Citation: R v Bostock [2026] NSWDC 261
Court: District Court of NSW
Date: 30 March 2026
Judge(s): Buscombe DCJ
Background
The accused was due to stand trial at Grafton on nine counts of alleged sexual offending against two child complainants. The most serious charge alleged that he maintained an unlawful sexual relationship with a child, AMS, over a period of approximately six years when she was aged between seven and thirteen. AMS gave her evidence by pre-recording before another judge in March 2025, as permitted for child witnesses under the Criminal Procedure Act 1999 (NSW).
After the pre-recording, a separate incident came to light. In late June 2025, a friend of AMS reported to police that her own father had bought alcohol for the group and had sexually touched AMS during a group hug. Police interviewed AMS, who alleged the man had grabbed her buttocks. However, CCTV footage of the incident was obtained and, by the time of the application, the Crown accepted that the footage did not show any such touching of AMS's bottom, showing instead that the man placed a hand on her back before she pulled away.
The accused applied under s 294K of the Criminal Procedure Act for leave to have AMS give further evidence at trial, seeking to cross-examine her about the apparently false complaint. The Crown opposed the application.
Legal Issues
- Whether the requirements of s 294K of the Criminal Procedure Act were met, specifically whether the accused could not reasonably have been aware of the matter at the time of the original pre-recording, and whether granting leave was in the interests of justice
- Whether the evidence relating to the allegedly false complaint was admissible at all, given that credibility evidence is generally excluded under the credibility rule in the Evidence Act 1995 (NSW)
- How to balance the legislative purpose of protecting child witnesses from the trauma of giving evidence against the accused's right to a fair trial
Decision
Issue 1: Threshold requirement under s 294K
The court found that the threshold requirement under s 294K(3)(a) was clearly satisfied. Because the allegedly false complaint was not made until 27 June 2025, well after the March 2025 pre-recording, the accused could not reasonably have been aware of it at the time the original evidence was taken. This point was not disputed by the Crown.
Issue 2: Admissibility under s 103 of the Evidence Act
The evidence was relevant only to AMS's credibility, which meant the credibility rule ordinarily applied to exclude it. Section 103 provides an exception where evidence adduced in cross-examination could substantially affect the assessment of the witness's credibility. The court considered two matters: whether the evidence tended to show the witness knowingly or recklessly made a false representation under an obligation to tell the truth, and the period that had elapsed since the relevant events.
The court found that AMS had, on the face of it, made a false allegation of an indecent nature to police about an adult male during a formal interview that triggered a police investigation. The complaint was made within two years of her complaint against the accused and shared a similar character, being an allegation of indecent touching by an adult male. In the court's view, the evidence could substantially affect the assessment of AMS's credibility at trial.
Issue 3: Balancing child witness protection against fair trial
The court acknowledged that the dominant purpose of the pre-recording regime is to shield child witnesses from the trauma of giving evidence, and weighed that against the accused's right to a fair trial. It noted that the further evidence was unlikely to be lengthy, meaning AMS's additional exposure would be relatively brief. Given the significance of the credibility issue and the nature of the allegedly false complaint, the court granted leave under s 294K.
Orders Made
- Leave granted to the accused to adduce further evidence from AMS at trial, to be given by further pre-recording to the extent practicable.
(Note: The judgment records that when AMS was cross-examined on 27 May 2026, she admitted to having knowingly made a false accusation against her friend's father. The following day, the Director of Public Prosecutions directed that there be no further proceedings on the indictment.)
Key Takeaways
- Under s 294K of the Criminal Procedure Act 1999 (NSW), a court may grant leave for a pre-recorded child witness to give further evidence where the applicant could not reasonably have been aware of the relevant matter at the time of the original recording, or where the interests of justice otherwise require it.
- A prima facie false complaint of an indecent nature made to police by a complainant after the pre-recording of her evidence, where the falsity is supported by CCTV footage, can meet the threshold under s 103 of the Evidence Act 1995 (NSW) to overcome the credibility rule, particularly where the complaint shares a similar character with the allegation under trial.
- The District Court confirmed that s 294CB of the Criminal Procedure Act had no operative role in this application, consistent with guidance from the High Court in Cook v The King [2024] HCA 26 and the NSW Court of Criminal Appeal in WHS v R [2024] NSWCCA 242.
- Protecting child witnesses from the trauma of further evidence-giving remains a central legislative purpose, but it does not automatically defeat a leave application where the credibility evidence is sufficiently significant and the additional court time is likely to be brief.
- The postscript to the judgment illustrates the real-world significance of such applications: AMS's admission in cross-examination that she had knowingly fabricated the complaint against her friend's father led directly to the prosecution being discontinued entirely.
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1999 (NSW) s 294K
- Evidence Act 1995 (NSW) s 103
Cases
- Cook v The King [2024] HCA 26
- WHS v R [2024] NSWCCA 242