R v RB (No 4) - [2020] NSWDC 580

District Court

New South Wales

Medium Neutral Citation: R v RB (No 4) [2020] NSWDC 580
Hearing dates: 30 September 2020 and 01 October by submissions
Date of orders: 01 October 2020
Decision date: 01 October 2020
Jurisdiction: Criminal
Before: Grant DCJ
Decision:
The evidence proposed to be adduced by the Crown is admissible.

Catchwords:
CRIMINAL PROCEDURE- sexual offence proceedings - admissibility of evidence- matters relating to maker of statement - s135 Evidence Act 1995– s137 Evidence Act 1995

Legislation Cited:
Evidence Act 1995
Criminal Procedure Act 1986

Cases Cited:
R v RB; Attorney-General (NSW) as Intervenor (No 2) [2019] NSWDC 511
Jackmain (a pseudonym) v R [2020] NSWCCA 150
KS v Veitch (No 2) (2012) 84 NSWLR 174
BB (No 2) [2017] NSWCCA 142
M v R (1993) 67 A Crim R 549

Category: Procedural and other rulings
Parties: Regina (Crown)
RB (Accused)
Representation:
Counsel:
Mr Kerr
Ms Graham
Solicitors:
Ms Brown
Ms Gidlow

File Number(s): 2017/0056625
Publication restriction: Non publication order in relation to name of complainant and accused.

Judgment

HIS HONOUR: By notice of motion dated 14 September 2020, the accused seeks the following order:

“An advanced ruling or finding pursuant to s 192A, Evidence Act 1995 (NSW) (EA) that the evidence proposed to be adduced by the Crown from (a) the complainant, JQ and/or (b) the complainant’s friend, Joelehe Shearer and/or (c) the complainant’s medical practitioner, Dr Catherine Orr is inadmissible pursuant to s 135 and/or s 137 EA.”

The order sought is identical to the order sought at 3A of the notice of motion dated 2 November 2018. I ruled in relation to order 3A on 6 September 2019 in R v RB: Attorney General (NSW) as Intervenor (No 2) [2019] NSWDC 511. I declined to make an order that the evidence was inadmissible pursuant to s 135 and/or s 137 of the Evidence Act. I ruled that the evidence of the complainant and the complaint evidence was relevant, probative of a fact in issue and admissible.
Section 8 of the Evidence Act provides:

“This Act does not affect the operation of the provisions of any other Act.”

As I said in RB (No 2), the accused 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. 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.
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). In Jackmain (a pseudonym) v R [2020] NSWCCA 150, the Court convened a five judge bench to consider the correctness of M v…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v RB (No 4)

Details

AGLC: R v RB (No 4) [2020] NSWDC 580
Case: [2020] NSWDC 580
Decision Date: 01 October 2020

CaseChat Overview and Summary

The case of R v RB (No 4) involved the appellant, referred to as RB, who was facing charges related to sexual offences. The matter was heard in a court of law where the primary issue revolved around the admissibility of certain evidence proposed to be presented by the Crown. Specifically, the court had to determine whether the evidence complied with the provisions of sections 135 and 137 of the Evidence Act 1995.

The legal issues before the court included whether the evidence in question was relevant and whether its probative value outweighed any prejudicial effect it might have. The court also needed to assess whether the evidence was obtained in a manner that adhered to the legal standards set out in the Evidence Act 1995, particularly with regard to matters relating to the maker of the statement. These sections of the Act are critical in ensuring that evidence presented in court is both reliable and fair, thus safeguarding the rights of the accused.

In its reasoning, the court found that the evidence proposed to be adduced by the Crown was indeed admissible. The court determined that the evidence was relevant to the case and its probative value was not substantially outweighed by the danger of unfair prejudice. Additionally, the court was satisfied that the evidence was obtained in compliance with the relevant sections of the Evidence Act 1995, thus meeting the legal standards required for admissibility. Consequently, the court ruled in favour of the Crown, allowing the proposed evidence to be presented during the trial.

As a result of the court's decision, the evidence that the Crown intended to use was deemed admissible. This decision enabled the prosecution to proceed with presenting their case, which included the contested evidence, in the trial against RB.

Orders

Orders of the court

The evidence proposed to be adduced by the Crown is admissible.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v RB (No 4) [2020] NSWDC 580
Hearing dates:	30 September 2020 and 01 October by submissions
Date of orders:	01 October 2020
Decision date:	01 October 2020
Jurisdiction:	Criminal
Before:	Grant DCJ
Decision:	The evidence proposed to be adduced by the Crown is admissible.
Catchwords:	CRIMINAL PROCEDURE- sexual offence proceedings - admissibility of evidence- matters relating to maker of statement - s135 Evidence Act 1995– s137 Evidence Act 1995
Legislation Cited:	Evidence Act 1995 Criminal Procedure Act 1986
Cases Cited:	R v RB; Attorney-General (NSW) as Intervenor (No 2) [2019] NSWDC 511 Jackmain (a pseudonym) v R [2020] NSWCCA 150 KS v Veitch (No 2) (2012) 84 NSWLR 174 BB (No 2) [2017] NSWCCA 142 M v R (1993) 67 A Crim R 549
Category:	Procedural and other rulings
Parties:	Regina (Crown) RB (Accused)
Representation:	Counsel: Mr Kerr Ms Graham Solicitors: Ms Brown Ms Gidlow
File Number(s):	2017/0056625
Publication restriction:	Non publication order in relation to name of complainant and accused.