Teshabaev v R

Court of Criminal Appeal (NSW)|2022-08-26|Before: Beech-Jones CJ, Adamson J, Bellew J, Mr P

The Application to the Trial Judge

The proceedings were apparently listed for trial on 1 August 2022. However, empanelment did not occur as various pre-trial issues had to be addressed. One of those issues was an application by the applicant to (further) cross‑examine AY. During that application, counsel indicated he wished to cross‑examine AY's teacher about the reference to her grandfather touching her "rude part". The trial judge indicated that there was a potential difficulty with the admission of that evidence under "s 293" (being a reference to the statutory predecessor to s 294CB of the Criminal Procedure Act). Her Honour pressed the applicant's counsel on the relevance of the evidence that AY (supposedly) accused her grandfather of touching her and then resiled from making that accusation. He responded: "That she's a little girl who might make an allegation quickly and pull back from it when she realises it's going nowhere and so she flies another kite".

The Trial Judge's Judgment

The following morning the trial judge gave reasons for rejecting the evidence and declining to grant a permanent stay.
In relation to s 294CB, the trial judge noted that, in HG v The Queen (1999) 197 CLR 414; [1999] HCA 2 ("HG"), it was held that the equivalent provision to current s 294CB(3) in former s 409B of the Crimes Act did not draw a distinction "between consensual and non-consensual sexual acts" including sexual acts concerning children. Her Honour also rejected a submission, supposedly derived from Jackmain, that the scope of s 294CB is governed by a purpose of "protect[ing] complainants from embarrassment, [and] to remove the discouragement … from complaining". Her Honour found "that the representation of [AY] that her grandfather … touche[d] her vagina is evidence of [AY] being engaged in sexual activity albeit non-consensual activity." Her Honour ruled that the evidence of that representation and the above parts of AY's interview on 9 December 2020 were inadmissible.
In relation to the application for a permanent stay, the trial judge noted the principles applicable to the grant of a stay including those enunciated in Jago v District Court of NSW (1989) 168 CLR 23; [1989] HCA 46 ("Jago"). Her Honour recorded her acceptance of the Crown's submission that this was "not an exceptional case that requires the extreme remedy of a permanent stay." Her Honour accepted that the excluded evidence related to a discrete previous representation by AY about her grandfather that she disavowed shortly afterwards. Her Honour noted that there would be other evidence contradicting the matters recorded by AY's teacher in the incident report. Her Honour did not accept that the redaction of the part referring to her grandfather touching her "rude part" would result in the remainder "unfairly represent[ing] the whole of what [AY] intended to state." Her Honour continued: "I do not agree that in the terms put forward by [counsel for the applicant] that it creates a large injustice for the [applicant] because it precludes a submission to the jury that maybe all this is about [AY] protecting herself originally from her grandfather. It is but one part of [AY's] representation, namely that she had at one time shared a bedroom with her grandfather. This is in circumstances where she was also complaining at the same time of physical and verbal abuse by her grandfather that will be led in the trial. It is anticipated that other evidence in the Crown case will contradict both the evidence that [AY] shared a bedroom with her grandfather and that she was a victim of verbal and physical abuse. The statement that her grandfather touched her rude part can be readily redacted such that a basis remains to put forward as an inconsistency in [AY's] evidence as against other evidence to be called in the trial. In my view, this is far removed from a case where the continuation of the proceedings would involve unacceptable injustice or unfairness and be so unfair and unjustifiably oppressive as to constitute an abuse of process. For these reasons, the application for a permanent stay is refused." (emphasis added)
The anticipated "other evidence" to which her Honour referred is evidence that AY's father is expected to give at the trial.

Legislative Provisions and Jackmain

Section 5F of the Criminal Appeal Act relevantly provides: "… (2) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in proceedings to which this section applies. (3) Any other party to proceedings to which this section applies may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in the proceedings - (a) if the Court of Criminal Appeal gives leave to appeal, or (b) if the judge or magistrate of the court of trial certifies that the judgment or order is a proper one for determination on appeal."
It is well established that an evidentiary ruling is not a "judgment or order" for the purposes of these provisions (Liristis v Director of Public Prosecutions (NSW) [2018] NSWCCA 196 at [15] (Basten JA, Macfarlan and Leeming JJA agreeing); Jackmain at [74] (Leeming JA, Bathurst CJ, Johnson, Button and Wilson JJ agreeing). To accommodate this, s 5F(3A) provides for a right of appeal by the Attorney-General or the Director of Public Prosecutions (the "DPP") "against any decision or ruling on the admissibility of evidence" although that is limited to only those decisions or rulings which eliminate or substantially weaken the prosecution's case.
Section 294CB of the Criminal Procedure Act relevantly provides: "(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 - … (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."
As noted, this is the statutory successor to former s 293 of the Criminal Procedure Act (which was the successor to s 409B of the Crimes Act). Section 294CB(4) provides for various exceptions to ss 294CB(1)-(3), none of which were relied on by the applicant.
Much judicial and extra-judicial ink has been spilt over the statutory predecessors. However, to determine this application, it is only necessary to refer to the recent judgment of a five-judge bench of this Court in Jackmain. Like this case, Jackmain involved an application for leave to appeal by an accused person against a determination by a trial judge that evidence was rendered inadmissible by s 293(3) (now s 294CB(3)) and a refusal to grant a permanent stay. Unlike this case, the accused in Jackmain contended that, if s 293 had the effect of excluding the relevant evidence, then it was invalid as it infringed an implied limitation on State legislative power (relying on Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; [1996] HCA 24).
In Jackmain, the accused sought to raise six grounds of appeal: the first three of which concerned the construction of s 293; the fourth of which concerned the decision to refuse a permanent stay; the fifth being the constitutional challenge just noted; and the sixth being a further challenge to the trial judge's evidentiary ruling (at [69]). Given the constitutional challenge, Leeming JA accepted that the first three grounds which concerned the construction of s 293 (and in turn affected the admission of the evidence) could be raised, as the proper construction of a statutory provision is an essential step in the process of determining its constitutional validity (at [70] citing Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532; [2008] HCA 4 at [11], with whom Bathurst CJ at [5] agreed). As Bathurst CJ observed (at [5]), "the constitutional challenge transforms the nature of the application from merely a ruling on evidence, even if the issue to be determined is, so far as the direct parties are concerned, only a stepping stone in an argument concerning the admissibility of evidence".
However, ground 6 of the proposed appeal in Jackmain was not a step in the constitutional challenge to s 293. It was nevertheless argued that this Court could consider this ground as part of its determination as to whether a permanent stay could be granted (at [75]). Rejecting that contention, Leeming JA concluded (at [79]): "… contrary to the applicant's submission, the re-exercise of discretion to order a stay takes place in light of that pre-trial ruling. It does not provide an avenue to set aside or disregard that ruling. That does not deny that the pre-trial ruling itself may be revisited by the primary judge, as Bathurst CJ noted in R v RD [2016] NSWCCA 84 at [66]. Indeed, that is confirmatory of such rulings being outside this court's appellate jurisdiction, a point noted by RA Hulme J in Turnbull v R [2016] NSWCCA 109 at [34]."
Each of Bathurst CJ, Johnson, Button and Wilson JJ (at [4], [231], [238] and [240] respectively) agreed with this conclusion.
So far as the proper construction of former s 293(3) of the Criminal Procedure Act was concerned, Jackmain confirmed the application of the following passage in M v R (1993) 67 A Crim R 549 ("M v R") at 554-555 (Allen J, Gleeson CJ and Meagher JA agreeing) concerning s 409(3) of the Crimes Act to its statutory successors: "A finding, however, that [the complainant] fantasised about having had intercourse with members of her family (that is, not to put too fine a point upon it, that she lied about having had that sexual experience) necessarily would have established more than doubt as to her unreliability as a witness. It would have established that she had not had that particular sexual experience. The proscription in subs (3) is directed not only to sexual experience but also to lack of sexual experience. It is directed not only to the having taken part in sexual activity but also to not having taken part in the activity. That being so were it permissible to consider the proposed evidence as a whole, that is to take a global approach to what it disclosed or implied, the evidence and proposed evidence in the present trial was subject, nevertheless, to the proscription provided by s 409B(3). It is unnecessary for the Court to consider, for the purposes of this appeal, the extent to which the word 'evidence' in the subsection admits, if at all, of a global approach. The proscription contained in the opening words of s 409B(3) is directed to what the evidence, if admitted, would disclose or imply. The proscription is not directed to whether it is any part of the forensic purpose sought to be served by the party adducing the evidence to establish that the complainant did, or did not, have the sexual experience or participate in the sexual activity referred to. A nice illustration of the distinction between what is disclosed or implied on the one hand and the forensic purpose sought to be achieved on the other arose in White … It is not to the point that what was sought to be established for him at the trial was that T had lied about her sexual experience with members of her family. The evidence, if elicited, would have disclosed or implied that in fact she had not participated in the sexual activity the subject of the lies. The fact of non-participation would have been material. It fell within the proscription." (emphasis added)
Although in Jackmain Leeming JA doubted the correctness of this approach (at [153]-[154] and [156]), his Honour held that M v R should continue to be applied to the statutory successors to s 409B (at [178]). Chief Justice Bathurst did not express those doubts but otherwise affirmed the ongoing application of the above passage (at [12]) and reiterated the effect of the emphasised part of the above extract when his Honour stated (at [22]): "It does not seem to me to the point that the purpose of leading the evidence was to establish that the complainant was a person who made false complaints of sexual assault, as the section rather looks to what the evidence is taken to disclose or imply, not the reason it was led."
Both Johnson and Button JJ (at [232] and [239] respectively) agreed with Bathurst CJ on this issue. Justice Wilson (at [240]) also agreed and disclaimed any doubts about the correctness of M v R (at [242] to [248]).
Lastly Jackmain confirmed that, even though s 294CB might operate to preclude the admission of certain evidence, the courts retained the power to permanently stay proceedings if the application of the provision in the particular circumstances of a particular case warranted it (at [202] to [206] per Leeming JA applying KS v Veitch (No 2) (2012) 84 NSWLR 172; [2012] NSWCCA 266 at [38] per Basten JA).

Ground 1: Section 294CB

Ground 1 of the application contends that the trial judge erred in concluding that the evidence identified above was inadmissible under s 294CB of the Criminal Procedure Act. To that end, the applicant seeks an order that the evidence "be permitted to be adduced".
The submissions of the applicant in support of this ground contend that the decision in HG was "not relevant to the argument that the accused was making to her Honour". I have difficulty in accepting that contention in light of the submissions made to the trial judge and set out above (at [15]). The applicant clearly submitted to the trial judge that, because of AY's age, she could not be said to have had a "sexual experience" or to have taken part in "sexual activity". That contention was expressly rejected in HG (at 425, per Gleeson CJ).
The balance of the applicant's submissions on the substance of this ground repeated the contention that, unlike in other cases where the evidence was held to be inadmissible under s 294CB(3), in this case it was not contended that AY was lying about being sexually assaulted by her grandfather but instead the applicant was only seeking to rely on the inconsistency between her alleged statement to her teacher and what she told the police as a matter affecting her credit. It was submitted that, as it was not proposed to cross‑examine AY about this material but only tender it and ask other witnesses questions to prove the provenance of this material, it would not infringe what was described by Bathurst CJ in Jackmain (at [23]) as the purpose of the statutory prohibitions in s 294CB, namely, "to prevent embarrassing and humiliating cross-examination about past sexual activities which it was believed was a deterrent in reporting sexual offences."
In oral submissions, counsel for the applicant, Mr Skinner, sought to confine M v R, Jackmain and all the cases that have considered s 294CB(3) and its predecessors to their "facts" such that they should not be construed or applied as preventing the evidence sought to be adduced in this case for the reason noted above (at [12]).
Amongst its many points in response, the Crown submitted that this contention overlooks that M v R and Jackmain clearly held that the purpose of the adducing of the relevant evidence is irrelevant to the application of s 294CB(3). The provision renders evidence that "discloses or implies" the matters stated in ss 294CB(3)(a) or (b) inadmissible regardless of the purpose of its tender.
Further, relying on the above passages from Jackmain, the Crown contended that this Court had no jurisdiction to entertain this ground. The applicant's response to that contention was to rely on that part of Jackmain that considered those arguments which concerned the proper construction of s 293 of the Criminal Procedure Act in the course of determining the constitutional validity of the provision, and somehow sought to extend that reasoning to his appeal against the refusal of a stay. Hence, the applicant's written submissions contended: "The Court in Jackmain then entertained argument upon the refusal of the trial judge in that case to order a permanent stay. Inevitably that included argument concerned [with] the admissibility of evidence and the effect of his Honour's ruling in that case that the relevant evidence was inadmissible because of s 293. It is the same position in this case." This contention was repeated in oral submissions.
As explained above, in considering the refusal of the trial judge to grant a stay in Jackmain the Court did not revisit the trial judge's ruling on the admissibility of the evidence that was the subject of ground 6 of the appeal. Instead, that ruling was accepted as the basis for the stay application and the Court held that it had no jurisdiction to deal with ground 6. This ground is no different to ground 6 considered in Jackmain. It follows that the Court has no jurisdiction to determine it.
Every aspect of the applicant's contentions in respect of this ground, including that the Court has jurisdiction to hear it, is untenable. I would refuse leave to raise it.

Ground 2: Refusal of a Permanent Stay

Ground 2 of the application contends that the trial judge erred in refusing to grant a permanent stay.
The trial judge's reasons for refusing a permanent stay are summarised above. As noted, her Honour referred to the well-known passage from the judgment of Mason CJ in Jago at 30 to 34 to the effect that the continuation of the prosecution must be inconsistent with the recognised purposes of criminal justice and so constitute an abuse of the process of the court, and that "[t]o justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial 'of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences'" (at 34).
The grant of a permanent stay is a discretionary remedy (Jago at 31). A successful appeal from a refusal of a permanent stay requires the demonstration of House error (R v RD [2016] NSWCCA 84 at [58] (Bathurst CJ, Johnson J and R S Hulme AJ agreeing). The applicant's submissions in support of this ground do not identify any such error. Instead, they contend that, by pointing to other material available to the applicant in the incident report which might form a basis for attacking AY's credit, the trial judge "substantially undervalue[d] the strong probative weight of the evidence the subject of her [Honour's] ruling, and to overvalue the probative weight of these other matters". The submission continued: "This other material includes evidence going to the truth or not of whether [AY] shared a bedroom with the grandfather as at the time of her complaint, one year after the alleged offences; and whether or not her grandfather had physically and verbally abused her in the year after the alleged offences; and as to whether or not she had complained about that abuse to her father. For [AY's] evidence on these topics to be proved as false requires the jury to accept the evidence of [AY's] father as against her. They may well … not do."
A contention that the trial judge attached too much or too little weight to a matter does not raise a complaint of House error. In any event, these submissions do not come close to demonstrating any form of error on the part of the trial judge. The essence of the submission is that the trial judge's ruling precluded AY's credit from being attacked by simply tendering the incident report and then tendering that part of the ERISP where she denied being touched by her grandfather, whereas proving the falsity of the balance of the matters in the incident report is apparently dependent on AY's father's evidence. The principal difficulty with that contention is that, even if the evidence the subject of this application were admitted, either or both of AY and her teacher may not accept that AY said what is recorded in the incident report about her grandfather touching her. In other words, the capacity of all the material in the incident report to affect AY's credit is at least to some degree dependent on the oral testimony of the various witnesses. In any event, the potential that proof of the falsity of the balance of the statements in the incident report might come unstuck because the evidence of AY's father might not be as anticipated, or his evidence might not be accepted, does not undermine the trial judge's reasoning. The trial judge's assessment of the significance to the trial of the excluded evidence was not shown to be in error. Otherwise, bearing in mind that the excluded evidence did not directly concern the applicant, its exclusion did not come even close to justifying such a drastic measure as ordering a permanent stay.
I would refuse leave to raise ground 2.

Orders

Given that these reasons are being published at a time that is likely to be close to the commencement of the trial, they will not be published on Caselaw. To facilitate their being published more widely when the trial concludes, the Court also orders that the DPP advise the Court when the proceedings at first instance are complete. Before doing so, the DPP should confer with the applicant's legal representatives about what matters, if any, in this judgment might need to be anonymised and advise accordingly.
ADAMSON J: I agree with Beech-Jones CJ at CL.
BELLEW J: I agree with Beech-Jones CJ at CL.

Amendments 15 November 2023 - Publication restriction removed - judgment republished References to complainant replaced by "AY" 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: 15 November 2023

HEADNOTE [This headnote is not to be read as part of the judgment] The Applicant sought leave to appeal pursuant to s 5F(3) of the Criminal Appeal Act 1912 from a ruling of the District Court excluding evidence and refusing to grant a permanent stay. He is due to stand trial on an indictment that charges him with three offences of exposing a child under the age of 14 years to indecent material with the intention of making it easier to procure the child for unlawful sexual activity, and 12 offences of having sexual intercourse with a child under the age of 10 years. In December 2020, AY spoke to her schoolteacher and reported the Applicant's conduct. AY's schoolteacher prepared an 'incident report' detailing AY's disclosures. The incident report also indicated that AY's grandfather would subject AY to physical and verbal abuse and touched her "rude part". AY was interviewed by police that same day and disclaimed the suggestion her grandfather sexually touched her. The Applicant was arrested and denied the charges against him. The trial judge ruled that the reference to the touching of AY's "rude part" in the incident report, and her denial of that in her interview with the police, are inadmissible by reason of s 294CB(3) of the Criminal Procedure Act 1986 (NSW). The trial judge also declined to grant a permanent stay of the proceedings on the basis that the exclusion of that evidence rendered the trial unfair. In refusing the stay, the trial judge referred to the scope to disprove the other allegations that AY made against her grandfather as recorded in the incident report. The Applicant sought to challenge both rulings. The Crown contended that the Court had no jurisdiction to review the trial judge's evidentiary ruling. The principal issues arising on the application included: (i) Whether the Court had jurisdiction to review the trial judge's ruling that the evidence was inadmissible by reason of s 294CB(3) of the Criminal Procedure Act? (ii) Whether the trial judge erred in refusing to grant a permanent stay? The Court held, refusing leave to appeal: As to issue (i) (per Beech-Jones CJ at CL, Adamson and Bellew JJ agreeing):

An evidentiary ruling is not a "judgment or order" for the purposes of s 5F of the Criminal Appeal Act 1912. The Court does not have jurisdiction to revisit the trial judge's ruling on the admissibility of evidence as part of its determination as to whether or not a permanent stay should be granted (at [22]-23], [28], [40], [48] and [49]). Jackmain (a pseudonym) v R (2020) 102 NSWLR 847; [2020] NSWCCA 150 ("Jackmain") applied; As to issue (ii) (per Beech-Jones CJ at CL, Adamson and Bellew JJ agreeing):
A permanent stay of proceedings is a discretionary remedy which can only be granted in circumstances where there is a fundamental defect in the trial and nothing a trial judge can do can relieve against its unfair consequences (at [43], [48] and [49]). Jago v District Court of NSW (1989) 168 CLR 23; [1989] HCA 46 considered. 3 House v The King (1936) 55 CLR 499; [1936] HCA 40 ("House") error must be established in order to grant an appeal from a refusal of a permanent stay in proceedings. A complaint that the trial judge "undervalue[d]" the weight of probative evidence or "overvalu[ed]" the probative weight of other material did not raise a complaint of House error (at [44]-[45], [48] and [49]). House; R v RD [2016] NSWCCA 84 applied.

JUDGMENT

BEECH-JONES CJ at CL: This is an application for leave to appeal pursuant to s 5F(3) of the Criminal Appeal Act 1912 (NSW).
The applicant, Kodirjon Teshabaev, is due to stand trial in the District Court on an indictment that charges him with three offences of exposing a child under the age of 14 years to indecent material with the intention of making it easier to procure the child for unlawful sexual activity contrary to s 66EB(3) of the Crimes Act 1900 (NSW), and 12 offences of having sexual intercourse with a child under the age of 10 years contrary to s 66A(1) of the Crimes Act. The alleged victim of all 15 charges is the same young girl, AY. AY was 8 or 9 years of age at the time of the alleged offences.
The application arises out of a judgment given by the trial judge, Harris DCJ, on 3 August 2022. Her Honour ruled that certain evidence which the applicant seeks to have admitted at his trial is inadmissible by reason of s 294CB of the Criminal Procedure Act 1986 (NSW) and declined to grant a permanent stay of the proceedings on the basis that the exclusion of that evidence rendered the trial unfair. By his grounds of appeal the applicant contended that both of these matters were wrongly decided
The application was listed at short notice before this Court on 26 August 2022. At the conclusion of argument, the Court made the following orders: 1. Leave to appeal be refused; 2. Within one week of the completion of the proceedings at first instance, the Respondent is to notify the Chambers of Beech-Jones CJ at CL accordingly.
My reasons for joining in these orders are as follows. In summary, I consider that this Court has no jurisdiction to review the trial judge's evidentiary ruling and no error of the kind stated in House v The King (1936) 55 CLR 499; [1936] HCA 40 ("House") was demonstrated in relation to her Honour's refusal of a permanent stay.

(2020) 102 NSWLR 847

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