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District Court 1 October 2020

R v RB (No 4)

[2020] NSWDC 580

Sexual offences
CRIMINAL PROCEDURE SEXUAL OFFENCE PROCEEDINGS ADMISSIBILITY OF EVIDENCE MATTERS RELATING TO MAKER OF STATEMENT S135 EVIDENCE ACT 1995 S137 EVIDENCE ACT 1995

Citation: R v RB (No 4) [2020] NSWDC 580
Court: District Court of New South Wales
Date: 1 October 2020
Judge: Grant DCJ

Background

The accused faced charges relating to sexual offences. Earlier pre-trial rulings, including the decision in R v RB: Attorney General (NSW) as Intervenor (No 2) [2019] NSWDC 511, had addressed the admissibility of evidence from three proposed Crown witnesses: the complainant, a friend of the complainant, and the complainant's medical practitioner.

The accused sought an advance ruling that this evidence was inadmissible, relying on ss 135 and 137 of the Evidence Act 1995. Section 135 permits a court to exclude evidence that is misleading or confusing, and s 137 requires exclusion where the danger of unfair prejudice to the defendant outweighs the probative value of the evidence.

This application was, in substance, a repeat of an earlier motion. The accused sought to reopen the admissibility question in light of arguments about alleged errors in the prior ruling and subsequent developments in the case.

  • Whether evidence from the complainant, a friend, and a medical practitioner should be excluded under ss 135 and/or 137 of the Evidence Act 1995
  • Whether s 293 of the Criminal Procedure Act 1986, which contains an exclusionary rule relating to sexual experience evidence, displaced the court's discretion under ss 135 and 137
  • Whether s 8 of the Evidence Act 1995 preserved the operation of s 293 of the Criminal Procedure Act so as to prevent the accused from using the Evidence Act discretions to circumvent it
  • Whether the prior pre-trial ruling remained binding under s 130A of the Criminal Procedure Act 1986

Decision

Grant DCJ declined to make the order sought and confirmed that the earlier ruling remained binding. The court held that the evidence of the complainant and the complaint evidence was relevant, probative of a fact in issue, and admissible, consistent with the findings in RB (No 2).

Central to the reasoning was the operation of s 293 of the Criminal Procedure Act, which establishes an exclusionary rule preventing evidence that discloses or implies a complainant's lack of sexual experience from being adduced in prescribed sexual offence proceedings. The court had previously ruled that the alleged false complaints fell within this exclusionary rule and did not satisfy the temporal requirements of the exception in s 293(4). The Court of Criminal Appeal, sitting as a five-judge bench in Jackmain (a pseudonym) v R [2020] NSWCCA 150, confirmed that the trial judge had not erred in those rulings.

The court held that s 8 of the Evidence Act, which preserves the operation of other Acts, meant that s 293 of the Criminal Procedure Act was not affected by the Evidence Act. An accused cannot invoke ss 135 or 137 to defeat the parliamentary intention embedded in the s 293 exclusionary rule. To hold otherwise would render s 8 of the Evidence Act purposeless.

The court also rejected the accused's submission that the prior ruling contained House v The King error. Grant DCJ found that the argument had no validity given the operation of ss 8 and 293, and that in any event the Court of Criminal Appeal had itself declined to grant a permanent stay. The pre-trial ruling remained binding under s 130A of the Criminal Procedure Act, and the court was not satisfied that interests of justice required it to depart from that ruling.

Orders Made

  • The accused's notice of motion seeking an advance ruling that the evidence of the complainant, the complainant's friend, and the complainant's medical practitioner was inadmissible under ss 135 and/or 137 of the Evidence Act 1995 was refused.

Key Takeaways

  • Section 293 of the Criminal Procedure Act 1986 operates as an absolute admissibility rule in prescribed sexual offence proceedings: where it applies, evidence is inadmissible regardless of its probative value, and no question of weighing probative value against prejudice arises.
  • Under s 8 of the Evidence Act 1995, the discretionary exclusion provisions in ss 135 and 137 cannot be used to override or circumvent the operation of s 293 of the Criminal Procedure Act; the two regimes operate independently.
  • The Court of Criminal Appeal in Jackmain (a pseudonym) v R [2020] NSWCCA 150 confirmed that s 293(3) applies to evidence of false complaints because such evidence discloses or implies a complainant's lack of sexual experience, and that the exception in s 293(4) carries a strict temporal requirement.
  • Pre-trial admissibility rulings made after an indictment is presented bind the trial judge under s 130A of the Criminal Procedure Act, unless the trial judge is satisfied that it would not be in the interests of justice to treat the ruling as binding.
  • The District Court confirmed the principle, drawn from BB (No 2) [2017] NSWCCA 142, that a trial can only be "as fair as it can be in the context of the legislative provisions binding its conduct," reflecting Parliament's deliberate balancing of competing public interests in sexual assault proceedings.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 8, 135, 137, 192A
- Criminal Procedure Act 1986 (NSW), ss 130A, 293

Cases:
- R v RB; Attorney-General (NSW) as Intervenor (No 2) [2019] NSWDC 511
- Jackmain (a pseudonym) v R [2020] NSWCCA 150
- KS v Veitch (No 2) (2012) 84 NSWLR 174
- BB (No 2) [2017] NSWCCA 142
- M v R (1993) 67 A Crim R 549
- House v The King (referenced in argument but not separately cited in the judgment text)