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District Court 27 September 2007

Regina v John Helsdingen

[2007] NSWDC 356

Sexual offences
CRIMINAL LAW CHILD SEXUAL ASSAULT TRIAL APPLICATION TO DISCHARGE THE JURY SIGNIFICANT DISADVANTAGE TO THE CROWN JURY DISCHARGED

Citation: Regina v John Helsdingen [2007] NSWDC 356
Court: District Court of New South Wales
Date: 27 September 2007
Judge(s): Cogswell SC DCJ

Background

The accused faced charges of child sexual assault. The complainant alleged he had sexually assaulted her during her primary school years and again, in a less serious manner, during high school. The accused was an elderly relative of the complainant, having married her aunt.

During cross-examination, defence counsel put to the complainant that the accused had once remarked, when she was approximately 15 years old, that she "might be pregnant." Counsel framed the question as referring to the complainant having put on weight. An affirmative answer would have implied or disclosed that the complainant may have had sexual experience or been sexually active at the time.

The Crown Prosecutor raised the issue before commencing re-examination. He applied to have the jury discharged, arguing the question had breached the statutory prohibition on evidence of a complainant's sexual history and that the damage could not be remedied without causing further harm.

  • Whether the question put by defence counsel breached section 293 of the Criminal Procedure Act 1986, which restricts the use of evidence implying a complainant's prior sexual activity.
  • Whether any exception under section 293(4)(b), relating to evidence relevant to a relationship between the accused and the complainant, applied to make the question permissible.
  • Whether the procedural requirement under section 293(5), which requires prior court approval before such a question is asked, had been satisfied.
  • Whether the jury should be discharged as a result of the breach.

Decision

On the breach of section 293: Cogswell SC DCJ found that the question asked by defence counsel fell squarely within the prohibition in section 293. The question, if answered affirmatively, would have disclosed or implied that the complainant had engaged in sexual activity. Defence counsel acknowledged he had not sought a prior ruling from the court before asking the question, as required by section 293(5), and apologised for the oversight. The court accepted the apology but characterised the error as serious.

On the exception under section 293(4)(b): Defence counsel argued the question was admissible because it related to a relationship between the accused and the complainant. The court rejected this argument. Applying Regina v McGarvey (1987) 10 NSWLR 632, Cogswell SC DCJ held that the exceptions in subsections (4)(a) and (b) are directed at an accused's belief in consent. Because consent was not in issue on the charges before the court, the exception had no application. The court stated it would have ruled the question inadmissible had counsel sought a prior ruling.

On discharge of the jury: The court agreed with the Crown Prosecutor's submission that any attempt to remedy the situation, whether by withdrawal of the question or a judicial direction, would only draw the jury's attention further to it. The mischief was that jurors might speculate whether the complainant had been sexually active at 15 and reason that this could explain a motive to fabricate allegations. The Crown could not address that speculation without itself risking a further breach of section 293, placing the prosecution at a significant disadvantage. The court discharged the jury.

On the prospect of a retrial: The Crown indicated it would seek to rely on the complainant's evidence-in-chief and cross-examination already given, in any retrial. The court noted this reduced the likelihood of the complainant needing to give extensive evidence again, a consideration that weighed in favour of granting the discharge application.

Orders Made

  • The jury was discharged.

Key Takeaways

  • Under section 293(5) of the Criminal Procedure Act 1986, a court must make a prior admissibility ruling before any question implying a complainant's sexual history or activity is put to a witness. Asking such a question without that ruling is itself a breach of the provision, regardless of whether the underlying evidence might ultimately have been admissible.
  • The District Court confirmed, following McGarvey, that the exceptions in section 293(4)(a) and (b) are directed at situations where an accused's belief in consent is in issue. Where consent is not a live issue on the charges, those exceptions do not apply.
  • A question that breaches section 293 may cause irreversible prejudice even if unanswered or immediately withdrawn. The risk that jurors will speculate on the implications of the question can be sufficient to warrant discharging the jury entirely.
  • Where the Crown is unable to confront or neutralise the prejudicial effect of an inadmissible question without itself breaching section 293, that inability constitutes significant disadvantage warranting a discharge.
  • A Crown indication that it will seek to rely on evidence already given at any retrial, thereby limiting the extent to which a complainant must give evidence again, is a relevant consideration in support of a discharge application.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), s 293 (including subsections (3), (4)(a) and (b), (5) and (8))

Cases:
- Regina v McGarvey (1987) 10 NSWLR 632