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District Court 23 March 2023

R v RM (No 3)

[2023] NSWDC 92

Sexual offences
CRIMINAL PROCEDURE CHILD SEXUAL OFFENCES INDICATION OPPOSED

Citation: R v RM (No 3) [2023] NSWDC 92
Court: District Court of New South Wales
Date: 23 March 2023
Judge: Abadee DCJ

Background

The accused faced an indictment containing 11 counts of sexual offences allegedly committed against his biological daughter across a period from June 2011 to July 2020. The complainant was born in January 2002, placing her between the ages of 9 and 18 during the alleged offending. The accused had pleaded not guilty and the trial had already commenced.

Count 5 charged the accused under s 66C(2) of the Crimes Act 1900 (NSW) with having sexual intercourse with the complainant when she was aged between 10 and 14, specifically 13 years old, in circumstances of aggravation. During her evidence-in-chief, the complainant stated she thought she was "13 or 14" at the time of the incident giving rise to that count, leaving her exact age uncertain on the record.

The Crown indicated it intended to rely on a statutory alternative charge under s 66C(4), which covers sexual intercourse with a person aged between 14 and 16 in circumstances of aggravation. This alternative extended the date range of Count 5 to accommodate the possibility the complainant was 14 rather than 13. The accused opposed the Crown's reliance on that alternative, and the court was required to resolve the dispute.

  • Whether the Crown's proposed alternative charge under s 66C(4) (facilitated by s 80AB(9) of the Crimes Act) caused unfair prejudice to the accused, particularly given the extended date range and forensic decisions already made by defence counsel.
  • Whether s 80AB(9) could be invoked by the Crown after the trial had already commenced, by analogy with the High Court's reasoning in Stephens v The Queen [2022] HCA 31 concerning s 80AF of the Crimes Act.

Decision

On the first issue, the court found that the Crown was not making an application to amend the indictment under ss 20 or 21 of the Criminal Procedure Act 1986 (NSW), but rather invoking a statutory entitlement to rely on an alternative. Accordingly, the fairness considerations that govern amendment applications were not directly applicable. Even if they were, the court found it difficult to accept the complaint of unfairness: the legislative provision expressly authorised the Crown to rely on such an alternative where a complainant's age was uncertain. The court drew on Borodin v R [2006] NSWCCA 83 for the proposition that a forensic decision rendered less effective by the availability of an alternative would not, of itself, justify refusing leave to amend.

On the second issue, the accused argued that the reasoning in Stephens, where the High Court held that s 80AF could only be invoked at the commencement of a trial (not after it had started), should apply equally to s 80AB(9). The court rejected this argument. Unlike s 80AF, which the High Court described as directed to a distinct legislative purpose, s 80AB(9) is substantively the same as the former s 66E(4), which was in place at the time of the alleged offending and when the trial commenced. No material change to ss 66C(2) or 66C(4) had occurred between the date of the alleged offences and the trial. There was therefore no retrospective extension of criminal liability.

The court also noted that both s 80AB and s 80AF came into force on 1 December 2018, well before the accused was charged, before he entered pleas, and even before the last alleged incident occurred. The court found nothing in the text, context, or purpose of s 80AB(9) that would restrict the Crown's capacity to rely on an alternative charge facilitated by that provision after a trial has commenced. The accused's objection was rejected in full.

Orders Made

• The accused's opposition to the Crown's reliance upon the alternative to count 5 is rejected.

Key Takeaways

  • The District Court distinguished s 80AB(9) from s 80AF of the Crimes Act, holding that the High Court's reasoning in Stephens v The Queen concerning timing restrictions on invoking s 80AF does not automatically extend to s 80AB(9).
  • Under s 80AB(9), the Crown may invoke a statutory alternative charge during a trial where the provision was already in force at the time of the alleged offending and at the commencement of the trial, with no retrospective extension of criminal liability.
  • A complainant's uncertainty about her own age during evidence-in-chief can enliven the Crown's entitlement to rely on an alternative charge covering an extended age range, without that being characterised as an impermissible amendment to the indictment.
  • Where the statutory alternative charge is available as of right rather than by amendment, the conventional fairness analysis under ss 20 and 21 of the Criminal Procedure Act does not govern whether it can be relied upon.
  • Forensic decisions made by defence counsel on the basis of evidence as it stood during trial do not, without more, constitute sufficient prejudice to prevent the Crown from relying on a statutory alternative charge.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61Q, 66C, 66E, 80AB, 80AF
- Criminal Procedure Act 1986 (NSW), ss 20, 21

Cases:
- Stephens v The Queen [2022] HCA 31
- Borodin v R [2006] NSWCCA 83