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District Court 12 May 2020

R v Banks (No 2)

[2020] NSWDC 495

Sexual offences
CRIMINAL PROCEDURE CHILD COMPLAINANTS CROSS ADMISSIBLE TENDENCY JUDGE ALONE TRIAL

Citation: R v Banks (No 2) [2020] NSWDC 495
Court: District Court of New South Wales
Date: 12 May 2020
Judge: Grant DCJ

Background

The accused faced multiple counts of sexual offending against two child complainants, GB and AB, in a judge-alone trial. The Crown sought to adduce complaint evidence from two witnesses, MS (the children's aunt) and GS (a cousin), who recounted what each child had told them about the alleged conduct.

The complaint evidence relating to GB was conceded by defence counsel to be admissible under sections 66 of the Evidence Act 1995, so no ruling was required on that limb of the application. The contested issue concerned the complaint evidence relating to AB, specifically what MS reported AB had told her.

AB had participated in a JIRT (Joint Investigation Response Team) interview but made no allegation of wrongdoing against the accused during that interview. After the JIRT recording was played at trial, the Crown declined an opportunity to adduce further evidence from AB directly, and then closed its case.

  • Whether the evidence of MS recounting what AB allegedly told her constituted admissible complaint evidence under sections 62 and 66 of the Evidence Act 1995
  • Whether AB, as the person who allegedly made the representation, was required to herself give evidence asserting the underlying wrongdoing or the making of a complaint
  • Whether, if the evidence was technically admissible, it should nonetheless be excluded under section 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 counts 5 to 7 (relating to AB) could be cross-admissible with counts 1 to 4 (relating to GB) through tendency reasoning in these circumstances

Decision

Grant DCJ ruled that the evidence of MS as to what AB allegedly told her was inadmissible hearsay. The court held that for complaint evidence to be admissible under the framework established by sections 62 and 66, the representation must originate from the complainant herself, AB in this case. MS was the conveyer of the hearsay, not its maker.

The court distinguished the authorities relied upon by the Crown. In R v XY [2010] NSWCCA 181, the complainant had confirmed both the making and content of the complaint in police interview. In Singh v The Queen [2011] VSCA 263, the complainant had made contemporaneous representations, even though she later could not remember doing so. In R v Gregory-Roberts [2016] NSWCCA 92, the complainant gave a detailed account consistent with what she had told witnesses years earlier. None of those cases involved a situation where the complainant had affirmatively denied any wrongdoing in her evidence-in-chief, as AB had done in her JIRT interview.

Grant DCJ emphasised that this was not a question of whether a complaint was "fresh" in the complainant's memory when made, which was the issue in the cited authorities. Rather, AB had given no evidence of any wrongdoing at all, and there was no underlying representation from her to support a complaint. Without that foundation, the evidence of MS could not meet the statutory requirements.

Even if the ruling on hearsay were wrong, the court stated it would exclude the evidence under section 137. Admitting the evidence would expose the accused to tendency reasoning in proof of counts 5 to 7 in circumstances where the complainant AB had made no allegation. That created a significant and unacceptable danger of unfair prejudice.

Orders Made

• Evidence of MS is inadmissible hearsay
• Evidence excluded under section 137
• Counts 5 to 7 should not be cross-admissible to counts 1 to 4
• Crown not allowed to rely upon tendency reasoning in proof of counts 5 to 7

Key Takeaways

  • The District Court confirmed that complaint evidence under sections 62 and 66 of the Evidence Act 1995 requires the representation to originate from the complainant herself. A witness who merely conveys what a complainant allegedly said is not the "maker" of the representation.

  • Where a child complainant makes no allegation of wrongdoing in her evidence-in-chief, the admissibility framework for complaint evidence is not engaged. The cases addressing "freshness" of memory are directed at a different question and do not cure the absence of any underlying representation from the complainant.

  • Section 137 provides an independent basis for exclusion where, even if evidence were marginally admissible, its admission would expose the accused to tendency reasoning built on a foundation of no direct allegation by the complainant.

  • Cross-admissibility for tendency purposes between discrete sets of counts can be undermined entirely where the complainant associated with one set of counts has made no allegation against the accused.

  • The Crown's decision not to call further evidence from AB after the JIRT recording was played, and its earlier concession at trial that the complaint evidence was inadmissible, were factors that shaped the procedural context in which the court's ruling was made.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), sections 32, 62, 66, 137

Cases:
- R v XY [2010] NSWCCA 181
- Singh v The Queen [2011] VSCA 263
- R v Gregory-Roberts [2016] NSWCCA 92 (restricted decision)