Director of Public Prosecutions v Austin (No 3)

[2023] ACTSC 204

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Austin (No 3)

Citation: 

[2023] ACTSC 204

Hearing Date: 

21 July 2023

Decision Date: 

21 July 2023

Before:

Baker J

Decision: 

(1) I refuse the prosecution’s application under s 108(2) of the Evidence Act for leave to adduce Constable Boyd’s evidence of his conversation with the complainant on 7 December 2021.

Catchwords: 

CRIMINAL LAW – EVIDENCE – Sexual offence proceedings – credibility evidence – where prosecution sought to adduce evidence of prior consistent representations of the complainant - whether s 108 of the Evidence Act 2011 (ACT) enlivened – whether discretion should be exercised to admit evidence – leave to adduce evidence refused

Legislation Cited: 

Crimes Act 1900 (ACT) ss 54, 60

Evidence Act 2011 (ACT) ss 55, 108, 192

Cases Cited: 

Graham v The Queen [1998] HCA 61; 195 CLR 606

R v Ali [2000] NSWCCA 177

R v MDB [2005] NSWCCA 354

R v Cassar; R v Sleiman; R v Kalache (No 12) [1999] NSWSC 352

Sio v The Queen [2016] HCA 32; 259 CLR 47

Parties: 

Director of Public Prosecutions ( DPP)

Nathan James Austin ( Accused)

Representation: 

Counsel

M O’Connell ( DPP)

M Jones ( Accused)

Solicitors

ACT Director of Public Prosecutions

Kamy Saeedi Law ( Accused)

File Number:

SCC 237 of 2022

BAKER J:      

1․The accused, Nathan Austin, is charged with six counts of sexual intercourse without consent and one charge of an act of indecency without consent (Crimes Act 1900 (ACT) ss 54, 60). Each act is alleged to have occurred at the complainant’s room, in Australian National University student accommodation, on 26 November 2021.

2․The prosecution seeks to adduce evidence from Constable Boyd of a conversation that he had with the complainant concerning the allegations in City Police Station on 7 December 2021 (that is, the day before the complainant’s Evidence in Chief Interview (EICI) with police).

3․The prosecution contends that this evidence is admissible pursuant to s 108(2) of the Evidence Act 2011 (ACT), which permits the Court to grant leave to a party to adduce evidence of a prior consistent statement in circumstances where it is or will be suggested (either expressly or by implication) that evidence given by the witness has been fabricated or reconstructed (whether deliberately or otherwise), or is the result of a suggestion.

4․Ms Jones SC, who appears for the accused, objects to the admission of this evidence. At the outset of the argument on the objection, Ms Jones SC submitted that it was necessary for the prosecution to identify, with particularity, the precise prior consistent statements that are sought to be relied on. Ms Jones SC referred to the decision of the High Court in Sio v The Queen [2016] HCA 32; 259 CLR 47, as applying by analogy, in support of this proposition.

5․I agreed that it was appropriate for the prosecution to provide further particularisation of the representations which are sought to be adduced under s 108(2) of the Evidence Act. A generalised allegation of fabrication will in many cases be sufficient to enliven s 108(2) in respect of a prior consistent statement (see for example Graham v The Queen [1998] HCA 61; 195 CLR 606 at 609, and it will not always be necessary for a prosecutor to particularise prior consistent representations contained in a complainant’s statement with precision: Graham v the Queen at 609.

6․It will not always be necessary for a prosecutor to particularise prior consistent representations like contained in a complainant’s statement with precision. However, in the present case, there are various aspects of the complainant’s evidence that have not been challenged. For example, there is no dispute that the complainant and the accused were kissing at Mooseheads, nor that the complainant and the accused engaged in some sexual activity at the complainant’s apartment. In these circumstances, I considered that it was appropriate for the prosecution to particularise which of the complainant’s representations to Constable Boyd were sought to be adduced as prior consistent statements.

7․After a short adjournment, the prosecutor provided a helpful table, which indicated the precise representations sought to be adduced by the prosecution under s 108(2).

8․It appears that s 108(2) is enlivened in respect of at least some, if not all, of those representations. In particular, at least some of these representations appear to be prior consistent statements of the complainant. I also accept that it has been suggested, either expressly or impliedly, that at least some of these statements have been fabricated, reconstructed, or were otherwise the product of a suggestion.

9․However, s 108(2) of the Evidence Act provides that this evidence may only be admitted with the Court’s leave. In considering whether to grant leave, I must consider the factors set out in s 192 of the Evidence Act.

10․I accept that the evidence would not add unduly to the length of the hearing: s 192(a) of the Evidence Act In particular, I accept that the adducing of the evidence will not take any longer than this application has taken.

11․However, I consider that there is a possibility that some unfair prejudice may arise from admission of the evidence: s 192(b) of the Evidence Act. The prosecution accepts that the evidence, if adduced, should not be admitted as truth of the facts contained therein and that the jury would need to be directed that the evidence may only be used in respect of their consideration of the complainant’s credibility. In circumstances where the evidence of Constable Boyd concerns statements made by the complainant only the day before the EICI, the jury may have difficulty understanding why the complainant’s EICI is evidence of the truth, but her statement to Constable Boyd is not. There is a risk that this direction will cause confusion to the jury.

12․Importantly, however, I do not consider that the evidence is sufficiently probative of the prosecution’s case to justify the grant of leave.

13․The evidence sought to be adduced under s 108(2) is a note of an unrecorded conversation that Constable Boyd had with the complainant the day before the complainant participated in the EICI. Constable Boyd took extensive notes of that conversation.

14․An assessment of the probative value of evidence adduced under s 108 will require consideration of how it is said that the evidence is capable of answering or rebutting the allegation of fabrication, reconstruction or suggestion: Graham at 609 (“The exercise of the discretion under s 108 depends upon the effect of the evidence on the witness's credibility: here, the suggestion of fabrication”.) As Sperling J (with whom Priestley JA and Forster AJA agreed) said in R v Ali [2000] NSWCCA 177 at [46]:

Where it is or will be suggested that a witness has fabricated evidence (or that the evidence is reconstructed, or the result of suggestion), a consistent out-of-court statement made as part of the train of events leading to the trial for the offence may not be admissible because it adds nothing to what is said by the complainant in evidence at the trial. In such a case, the out-of-court statement does not rationally answer the suggestion of fabrication, reconstruction or suggestion in relation to the evidence given by the complainant in court. The out-of-court statement merely tells the same story in materially the same context as the evidence given in court. It does nothing for the complainant's credibility that the same story has been told out of court in such a case.

15․In the present case, the prosecutor submitted that the evidence of the complainant’s prior consistent statement is probative because what the complainant said to Constable Boyd is “strikingly similar” to what she reported in the EICI the next day. The prosecutor distinguished the complainant’s account to Constable Boyd from a general police statement, noting that Constable Boyd made notes of the complainant’s detailed account. The prosecutor submitted that this consistency in the complainant’s account bolsters her credibility.

16․In R v Cassar; R v Sleiman; R v Kalache (No 12) [1999] NSWSC 352, Sperling J suggested in obiter that “in the ordinary case” a police statement in criminal proceedings will “ordinarily be so devoid of value in answering a suggestion of fabrication as not to be arguably probative at all”.

17․Bearing in mind the low threshold in s 55 of the Evidence Act, I am prepared to accept that the evidence of the complainant’s prior consistent statements to Constable Boyd is relevant for the reasons outlined by the prosecutor.

18․However, I do not consider that they are capable of carrying any real weight for the purpose for which they are sought to be tendered, namely, to rebut an allegation of fabrication, reconstruction or suggestion.

19․This is not a case where the prior consistent statement was made some time before an official complaint, or where the statement was made to a particular person, or  in circumstances that have relevance in rebutting the claim of fabrication: cf R v MDB [2005] NSWCCA 354 at [24]. The fact that the complainant made similar statements to another police officer the day before her EICI does not “rationally answer the suggestion of fabrication, reconstruction or suggestion”.

20․In these circumstances, I refuse the prosecution’s application under s 108(2) of the Evidence Act for leave to adduce Constable Boyd’s evidence of his conversation with the complainant on 7 December 2021.

Orders

21․For the above reasons, the following orders are made:

(1)I refuse the prosecution’s application under s 108(2) of the Evidence Act 2011 (ACT) for leave to adduce Constable Boyd’s evidence of his conversation with the complainant on 7 December 2021.

I certify that the preceding twenty-one [21] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker

Associate: A Bucci

Date:  1 August 2023