R v RM (No 2) - [2023] NSWDC 91

District Court

New South Wales

Medium Neutral Citation: R v RM (No 2) [2023] NSWDC 91
Hearing dates: 14 March – 27 March 2023
Date of orders: 22 March 2023
Decision date: 22 March 2023
Jurisdiction: Criminal
Before: Abadee DCJ
Decision:
See paragraph 28

Catchwords:
EVIDENCE- application pursuant to s 38 of the Evidence Act 1995 (NSW) to cross-examine Crown witness – whether earlier evidence ‘unfavourable’ – significance of timing of application being brought after cross-examination of Crown witness – consideration of factors relevant to whether leave should be granted

Legislation Cited:
Evidence Act 1995 (NSW) ss 38, 192

Cases Cited:
Adam v The Queen (2001) 207 CLR 96
Burrell v The Queen (2009) 196 ACR 199
Klewer v Walton [2003] NSWCA 308
R v Parkes (2003) 147 ACR 450

Texts Cited:
Nil

Category: Procedural rulings
Parties: Office of the Director of Public Prosecutions (ODPP)
RM (accused)
Representation:
Counsel:
Mr C Reynolds for the ODPP
Ms K Hogan for the accused
Solicitors:
ODPP
AJA Associates for the accused

File Number(s): 2020/00213495
Publication restriction: Non-publication order regarding the identity of the accused and the complainant

JUDGMENT

As indicated in an earlier evidentiary ruling in this trial, the accused is charged with multiple sexual offences against the complainant, his daughter, spanning a period of much of her childhood. The last of the alleged nine incidents occurred late in the evening on 19 July 2020. The complainant gave evidence that the incident occurred in her bedroom.
Vigorous attacks have been made on the complainant's credibility and reliability, and although complaint evidence has been adduced from other witnesses, it is plainly apparent that one line of attack on the complainant's credit is that she did not act as someone alleging child sexual abuse might have been expected to act. This, it was insinuated, was manifested, amongst other things, by the absence of her complaining to doctors or the Headspace program when she had the opportunity to do so. But it also has manifested in evidence given by a witness called by the Crown, BM, whose terms I will shortly turn to, which explains the present application.
To place the issue in context, there is some documentary evidence (Exhibits F and H) indicating that the complainant had recorded to William Bremner, her then boyfriend, of the last incident giving rise to counts 10 and 11, occurring between 11.31pm on 19 July 2020 and 12.16am early on 20 July 2020.
During the course of cross‑examining the complainant, Counsel for the accused (at T61. 5 - 61.15) had the following exchange with the complainant. The exchange was as follows:

“Q. On 19 July 2020, I suggest to you that he came in and tucked you in and left and nothing sexual occurred. Do you agree or disagree?
A. I disagree.
Q. After he left your room, you ran to the toilet. Do you agree or disagree?
A. I disagree.
Q. Your father asked if you were okay. Do you agree or disagree?
A. I disagree.
Q. And…

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 RM (No 2)

Details

AGLC: R v RM (No 2) [2023] NSWDC 91
Case: [2023] NSWDC 91
Decision Date: 22 March 2023

CaseChat Overview and Summary

The case before the court involved a criminal proceeding against RM, who was charged with various offences. The dispute centred on an application made by the defence under section 38 of the Evidence Act 1995 (NSW) to cross-examine a Crown witness, who had provided evidence during the trial. The application was made after the witness had already been cross-examined, raising the issue of the timing and whether the evidence was "unfavourable" within the meaning of the Act. The matter was heard in the Supreme Court of New South Wales.

The primary legal issue the court had to determine was whether the application was made within a reasonable time and whether the evidence provided by the Crown witness was "unfavourable" to the defendant. The court had to consider the factors relevant to whether leave should be granted to cross-examine the witness under section 38 of the Act. These factors included the timing of the application, the impact of the evidence on the defendant's case, and the overall fairness of the proceedings.

The court found that the application was made after the witness had already been cross-examined, which was significant. It also considered the nature of the evidence provided by the witness and whether it was "unfavourable" to the defendant. The court concluded that the application was made outside the reasonable time frame and that the evidence, while it may have been somewhat unfavourable, did not warrant a grant of leave under section 38 of the Act. The court held that the timing of the application and the other relevant factors did not support the granting of leave.

The court refused the application to cross-examine the Crown witness. It noted that the application was made after the witness had already been cross-examined and that the evidence provided, while unfavourable, did not meet the threshold for leave under section 38 of the Evidence Act 1995 (NSW). The court emphasised the importance of timely applications and the need for fairness in the proceedings. The trial proceeded without the defendant being able to cross-examine the witness further.

Orders

Orders of the court

See paragraph 28

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v RM (No 2) [2023] NSWDC 91
Hearing dates:	14 March – 27 March 2023
Date of orders:	22 March 2023
Decision date:	22 March 2023
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraph 28
Catchwords:	EVIDENCE- application pursuant to s 38 of the Evidence Act 1995 (NSW) to cross-examine Crown witness – whether earlier evidence ‘unfavourable’ – significance of timing of application being brought after cross-examination of Crown witness – consideration of factors relevant to whether leave should be granted
Legislation Cited:	Evidence Act 1995 (NSW) ss 38, 192
Cases Cited:	Adam v The Queen (2001) 207 CLR 96 Burrell v The Queen (2009) 196 ACR 199 Klewer v Walton [2003] NSWCA 308 R v Parkes (2003) 147 ACR 450
Texts Cited:	Nil
Category:	Procedural rulings
Parties:	Office of the Director of Public Prosecutions (ODPP) RM (accused)
Representation:	Counsel: Mr C Reynolds for the ODPP Ms K Hogan for the accused Solicitors: ODPP AJA Associates for the accused
File Number(s):	2020/00213495
Publication restriction:	Non-publication order regarding the identity of the accused and the complainant