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District Court 21 May 2009

R v T.A.A

[2009] NSWDC 115

Sexual offences
CRIMINAL LAW HISTORICAL SEXUAL ASSAULT TRIAL INTERLOCUTORY JUDGMENT DEFENCE APPLICATION TO CROSS PURPOSES OF CROSS EXAMINATION

Citation: R v T.A.A [2009] NSWDC 115
Court: District Court of New South Wales
Date: 21 May 2009
Judge(s): Nicholson SC DCJ

Background

The accused faced seven counts of sexual offending against his own children, spanning alleged conduct from the late 1960s through to the mid-1970s. The complainants included two daughters, Trish and Linda, and a son, Kim. The charges included rape, carnal knowledge, and indecent assault. Some of the charges were being retried; others were new additions to the indictment.

A non-publication order protected the identities of all complainants, who were children at the time of the alleged offences. Because the complainants carried the accused's surname, the non-publication order necessarily extended to the accused's own name.

The matter came before the court as an interlocutory application during Trish's cross-examination. Defence counsel sought leave under s 293(6)(b) of the Criminal Procedure Act 1985 to cross-examine Trish on conduct described in a police statement made by her brother Kim.

  • Whether the defence could cross-examine Trish about material in Kim's police statement, which described an incident in which Trish and Linda allegedly invited Kim to engage in sexual activity with them.
  • Whether the probative value of that cross-examination outweighed the potential distress, humiliation, or embarrassment to the complainant.
  • Whether the proposed evidence should be excluded under s 135 of the Evidence Act as unfairly prejudicial, misleading, or confusing.

Decision

The defence argued that cross-examination on the material in Kim's statement served two legitimate purposes: first, to challenge Trish's claimed shame or embarrassment about sexual matters (potentially undermining her credibility on those grounds); and second, to create or expose inconsistencies in her account. The court accepted both purposes as legitimate bases for the cross-examination.

On the question of distress to the complainant, Nicholson SC DCJ observed that Trish had already endured extensive and unpleasant cross-examination without visible emotional collapse. The court characterised her as a strong and resilient witness, and concluded that the material in Kim's statement would not materially extend whatever embarrassment or distress she was already experiencing. This assessment was made specifically with respect to Trish and not extended to Linda or Kim, in respect of whom no such assessment had been possible.

The court weighed the probative value of the evidence against its potential to cause distress and concluded that probative value prevailed. The court also considered s 135 of the Evidence Act, finding no basis for exclusion on grounds of unfair prejudice to the Crown. The court noted with candour that the evidence carried some risk of adverse impact for the defence itself, but observed that experienced defence counsel had made a deliberate tactical choice to seek its admission.

Orders Made

  • The defence may cross-examine Trish on the conversations and acts referred to in paragraph 6 of Kim's police statement.
  • The prosecution may re-examine on any evidence adduced from that cross-examination.

Key Takeaways

  • The District Court confirmed that cross-examination of a complainant on prior sexual conduct may be permitted under s 293(6)(b) of the Criminal Procedure Act 1985 where it serves to challenge claimed shame or embarrassment, or to expose potential inconsistencies in the complainant's account.
  • Probative value is to be weighed against the distress, humiliation, or embarrassment the complainant may suffer from the proposed questioning, and that balance is assessed on the particular facts of each witness's situation.
  • The court's assessment of likely distress was confined to the complainant then under cross-examination; it expressly declined to make equivalent rulings about other complainants whose demeanour and character had not yet been observed.
  • Where a proposed line of cross-examination carries tactical risk to the party seeking it, the court may nevertheless permit it, deferring to the judgment of experienced counsel who have made a deliberate forensic choice.
  • Under s 135 of the Evidence Act, evidence will not be excluded for unfair prejudice to a party where the only material risk of prejudice runs against the party that is actively seeking its admission.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1985 (NSW), s 293(6)(b)
- Evidence Act (NSW), s 135

Cases cited: None identified in the provided text.