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District Court 22 March 2023

R v RM (No 2)

[2023] NSWDC 91

Sexual offences
EVIDENCE EXAMINE CROWN WITNESS WHETHER EARLIER EVIDENCE ‘UNFAVOURABLE’ EXAMINATION OF CROWN WITNESS

Citation: R v RM (No 2) [2023] NSWDC 91
Court: District Court of New South Wales
Date: 22 March 2023
Judge: Abadee DCJ

Background

The accused faced multiple sexual offence charges brought by his daughter, spanning much of her childhood. The last of nine alleged incidents was said to have occurred in the complainant's bedroom on the evening of 19 July 2020. The defence mounted a sustained attack on the complainant's credibility, including by suggesting she had not behaved as one might expect a victim of child sexual abuse to behave.

The Crown called the complainant's brother, BM, as a witness. In evidence-in-chief, BM indicated some uncertainty about voices he heard on the relevant night. During cross-examination by defence counsel, however, BM expressed a stronger degree of conviction that he had heard the voices of his sister and father in conversation in the early hours of 20 July 2020.

After cross-examination of BM concluded, the Crown applied for leave under section 38 of the Evidence Act 1995 (NSW) to cross-examine BM about the level of his certainty in recalling that conversation. The defence opposed the application on two principal grounds: that it was brought too late, and that it would be unfair to the accused.

Legal Issues

  • Whether BM's evidence given in cross-examination was "unfavourable" to the Crown within the meaning of section 38(1)(a) of the Evidence Act 1995 (NSW)
  • Whether the Crown's application was fatally out of time because it was brought after cross-examination had concluded
  • Whether granting leave would be unfair to the accused, having regard to the considerations in section 192(2) of the Evidence Act 1995 (NSW)
  • Whether, and on what terms, any grant of leave should be made

Decision

Issue 1: Was BM's evidence "unfavourable" under section 38(1)(a)?

The court confirmed that evidence is unfavourable if it is against the interests of or unhelpful to the party calling it, drawing on the High Court's formulation in Adam v The Queen (at [20]). BM's evidence in cross-examination had shifted: in evidence-in-chief he was uncertain about whose voices he heard, while in cross-examination he expressed clear conviction that he had heard only his sister and father. That movement was characterised as unfavourable to the Crown (at [22]).

The court found that the mere fact of a conversation between the accused and the complainant occurring after the last alleged incident could be regarded as unfavourable to the Crown case, even if the witness could not recall the conversation's content (at [20]). The court also noted that section 38(1)(a) does more work than section 38(1)(c) and should not be confined narrowly to situations of internal inconsistency (at [19]).

Issue 2: Was the application brought too late?

The court rejected the argument that the timing of the application was fatal (at [21]). It accepted that the Crown was on notice of BM's likely evidence about the existence of a conversation, but held that this was not determinative. It was not obviously predictable that the witness would move from a diffident account in evidence-in-chief to a more confident statement in cross-examination (at [21]).

The court held that no relevant unfairness arose from the timing. Defence counsel had not identified how her approach to cross-examination would have materially differed had she known the application would be deferred until after cross-examination concluded. The critical consideration was that the jury receive all relevant evidence on the topic, consistent with the approach endorsed in Burrell v The Queen (at [22]).

Issue 3: Fairness under section 192(2)

The court addressed the section 192(2)(b) fairness consideration and rejected the submission that granting leave would be unfair to the accused (at [23]). Applying the reasoning in R v Parkes, the court held there is nothing intrinsically unfair in the Crown seeking to present a truer picture of the evidence by utilising section 38, even where it obtains some forensic advantage in doing so (at [23]).

Any residual forensic prejudice to the accused could be addressed by affording defence counsel a further opportunity to cross-examine BM after the Crown's section 38 cross-examination, a course supported by section 38(4) and (5) and approved by the Court of Criminal Appeal in Burrell (at [27]). The narrow scope of the proposed cross-examination meant that no other section 192(2) considerations militated against granting leave (at [27]).

Orders Made

  • Leave granted to the Crown to cross-examine BM under section 38(4) of the Evidence Act 1995 (NSW), limited to the topic of the witness's degree of certainty about hearing the conversation.
  • The accused afforded a further opportunity to cross-examine BM after the Crown's section 38 cross-examination, also limited to that same topic.

Key Takeaways

  • Under section 38(1)(a) of the Evidence Act 1995 (NSW), evidence is "unfavourable" if it is against the interests of or unhelpful to the party calling the witness. A witness's shift from uncertainty in evidence-in-chief to confident conviction in cross-examination can satisfy this criterion, even where no formal internal inconsistency exists (at [20], [22]).

  • A section 38 application is not automatically defeated because it is brought after cross-examination has concluded. The court confirmed that the timing of such an application is not fatal where the critical concern is ensuring the jury has access to all relevant evidence on the topic (at [21]-[22]).

  • There is no intrinsic unfairness in the Crown utilising section 38 to present a fuller picture of the evidence, even where doing so produces some forensic advantage. This was consistent with the Court of Criminal Appeal's reasoning in Burrell v The Queen and the approach endorsed in R v Parkes (at [23]).

  • Where a grant of leave under section 38 raises concerns about prejudice to the opposing party, those concerns can be addressed by affording that party a further opportunity to cross-examine on the same topic, a course facilitated by section 38(4) and (5) (at [27]).

  • The District Court confirmed that section 38(1)(a) is broader in its operation than section 38(1)(c) and should not be confined to circumstances of internal inconsistency alone (at [19]).

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW) ss 38, 192

Cases
- Adam v The Queen (2001) 207 CLR 96
- Burrell v The Queen (2009) 196 ACR 199
- Klewer v Walton [2003] NSWCA 308
- R v Parkes (2003) 147 ACR 450