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District Court 30 September 2020

R v RB (No 5)

[2020] NSWDC 583

Sexual offencesAssault & violence
CRIMINAL PROCEDURE EVIDENCE SEXUAL OFFENCE PROCEEDINGS SINGLE COMPLAINANT PRE TRIAL ORDERS CONTEXT EVIDDENCE

Citation: R v RB (No 5) [2020] NSWDC 583
Court: District Court of New South Wales
Date: 30 September 2020
Judge(s): Grant DCJ

Background

The accused faced a four-count indictment: one count of assault occasioning actual bodily harm and three counts of sexual intercourse without consent. The single complainant was the accused's former wife. The proceedings had a complicated history stretching back to 2016, including earlier charges involving a separate complainant, multiple tendency notices, and a severed indictment.

An earlier trial before King SC DCJ in December 2017 came to a halt after his Honour excluded both tendency evidence and context evidence the Crown sought to lead. The Crown indicated at the time that it would not appeal those rulings. The proceedings were then discontinued for unrelated reasons, and a fresh trial was ultimately listed before Grant DCJ in September 2020.

Ten days before the new trial commenced, the Crown filed a fresh tendency notice covering substantially the same ground as the evidence King SC DCJ had excluded in 2017. Two separate pre-trial questions then arose: whether the earlier rulings were binding, and whether the defence could cross-examine the complainant on voir dire about alleged false complaints.

  • Whether the rulings of King SC DCJ excluding tendency evidence and context evidence were binding on the trial judge in the subsequent proceedings, under s 130A of the Criminal Procedure Act 1986
  • Whether the Crown had demonstrated that it would not be in the interests of justice for those earlier rulings to remain binding
  • Whether the defence was entitled to cross-examine the complainant on voir dire about twelve alleged instances of false complaint, in the context of an application for a permanent stay, having regard to s 293 of the Criminal Procedure Act 1986

Decision

Binding effect of earlier rulings (s 130A)

Grant DCJ confirmed that s 130A(3) applied because the earlier trial before King SC DCJ had been discontinued. That subsection renders pre-trial rulings from discontinued proceedings binding on a subsequent trial judge unless it would not be in the interests of justice for the order to stand. The Crown bore the onus of establishing that the exception applied.

The Crown argued that King SC DCJ had applied the wrong test and provided insufficient reasoning, particularly given that his Honour changed his position overnight on the tendency question. Grant DCJ rejected that argument. His Honour observed that judges regularly revisit their conclusions upon further reflection, and that doing so reflects a commitment to reaching the correct outcome rather than an error of reasoning. Having read the 18 pages of transcript in which King SC DCJ explained his exclusion of the context evidence, Grant DCJ was not satisfied that justice required departure from those rulings. He also noted that one of the express purposes of s 130A is to prevent the unnecessary re-litigation of evidentiary issues, a purpose reinforced by the Crown's earlier decision not to appeal under s 5F.

Cross-examination of complainant on voir dire (s 293)

The defence sought leave to cross-examine the complainant about twelve alleged incidents of false sexual complaint, framing the application as a voir dire in support of a permanent stay rather than a challenge to admissibility under s 293. It argued that s 293 therefore did not prevent the cross-examination.

Grant DCJ declined to read the relevant authorities as broadly as the defence urged. Drawing on Jackmain v R [2020] NSWCCA 150, his Honour concluded that where a voir dire is required to explore matters caught by s 293, that inquiry should proceed on documents rather than through live cross-examination of the complainant. He saw no principled reason to treat a permanent stay voir dire differently from a s 293 admissibility voir dire in that respect. The application for leave to cross-examine was refused, though the accused remained free to tender relevant documents on the permanent stay application.

Orders Made

• Refuse the application seeking leave to cross-examine the complainant on the twelve incidents set out at [42] in Jackmain
• The accused is not precluded from tendering documents which relate to the sexual representation of the complainant, or disclose or imply that the complainant has, or may have had, or lack, sexual experience, or may or may not have taken part in sexual activity in consideration of a permanent stay application

Key Takeaways

  • Under s 130A(3) of the Criminal Procedure Act 1986, a pre-trial ruling made in discontinued proceedings binds the judge in any subsequent trial on the same offence, unless the subsequent judge is satisfied it would not be in the interests of justice for the ruling to stand. The Crown bears the onus of establishing that exception.
  • A judge's overnight reconsideration and reversal of an earlier evidentiary ruling does not, without more, indicate error or provide grounds to depart from that ruling in later proceedings. The District Court treated careful judicial reflection as a mark of diligence rather than instability.
  • Filing a fresh tendency notice covering materially the same ground as previously excluded evidence, only ten days before trial, was noted as inconsistent with the purpose of s 130A, which is to prevent the unnecessary re-ventilation of evidentiary disputes and reduce delays in criminal trials.
  • Where a voir dire is needed to examine evidence arguably caught by s 293 of the Criminal Procedure Act 1986, including on a permanent stay application, the District Court held that the inquiry should be conducted on documents rather than through cross-examination of the complainant.
  • The decision does not establish that a trial judge can never depart from a predecessor's evidentiary rulings under s 130A; it confirms only that a mere change of mind by the earlier judge, or the prospect that the current judge might have decided differently, is insufficient to satisfy the interests-of-justice threshold.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 59(1), 61I
- Evidence Act 1995 (NSW), ss 135, 137, 293
- Criminal Procedure Act 1986 (NSW), s 130A

Cases
- R v GK [2001] NSWCCA 413
- R v Bo [2012] NSWDC 194
- JG v R [2014] NSWCCA 138
- Rogers v The Queen (1994) 181 CLR 251
- Jackmain (a pseudonym) v R [2020] NSWCCA 150