[2020] NSWCCA 150
KS v Veitch (No 2) (2012) 84 NSWLR 172
[2012] NSWCCA 266
NAR v PPC1 [2013] NSWCCA 25
(2013) 224 A Crim R 535
Rohan v R [2018] NSWCCA 89
M v R (1993) 67 A Crim R 549
R v Bernthaler NSWCCA (60394/1993
Unreported 17 December 1993)
R v Burton [2013] NSWCCA 335
Source
Original judgment source is linked above.
Catchwords
[2020] NSWCCA 150
KS v Veitch (No 2) (2012) 84 NSWLR 172[2012] NSWCCA 266
NAR v PPC1 [2013] NSWCCA 25(2013) 224 A Crim R 535
Rohan v R [2018] NSWCCA 89
M v R (1993) 67 A Crim R 549
R v Bernthaler NSWCCA (60394/1993Unreported 17 December 1993)
R v Burton [2013] NSWCCA 335
Judgment (2 paragraphs)
[1]
JUDGMENT
The accused, RT, is before the court with respect to 6 counts on indictment alleging sexual assaults committed by him with his sister when she was variously between the ages of 10 and 14 years some 30 to 34 years ago.
The indictment originally presented contained 7 counts. As a result of a recent and additional statement being taken from the complainant, the Director of Public Prosecutions has discontinued proceedings with respect to the original Count 1 and a fresh indictment containing the current 6 counts has been presented.
Prior to the commencement of the trial before a jury, the court has entertained two separate applications brought by the accused.
The first application, brought by Notice of Motion dated 19 March 2024, sought leave to issue a subpoena to a psychologist who had consulted with the complainant with respect to the allegations brought by her.
The proposed subpoena sought to obtain clinical notes and records relating to allegations raised by the complainant of historical sexual assaults against her committed by both her brother RT, and also by another brother who she nominated. The proposed subpoena also sought any records or clinical notes relating to what was described as "role-playing" during sessions with the psychologist in advance of the complainant confronting each of her brothers.
It would appear that such notes or records are likely, prima facie, to be "counselling communications" and, accordingly, "protected confidences" pursuant to the definitions in Division 2 of Part 5 of Chapter 6 of the Criminal Procedure Act 1986 (NSW).
However, Section 299B of that Act provides for a court to be able to consider whether a document or evidence is in fact a protected confidence. Section 299B (4) provides that the court may make any orders it thinks fit to facilitate its consideration of a document or evidence under the section.
Section 298 provides that protected confidences cannot be produced, or compelled to be produced, by subpoena or otherwise, except with the leave of the court. Similarly, evidence of a protected confidence cannot be adduced in evidence without the leave of the court.
Section 299D governs the granting of leave with respect to the issuing of a subpoena, the production of a document, or the adducing of evidence with respect to the leave of the court being required for each or any of those steps as protected by section 298.
Section 299D is in the following terms:
"299D Determining whether to grant leave
(1) The court cannot grant an application for leave under this Division unless the court is satisfied that:
(a) the document or evidence will, either by itself or having regard to other documents or evidence produced or adduced or to be produced or adduced by the party seeking to produce or adduce the document or evidence, have substantial probative value, and
(b) other documents or evidence concerning the matters to which the protected confidence relates are not available, and
(c) the public interest in preserving the confidentiality of protected confidences and protecting the principal protected confider from harm is substantially outweighed by the public interest in admitting into evidence information or the contents of a document of substantial probative value.
(2) Without limiting the matters that the court may take into account for the purposes of determining the public interest in preserving the confidentiality of protected confidences and protecting the principal protected confider from harm, the court must take into account the following:
(a) the need to encourage victims of sexual offences to seek counselling,
(b) that the effectiveness of counselling is likely to be dependent on the maintenance of the confidentiality of the counselling relationship,
(c) the public interest in ensuring that victims of sexual offences receive effective counselling,
(d) that the disclosure of the protected confidence is likely to damage or undermine the relationship between the counsellor and the counselled person,
(e) whether disclosure of the protected confidence is sought on the basis of a discriminatory belief or bias,
(f) that the adducing of the evidence is likely to infringe a reasonable expectation of privacy.
(3) For the purposes of determining an application for leave under this Division, the court may permit a confidential statement to be made to it by or on behalf of the principal protected confider by affidavit specifying the harm the confider is likely to suffer if the application for leave is granted.
(4) A court must not disclose or make available to a party (other than the principal protected confider) any confidential statement made to the court under this section by or on behalf of the principal protected confider.
(5) The court must state its reasons for granting or refusing to grant an application for leave under this Division.
(6) If there is a jury, the court is to hear and determine any application for leave under this Division in the absence of the jury."
The court received written submissions and heard oral submissions in support of the application for leave from Mr Wendler of counsel on behalf of the accused.
Written and oral submissions opposing the application were heard and received from Mr Hulme, solicitor acting for the protected confider (the complainant), and also from Ms Winbourne, the Solicitor-Advocate for the Crown.
In considering the application I have reviewed and given careful consideration to the decisions of the Court of Criminal Appeal in KS v Veitch (No 2) [2012] NSWCCA 266; NAR v PPC1 [2013] NSWCCA 25 and Rohan v R [2018] NSWCCA 89.
The judgment of Basten JA in Veitch (No 2) describes the restrictions in section 298 as having a "tripartite structure." His Honour was of the view that if leave had been given to issue a subpoena,"it would make little sense to impose a subsequent leave requirement on production in answer to the subpoena."
In Veitch (No 2), the circumstances before the court at first instance were that subpoenas had been issued irregularly, that is without leave, and as a consequence, the documents were in fact in the Court and, accordingly, able to be examined and considered by the trial judge, Norrish DCJ.
Basten JA was of the view that in such circumstances it was open to the trial Court to disregard the irregularity in the issue of the subpoena and to consider the contents of the documents in determining whether the respondent, the accused at first instance, should have access to them.
The difficulty, as I see it, with the approach to the question of leave being determined at the outset with respect to the granting of leave to issue a subpoena, is that absent some understanding of the actual nature and content of the documents which are sought, the court is asked to grant or refuse leave in the absence of any ability to consider the documents. It was only by virtue of the irregular issue of the subpoenas in the matter of Veitch that the documents were available for Judge Norrish to inspect and consider.
Basten JA referred to section 299B, and whether the court should have access to a document before deciding whether it should be made available to a party and that the Court should have relevant powers to "facilitate its consideration of" the document.
Beech-Jones J agreed with the reasons of Basten JA but made some additional comments relating to the practicalities of the operation of Part 5 Division 2.
His Honour, Beech-Jones J, noted the particular query as to how the Court could be satisfied that the document or evidence sought to be produced by the subpoena had substantial probative value and was otherwise not available to the accused, at a stage before the subpoena was issued. The inability of the Court to inspect the documents, to enable it to be appropriately satisfied that the criteria set out in s 299D(1) were established, was recognised by his Honour.
Beech-Jones J noted, as Basten JA had adverted to at [28] of his judgment, that the Court was empowered by s 299B(4) to make an order requiring the production of the documents to itself.
In Rohan v R, RA Hulme J referred to the consideration of making an order for the production of documents in order to facilitate consideration of the grant of leave. His Honour said at [59]:
"There is something odd about a notion that a court may compel a person or organisation to produce documents in order that the court may determine a question as to whether the person or organisation may be compelled to produce the documents. I consider it very doubtful that Parliament had such strained logic in mind in an enacting section 299B."
His Honour went on to make reference to the Second Reading speech and expressed his doubt that consideration of the documents themselves on a question of leave to issue a subpoena had ever been intended by Parliament. However, his Honour said that the Court had said that it could be done in Veitch (No 2) and that such observations had not been doubted in any subsequent judgment of the Court of Criminal Appeal. In such circumstance his Honour proceeded in acceptance of what had been said in Veitch (No 2).
Walton J, on the other hand, having regard to the judgments in Veitch (No 2), did not share the reservations expressed by RA Hulme J. His Honour was of the view that the provisions of s 299B facilitated a purpose behind a grant of leave and that there was no warrant to read down the provisions or the scope of s 299B(4). His Honour went further and said that he did not perceive a strained logic in the operation of the provision.
In such circumstances, I was of the view that one could not simply assume that the contents of the notes and records sought must be, in their totality, a protected confidence in the absence of a consideration of their contents.
Accordingly, the terms of an appropriate order were agreed by the various parties and on 5 April 2024 I ordered the identified psychologist to produce to the Court the notes and records relating to claims of historical sexual molestation by both brothers and also the notes and records with respect to episodes of role playing conducted with the psychologist.
Service of the order was facilitated by the legal representatives of the protected confider and on 10 April 2024 the material was forwarded electronically to the Court.
On 11 April 2024, access was provided to the documentation to the protected confider who asked that the matter not be dealt with by the court until such time as instructions had been obtained.
One of the considerations brought up by the application for leave to issue a subpoena was that the material sought to be produced related not only to the alleged sexual assaults by the accused, but also to alleged sexual assaults against the complainant by a different brother.
Accordingly, the notes fell into two categories: one with respect to counselling notes, as defined, with respect to the allegations against the accused RT, including notes regarding the role-playing with respect to a rehearsal of what the complainant was going to say to him; and a second category of notes with respect to counselling with respect to allegations with respect to the second brother, including an overlap with respect to role-playing or rehearsal of the complainant's intention to say things to him.
This clearly brought into consideration the restrictions contained in section 294CB of the Criminal Procedure Act, 1986 which is in the following terms:
"294CB ADMISSIBILITY OF EVIDENCE RELATING TO SEXUAL EXPERIENCE
(1) This section applies to proceedings in respect of a prescribed sexual offence.
(2) Evidence relating to the sexual reputation of the complainant is inadmissible.
(3) Evidence that discloses or implies--
(a) that the complainant has or may have had sexual experience or a lack of sexual experience, or
(b) has or may have taken part or not taken part in any sexual activity,
is inadmissible.
(4) Subsection (3) does not apply -
(a) if the evidence -
(i) is of the complainant's sexual experience or lack of sexual experience, or of sexual activity or lack of sexual activity taken part in by the complainant, at or about the time of the commission of the alleged prescribed sexual offence, and
(ii) is of events that are alleged to form part of a connected set of circumstances in which the alleged prescribed sexual offence was committed,
(b) if the evidence relates to a relationship that was existing or recent at the time of the commission of the alleged prescribed sexual offence, being a relationship between the accused person and the complainant,
(c) if -
(i) the accused person is alleged to have had sexual intercourse (within the meaning of Division 10 of Part 3 of the Crimes Act 1900 ) with the complainant, and the accused person does not concede the sexual intercourse so alleged, and
(ii) the evidence is relevant to whether the presence of semen, pregnancy, disease or injury is attributable to the sexual intercourse alleged to have been had by the accused person,
(d) if the evidence is relevant to -
(i) whether at the time of the commission of the alleged prescribed sexual offence there was present in the complainant a disease that, at any relevant time, was absent in the accused person, or
(ii) whether at any relevant time there was absent in the complainant a disease that, at the time of the commission of the alleged prescribed sexual offence, was present in the accused person,
(e) if the evidence is relevant to whether the allegation that the prescribed sexual offence was committed by the accused person was first made following a realisation or discovery of the presence of pregnancy or disease in the complainant (being a realisation or discovery that took place after the commission of the alleged prescribed sexual offence),
(f) if the evidence has been given by the complainant in cross-examination by or on behalf of the accused person, being evidence given in answer to a question that may, pursuant to subsection (6), be asked,
and if the probative value of the evidence outweighs any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission.
(5) A witness must not be asked -
(a) to give evidence that is inadmissible under subsection (2) or (3), or
(b) by or on behalf of the accused person, to give evidence that is or may be admissible under subsection (4) unless the court has previously decided that the evidence would, if given, be admissible.
(6) If the court is satisfied -
(a) that it has been disclosed or implied in the case for the prosecution against the accused person that the complainant has or may have, during a specified period or without reference to any period -
(i) had sexual experience, or a lack of sexual experience, of a general or specified nature, or
(ii) had taken part in, or not taken part in, sexual activity of a general or specified nature, and
(b) the accused person might be unfairly prejudiced if the complainant could not be cross-examined by or on behalf of the accused person in relation to the disclosure or implication,
the complainant may be so cross-examined, but only in relation to the experience or activity of the nature (if any) so specified during the period (if any) so specified.
(7) On the trial of a person, any question as to the admissibility of evidence under subsection (2) or (3) or the right to cross-examine under subsection (6) is to be decided by the court in the absence of the jury.
(8) If the court decides that evidence is admissible under subsection (4), the court must, before the evidence is given, record or cause to be recorded in writing the nature and scope of the evidence that is so admissible and the reasons for that decision."
On behalf of the accused, application has been made for relief from the prohibition against evidence relating to the sexual experience of the complainant. In particular, the defence seeks to introduce into evidence allegations raised by the complainant against the second brother and to cross-examine the complainant with respect to such allegations. In the defence case, this will raise issues both as to credibility and reliability, and also the possibility of misattribution.
In his written submissions, the accused relies on s 294CB(4)(a)(i) and (ii) which are set out above.
It is submitted that the alleged sexual activity or sexual experience of the complainant occurred at or about the time of the commission of the charges in the indictment and that they are events which form part of a connected set of circumstances in which the alleged offences on the indictment were committed.
It is further submitted by the accused that the probative value of the evidence, will, in the circumstances of the case, outweigh any distress, humiliation or embarrassment the complainant may suffer as a result of the introduction of this evidence.
The primary basis upon which the accused seeks to rely is the complainant's credibility as a reliable and honest historian. The indicated defence case is that the complainant is a fantasist and that the alleged sexual activity with both brothers was a figment of her imagination, first raised more than three decades after the alleged incidents.
It is proposed by the defence, subject to the prohibition being lifted, to call evidence from the other brother to establish that the claims made against him are untrue.
The accused also seeks to introduce evidence of complaint made to the complainant's mother in 2021 and evidence contained in a statement obtained from the complainant's mother with respect to conversations regarding the allegations with each of her sons.
The accused also seeks to introduce the contents of a monograph or essay written by the complainant entitled "Solid. A surreal fiction, based on a true story." The so-called monograph has been produced in the Brief of Evidence and is referred to in a number of statements which have been served by the Crown.
In the submission of the accused, the account contained in the monograph of the complainant being sexually molested by each of her brothers can be ascertained to be "at or about the time of" the charges in the indictment. Mr Wendler submits in his written submissions "so much appears to be so as the complainant describes in her monograph."
In the Crown's submissions opposing the application for the admission of evidence of the complainant's past alleged sexual experience and activity, the Crown notes that the only sexual activity described with the other brother is said to have occurred when he was below the age of puberty and likely before he had reached 10 years of age.
With respect to part of the defence submission regarding that brother never having been charged, the Crown indicates that the question of doli incapax would have been live in the event of charges having been preferred.
The Crown does accept that there is some lack of clarity in the timing of the complainant's earliest memories and that it is possible that some of the sexual activity engaged in with her pre-pubescent brother may have occurred at or about the time of early abuse by the accused which is relied upon by the Crown as context evidence as to which it is understood objection is taken by the defence.
However, the need for there to be a nexus between the evidence sought to be introduced and the "prescribed offence" requires that it be "at or about the time of the commission of the alleged proscribed offence". The first alleged prescribed offence on the indictment commences on 1 January 1990 at a time when the other brother was 13 turning 14, that is, past the commencement of the age of puberty and after the cessation of the behaviour alleged with him.
The Crown does, however, concede that to the extent that the application refers to the complainant's sexual experience as at the time of the prescribed offences, the temporal connection may be satisfied in that respect. However, the Crown submits that this consideration would intersect with questions of relevance and a need to consider the areas of cross-examination which are sought to be explored.
In the Crown's submissions, the question of whether or not the complainant was a virgin or a person of some sexual experience at the time of the alleged prescribed offences is not of any relevance.
To the extent that the accused seeks to cross-examine on particular sexual activities as opposed to her state of experience, the Crown submits that such activities must be demonstrated to have occurred at or about the time of the alleged prescribed offences on the indictment.
Separate sexual activity described by the complainant as having been engaged in at a young age with her then boyfriend does have a temporal connection with respect to the alleged prescribed offences. However, the necessity for relevance and being a connected set of circumstances will still require consideration.
The Crown made reference to R v Burton [2013] NSWCCA 335 where the first instance trial judge ruled that sexual interest by the complainant in a third party stranger, earlier on the same evening of the alleged offending by the accused was admissible. The Court of Criminal Appeal found that some temporal proximity alone was insufficient to found a connected set of circumstances for the purposes of rendering the evidence admissible.
At [80] Simpson J, Hulme JA and Barr J agreeing, said:
"The only connection between the events was the presence of the respondent, the complainant, and Mr McManus throughout the evening. There was no relevant connection between the complainant's asserted interest in the stranger and the circumstances in which the offence allegedly was committed by the respondent."
Other than the purely temporal connection, the judge at first instance had relied upon reasoning which the Court of Criminal Appeal criticised as relying upon an "unstated" and "patently false premise", namely that of "general sexual willingness" (at [70]). The Court of Criminal Appeal described the evidence as not capable of being relevant.
It is noted in passing that the issue in Burton was a question of consent. The fact that the complainant had exhibited sexual interest in another person was irrelevant to any question concerning her consent to sexual involvement with the accused.
In the present matter the question of consent does not arise at all. The question as to whether or not sexual interaction with a different brother, and whether or not such an allegation is true or false, provides a connected set of circumstances and hence relevance as to whether or not an incident of sexual interaction with the accused took place might be viewed as even more remote than the question in Burton. Such an observation flows into a consideration of the defence seeking to attack the credibility and reliability of the complainant as the primary issue supporting their application.
Properly understood, the defence case and the evidence which is sought to be introduced pursuant to s 294CB(4)(a)(i) and (ii) of the Criminal Procedure Act relating to the second brother, amounts to the introduction of allegations against another person which it is sought to prove are in fact false allegations.
As long ago as 1981, the NSW Parliament introduced substantial legislative restrictions with respect to permissible cross-examination and the introduction of evidence relating to the past sexual experience, or lack of experience, of complainants in cases of alleged sexual assault.
In a multiplicity of cases since that time, the courts have consistently ruled against the admissibility of evidence touching upon the falsity of past allegations which have, in effect, been sought to be introduced by accused in order to establish a propensity to make false allegations. Clearly, the intent in such cases was to seek to attack the credibility and reliability of the complainant.
I make reference to the following cases of relevance to a consideration of this issue.
R v White (1989) 18 NSWLR 332; 46 A Crim R 251 in which the complainant had discussed with the accused, shortly before they had sexual activity between themselves, the circumstances in which she had had sex with another man. Although logically conversation was material which could have been relevant to the issue of consent, given her preparedness to discuss such matters so openly with the accused, the court ,Gleeson CJ, Carruthers and Badgery-Parker JJ, held that the fact of the conversation was itself inadmissible under the relevant legislative provisions which were then contained in Section 409B of the Crimes Act 1900 (NSW).
In M v R (1993) 67 A Crim R 549 the appellant had sought to establish at trial that she was "a sexual fantasist" who was "all too willing to make allegations". At trial, defence counsel had sought to establish that during the period in which the offences charged were alleged to have occurred, T had claimed falsely that members of her own family, including her father, were also having sexual intercourse with her. It was sought to establish that these claims were untrue and completely baseless. Counsel for the accused at trial argued that what he proposed to elicit by his cross-examination, in conjunction with other evidence which would be called:
"…would involve no disclosure of sexual conduct by T, nor any suggestion as to what her sexual experience had been. The question in conjunction with the proposed ensuing evidence, would not be directed to her sexual experience. It would be directed only to establishing that in respect of sexual matters she was at the relevant time 'a fantasiser'. What the evidence would disclose or suggest was not her sexual experience, in fact, but the unreliability of any assertions made by her as to sexual conduct which involved her".
In M, the trial had proceeded before a judge alone. The trial judge had ruled that he would not have permitted any questions on the topic of previous fabrication if he had been sitting with a jury but in circumstances where he was conducting the trial as judge-alone, he permitted the questions to be put as going to credit only. The proposition was denied by T and the judge thereafter did not permit any further evidence on the issue.
On the appeal following conviction, Allen J held, following the decision in White, that suggestions made in cross-examination about sexual conduct with other members of her family, themselves fell within the prohibition in s 409B (3). His Honour noted that in White the Court had ruled that "the expression 'discloses or implies' does not mean ' proves' ."
Allen J ruled that "to suggest that T stated to other people that she had sexual relations with members of her family disclosed or implied that she had taken part or may have taken part in such sexual activity". His Honour said that he was not overlooking that what was prohibited was "evidence" and not a "question" but he ruled that the suggestion which was implicit in the question could not be put.
Allen J came to the view that a finding that she had fantasised about having had intercourse with members of her family would necessarily have established more than doubt as to her unreliability as a witness. His Honour held "it would have established that she had not had that particular experience" (at 554).
Accordingly, the prohibition in the legislation, which was directed not only to "sexual experience" but also to "lack of sexual experience" applied and the question of fabricated allegations clearly fell within the proscription.
Put shortly and simply, the effect of the legislation was this: if it was proved to be the fact that the complainant had made such an assertion, the fact of the assertion itself disclosed or implied sexual experience. If, conversely, the assertion could be established to be false, or to be a fabrication, or even to be a fantasy, then such evidence was prohibited because it would disclose or imply a lack of sexual experience.
Allen J went on to deal with the argument put forward on behalf of the appellant that such a restriction created a gross injustice in depriving an accused of a chance to prove the unreliability of a complainant in relation to sexual allegations. His Honour referred at length to the Second Reading Speech by the former Premier and by the then Attorney-General. His Honour expressed the view, at 557, that the "remarks in the speech of the Attorney are consonant with what was said by the Premier and, considered alone, might be thought to give support to the argument advanced for the appellant". His Honour, however, concluded that what Parliament intended was for there to be a blanket prohibition upon any evidence as to the sexual history of the complainant:
"…save as to specific and closely defined exceptions which the legislature considered necessary to give adequate protection to an accused against unfairness which otherwise might arise from the blanket prohibition. It was not to be a matter of there being any residual discretion left to the Courts to determine on the facts of any particular case whether justice required that there be some further exception to the blanket prohibition".
Allen J, at 558, further said:
"The legislature has endeavoured to foresee all the exceptions which justice requires and to provide specifically for them. It has excluded all others. It has taken the risk that experience will throw up circumstances, which it has failed to foresee and expressly provide for, in which denial of evidence disclosing or implying that the complainant has or may have had sexual experience or lack of sexual experience, or has or may have taken part or not taken part in any sexual activity, results in injustice to an accused at his trial. The wisdom of so Draconic (sic) a restriction upon judicial discretion and of so bold an assumption of perfect prescience may be questioned. The courts must apply, however, the law as enacted. If the present case has thrown up an instance of injustice or of possible injustice indicating the desirability of a further exception to the blanket prohibition the exception must be one enacted by Parliament. It is not for the courts to usurp its role."
His Honour, accordingly, concluded that not only had the evidence which went to prove falsity of the assertions made by T been properly excluded by the trial judge, but the questions on that topic which had been permitted in cross-examination of the complainant in the judge-alone trial ought not to have been allowed at all. The cross- examination itself was proscribed by Parliament and the questions should not have been permitted to be asked.
Subsequent criticisms of the injustice which might arise from the rigidity of the legislative prohibition in s 409B can be found in R v Bernthaler NSWCCA (60394/1993; Unreported 17 December 1993).
It is unnecessary to progress through the balance of the large number of additional cases in which further criticisms were made judicially of the legislation. Of significance however, in 1996 the Chief Justice of the High Court of Australia, Sir Gerard Brennan, in refusing special leave with respect to an argument relating to the provisions of s 409B of the Crimes Act 1900, made reference to the unfairness of the law enacted by Parliament.
His Honour expressed the view that it was the unanimous view of the Court that the provisions of s 409B "clearly warrant further consideration by the Legislature in the light of the experience of its operations".
The matter was then referred to the NSW Law Reform Commission following the High Court's criticism of the section. Recommendations for reform were subsequently made but ignored by the Government. More recently in Jackmain (a pseudonym) v R [2020] NSWCCA 150, a five-person bench was assembled specifically because it was intended to be argued that M v R had been wrongly decided.
It is sufficient for present purposes to note that the historical analysis by Leeming JA relevantly led to a conclusion that M v R should not be overturned. Leeming JA considered that it had been wrongly decided but it should clearly be recognised that none of the other judges, Bathurst CJ and Johnson, Button and Wilson JJ, agreed with Leeming JA on that point.
Subject to developments in this Court yesterday, the preceding remarks had essentially been written over the weekend and I favoured a preliminary view that despite the Crown's muted concession regarding a temporal connection, that it was not clear that the events alleged with respect to the other brother could properly be described as forming "part of a connected set of circumstances" in which the alleged prescribed sexual offence was committed.
The relevant development which has led to the Director discontinuing proceedings in relation to the first count in the original indictment is that in a fresh and fifth statement obtained from the complainant, the complainant gave some detail of the initial time that each of the brothers are alleged to have touched her on the vagina, and she described each of them in effect doing such things after what may be referred to as the 'Flying Fox incident'.
The significance of this description is that the so-called 'Flying Fox incident' was the first occasion on which she describes anything sexual happening with either of the boys, as they each were at the time.
She also made specific reference to the occasion described in paragraph 17 of her third statement in which she had described a particular instance of providing oral sex to her brother, the accused, following which she described going to a corner store and buying lollies with their pocket money.
In the recent statement obtained last Friday, 12 April 2024, she referred specifically to that paragraph and said:
"I know this happened, (RT) would give me money for lollies and we would go to the shops. I cannot be 100% sure if it was (RT) or (the other brother). I know it happened, I just cannot be sure it was (RT)".
In the light of that statement the Director has determined that the allegation which was in Count 1 of the original indictment, and which related specifically to the described incident, could not proceed.
In addition to the inability to now be certain as to which brother committed that particular act, and given the consideration that it is said to have occurred sometime during either 1990 or 1991, the Crown has conceded that it throws up a related question with respect to the other brother as I have consistently referred to him.
That circumstance is that the complainant had originally asserted that any sexual interaction between herself and the other brother had ceased before he attained puberty. In the event of a possibility that he, the other brother, may have been the perpetrator of the events described during the period 1990 to 1991, that would encompass a period of time when the other brother was between the ages of 13 and 15 years of age.
In addition to the more recent specific identification of a lack of ability to distinguish between the two brothers with respect to actions which were committed, a further perusal of the multiple statements by the complainant indicates that a recollection of one of the brothers blowing bubbles on her vagina in a swimming pool at their home and her in turn blowing bubbles on the boy's penis, was also a circumstance where she could not remember which brother this conduct was with.
In addition, she described an inability to recollect when she first had vaginal sex but said she was very young, and she was not sure which brother it was with.
Counts 2 and 3 in the original indictments, which are now Counts 1 and 2 in the fresh indictment, allege conduct towards the end of 1991. This was still within the period alleged in the original Count 1.
Having reviewed the evidence in light of the fresh statement obtained from the complainant, and having heard further submissions regarding section 294CB from both the Crown and Mr Wendler for the accused, I have come to a view that the complainant's sexual experience, or lack of sexual experience in the event of the assertions being false, with respect to the other brother, do satisfy the requirement that they are at or about the time of the commission of at least some of the alleged prescribed sexual offences in the indictment.
In light of the Crown's intention to adduce evidence of uncharged criminal acts between the accused and the complainant, which precede his attaining the age of 14, they relevantly are properly identified as prescribed sexual offences, notwithstanding their non-prosecution on the indictment.
In circumstances of the concurrence of the possibility of the identified circumstances having been committed by either RT or the other brother, I am satisfied that they relate to events which form part of a connected set of circumstances.
The significance of the possibility of misattribution was specifically referred to by the Court of Criminal Appeal in Valentine v R [2023] NSWCCA 43. The difficulty with the evidence in that particular case was that the possibility of conflating the identity of the perpetrator, while relevant because of the possibility of misattribution, did not come within the exceptions in 294CB(4) because the other sexual assaults which were described had occurred months apart from the offences alleged against the appellant.
Accordingly, they were neither "at or about the time", nor did they form "part of a connected set of circumstances" in which the alleged offending by the appellant had occurred.
I am ultimately of the view that the probative value of the evidence relating to the alleged sexual interaction between the complainant and her other brother outweighs any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission.
In reaching this view, I have taken into account the proposed tender of the so-called Monograph in which the complainant specifically alludes to sexual activity between herself and each of her brothers.
In such circumstances, evidence with respect to the commencement of sexual activity with each of her brothers, the similarity of the conduct alleged between them, the inability to identify which of the two brothers effected particular acts, and the duration of the alleged sexual activity between the complainant and each of the brothers are, in my view, legitimate matters upon which the complainant may be cross-examined and evidence introduced as, in my view, falling within the exceptions provided for in 294CB(4).
In light of the above determination, I have re-examined the counselling notes provided by the psychologist. Having read the detail of what are clearly counselling notes, I am not satisfied that they have substantial probative value in a consideration of the allegations in the indictment.
While I am satisfied that there are not other documents or evidence which are available concerning matters to which the protected confidence relates, I am comfortably satisfied that the public interest in preserving the confidentiality of protected confidences and protecting the Principal Protected Confider from harm is not outweighed and certainly not substantially outweighed by the public interest in admitting into evidence information or the contents of the documents which as I have already stated, do not have substantial probative value.
In the last consideration regarding balancing the public interest in protecting the Principal Protected Confider from harm, I have taken into account the confidential affidavit which was provided to the court from the complainant.
Accordingly, the application for leave to issue a subpoena is formally refused.
In light of the circumstance that the documents have been produced to the Court for the purpose of consideration, I should make clear that leave for the production of the documents to the parties would be refused on the various bases that I have already outlined.
[2]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 26 July 2024