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District Court 7 October 2020

R v RB (No 6)

[2020] NSWDC 600

Sexual offences
CRIMINAL PROCEDURE SEXUAL OFFENCE PROCEEDINGS PERMANENT STAY APPLICATION EXCEPTIONAL REMEDY NO EVIDENCE OF ACTUAL UNFAIRNESS CAUSED EX TEMPORE JUDGMENT

Citation: R v RB (No 6) [2020] NSWDC 600
Court: District Court of New South Wales
Date: 7 October 2020
Judge: Grant DCJ

Background

The accused faced trial on serious sexual assault charges. The complainant had a history relevant to her credibility, including a prior guilty plea to making a false report involving an allegation of sexual assault against another man, and various other prior statements and letters bearing on her honesty and reliability.

Before the jury retired, the accused applied for a permanent stay of the trial. The application centred on the operation of section 293 of the Criminal Procedure Act 1986, which restricts cross-examination and evidence about a complainant's prior sexual activity or sexual assault allegations in certain circumstances.

The core complaint was that those restrictions had prevented the defence from fully exposing what it characterised as the complainant's tendency to fabricate allegations of sexual impropriety, thereby causing fundamental unfairness to the accused.

  • Whether the operation of section 293 of the Criminal Procedure Act 1986 gave rise to a fundamental defect going to the root of the trial, warranting a permanent stay.
  • Whether restrictions on cross-examination about the complainant's prior alleged fabrications amounted to an abuse of process.
  • Whether the Crown's pre-testimony direction to the complainant (not to mention sexual conduct when answering questions) undermined the integrity of the oath and the trial process.
  • Whether the cumulative effect of the section 293 restrictions created an unfairness sufficient to justify a permanent stay.

Decision

Grant DCJ reaffirmed the high threshold for a permanent stay, describing it as an exceptional remedy tantamount to a continuing immunity from prosecution. The test is not simply fairness to the accused in isolation. The court must weigh fairness to the accused against the public interest in resolving serious charges on the merits and in maintaining public confidence in the administration of justice. A permanent stay requires a fundamental defect going to the root of the trial, against which the court can do nothing to relieve the unfair consequences.

On the section 293 restrictions, Grant DCJ found that the defence had in fact been able to place significant credibility-damaging material before the jury. The jury had heard evidence that the complainant pleaded guilty to making a false report involving a serious allegation of violence against a man. The court indicated it would direct the jury in the summing-up to assess the complainant's honesty and reliability with that prior false statement firmly in mind. This direction, Grant DCJ found, would substantially ameliorate any prejudice arising from the restrictions.

On the remaining instances involving the letter to Heather Campbell and the allegations involving other men, the court found that cross-examination had been conducted in a manner consistent with guidance from the Court of Criminal Appeal in Jackmain [2020] NSWCCA 150. In each instance, the evidential value, particularly the conflict between the complainant's account and other witnesses' evidence, remained available to the jury notwithstanding the redactions required by section 293.

On the argument that the Crown's pre-testimony direction to the complainant undermined the oath and the integrity of the trial, Grant DCJ rejected this contention. Relying on the reasoning of Leeming JA in Jackmain, the court observed that directing a witness not to volunteer evidence on a particular topic is not uncommon in jury trials and does not, of itself, mislead the jury or cause the prosecutor to act unfairly.

Orders Made

No orders were made in this decision.

Key Takeaways

  • A permanent stay of criminal proceedings is an exceptional remedy requiring a fundamental defect going to the root of the trial, not merely prejudice or restriction on cross-examination.
  • The test for a permanent stay involves balancing fairness to the accused against the public interest in serious charges being resolved on their merits and public confidence in the administration of justice.
  • Under section 293 of the Criminal Procedure Act 1986, restrictions on cross-examination about prior sexual conduct or allegations do not automatically constitute a fundamental defect, particularly where other avenues of credibility challenge remain available.
  • Judicial directions in a summing-up can, in appropriate circumstances, ameliorate prejudice arising from statutory restrictions on evidence, reducing the prospect of a permanent stay being warranted.
  • Where a complainant is directed before giving evidence not to volunteer references to a restricted topic, this does not necessarily compromise the integrity of the oath or amount to an abuse of process, provided the jury is not materially misled.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), s 293
- Evidence Act 1995 (NSW)

Cases
- R v Moore (2015) 91 NSWLR 276
- Jackmain (a pseudonym) [2020] NSWCCA 150
- R v RD [2016] NSWCCA 84