R v RJ (No. 3)

[2023] NSWDC 157

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v RJ (No. 3) [2023] NSWDC 157
Hearing dates:	1 May – 16 May 2023
Date of orders:	4 May 2023
Decision date:	04 May 2023
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraph 21
Catchwords:	EVIDENCE – admissibility of opinion evidence – whether admission of evidence would be unfairly prejudicial that it would outweigh any probative value that it has – application refused
Legislation Cited:	Evidence Act 1995 (NSW) s 55, 76, 78, 135
Cases Cited:	Nil
Texts Cited:	Nil
Category:	Procedural rulings
Parties:	Office of the Director for Public Prosecution (ODPP) RJ (accused)
Representation:	Counsel: Mr A O’Connor for the Crown Mr P Butterfield for the accused Solicitors: ODPP David Kelly Lawyers for the accused
File Number(s):	2019/00305678
Publication restriction:	Non-publication of accused's and complainant’s names

JUDGMENT

1. In this trial the Crown called PS. PS is a former friend of the complainant’s. More accurately, she has indicated that she appears to keep in touch but does not see the complainant very much. They stopped being friends “ages ago.”

2. The Crown called PS primarily to adduce evidence of a telephone conversation and ‘Snapchat’ conversation that she had with the complainant in September 2019.

3. It is to be recalled that it was in September 2019 that the complainant made the first of several disclosures, complaints, or reports, about the accused allegedly indecently and sexually assaulting her. In this particular context, the complainant’s mother, KC, has given ‘complaint evidence’.

4. PS had an interview with Detective Senior Constable Rebecca Harrison on 14 October 2019. It was in this interview that she referred to the telephone conversation with the complainant and a Snapchat message. The transcript of that interview is MFI 10. In the telephone conversation, PS recalled the complainant saying to her that she had been touched by the accused. In the Snapchat message, the complainant gave some specifics of one of the alleged incidents, relevantly involving the accused having penetrative sex with the complainant wearing her sports uniform at or about this time.

5. The record of interview indicates that DSC Harrison took a photo of the Snapchat conversation, which is exhibit J. Both Mr Crown and counsel for the accused questioned her about exhibit J and its content. Counsel for the accused also asked PS whether and to what extent the complainant ran into problems with the police in August or September 2019, at a time when the complainant was ‘hanging out’ with PS.

6. Subject to a potential line of inquiry which is disputed, her cross-examination is apparently at an end. Counsel for the accused applied for leave to cross-examine PS on that line of inquiry. A voir dire ensued, and during the course of that voir dire, PS was questioned about a Snapchat exchange involving the complainant and JE on or about 8 September 2021, which I will return to momentary. Following the voir dire, counsel for the accused applied for leave to cross-examine her before the jury.

7. In September 2021, the accused had been charged. His first trial commenced about six months later. In a separate evidentiary ruling I gave this morning, I observed that by late 2019, the complainant was enduring difficult relationships with the E family which even led to a verbal and possibly physical altercation later in 2019 between the complainant and TE. That earlier evidentiary ruling related to the first of the alleged incidents in which, putting the matter briefly, the complainant has alleged that, in 2015, the accused has sexually abuse herself and TE. TE is expected to give evidence that is unfavourable to the Crown case and leave was granted to the Crown to cross-examine her about that unfavourable evidence, and about other matters relating to her credibility as a witness. I alluded in that earlier ruling to tension between the complainant and the E family generally that emerged after the complainant had made her first significant disclosure about the accused to police in September 2019.

8. JE is TE’s sister. On 8 September 2021, as I say, JE had a Snapchat conversation with the witness PS. A written record of that conversation is MFI 12. In it, JE approached PS. She obviously knew of the complainant’s communications with PS about the ‘whole situation’. JE did not expressly tell PS, up front, what her purpose of conversing over Snapchat actually was. That only came later. At the conclusion of the Snapchat conversation, JE indicated what her purpose was: to get PS to speak to the accused’s lawyers.

9. In the early part of the Snapchat conversation, JE referred to PS apparently having messaged TE about 'stuff going on between us and (the complainant)’. PS indicated that she, PS, had to go to court back in April, (apparently 2021) but did not go.

10. The following important exchange in the Snapchat conversation occurred.

_{When explaining why she did not go to court, PS said: “I didn’t go because there was no point, TBH x Because they wanted me to go against your pop, and be on (the complainant’s) side. So I didn’t go.”}

_{JE responded, “Do you believe (the complainant)? Only because you mentioned last year that you and C caught her lying at some point?”}

_{PS then said, “Yeh, she used to lie all the time to us. The story just doesn’t add up, but I don’t know.”}

_{JE then said, “I’m just going to ask, it’s completely okay if you don’t feel comfortable with it, would you be willing to speak to someone about everything you know and how her stories don’t add up?”}

This is the material part of the exchange in the Snapchat conversation.

11. On the voir dire, Counsel for the accused cross-examined PS. After a while, PS conceded that she had the exchange on 8 September 2021 with JE. Counsel probed PS what she meant in the material part of the exchange that I have highlighted. Whilst acknowledging that she had ‘said’ the words attributed to her, it is fair to say that PS was not especially forthcoming with further information as to what she meant. Specifically, when pressed to so, she gave no detail as to what ‘lies’ she asserted that the complainant had made and what formed the basis for her view that the complainant’s ‘story’ did not add up. In fairness to PS, it is patent on the face of MFI 12 that PS did not purport to say that she knew that the complainant’s ‘story did not add up’.

12. At the conclusion of her evidence on the voir dire, Counsel for the accused submitted that in the presence of the jury, he should be permitted to cross-examine PS on MFI 12 and the representations as part of the material exchange that I have alluded to. He argued that PS was being disingenuous in her less than meaningful evidence on the voir dire. The evidence could affect a central issue in the case, being the credibility of the complainant.

13. Relevant to the consideration of the question also was counsel for the accused’s indication that during the cross-examination of the complainant in the first trial, back in March 2022, apparently when counsel for the accused sought to put to the complainant aspects of what PS had represented to JE, the evidence was ruled inadmissible, I am told, on the basis of an absence of a foundation for the representations.

14. The Crown opposed counsel for the accused’s application. The Crown did not dispute the relevance of the line of inquiry, relating, as it does, only to the credibility of the complainant (s 55(2)(a) of the Evidence Act).

15. First, the implied representation that the complainant ‘used to lie’ all the time and the expressed representation that the complainant’s story did not add up were mere opinions, and were not admissible under the opinion rule in s 76 of the Evidence Act 1995 (NSW). No exceptions to that general prohibition had been identified by the accused. In particular, if it was suggested that the evidence could be admitted under s 78, no foundation had been given for the opinions, the lay opinions, being expressed.

16. Secondly, the Crown submitted, the evidence would not be admissible under ss 135(a) or (b). The evidence was not all that probative. There was a vagueness in the opinions expressed. Further, the opinions were expressed as part of an investigation carried on for the benefit of the accused (although I hasten to add that there is nothing to indicate that he instigated the inquiry) of a person who became a Crown witness. There was unfair prejudice to the Crown since the absence of any foundation for PS opinions, in two respects. First, the jury was left with an opinion about the credibility of the complainant from a former friend. Secondly, if there was substance in the opinion, it would not be practicable to recall the complainant to respond to them. In other words, the position was no different to what it was during the first trial when the then trial judge rejected the line of inquiry during the complainant’s testimony.

17. I substantially accept the Crown’s submissions. Not every opinion ventured by teenage girls on a Snapchat conversational medium would likely be thought by the trier of fact to represent the gospel truth. The context in which the representations were made was a fact-finding mission by JE who, unbeknownst to PS, was part of a family which, according to the complainant, was hostile to the complainant at that stage. Secondly, one of the representations, the aspect of the complainant’s lying, was likely the product of, or influenced by a certain amount of verballing by JE, with the latter’s reference to an earlier conversation (apparently in 2020) about the complainant being ‘caught out’ by PS and another friend, C. There was no further detail given on the voir dire about that.

18. I agree with the Crown that there is an absence of a foundation for the two representations which the accused fastens on to. They amount to pure opinions. The probative value of the expressed representation is even weaker since PS acknowledges that she did not know why she thought that the complainant’s story did not add up.

19. The evidence would be inadmissible under s 76 of the Evidence Act.

20. I also accept, for the purpose of s 135, that its admission would be unfairly prejudicial in a way that would also outweigh any probative value that it has. I have indicated my view about the evidence as I say, having had little probative value, there is no utility in the complainant being recalled to respond to a bare, or unsubstantiated opinion by a former friend, made now over two and a half years ago, with whom she has had little contact ever since. All that would be left to the jury is a bare opinion of the lying character of the complainant with nothing of substance to support it. It is enough, in my view, to conclude that the evidence is inadmissible under s 135(a).

21. Counsel for the accused’s proposed line of inquiry for further cross-examination of PS is refused.

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Amendments

17 May 2023 - Amendment made to coversheet

Decision last updated: 17 May 2023