R v RJ (No.4)

[2023] NSWDC 158

District Court

New South Wales

Medium Neutral Citation:	R v RJ (No.4) [2023] NSWDC 158
Hearing dates:	1 May – 16 May 2023
Date of orders:	11 May 2023
Decision date:	11 May 2023
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraph 19
Catchwords:	EVIDENCE – Crown application to recall witness – where Crown Prosecutor omitted to question the witness in accordance with the rule in Browne v Dunn – whether further cross-examination appropriate - application granted
Legislation Cited:	Evidence Act 1995 (NSW) ss 46, 192
Cases Cited:	Browne v Dunn (1893) 6 R 67
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 point has been reached where the accused is calling what the Court has been informed is his last witness, TJ. Subject to a grant of leave to the accused’s Counsel to ask questions about a further matter, her evidence-in-chief is essentially complete.

2. This morning Mr Crown applied for leave to recall an earlier witness called by the accused. That is, the accused’s wife, EJ.

3. EJ, relevantly, gave evidence about her sexual history with the accused and, in particular, the extent to which the accused was capable of engaging in penile-vaginal intercourse because of concerns that he had erectile dysfunction. The issue is relevant since two of the alleged six incidents giving rise to the charges against the accused concerns penile-vaginal intercourse with the complainant between January and July 2019.

4. By way of further context, the accused participated in an ERISP on 30 September 2019, about the time of his arrest. The police officer put to him for his comment what has turned out to be the fourth and sixth alleged incidents, both involving allegations of penile-vaginal intercourse with the complainant. As to the fourth incident, the accused’s response was:

5. _{(A180) “No, no, that’s just crap that is ---"}

6. _{(Q 181) “While she was in the lounge”}

7. _{(A 181) “I’m just sorry that she said all that. That sort of stuff, you know… it’s just all lies…”}

8. As to the sixth incident, the exchange went as follows.

_{“(Q 273) Yeah, and, got on top of her and again had sexual intercourse with her by putting your penis in her vagina.}

_{(A 273) No. For starters I have not had sex, my wife and I - I can’t - I can't do it.}

_{(Q 274) Why is that?}

_{(A 274) I’ve got erectile dysfunction.}

_{(Q 275) You’ve got erectile dysfunction?}

_{(A 275) Yeah. Yeah.}

_{(Q 276) And how long have you been suffering from that?}

_{(A 276) Well, we haven’t had had sex in, like, two years, I suppose, now. And before that it was pretty hard when I used to do other things, I suppose you could say, to help me and the Mrs, sort of thing. But then after a while it just wasn’t a thing to do.}

_{(Q 277) So you’ve been seeing - have you seen a doctor for that?}

_{(A 277) I did. I did. I did.}

_{(Q 278) Yeah? When did you see a doctor for that?}

_{(A 278) Oh the last one was over two years ago, I suppose, because I was using Cialis}

_{(Q 279) Sorry, using what?}

_{(A 279) Cialis.}

_{(Q 280) O.K..}

_{(A 280) But then that stuff ---}

_{(Q 281) That’s a medication is it?}

_{(A 281) Hey?}

_{(Q 282) Is that a medication?}

_{(A 282) Yeah. Yeah.}

_{(Q 283) Yeah.}

_{(A 283) And then it wasn’t working, you know.}

_{(Q 284) Yeah}

_{(A 284) And you're paying, I don’t know, a $170-odd for 4 tablets.}

_{(Q 285) Is that prescription medication?}

_{(A 285) Yeah. Yeah.}

_{(Q 286). Yeah.}

_{(A 286) Yeah. So I just threw it away.}

_{(Q 287) And what doctor prescribed that medication for you?}

_{(A 287) Um, my GP, Dr Cherie Castaing.}

_{(Q 288) Dr Cherie?}

_{(A 288) Castaing.}

_{(Q 289) Castaing. Where’s that doctor?}

_{(A 289) She is - she used to be in Umina Beach, but she’s at the Clocktower in Woy Woy, yeah.}

_{(Q 290) OK. Yeah.}

_{(A 290) Yeah.}

_{(Q 291) And so you, but you saw her two years ago for---}

_{(A 291) She is, she is my GP. I go to see her because---}

_{(Q 292) Yeah.}

_{(A 292) ---prescribes all my, um, medication for my heart and everything like that.}

_{(Q 293) Yeah. So what you're saying is you haven't had sex for two years, is that what you're saying?}

_{(A 293) Yeah.}

_{(Q 294) Just for the record?}

_{(A 294) Yeah, yeah.}

_{(Q 295) At all with anybody?}

_{(A 295) At all with nobody.}

_{(Q 296) Because you're saying that you're unable to?}

_{(A 296) Yeah. Yeah.}

_{(Q 297) Um---}

_{(A 297) You can ask my wife to prove it.}

_{(Q 298) So, the rest of the allegation is that you’ve held her by the arms on the bed and you’ve continued to have sexual intercourse for ten minutes.}

_{(A 298) I couldn’t last that long when I was going.}

_{(Q 299) She has asked you to stop.}

_{(A 299) No, never, never, never, never happened.}

_{(Q 300) No?}

_{(A 300) No.”}

9. In the Crown case, a schedule of the accused’s medication was put in evidence, this is exhibit L. It sets out dates for prescriptions of the accused’s medications. There was opinion evidence from an expert, and also a measure of common knowledge to indicate that Cialis and Viagra, two of those medications, assist a man suffering erectile dysfunction. The schedule indicated that the accused had received prescriptions for Cialis from 2006 and, more relevantly, received a prescription on 10 April 2018. The schedule also indicated that the accused had prescriptions for Viagra from January 2008, and, more relevantly, last had a prescription for Viagra in September 2016.

10. There were other prescriptions for four other drugs in exhibit L. This was the subject of expert opinion evidence from Dr Wines, a former urological surgeon. Part of Dr Wines’ opinion was that these four drugs serve to inhibit male sexual function. Exhibit L indicates that all of these four drugs were prescribed on two occasions in 2018 and on 11 February 2019. Dr Wines was also supplied information concerning the accused’s medical history. Perhaps most relevantly, this included his having an ‘Aortic Root Reconstruction’ in December 2013. Dr Wines opined that:

1. he believed that it was unlikely that a person with the accused’s history and drug intake, and taking Cialis of Viagra, could achieve an erection satisfactory for (penile-vaginal) intercourse,

2. he also believed it was unlikely that the accused could achieve an erection without Cialis or Viagra.

11. Returning to EJ evidence, in her evidence-in-chief, she was asked about the accused’s medical history and she said that the accused had stopped work after his Aortic reconstruction procedure. She was then asked about a sexual history with the accused after that procedure. Relevantly, she indicated that:

1. after the procedure they could not have sex. Despite attempts at arousal the accused could not obtain an erection;

2. on two occasions she understood that the accused took Viagra. The first time, he did get an erection enabling penile-vaginal intercourse (if not of the kind that satisfied her wishes). The second time, he did not.

3. she and the accused had further attempts for intimacy, but it was not successful.

4. the accused did not talk about any other medication, other than Viagra, to help him sustain an erection.

12. In cross-examination, EJ maintained that save for one instance where the accused had taken Viagra, he could not sustain an erection after his Aortic procedure in December 2013. He never succeeded in having penile-vaginal intercourse with her again. She said that they did try to have sex unassisted by Viagra.

The Crown’s application

13. Mr Crown said that due to oversight, he had not put to EJ certain propositions which, in compliance with the ‘rule in Browne v Dunn’, he considered that he needed to put to her. As I understood the Crown’s argument, he wanted to put to EJ that:

1. she was mistaken about the number of times that she had attempted to have sex with her husband;

2. she was mistaken about the number of times that the accused took drugs that might help him to sustain an erection;

3. (to the extent this is different to (b)) She had a greater awareness of the accused’s taking of drugs to help him sustain an erection than indicated by her evidence;

4. she had exaggerated the extent of the difficulties that they faced when they had sex, or tried to have sex.

14. Counsel for the accused opposed her recall. Counsel argued that Mr Crown was attempting to do more than simply make up for an oversight in not putting propositions to comply with the rule in Browne v Dunn. Counsel argued that part of the questions required at least further exploration as to what EJ actually knew about the extent of the accused’s drug taking. She had indicated in her evidence-in-chief that she only knew about Viagra (and only on two occasions). Counsel argued that the Crown should not be permitted to engage in further exploration.

Consideration

15. The application is brought under s 46 of the Evidence Act 1995 (NSW). Whether leave should be granted is shaped by the considerations in s 192.

16. In his ERISP, the accused virtually goaded the interviewing officer by indicating his evidence of being incapable of having penile-vaginal intercourse in the last two years prior to his interview would be supported by his wife (A 297). There is no doubt, to my mind, that EJ’s evidence about their sexual history between January and July 2019 is very important for the case; not only directly in relation to the two alleged incidents I have referred to, but also indirectly, because a finding by the jury disbelieving the complainant’s evidence of being subjected to penile-vaginal intercourse could cause it to doubt her credibility or reliability more generally.

17. The evidence on recall would be of short compass. I was told that EJ was readily available for recall; which suggests that any delay would not be considerable.

18. As to the question of fairness to the accused, it is not the purpose of rules of evidence or procedure to punish a party for failing to raise questions by an inadvertence. In my opinion, what the Crown seeks to do is substantially comply with the rule in Browne v Dunn, which, at bottom, is a rule of fairness to EJ, and to the accused’s case generally.

19. I do not find persuasive the distinction that the accused’s Counsel raises between a legitimate reason for the re-call - to put propositions to EJ - and an illegitimate reason - to inquire further into EJ’s awareness of his drug taking when there was no existing evidentiary foundation for doing so. I do not conceive the questioning of an exploratory kind would take long. Nor do I consider that it would naturally take the accused by surprise, given the content of exhibit L and the content of his ERISP that I referred to earlier. Further, I agree with the Crown that the jury may inferentially reason that EJ had a greater knowledge of the accused’s medication than she conveyed in her evidence, by reason of the closeness and length of their marriage, her revelation that the accused had, at least, mentioned his taking of Viagra. In addition, she gave other evidence of her general assistance to him, the accused, with his taking medication and the accused’s devastation and shock when erectile dysfunction had prevented him from satisfying his sexual needs. The jury may reason that both of these matters would indicate that aside from her own sexual needs (which she did not give evidence about) she had an interest, at least, in helping her husband fulfil his and that this, in turn, would likely leave her interested in medication which might enable him to fulfil those needs.

20. The Crown should not, in my view, be precluded from putting to the jury propositions which the jury might readily infer from the evidence, but in a way that achieves fairness to EJ and the accused, generally. Counsel for the accused will, of course, have the opportunity to re-examine after Mr Crown has had that opportunity.

21. The other matters in s 192(2) (d) and (e) are not material.

22. I grant leave to the Crown to have EJ recalled to permit further cross-examination on the matters I have referred to.

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Decision last updated: 17 May 2023