MJH v The State of Western Australia
[2006] WASCA 167
•17 AUGUST 2006
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: MJH -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 167
CORAM: ROBERTS-SMITH JA
McLURE JA
BUSS JA
HEARD: 20 MARCH 2006
DELIVERED : 17 AUGUST 2006
FILE NO/S: CACR 158 of 2005
BETWEEN: MJH
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :MARTINO DCJ
File No :IND BUN 95 of 2004
Catchwords:
Appeal - Criminal law and procedure - Sexual offences against stepdaughter - Evidence - Statements made by complainant to mother five days after offences - Whether inconsistent with complainant's evidence - Complainant's denial of making statements - Admissibility of mother's evidence that she did - Whether collateral - "Collateral evidence rule" - Finality of answers in crossexamination - Section 21 Evidence Act 1906 (WA)
Appeal - Criminal law and procedure - Sexual offences against child - Evidence - Child's relationship with mother - Whether motive to make false allegations - Admissibility of evidence from mother - Whether collateral - "Bias" exception to collateral evidence rule
Appeal - Criminal law and procedure - Sexual offences - Inconsistent verdicts - Factual inconsistency
Legislation:
Criminal Appeals Act 2004 (WA), s 30(4)
Criminal Code (WA), s 317(1), s 329(3), s 329(4), s 329(9)(a), s 329(10)(a)
Evidence Act 1906 (WA), s 21
Result:
Appeal dismissed
Category: A
Representation:
Counsel:
Appellant: Mr D S Hunter & Ms F B Walsh
Respondent: Ms L O'Connor
Solicitors:
Appellant: Director of Legal Aid
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
AC v The Queen [2004] WASCA 75
Attorney‑General v Hitchcock (1847) 1 Exch 91 [154 ER 38]
Bannister v The Queen (1993) 10 WAR 484
Cotton v Commissioner for Road Transport and Tramways (1942) 43 SR (NSW) 66
Craig v Troy (1997) 16 WAR 96
Crowley v Page (1837) 7 C & P 789 [173 ER 344]
Darkan v The Queen (2006) HCA 34
Goldsmith v Sandilands (2002) 76 ALJR 1024
Jones v The Queen (1997) 191 CLR 439
Kurgiel v Mitsubishi Motors Australia Ltd (1990) 54 SASR 125
M v The Queen (1994) 181 CLR 487
MacKenzie v The Queen (1996) 190 CLR 348
MFA v The Queen (2002) 213 CLR 606
Narkle v The Queen (2001) 23 WAR 468
Natta v Canham (1991) 32 FCR 282
Nicholls v The Queen (2005) 219 CLR 196
Palmer v The Queen (1998) 193 CLR 1
PB v The Queen [2003] WASCA 183
Piddington v Bennett & Wood Pty Ltd (1940) 63 CLR 533
Pilcher v HB Brady & Co Pty Ltd [2005] WASCA 159
Pollitt v The Queen (1992) 174 CLR 558
R v De Angelis (1979) 20 SASR 288
R v DWB [2006] VSCA 137
R v Funderburk [1990] 1 WLR 587
R v Harrington [1998] 3 VR 531
R v Hart (1957) 42 Cr App R 47
R v LSS [2000] 1 Qd R 546
R v Musolino (2003) 86 SASR 37
R v Phillips (1936) 26 Cr App R 17
R v PMT (2003) 8 VR 50
R v Soma (2003) 212 CLR 299
R v Stone, unreported; UKCCA EWCA Crim (Devlin J); 13 December 1954
R v Sweet‑Escott (1971) 55 Cr App R 316
R v Titijewski [1970] VR 371
R v Trotter [1977] Tas SR 133 (NC 7)
R v Umanski [1961] VR 242
R v Whitehead [2000] NSWCCA 400
Re Calder; Ex parte Cable Sands (WA) Pty Ltd (1998) 20 WAR 343
Re Full Board of the Guardianship and Administration Board (2003) 27 WAR 475
Re Shire of Swan; Ex parte Saracen Properties Pty Ltd (1999) 105 LGERA 343
Smith v The Queen (1993) 9 WAR 99
Smith v The Queen (2001) 206 CLR 650
The Queen's Case (1820) 2 Brod & B 284 [129 ER 976]
Traegar v Pires de Albuquerque (1997) 18 WAR 432
Weiss v The Queen (2005) 80 ALJR 444
Western Australia v Watson [1990] WAR 248
Case(s) also cited:
Kometer v The State of Western Australia [2005] WASCA 131
ROBERTS-SMITH JA: Between 10 and 12 August 2005 the appellant stood trial before Martino DCJ and a jury in the District Court at Bunbury on an indictment charging him with nine offences committed against his stepdaughter on 11 February 2004. He was 35 years old.
Count 1 was an offence of inciting the complainant, then a child under the age of 16, and who he then knew to be his de facto child, to engage in sexual behaviour, contrary to s 329(3) and s 329(9)(a) of the Criminal Code (WA) ("the Code").
Counts 2, 3, 4 and 7 charged offences of sexually penetrating the complainant's vagina with his penis contrary to s 329(2) and s 329(9)(a) of the Criminal Code.
Count 5 charged the appellant with sexually penetrating the complainant by penetrating her mouth with his penis.
Count 6 charged that he indecently dealt with the complainant by holding her on the ground and masturbating over her, contrary to s 329(4) and s 329(10)(a) of the Code. Count 8 charged that he unlawfully assaulted her and thereby did her bodily harm contrary to s 317(1) of the Code. Count 9 was one of threatening to kill the complainant with intent to prevent her doing an act she was lawfully entitled to do (reporting the other offences), contrary to s 338A of the Code.
On 11 August 2004 the appellant was acquitted on count 1 but the jury returned a verdict of guilty on the alternative offence of inciting the complainant to do an indecent act, contrary to s 329(5) of the Code. He was also found guilty on counts 2, 8 and 9 but the jury returned verdicts of not guilty on counts 3, 4, 5, 6 and 7.
On 20 September 2005 the appellant was sentenced to a total effective sentence of 6 years' imprisonment, which his Honour ordered backdated to commence on 8 August 2005. He was made eligible for parole.
On 31 August 2005 the appellant filed an appeal notice. McLure JA gave leave to appeal on 25 October 2005.
There are four grounds of appeal. In summary they are:
(1)The trial Judge erred in not allowing the complainant's mother to give evidence of certain statements made to her by the complainant five days after the offences, which were inconsistent with her evidence at trial and were directly relevant to the facts in issue.
(2)The Judge erred in not allowing the complainant's mother to give evidence of her relationship with the complainant, which was relevant to the question whether the complainant had a motive to be untruthful and manufacture false testimony to obstruct the discovery of the truth.
(3)The trial Judge erred in that even if the evidence of the complainant's mother as to her relationship with the complainant was relevant only to the complainant's credibility, that evidence should have been admitted because the complainant's credibility was inextricably linked to whether or not the offences occurred.
(4)The verdicts of guilty on the alternative to count 1, and on counts 2, 8 and 9 were factually inconsistent and incompatible with the not guilty verdicts on counts 1, 3, 4, 5, 6 and 7, and are therefore unsafe and unsatisfactory.
The prosecution case at trial was as follows.
The prosecution case
At the relevant time the complainant was the 15‑year‑old daughter of the appellant's de facto partner. In February 2004 she had a job at a Hungry Jacks store, which she had started in December 2003, after finishing Year 10 at school. She was living in Mandurah with her mother, her 10‑year‑old brother and the appellant. She had an older sister, [J], who was not living at home. For a long time before that the complainant had not got along with her mother, but at that time they were getting along alright because her mother was pleased that she had got a job. The complainant described herself as getting along very well with the appellant "because we were friends and we always went out together and did stuff". She said he was friends with a lot of her friends and the two of them would just go and talk to them. On 11 February 2004 the complainant was at home by herself until about 2.00 or 3.00 pm, when the appellant returned home early. The complainant was supposed to work at Hungry Jacks that afternoon. After the appellant returned home he started drinking. He was drinking bourbon with a mixer, out of cans. He and the complainant decided to go for a drive. They went to see her mother where she was working in a supermarket, then to look at a house a friend of the appellant's was building. The complainant then telephoned B, who was a friend of hers who lived in Harvey. She had met him about six weeks earlier and gone out with him as her boyfriend. That only lasted a couple of weeks, after which their relationship was that of friends. She telephoned him because he was supposed to be coming to Mandurah to see her that weekend, but while they were driving the appellant had asked her to go to Perth with him for the weekend and she thought it was a good idea so she agreed.
When the complainant told B of the change to their weekend arrangements, the appellant suggested they go and see B that day. The complainant passed that on to B, who said it was fine for them to do that.
The appellant and complainant left Mandurah for Harvey about 4.00 pm. The appellant had already been drinking and he purchased more alcohol before they left. They drank during the drive. They got lost somewhere near Harvey and had to call B for directions. The appellant also stopped at a bottle shop to get more alcohol.
When they arrived at B's house, he introduced them to his family and neighbours. They were all drinking and talking.
B's father was inside the house. He did not take part in the conversation, but it became quite noisy and by that stage it was apparent that the appellant was clearly under the influence of the alcohol he had been consuming. The complainant described him as getting pretty drunk, stumbling around and slurring his words. She said he did not remain at B's house, but kept going over to the neighbour's place, trying to "get with" the girls who lived there.
B and the complainant decided to go for a walk to get away from the appellant, and so they could talk. They walked to a nearby oval, where they sat in the middle of the oval and talked. They sat on the ground. According to the complainant's evidence‑in‑chief, there was no physical contact between them.
About 15 minutes later, the complainant received a call on her mobile telephone from the appellant telling her that he was leaving and she was to return. The complainant did so and they both got into the car and drove out of Harvey. By this time it was dark.
Some little distance along, the appellant began talking to the complainant in a sexually suggestive way. He asked her what she and B had been doing at the oval. She told him they were just talking. He made some comments about his relationship with her mother and then moved on to talking about the complainant. He spoke of things he would like to do to her. He asked her if he offered her money whether she would let him "feel her up" or words to that effect. He offered her money to show him her body, but she refused. He offered her money to have sex with him but again she refused. The complainant could not recall the exact amount of money that was mentioned but thought it was somewhere in the vicinity of $400. These offers were the subject of count 1.
About five or 10 minutes later the appellant stopped the car and got out. It was a country road. There was nothing around. There were no street lights and there were no people around. The appellant told the complainant he had to relieve himself and got out of the car apparently to do that. He then told the complainant to get out of the car because there was something he wanted to show her.
While, when he made them, she had previously felt some concerns about the suggestions that he had made to her, she had no reason to believe the appellant was going to do anything to her at this stage. So she got out of the car. He then moved towards her and grabbed her, putting his arm around her neck. He did so with such force that he lifted her from the ground and she had difficulty breathing. He was yelling at her and telling her that she was to take off her clothes.
The complainant was wearing long pants and singlet, underpants and a bra. She was able to remove some of her clothing, but with the appellant's arm around her neck she was not able to remove all of it. He then took his arm from around her throat and forced her to the ground by pushing her with his hands. He forced her down onto her back with such force that it hurt her. There were rocks, twigs and leaves on the ground. This caused abrasions to her back. That was the subject of count 8.
She struggled while he had her on the ground but he maintained his hold and then took off his own pants and forced his penis into her vagina. She was struggling against him and telling him to stop. He was telling her to "shut up". This continued for some 10 minutes while the complainant was lying on her back. It caused her a lot of pain. She was struggling so much that it appeared to cause the appellant some annoyance. He continued to yell at her, eventually removing his penis and forcing her to turn over and putting her onto her hands and knees. He continued to hold her. Her face was near the ground and he then penetrated her vagina with his penis from behind. That constituted count 3. At that stage she was telling him to get off and crying but he did not respond to her protestations. Instead, he turned her over again forcibly, putting her onto her back and then commenced penile intercourse with her again whilst she was in that position. That constituted count 4.
That went on for some time, the appellant still telling her to shut up in an angry tone. After a while he stopped and removed his penis and said words to the effect that if she did not like it that way she could "suck him off" and make him come. He then pulled her up and he sat down and pulled her over towards him, forcing her head down. He pulled her head onto his penis, forcing her head up and down while her mouth was on his penis. At that stage the complainant wanted to throw up. She was trying to get away but could not move because he was continuing to hold onto her. That sexual penetration constituted count 5.
Whilst she was still on the ground lying on her back he masturbated himself over her with one hand while holding her down with the other. That constituted count 6.
After that he pulled the complainant up off the ground and pushed her into the back of the car. Both of them were still in a state of undress. He climbed in over the top of her and put his penis into her vagina again. That constituted count 7. She was still crying and telling him to stop it. At first he did not say anything to her but after a while he stopped, removed his penis and got off her. They both got dressed.
The complainant could not remember whether there was any discussion at that point, but they both got into the car and the appellant drove her back to Harvey and to her friend B's house.
Originally she had been seated in the front passenger seat but on the drive back to Harvey she was sitting in the back seat because she did not want to sit near the appellant. During the course of that drive the appellant told her that if she told anyone about what had happened he would kill her and her family. He said that he would hand himself into the police but would have to kill her. He was very angry and she was very scared.
During the course of the short journey back to Harvey she text messaged B to let him know that she was coming.
In his evidence B confirmed that he did receive a text message which, although it did not indicate what had occurred, conveyed to him that something was wrong. That was in the early hours of the morning.
Whilst on the way back to Harvey the appellant offered the complainant what money he had on him, which was $150. He gave that to her. When they arrived at Harvey, B was waiting outside his home. The complainant got out of the back of the car and the appellant drove off without speaking to B. B had woken his father. They both saw that the complainant was dishevelled, upset and clearly traumatised. They asked what had happened. Initially she did not want to speak to B's father but only to B alone. His father went back to his bedroom and returned to bed. The complainant told B that she had been sexually assaulted and had been raped. B then again awoke his father who returned with B to the complainant and she told him the same thing. He insisted that she go to the hospital. With some reluctance the complainant agreed to do so. At the hospital she spoke to police officers. Initially she did not want to press any complaint given the threat that had been made to her by the appellant.
The complainant was subsequently taken to Bunbury Regional Hospital and was seen by Dr Myburgh. On examination she had abrasions over the mid thoracic region on her back with swelling and tenderness beneath. The area of tenderness was about five centimetres across. There were three small midline abrasions down the lumbar area of the spine. Dr Myburgh opined that the injuries were consistent with lying or being forced to lie on a hard, rough surface. At that stage there was no visible bruising, suggesting that the injuries were less than 24 hours old. Dr Myburgh also did a genital examination which established that the complainant had swollen and red labia minora, the left being more swollen than the right, and in the high vagina there were small amounts of clear secretions. These findings were consistent with recent sexual activity.
Swabs were taken and later analysed. The swabs from the complainant's high vaginal area were consistent with semen but there was no spermatozoa in the semen.
As it happened, the appellant had previously had a vasectomy. That operation does not effect the production of semen, which is produced in the prostate gland, but it does mean that no sperm is produced. The appellant had been tested subsequent to his vasectomy and the pathology tests showed it had been successful in that he thereafter no longer had sperm in his semen.
Ground 1: What complainant said to her mother five days later
The evidence the subject of ground 1 concerned a conversation the complainant's mother had with the complainant on 16 February 2004. From what was put to the complainant in cross‑examination and counsel's submissions to the trial Judge, the mother's evidence on the particular matters would apparently have been that the complainant told her that on the same day but before she was sexually penetrated by the appellant, the complainant had kissed, cuddled and laid down on the ground underneath B and "fooled around" with him at Harvey. The mother would also have said that the complainant told her that when the appellant assaulted her, he lifted her off the ground and was digging his fingers into her throat to such an extent that she almost passed out, and further, that as a result of being assaulted by the appellant, she was covered in blood, and that there was blood all over the back and front seats of the car, but it had since worn off.
In cross‑examination the complainant confirmed her earlier evidence that after they had been at B's house for some time, the appellant, who had been drinking cans of bourbon and coke, was quite drunk, stumbling around and slurring his words. She said she had not drunk as much and so did not feel too bad, although she was affected by the alcohol. The questions continued as follows (t/s 51 ‑ 52):
"Then at some stage you and [B] went for a walk?---Yes.
You had gone out with [B] at some stage previously for two weeks, I think you said?---Yes.
You walked to an oval nearby his house?---Yeah.
You then started kissing and cuddling on a seat or a bench at the oval, did you not?---No.
Isn't it the case that he lay on top of you on the bench?---No.
Then on the ground?---No.
Then you were fooling around?---No.
There was sexual activity with his hands feeling your breasts and vagina?---No.
Including penetrating your vagina?---No.
That didn't happen?---No.
You weren't at any stage kissing or cuddling on the ground?---We were cuddling but nothing else.
All right. When you were cuddling were you lying or sitting?---Sitting.
Did that cuddling include kissing?---No.
Did that cuddling end up on the ground?---No.
So there was some physical contact?---Yes.
Because I think when my learned friend talked to you you said there was no physical contact. You didn't mention any cuddling earlier on. Is that right?---Yes.
But that's not correct?---No."
Counsel then asked the complainant if she remembered going to her older sister's house the following Monday, where their mother also went:
"Do you recall talking to both [your sister] and your mother about [B] and you kissing and cuddling on 11 February?---No..
Do you recall that you said you were fooling around?---No.
Do you recall that you agreed he was on top of you on the ground?---No.
Do you recall that you said you were kissing?---No.
And do you recall that you said you only didn't have sex because he didn't have protection?---No.
Did you say that to your mother and [sister]?---No.
So that never happened?---No.
When you were cuddling was it an intimate embrace or just a friendship embrace?---A friendship.
It didn't lead on to anything?---No.
And then you continued talking?---Yes.
You weren't interrupted by a phone call?---Yes.
Is that when the cuddle stopped?---Yeah.
How long did the cuddle go for?---It was more just me leaning up against him."
Then followed some cross‑examination about the car trip. The complainant agreed the only concern she had about driving back to Mandurah with the appellant was because of his intoxication and that he was very drunk. She said she could recall the appellant was complaining about her mother and that she was being too controlling, but the complainant could not remember what he said. Their conversation was more about him. There were then the following questions and answers (t/s 54):
"At this stage you knew that your mum had tried to telephone you on a number of occasions, did you not? It was on your mobile phone?---I don't remember.
And that you said to [the appellant] you weren't going to return the calls because you would be in too much trouble?---No, I don't remember.
You were concerned that your mother expected you to be working at Hungry Jack's and she had expected you would drop your resumes off and you were very concerned about the reception you would get when you got home?---No, not really.
You were concerned that because of the arguments you were having with your mum, that if you went home there would be a big fight?---No, not really.
You were ?‑‑‑I'm not very concerned about it.
You weren't that concerned?‑‑‑No. [The appellant] seemed more concerned than what I was."
She reiterated she could not recall her mother ringing and denied she was deliberately not answering her phone because she knew her mother was calling her. She said she could not remember whether the appellant said anything sexual about her mother. Counsel then referred the complainant to the statement she had made to Detective Duncan on 25 February 2004. The complainant said she could recall making the statement but not what was in it. When it was put to her, she agreed she had said there that in the car the appellant had made certain comments to her about her mother's body and said he was running out of reasons to tell the complainant's mother why he did not want to have sex with her. She agreed she had told that to the detective, but repeated she had forgotten about it, and added that the appellant used to say it quite often about her mother. When it was put to her that the appellant never said anything of the sort, she adhered to what she had earlier said.
Later, in cross‑examination, when being asked about what happened after the appellant stopped the car, got out and called to her, she said "I was pretty drunk by then, so I just got out." She repeated her earlier account. She said he grabbed her, putting his arm around her throat and then he was lifting her off the ground. The cross‑examination then continued (t/s 61 ‑ 62):
"He didn't say anything to the effect of, 'You should have known I would do this to you. You should have taken the money'?---I can't remember.
It's something you would forget?---Yes. I don't remember a lot of what happened.
All right, because at paragraph 73 you said, 'He said in an aggressive way, "You should have known I would do this to you and should have taken the money"'?---Yes.
Do you recall it now, or you can't recall it?---I don't remember it happening, no.
But it is in your statement?---Yes.
Do you recall talking to your mum about what happened on Monday, the Monday after the Wednesday?---No.
Do you recall saying to your mum he said words to a similar effect, 'It would have been easier if you had taken the money' after the incident when you were in the car?---I don't remember.
Could he have said that?---I don't know.
So he squeezed you once, lifted you off the ground, then pushed you on the ground, did he?---Yes.
Are you sure of that?---Yes.
Were your clothes taken off when you were on the ground or off the ground?---Off the ground.
How many times did he lift you off the ground before your clothes were taken off?---I was off the ground nearly the whole time.
So it would have happened three or four times he was lifting you off the ground, on and off the ground?---Yes.
Sorry?---Yes.
And his grip was extremely tight?---Not extremely tight but it was pretty tight.
So tight that you could hardly speak?---Yes.
So tight that you were having difficulty breathing?---Yes.
And with this grip he lifted you off the ground three or four times?---Yes.
Was it sore?---Yes.
Did you tell the doctor about any of this, about gripping you around the neck to the extent?---Yes.
And you told her how sore your neck was?---Yes.
Did the doctor examine your neck?---I can't remember.
Did you have any bruises on your neck?---No.
Do you recall telling your mum on Monday, 16 February, that [the appellant] lifted you off the ground and was digging his fingers into your throat to such an extent you almost passed out?---His fingers weren't near my neck.
All right. Do you recall telling your mum that?---No.
You didn't tell your mum that?---I can't remember.
Or if I put to you you did would you disagree or you simply can't recall?---I can't remember.
Even though you say his fingers never touched your neck, they never dug in?---No."
Later still, counsel came to the point about blood (at t/s 70 ‑ 71):
"Did you bleed at all in regard to this incident, or any ?‑‑‑Yes.
All right. Did you bleed on your top?---On the back of it I think the doctor said there was a bit of blood on it, but I can't remember. I didn't look at it.
Do you recall on Monday, 16 February, talking to your sister and your mother and saying you were covered in blood and there was blood all over the back of the car?---No.
Do you recall everyone going to the car and having a look at the back seat?---No.
You included?---No.
And do you recall ?‑‑‑We didn't.
Do you recall your mother saying, 'There's no blood there'?‑‑‑No, we didn't do that. I knew there was no blood in the back seat because I sat on there on the way back.
All right. Did you say to your mother and your sister that because of this incident you were covered in blood and there was blood all over the back seat of the car?‑‑‑No, I did not.
Do you recall your other and your sister and you looking at the back seat of the car on Monday, 16 February?‑‑‑No.
Do you recall then saying, 'I moved to the front seat after that'?‑‑‑No.
Do you recall your answer that the blood must have worn off?‑‑‑No.
That didn't happen, no such conversation?‑‑‑No.
I put to you there was. Do you agree or disagree?‑‑‑I disagree."
Towards the end of the prosecution case, a number of matters were raised with the Judge by counsel in the absence of the jury. Senior counsel for the State said he anticipated from the cross‑examination of the complainant that the defence intended to call either or both the mother and sister to give evidence of their conversation with the complainant. He submitted the evidence would be collateral as going only to the credit of the complainant and the defence ought not be permitted to adduce it. Counsel for the appellant submitted the evidence would not go only to the complainant's credibility, but would be "fundamentally relevant" to [proof of] what had occurred. He submitted the evidence could properly be led to prove a prior inconsistent statement as permitted by s 21 of the Evidence Act 1905 (WA).
The trial Judge ruled (t/s 183) that on the authorities, specifically Narkle v The Queen (2001) 23 WAR 468 and PB v The Queen [2003] WASCA 183, the evidence was collateral and could not be led.
The fundamental prerequisite for the admission of evidence is relevance. That which is irrelevant is not admissible. That which is relevant is admissible unless excluded by an evidentiary rule (Smith v The Queen (2001) 206 CLR 650 at [6], per Gleeson CJ, Gaudron, Gummow and Hayne JJ). Evidence is relevant if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue (Goldsmith v Sandilands (2002) 76 ALJR 1024, per Gleeson CJ at [2]). One of the evidentiary rules of exclusion is that answers to collateral questions are final ("the collateral evidence rule") (Goldsmith, supra, per Gleeson CJ at [3]; McHugh J at [37] ‑ [41], Hayne J at [82] ‑ [83] and Callinan J at [96]). A witness may be pressed on such an answer by a cross‑examiner to get a different answer (Western Australia v Watson [1990] WAR 248 at 288 ‑ 289) but may not adduce other evidence to contradict the witness. The collateral evidence rule is a rule of law, not practice, or discretionary case management (Nicholls v The Queen (2005) 219 CLR 196 per Gleeson CJ at [2], Kirby J at [204] and Hayne and Heydon JJ at [286] ‑ [289]).
Evidence which goes only to the credit of a witness is one category of collateral evidence, so that ordinarily, and subject to well recognised exceptions applicable to the rule generally, a cross‑examiner is bound by the answer to a question that goes only to credit (Goldsmith, supra, per Gleeson CJ at [3]).
There are four exceptions to the collateral evidence rule. They are that:
(1)a witness has been convicted of a crime,
(2)a witness is biased in favour of the party calling them,
(3)that a witness has previously made a statement inconsistent with their present testimony, or that
(4)the moral character or physical condition of the witness is such as to militate against them telling the truth.
It is necessary here to consider only the third.
Narkle (supra) had similar features to the present case. There the appellant was convicted of three offences upon a 15‑year‑old complainant. One of those was assault with intent to facilitate the commission of a crime, namely some sort of sexual offence. The complainant's evidence was (in part) that the appellant had assaulted her, knocking her to the ground and struggling with her, in the course of which her shirt was torn open and her brassiere disarranged so that her breasts were exposed. She escaped and ran to a nearby restaurant, arriving in that condition and in a distraught state. A doctor who examined her the following day provided a report. That was not in evidence. It did note she had told him the appellant had tried to kiss her breasts. The complainant did not say that in her evidence at trial. In cross‑examination she denied ever having told that to the doctor. Defence counsel sought to call the doctor to testify the complainant had told him that. The trial Judge refused to allow that. His ruling was upheld on appeal. The Court (Kennedy, Pidgeon and Murray JJ) held that whether or not the complainant had said that to the doctor was relevant solely to her credit and had no relevance to the facts in issue or the subject‑matter of the proceedings. It was therefore collateral and counsel was bound by the complainant's answers in cross‑examination.
The Court was referred to s 21 of the Evidence Act 1906 (WA), which is relevantly in the following terms:
"Every witness under cross‑examination in any proceeding, civil or criminal, may be asked whether he has made any former statement relative to the subject‑matter of the proceeding, and inconsistent with his present testimony, the circumstances of the supposed statement being referred to sufficiently to designate the particular occasion, and if he does not distinctly admit that he made such statement, proof may be given that he did in fact make it."
The Court held the phrase "relative to the subject‑matter of the proceeding" meant relevant to the subject‑matter of the proceedings (Kennedy J at [2], Murray J at [39]). Kennedy J (at [5] quoted the following passage from the judgment of Devlin J (for the Court of Criminal Appeal) in R v Hart (1957) 42 Cr App R 47 on the equivalent English provision ("Lord Denman's Act"):
"The provision under which that evidence was sought to be made admissible is now contained in s 4 of the Criminal Procedure Act 1865 (UK), which re‑enacted the Common Law Procedure Act 1854 (UK). Before that it had probably been the common law that, quite apart from any statute, questions were admissible - certainly in the ordinary common law courts - whereby if a witness gave evidence of a fact that was relevant to the issue (and that is important, because if the question merely goes to credit, he cannot be contradicted) it could be put to him that on some earlier occasion he had made a contrary statement to somebody else and, if he denied it, that somebody else could be called. What was probably the common law was certainly made statutory by the Common Law Procedure Act 1854, and then by Denman's Act the Criminal Procedure Act 1865."
Murray J distinguished Bannister v The Queen (1993) 10 WAR 484 in which it was held evidence could be given to disprove the complainant's denial that six days after she had allegedly been sexually assaulted by the appellant, she sexually propositioned him. The evidence was as to a fact, namely that the complainant had subsequently sexually propositioned the appellant. The evidence was admissible not merely to show the complainant's denial that she had was false (although that of course was an important incidental effect) but to prove the fact that she had so sexually propositioned him. Whether or not she had done so was not collateral because if the evidence (that she had done so) was accepted, it raised the unlikelihood that she had been sexually assaulted by him six days earlier. (As Franklyn J expressed it in Bannister (at 488):
"… the evidence … went beyond a mere matter of credibility and went to the issue of whether the events of which the complainant gave evidence occurred."
In Narkle, proof that the complainant made the statement to the doctor had no relevance to any fact in issue. Likewise, his Honour distinguished R v Funderburk [1990] 1 WLR 587, in which the Court of Appeal held the trial Judge to have been wrong in refusing to allow the defence to call a witness to prove that before the first alleged offence of unlawful sexual intercourse with her by the appellant, she told the witness she had had sexual intercourse with two men. The prosecution case was that she had been a virgin when the first offence occurred and in evidence she had denied telling the witness she had previously had intercourse. The Court of Appeal held that did not merely go to her credit, but was sufficiently closely related to the subject‑matter of the proceedings to require the evidence to be given. The complainant was hardly likely to have lost her virginity when the appellant first had intercourse with her, if she had previously admitted having lost it on an earlier occasion.
In Nicholls, the High Court was primarily concerned with the bias exception to the collateral evidence rule. The question was whether the trial Judge erred in refusing to admit evidence concerning statements made by the key Crown witness. Those statements were to the effect that the witness was being encouraged to implicate the co‑appellant Coates, that Coates was not involved in the murder and that the key witness intended to give false evidence. The Court held the evidence was inadmissible because it was collateral to the issues in the case and that even if it may have been admissible under the exception going to bias or corruption, it had properly been excluded because no proper foundation for it had been laid in cross‑examination, either under s 21 of the Evidence Act or at common law.
Hayne and Heydon JJ (with whom Gleeson CJ agreed) pointed out (at [286]) that:
"[W]hatever the difficulties of definition and approach, the law as it stands does not permit any relaxation of the traditional rules merely on the ground that the particular witness's credibility is inextricably linked with the principal issue in the case."
Their Honours went on to say (at [287]):
"The appellants relied on statements to the effect that 'where the disputed issue is a sexual one between two persons in private the difference between questions going to credit and questions going to the issue is reduced to vanishing point' (R v Funderburk [1990] 1 WLR 587 at 597; [1990] 2 All ER 482 at 491 (unlawful sexual intercourse without witnesses). See also R v Chandu Nagrecha [1997] 2 Cr App R 401 at 406 (indecent assault without witnesses); R v Lawrence [2002] 2 Qd R 400 at 405 [13], per McPherson JA; at 415‑416 [48]‑[51], per White J (rape with no witnesses)). The appellants sought to widen those statements beyond cases involving sexual offences in private to all cases of strongly disputed credibility. But that line of reasoning has been criticised even in sexual offence cases. It has been accepted in cases where the only significant issue is consent, but not where the issue is whether the acts took place; if it were to apply where the issue is whether the acts took place, it would apply to any offence of which there is no extrinsic evidence and no disinterested witness (Bannister v The Queen (1993) 10 WAR 484 at 494). It has also been said that to use it 'as a basis for departing from the general rule of finality would leave too wide a gap in that important rule' (R v LSS [2000] 1 Qd R 546 at 555 [31], per Thomas JA. See also Narkle v The Queen (2001) 23 WAR 468 at 480‑481 [49], per Murray J; Kennedy and Pidgeon JJ agreeing. R v Chandu Nagrecha [1997] 2 Cr App R 401 was criticised by McHugh J in Goldsmith v Sandilands (2002) 76 ALJR 1024 at 1031‑1032 [41] fn 43; 190 ALR 370 at 381)."
Their Honours did not go on to express any conclusion about those arguments, because for the reasons they then adumbrated, the case before them was wholly distinguishable. Nonetheless, they do bear upon this appeal. It should also be noted that the proposition expressed in "Cross on Evidence" (6th Aust ed) at [19070] to the effect that in sexual cases, the difference between questions going to credit and questions going to the issue is reduced to vanishing point, was expressly rejected by the Court of Criminal Appeal in Narkle (see Murray J at [44] ‑ [49]).
Before returning to the conversation of 16 February 2004 of which defence counsel sought to lead evidence, it is necessary to briefly advert to some of the testimony given by B.
According to him, after the appellant and complainant had been at his house for some time, the appellant (who by then was "pretty tipsy") drove them down to a liquor store to buy more alcohol. Whilst there, the appellant said (t/s 130):
"Where are all the sluts? I don't give a fuck, I just want a root."
After he purchased some more Southern Comfort and bourbon and coke, the three of them returned to B's house, where the appellant continued drinking. The appellant became loud. He started slurring his words and "… just carried on and on about being horny and wanting sex".
B said he and the complainant went to the oval (he described it as "the park") to get away from the appellant and to talk. B was upset about what he had seen of the appellant's behaviour and also what the complainant had told him about how he had been on the drive to Harvey. Then, in his evidence‑in‑chief, he said (t/s 132):
"Were you sitting on the ground or a bench?---On the ground.
Both sitting down?---Yes.
How closely sitting together were you?‑‑‑Pretty close.
Was there any physical contact between you?---Yes.
What sort of physical contact?---Friendly physical contact.
What do you mean by that?‑‑‑Mates, as in mates that have broken up.
What did you do?‑‑‑I suppose comfort her, you know.
Well, did you touch her in any way?‑‑‑Yeah, just held her.
How did you hold her?‑‑‑She was sitting down. I was just kind of laying down, just listening until she told me, and it was just - you know, just like that on her leg and saying what she'd been up to and all the rest of it until she said what she said.
Well, did it progress beyond that, touching her leg?‑‑‑No.
Was there any kissing that took place?‑‑‑Before she told me there was a kiss.
Anything more than a kiss?‑‑‑No.
Did sexual intercourse at all occur?‑‑‑No, no.
How long were you at the park for?‑‑‑Maybe 30 minutes, 45.
And was there something that caused you to leave the park?‑‑‑Yes.
What was that?‑‑‑[the appellant] had called her mobile."
B said that when they returned to her house the appellant was very drunk. He looked very sleepy and was "… continuing on about wanting sex and getting a root". B was concerned about the complainant going with the appellant, but she did go nonetheless.
On the matter of what happened at the oval, the cross‑examination went as follows (t/s 139 ‑ 140):
"And you kissed?‑‑‑(indistinct)
All right. Did you embrace, kiss and cuddle?‑‑‑(indistinct)
And were you lying down when you kissed?‑‑‑I was.
What was [the complainant] doing?‑‑‑She was sitting.
Wasn't it more than kissing? You were also touching each other, would that be fair to say?‑‑‑Not in the way that you're hoping.
I'm just asking what occurred. Were you being amorous, both being affectionate towards each other?‑‑‑Yes.
And that involved touching each other's body with each other's hands?‑‑‑Yes.
And touching her genitals?‑‑‑No.
Where did you touch her if you didn't touch her genitals?‑‑‑On her leg.
Isn't it the case that you actually digitally penetrated her? She still had her clothes on but you digitally penetrated her?‑‑‑No.
Are you sure of that?‑‑‑I'm sure.
And didn't it get to the stage where things were getting quite heated and the only reason you didn't have sex was because you didn't have protection?‑‑‑No.
That wasn't mentioned at all?‑‑‑No.
You didn't say that to [J]?‑‑‑No.
Are you sure of that?‑‑‑Yes.
So as far as it went was kissing, cuddling and touching?‑‑‑Yes.
And she was touching you and you were touching her?‑‑‑Yeah.
And that was on the oval, on the ground?‑‑‑Yes.
And she didn't touch you under your clothes?‑‑‑No.
And you didn't touch her under her clothes?‑‑‑No.
Are you sure of that?‑‑‑Yes."
I return to ground 1 as particularised.
This was not a case in which the only issue was consent. The appellant's defence was that the incident did not occur at all.
Evidence from the complainant's mother that five days after the alleged incident, the complainant told her that prior to it, she had been kissing, cuddling, lying on the ground underneath and "fooling around" with B, if accepted, would not be proof of any fact other than that the complainant told her mother those things. It would not be proof that they happened. That evidence could not have been relied upon to prove that the complainant had suffered the abrasions whilst lying on the ground of the oval with B - nor, indeed, could it have been relied upon even to raise that as a reasonable possibility (although that seemed to be the effect of what Mr Hunter was putting. All that evidence could prove, if it was accepted, was that the complainant had made the statement which her mother and sister (apparently) said she made. That could only have gone to her credibility. As Murray J recognised in Narkle (at [33]), that would not necessarily determine whether it went only to a collateral issue - that depended upon the evidence having a relevance not merely to credit but also to a fact in issue.
There was no evidence whatsoever here that the complainant had engaged in any sexual activity with B. But even if there had been, that could not have gone to any issue joined between the appellant and the State in this case. Even then, it could only have gone to the complainant's credibility (and I note in passing, nor would such evidence itself have accounted for the semen without sperm in the complainant's vagina). I mention this only because it is reflected in Particular (b) to this ground and seemed to underlie the submissions advanced on behalf of the appellant. The contention could only have been that the evidence was capable of proving the complainant received the abrasions to her back as a result of some sexual activity on the ground with B at the oval. The evidence of the mother about what the complainant told her never had the capacity to prove that. The evidence could bear only upon the complainant's credit. It could not be "relative" (relevant) to any issue in the case, nor to any fact relevant to a fact in issue. The trial Judge was right to rule it inadmissible.
In her reasons for judgment, McLure JA opines (at [ ]) that if Narkle is authority for the proposition that s 21 of the Evidence Act only permits the calling of contradictory evidence that is both relevant and admissible to prove a fact in issue (and thus does not permit the calling of contradictory evidence that is relevant and admissible only to credit), then in her Honour's view it is wrong. With respect, if that assumption be correct, there is much to be said for her Honour's analysis. However, this Court (as with its predecessors, the Full Court and the Court of Criminal Appeal) may, but ordinarily will not, overrule one of its previous decisions except when the Court comprises a number of Judges greater than the number who sat on the earlier case (Re Calder; Ex parte Cable Sands (WA) Pty Ltd (1998) 20 WAR 343, 354; Re Shire of Swan; Ex parte Saracen Properties Pty Ltd (1999) 105 LGERA 343; Pilcher v HB Brady & Co Pty Ltd [2005] WASCA 159, [24]). Even so, the Court of Appeal will not lightly depart from one of its previous decisions. It should only do so in circumstances in which it is convinced that the earlier decision was wrong or when there is some other compelling reason why the previous decision should no longer be followed: Re Calder (supra), per Steytler J at 354, citing Craig v Troy (1997) 16 WAR 96 at 162 and Traegar v Pires de Albuquerque (1997) 18 WAR 432 at 434, 447. In this regard, see also Re Full Board of the Guardianship and Administration Board (2003) 27 WAR 475 at 484 ‑ 486.
In the present case, no argument was advanced that Narkle was wrongly decided, and in my view it is inappropriate in that circumstance to depart from the construction of s 21 of the Evidence Act which was there articulated. But I take a different view from McLure JA on what that was.
I do not read any particular importance into the words "proof of" used by Murray J in explaining (at [39]) that in Funderburk the court held that the words "relative to the subject matter of the indictment" contained in s 4 of Lord Denman's Act meant "relevant to proof of a fact in issue". The words "proof of" in that context are not to be found in Funderburk.
There the court drew a distinction between the test to be applied in determining whether a question of cross‑examination could properly be put as going to credit and that to be applied in determining whether inconsistent evidence could be adduced in accordance with s 4 of Lord Denman's Act to contradict the evidence relative to the subject matter of the proceeding. The court held (at 594) the test to be applied to the former was that found in the judgment of Lawton J in R v Sweet‑Escott (1971) 55 Cr App R 316, 320, namely that:
"… Since the purpose of cross‑examination as to credit is to show that the witness ought not to be believed on oath, the matters about which he is questioned must relate to his likely standing after cross‑examination with the tribunal which is trying him or listening to his evidence."
The court then said (594) there was nothing in s 4 which would prevent a witness's previous statement inconsistent with his testimony being put to him to challenge his credibility, even where the section did not allow the evidence of the making of the inconsistent statement to be given, referring to R v Hart (1957) 42 Cr App R 47. In the present case, the complainant was questioned about what she was alleged to have said to her mother and sister. She denied it. The point in contention is whether proof of a prior inconsistent statement could then be given under s 21 of the Evidence Act.
The reference by the Court of Appeal to Hartis instructive. At trial, the defence case was that the victim was wounded with a knife accidentally by the appellant when he came at the appellant with a bottle. The prosecution case was that the victim had no bottle. Defence counsel put to the prosecution witness in cross‑examination that, contrary to his evidence‑in‑chief, he had told a defence witness the victim had a bottle. The witness denied saying that. The trial Judge refused to allow the defence witness to give that evidence. The Court of Criminal Appeal held that ruling to be wrong (for a different reason). Nonetheless, the court made the distinction between questions going to the issue and questions going only to credit. In Funderburk the court said (at 594) that an examination of the judgment in Hart:
"… suggests that the court proceeded on the basis that the question went to the issue 'accident or not', because the jury might have thought the point as to whether [the victim] had a bottle important."
The test which the court in Funderburk applied in respect of s 4 of Lord Denman's Act was whether, on the way the prosecution presented its case, the evidence challenged was sufficiently closely related to the subject matter of the indictment for justice to require investigation for the basis of such a challenge (598G). If that be so, the evidence sought to be adduced to contradict the witness would go beyond a mere question of credibility (599D‑E).
I do not read the judgment of Murray J in Narkle as intending to express any different principle than that to be found in Funderburk. His Honour was applying the principle as he discerned it from that case. The point of difference was in the application of the principle to the different facts in Narkle. Thus, his Honour concluded (at [43]) that there was "no element of relevance" of the kind to be found in Funderburk and Bannister in that case. The evidence the appellant proposed to adduce "was solely to the credibility of the complainant" and "had no relevance to the facts in issue or the subject matter of the proceeding" (my emphasis). I note his Honour does not there use the expression "proof of the facts in issue …".
This understanding of Narkle is reinforced by the reasons of Kennedy J, who expressed general agreement with Murray J, and said (at [6]) of the evidence sought to be led:
"In my opinion, this was a matter merely going to credit. It was not such as to fairly influence the belief of the jury as to any matter in dispute." (My emphasis)
Pidgeon J agreed with the reasons given by Kennedy J and "one further observation" of Murray J
It is true to say that evidence from the mother that the complainant told her that when the appellant assaulted her and lifted her off the ground, he was digging his fingers into her throat, if accepted, could prove only the complainant said that, not that that was what in fact happened. I do not understand Mr Hunter to say otherwise, but he contends rather, that it ought to have been admitted because it was inconsistent with what she had said in evidence.
The third area of evidence was that in cross‑examination the complainant denied she had told her mother that as a result of being assaulted by the appellant she was covered in blood and there was blood all over the back and front seats of the car, which had worn off. Again, if given, such evidence from the mother could have proved only that the complainant had told her that. It clearly could not have gone to prove she was covered in blood and there was blood all over the back and front seats of the car. Nor did Mr Hunter seek to suggest that, for obvious reasons. Its only relevance was to the complainant's credit - but in a substantial way as to whether or not the assault had occurred as she had described it in evidence.
Each of these matters went well beyond a statement as to a single fact incidental to a detailed account (as the biting of the breast in Narkle). They were matters of obvious substance which, if the evidence of the mother and the sister was accepted, could have cast doubt on the complainant's evidence that the assault had happened at all. In my opinion, they went beyond merely the credibility of the complainant. The evidence sought to be adduced was sufficiently closely related to the subject matter of the proceedings for justice to require investigation for the basis of the challenge to the complainant's testimony (Funderburk, supra, at 599D‑E).
This ground must accordingly succeed.
Ground 2: Evidence by mother of her relationship with the complainant
Prior to opening the defence case, counsel for the appellant sought a ruling from the Judge on whether he could lead evidence from the complainant's mother. Unfortunately, what that evidence would have been was explained only in the most general terms. In exchanges with counsel, his Honour characterised it under three headings. The first was the complainant's relationship with her mother and who wanted whom to leave home; the second was the relationship between the complainant and the appellant; and the third was about the mother's efforts to contact the complainant and the appellant on 11 February 2004. His Honour ruled such evidence was collateral and could not be led.
Counsel made it clear that this ground is concerned only with the first category. The focus of the submission on this ground is that the evidence was admissible as an exception to the collateral evidence rule, and by not allowing the mother to give evidence of her relationship with her daughter, the Judge prevented the jury from appropriately considering whether the complainant, due to her rocky relationship with her mother and her fear of her mother confronting her after she missed work at Hungry Jacks, had the motivation to make up a story about being sexually assaulted, so she could avoid going home to a hostile reception from her mother. The proposition was put to the complainant in cross‑examination but she rejected it.
In her evidence, the complainant said that although she did not get along very well with her mother, they were getting on alright at the time because she had a job. She said she had not threatened to move out of home although there had been an argument a few weeks prior to 11 February 2004 because her mother had refused to allow her to move to Perth with her boyfriend. In cross‑examination she agreed that in the period leading up to 11 February she had been having a lot of arguments with her mother about curfews but denied she was angry with her mother for not letting her stay out at night. She denied threatening on numerous occasions to leave home and said it was her mother who always told her to leave.
The complainant's evidence was that she did not remember if her mother had tried to telephone her on a number of occasions on 11 February 2004 and that she could not remember looking at her mobile phone. She said it was not usually her practice to ring somebody back if she had been telephoned. She said she could not remember telling the appellant she was not going to return her mother's telephone calls because she would be in too much trouble. She said she was not really concerned about the reception she would get from her mother at home, even though she had not worked at Hungry Jacks as she was supposed to that day and had not dropped off resumes to prospective employers, which her mother had expected her to do.
On these matters, B testified that prior to leaving Harvey with the appellant, the complainant had told him she did not want to go home, because if she did she would be in trouble with her mother. He said she was concerned about going home because she had not gone to work that day at Hungry Jacks and did not want to have a big fight with her mother.
The appellant's evidence was that the complainant's mother had been trying to contact both of them during that afternoon by ringing their mobile telephones. He said the complainant told him she was not going to answer her mother's calls because she would get into trouble. He said that on the way back to Mandurah the complainant told him she did not want to go back and face her mother because she knew how upset her mother would be. It was his evidence that after stopping the car and relieving himself between Harvey and Mandurah, the complainant told him she did not want to go home because of the trouble she would be in with her mother, as a result of which he decided to return to Harvey and drop her at B's house, so she would not have to face her mother.
In her evidence, the complainant's mother said that she had expected the complainant to give out her resumes in the afternoon of that day and then go to work at Hungry Jacks afterwards. The mother said that she did not return home from her own work until about 6 pm at which time she cooked a meal. She tried to contact the appellant and the complainant by telephone because she did not know where they were or whether they were coming home for dinner. Her evidence was that she made a number of calls throughout the evening but got no response. She later got so worried she telephoned the police to find out if an accident had been reported. The appellant did not return home until around 8 pm, without the complainant.
It is submitted for the appellant that one of the exceptions to the collateral evidence rule is that evidence of an independent witness may be admitted where a primary witness has a motive for being untruthful and the statement of the independent witness contradicts testimony of the primary witness about a matter directly in issue, or to those matters which affect the motives, temper and character of the primary witness and which are inconsistent with the primary witness' evidence. That submission as a general principle may be accepted, but the question is whether the evidence sought to be adduced here was of that character.
The point was put to us that because of the bad relationship with her mother, the complainant anticipated that she would be in trouble with her mother for not distributing her resume that day and for not going to work, and as a way of avoiding that, she was motivated to make the false allegations which she was then committed to maintain. It was explained before us (at t/s 13):
"… the complainant said a number of things about her relationship with her mother and she was cross‑examined reasonably extensively on it because what effectively was put on the appellant's behalf is that she just didn't want to go home and she was going to do anything to avoid going home, so there are a lot of questions about her relationship with her mum, how she got on and eventually she agreed there were lots of arguments and lots of curfews initially after saying she was getting on reasonably well because she had a job, and then she said that her mum actually was always asking her to leave home and when she had made some sort of allegation before, she had called her lying bitch. That bit which was in evidence was adamantly denied by her mum, so what is said on behalf of the appellant, the mum should have been able to give evidence to be heard by the jury."
In Smith v The Queen (1993) 9 WAR 99 the trial Judge had taken the view that evidence sought to be adduced to contradict the evidence of the complainant was not evidence of "bias" and so was collateral and inadmissible. The Court of Criminal Appeal (Malcolm CJ, Rowland and Walsh JJ) held it was evidence of bias and so was squarely within the exception. That was a case in which the appellant had been convicted of two counts of sexual penetration of his foster child, a girl under 16, without her consent. Her evidence was that she left the foster home as a result. She denied subsequently telling the witness that the appellant and his wife had told her to leave because she was taking drugs, that she had later asked if she could come back but they refused, and that she then told the witness "they will all pay for it". That was clearly evidence that the complainant had given her testimony from "a corrupt or other wrong motive" (Piddington v Bennett & Wood Pty Ltd (1940) 63 CLR 533 per Latham CJ at 545).
McHugh J discussed the "bias" exception to the collateral evidence rule at some length in Nicholls (supra), at [61] ‑ [73]. At [62] ‑ [64] his Honour said:
"62Evidence rebutting a witness's evidence may be adduced where the witness is affected by one of three 'kinds of emotion constituting untrustworthy partiality', namely, bias, interest or corruption. Wigmore refers to emotional partiality in three senses. The first is bias in the sense of 'all varieties of hostility or prejudice against the opponent personally or of favor to the proponent personally. The second is interest in the sense of 'the specific inclination which is apt to be produced by the relation between the witness and the cause at issue in the litigation'. The third is corruption in the sense of 'the conscious false intent which is inferrible [sic] from giving or taking a bribe or from expressions of a general unscrupulousness for the case in hand'. Wigmore acknowledges that the 'theoretical place' of the corruption exception 'is not easy to determine. It is related in one aspect to interest, in another to bias, in still another to character (ie, involving a lack of moral integrity)'. Nevertheless, he observes that the essential discrediting element in relation to evidence showing corruption is 'a willingness to obstruct the discovery of the truth by manufacturing or suppressing testimony'.
63Cross on Evidence distinguishes bias 'in the sense of underlying and undue sympathy or hostility felt by the witness towards a party' from corruption 'in the sense of more specific interference with testimony, typically by way of bribery'. However, Cross on Evidence notes that 'similar principles' underpin both methods of attacking the credibility of an opponent's witness.
64In Hitchcock, Pollock CB accepted that independent evidence may be given to prove a self-contradictory statement made by a witness or to rebut a denial given by the witness in relation to the witness's state of mind or feelings towards a party. He referred to 'those matters which affect the motives, temper, and character of the witness, not with respect to his credit, but with reference to his feelings towards one party or the other'. Hence, evidence of what a witness said is admissible 'to shew what is the state of mind of that witness, in order that the jury may exercise their opinion as to how far he is to be believed'. While the 'interest' and 'bias' exceptions to the collateral evidence rule are typically limited to evidence about the feelings of the witness towards one party or the cause at issue, the so-called 'corruption' exception is not so confined. In Lawrence, Thomas JA remarked that:
'An offer to testify corruptly is a good and clear example of the "corruption" exception. There is no doubt that a legitimate collateral issue is raised in such a case, and that evidence to support such an allegation may be independently called'." (Citations omitted).
His Honour went on to give particular examples of matters which have been held before within the exception. They include evidence that an alleged child incest victim had admitted her mother had put her up to making the allegations (R v Phillips (1936) 26 Cr App R 17); evidence that the brother of an alleged incest victim had seen their mother coaching her (R v LSS [2000] 1 Qd R 546); and evidence that a witness had said he would lie in order to avoid offending the accused (R v De Angelis (1979) 20 SASR 288). By contrast, McHugh J also referred to R v Umanski [1961] VR 242 in which evidence that the wife of the accused, who was charged with incest, had threatened to give him up to the police unless she received a share of property from him was held to be rightly excluded because although it went to her credit as a witness, it fell short of tending to establish bias that might lead her to give false evidence.
The lack of particularity of the substance of what it was expected the complainant's mother would say here, both before the trial Judge and before us, is a major obstacle to the success of this ground. There is no suggestion the evidence would have been capable of showing motivation in the sense of any animosity or antipathy towards the appellant (as in Smith). It is difficult to see how evidence from the mother of her relationship with the complainant prior to 11 February 2004, about matters such as curfews, the mother's expectations of her daughter's employment and arguments between them generally, could have tended to prove the complainant was motivated by that relationship to make the grave allegations of these serious offences upon her by the appellant.
In my opinion the evidence sought to be led about the complainant's relationship with her mother, so far as it is possible to know what it would have been, simply did not bear the character of demonstrating a "corrupt or other wrong motive" for the making of these serious allegations against the appellant. It was accordingly correctly rejected by the trial Judge as going to collateral matters. Ground 2 is not made out.
Ground 3: Mother's evidence should have been admitted if only relevant to complainant's credibility
In support of this ground the appellant relies upon Smith, at 104 ‑ 105 and McHugh J in Palmer v The Queen (1998) 193 CLR 1 at [56] and Nicholls at [48], [55] and [56].
The passages from Smith are those which set out the observations in Funderburk concerning the proposition in "Cross on Evidence" that where the disputed issue is a sexual one between two persons in private, the difference between questions going to credit and questions going to the issue is reduced to vanishing point. As I have already observed, that proposition was expressly rejected as being a correct statement of the law, in Narkle at [44] ‑ [49].
In both Palmer and Nicholls, McHugh J was in dissent. In the paragraph from Palmer relied upon by the appellant, his Honour said (at [56]):
"The rigid distinction between credit and facts‑in‑issue and the rules predicated on that distinction should therefore be minimised by the adoption of a more flexible view as to when matters going to the credibility of a witness should be admitted as evidence probative of the facts‑in‑issue. Evidence concerning the credibility of a witness is as relevant to proof of an issue as are the facts deposed to by that witness. There is no distinction, so far as relevance is concerned, between the credibility of the witness and the facts to which he or she deposes. The credibility of evidence is locked to the credibility of its deponent. The truth of that proposition is in reality recognised by the rule that a witness can be cross‑examined as to matters of credit. Because that is so, it is irrational to draw a rigid distinction between matters of credit and matters going to the facts‑in‑issue."
McHugh J reiterated this view and his criticisms of the collateral evidence rule in Goldsmith (supra) at [32] and Nicholls at [44] ‑ [56]. He stated in Nicholls (at [47]) that he had long thought that the rule that answers in cross‑examination on collateral questions are final, is a rule of convenience, not a rule of law or principle, and (at [53]) that common law courts should now so regard it and should take a more liberal approach to admitting evidence showing a lack of credit or credibility of a witness than the traditional approach of the common law. However, the other six members of the High Court declined to redefine the rule as a guide to discretionary case management rather than a rule of law (Nicholls per Gleeson CJ at [2], Kirby J at [204], Hayne and Heydon JJ at [286] ‑ [289]).
The proposition on which this ground is founded is accordingly not sustainable as a matter of law and the ground must fail.
Ground 4: Inconsistent verdicts - "unsafe and unsatisfactory"
This is really a ground that the verdicts are unreasonable or cannot be supported having regard to the evidence (s 30(3)(a) Criminal Appeals Act 2004 (WA)). The test to be applied by an appeal court is whether the court thinks that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (Jones v The Queen (1997) 191 CLR 439 per Gaudron, McHugh and Gummow JJ at 450 ‑ 452). The court is not to answer that question merely by an examination of the transcript of evidence and the exhibits, but must have full regard to the fact the jury is the body entrusted with the primary responsibility of determining guilt or innocence and has had the benefit of having seen and heard the witnesses (M v The Queen (1994) 181 CLR 487, 493). The application of the test was explained by the majority (Mason CJ, Deane, Dawson and Toohey JJ) in M v The Queen at 494:
"In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence." (Citations omitted)
The appellant relies upon Jones, in which the accused was charged with three counts of unlawful sexual intercourse with a female child. The child was aged between 11 and 12 years at the relevant times. The Crown case was that the offences occurred when there was no‑one else present. The jury acquitted on one count but convicted on the other two. The High Court quashed the convictions, holding that the quality of the complainant's evidence on the counts on which the jury returned verdicts of guilty, was no higher than that on which they returned the verdict of not guilty. The verdicts were factually inconsistent and the convictions were accordingly unsafe and unsatisfactory.
The decision in Jones was fact specific and the case does not stand for any principle that in cases of complaints of a number of sexual offences, the jury must either accept or reject the entirety (MFA v The Queen (2002) 213 CLR 606, [89]). There is no general rule that in cases in which several sexual offences depend upon the testimony of the complainant, acquittal on one or more counts compels the conclusion that the jury must necessarily have regarded the complainant generally as an untruthful witness or that her credibility was undermined in respect of the counts upon which they have convicted (R v PMT (2003) 8 VR 50 at [25] per Buchanan JA (with whom Charles and Chernov JJA agreed). If there is a proper way by which an appellate court may reconcile different verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court to substitute its opinion of the facts for one which was open to the jury (MacKenzie v The Queen (1996) 190 CLR 348 per Gaudron, Gummow and Kirby JJ at 367).
Counsel for the appellant also relies upon R v Whitehead [2000] NSWCCA 400 at [18] ‑ [20] for the proposition that where a jury has convicted an accused upon the uncorroborated evidence of the complainant in relation to some, but not all, counts on an indictment relating to a series of alleged sexual offences, that casts doubt upon the jury's verdict of guilty, which may constitute inconsistent verdicts. Whitehead was certainly decided on that basis, but the court there made it quite clear that whether there is inconsistency of that kind will depend entirely upon the evidence in the particular case.
It is not suggested the present case is one of legal inconsistency, whereby the differing verdicts cannot stand together as a matter of law. The contention is one of factual inconsistency. In that circumstance, the test is one of logic and reasonableness. As Devlin J expressed it in R v Stone, unreported; UKCCA EWCA Crim (Devlin J); 13 December 1954, the appellant:
"He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand."
That passage was cited by Gaudron, Gummow and Kirby JJ in MacKenzie (supra) in their Honours' distillation of general propositions to be drawn from the authorities on inconsistent verdicts, at page 366 ‑ 368. Their Honours relevantly went on to say:
"4. Nevertheless, the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense. Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury. In a criminal appeal, the view may be taken that the jury simply followed the judge's instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt. Alternatively, the appellate court may conclude that the jury took a 'merciful' view of the facts upon one count: a function which has always been open to, and often exercised by, juries. The early history of New South Wales was affected by English juries which, in the face of clear evidence, declined to find the value of goods stolen sufficient to attract the punishment of death, thereby affording to the offender the alternative punishment of transportation. Australian decisions have acknowledged that the role of the jury continues to be ameliorative in this respect. In R v Kirkman (1987) 44 SASR 591 at 593, in the Supreme Court of South Australia, King CJ (with the concurrence of Olsson and O'Loughlin JJ) observed:
'[J]uries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them, and courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges. Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty.'
We agree with these practical and sensible remarks.
5. Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty. More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law. It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside. It is impossible to state hard and fast rules. 'It all depends upon the facts of the case.'
6. The obligation to establish inconsistency of verdicts rests upon the person making the submission. But if, because of inconsistency between verdicts, the appellate court is persuaded that a verdict cannot stand, it must make consequential orders. In the case of a criminal trial, where the verdict has been followed by conviction and sentence, these must be set aside. Where the inconsistency is found between verdicts of acquittal and a verdict of guilty, the appellate court (statute apart) may not disturb the acquittal. It may be appropriate to enter a verdict of acquittal on the subject count(s) on the footing that this merely carries forward the logic of the other acquittal verdict(s). But once again, the relief which is appropriate depends upon the facts of the particular case." (Citations omitted)
The principles set out in MacKenzie were applied in MFA v The Queen. In that case, Gleeson CJ, Hayne and Callinan JJ noted (supra, at [33]) that where an accused is charged with multiple offences, differences between the verdicts may not, in truth, involve inconsistencies even of a factual kind. As they explained ([34]):
"Since the ultimate question concerns the reasonableness of the jury's decision, the significance of verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case. Furthermore, it must be considered in the context of the system within which juries function, and of their role in that system. A number of features of that context were emphasised in MacKenzie. They include the following. First, as in the present case, where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count. This will often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part. Secondly, emphasis will invariably be placed upon the onus of proof borne by the prosecution. In jurisdictions where unanimity is required, such as New South Wales, every jury must be satisfied beyond reasonable doubt of every element in the offence. In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant's evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant's evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others. Thirdly, there is the consideration stated by King CJ in R v Kirkman (1987) 44 SASR 591 at 593 and referred to in later cases, eg, MacKenzie v The Queen (1996) 190 CLR 348 at 367-8: it may appear to a jury, that, although a number of offences have been alleged, justice is met by convicting an accused of some only. And there may be an interaction between this consideration and the two matters earlier discussed. "
Count 1 charged the appellant with inciting a child to engage in sexual behaviour. The trial Judge correctly directed the jury that the term "sexual behaviour" in this context means sexual penetration (s 319(4) of the Code). The complainant's evidence was that the appellant offered her money "to have sex" with him. Both counsel at trial agreed (as did the trial Judge) that if the jury were in doubt about whether, if the appellant said that, he meant sexual penetration as opposed to some other form of sexual activity, they could not convict on count 1. That was why the alternative offence of inciting to do an indecent act was left to the jury. Given the guilty verdict on the alternative, the jury must necessarily have accepted the complainant's evidence going to count 1, but not been satisfied beyond reasonable doubt the appellant had incited her to engage in sexual penetration at that stage.
The next offence alleged chronologically, was in fact count 8, that of unlawful assault doing bodily harm. That related to the appellant pushing the complainant to the ground after lifting her off the ground by an arm around her throat and making her remove her clothes. The jury returned a verdict of guilty on count 8. The complainant's evidence in respect of that was supported by the abrasions to her back, which constituted the bodily harm. Dr Myburgh, the first doctor who saw the complainant shortly afterwards, gave evidence of those injuries. In short, there was evidence apart from the testimony of the complainant which tended to support that count.
The jury also returned a guilty verdict on count 2. That related to the first alleged act of penile/vaginal penetration. Again, there was independent support for the complainant's evidence that she had been sexually penetrated. That was the medical evidence of the condition of her vagina which indicated recent sexual intercourse and semen (lacking sperm) found high in the vaginal canal.
The authorities relied on by the appellant for that proposition do not support it. It is a compilation of different threads so as to render the statement incomprehensible. As far as I am able to tell, the appellant relies on the bias, interest or corruption exceptions to the collateral evidence rule: see Nicholls at [61] ‑ [73] per McHugh J; [261] ‑ [270] per Hayne and Heydon JJ. I am unable to see how the complainant's relationship with her mother provides an arguable foundation for a claim that one or more of these exceptions apply to the complainant's evidence against the appellant.
Even if any of the exceptions did apply, the appellant failed to lay an adequate foundation in the cross‑examination of the complainant for a claim that her relationship with her mother resulted in her being biased, interested or corrupted in so far as her evidence against the appellant was concerned: see Nicholls at [281] ‑ [283] per Hayne and Heydon JJ. The only proposition put to the witness was that she fabricated her evidence against the appellant because she did not want to go home.
Finally, even if the evidence was admissible either because it was relevant to a fact in issue (why the appellant returned the complainant to Harvey) or under an exception to the collateral evidence rule, any
resulting error would and should have no significance in determining the verdict for the reasons already given. I would dismiss ground 2.
BUSS JA: The relevant facts and the grounds of appeal are set out in the reasons of Roberts‑Smith JA.
I agree with Roberts‑Smith JA, for the reasons he gives, that grounds 3 and 4 of the grounds of appeal are without merit. I agree with McLure JA, for the reasons she gives, that ground 2 is without merit.
My opinion in relation to ground 1 is set out below.
The appellant alleges that the learned trial Judge erred in not permitting the complainant's mother to give evidence that, five days after the events in question, the complainant told her that:
(a)on the day of but prior to the commission of the offences, the complainant was "kissing, cuddling, lying on the ground underneath, and fooling around with" her former boyfriend, B;
(b)during the commission of the offences, the appellant "lifted her off the ground, and was digging his fingers into her throat to such an extent that she almost passed out"; and
(c)as a result of being assaulted by the appellant, the complainant was "covered in blood, and there was blood all over the back and front seats of the car which had worn off".
The appellant asserts that the excluded evidence was directly relevant to "the facts in issue in regard to whether the offences the Appellant was convicted of occurred" and "how the Complainant received abrasions on her back, which the Complainant said occurred as a result of being assaulted and sexually penetrated by the Appellant".
The learned trial Judge referred to Narkle v The Queen (2001) 23 WAR 468 and PB v The Queen [2003] WASCA 183, and ruled that the evidence could not be led. His Honour said:
"It does seem to me that the authorities as they presently stand, specifically Narkle and PB, mean that those questions are collateral and that the evidence cannot be led and I so rule."
The collateral evidence rule states that an answer given by a witness to a question in cross‑examination relating to collateral issues is final, and may not be contradicted or rebutted by other evidence. This common law principle is subject to exceptions. The general rule does not apply to:
(a)evidence of prior inconsistent statements;
(b)previous convictions;
(c)evidence of reputation for untruthfulness;
(d)medical evidence affecting the reliability of a witness's evidence; and
(e)evidence of bias, interest or corruption.
There are probably some other exceptions. See Nicholls v The Queen (2005) 219 CLR 196, per Hayne and Heydon JJ at 284 ‑ 285 [248] (with whose reasons Gleeson CJ, at 206 [1], agreed).
In Nicholls, McHugh J explained the nature of collateral facts. His Honour said, at 216 [38]:
"… Collateral facts are 'facts not constituting the matters directly in issue between the parties' (Piddington v Bennett and Wood Pty Ltd (1940) 63 CLR 533 at 546, per Latham CJ; Goldsmith (2002) 76 ALJR 1024 at 1025 [3]; 190 ALR 370 at 372, per Gleeson CJ) or 'facts that are not facts in issue or facts relevant to a fact in issue' (Goldsmith (2002) 76 ALJR 1024 at 1030 [32]; 190 ALR 370 at 378, per McHugh J). In most cases, a fact that affects the credibility of a witness is a collateral fact. Hence, an answer given by a witness to a matter that relates to credibility alone - in other words, a collateral matter - is final and cannot be rebutted."
In Nicholls, six members of the High Court declined an invitation by counsel to re‑define the collateral evidence rule, and characterise it as a guide to discretionary case management rather than as a rule of law.
In Attorney‑General v Hitchcock (1847) 1 Exch 91 [154 ER 38], Pollock CB enunciated, at 99 [42], a test for determining whether a matter is collateral or not:
"[T]he test, whether the matter is collateral or not, is this: if the answer of a witness is a matter which you would be allowed on your part to prove in evidence - if it have such a connection with the issue, that you would be allowed to give it in evidence - then it is a matter on which you may contradict him."
Pollock CB's test has been criticised as circular. See R v Funderburk [1990] 1 WLR 587 at 598. It is another way of saying that relevance to an issue other than credit is a necessary condition of admissibility. See Natta v Canham (1991) 32 FCR 282 at 295. Wigmore on Evidence, Chadbourn rev, 1970, vol 3A, page 1010, par 1020, formulates the test, as follows:
"Could the fact, as to which the prior self‑contradiction is predicated, have been shown in evidence for any purpose independently of the self‑contradiction?"
In Nicholls, McHugh J, at 216‑217 [40] ‑ [43], and Hayne and Heydon JJ, at 285 [249], reviewed the test for determining whether a matter is collateral.
In The Queen's Case (1820) 2 Brod & B 284 [129 ER 976], Abbott LCJ said, at 313 [988], in relation to the tender of a prior inconsistent statement:
"The legitimate object of the proposed proof is to discredit the witness. Now the usual practice of the courts below, and a practice, to which we are not aware of any exception, is this; if it be intended to bring the credit of a witness into question by proof of any thing that he may have said or declared, touching the cause, the witness is first asked, upon cross-examination, whether or no he has said or declared, that which is intended to be proved. If the witness admits the words or declarations imputed to him, the proof on the other side becomes unnecessary; and the witness has an opportunity of giving such reason, explanation, or exculpation of his conduct, if any there may be, as the particular circumstances of the transaction may happen to furnish; and thus the whole matter is brought before the court at once, which, in our opinion, is the most convenient course." [My emphasis]
If the witness denied making the statement then, as Abbott LCJ noted at 313 [988], "proof in contradiction will be received at the proper season".
In Crowley v Page (1837) 7 C & P 789 [173 ER 344], Parke B said, at 791 ‑ 792 [345]:
"Evidence of statements by witnesses on other occasions relevant to the matter at issue, and inconsistent with the testimony given by them on the trial, is always admissible in order to impeach the value of that testimony; but it is only such statements as are relevant that are admissible, and in order to lay a foundation for the admission of such contradictory statements, and to enable the witness to explain them, and, as I conceive, for that purpose only, the witness may be asked whether he ever said what is suggested to him, with the name of the person to whom or in whose presence he is supposed to have said it, or some other circumstance sufficient to designate the particular occasion. If the witness, on the cross‑examination, admits the conversation imputed to him, there is no necessity for giving other evidence of it; but if he says he does not recollect, that is not an admission, and you may give evidence on the other side to prove that the witness did say what is imputed, always supposing the statement to be relevant to the matter at issue." [My emphasis]
It is apparent, therefore, that Abbott LCJ in The Queen's Case and Parke B in Crowley v Page limited the right of a cross‑examiner to contradict a witness, by proving a prior inconsistent statement, to those statements which are "touching the cause" or are "relevant to the matter at issue".
The common law and legislative history in relation to the proof of prior inconsistent statements have been examined by A W Bryant, "The Adversary's Witness: Cross ‑ Examination and Proof of Prior Inconsistent Statements" (1984) 62 Can Bar Rev 43 at 44 ‑ 55, and by McHugh J in R v Soma (2003) 212 CLR 299 at 320 ‑ 323 [66] ‑ [76]. Parliamentary initiatives in the United Kingdom are summarised by Professor Bryant, at 54, as follows:
"The Parliament of the United Kingdom, as a result of the recommendations of the Common Law Commissioners, enacted the Common Law Procedure Act, 1854. Sections 23 and 24 of that Act dealt with the cross‑examination and proof of prior statements in civil proceedings. Prior to that Act's repeal, sections 23 and 24 were re‑enacted as section 4 and section 5 of the Criminal Procedure Act, 1865. The nomenclature of the Act is misleading because it applies to civil and criminal matters."
Section 21 of the Evidence Act 1906 (WA) was derived from s 4 of the Criminal Procedure Act 1865 (UK). Section 21 provides, relevantly:
"Every witness under cross-examination in any proceeding, civil or criminal, may be asked whether he has made any former statement relative to the subject-matter of the proceeding, and inconsistent with his present testimony, the circumstances of the supposed statement being referred to sufficiently to designate the particular occasion, and if he does not distinctly admit that he made such statement, proof may be given that he did in fact make it.
…"
Section 21 did not abrogate the common law in relation to prior inconsistent statements. The common law survived its enactment. Section 21 is, in essence, declaratory of the common law. See Nicholls per McHugh J at 232 [85] and per Hayne and Heydon JJ at 295 ‑ 296 [280]; R v Umanski [1961] VR 242 at 244. As Hayne and Heydon JJ observed in Nicholls, at 295 ‑ 296 [280]:
"The only purpose of s 23 [of the Common Law Procedure Act 1854 (UK) and its re‑enactment as s 4 of the Criminal Procedure Act 1865 (UK)] was to clarify whether a statement could be proved against a witness who neither admitted nor denied making it: it adopted Parke B's view [in Crowley v Page] that it could where the circumstances of the statement were put to the witness, and the witness was asked whether he or she had made the statement."
In R v Musolino (2003) 86 SASR 37, Lander J (with whom Duggan J agreed in relation to his Honour's reasons concerning the collateral evidence rule and its exceptions, and with whom Debelle J concurred) examined observations by McHugh J in Goldsmith v Sandilands (2002) 76 ALJR 1024 concerning prior inconsistent statements as an exception to the collateral evidence rule. In Goldsmith, McHugh J said, at 1030 [33]:
"But there are exceptions to the rule that ordinarily a witness' answer on a collateral matter is final and cannot be contradicted. Thus, the opposing party may tender evidence to contradict answers relating to the credit of a witness where the witness' answer denies that he or she had been convicted of a crime - at all events if it is a crime affecting the veracity of the witness. And a witness' answer is not final if it denies that the witness has made a previous inconsistent statement."
As Lander J noted in Musolino, at 54 [130], McHugh J supported the proposition in the last sentence of that passage in Goldsmith by referring in a footnote to Crowley v Page. I have mentioned that, in Crowley v Page, Parke B limited the right of a cross‑examiner to contradict a witness, by proving a prior inconsistent statement, to those statements which are "relevant to the matter at issue". In Musolino, Lander J concluded, at 54 [134]:
" … McHugh J's reference [in Goldsmith, at 1030 [33]] to a previous inconsistent statement is a reference to an inconsistent statement which is relative to the subject matter of the cause. In other words, the common law always provided that the right to contradict a witness in relation to an inconsistent statement for the purpose of impeaching the witness's credit was limited to the use of an inconsistent statement which was relative to the subject matter of the cause." [My emphasis]
Lander J then referred, at 54‑55 [135], to the judgment of Cox J in Kurgiel v Mitsubishi Motors Australia Limited (1990) 54 SASR 125. In Kurgiel, Cox J said, at 130:
"The general restriction about contradicting on collateral matters applied at common law to compromising statements allegedly made by a witness no less than to his physical actions or states of mind. See, for example, Attorney-General v Hitchcock (1847) 1 Exch 91; 154 ER 38. The rule as to previous inconsistent statements was put into statutory form in England in 1854: Common Law Procedure Act (17 & 18 Vict c 125), s 23. That section was adopted in South Australia by s 17 of the Supreme Court Procedure Act 1855 and is now reproduced in s 28 of the Evidence Act:
'If any witness, upon cross-examination as to a former statement made by him, relative to the subject matter of the cause, and inconsistent with his present testimony, does not distinctly admit that he has made the statement, proof may be given that he did in fact make it; but before such proof statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made the statement.'
… The words 'relative to the subject matter of the cause' - that is, relating to the subject-matter - in s 28 are obviously words of limitation and reflect the common law rule. The section does not authorise a witness to be contradicted as to a previous statement made by him on a topic that is collateral to the subject-matter of the dispute." [My emphasis]
In Narkle, Kennedy J held, at 470 [2], that the word "relative", in the phrase "relative to the subject‑matter of the proceeding", appearing in s 21 of the Western Australian Evidence Act, means "relevant". His Honour cited, in support of that proposition, R v Hart (1957) 42 Cr App R 47, R v Trotter [1977] Tas SR 133 (NC 7) and Funderburk.
In my opinion, the word "relative", in the phrase "relative to the subject‑matter of the proceeding" appearing in s 21, bears its ordinary meaning; that is, "relevant" or "relating" to the subject‑matter. In Cotton v Commissioner for Road Transport and Tramways (1942) 43 SR (NSW) 66, Davidson J suggested, at 75, a distinction between "relative" (in a New South Wales statutory provision equivalent to s 21) and "relevant", but, as noted in J D Heydon, Cross on Evidence, 7th Aust ed, at par 17535, the distinction appears to depend on a special meaning being ascribed to "relevant", namely, "admissible".
The "subject‑matter" of a proceeding, for the purposes of s 21 of the Western Australian Evidence Act, comprises:
(a)each fact in issue; and
(b)each fact relevant to any fact in issue,
in the proceeding. In Soma, Callinan J said, at 333 [103], that the words "relative to the subject matter of the proceeding", in s 18 of the Evidence Act 1977 (Q) (the Queensland equivalent of s 21) contemplate "evidence going beyond, or not directly relevant to the issues".
A prior statement will be relevant to:
(a)a fact in issue; or
(b)a fact relevant to a fact in issue,
("the fact in question") in a proceeding, for the purposes of s 21 of the Western Australian Evidence Act, if the prior statement and the fact in question are so related to each other that, according to the common course of events, the prior statement, either taken by itself or in connection with other facts, could rationally affect, directly or indirectly, the assessment of the probability of the existence or non‑existence of the fact in question. See Goldsmith per Gleeson CJ at 1025‑1026 [2] ‑ [3]. Also see Stephen's Digest of the Law of Evidence, 12th ed (1936), page 4, which was cited by Brennan J in Pollitt v The Queen (1992) 174 CLR 558 at 571, and further see Goldsmith per McHugh J at 1029 ‑ 1030 [31] ‑ [32]. Relevance involves, of course, matters of degree.
A prior statement of a witness will be "inconsistent" with his or her evidence if there are discrepancies or divergences between the statement and the evidence. For example, where a witness has made a prior statement in which he or she gives an account of an event or transaction that is in issue in the proceedings, and the witness gives evidence of the event or transaction which omits material facts contained in the previous account, the prior statement will be "inconsistent" with his or her evidence. See R v DWB [2006] VSCA 137; R v Titijewski [1970] VR 371.
Where a prior inconsistent statement is proved or admitted, the statement does not constitute evidence of the facts asserted unless the witness is a party, in which case the statement may be an admission. See Nicholls per McHugh J at 232 ‑ 233 [85]. The prior inconsistent statement impugns the evidence of the witness and his or her credit generally. As explained in Wigmore on Evidence, Chadbourn rev (1970), vol 3A, page 993, para 1017:
"We place his contradictory statements side by side, and, as both cannot be correct, we realise that in at least one of the two he must have spoken erroneously. Thus, we have detected him in one specific error, from which may be inferred a capacity to make other errors."
In my opinion, the learned trial Judge was in error in ruling that the complainant's mother could not give evidence of the complainant's alleged statements to her (five days after the events in question) that:
(a)during the commission of the offences, the appellant "lifted her off the ground, and was digging his fingers into her throat to such an extent that she almost passed out"; and
(b)as a result of being assaulted by the appellant, the complainant was "covered in blood, and there was blood all over the back and front seats of the car which had worn off".
Those alleged statements were inconsistent with the complainant's evidence in that her account at trial of the assault did not mention its circumstances and consequences as recounted in the prior statements. The appellant's defence was that none of the matters complained of by the complainant had occurred. Whether the assault alleged in count 8 had occurred or not was therefore a fact in issue. The alleged prior inconsistent statements went to the issue of whether the assault, of which the complainant gave evidence, had occurred. They did not go merely to credit. The alleged prior inconsistent statements were not, of course, admissible to prove the truth of the statements, but were admissible to impugn the complainant's evidence concerning the assault and her credit generally.
I agree with McLure JA, for the reasons she gives, that the learned trial Judge was correct in ruling that the complainant's mother could not give evidence that (five days after the events in question) the complainant told her that, on the day of but prior to the commission of the offences, the complainant was "kissing, cuddling, lying on the ground underneath, and fooling around with" her former boyfriend, B.
Although the learned trial Judge's ruling was, in part, erroneous, I consider that no substantial miscarriage of justice, within s 30(4) of the Criminal Appeals Act 2004 (WA), has occurred. I am satisfied, beyond reasonable doubt, having:
(a)reviewed the whole of the record of the trial;
(b)taken into account the "natural limitations" that exist where an appellate court does not have the advantage of seeing and hearing the witnesses; and
(c)assumed (favourably to the appellant) that the alleged prior inconsistent statements relating to the assault (evidence of the making of which his Honour should have permitted) were in fact made by the complainant,
that the appellant was guilty of the charge the subject of count 8 (and the charges the subject of the other counts on which he was convicted).
The prosecution's case against the appellant was very powerful. As McLure JA has noted, the complainant's evidence was strongly supported by, amongst other things, the medical evidence and B's evidence of the appellant's state of sobriety and his focus on sexual matters. The relevant evidence is summarised in the reasons of Roberts‑Smith JA. There was a close connection between the sexual offences and the offence of assault. The appellant has not lost a chance of acquittal which was fairly open to him. Compare Bannister v The Queen (1993) 10 WAR 484. In the circumstances, there is no reason why this Court should not exercise its power under s 30(4) of the Criminal Appeals Act. See Darkan v The Queen (2006) HCA 34 at [84], [94] ‑ [96]. Also see Weiss v The Queen (2005) 80 ALJR 444 at 454 ‑ 456 [41], [43], [45] ‑ [46], [50] ‑ [51].
I would dismiss the appeal.
20
33
3