at [46].

12. It further submits that in Dimian v R (1995) 83 A Crim R 358, the prior sexual activity occurred the same night as the allege sexual assault. In Dimian, the complainant’s earlier sexual experience was relevant to explain whether the presence of injury or distress was attributable to the sexual intercourse alleged to have been had by the accused person, or whether the distress of the complainant was caused by the earlier sexual activity. The Court's interpretation of “injury” in Dimian was very broad, but even this broad interpretation does not stretch to admit the evidence sought to be adduced by the accused in this case: at [46].

Consideration

13. The accused’s counsel on her interpretation of the legislation concedes that the Division prevents the use of the evidence. If she is wrong about that, I accept the Crown submission that events in 2001, 2002 and 2009 cannot be “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” in 2014.

14. The exception in s 293(4) does not apply to the ground under consideration.

GROUND 6c - THE EXCEPTION IN S 293(4)(f), (5) & (6)

Accused’s submissions

15. It is submitted on behalf of the accused that some of the incidents of fabrication, or circumstances relevant to them, have been disclosed by the prosecution by way of service of material.

16. The accused points to the complainant’s offence of false report to Victoria Police in 2009, being a fabricated sexual assault allegation disclosed by the prosecution to the accused. The crown is not relying on this evidence on the trial. It was disclosed pursuant to the duty of disclosure.

17. The accused’s counsel helpfully reviewed the authorities in her extensive submissions and submitted the “authorities render the exception in s 293(4)(f) and (6) CPA nugatory and should not be followed.” She developed arguments of constructions as to why this is so.

Crown submissions

18. The crown points to the fact that the accused accepts that the authorities suggest that the accused cannot meet s 293(6)(a). It submits that there is no legal authority on point to support the accused’s contention that the authorities should not be followed.

19. The crown relied upon Allan v R [2017] NSWCCA 6. The court took a strict view of the wording of s 293(6) and agreed with the Crown’s submission that the only disclosure in the prosecution case was that the complainant was a prostitute at the time of the alleged offences. The court agreed with the trial judge that s 293(6) precluded the defence from cross examining the complainant about four prior incidents where the complainant may have made a false complaint of rape because the four prior incidents were “far removed from the mere disclosure that she was a prostitute at the relevant time”. Any cross-examination about the four prior alleged false reports would not be about the complainant’s work as a prostitute, but rather her supposed tendency to make up false allegations of sexual assault, therefore s 293(6)(b) did not apply: at [107].

20. It was submitted that the prior complaints and conviction are far removed from the current allegations and therefore the exception in s 293(4)(f) does not apply.

Consideration

21. In order to meet the criteria of this exception, it is necessary for the accused to demonstrate that the proposed evidence has been disclosed or implied on the prosecution case alleged against the accused: s 293(6)(a). The Crown is not relying on any evidence relating to the complainant’s previous alleged fabrications in its case against the accused at trial.

22. In circumstances where the crown does not intend to rely on evidence relating to the complainant’s fabrications the accused is prohibited from relying on s293(4)(f) and (6) in order to adduce the evidence: Spratt v Director of Public Prosecutions [2010] NSWSC 355; Taleb v R [2015] NSWCCA; Rolfe v R [2007] NSWCCA 155 at [55]. The authorities make it clear that the “case for the prosecution” is a reference to the case presented or to be presented in court and not a reference to anything referred to in material provided by the prosecution.

23. The accused counsel accepts that the “authorities suggest that, in the circumstances of this case, the accused cannot meet this minimum criteria in s293(6)(a) for the exception to be engaged”: at [71].

24. The accused’s makes a novel and bold submission that, “this line of authority renders the exception in s 293(4)(f), and (6) CPA nugatory and should not be followed”: at [72]. No authority is cited for this bold proposition. The submission fails to take account of an intermediate judge being bound by superior authority.

25. I do not accept the construction of the section as advanced by the accused’s counsel that s 293, including s 293(4) and (6), the phrase “it has been disclosed or implied in the case for the prosecution” includes material which has been served on the accused by the crown in the course of the proceedings, although the crown may not intend to adduce the material in the Crown case at trial. This construction is contrary to authority.

26. I accept the crown submission that the prior complaints and conviction are far removed from the current allegations and the exception in s 293(4)(f) does not apply.

27. The fabrication evidence is caught by s 293(3) with no applicable exception in s 293(4).

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Decision last updated: 23 October 2019