Regina v John Helsdingen

[2007] NSWDC 356

CITATION:	Regina v John Helsdingen [2007] NSWDC 356
HEARING DATE(S):	25/9/2007, 26/9/2007, 27/9/2007
JUDGMENT DATE:	27 September 2007
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ at 1
DECISION:	Question asked by defence counsel breached s293 Criminal Procedure Act 1986. Jury discharged.
CATCHWORDS:	Criminal law - Child sexual assault trial - Application to discharge the jury - Breach of s293 Criminal Procedure Act 1986 - Significant disadvantage to the Crown - Jury discharged
LEGISLATION CITED:	s293 Criminal Procedure Act 1986
CASES CITED:	Regina v McGarvey (1987) 10 NSWLR 632
PARTIES:	Regina John Helsdingen
FILE NUMBER(S):	06/51/0076
COUNSEL:	Mr McPherson for the Crown Mr O'Connor for the accused
SOLICITORS:	Ms Mudge for the NSW DPP

JUDGMENT

1. A question asked by Mr O'Connor raises an issue of admissibility under section 293 of the Criminal Procedure Act 1986. The question also prompted an application for a discharge of the jury by the Crown Prosecutor.

2. The question asked by Mr O'Connor was asked of the complainant who had been giving evidence of sexual assaults against her by the accused when she was in primary school and a less serious sexual assault, or sexual assaults, when she was in high school. The question asked by Mr O'Connor was that in late 2004, when the complainant was aged about 15, the accused, an elderly relative of the complainant, had made an observation about her appearance. He had said words to the effect: "You might be pregnant." Mr O'Connor put to the complainant that the accused had put that question to her. Mr O'Connor added, as part of his question to the complainant “...obviously referring to the fact that you'd put on a bit of weight.” And he then said “Do you remember him saying that?”

3. Obviously, an affirmative answer to that question would have constituted evidence disclosing or implying that the complainant may have taken part in some sexual activity, or had sexual experience.

4. Mr O'Connor argued that such an answer would not have breached subsection (3) of section 293 because of the exception contained in subsection (4)(b). However, subsection (5) provides that “a witness must not be asked by or on behalf of an accused person to give evidence that may be admissible under subsection (4) unless the Court has previously decided that the evidence would, if given, be admissible.” The purpose for that provision is made clear by subsection (8) which provides that “the Court, if it decides that the evidence is admissible, must record or cause to be recorded in writing the nature and the scope of the evidence that is admissible and the reasons for that decision.”

5. Mr O'Connor did not provide me with an opportunity to make any decision about the admissibility of the question which he said was admissible pursuant to subsection (4). He has apologised for this. I accept his apology. It was clearly an oversight, although a serious one, and, as it turns out, had serious consequences.

6. Had Mr O’Connor asked me to give a ruling, I would have ruled, and do so for the purposes of this judgment, that the question did not, as he argued, relate to a relationship between his client and the complainant.

7. I can understand Mr O’Connor argument that it so related to a relationship. His argument is that the complainant was resentful of the question and that provided her with a motive for bringing what his client claimed are these false allegations against him.

8. But that argument depends upon the word "relationship" applying to the relationship between Mr O’Connor’s client and the complainant in this case. They did have a relationship: in one sense it was a family relationship, his client was married to her aunt; in another sense, it was, according to her, a sexual relationship. In any event, I am satisfied that there was a relationship, being one of frequent contact and family.

9. However, to my mind, the relationship in this case is not encompassed by the word in that provision. In accordance with the judgment of Hunt J, as his Honour then was, with whom Wood J, as his Honour then was, and Allen J agreed in Regina v McGarvey (1987) 10 NSWLR 632 at 634, the predecessor to clause (b) in relevantly similar terms was to be construed fairly broadly “...where the evidence is relevant to the issue of the accused's honest belief that the complainant was consenting to intercourse with him.”

10. It seems to me that McGarvey is authority for the proposition that the exceptions contained in subsection (4)(a) and (b) are relevant to an accused's belief in consent. Such an issue is not relevant to the charges in this case and the clause does not provide, in my opinion, a relevant exception to the inadmissibility of the evidence if it were to be elicited.

11. Had I been provided with the opportunity of giving a ruling in accordance with ss (5), I would have ruled the question inadmissible.

12. This leads to the second issue, which is the Crown Prosecutor's application for a discharge of the jury. His case is that he cannot deal with the question which has now been asked, without himself breaching s 293 of the Criminal Procedure Act. I agree with that. He argues that any attempt to remedy the inadmissible question by either Mr O'Connor withdrawing it or by me giving the jury a direction will highlight the question in the jury's minds. The mischief in the question, so far as the jury is concerned, is that it raises for them the issue of whether the complainant, aged about 15 when the alleged proposition was put to her by the accused, was sexually active at the time. Some jurors or all jurors could speculate that were that to be so, even though the complainant has said that he does not recollect the question being asked of her by the accused, then such sexual activity could provide an explanation for her bringing a false accusation against her uncle.

13. The difficulty with that form of speculation is this (although it might be an unlikely line of reasoning). There are twelve people in the jury, any one of whom could embark on that line of reasoning and expose it to other members of the jury. It cannot be confronted and dealt with for the reasons which I have already given. The Crown Prosecutor is put at a significant disadvantage in my opinion.

14. He supports his application to discharge the jury with a statement of intention that efforts will be made on behalf of the Crown to rely upon the evidence given in chief and in cross-examination so far by the complainant in a retrial. I should add that the stage had been reached where she had completed her evidence-in-chief and in cross-examination. The issue arose because the Crown Prosecutor raised this before he embarked on his re-examination. The outcome of that proposal by the Crown cannot be guaranteed, but it is a fact which weighs favourably in support of the application. It means it reduces the likelihood of the complainant in this case having to undergo the process of giving evidence extensively once again. If the application is successful, it will be limited to her re-examination.

15. Accordingly, I propose to allow the Crown Prosecutor's application and to discharge the jury.

oOo