Citation: R v RB; Attorney-General (NSW) as Intervenor (No 2) [2019] NSWDC 511
Court: District Court of New South Wales
Date: 6 September 2019
Judge: Grant DCJ
Background
The accused faced charges of sexual offences. In earlier proceedings (R v RB; Attorney General (NSW) as Intervenor [2019] NSWDC 368), Grant DCJ had ruled that evidence of the complainant's alleged prior false sexual assault complaints was relevant and tended to show a pattern of fabrication. However, the court also held that this evidence was caught by the blanket exclusionary rule in s 293 of the Criminal Procedure Act 1986 and did not qualify for any statutory exception. The proceedings were not stayed.
Following that ruling, the accused filed a fresh Notice of Motion. The motion sought an advance ruling under s 192A of the Evidence Act 1995 that the Crown's proposed complaint evidence, including statements from the complainant, a friend, and medical practitioners, should be excluded under either s 135 or s 137 of the Evidence Act.
The accused's argument was essentially this: because s 293 prevented him from leading the false complaint evidence to challenge the complainant's credibility, the Crown's complaint evidence would create a misleading impression of reliability that he could not effectively counter, making its admission unfairly prejudicial.
Legal Issues
- Whether the Crown's complaint evidence was inadmissible under s 135(b) of the Evidence Act 1995 on the basis that its probative value was substantially outweighed by the danger that it would be misleading.
- Whether the Crown's complaint evidence was inadmissible under s 137 of the Evidence Act 1995 on the basis that its probative value was outweighed by the danger of unfair prejudice to the accused.
- Whether the accused's inability to challenge the complainant's credibility (due to s 293 of the Criminal Procedure Act) could ground exclusion of the Crown's evidence under the general discretionary and mandatory exclusion provisions.
Decision
Grant DCJ confirmed that the complainant's evidence and the complaint evidence were relevant, probative, and admissible. The court assessed relevance on the standard formulation: evidence is relevant if, when accepted, it could rationally affect the assessment of the probability of a fact in issue. The complaint evidence met that threshold and was to be taken at its highest in the admissibility assessment.
On the s 135(b) misleading ground, the court rejected the accused's argument. Section 293 operates as a valid legislative exclusionary rule, and the fact that its operation may disadvantage one party does not transform otherwise probative evidence into misleading evidence. The court noted that exclusionary rules of evidence can, by their nature, withhold relevant material from the court and impose disadvantage on a party. That consequence does not make the admitted evidence itself misleading.
The s 137 argument was similarly dismissed. The court held that the valid operation of a statute cannot constitute "unfair prejudice" for the purposes of s 137. The inability to cross-examine in a particular manner, where that limitation flows from a constitutionally valid law enacted by parliament, is not a form of unfairness that the court has power to remedy by excluding the prosecution's evidence. As the court observed, drawing on Cole JA's remarks in R v PJE, it is not for a court to determine that the balance struck by the legislature is inappropriate.
Grant DCJ characterised s 293 as a legitimate legislative choice balancing competing public interests in the context of sexual assault proceedings. Allowing ss 135 and 137 to operate as a workaround to defeat that parliamentary intention would be impermissible. The trial could only be, as Hamill J put it in BB (No 2), "as fair as it can be in the context of the legislative provisions binding its conduct."
Orders Made
The court declined to make the orders sought in the Notice of Motion dated 6 August 2019. The application to exclude the Crown's complaint evidence under ss 135 and 137 of the Evidence Act 1995 was refused.
Key Takeaways
- The District Court held that ss 135 and 137 of the Evidence Act 1995 cannot be used to exclude Crown evidence simply because a separate statutory exclusionary rule prevents the accused from leading countervailing credibility evidence.
- Section 293 of the Criminal Procedure Act 1986 represents a valid legislative balancing of competing public interests in sexual assault proceedings. Its operation as a rule of evidence does not, of itself, render the prosecution's complaint evidence misleading or unfairly prejudicial within the meaning of the Evidence Act.
- Where a limitation on cross-examination arises from a constitutionally valid statute, that limitation does not convert the admitted evidence into evidence that is "unfairly prejudicial" for the purposes of s 137.
- Exclusionary rules of evidence may, by their nature, withhold relevant material and disadvantage a party. The courts confirmed this is an accepted feature of the evidentiary framework, not a ground for excluding otherwise admissible prosecution evidence.
- A criminal trial conducted within the constraints of valid legislative provisions is, as a matter of principle, as fair as the law requires it to be.
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 (NSW), s 293
- Evidence Act 1995 (NSW), ss 135, 137, 192A
Cases
- R v RB; Attorney General (NSW) as Intervenor [2019] NSWDC 368
- BB (No 2) [2017] NSWCCA 142
- KS v Veitch (No 2) (2012) 84 NSWLR 174
- IMM v The Queen (2016) 257 CLR 300
- Gypsy Jokers Motorcycle Club Incorporated v Commissioner of Police [2008] HCA 4
- R v PJE (Court of Criminal Appeal, unreported, 9 October 1995)
- Adam v R (2001) 207 CLR 96
- BBH v R (2012) 245 CLR 499
- Papakosmas v R (1999) 196 CLR 297
- R v Clarke (2001) 123 CLR 506