R v RM (No 5)

[2023] NSWDC 94

District Court

New South Wales

Medium Neutral Citation:	R v RM (No 5) [2023] NSWDC 94
Hearing dates:	14 March – 27 March 2023
Date of orders:	23 March 2023
Decision date:	23 March 2023
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraph 17
Catchwords:	CRIMINAL PROCEDURE - 11 alleged sexual offences against biological daughter – application for judicial intervention regarding Crown’s closing address – inference of explanation for why there was delay in bringing complaint – distinction between evidence relating to the probability that the complainant lied and a motive for lying
Legislation Cited:	Nil
Cases Cited:	Nil
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

1. Yesterday, Mr Crown gave his closing address to the jury. 

2. At the conclusion of that address, just before the Court adjourned for the day, and in the absence of the jury, Counsel for the accused raised two matters which she submitted Mr Crown should withdraw in the presence of the jury before she commenced her closing address this morning. 

3. The first of the two matters she referred to concerned the Crown's treatment of count 1 on the indictment.  The transcript of what was said on that subject was as follows, (T.298.16 to T298.29):

"I submit to you, when you think about it, when you analyse it, you'll find that her account is a highly credible one.  Now, you must remember that it's never for the accused to prove anything in this trial.  It's the Crown that bears responsibility for proving this offence beyond a reasonable doubt at all stages.  The accused has got nothing to prove.  But you might consider that if [the complainant] was fabricating a story in relation to count 1, making something up that didn't happen, you might think that choosing a story where the accused was doing sexual things to her right next to her mother is a story that one wouldn't choose if one was fabricating.  Again, that's one aspect that you might like to consider in relation to count 1.  Again, I stress, you're never to ask yourself why would [the complainant] make up these things, but it reflects on the textured story, the detail.  When you think about it in these terms, you're able to reason that this is something that really happened to [the complainant]."

4. In relation to count 3, Mr Crown submitted to the jury:

"The detailed description that [the complainant] gives in relation to count 3, members of the jury, is something that you might think lends this account a higher degree of credibility.  Again, the submission that I make in relation to count 1 might have some application.  If [the complainant] was making up these allegations, again, it's not for you to ask yourself why would [the complainant] lie about it, but it's a situation that you might think had a ring of truth to it."

5. Counsel for the accused did not specifically object to this part of the Crown's address. It is also to be noted that subsequent to this part of the address, Mr Crown specifically addressed, as a topic in his address, the matter of the posited motive to lie.  In that context, Mr Crown said (at T310.26 – 301.35):

"…there were some questions asked of [the complainant] and other witnesses that may have indicated to you that [the complainant] wanted to move out of the house, either with William Bremner or Leia Ronald, and it might be suggested to you that [the complainant] may have a motive to make up these allegations because she wanted to move out of the family home.  Again, I stress, and his Honour will tell you this, it's not for the accused to prove anything.  The accused doesn't have to prove that [the complainant] wanted to move out of the house, but I'm putting this before you so you can assess whether that is a reasonable possibility, whether that reasonable possibility would cause you a doubt about the allegations in this trial."

6. The second matter about which complaint was made concerned the part of the Crown's address concerning complaint evidence. In that context, the Crown addressed the jury on a point he anticipated the accused's counsel would raise, concerning the complainant's omission to take advantage of earlier opportunities to complain (T306), before addressing the jury on the evidence of her complaints. He said (at T307.11 – 307.24):

"Now, [the complainant] was in a position, you might think, where she'd been offended by the accused over a great many years. She was around about the age of 18 and she was developing independence. She was developing her own identity outside of the household in which the accused lived and committed offences against her. You might think that this is something of a natural progression in terms of getting to a position where you're comfortable speaking about these things, these things the accused did to her, the accused being so completely enmeshed in her life, part of the fabric of her life. He'd looked after her through a heart surgery, he'd taken care of her, washed her hair. Exhibit 3, the messages. Completely intertwined with his life. You could readily understand, members of the jury, why she wouldn't say things until the time that she did. The fact that she didn't complain immediately about the earlier events, members of the jury, would not cause you a reasonable doubt about her truthfulness concerning the 11 allegations before you."

7. Later, in a similar vein (T 308.36 – 308.44), Mr Crown said:

"You'd recall, of course, Deborah Lang is Leia's mother, and she told you that after this discussion she had a discussion with [the complainant] in which [the complainant] said the accused had been sexually abusing her from when she was very young as well.  It may be supportive of this finding that you might make, or your assessment of the evidence, that [the complainant] was getting old and becoming more dependent (sic), having more meaningful relationships outside the sphere of the home in which the accused was, and being more willing to make disclosures at that time about what the accused was doing to her."

8. Counsel for the accused did not object to this particular part of the Crown's address. 

9. Mr Crown did not indicate any disposition to withdraw, correct, or qualify his submissions. The issues now becomes whether the Court should intervene, and if so, how.

CONSIDERATION

The complaint about submissions about the complainant’s lying

10. As to the first of these matters, counsel for the accused did not cavil with what Mr Crown had said about the accused not needing to establish, nor the jury needing to speculate upon, a motive for the complainant lying about the allegations. But she submitted that the effect of what Mr Crown said about count 1 was, as I understood the submission, to invite the jury to accept that she had no motive to lie because of the nature of the allegation she raised being conduct allegedly occurring in the marital bed of her parents.

11. I disagree. The Crown was able to submit as to the inherent probabilities of the event occurring as the complainant said that it had, and to address the accused's defence, applicable to all counts, that she had fabricated her allegations, which, in the case of count 1, involved touching in her parent’s bed when she was nine years old.  The Crown was entitled to submit that the jury could reject the anticipated submission of the complainant's fabricating her evidence on that incident on the basis that it was unlikely that the complainant would fabricate something, which, to an objective observer, might appear outlandish: the fact that she was touched by the accused in the marital bed in close proximity to her mother who identified as a light sleeper. The accused's submission conflates a submission about the likelihood of her fabrication of an event and a motive for her doing so, when they are two different things; even if they both relate to her credibility.

12. A not dissimilar submission was made later when Mr Crown submitted to the jury that it should give weight to Leia Ronald's evidence of the complainant confiding to her in June 2019, notwithstanding that the complainant had not, herself, referred to the conversation, was something the jury could consider when evaluating the anticipated submission for the accused that she was fabricating allegations. That submission similarly bore upon the probability that the complainant fabricated, but not a motive for doing so. The accused's Counsel took no objection to that.

13. The Crown did not invite the jury to speculate why the complainant would lie. The Crown was, in effect, inviting the jury to consider how probable was it that she lied. That is a central issue in the trial. The complainant's credibility has been vigorously challenged. The distinction lies in the issue of motive to lie and the issue of whether she lied at all. The Crown was entitled, in my opinion, to submit to the jury as to why it should find the complainant did not lie. When Mr Crown did so, he properly indicated that the accused did not have to prove anything, but the plain submission in the defence is that the complainant did lie. The Crown was not to be muzzled in responding to that defence by being prevented from raising matters bearing on the probability that she lied. That was naturally associated with its submissions as to her credibility.

14. Notwithstanding that there is no necessity for the Crown to withdraw its submission, subject to hearing further from both Counsel, I consider that there may be some utility in drawing out the distinction that I have drawn between the probability of the complainant actually lying and a motive for lying when I give the 'motive to lie' direction in my summing‑up. That can be the subject of some discussion with Counsel when I generally speak with them after Counsel for the accused's address.

The explanation for delay in making complaint

15. As to the second matter complained of, Counsel for the accused submitted that there was no evidence from the complainant to ground a submission that an explanation for the delayed timing of complaints or disclosures by her was linked to a development of her identity from the small child dependent, in many senses, upon her father and mother, to a young woman, becoming more independent and forming friendships and trusting others. 

16. The accused's submission is rejected. The Crown's submission amounted to an invitation to the jury to draw upon their collective life experience and draw inferences as to why the complainant acted as she did and when she did. It was unnecessary for the complainant to give opinion evidence as to her developing maturity or the level of her emotional or other dependence upon her father as an explanation for why she complained when she did or why she did not complain when presented with earlier opportunity. The Crown fairly pointed to primary facts indicative of such development, which, it might be said, were fairly commonplace for teenagers on the threshold of adulthood. Thus, the references to the complainant having a boyfriend and implicitly developing an emotional connection with him; and the complainant forming friendships with people she studied with. Those people, William Bremner and Leia Ronald, it may be noted, were, subject to the last of the alleged incidents, not around when the earlier alleged incidents were said to have occurred. A jury might consider that they had no 'stake' in those events and could be regarded by the jury as relatively objective and dispassionate sources of counselling for her and an assessment of her emotional presentation. By contrast, the primary facts concerning the complainant's more general relationships with her mother and the accused throughout her childhood, including physical, financial, and emotional dependence, were also before the jury. They were also commonplace. It was fair for the Crown to invite the jury to draw inferences about the complainant's development and the evolving strength of comparative connections between her family members and friends as she transitioned from childhood to adulthood. Be that as it may, the submission confuses evidence of primary facts that the Crown must prove and inferences that the jury may legitimately draw. The jury will naturally be directed about the nature of inferential reasoning and the limits of it in the context of adversarial criminal proceedings in my summing up.

17. There is no basis for the Court’s intervention in light of the objected parts to Mr Crown’s closing address.

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Decision last updated: 12 April 2023