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14
Court of Criminal Appeal 3 July 2020

Jackmain (a pseudonym) v R

[2020] NSWCCA 150

Also reported as (2020) 102 NSWLR 847
Sexual offencesAssault & violencePublic order & justice offences
APPEALS JURISDICTION STARE DECISIS SIGNIFICANCE OF RE PRINCIPLE IN KABLE V DPP PERMANENT STAY

Citation: Jackmain (a pseudonym) v R [2020] NSWCCA 150
Court: NSW Court of Criminal Appeal
Date: 3 July 2020
Judges: Bathurst CJ, Leeming JA, Johnson J, Button J, Wilson J

Background

The applicant was charged in the District Court with one count of assault occasioning actual bodily harm and three counts of sexual intercourse without consent against his former partner. Before trial, he applied to adduce evidence that the complainant had allegedly made false allegations of sexual assault on 12 prior occasions, described in the proceedings as the "false complaint evidence." That evidence varied considerably in quality, ranging from third-hand hearsay to a guilty plea for making a false report.

The trial judge found the false complaint evidence relevant, probative, and capable of disclosing a tendency on the part of the complainant to make false sexual allegations. However, the primary judge held that s 293 of the Criminal Procedure Act 1986 (NSW) rendered the evidence inadmissible, and declined to stay the proceedings permanently.

The applicant appealed to the Court of Criminal Appeal. The Crown also sought to use the appeal as an opportunity to challenge the primary judge's tendency evidence ruling in its favour. Both challenges raised threshold questions about the Court's jurisdiction to entertain them.

  • Whether the Court of Criminal Appeal had jurisdiction to review the primary judge's ruling that the Crown's proposed evidence (from the complainant, a friend, and a medical practitioner) was admissible.
  • Whether the Court had jurisdiction to review the ruling that the false complaint evidence constituted tendency evidence, in the absence of a Crown cross-appeal.
  • Whether s 293(3) of the Criminal Procedure Act rendered the false complaint evidence inadmissible.
  • Whether s 293 applied differently to "proven" instances of fabrication as opposed to unproven allegations.
  • Whether the exception in s 293(4)(a), covering events forming part of a connected set of circumstances "at or about the time" of the alleged offence, applied to the false complaint evidence.
  • Whether s 293 was constitutionally invalid as an infringement of the Kable principle (a doctrine derived from Kable v DPP (NSW) [1996] HCA 24, which prevents State laws from substantially impairing the institutional integrity of State courts exercising federal jurisdiction).
  • Whether the primary judge erred in refusing to grant a permanent stay of proceedings.

Decision

Jurisdiction: The Court held unanimously that it had no jurisdiction to review the evidentiary ruling about the Crown's proposed evidence. Rulings of that kind are not "interlocutory judgments or orders" within the scope of s 5F(3) of the Criminal Appeal Act 1912 (NSW). Equally, because the Crown had not filed a cross-appeal under s 5F(3A), the Court had no jurisdiction to review the tendency evidence ruling. The Court emphasised the strong public policy against fragmenting the criminal process through piecemeal appellate intervention.

Section 293 and false complaint evidence: The majority, led by Bathurst CJ, held that the false complaint evidence fell within s 293(3)(b) because it implied that the complainant had not taken part in sexual activity she claimed had occurred. The legislative history of s 293 and its predecessor, s 409B of the Crimes Act 1900 (NSW), demonstrated a deliberate parliamentary intention to exclude cross-examination about a complainant's sexual activity or experience in all but limited circumstances, and to protect complainants to the greatest extent possible. Leeming JA expressed some doubt about whether evidence concerning an elaborate forgery (incident 11) truly fell within s 293(3), but agreed the broader line of authority should not be overturned by the courts.

Departing from settled authority: The Court declined to overturn the existing line of authority, principally the M v R (1993) line of decisions. It reasoned that the legislature had re-enacted the provision in substantially the same form despite sustained judicial and law reform criticism, which was taken to signify parliamentary approval of the existing interpretation. Overturning settled construction in those circumstances is a task for the legislature, not the courts.

Proven evidence, the temporal exception, the constitutional challenge, and permanent stay: The Court held that s 293 does not distinguish between proven and unproven evidence; it applies to admissible evidence without regard to that distinction. The temporal exception in s 293(4)(a) could not assist the applicant because the alleged false complaints were years removed from the charged offending, and so the requirement that events be "at or about the time" of the offence was not satisfied. On the constitutional point, the Court found no substantial impairment of the court's institutional integrity because the court retained the power to stay proceedings, which preserved its essential character as a court. Finally, the permanent stay was refused: such relief is available only in extreme or exceptional circumstances, and the extent of the prejudice to the applicant arising from s 293 remained, at that stage, unclear.

Orders Made

  • Leave to appeal granted, confined to grounds 1 to 5.
  • Appeal dismissed.

Key Takeaways

  • Section 293(3)(b) of the Criminal Procedure Act 1986 (NSW) applies to evidence implying a complainant did not take part in sexual activity, including evidence that the complainant fabricated prior sexual assault allegations. The provision is not confined to evidence of actual sexual experience or activity.
  • Rulings on the admissibility of Crown evidence, and contingent rulings made in favour of the Crown without a cross-appeal, fall outside the Court of Criminal Appeal's jurisdiction under s 5F of the Criminal Appeal Act 1912 (NSW). The policy against fragmenting criminal proceedings underpins this limitation.
  • Where a statutory provision has been re-enacted in substantially the same form after sustained judicial and law reform criticism, the intermediate courts of appeal should not depart from settled constructions of that provision. That task belongs to the legislature, operating with prospective effect.
  • A Kable challenge to s 293 failed because the court's retained power to stay proceedings preserved its institutional integrity. No substantial impairment of that integrity was established.
  • Refusal of a permanent stay was upheld. A permanent stay requires extreme or exceptional circumstances, and the full extent of the prejudice caused by s 293 could not be assessed at the pre-trial stage.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), ss 105, 291, 293, 294A, 294B, 294C
- Criminal Appeal Act 1912 (NSW), s 5F
- Evidence Act 1995 (NSW), ss 55, 135, 137, 192A
- Crimes Act 1900 (NSW), ss 59(1), 61I, 409B, 578A
- Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW)

Key Cases:
- Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; [1996] HCA 24
- DAO v The Queen (2011) 81 NSWLR 568; [2011] NSWCCA 63
- Gedeon v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120; [2008] HCA 43
- M v R (1993) 67 A Crim R 549
- Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4
- Electrolux Home Products Pty Ltd v Australian Workers' Union (2004) 221 CLR 309; [2004] HCA 40
- Attorney-General (NT) v Emmerson (2014) 253 CLR 393; [2014] HCA 13
- Babaniaris v Lutony Fashions Pty Ltd (1987) 163 CLR 1; [1987] HCA 19
- R v Moore (2015) 91 NSWLR 276; [2015] NSWCCA 316
- Liristis v Director of Public Prosecutions (NSW) [2018] NSWCCA 196