Kevin Gerald Barry v R No. SCCRM 95/227 Judgment No. 5303 Number of Pages 10 Criminal Law Evidence

[1995] SASC 5303

COURT IN THE COURT OF CRIMINAL APPEAL OF SOUTH AUSTRALIA COX(1) PERRY(2) AND LANDER(3) JJ

CWDS
Criminal law - evidence - evidentiary matters relating to witnesses and accused persons - Admission of previous consistent statement to rebut suggestion that victim's account was fabricated - alleged fabrication need not be recent in time to the trial - not suggested to victim that this was a recent invention - because the alleged motive for fabrication pre-existed the assault a previous consistent statement could not logically be capable of dispelling the imputation of fabrication - the unlikelihood of invention of the previous consistent statement did not make it admissible - reception of evidence could not have led to a miscarriage of justice. Nominal Defendant v Clements (1960) 104 CLR 476; R v Coll (1889) 24 LR Ir 522; Mapp v Stephens
(1965) NSWR 1661, applied. Wentworth v Rogers (No. 10) (1987) 8 NSWLR 398, considered.

HRNG ADELAIDE, 18 September 1995 #DATE 20:10:1995 #ADD 27:11:1995

Counsel for appellant:     Ms A M Vanstone QC with
   Mr J W Mahony

Solicitors for appellant:    Mahony's

Counsel for respondent:     Ms W J Abraham

Solicitors for respondent: DPP (SA)

ORDER
Appeal dismissed

JUDGE1 COX J The appellant was tried in the District Court on an information that charged him with assault occasioning actual bodily harm: contrary to s40 of the Criminal Law Consolidation Act 1935. Particulars of the offence were that on 12 August 1994 at Ethelton the appellant assaulted Damien Mark Clarke thereby occasioning him actual bodily harm. The appellant pleaded Not Guilty but the jury convicted him. He now appeals against his conviction on the ground that his trial miscarried in a number of ways.

2. There is no doubt that Damien Clarke was severely assaulted one Friday afternoon outside the Ethelton Hotel of which the appellant was the licensee. The question for the jury was whether the Crown had proved that the appellant was responsible.

3. The evidence at the trial showed that Clarke had been drinking earlier that afternoon in another hotel, and by the time he was ready to leave the Ethelton Hotel about 5 pm he was well affected by liquor. He got the barmaid to call him a cab and when it arrived he finished his drink and went outside. His evidence was that the appellant followed him out of the bar and asked him for the twenty dollars which, the appellant said, Clarke owed him. Clarke denied owing the appellant any money whereupon the appellant, possibly saying something as he did so, punched Clarke in the face with his clenched fist. Clarke's recollection of what happened from that point until the cab driver, Mr Burdon, dropped him off at his parents' home at Semaphore Park was incomplete. He remembered saying some things to Burdon but that is all. After he had spoken to his parents he was taken to hospital with a broken jaw.

4. The other important Crown witness was Clarke's father, who actually knew the appellant personally and telephoned him that evening and asked him why he hit his son. The appellant's response (according to Mr Clarke) was, "What are you talking about? I haven't seen Damien. Damien hasn't been here." Clarke Senior said, "Damien has told me he has been hit and you hit him", whereupon the appellant said, "Damien must be mistaken because I didn't see Damien and Damien hasn't been here." According to Clarke Senior the appellant repeated that answer, in substance, in another telephone conversation he had with him the following morning. The Crown's case was that these were significant lies told from a consciousness of guilt.

5. The appellant gave evidence. He said that he saw Damien Clarke in the bar that afternoon. He was intoxicated and behaving in a very loud manner. Clarke had borrowed twenty dollars from him some weeks before this and had not repaid it. When he saw Clarke leave the hotel he followed him out on to the footpath and spoke to him about the twenty dollars. Clarke denied owing him any money, but reached into his pocket and pulled out a twenty-dollar note and threw it on the ground. The appellant picked it up and went back into the hotel and gave the money to the barmaid to put in the till. He was only outside for twenty or thirty seconds. He did not strike Clarke. As for the telephone conversations (and he said there were three of them) he denied having said that Damien Clarke was not at the hotel.

6. The defence called a customer of the Ethelton Hotel named Mayer who said that, when he left the bar around 5 pm, he saw Damien Clarke having some sort of argument outside with three men who had been drinking in the bar a short time before. Defence counsel argued to the jury that one or more of those men might well have been responsible for Clarke's injuries.

7. There were other Crown and defence witnesses. The account I have given is enough to explain in essence what the trial was about.

8. The first ground of appeal complained of the learned trial Judge's refusal to discharge the jury after counsel for the Crown, in her final address, had suggested that the appellant might well be guilty of robbing Damien Clarke as well as assaulting him. The background to counsel's comments was that Damien Clarke said nothing in his evidence about handing over any money to the appellant. It was the appellant, in his version of the incident, who said that Clarke, albeit with a bad grace, handed over the twenty dollars. Of this counsel said in her address -
    "I am not suggesting Mr Barry didn't go inside with the $20,
    but you might ask yourself how that $20 came to be in his
    hand on the night, whether it is in the casual way described
    by Mr Barry or whether something else might have occurred
    after Damien Clarke was on the ground concussed, as he says,
    and definitely with a broken jaw, as he says. The money was
    given to the barmaid. She put it in the till. So be it.
    The $20 was paid."

and later -
    "I suppose when you consider the explanation or the account
    put forward by Mr Barry you have got to ask this question
    how unlucky must he have been, Mr Barry that is. He is the
    one who happens to be seen talking to Damien Clarke just
    outside in Carlisle Street, seen by Dean Waters. He is the
    one who went to get the $20 from Damien outside. It is not
    done by the barmaid or someone inside. He is the one that
    successfully comes back with the $20. You might wonder how
    he did get that money. There is nothing wrong with Damien
    Clarke then, on his own evidence, nothing wrong at all."

9. Defence counsel protested to the jury in his own address about this suggestion of a robbery and afterwards asked the trial Judge to discharge the jury. The Judge declined to do so, but when he summed up to the jury he told them that there was no proper basis in the evidence for concluding that the appellant may have taken twenty dollars from Damien Clarke after he had assaulted him and he directed the jury to disregard the prosecutor's suggestion.

10. On the Crown's case there was a serious assault but no robbery, for Damien Clarke said nothing about parting with any money. (It was common ground that he was concussed and had a patchy memory.) However, once the appellant said that he received twenty dollars from Clarke the question of a robbery inevitably presented itself as a real factual possibility. If the jury regarded Clarke as a truthful and reliable witness in his identification of his assailant, they might well conclude that the appellant got the money from him by violence or the threat of violence. There was nothing that prosecuting counsel could do about that. It was the unavoidable consequence of the way the evidence unfolded. Indeed, even had prosecuting counsel not said anything, there would have been a question for the trial Judge at the end of the trial as to whether he should raise the matter with the jury for the purpose of telling them to put it out of their minds. As it happened, counsel brought the matter to a head by making the remarks of which the appellant complains. The remarks should not have been made. The appellant was not on trial for robbery and he had not come to court to meet a robbery charge. However, as I have indicated, counsel was really only making explicit what almost necessarily followed from an acceptance of Damien Clarke's evidence, as some, at least, of the jury would probably have realized. If there was a risk of prejudice to the appellant by reason of these unusual circumstances, it would not have been cured by discharging the jury and trying the appellant again. I do not think that counsel's remarks, regrettable though they were, could possibly have made any difference to the result. The Judge gave the jury a suitable direction and there is no reason to suppose that they did not heed it. It was not an error for the Judge to continue the trial.

11. The second ground of appeal complains of the lies direction that the learned Judge gave with respect to the conflicting evidence about the telephone conversations between Clarke Senior and the appellant. Ms Vanstone, for the appellant, conceded that the Judge was entitled to tell the jury that, if they accepted the Crown witness and concluded that the appellant was lying when he said that Damien Clarke had not been at the hotel that afternoon, they could take that into account in assessing the appellant's credibility, but she submitted that it was an error on the learned Judge's part to tell the jury, as he did, that they could treat the appellant's denials as indicative of a consciousness of guilt. No exception was taken to the form of the lies direction but simply that it was given at all.

12. The principles with respect to lies directions are now well established and no good purpose would be served by reviewing them again. In my opinion the trial Judge was entitled to direct the jury as he did on the matter of lies. Whether Clarke Senior was a reliable witness and whether, if he was, any suggestion of a guilty conscience on the appellant's part was sufficiently answered by his existing antipathy towards the Clarke family or his exasperation at having a false accusation made to him or simply his wish to terminate the conversation and get on with his work were all matters for the jury to assess, as no doubt they did. I would reject this ground of appeal.

13. Ground 3 raises a more difficult question. The cab driver, Burdon, was waiting for Damien Clarke at the side of the hotel. When a few minutes had passed and Clarke had not appeared, Burdon backed his cab to the hotel corner and saw Clarke standing on the footpath vomiting blood. Clarke got into the cab and asked to be taken to the Semaphore Park address. He declined Burdon's offer to take him to hospital, saying, "No, take me home. I'll get me Mum to fix me." On the way home he told Burdon that he was having a few drinks with a friend and that this guy came over and hit him for no reason, and he thought he had a broken jaw, and he said that the guy was a boxer, or ex-boxer, and that he knew the man. This evidence of Burdon's was significant because the appellant told the jury that he was a former Australian amateur heavyweight boxing champion and later a professional fighter.

14. Ms Vanstone submitted that Burdon's evidence of his conversation with Damien Clarke was mere evidence of a previous consistent statement on Clarke's part and so inadmissible. It was prejudicial to the appellant's case. Ms Abraham, for the Crown, submitted that the evidence was properly received to rebut an imputation of recent invention.

15. It was put to Damien Clarke in cross-examination that his jaw was broken by a person or persons unknown to him and that he saw this as a perfect opportunity to square up on the appellant who was involved in a commercial dispute with Clarke's family over many thousands of dollars. Clarke denied this suggestion. He was also cross-examined about a claim for compensation that he had instructed his solicitor to make against the appellant. Obviously the purpose of these questions was to discredit Clarke by suggesting that he had a motive - indeed, two motives - for falsely identifying the appellant as his assailant. The learned Judge heard argument on the matter and admitted Burdon's evidence. He took the view that, given the defence imputation that Clarke's evidence about the identity of his assailant was a fabrication, the jury were entitled to know when he first gave an account implicating the appellant so that they could better assess the force of the fabrication claim. His Honour emphasized to the jury in his summing up that whatever Clarke may have said to the cab driver could not be treated as evidence of the facts that he asserted, but that in assessing the weight to be attached to the fabrication argument they were entitled to bear in mind, if they saw fit, the fact - if they were satisfied it was a fact - that Damien Clarke first said it was an ex-boxer whom he knew that night soon after he was hit. His Honour reminded the jury that the defence "would say, of course, that he lied from the outset and perhaps that in his alcohol-affected state he was more prone to do something like that, or, indeed, that for the same inebriated reason he might have honestly but mistakenly believed that it was the appellant who hit him".

16. It is a nice question whether the conversation with Burdon was admissible under the recent invention rule. Merely to accuse a witness of telling a false story because of a specified motive does not enable the party calling the witness to bolster his evidence by proving that he has made other consistent statements outside the court. The cross-examiner here did not suggest that the false story was concocted at any particular time, although it is obvious from the telephone calls that it must have been some time on the Friday evening. However, given the severity of Clarke's injuries, the jury was entitled to conclude that he was unlikely to have been in any condition to concoct a false story for one or other of the suggested motives - family animosity and financial self-interest - by the time he told Burdon that he had been hit by an ex-boxer whom he knew. If in the nature of things it needed more time than this for Clarke to fabricate a story, it was open to the Crown to lead evidence that proved (if the jury were disposed so to regard it) a spontaneous if indirect identification of the appellant before that minimum time had elapsed. That does not mean that a malignant invention of the story in the cab itself had to be impossible. It is enough, I think, that the jury was entitled to consider it quite unlikely that this is what happened and therefore that the evidence of the statement to Burdon could assist them materially in assessing the weight of the concoction theory. In my opinion, the evidence was admissible on those grounds. There was no criticism of the learned Judge's direction to the jury on the subject. I would reject this ground of appeal.

17. I should say that if, contrary to the view I have expressed, the evidence of Clarke's statement to Burdon was not admissible, I should nevertheless hold that it could not possibly have led to a miscarriage of justice. The jury was carefully instructed as to the use they could make of the evidence. It was treated, in substance, as evidence of a prompt complaint, showing consistency on the victim's part from a time very soon after the assault took place. The Crown did not argue that the rule about first opportunity complaints in sexual cases can apply to a non-sexual assault (cf. Cross on Evidence, Australian edition, par17265) and I express no opinion about that. However, the introduction of the evidence in the circumstances of this case could not on any view of the matter have caused any unfairness to the appellant. It did not affect the validity of the alternative defence argument that Clarke was honestly mistaken about the identity of his attacker. If the evidence was inadmissible, it is a proper case for the proviso.

18. Finally, the appellant argued that the verdict of the jury was unsafe and unsatisfactory. Ms Vanstone pointed to the evidence of Mayer about the three men outside the hotel and to the other defence evidence, to the danger of acting on the evidence of a complainant who had suffered a significant head injury and memory loss, to the strained relations between the appellant and Clarke Senior and to the matters raised in the grounds of appeal that I have already discussed. (We were also taken to prosecuting counsel's somewhat over-enthusiastic suggestion to the jury in her final address that the appellant's boxing experience could assist them in identifying the appellant as Clarke's assailant. It was a mere debating point, out of place because it lacked any evidential foundation, and the trial Judge disposed of it clearly and firmly in his summing up. There is no reason to think that the jury might have paid any attention to it.)

19. Clarke was badly hurt and his memory of events after the assault was patchy. Nevertheless he gave a clear account of being hit by the appellant, whom he knew well, not by someone else, following the exchange about his owing the appellant twenty dollars, and if the jury considered that he was a truthful witness they were also entitled to regard him as a reliable one. They could also, if they saw fit, act on Clarke Senior's evidence about the telephone conversations and draw from them the conclusion that the appellant lied about the complainant's presence at the hotel because of a consciousness of guilt. The jury were not obliged to accept as a reasonable possibility the evidence of the appellant or his witnesses. In my opinion, it was open to a reasonable jury on the whole of the evidence to find the appellant guilty of the crime with which he was charged.

20. I would dismiss the appeal.

JUDGE2 PERRY J I agree that the appeal should be dismissed for the reasons given by Cox J.

JUDGE3 LANDER J I have had the advantage of reading the reasons of Cox J. I agree with all his Honour has to say, except that I am unable to agree with his reasons for upholding the admissibility of Mr Burdon's evidence, which was the subject of the third ground of appeal, although I do agree with his Honour that the admission of that evidence could not have led to a miscarriage.

2. In cross-examination it was put to Damien Clarke, and he agreed, that whilst he was travelling in Mr Burdon's taxi, he lapsed in and out of consciousness. In re-examination he was not able to say whether there was any conversation with Mr Burdon apart from Mr Burdon asking him whether he needed to go to hospital.

3. He was cross-examined about the contents of a claim made in some legal proceedings he apparently brought for compensation and he was asked without objection, as to what he had told his solicitor, who acted for him in those proceedings, about the happening of the assault. I do not understand the cross-examiner to have suggested that those proceedings motivated his account of the facts in this trial, but that simply the version he had given his solicitor was at variance with his account in Court.

4. Further, it was put to Damien Clarke that after he was driven home by Mr Burdon he had a conversation with his father on the front verandah and that he said to his father:
    "I walked out of the pub towards a taxi and then half looked
    around and saw Kevin swing and hit me twice in quick
    succession."

5. However, his evidence was that he could not remember that. Although the victim was unable to remember what he said to his father, the suggestion in cross-examination was, in effect, that what he had said to his father was not only a lie, but also inconsistent with his evidence in Court.

6. It was then put by counsel for the appellant to Damien Clarke that he had fabricated the appellant's involvement because he saw this as the perfect opportunity to square up on the appellant who owed the victim's family many thousands of dollars. The cross-examiner was suggesting quite unequivocally that the witnesses' evidence was a lie, and that the lie was motivated by a dispute between the victim's family and the appellant, which dispute pre-existed the offence.

7. After cross-examination of the victim, counsel for the Director of Public Prosecutions said to the trial Judge:
    "Given the cross-examination this morning, in particular the
    implicit suggestion that the fabrication occurred at a time
    subsequent to the assault, that is at the later time when
    the victim spoke to the police, and the suggestion that it
    was then pursued by a criminal injuries claim, it would be
    my intention to lead the evidence of those conversations to
    rebut the suggestion of this subsequent fabrication and I
    wanted to clarify your Honour's attitude and indeed my
    friend's before I did that."

8. I do not agree that the cross-examination suggested that the fabrication dated from the time the victim spoke to the police, or that the fabrication arose out of the claim for compensation. In fact, I do not agree that the cross-examination suggested any subsequent fabrication at all. The suggestion was less subtle than that, and was to the effect that the account given by the victim was always a fabrication.

9. In this Court, counsel for the Director of Public Prosecutions maintained that the evidence was admissible because of the allegation made to Damien Clarke that he had fabricated his story, and because it was relevant that shortly after the assault the victim described his assailant to an independent person.

10. The principle for admission of evidence of statements made out of Court by a witness whose credit is attacked was stated by Dixon CJ in Nominal Defendant v Clements (1960) 104 CLR 476 at 479. His Honour 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."

11. At the same time his Honour sounded a cautionary warning about the reception of such evidence:
    "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."

12. The evidence of what the victim said to a third party would not become admissible merely because it was put to the victim that his evidence was untrue, nor because the cross-examiner had suggested to the witness that the witness had given a previous inconsistent statement.

13. In R v Coll (1889) 24 LR Ir 522, Holmes J said at page 541:
    "It is, I think, clear that the evidence of a witness cannot
    be corroborated by proving statements to the same effect
    previously made by him; nor will the fact that his testimony
    is impeached in cross-examination render such evidence
    admissible. Even if the impeachment takes the form of
    showing a contradiction or inconsistency between the
    evidence given at the trial and something said by the
    witness on a former occasion, it does not follow that the
    way is open for proof of other statements made by him for
    the purpose of sustaining his credit. 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."

14. In Nominal Defendant v Clements (supra) Menzies J said at page 485:
    "Notwithstanding the earlier rule, it is now firmly
    established that an earlier statement is not admissible
    merely as confirmation of the evidence given by the witness;
    furthermore, if there be nothing more than that the evidence
    of a witness has been attacked in the course of cross-examination,
    that does not of itself render admissible earlier
    statements by the witness consonant with his evidence."

15. The evidence requires for its admissibility some other happening and that is usually, but not invariably, a suggestion that the account being given by the witness has been recently concocted. Menzies J stated the rule at page 490:
    "I regard evidence of an earlier consistent statement as
    admissible in accordance with this exception only when the
    Court itself considers that the evidence of a witness has
    been impeached as a later contrivance and this has been done
    by the opposite party in the conduct of the case, whether by
    the cross-examination of the witness, or by eliciting
    evidence of the fabrication from another witness, or in some
    other positive way."

16. The fabrication need not necessarily be recent in time to the trial. Indeed, it has been suggested that the adjective "recent" is a misnomer and the principle applies to any fabrication after the events being inquired into and before the trial. Wentworth v Rogers (No. 10) (1987) 8 NSWLR 398.

17. Another circumstance where evidence of a previous consistent statement would become admissible was referred to by Windeyer J in Nominal Defendant v Clements (supra) at page 494:
    "The kind of imputations and allegations that - if
    sufficiently clearly made - will let in prior consistent
    statements are: First, that the witness's testimony is a
    recent fabrication, in the sense of being invented at or
    after a particular time. Evidence that he had said the same
    thing before that time becomes admissible. Secondly, that
    his testimony was the result of some motive, bias, influence
    or moral duress operating from some particular time and not
    before. Evidence that he had said the same thing before
    that time becomes admissible. The two situations can
    obviously overlap and in many of the cases in which the
    evidence was admitted elements of both operated."

18. The second ground for admission to which his Honour there referred is more closely related to the facts of this case. It was not suggested to Damien Clarke that this was a recent invention or that it had been invented at or after a particular time. It was put that the account was a fabrication and the motive for the fabrication was put directly to him.

19. However, it was not put to him, nor could it have been, that there was a point in time subsequent to the assault when the motive for lying arose. In this case the alleged motive pre-existed the assault. In those circumstances, it cannot be said, in my opinion, that there was an allegation of recent invention, or that there was an allegation of an event of the second kind referred to by Windeyer J, which would render admissible an otherwise inadmissible previously consistent statement.

20. If Damien Clarke always had, prior to the offence, a motive for the fabrication of this account, a previously consistent statement is not logically capable of dispelling the imputation of fabrication. Windeyer J said at page 495:
    "There must be an imputation, clearly made and not
    unequivocally disclaimed, that the witness is not speaking
    from his own recollection of events, but is recounting a
    story subsequently made up by him or for him. Furthermore,
    the statement which it is sought to use to dispel this
    imputation must be made in such circumstances that it
    logically does so. For if evidence be attacked as a recent
    fabrication, the attack is not repulsed by proving another
    statement, itself the product of pressure or of a motive to
    falsify."

21. If the motive pre-existed the offence, which this motive did, then any statement made after the offence, but before trial, was also tainted by the same motive and was incapable of logically dispelling the imputation raised by the cross-examination. The purpose for its admission could never be served because it would not show that the witness could not have been actuated by that motive. Mapp v Stephens (1965) NSWR 1661. The statement would not rationally tend to answer the attack. Nominal Defendant v Clements (supra) per Dixon J at page 480.

22. Whilst it might be that it is unlikely that Damien Clarke could have invented the story which he gave to Mr Burdon, that, in my opinion, does not render that previous statement admissible. The statement was not admissible because there was no suggestion of recent invention, nor any suggestion that from some particular time subsequent to the offence, as distinct from prior to the offence, that Damien Clarke was actuated by an improper motive.

23. In my opinion, the evidence of Mr Burdon was not admissible. However, I would join with my brethren in dismissing the appeal because the reception of that evidence could not have led to a miscarriage of justice, and in that respect I agree with Cox J.