Director of Public Prosecutions v Howarth

[2023] ACTSC 351

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Howarth

Citation: 

[2023] ACTSC 351

Hearing Date: 

17 November 2023

Decision Date: 

24 November 2023

Before:

McWilliam J

Decision: 

(1) Pursuant to s 51(3)(b) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) the Evidence-in-Chief interviews of the persons referred to in the application filed by the accused on 20 September 2023 are to be edited in accordance with the table set out as Annexure A to the Respondent’s submissions, save as to delete any reference to editing or redacting the “Q/A204 remainder” and “Q/A205”.

Catchwords: 

CRIMINAL LAW – EVIDENCE – Admissibility of evidence of subsequent conduct of complainant – whether evidence relevant solely to credit – whether evidence ought be excluded because it is otherwise unfairly prejudicial – evidence admitted

Legislation Cited: 

Crimes Act 1900 (ACT) s 54(1)

Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 51(3)

Evidence Act 2011 (ACT) ss 101A, 102, 126A, 137, 164

Cases Cited: 

Flora v The Queen [2013] VSCA 192; 233 A Crim R 320

Gilmour v Environment Protection Authority; Tableland Topdressing v Environment Protection Authority [2002] NSWCCA 399; 55 NSWLR 593

IMM v The Queen [2016] HCA 14; 257 CLR 300

Marshall v The King [2023] ACTCA 11

Nicholls v The Queen [2005] HCA 1; 219 CLR 196

Okwechime v The Queen [2023] ACTCA 25

R v Cook [2004] NSWCCA 52

R v Finau [2020] ACTSC 155

R v Hillier [2007] HCA 13; 228 CLR 618

R v Myers (No 2) [2022] ACTSC 194

R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228

Parties: 

Director of Public Prosecutions

Steven Howarth ( Accused)

Representation: 

Counsel

L Etheredge ( Prosecution)

E Chen (Accused)

Solicitors

ACT Director of Public Prosecutions

Legal Aid ACT ( Accused)

File Number:

SCC 167 of 2023

McWILLIAM J:          

1․The accused in this case has pleaded not guilty to a single charge of sexual intercourse without consent contrary to s 54(1) of the Crimes Act 1900 (ACT). The date of the alleged offence was New Year’s Eve 2022. The complainant has given an evidence-in-chief interview (EICI) with police on 15 March 2023, which will be admitted at the trial.  This interlocutory application concerns whether particular questions and answers contained in that interview may be admitted.

The Application

2․The applicant is the accused. He seeks orders pursuant to s 51(3)(b) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) that five evidence-in-chief interviews (from five different witnesses, including that of the complainant) be edited. Section 51 provides that the audiovisual recording of a witness in a relevant proceeding must not be edited or changed unless the court hearing the relevant proceeding in which the recording is tendered “otherwise orders”.

3․The parties have agreed on a number of proposed edits in relation to the various interviews, for which permission to edit is sought by consent.  Orders dealing with those agreed edits will be made.  Two questions and answers remain contested and require adjudication.  They are contained in the complainant’s EICI.  They are as follows:

Q204.         Okay.  How do you feel about everything now?

AAh, pretty crappy. [ portion redacted by consent] Really affected me.  Um, I try every day to try and forget what’s happened.  There’s days that I just don’t go to work because I just can’t deal with it.  I feel, like, really vulnerable.  For the first couple of weeks I could hardly sleep.  Um, it has really taken a toll on my mental health.  Like, it even got to the point where I wasn’t even seeing my children because I just couldn’t deal with life.

Q205.         Have you spoken to anyone about that?

A              I have spoken to a counsellor.

4․This invites consideration of the application of the Evidence Act 2011 (ACT) (Evidence Act). In particular, ss 102 and 137 of the Evidence Act are said by the accused to apply.  The complainant is on the list of witnesses to be called by the prosecution.  The identity of the counsellor referred to in the above answer is unknown and they are not to be called as a witness.

Issues

5․The first issue is whether the evidence is admissible and involves an assessment of whether the evidence is relevant solely to credibility. If it is, it is inadmissible under s 102 of the Evidence Act.  The Prosecution argues the evidence is admissible for another purpose other than credibility, being relevant to a fact in issue (that fact being whether there was consent to the sexual intercourse). 

6․If the Court accepts the evidence is admissible, the second issue is whether it must be excluded because its probative value is outweighed by the danger of unfair prejudice to the defendant, pursuant to s 137 of the Evidence Act.

Is the evidence relevant to a fact in issue?

7․The primary fact in issue in the trial will be whether the complainant consented to the sexual intercourse alleged in the Case Statement.

8․The Case Statement summarises the complainant’s version of the conduct that is the subject of the charge.  On the complainant’s version, the sexual intercourse was non-consensual.  The accused provided a record of interview, and his version is also summarised in the Case Statement.  On the accused’s version, it was consensual.

9․The applicant submitted that the evidence was “credibility evidence” as defined in s 101A of the Evidence Act in that it was:

(a)Evidence that is relevant only because it affects the assessment of the credibility of the witness; or

(b)Evidence that is relevant because it affects the assessment of the credibility of the witness; and for some other purpose for which it is not admissible, or cannot be used, because of a provision of Parts 3.2 to 3.6 of the Evidence Act.

10․The accused submitted that the only way in which the complainant’s answers can be relevant to the determination of the fact in issue (whether there was consent) is if the evidence of the complainant’s subsequent demeanour, feelings and conduct bolstered the complainant’s credibility.

11․The accused therefore argued that the evidence was “credibility evidence” about the complainant and therefore not admissible, relying on s 102 of the Evidence Act.

12․The Prosecution accepted that the evidence was relevant to the complainant’s credibility but said that the answers were also relevant to the primary fact in issue. 

13․The Prosecution relied on Nicholls v The Queen [2005] HCA 1; 219 CLR 196 at [43] (emphasis added, citations omitted):

The second test for determining whether a matter is collateral is whether it is relevant only to a witness's credit in contrast to matters relevant to the facts in issue that can be rebutted by calling evidence. The problem with this test is that it is often difficult to maintain the distinction between credit and issue. It is also often difficult to maintain the distinction between evidence that affects only the credit of a witness and evidence that is relevant to a fact in issue. The credibility of a witness is inevitably indirectly relevant to establishing facts in issue. Sometimes, the credibility of a witness is decisive of the facts in issue. It is a matter of degree, both in relation to relevance and to whether a fact is collateral. Whether a fact bears on the credit of a witness depends not only upon what the witness represents to the court, but also upon the nature of the party's case.

14․It was further submitted that the evidence may be described as distress evidence, within the category of ‘post-offence conduct’, which is a form of circumstantial evidence.  The Prosecution relied on Flora v The Queen [2013] VSCA 192; 233 A Crim R 320 (Flora), where it was stated at [72]:

Once distress evidence is seen as a type of circumstantial evidence, which it plainly is, and it is also seen that it can be described as “post-offence conduct” (albeit on the part of the victim), then it should, logically, be subject to the same rules that govern “post-offence conduct” of the accused.

15․In Flora, the Court of Appeal in the Supreme Court of Victoria referred at [79] to R v Hillier [2007] HCA 13; 228 CLR 618, a case dealing with an appeal from this Court. The majority there discussed the approach to be taken with regard to circumstantial evidence, stating at [48]:

Often enough, in a circumstantial case, there will be evidence of matters which, looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused.  But neither at trial, nor on appeal, is a circumstantial case to be considered piecemeal. …

16․In the same paragraph, the majority repeated the point (drawing on other authorities) that the jury should consider the accumulation of the evidence. 

17․This was what the Victorian Court of Appeal then applied in Flora, stating at [80]:

The jury should not reject one piece of circumstantial evidence because, considered alone, no inference of guilt can be drawn from it. A chain of circumstances may in combination implicate the accused, notwithstanding that any one link in the chain would not.

18․The Victorian Court of Appeal found at [89]:

In our view, the jury were entitled to use their experience, and their common sense, in evaluating this evidence. …

19․Here, the Prosecution argued that the evidence of the complainant’s distress (post offence conduct) should be considered by the jury in the same way, against the totality of the evidence, to assess whether the sexual intercourse was consensual or not.  If the jury is satisfied there is a causal connection between the incident on New Year’s Eve and the complainant’s subsequent sleeping difficulties, work absences, seeing a counsellor and feeling vulnerable, then the jury is able to use that with the other evidence adduced in the trial to determine the fact in issue of whether the incident was consensual or not.

20․The Prosecution drew attention to cases in this jurisdiction where the conduct of the complainant in the days and weeks following the incident was taken into account as relevant to the assessment of the guilt of the accused in a sexual assault case.  They include R v Finau [2020] ACTSC 155 at [118]-[119], and Okwechime v The Queen [2023] ACTCA 25 at [150].

21․The Prosecution’s characterisation of the evidence is correct.  The evidence relates to the complainant’s conduct or mental state during the two and a half months between the date of the incident and the date of the EICI.  If accepted, the evidence does affect the likelihood of whether the complainant is telling the truth, “bolstering her credibility”, as the applicant submitted.  However, the evidence is also relevant as circumstantial evidence of whether what occurred was consensual.  The fact that the evidence is circumstantial rather than direct does not make it relevant only to credibility.  It will be a matter for a jury whether or not the complainant’s asserted emotional state in the weeks following the incident was related to the incident in the way she says it happened.

22․The evidence is otherwise admissible for the purpose of proving the fact in issue, because the complainant is being called to give evidence and the evidence is within a time period when it may be said that the events were “fresh in the memory” of the complainant (being matters that must be satisfied in order for the exception to the hearsay rule to apply: s 66 of the Evidence Act).

23․That means the evidence is not “credibility evidence” subject to the operation of s 102.

24․In relation to the answer to question 205 of the EICI and its answer, that evidence is separately admissible as evidence of complaint.

Must the evidence be excluded under s 137 of the Evidence Act?

25․The starting point is that this evidence is relevant and probative for the reasons given above. However, the Court must refuse to admit evidence presented by the Prosecution in a criminal proceeding if its probative value is outweighed by the danger of unfair prejudice to the defendant: s 137 of the Evidence Act.

26․In considering this issue, I have applied the following principles:

(a)The onus is on the accused to demonstrate that the danger of unfair prejudice outweighs its probative value: Gilmour v Environment Protection Authority; Tableland Topdressing v Environment Protection Authority [2002] NSWCCA 399; 55 NSWLR 593 at [46].

(b)The assessment of the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue requires the possible use to which the evidence might be put to be taken at its highest: IMM v The Queen [2016] HCA 14; 257 CLR 300at [44].

(c)Regard is had to whether any warnings or discretions may be given to remove or reduce the danger of unfair prejudice: R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228 at [72].

27․The concept of unfair prejudice was discussed recently in Marshall v The King [2023] ACTCA 11 at [53]:

…It is important to recall the nature of s 137, it is premised on there being an unfair prejudice. The prejudicial effect referred to in s 137 is the danger that a jury might make improper use of the evidence. That is, it would: be misused by the jury in some way; be given more weight than it deserved; divert the jury from its task; be evaluated by the jury through the application of some illegitimate form of reasoning; or be used in a way which is irrational or illogical: Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297at [98]; Lodhi v The Queen [2007] NSWCCA 360; (2007) 179 A Crim R 470 at [140]; Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593 at [51]; R v Suteski [2002] NSWCCA 509; (2002) 56 NSWLR 182 at [116]; Baker v The Queen [2020] ACTCA 55 at [43].

28․The accused submitted that there was unfair prejudice in three ways:

(a)The accused does not have a realistic capacity to challenge the complainant’s claims. 

(b)Admission of the evidence places the accused in an awkward forensic position.

(c)The evidence would appeal to the jury’s sympathy and provoke an instinct to punish.

29․In relation to the first of those matters, the complainant will be called to give evidence and she can be cross-examined. There is no unfair prejudice arising merely because the evidence is of a kind that is within the knowledge of one person (such as her mental state and feelings). It is not necessary that evidence on which a party relies be corroborated: s 164 of the Evidence Act.  The fact that it is difficult for the accused to gainsay the evidence does not make it unfairly prejudicial.

30․Further, as submitted by the Prosecution, there is some scope to challenge the complainant’s claims.  If the defence wishes to obtain employment attendance records, they may be obtained on subpoena or on request to the Prosecution.  Similarly, if the accused wishes to obtain an attendance record of counselling visits, he may do so.  Such a record would not be a counselling communication and therefore not a protected confidence within the definition contained in s 126A of the Evidence Act.  There is not yet any forensic disadvantage to the defence altering the complexion of admitting the evidence: R v Myers (No 2) [2022] ACTSC 194 at [17].

31․The accused’s submission that adducing evidence of the complainant’s employment history may elongate the trial and be apt to distract the jury is unfounded. Such a concern is premature as no steps have been taken by way of that avenue of inquiry. Any danger or risk is purely hypothetical. But in any event, as submitted by the Prosecution, such matters are irrelevant to the evaluative consideration under s 137.

32․In relation to the second submission, the accused relied upon R v Cook [2004] NSWCCA 52 (Cook), where the admission of evidence of the appellant fleeing police when they approached him was held to have put the appellant in a forensically awkward position. Simpson J explained at [32] (Ipp JA and Adams J agreeing) that the explanation for the appellant’s flight would have revealed the existence of the appellant as someone who had a criminal record and had previously breached an apprehended violence order. It would also have exposed the appellant as a person with a history of violence against women. The Court held (at [37], [48]) that the evidence put the appellant in an awkward position. If he said nothing about the evidence, the jury may be left to draw an inference that he fled because of a consciousness of guilt. If he explained his conduct, this would reveal prior criminality of a related kind.

33․In the present case, the accused says that he is in a forensically awkward position because he either allows the evidence to be led unchallenged or will be required to cross-examine the complainant about her mental health history and the complainant’s relationship with her children, including cross-examination of those children.  In doing so, that might create a further sense of pity for the complainant.

34․The Prosecution submitted that the evidence in this case was very different from what was being considered in Cook and I agree with that submission. Evidence does not become “unfair” in a s 137 sense merely because the accused has to make forensic choices about whether to cross-examine a complainant or other witnesses, such as her children. The case in Cook involved an explanation by the accused himself in order to answer the evidence of flight, and such explanation was itself prejudicial to him. 

35․Here, there are a variety of ways in which to cross-examine or challenge the evidence.  It is not inevitable that the children will need to be cross-examined about the evidence. 

36․Further, the submission that cross-examination about the complainant’s mental health may lead to a sense of pity for the complainant is answered by the availability of directions.  An appropriate direction about how the evidence is to be used may be given, such as a modified distress direction.  Moreover, the standard direction given to juries to act impartially, dispassionately and fearlessly, and not to let sympathy or emotion sway their judgment would also remove or ameliorate the danger. 

37․The same may be said in respect of the third concern about the evidence appealing to the jury’s sympathy.  First, the jury will already have the evidence of the complainant’s distress and her complaint immediately after the incident.  The disputed evidence is in the same category.  Second, the Court proceeds on the basis that a jury will follow the standard directions given and those directions include a direction that squarely addresses emotive evidence. 

38․For those reasons, I do not accept there is a real risk the evidence will be misused by the jury, such that there is any danger of unfair prejudice.

Conclusion

39․For those reasons, I find that the evidence in dispute is admissible and will not be excluded under s 137 of the Evidence Act.

40․The Orders are as follows:

(1)Pursuant to s 51(3)(b) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) the Evidence-in-Chief interviews of the persons referred to in the application filed by the accused on 20 September 2023 are to be edited in accordance with the table set out as Annexure A to the Respondent’s submissions, save as to delete any reference to editing or redacting the “Q/A204 remainder” and “Q/A205”.

I certify that the preceding forty [40] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice McWilliam.

Associate:

Date: 24 November 2023