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District Court 26 March 2019

R v RA (No 1)

[2019] NSWDC 375

Sexual offences
CRIMINAL LAW EVIDENCE SECTION 38 APPLICATION LEAVE GRANTED TO CROWN TO CROSS EXAMINE COMPLAINANT

Citation: R v RA (No 1) [2019] NSWDC 375
Court: District Court of New South Wales
Date: 26 March 2019
Judge(s): Wilson SC DCJ

Background

The accused faced four counts on an amended indictment arising from two alleged incidents of sexual offending on the Central Coast of New South Wales. The first incident was alleged to have occurred between December 1977 and February 1980, and the second between August 1980 and December 1981. The complainant was born in early 1972 and the accused in late 1963.

The timing of the alleged offending was critical for two reasons. The accused did not turn 14 until late 1977, meaning any offending before that date would have raised the doctrine of doli incapax (the legal presumption that a child under 14 lacks criminal capacity). In addition, Counts 3A and 3B charged carnal knowledge and attempted carnal knowledge of a girl under 10 years of age, so the second incident had to have occurred before the complainant's tenth birthday in early 1982.

During examination-in-chief, the complainant gave evidence that introduced uncertainty about what school year she was in at the time of each alleged incident. That uncertainty had the potential to undermine essential elements of the Crown's case, prompting the Crown to apply under section 38 of the Evidence Act 1995 for leave to cross-examine its own witness.

  • Whether the complainant's evidence-in-chief was "unfavourable" to the Crown within the meaning of section 38(1)(a) of the Evidence Act 1995
  • Whether the court should exercise its discretion under section 192 of the Evidence Act 1995 to grant leave for the Crown to question the complainant as though cross-examining her
  • Whether the topics on which leave was sought were sufficiently important to warrant granting leave

Decision

The Crown argued that the complainant's evidence-in-chief was unfavourable because she stated she may have been in Kindergarten or Year 1 when the first incident occurred. If she was in Kindergarten in 1977, the accused would have been under 14 at the time, raising a doli incapax issue. Her police statement from October 2014 had been clearer, stating she was in Year 1 when the first incident occurred. The court was satisfied that this inconsistency met the threshold of "unfavourable evidence" under section 38(1)(a).

The complainant's evidence about the second incident also departed from her police statement. In the statement she recalled being in Year 2 or 3 and aged about 7 or 8. In evidence-in-chief she suggested she was in Year 4 or 5, which would have placed her at or above 10 years of age, potentially defeating an essential element of Counts 3A and 3B.

An earlier Crown application under section 32 to revive the complainant's memory using her police statement had been refused. The statement was made in October 2014, more than 30 years after the events, and therefore could not be said to have been made when the events were fresh in her memory.

In granting leave, the court applied section 192(2) of the Evidence Act 1995, which sets out the considerations relevant to the exercise of any discretion under the Act. The court found that the importance of the evidence, under section 192(2)(c), was the most compelling factor. Denying leave risked a miscarriage of justice by excluding relevant evidence that could be properly tested. Leave was granted on a limited basis, confined to the complainant's school year at the time of each incident and the school she was attending at the time of the second incident.

Orders Made

  • Leave granted to the Crown to question the complainant as though cross-examining her, limited to: (a) whether she was in Kindergarten, Year 1 or Year 2 at the time of the first alleged offence; and (b) the school she was attending at the time of the second alleged offence.

Key Takeaways

  • Under section 38(1)(a) of the Evidence Act 1995, a party may seek leave to cross-examine its own witness where evidence given in examination-in-chief is unfavourable to that party's case, including where it introduces uncertainty about facts that had appeared settled in earlier statements.
  • The District Court confirmed that the discretion to grant leave under section 38 is governed by section 192(2) of the Evidence Act 1995, and that the importance of the evidence in question is a central consideration in that assessment.
  • A section 32 application to revive a witness's memory using a prior statement will be refused where the statement was not made when the events described were fresh in the witness's memory. Here, a statement made some 33 years after the relevant events did not meet that requirement.
  • Where evidence given in-chief potentially undermines an essential element of a charge, including age-based elements such as doli incapax or the age of a complainant, that evidence may properly be characterised as unfavourable for the purposes of section 38(1)(a).
  • Leave under section 38 is not unlimited: the District Court restricted it to specific, defined topics directly relevant to the timing and age issues at the heart of the Crown's case.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW): sections 32, 37, 38, 192

Cases:
- R v Le [2001] NSWSC 174