Citation: R v RJ (No. 2) [2023] NSWDC 156
Court: District Court of New South Wales
Date: 4 May 2023
Judge: Abadee DCJ
Background
The accused faced multiple counts of indecent assault and sexual intercourse with a child, his granddaughter, across six alleged incidents occurring between January 2015 and July 2019. All incidents were alleged to have taken place at the accused's home at Umina Beach. The complainant gave evidence by way of pre-recorded police interviews, as permitted under the Criminal Procedure Act 1986 (NSW) for child complainants.
The first alleged incident was significant because the complainant only described it in her second police interview, not the first. In that incident, the complainant alleged the accused took both herself and a cousin, TE, to his bedroom and committed sexual offences against each of them. TE was eight years old at the time of that first alleged incident.
The Crown proposed to call TE as a witness but anticipated that her evidence would be unfavourable. TE had previously told police that she was never assaulted, that she was not present when the accused offended against anyone else, and that she believed the complainant was lying. The Crown applied for an advance ruling under section 192A of the Evidence Act permitting it to cross-examine TE as an unfavourable witness under section 38.
Legal Issues
- Whether leave should be granted under section 38(1)(a) of the Evidence Act to cross-examine TE as an unfavourable witness, on the basis that her evidence was contrary to the Crown's case
- Whether leave should also extend to cross-examination under section 38(3), concerning TE's credit as a witness
- Whether the section 192 discretionary factors supported granting leave
- Whether the proposed cross-examination on family members' reactions to the complainant's disclosure satisfied the credit test in section 103(1) and was not excluded by section 137 of the Evidence Act
- What limits should be placed on the scope of that cross-examination
Decision
Abadee DCJ granted the Crown leave to cross-examine TE under both sections 38(1)(a) and 38(3). The accused's counsel did not oppose the application, accepting that TE's prior police interview was plainly unfavourable to the Crown. His Honour was satisfied that the section 192 discretionary factors favoured granting leave: the cross-examination would not unduly extend the trial, the accused was not taken by surprise, and TE's evidence was material to only one of the six alleged incidents.
The principal dispute was the scope of the credit cross-examination, specifically whether TE could be cross-examined on what her parents and family members had said to her following the complainant's disclosure. Counsel for the accused accepted that TE's family loyalty could be explored, but argued it was unnecessary and potentially unfair to lead evidence of what specific family members actually said to her.
His Honour accepted the Crown's position that evidence of her family's reaction was relevant to credit under section 103(1). The court reasoned that if TE could be challenged on her loyalty to her family, it was a short further step to permit questioning about what her family had said to her, which might have instilled or reinforced that loyalty and could explain her reluctance to give evidence consistent with the complainant's account.
On the section 137 question, His Honour was satisfied that the probative value of this evidence was not outweighed by the danger of unfair prejudice. The questioning would not suggest the accused himself had influenced TE. His Honour noted that, if requested, he would be inclined to direct the jury that evidence of what family members said to TE went only to her credit and no adverse inference against the accused could be drawn from it. To maintain proportionate limits, His Honour confined the permitted cross-examination to TE's discussions with her parents and siblings only.
Orders Made
- Leave granted to the Crown to cross-examine TE pursuant to sections 38(1) and 38(3) of the Evidence Act 1995 (NSW) on the matters set out in paragraph 5 of MFI 9, with a variation limiting the credibility cross-examination to what TE's immediate family said to her and her own perceptions of the complainant's disclosure.
Key Takeaways
- The District Court confirmed that where a proposed witness has given a prior statement plainly inconsistent with the calling party's case, leave under section 38(1)(a) of the Evidence Act is appropriately granted, particularly when unopposed.
- Under section 192 of the Evidence Act, the court's discretion to grant leave is informed by factors including trial length, fairness to all parties, and whether the subject matter of the cross-examination is material to the proceedings.
- A court may permit credit cross-examination under section 38(3) to extend beyond general assertions of family loyalty to encompass specific communications from family members, where those communications may have shaped or reinforced a witness's position.
- Section 137 does not necessarily preclude cross-examination on third-party family reactions where the questioning is directed at witness credibility rather than the accused's culpability, and where the court retains the option to direct the jury accordingly.
- The Court of Criminal Appeal's observations in Barney v R [2023] NSWCCA 85 were applied: a finding of deliberate dishonesty by a complainant on one count may have a greater impact on the overall assessment of the complainant's evidence than a mere doubt about reliability on a single incident.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 38, 103, 137, 192, 192A
- Criminal Procedure Act 1986 (NSW), s 306A
Cases:
- Barney v R [2023] NSWCCA 85