Citation: R v RB; Attorney-General (NSW) as Intervenor [2019] NSWDC 368
Court: District Court of New South Wales
Date: 2 August 2019
Judge(s): Grant DCJ
Background
The accused faced four counts on indictment: one count of assault occasioning actual bodily harm and three counts of sexual intercourse without consent, all alleged to have occurred in 2014 against the same complainant. The alleged offences involved a series of incidents in Deniliquin and Albury during the course of a domestic relationship. The accused denied all allegations and characterised the complainant as a person who fabricated sexual and assault complaints against men.
The accused sought to adduce evidence of 12 instances of allegedly false complaints made by the complainant, dating back to 2001 and involving various other people. That proposed evidence was sourced from school records, Victoria Police materials, and court documents. The admissibility of that evidence was the central question before the court at the pre-trial stage.
The Attorney-General of NSW intervened on the question of the constitutional validity of section 293 of the Criminal Procedure Act 1986 (NSW), which restricts the admission of evidence relating to a complainant's sexual experience or lack thereof in sexual offence proceedings.
Legal Issues
- Whether the proposed evidence of false complaints was relevant and constituted tendency evidence
- Whether the exclusionary rule in section 293(3) of the Criminal Procedure Act 1986 (NSW) applied to that evidence
- Whether the proposed evidence qualified for any of the exceptions in section 293(4)
- Whether section 293 was constitutionally valid
- Whether the proceedings should be permanently stayed if the evidence was excluded and no exception applied
Decision
Relevance and tendency: The court found the proposed evidence relevant and probative of a fact in issue. The court further found that the evidence disclosed a tendency on the part of the complainant to make false sexual allegations, and that tendency was significantly probative, satisfying the threshold for tendency evidence under the Evidence Act 1995 (NSW).
Operation of section 293: Notwithstanding its probative character, the court held that the exclusionary rule in section 293(3) of the Criminal Procedure Act applied to the evidence and captured it within its scope. The court then considered each of the exceptions in section 293(4) and found that none of them were satisfied on the facts. The proposed evidence was therefore inadmissible under that provision.
Constitutional validity: The accused challenged section 293 on constitutional grounds. The court upheld the validity of section 293, finding it to be a constitutionally valid exercise of legislative power. The Attorney-General's intervention supported that conclusion.
Permanent stay: The court declined to grant a permanent stay of proceedings. Despite acknowledging the difficult position the exclusion created for the accused, the court found that a permanent stay was not warranted. Grant DCJ observed that Parliament could not have foreseen circumstances such as those presented in this case, and called for legislative reform to introduce a residual judicial discretion to admit such evidence where the interests of justice require it. The judge noted that the provision as it stands may produce injustice and adopted earlier judicial commentary to that effect, but confirmed that the remedy lay with Parliament rather than the courts.
Orders Made
• The evidence is relevant, probative of a fact in issue and admissible
• The evidence discloses a tendency on the part of the complainant to make false sexual allegations and is admissible
• The exclusionary rule of s 293 operates and catches the evidence
• The evidence does not qualify as an exception to the exclusionary rule under s 293(4)
• s 293 of the Criminal Procedure Act is valid
• Decline to permanently stay the proceedings
Key Takeaways
- The District Court confirmed that evidence of a complainant's alleged history of fabricating sexual complaints can constitute tendency evidence with significant probative value, yet still fall within the exclusionary rule in section 293(3) of the Criminal Procedure Act 1986 (NSW).
- Section 293 does not yield to a general interests-of-justice discretion: where none of the specific exceptions in section 293(4) are made out, the evidence is excluded regardless of its probative strength.
- The constitutional validity of section 293 was upheld, with the court rejecting the accused's challenge to the provision.
- A permanent stay of criminal proceedings is not available merely because a statutory exclusionary rule prevents the accused from adducing evidence that might otherwise assist the defence.
- Grant DCJ called on Parliament to consider amending section 293 to include a residual discretion permitting admission of such evidence where justice requires, suggesting that the provision's current rigidity can produce outcomes the legislature did not foresee.
Legislation and Cases Referenced
Legislation:
- Criminal Procedure Act 1986 (NSW), particularly section 293
- Evidence Act 1995 (NSW), particularly sections 97, 135, 137, and 192A
- Interpretation Act 1987 (NSW)
- Judiciary Act 1903 (Cth)
- Crimes Act 1900 (NSW), sections 59(1) and 61I
Cases:
- Adams v R [2018] NSWCCA 303
- Allan v R [2017] NSWCCA 6
- Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38
- Decision Restricted [2019] NSWCCA 30
- Dimian v R (1995) 83 A Crim R 358
- GEH v R [2012] NSWCCA 150
- Graham v Minister for Immigration and Border Protection (2017) 91 ALJR 890
- Gypsy Jokers Motorcycle Club Incorporated v Commissioner of Police (2008) 234 CLR 532
- Hughes v R [2017] HCA 20
- JWM v R [2014] NSWCCA 248
- K S v Veitch (No 2) (2012) 84 NSWLR 174
- Knight v New South Wales (2017) 91 ALJR 824
- M v R (1993) 67 A Crim R 549
- Nicholas v The Queen (1998) 193 CLR 173
- Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
- R v Bernthaler (NSWCCA, unreported, 17 December 1993)
- R v Burton [2013] NSWCCA 335
- R v Ford [2009] NSWCCA 306
- R v Funderburk (1990) 1 WLR 587
- R v Morgan (1993) 30 NSWLR 543