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

1. 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.”

2. 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.

3. 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).

4. 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.

5. 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 R. Bathurst CJ (Johnson, Button and Wilson JJ agreeing; Leeming JA contra) held that it was correctly decided.

6. The Court held that I did not err by holding that s 293(3) applied to the proven incidents of false complaint. Nothing s 293 turns on any notion of proof. Section 293 is a rule governing admissibility. If the section applies, the evidence is inadmissible whether its probative value be high or low: [181] - [183]. Nor did I err by rejecting the availability of the exception in s 293(4). The temporal requirement of “at or about the time of” could not be satisfied as the relevant events were separated from the alleged offences: at [190]. I went on to rule in RB (No 2) at [33] - [34] that:

"[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 affect 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] s 293 represents a valid choice by the legislature as to the balance to be struck between competing public interest.” 

7. I held that s 293 is a valid piece of legislation, so did the Court of Criminal Appeal. 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]. 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. As I said in RB (No 2) at [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].”

8. By reason of s 8 of the Evidence Act, s 293 of the Criminal Procedure Act is not affected. Section 293 is applicable, and the accused cannot now call in aide s 135 and/or 137 to defeat the intention of parliament and the exclusionary rule in s 293.

9. Section 130A of the Criminal Procedure Act is relevant to this application. It provides:

“(1) A pre-trial order made by a Judge in proceedings on indictment is binding on the trial Judge in those proceedings unless, in the opinion of the trial Judge, it would not be in the interests of justice for the order to be binding.

(2) …

(3) …

(4) In this section, ‘pre-trial order’ means any order made or given after the indictment is first presented but before the empanelment of a jury for a trial.

(5) To avoid doubt, this section extends to a ruling given on the admissibility of evidence.”

10. At 8.07 this morning (1 October 2020), my associate received written submissions from Ms Graham who appears for the accused dated 30 September 2020. In those submissions, she asserts House v The King error on my part in the ruling of RB (No 2). She asserts that I failed to apply the correct test. I reject that assertion. What is asserted may be a consideration for a permanent stay application, but in light of s 8 of the Evidence Act and s 293, the assertion has no validity.

11. She further asserts that my reasoning process for refusing a permanent stay was erroneous. This may be so, but the Court of Criminal Appeal refused to grant a permanent stay. She then tried to link the erroneous reasoning of the permanent stay to this application. I have found that the evidence is relevant, probative of a fact in issue and admissible. Section 8 of the Evidence Act and s 293 of the Criminal Procedure Act are relevant. She further asserts that s 8 does not lead to a conclusion that s 293 of the Criminal Procedure Act dis-applies s 135 and s 137 of the Evidence Act. I disagree.

12. On her submission, s 8 of the Evidence Act would have no work to do or purpose and I reject such a contention. I am not satisfied it would not be in the interests of justice for the order to be binding. I refuse to make the order that is sought in ground number two in the notice of motion dated 14 September 2020.

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Decision last updated: 12 October 2020