Citation: R v RB; Attorney-General (NSW) as Intervenor (No 3) [2019] NSWDC 588
Court: District Court of New South Wales
Date: 23 October 2019
Judge: Grant DCJ
Background
This decision is the third in a series of rulings arising from the same sexual offence trial. The accused faced multiple counts of prescribed sexual offences against a complainant. Prior judgments in the proceedings addressed related evidentiary questions, and this ruling addressed two remaining grounds from an amended notice of motion.
The accused sought to adduce evidence of the complainant's alleged history of fabricating sexual assault and assault allegations, including instances where she had reportedly claimed injuries resulting from those fabricated incidents. The accused argued this evidence was relevant to whether injuries the complainant attributed to the alleged offending were actually caused by the accused.
The Attorney-General (NSW) intervened in the proceedings. The court was asked to rule on two specific exceptions to the general prohibition on sexual experience evidence under s 293 of the Criminal Procedure Act ('CPA').
Legal Issues
- Whether the exception in s 293(4)(c) CPA applied, so that evidence of the complainant's alleged history of fabricating complaints (including fabricated injury claims) was admissible as relevant to whether injuries were attributable to the sexual intercourse alleged against the accused.
- Whether the exceptions in s 293(4)(f), (5) and (6) CPA applied, on the basis that the evidence had been disclosed or implied in the prosecution's case and the accused would be unfairly prejudiced without the opportunity to cross-examine the complainant on it.
Decision
Ground 6(b): The s 293(4)(c) exception
Section 293(4)(c) permits evidence that would otherwise be inadmissible under s 293(3) if the accused does not concede the alleged sexual intercourse and the evidence is relevant to whether an injury (or semen, pregnancy or disease) is attributable to that intercourse. The accused denied sexual intercourse in the relevant counts and pointed to the complainant's reported injuries in one count as the foundation for this exception.
The Crown argued that alleged fabrications from 2001, 2002 and 2009 could not plausibly be relevant to whether injuries in 2014 were attributable to the accused's conduct. The court accepted this reasoning. The fabrication history was too temporally remote and conceptually distinct to satisfy the statutory requirement that the evidence be relevant to attributing the specific injury to the specific alleged intercourse. The exception did not apply.
Ground 6(c): The ss 293(4)(f) and (6) exceptions
These provisions allow cross-examination on sexual experience evidence where the prosecution has itself disclosed or implied such evidence in its case, and where the accused would be unfairly prejudiced without that opportunity. The Crown confirmed it did not intend to rely on any evidence of the complainant's alleged fabrications in presenting its case at trial.
Established authority makes clear that "the case for the prosecution" refers to the evidence actually presented or to be presented in court, not to material served on the accused during the proceedings. The accused's counsel acknowledged this line of authority was against the defence position but submitted it rendered the exception nugatory and should not be followed. Grant DCJ rejected that submission, noting that an intermediate court judge is bound by superior court authority. Because the Crown's case did not include the fabrication material, the precondition in s 293(6)(a) was not met, and the exception was unavailable.
The court concluded that the fabrication evidence was caught by the general prohibition in s 293(3) and that no exception in s 293(4) applied to permit its admission.
Orders Made
No orders were made in this decision.
Key Takeaways
- The s 293(4)(c) exception requires a direct relevance between the proposed evidence and whether a specific injury is attributable to the specific alleged intercourse. Alleged fabrications from years before the charged conduct were held to be too remote to satisfy this requirement.
- Under ss 293(4)(f) and (6), "the case for the prosecution" means the evidence actually adduced or intended to be adduced at trial. Material served on the defence in the course of proceedings does not satisfy this threshold, following Spratt, Taleb, and Rolfe.
- A District Court judge is bound by Court of Criminal Appeal authority and cannot decline to follow it on the basis that the provision has become nugatory in practice. The accused's submission that the line of authority should not be followed was rejected on this ground.
- Where a complainant's history of alleged false complaints does not fall within any of the s 293(4) exceptions, that evidence remains inadmissible under the general prohibition in s 293(3), regardless of its potential relevance to credibility.
- This decision forms part of a series of rulings in the same proceedings and should be read alongside [2019] NSWDC 368 and [2019] NSWDC 511 for the full picture of the evidentiary rulings made at trial.
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 (NSW), ss 290, 293
Cases
- Allan v R [2017] NSWCCA 6
- Dimian v R (1995) 83 A Crim R 358
- R v RB; Attorney-General (NSW) as Intervenor [2019] NSWDC 368
- R v RB; Attorney-General (NSW) as Intervenor (No 2) [2019] NSWDC 511
- Rolfe v R [2007] NSWCCA 155
- Spratt v Director of Public Prosecutions [2010] NSWSC 355
- Taleb v R [2015] NSWCCA