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District Court 7 December 2007

R v David Qin

[2007] NSWDC 321

Sexual offences
CRIMINAL PROCEDURE SUBSEQUENT TRIAL CROSS EXAMINATION OF COMPLAINANT

Citation: R v David Qin [2007] NSWDC 321
Court: District Court of New South Wales
Date: 7 December 2007
Judge(s): Goldring DCJ

Background

The accused was charged with sexual offences and stood trial before Judge Berman in October 2007. The complainant gave evidence-in-chief and was partially cross-examined by defence counsel during that first trial. The following morning, the accused withdrew instructions from his legal representatives, and the trial was discontinued to allow him to obtain new representation.

At the subsequent trial, the accused's new counsel sought to cross-examine the complainant on matters that the previous representatives had not put to her during the first trial. Under the Criminal Procedure Act 1986, the complainant was not compellable to give further evidence, because her audio-visual recorded evidence from the first trial could be replayed. New defence counsel therefore brought an application under s 306J to require her to give further oral evidence.

The two areas of proposed cross-examination concerned the accused's account of standard Chinese massage technique (said to be inconsistent with the complainant's evidence) and an alleged incident in which a friend or flatmate of the complainant later attended the accused's premises to demand a refund under threat.

  • Whether the complainant could be compelled to give further evidence in the subsequent trial under s 306J of the Criminal Procedure Act 1986
  • Whether the circumstances satisfied the "interests of justice" ground under s 306J(1)(c)
  • How the court should receive evidence in support of such an application without compromising the accused's right to silence

Decision

Section 306J establishes a presumption against compelling a complainant to give further oral evidence in a subsequent trial where a recording of their original evidence exists. The complainant can only be required to give further evidence to clarify original evidence, to address new material, or in the interests of justice.

Goldring DCJ found that the interests of justice ground under s 306J(1)(c) was satisfied on the particular facts. The trial had been discontinued not because of any fault in the complainant's evidence, but because the accused lost confidence in his legal team and withdrew their instructions. As a result, certain matters that ought to have been put to the complainant were not.

The court also addressed a procedural tension specific to criminal proceedings. Ordinarily, an application of this kind would be supported by affidavit or oral evidence from the applicant. However, requiring the accused to give evidence at that stage would have compromised his right to silence and given the prosecution a forensic advantage before the Crown case was complete. To resolve this, the court permitted defence counsel to outline the instructions from the Bar table rather than through sworn evidence.

On that basis, the court directed that the complainant be subjected to further cross-examination, but only in relation to the two identified matters that had not been canvassed in the original cross-examination.

Orders Made

  • The complainant is directed to be subjected to further cross-examination, limited to matters not already covered in the original cross-examination.

Key Takeaways

  • Under s 306J of the Criminal Procedure Act 1986, a complainant is not compellable to give further oral evidence in a subsequent trial where a recording of their original evidence exists, unless one of three statutory grounds is established, including the interests of justice.
  • The District Court held that the "interests of justice" ground was met where the prior trial was discontinued because the accused withdrew instructions from his legal team, leaving certain matters unput to the complainant through no fault in the original evidence.
  • A court hearing such an application faces a tension between the ordinary requirement for sworn evidence in support and the accused's right to silence; Goldring DCJ resolved this by allowing counsel to outline instructions from the Bar table.
  • Further cross-examination under s 306J is confined strictly to the matters identified under s 306J(1) and cannot re-traverse ground already covered in the original cross-examination.
  • The rules in Browne v Dunn, which require a party to put its case to a witness, remained relevant to the scope of what further cross-examination was necessary.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), ss 306I, 306J
- Evidence Act 1995 (NSW)

Cases:
- Browne v Dunn (1893) 6 R 67