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District Court 12 October 2022

R v Poudel

[2022] NSWDC 472

Sexual offences
CRIME SEXUAL INTERCOURSE WITHOUT CONSENT SEXUAL TOUCHING JUDGE ALONE TRIAL PRE

Citation: R v Poudel [2022] NSWDC 472
Court: District Court of New South Wales
Date: 12 October 2022
Judge(s): Mahony SC DCJ

Background

The accused, a personal care assistant and team leader at a residential aged care facility, faced two counts on the indictment: sexual intercourse without consent and sexual touching without consent. The alleged offending occurred on 28 February 2020 when the accused showered an elderly female resident. The complainant, who was in her nineties and suffered cognitive impairment, reported the alleged assault to nursing staff in the early hours of 29 February 2020 and gave a recorded statement to police on 2 March 2020. She died on 30 January 2022 before the matter came to trial.

The matter proceeded as a judge-alone trial. Before the trial proper commenced, the court heard argument on two pre-trial admissibility questions: whether the accused's electronically recorded interview with police (ERISP) should be admitted, and whether the deceased complainant's recorded police statement could be admitted as an exception to the hearsay rule.

Legal Issues

  • Whether the accused's ERISP should be admitted into evidence, given that he had exercised his right to silence and his English proficiency and familiarity with the justice system were in question
  • Whether the deceased complainant's recorded police statement was admissible under section 65(2)(b) of the Evidence Act 1995 (NSW) as a hearsay exception, including whether she was competent to give evidence at the time of the interview
  • Whether the complainant's statement should 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
  • Whether, on the totality of the evidence at trial, the Crown had proved the elements of each offence beyond reasonable doubt

Decision

Issue 1: Admissibility of the ERISP

The court admitted the ERISP into evidence. Having viewed the recording, the court was satisfied that the accused understood his rights, exercised his right to silence at points during the interview, and was not suborned by police. The court found the accused was not a vulnerable person in the relevant sense, as he clearly understood the questions put to him in English and chose which questions to answer. The court further noted that, in a judge-alone trial, it could properly direct itself that the accused's exercise of the right to silence could not be used against him (at [78]). The Crown did not rely on questions 54 to 66 of the transcript, and the only admission of significance was the uncontested fact that the accused had showered the complainant on the relevant date.

Issue 2: Admissibility of the complainant's recorded police statement

The court first considered whether the complainant was competent to give evidence at the time of her police interview. Both medical experts, Professor Rosenfeld and Dr Obeid, agreed that as at 2 March 2020 the complainant could understand questions about the alleged assault and give intelligible answers. The court was accordingly satisfied that the statutory presumption of competence under section 61(3) of the Evidence Act 1995 had not been rebutted (at [105]-[106]).

Turning to section 65(2)(b), the court accepted Professor Rosenfeld's opinion over that of Dr Obeid, finding it more likely than not that the complainant was suffering from mild-severity vascular dementia at the time of the alleged offences, rather than only the residual effects of a traumatic brain injury as Dr Obeid contended. Professor Rosenfeld had the advantage of having examined the complainant in person. The court was satisfied that the first element of section 65(2)(b), requiring the statement to have been made shortly after the asserted fact, was met: the statement was recorded two days after the complainant first disclosed the alleged incident to nursing staff, and she had also disclosed it to the nursing manager, her GP, and a forensic medical examiner within the same period (at [109]). The court was further satisfied that the representations were made in circumstances making it unlikely they were a fabrication, accepting that the complainant was more likely than not giving an accurate account of a traumatic event (at [116]-[118]). The court declined to exclude the statement under section 137, holding that its high probative value was not outweighed by the danger of unfair prejudice, particularly given the procedural safeguards available in a judge-alone trial (at [123]).

Issue 3: Verdict

At trial, the court found the complainant's evidence could not be regarded as reliable and accurate. Uncontested evidence from a nurse present at the relevant time established that the complainant had nodded and said "Ok" when the accused asked to shower her, which was at odds with her subsequent accounts (at [284]). The complainant's own recorded statement disclosed that she could not remember the shower and was uncertain about specific details of the alleged penetration (at [286]). The court found it a reasonable possibility that the complainant's account was a fixed delusion or falsely recalled memory, notwithstanding its repetition to multiple witnesses (at [287]). On that basis, the court found the accused not guilty of both counts, as the Crown had not established the elements of either offence beyond reasonable doubt (at [288]-[289]).

Orders Made

  • Verdicts of Not Guilty on both counts of the indictment

Key Takeaways

  • The District Court confirmed that an accused's exercise of the right to silence during an ERISP does not, of itself, render the interview inadmissible, provided police did not suborn the accused and the overall conduct of the interview was fair. In a judge-alone trial, the court can direct itself appropriately on the use of silence (at [78]).

  • Under section 65(2)(b) of the Evidence Act 1995, a recorded police statement by a now-deceased complainant may be admitted as a hearsay exception where it was made shortly after the alleged events and in circumstances making fabrication unlikely. A statement made two days after an alleged assault, accompanied by consistent disclosures to multiple persons within the same period, may satisfy both elements (at [109], [118]).

  • Where two medical experts disagree on a complainant's cognitive condition, the court may prefer the opinion of the expert who had the opportunity to examine the complainant in person and who considered the full clinical picture from the outset (at [114]-[116]).

  • Admission of a deceased complainant's statement under section 65(2)(b) does not automatically satisfy the balance required by section 137. The court must separately consider whether the probative value of the evidence is outweighed by the danger of unfair prejudice. In a judge-alone trial, the risk of improper use is mitigated by the court's capacity to give itself appropriate directions (at [123]).

  • Admission of hearsay evidence under section 65(2)(b) is a preliminary finding about the circumstances in which a statement was made, not a finding on the reliability of that evidence for the purposes of the ultimate verdict. A court may admit such a statement and still find, at the verdict stage, that the evidence is insufficiently reliable to establish guilt beyond reasonable doubt (at [116], [287]-[289]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900
- Criminal Procedure Act 1986
- Evidence Act 1995
- Law Enforcement (Powers and Responsibilities) Act 2002

Cases
- Festa v The Queen (2001) 208 CLR 593; [2001] HCA 72
- Harris v The Queen (2005) 158 A Crim R 454; [2005] NSWCCA 432
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- Prasad v R [2020] NSWCCA 349
- Priday v R [2019] NSWCCA 272
- R v Ambrosoli (2002) 55 NSWLR 603; [2002] NSWCCA 386
- R v Blick (2000) 111 A Crim R 326; [2000] NSWCCA 61
- R v Fernando & Anor [1999] NSWCCA 66
- R v Markuleski (2001) 52 NSWLR 82
- R v Plevac (1995) 84 A Crim R 570
- Sio v The Queen [2016] 259 CLR 47; [2016] HCA 32
- The Queen v Dickman (2017) 261 CLR 601; [2007] HCA 24
- Williams v The Queen (2000) 119 A Crim R 490; [2000] FCA 1868
- Youkahna v The Queen [2013] NSWCCA 85