I v The State of Western Australia - [2006] WASCA 204

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: "I" -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 204

CORAM: STEYTLER P
ROBERTS-SMITH JA
McLURE JA

HEARD: 19 SEPTEMBER 2006

DELIVERED : 6 OCTOBER 2006

FILE NO/S: CACR 184 of 2005
CACR 185 of 2005

BETWEEN: "I"
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :DEANE DCJ
File No  :IND ESP 8 of 2004

Catchwords:

Criminal law - Appeal against convictions for sexual offences against a child - Juror disclosed prior knowledge of complainant's family and preconceived opinion - Juror affirmed ability to bring unbiased mind to evidence - Whether trial Judge erred in not discharging juror - Reasonable apprehension of bias test - Whether trial Judge should have questioned juror further - Trial Judge erred in her approach - Substantial miscarriage of justice demonstrated despite directions to jury - Appeal allowed - Convictions quashed

Criminal law - Evidence - Admissibility - Witness's testimony impeached in crossexamination by showing contradiction with prior statement - Whether even earlier consistent statement admissible - Clear imputation of fabrication in crossexamination - Unfair not to put both prior statements to intellectually impaired witness

Appeals and retrials - Prosecution case not weak - Appellant already served significant proportion of sentence - Appropriate to leave ultimate decision on retrial to Director of Public Prosecutions - Retrial ordered

Legislation:

Criminal Appeals Act 2004 (WA), s 30(6)

Criminal Procedure Act 2004 (WA), s 115(2)

Result:

Appeal allowed
Convictions quashed
Retrial ordered

Category: A

Representation:

Counsel:

Appellant: Mr S A Walker
Respondent: Mr S Vandongen

Solicitors:

Appellant: Western Legal
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Abbott v Western Australia (2005) 152 A Crim R 186
Ah Poh Wai v The Queen (1995) 15 WAR 404
Ahmed v Brumfitt (1967) 112 Sol Jo 32
Cant v The Queen (2002) 12 NTLR 133
Connell v The Queen (No 6) (1994) 12 WAR 133
Derbas (1993) 66 A Crim R 327
Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627
Evans (1995) 79 A Crim R 66
Fairclough v The Queen (1995) 12 WAR 103
Frankcombe v Holloway [1957] VR 139
Ibbs (2001) 122 A Crim R 377
John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344
Middleton (2000) 144 A Crim R 141
Munn v The Queen [2006] NSWCCA 61
Ousley (1996) 87 A Crim R 326
Paterson v The Queen [2004] WASCA 63 (S)
R v Coll [1889] 24 LR Ir 522
R v Gough [1993] AC 646
R v Hambery [1977] 1 QB 924
R v Hodgkinson [1954] VLR 140
R v Hutchings [2006] QCA 219
R v Kaddour (2005) 156 A Crim R 11
R v Lansdell, unreported; CCA SCt of NSW; 22 May 1995
R v Orgles [1994] 1 WLR 108
R v Stretton [1982] VR 251
R v Su [1997] 1 VR 1
R v Twiss [1918] 2 KB 853
Rabey v The Queen [1980] WAR 84
S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358
Sawyer (1980) 71 Cr App Rep 283
The Nominal Defendant v Clements (1960) 104 CLR 476
Transport & General Insurance Company Ltd v Edmondson (1961) 106 CLR 23
Webb v The Queen (1994) 181 CLR 41
Wentworth v Rogers (No 10) (1987) 8 NSWLR 398
Wu v The Queen (1999) 199 CLR 99

Case(s) also cited:

Greer v The Queen, unreported; CCA SCt of WA; Library No 940286; 2 June 1994
Jones v The Queen (1997) 191 CLR 439
Kakai v The Queen, unreported; CCA SCt of WA; Library No 990082; 23 February 1999
M v The Queen (1994) 181 CLR 487
McComish v The Queen, unreported; CCA SCt of WA; Library No 980529; 16 September 1998
Polidano v The Queen [2003] WASCA 93
R v GP (1997) 18 WAR 196
R v Sweetlove, unreported; CCA SCt of WA; Library No 960555; 23 September 1996

STEYTLER P: The appellant was convicted, after a trial by jury, on one count of aggravated indecent dealing with a child over the age of 13 years and under the age of 16 years (count 1) and one count of aggravated sexual penetration of a child in that age bracket (count 2). He appeals against those convictions.

The offences charged

Both offences were said to have occurred on about 29 February 2004 at the appellant's home in Esperance. The appellant, then 40 years old, lived together with the complainant's older sister, "A", who was then 17 years old. The complainant was a frequent visitor there, having had a close relationship with her sister.
On the night of the alleged offences, the appellant, the complainant and A went to a speedway meeting. After they had returned to the appellant's home, where the complainant was to stay overnight, the complainant changed into her night clothes and went to sleep on a sofa in the lounge room. The appellant and A went to bed in another room. The prosecutor led evidence from the complainant that she was awoken by the noise of someone walking around in the lounge room. She saw the appellant standing near her. He removed her night clothes and touched her on the breasts by squeezing them, before placing a finger or fingers in her vagina (these events gave rise, respectively, to counts 1 and 2). The appellant did not give evidence at the trial.

Grounds of appeal

There are four grounds of appeal. The first relates to the use at the trial of a prior consistent statement that had been made by the complainant some time in advance of the trial. The second relates to the trial Judge's failure to discharge a juror who had, prior to the conclusion of the empanelling process, raised a concern as regards his suitability to be a member of the jury panel. The third asserts that the verdicts of the jury were unreasonable and could not be supported having regard to the evidence. The fourth contends, in the alternative to grounds 1, 2 and 3, that the verdicts of the jury as regards the existence of aggravated circumstances in respect of each count (being that, at the time of the offences, the complainant was under the care, supervision or authority of the appellant) were unreasonable and cannot be supported.
There is also an appeal against sentence. However, this was unnecessary because the sole ground of appeal contends only that, if the appellant should be successful on ground 4 of his appeal against conviction, but not on the other grounds, then a different sentence should have been imposed. Plainly, if the appeal against conviction should succeed on ground 4 only, that would require the resentencing of the appellant in any event: s 30(6) of the Criminal Appeals Act 2004 (WA).

Ground 2 ‑ The failure to discharge a juror

I will deal first with ground 2.
Prior to the empanelment of the jury, the trial Judge told the members of the panel that the names of witnesses to be called by the State would be read out. She asked the members of the panel to let her know "if any of those names are known to you in such a way that you could not deliver true verdicts on the evidence in this trial". The names were read out as directed. The empanelment of the jury then proceeded and, after he had been sworn, but before the empanelment of the jury was completed, juror number 42 asked the trial Judge if he could "speak up". The following exchange then took place:
"JUROR NUMBER 42: One of the witnesses, you said … '[V]'. Is that correct? I used to work with him.
DEANE DCJ: … [T]he … [V] that you have mentioned, is that a male or a female?
… [The juror gave the name of the complainant's father] …
DEANE DCJ: … All right, unfortunately you are sworn now.
JUROR NUMBER 42: Okay, right. I didn't pick up the name. I didn't realise who were you were talking about until I just heard.
DEANE DCJ: All right. Perhaps can I ask you – I don't need again to have details – is your connection with … [V] … such that you really could not bring an unbiased mind to the task ahead of you, to put out of your mind anything you might know?
JUROR NUMBER 42: I know the family.
DEANE DCJ: Yes. Esperance is perhaps not the largest community in the world in any event.
JUROR NUMBER 42: No.
DEANE DCJ: Are the circumstances such that – and of course you haven't heard any evidence –  –  –
JUROR NUMBER 42: No.
DEANE DCJ: –  –  – and what I have had to say – such that you don't believe that you could bring an unbiased mind and a dispassionate attitude towards your task –  –  –
JUROR NUMBER 42: No.
DEANE DCJ: –  –  – as a juror? Would you be able to do that or not?
JUROR NUMBER 42: Well, I don't know what's the charges, what's happening.
DEANE DCJ: Well –  –  –
JUROR NUMBER 42: I have a preconceived opinion.
DEANE DCJ: You have a preconceived opinion –  –  –
JUROR NUMBER 42: Opinion.
DEANE DCJ: –  –  – about this matter?
JUROR NUMBER 42: Not of this matter, but –  –  –
DEANE DCJ: Yes. I will ask you again, now that you have raised this issue of having an opinion generally, would you be able, do you believe, having heard the evidence –  –  –
JUROR NUMBER 42: Yes.
DEANE DCJ: –  –  – when you hear the evidence, because that is what jurors are concerned with dealing with, and my directions that you are to bring an unbiased and unprejudiced mind to the evidence, do you believe that you could do that –  –  –
JUROR NUMBER 42: Yes, yes.
DEANE DCJ: –  –  – or do you believe that you would not be able to do that?
JUROR NUMBER 42: I believe I would be able to do that, yes."
At the conclusion of this exchange, the trial Judge thanked the juror for bringing those matters to her attention and told counsel that she thought that this was as much as she could usefully ask the juror.
Counsel for the appellant thereupon told the trial Judge that there was a matter that he wished to raise with her. She gave him the opportunity of doing so once the empanelment process had been completed. He then urged the trial Judge to discharge the juror pursuant to s 115(2) of the Criminal Procedure Act 2004 (WA). That section provides that a judge may discharge a juror from a jury if satisfied that the juror should not be required or allowed to continue in the jury and if the discharge would leave at least 10 jurors remaining. In fact, the trial Judge had empanelled 14 jurors, having formed the opinion that two reserves were required. Counsel for the appellant contended that there was consequently no reason why the juror should not be discharged if, as he submitted, there was cause for concern that he would not be able to discharge his task impartially (see, in this respect, Ah Poh Wai v The Queen (1995) 15 WAR 404 at 414).
The trial Judge declined to discharge the juror, saying that, while counsel for the appellant's application was "understandable and proper", she could not, "without any further information, go behind what a juror … [had] told … [her] in open court, namely, that he would be able to perform his function as a juror in this case properly and according to law". She said that she would give the jury "very specific and firm directions about these matters in due course" and that she intended to say something about this in her opening remarks to the jury.
I should add that she did as she had foreshadowed. In her opening remarks, she told the jury that each one of them was required "absolutely and fundamentally" to bring "a totally unbiased and unprejudiced mind to the evidence" and, in the course of her closing address to the jury, she said the following:
"I don't know, it may be – that outside this courtroom, leading up to the trial, or perhaps inadvertently during the course of the trial, you have heard something about this matter, or something about the people involved in it. Perhaps even before you were selected on the jury you knew something about these allegations or the people involved.
If that is the case, I warn you in the strongest terms to put aside any such information or any such knowledge, because it is not part of the evidence, and it would be very, very wrong to allow it to impact upon your deliberations. Of course anything that you might know about the trial, or have heard about it outside the courtroom, is not evidence, and for that reason you couldn't consider it anyway because you are confined to considering the evidence. That is all you have to work with."

The test to be applied

In Webb v The Queen (1994) 181 CLR 41 at 53, Mason CJ and McHugh J said that the test to be applied by a trial judge in deciding whether to discharge a juror or jury upon the ground that one of their number was alleged to have demonstrated partiality in the course of a trial is that of:
" … whether the incident is such that, notwithstanding the proposed or actual warning of the trial judge, it gives rise to a reasonable apprehension or suspicion on the part of a fair‑minded and informed member of the public that the juror or jury has not discharged or will not discharge its task impartially."
(See, also, Brennan J at 57, Deane J at 67 ‑ 68, 71 and Toohey J at 88.) In Connell v The Queen (No 6) (1994) 12 WAR 133 at 167, the Court of Criminal Appeal in this State held that the same test ought to be applied by a trial judge when making a determination whether there was sufficient prima facie evidence of bias, lack of impartiality or indifference on the part of a particular juror to allow a challenge to be made for cause.
Underpinning the test is the notion that the appearance as well as the fact of impartiality is necessary to retain confidence in the administration of justice and that the parties to the case and the general public must be satisfied that justice has not only been done but that it has been seen to be done: Webb at 50 per Mason CJ and McHugh J, at 68, 72 per Deane J.
The decision whether to discharge a juror pursuant to s 115(2) of the Criminal Procedure Act has been described as discretionary: Wu v The Queen (1999) 199 CLR 99 at 118 per Kirby J; Abbott v Western Australia (2005) 152 A Crim R 186 at [89] per Roberts‑Smith JA. Consequently, as Mason CJ and McHugh J pointed out in Webb (at 53 ‑ 54), where no error of principle is involved an appellate court will be slow to substitute its opinion for that of the trial judge.
In applying the test it is necessary to consider the likely effect of the directions to be given by the trial judge. Criminal trials and appeals are conducted on the assumption that juries understand and follow the instructions and directions given to them: R v Lansdell, unreported; CCA SCt of NSW; 22 May 1995 per Gleeson CJ (Finlay J agreeing); John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344 at 367; Webb at 53 per Mason CJ and McHugh J, at 76 ‑ 77 per Deane J. However, in considering whether a direction is such as to overcome a reasonable apprehension of a lack of impartiality on the part of a fair-minded and informed observer it is important not to lose sight of the insidious quality of bias such that, "even though a person may in good faith believe that he is acting impartially, his mind may unconsciously be affected by bias": R v Gough [1993] AC 646 at 659 per Lord Goff.
A disclosed familiarity with a witness called at the trial has often been regarded as a sufficient ground to discharge a juror: Derbas (1993) 66 A Crim R 327 at 331; Wu at 119 per Kirby J; Webb at 74 per Deane J (who identified as one of four categories of cases covered by the doctrine of disqualification by reason of the appearance of bias "cases where the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings"); R v Orgles [1994] 1 WLR 108 at 112. In a case of this kind it is important to know what was the nature and extent of the association and how much time has passed since its existence: see S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358 at 369 per Kirby P; McCreed at 559 (each of which dealt with an alleged apprehension of bias on the part of a judge as a consequence of a relationship with one of the parties).

Questioning a juror

There has been some debate as regards the desirability of a trial judge questioning a juror with respect to an occurrence or incident bringing his or her impartiality into question. In Fairclough v The Queen (1995) 12 WAR 103 at 108, Kennedy J, while acknowledging that trial judges have a natural reluctance to question jurors, considered that questioning would have been appropriate in that case (in which two jurors had been told by an employee of the solicitor for the accused that there was something improper in the relationship between witnesses at the trial). In the same case Murray J said (at 117) that, in his view, it was "almost always unhelpful, and generally positively undesirable, that … any juror should be interrogated by the trial judge or otherwise questioned about what has occurred, and particularly as to whether the jurors consider that they remain impartial as between defence and prosecution". However, there is a clear preponderance of authority in favour of the proposition that a trial judge can, and should, question a juror (preferably in the absence of the rest of the jury) in order to ensure that the judge properly understands any situation that has arisen that raises the spectre of possible bias.
In R v Stretton [1982] VR 251, a juror had indicated to the tipstaff, at an early stage in the trial, that he thought he knew one of the accused and knew one of their fathers, and that the juror felt biased already. It appeared that the stated bias related to ethnic grounds and that the remark may have been "semi‑flippant". The tipstaff passed this information on to the trial judge. In a subsequent appeal, Starke J (with whom Kaye and Fullagar JJ were in general agreement) said (at 254) that steps should have been taken by the trial judge "to more positively ascertain what the facts were". R v Hambery [1977] 1 QB 924 (CA) is another case in which (at 930) the Court considered that it would have been better if the trial judge had asked a juror for more information as regards a concern expressed by her.
In Orgles, the English Court of Appeal said (at 112):
"However the circumstances arise, it is the duty of the trial judge to inquire into and to deal with the situation so as to ensure that there is a fair trial, to that end exercising at his discretion his common law power to discharge individual jurors … "
In the same case (also at 112) the Court said that it would frequently be appropriate to commence and continue an inquiry with a juror separated from the body of the jury.
In Cant v The Queen (2002) 12 NTLR 133 a juror had handed to the trial judge a note saying that there had been discussion among jurors concerning the accused man's criminal history. Counsel for the accused then asked the trial judge to inquire into the extent and nature of the jury's discussion. When he declined to do so, counsel applied to have the juror in question excused. That request was also rejected by the trial judge, who considered that the matter could be dealt with by very firm directions to the jury to disregard whatever they may have heard concerning other charges against the appellant. The accused was subsequently convicted. He appealed against his conviction. The first ground of appeal was that the trial judge erred in failing to question the juror as to whether he or she remained indifferent as between the prosecution and the accused and by not discharging that juror. The Court of Criminal Appeal held that the trial judge erred in not making inquiries so as to ascertain the true facts and whether or not, once those facts had been ascertained, the juror, and perhaps other jurors or even the whole jury, should have been discharged (at 137 [11]).
In Evans (1995) 79 A Crim R 66, a case involving the unauthorised use by jurors of mobile cellular telephones, the Victorian Court of Criminal Appeal said (at 69):
" …it will be a rare case in which it is maintained that the judge was without power to make inquiries of the juror as to the alleged irregularity or that the judge was not free to act upon what it was that he was told by a juror. Were it otherwise many trials that have proceeded to verdict would have been vitiated by the inflexible applicable of rules that in their strict application would have resulted in a failure to adopt a commonsense approach at the expense of a realistic management of the trial. The nature and extent of the judge's investigation of any apparent irregularity is a matter for the judge's discretion and judgment in all the circumstances."
(See also Sawyer (1980) 71 Cr App Rep 283; R v Twiss [1918] 2 KB 853; R v Hodgkinson [1954] VLR 140; Ousley (1996) 87 A Crim R 326 at 339; R v Su [1997] 1 VR 1 at 31 ‑ 32; R v Kaddour (2005) 156 A Crim R 11 at 38 ‑ 40; Munn v The Queen [2006] NSWCCA 61 at [21].)

This case

In my respectful opinion, the trial Judge in this case erred in her conclusion that, without any further information, she could not go behind what the juror had told her in open court. Where a juror is asked about his or her ability to consider a matter impartially, the answer, while it must be taken into account, is not binding upon a trial judge. As will be apparent, the test is an objective one involving a fair-minded and informed observer, who would take account of what was said by the juror but would also be guided by other relevant considerations. I have already referred to what was said by Lord Goff in Gough to the effect that a juror's mind may unconsciously be affected by bias even if, in good faith, a juror believes that he or she is acting impartially (see, also, in this respect, R v Hutchings [2006] QCA 219 at [10]).
If the trial Judge thought that further information was needed, she was able to make additional inquiries in the absence of the rest of the jury. In my respectful opinion she should have done so, in the circumstances. It was plain from what he said that juror number 42 had a concern as regards his suitability to remain on the panel arising both out of his knowledge of the complainant's family and his "preconceived opinion". While it is true, as counsel for the respondent pointed out, that the preconceived opinion, whatever it was, was said by the juror not to be a concern about "this matter", it seems to me to be plain enough that the opinion was one which the juror considered to be relevant to the matter. Moreover, it is not entirely clear what the juror considered to be the "matter" in question, given that he had said that he did not know what the charges were, even though he had been present in court when they were put to the appellant.
It is consequently unfortunate that the juror was not permitted to explain why it was that his preconceived opinion was thought by him to be a matter of concern (no doubt because the trial Judge did not want the rest of the jury to hear whatever it was that he was about to say). While his preconceived opinion might have related to something relatively harmless, there is just as much prospect that it did not. To take one example, the juror might have had a preconceived opinion concerning the credibility of the appellant himself, perhaps derived through his knowledge of the family and of what had been said to him by one of them in respect of the relationship between the complainant's sister, A, and the appellant. Another might be a preconceived opinion as to the credibility of the complainant and A both of whom were important witnesses for the prosecution. Without knowing what that preconceived opinion was, in my respectful opinion, the trial Judge was in no position to answer the question whether or not it gave rise to a reasonable apprehension or suspicion on the part of a fair‑minded and informed member of the public that the juror would not discharge his task impartially, notwithstanding the proposed warning and the juror's belief that he would be able to be impartial.
Counsel for the respondent contended that, even if we were to arrive at the conclusion that the trial Judge erred in this respect, no substantial miscarriage of justice has been shown. He relied, in that respect, upon the fact that the jury was firmly directed to avoid any prejudice or bias and to put aside any extrinsic information or knowledge that any of them may have had concerning the allegations or the people involved. I am not persuaded that this is a sufficient answer to the problem in this case. As I have said, without knowing what the juror's preconceived opinion was, or upon what basis it was formed, it is impossible to assess whether or not a fair-minded and informed member of the public would have formed a reasonable apprehension that the juror would not be impartial notwithstanding these directions. As I have stressed, bias, by its very nature, can operate either at a conscious or subconscious level.
For these reasons it seems to me that ground 2 should be upheld, that the appeal should be allowed and that the convictions should be quashed. That conclusion makes it unnecessary for me to deal with grounds 3 and 4. However, because there is some prospect of a retrial, as I shall later explain, it is preferable that I should deal with ground 1. I will also comment briefly on grounds 3 and 4 in the course of considering whether or not there should be a retrial.

Ground 1

In her evidence‑in‑chief the complainant said that the appellant had placed his fingers inside her vagina and that it had hurt. In the course of cross‑examination, she was shown a copy of a transcript of an interview that she had had with a police officer on 24 March 2004. She was asked to turn to page 6 of that document. Then, after asking some questions concerning what the complainant had said in the course of that interview regarding the touching of her breasts by the appellant, the following exchange took place:
"You were asked if you were touched anywhere else and you indicated that he touched you down below, or you call that your vagina. Do you recall that?‑‑‑Yes.
You actually were asked the question, 'How did he touch it?' and you said there, 'On the outside.' Is that correct? You do recall making that statement?‑‑‑Yes.
Earlier on when you got asked where … [the appellant] actually touched you, you did indicate that he did touch you down below, but you actually said that he put his fingers inside. Now, that was incorrect, wasn't it … ?‑‑‑Yes.
So when you answered the question from the prosecutor, you did not answer it truthfully, did you … ?‑‑‑No.
No. So … [the appellant] didn't put his fingers inside you?‑‑‑No."
The complainant was re‑examined by the prosecutor in this respect. The following exchange took place:
"[D]o you remember in your evidence first of all you told us that … [the appellant] touched you down below, that he put his fingers inside your vagina and it hurt? Do you remember telling us that?‑‑‑Yes.
Did that happen?‑‑‑No. I can't remember if it did.
You told us first of all that that happened and you felt it. Did you feel that?‑‑‑I did feel his hand.
Where was his hand?‑‑‑Down below.
Where down below was his hand?‑‑‑On my vagina.
Was his hand outside your vagina or inside your vagina?‑‑‑I think it was outside. I can't remember."
A little later during the course of re‑examination, the complainant was shown a statement that she had earlier made to police on 5 March 2004. The following exchange took place:
"[H]ave you got that statement, the statement you made in page 6?‑‑‑Yes.
At the top it's got a paragraph 35. Is that right?‑‑‑Yes.
I just want you to read that to yourself. Take your time. Are you good at reading?‑‑‑Yes.
Just take your time and read just that paragraph to yourself. Don't read it out loud, just to yourself. Have your finished reading that?‑‑‑Yes.
Is that what you told the police?‑‑‑Yes.
Could you read that out to us please?‑‑‑All of it, that paragraph?
Yes, please?
---He started to rub the outside and then he put his fingers inside me. By that I mean he put his fingers inside my vagina. I don't know how many fingers he put inside me but it felt like a lot because it hurt. I started crying because it hurt so much. He moved them in and out for a while and was really rough. I kept telling him to stop. He never said anything the whole time."
Prior to this last exchange, the then counsel for the appellant had objected to the witness being referred to her statement dated 5 March 2004 in this respect, upon the ground that he had not cross‑examined on this aspect of it. The trial Judge overruled that objection. Counsel for the appellant contends, in effect, that she should not have done so.
A previous consistent statement is admissible, under the common law, to rebut the suggestion that the evidence of a witness has been deliberately fabricated since the relevant events (Wentworth v Rogers(No 10) (1987) 8 NSWLR 398 at 401) or even that it has been an innocent response to another's suggestion (Frankcombe v Holloway [1957] VR 139 at 141). In TheNominal Defendant v Clements (1960) 104 CLR 476 at 479, Dixon CJ said:
"If the credit of a witness is impugned as to some material fact to which he deposes upon the ground that his account is a late invention or has been lately devised or reconstructed, even though not with conscious dishonesty, that makes admissible a statement to the same effect as the account he gave as a witness if it was made by the witness contemporaneously with the event or at a time sufficiently early to be inconsistent with the suggestion that his account is a late invention or reconstruction."
The mere impeachment of a witness's testimony in cross‑examination, without more, does not render evidence of a prior consistent statement admissible: R v Coll (1889) 24 LR Ir 522 at 541 per Holmes J. However, where the impeachment is done by showing a contradiction or inconsistency between the evidence given at the trial and something said by the witness on a former occasion, the question is more problematic. In Coll (at 541), Holmes J said that, even in such a case, it does not follow that evidence of a prior consistent statement can be given for the purpose of sustaining the witness's credit and that there must be something either in the nature of the inconsistent statement, or in the use made of it by the cross‑examiner, to enable such evidence to be given. On the other hand, in Ahmed v Brumfitt (1967) 112 Sol Jo 32 (CA), Diplock LJ (with whom Lord Denning MR was in agreement) said that it was clear law that, when a witness in cross‑examination had put to him a statement which was said to conflict with what he said in examination‑in‑chief, "it was always admissible to put to him in re-examination an earlier statement consistent with what he said in examination‑in‑chief as rehabilitating his credit in respect of the evidence he had given".
The former view holds the ascendancy in Australia. In Transport & General Insurance Company Ltd v Edmondson (1961) 106 CLR 23 at 28, McTiernan, Taylor and Menzies JJ applied the extract from the judgment of Dixon CJ in TheNominal Defendant v Clements quoted above, and also the following passage which immediately followed it (at 479 ‑ 480):
"But, inasmuch as the rule forms a definite exception to the general principle excluding statements made out of court and admits a possibly self-serving statement made by the witness, great care is called for in applying it. The judge at the trial must determine for himself upon the conduct of the trial before him whether a case for applying the rule of evidence has arisen and, from the nature of the matter, if there be an appeal, great weight should be given to his opinion by the appellate court. It is evident however that the judge at the trial must exercise care in assuring himself not only that the account given by the witness in his testimony is attacked on the ground of recent invention or reconstruction or that a foundation for such an attack has been laid by the party but also that the contents of the statement are in fact to the like effect as his account given in his evidence and that having regard to the time and circumstances in which it was made it rationally tends to answer the attack. It is obvious that it may not be easy sometimes to be sure that counsel is laying a foundation for impugning the witness's account of a material incident or fact as a recently invented, devised or reconstructed story. Counsel himself may proceed with a subtlety which is the outcome of caution in pursuing what may prove a dangerous course."
In Edmondson, McTiernan, Taylor and Menzies JJ went on to say (at 29 ‑ 30):
"Before leaving the case we think we should point out that difficulties of the kind which arose at the trial may frequently be resolved by adoption of the course suggested by Jordan C.J. in Smith v. Commonwealth Life Assurance Society Ltd. ((1935) 35 S.R. (N.S.W.) 552) when he said [at 557]: 'If in any case there is any doubt as to whether a suggestion of afterthought is being made, evidence to rebut it may be tendered, and a disclaimer of any such suggestion obtained, or if the suggestion be pressed, the evidence may become admissible'".
In the same case Windeyer J said (at 32):
"The rule permitting the admission of evidence of earlier consistent utterances to rebut a suggestion of recent fabrication must be kept within its proper limits. The matter was fully considered in The Nominal Defendant v. Clements ... It is not necessary to say more than that to make such evidence admissible there must be an imputation by counsel of fabrication. It is what counsel directly or indirectly invites the jury to infer, not what without his invitation, express or covert, some juryman might infer, that makes the evidence of a prior consistent statement admissible."
It seems to me that there was, in this case, a clear imputation of fabrication. As will be apparent, it was at first put to the complainant that her evidence‑in‑chief was "incorrect". Had the questioning been left there, that suggestion would have been as consistent with confusion, or a lapse of memory, as it would with deliberate fabrication. However, when the cross‑examiner went on to say to the complainant that she had consequently not answered the question put to her in her evidence‑in‑chief truthfully, this question was consistent only with an imputation of fabrication.
That conclusion does not necessarily answer the question of admissibility of the prior consistent statement in this case. As will also be apparent, the complainant acknowledged, in the course of cross‑examination, that she had not answered the question truthfully when it was first put to her. Ordinarily, in a case in which a witness admits that his or her evidence in court has been untruthful, no good purpose can be served by allowing evidence of a prior consistent statement, as it would necessarily be inferred that that statement, too, had been made untruthfully and it is a condition of admissibility that the evidence sought to be adduced is such that it "rationally tends to answer the attack": Edmondson at 29. However, in this case, the transcript reveals that the trial Judge and counsel for the parties were privy to material that suggested that the complainant and her sister both suffered from some intellectual impairment (there was no dispute that this was so at the hearing of the appeal, although counsel for the appellant submitted that the complainant was well able to answer the questions put to her). The existence of some impairment on the part of the complainant is also apparent both from the way in which questions were asked of her and from the way in which she answered them. The questions were often framed in a manner suitable for a much younger person. In the course of answering them the complainant was often unsure or hesitant. She answered every question as briefly as she could.
While it is no doubt ordinarily proper for cross‑examining counsel to put to a witness a prior inconsistent statement and then to suggest that, in the light of it, the evidence given by the witness in the course of evidence‑in‑chief was untruthful, it seems to me that what should have happened in this case is that both prior statements should have been drawn to the complainant's attention before she was asked whether her evidence in court was untruthful. In my opinion it was unfair to her (especially in the circumstances of her impairment) to refer her to her prior inconsistent statement (recorded in a transcript of interview that had not been signed by her) when an even earlier, consistent, statement existed that had been signed by her but was not drawn to her attention. It consequently seems to me that it would have been open to the trial Judge to require cross‑examining counsel to put both statements to the complainant, or neither of them, and that, in circumstances in which no such requirement was imposed (and I should point out, in fairness to the trial Judge, that the prosecutor did not ask that any such requirement be imposed), that it was open to the trial Judge to permit the prosecutor to show the earlier statement to the complainant in the course of re-examination. I would consequently not have upheld ground 1.

Whether a retrial should be ordered

That leaves the question whether, given that I would allow the appeal on ground 2, there should be a retrial. Ordinarily, I would have no hesitation in ordering a retrial in a case of this kind. It seems to me that, notwithstanding the contentions raised by grounds 3 and 4, there is a reasonable prospect that the appellant would be convicted by a properly constituted jury (see Rabey v The Queen [1980] WAR 84 at 95 ‑ 96; Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627 at 630). While there were inconsistencies in the evidence relied upon by the prosecutor, particularly as regards the penetration alleged in count 2 (although the fact of penetration was supported, to some degree, by

medical evidence led at the trial and it would also be open to a jury, in respect of that count, to find the appellant guilty on an alternative count of indecent dealing), it seems to me that the prosecution case could not be described as having been weak. However, it is an important consideration, in this respect, that the appellant has already served a term of more than 12 months' imprisonment and is eligible for release on parole in about seven months' time (3 May 2007). While this causes me to hesitate, it seems to me, in the end, that the appropriate course is for the question to be left for decision by the Director of Public Prosecutions (see Middleton (2000) 144 A Crim R 141 at 148 ‑ 149; Paterson v The Queen [2004] WASCA 63 (S) at [16] ‑ [22] per Malcolm CJ, at [26] per Steytler P; cf Ibbs (2001) 122 A Crim R 377 at 383 ‑ 384; Paterson at [35] per McKechnie J (in dissent)). I would consequently order a retrial.

ROBERTS-SMITH JA: I agree with the President and have nothing to add.
McLURE JA: I agree with Steytler P.