Niaros v The Queen
[2013] VSCA 249
•13 September 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2013 0004
| SIROS NIAROS | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P, NEAVE and REDLICH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 30 July 2013 |
| DATE OF JUDGMENT: | 13 September 2013 |
| MEDIUM NEUTRAL CITATION: | [2013] VSCA 249 1st Revision: 16 September 2013 paragraph 26 2nd Revision: 25 October 2013 Catchwords Paras 6, 8, 17, 24, 30, 33, 39, 65, 81 Footnotes 3, 4, 5, 8, 19, 21 |
| JUDGMENT APPEALED FROM: | DPP v Niaros (Unreported, County Court of Victoria, Judge Campton, 12 December 2012) |
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CRIMINAL LAW – Appeal – Conviction – Rape – Assault with intent to rape – Verdicts not factually inconsistent because of a sufficient evidentiary basis for jury to acquit on sexual offence charges for earlier acts but convict on charges for later acts – Jury entitled to reject the evidence that the applicant was aware of complainant’s lack of consent during early acts but accept the evidence that he was aware of her lack of consent during later acts – Common law rule against self corroboration – Evidence of a prior consistent statement may be admitted to rebut an attack upon general credibility – Evidence Act2008 (Vic) s 108(3) – Verdict not unsafe and unsatisfactory – Application refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr S R Johns | Galbally & O’Bryan |
| For the Respondent | Ms F L Dalziel | Mr C Hyland, Solicitor for Public Prosecutions |
MAXWELL P:
I would refuse the application for leave to appeal against conviction for the reasons given by Neave JA, whose judgment I have had the advantage of reading in draft. I also agree with the additional observations of Redlich JA.
NEAVE JA:
The applicant, Siros Niaros, was found guilty by a County Court jury of digital rape (charge 4) and assault with intent to rape (charge 5). He was acquitted on two charges of indecent assault (charges 1 and 3) and another charge of digital rape (charge 2).[1] All of the charges related to alleged offences occurring on a single occasion. The applicant now seeks leave to appeal against his convictions on charges 4 and 5.
[1]It was unnecessary for the jury to return a verdict on charge 6, which alleged indecent assault as an alternative to assault with intent to rape.
The Crown and defence cases
The Crown case was that the offences occurred in the toilet provided for disabled patrons (the ‘disabled toilet’) at the Orange Whip Nightclub on Christmas Eve 2010. The complainant, then aged 27, worked casually as a member of the bar staff and the applicant, then aged 39, was a crowd controller at the nightclub. They knew each other because they both worked at Orange Whip on Saturday nights. The complainant did not know the applicant’s surname and they had not been involved in social activities together.
On Christmas Eve the complainant and her friend, RS, met at the complainant’s home and at about 11.30 pm were driven by the complainant’s mother to a hotel, where they met some friends. AB, RS and another friend caught a cab to the Club Dakota Nightclub at about 12.30 am and later walked to the Orange Whip Nightclub, which was a few doors down the road. RS was denied entry to the Orange Whip and left with a friend. The complainant went inside and spoke to a
friend, JA, but left the club about 30 minutes later. She then asked if she could re‑enter shortly after 3.00 am, when no new patrons were being admitted, so that she could go to the toilet. She was given permission to do so despite the lock out.
One of the crowd controllers at the club, Rohan De Moore, began to take her to the toilet, but then asked the applicant to escort her. The applicant took her to the toilet, which the nightclub made available for use by disabled patrons, which could only be opened from the outside by a key. He unlocked it to let her in.
CCTV footage showed the applicant and the complainant entering the area leading to both the ladies’ toilet and the disabled toilet at approximately 3.05 am. It then showed the applicant returning to the foyer area for a few seconds and going back towards the area of the disabled toilet less than a minute later.
The Crown alleged that after the complainant had used the toilet and was washing her hands the applicant let himself into the toilet. While she had her back to the door, the applicant began to kiss and touch her breasts, arms and stomach (charge 1 – indecent assault) and then digitally penetrated her (charge 2 – rape). He then bent down and licked the outside of her vagina (charge 3 – indecent assault). The applicant was acquitted of these charges.
The Crown alleged that the applicant then digitally penetrated the complainant again. The complainant told him to stop and that she needed to find her friend RS and leave (charge 4 – rape). While the applicant was kissing her the complainant felt his naked penis on her upper thigh and towards the front of her vagina (charge 5 – assault with intent to rape). She opened the door of the toilet to leave and went out of the nightclub through a back door. The CCTV footage showed her outside the toilet at 3.14 am, with the applicant following close behind and, seconds later, escorting her out of the rear exit of the club.
After the complainant had reported the offences to the police the applicant’s employer, Rocky Seif, was informed of the allegations and phoned the applicant on Boxing Day. The applicant told him that he had waited outside the disabled toilet while the complainant was inside and had then gone to the toilet himself and asked her to wait for him. When he came out he noticed she was not there, and he looked for her in the club. He grabbed her, took her outside and left her with a member of the bar staff.
The applicant was interviewed by the police on 31 December 2010 and denied that he had had any sexual contact with the complainant. He said that he had been instructed by De Moore to take the complainant to the disabled toilet, that she was ‘happy’ but not intoxicated when he saw her, and that after she went into the toilet he had not gone inside but had stood outside for about a minute in a small alcove close to the toilet. He denied touching her and said that nothing at all abnormal had happened that evening.
The applicant gave evidence at the trial admitting to sexual activity consistent with charges 1 to 3. It was implicit in his description of the events that she consented to the sexual acts. The defence case in relation to charges 4 and 5 was that the alleged acts had not occurred.
The Crown case was that the applicant’s admission to the sexual activity covered by charges 1 to 3 was only made because DNA consistent with the applicant’s DNA profile was found on the complainant’s underwear. The DNA evidence was not disputed.
A witness, Rachel Moseley, gave evidence that she was shown footage of herself and two other girls going to the toilet at 3.09 am and that there was no one standing outside the disabled toilet in the alcove. Further, she said if there had been someone there, she would remember because there would not have been enough room to get past. The Crown relied on the applicant’s denial in a conversation with his employer that he had gone into the toilet when the complainant was there, and his similar denial that he had gone into the toilet or had sex with the complainant when he was interviewed by the police, as consciousness of guilt evidence from which it could be inferred that the applicant was guilty of all of the offences.
Ground 1
Ground 1 was as follows.
1.The verdicts of guilty in respect of each charge were unsafe and unsatisfactory.
PARTICULARS
i)The guilty verdicts were inconsistent with the acquittals on charges 1, 2 and 3.[2]
ii)The complainant’s evidence was unreliable, inconsistent and lacking in credibility.
iii)When the whole of the evidence is considered with appropriate direction it was not open to the jury to be satisfied of guilt beyond reasonable doubt.
[2]In M G v The Queen [2010] VSCA 97, [59] the Court of Appeal said that where the real complaint is that the verdicts are inconsistent this should be the subject of a discrete ground of appeal and that a claim that the verdicts were inconsistent should not be raised under an unsafe and unsatisfactory ground. The particulars are discussed below as if they are separate grounds of appeal.
Counsel’s submissions
Under cover of the first particular (ground 1(i)), the applicant submitted that since all of the alleged offences occurred on the same occasion, the applicant’s conviction on charges 4 and 5 was inconsistent with his acquittal on charges 1 to 3. The applicant argued that the acquittals on charges 1 to 3 could not be reconciled logically with the verdicts of guilty on charges 4 and 5.
The Crown case was that the complainant had not consented to any of the sexual activity, in the toilet. The applicant submitted that because the applicant had admitted to the sexual acts covered by charges 1 to 3, the only conceivable basis on which he could have been acquitted of those charges was that the jury was not satisfied beyond reasonable doubt that he was aware that the complainant was not, or might not have been, consenting. The applicant submitted that if the jury were not so satisfied in relation to charges 1 to 3, they could not have been so satisfied in relation to charges 4 and 5. Hence the different verdicts were ‘an affront to logic and common sense’ which strongly suggested ‘a compromise of the jury’s duty’.[3] Further, the evidence that the applicant had initially told the police and his employer that he had not gone into the toilet or had any sexual interaction with the complainant did not give the jury any logical basis for differentiating between his state of mind when the acts covered by charges 1 to 3 occurred and his state of mind at the time of charges 4 and 5.
[3]MacKenzie v The Queen (1996) 190 CLR 348, 368 (Gaudron, Gummow and Kirby JJ).
The Crown submitted that the jury’s findings simply reflected their compliance with the judge’s direction that each charge must be considered separately in light of the evidence relating to each charge. On the basis of the complainant’s evidence the jury might not have been satisfied beyond reasonable doubt that the applicant had the required state of mind for him to be found guilty of charges 1 to 3 but may have been so satisfied in relation to the other charges. Further, in acquitting the applicant of charges 1 to 3, the jury might well have believed that the complainant did not consent to those sexual acts, but have taken a merciful view about the applicant’s state of mind at that time.
In relation to particulars (ii) and (iii) the applicant contends that the evidence of the complainant was so inconsistent and incredible, that it was not open to the jury to convict the applicant on charges 4 and 5. The applicant relied on the fact that the complainant did not recall:
·hugging the applicant before entering the nightclub or having any conversation with him;
·going into the nightclub for a short period before she entered for a second time to go to the toilet;
·being escorted out of the nightclub by the applicant; or
·interacting with the applicant in the alley way after she was taken outside.
The applicant also relied on the fact that in cross-examination the complainant conceded that she might have hugged and kissed him on the cheek on the way to the toilet, and contended that the complainant’s evidence was unreliable because of her level of intoxication at the time the alleged events occurred.
In relation to charge 5, the applicant submitted that when she made her statement to the police the complainant was unsure about precisely where the applicant’s naked penis made contact with her, although at the committal and trial she gave evidence that his penis touched her either at the top of her leg or on the outside of her vagina. It was submitted that the inconsistency between her uncertainty in the police interview and her subsequent certainty when giving evidence rendered the conviction on charge 5 unsafe, because if the applicant’s penis had only touched her leg, it was not open to the jury to infer that the applicant had assaulted her with the intent to commit rape.
The Evidence
Complainant’s evidence
In her evidence in chief, the complainant said the applicant unlocked the toilet to let her in. She was standing in front of the mirror when she heard the applicant come into the room. She had asked him what he was doing. He said he was making sure if she was okay and she said she was fine and moved to exit the toilet. She turned around and he was immediately in front of her. She had her back towards the door. When asked what happened in the toilet, her evidence was that after the applicant entered the toilet:
he moved towards me. He started to kiss me and he was touching me. He was touching my legs and my breasts, my arms, stomach and then he put his hands up my dress. He then used his fingers inside my vagina, still kissing me and then he got on his knees and he licked the outside of my vagina. He then said that he’d waited so long for that moment and then he got back up, and continued to kiss me and he used his fingers inside my vagina again.
And I was telling - I told him to stop it and that I needed to phone Bec, and that I needed to leave and then I felt his penis on my leg.[4]
[4]Emphasis added.
When asked to clarify what happened when she felt his penis she said that she did not see his exposed penis but that:
I felt his bare skin on me - on my leg. … I felt it on my upper thigh, and it touched my vagina as well.
The complainant’s evidence in chief continued as follows:
COUNSEL: From the time he started to do that, touching your arms, your breasts, your legs, your stomach, did you say anything to him when he was doing this?‑‑‑I said, ‘What are you doing?’
Did he say anything back?‑‑‑I don’t remember.
COUNSEL: Then you said, ‘He used his fingers inside my vagina’, what do you mean by that?‑‑‑He put his fingers inside my vagina.
COUNSEL: When he did that do you remember what you did?‑‑‑No, I don’t. I was telling him to stop and then I needed to go.
COUNSEL: You then said he went down and licked your vagina, the outside of your vagina?‑‑‑Yes.
COUNSEL: I know this is difficult for you, just bear with me if you could. Were you still standing at this time?‑‑‑I was standing the whole time.
COUNSEL: You said that at some point he said, ‘I’ve waited so long for this’, is that right?‑‑‑Yes.
COUNSEL: Do you remember when he said that?‑‑‑When he was on his knees licking me.
COUNSEL: And then you said he used his fingers again in your vagina a second time. Again can you be a little bit more specific what you mean by that?‑‑‑Sorry, can you repeat that?
COUNSEL: Can you be a little bit more specific when you said, ‘He used his fingers in my vagina’, what do you mean by that?‑‑‑He put his fingers inside my vagina.
COUNSEL: After you felt his exposed penis on you, I just want to clarify, where did you say you felt his exposed penis touch you?‑‑‑On my upper thigh and on my vagina, the front of my vagina.
COUNSEL: What was the state of your underwear at this time, did it come off at any time or what do you say about that?‑‑‑No, he had pushed it to the side.
COUNSEL: All right. Was he doing anything else when his penis was up against you?‑‑‑Just kissing me.
The complainant did not recall who had taken her out of the nightclub, but said that she was crying and upset when she was ushered out of the back door. She said that she had seen De Moore and John Ierufi who asked her what was wrong, and she had hugged them both but that she did not want to tell them what had happened. Her friend JA had arrived and told her that Danny Materia was coming to get them. She had hugged JA and they were then picked up by Danny.
In cross-examination the complainant gave the following evidence about the events in the toilet:
COUNSEL: In fact, what your evidence is, is that he only touched you once you turned around to face him. That is right, isn’t it?‑‑‑Yes.
COUNSEL: At that point when you turned around to face him, you didn’t say anything to him, did you?‑‑‑I don’t recall.
COUNSEL: But just in terms of how it was that you came to turn around and face him, you did that of your own accord, didn’t you? You understand what I mean by ‘of your own accord’?‑‑‑Yes, I understand that.
COUNSEL: He didn’t physically grab you ‑ ‑ ‑?‑‑‑No.
During the complainant’s interview with police, she apparently referred to only one act of digital penetration. However, she gave evidence of two such acts at the committal. She was cross-examined on the inconsistency as follows:
COUNSEL: And you knew at that time the moment you speak to a police officer you’re under an obligation to tell them everything that you say happened?---Yes.
COUNSEL: It’s the case, isn’t it, that when you first spoke to Leanne Volk on 25 December, and in fact when you signed your statement on 29 December, you only made mention of there being one episode of digital penetration, correct?---Correct.
COUNSEL: Is the second episode something that you’ve changed - adding the second episode is that something you’ve changed your mind about, or - - -?---No, something I remembered afterwards.
COUNSEL: So when you told the police initially that there was only one episode of digital penetration again that’s just another example of your unreliable memory?---No, I was distressed. It was Christmas Day. I was still under the influence of alcohol from the night before. It was a very basic statement.
COUNSEL: But I’m not just asking you about when you spoke to Leanne Volk on the 25th you see, your signed statement, [the complainant], on 29 December, you’re not suggesting to the jury that you were still under the influence of alcohol four days later?---No….
COUNSEL: ‘His zip was undone.’ What you said to the police was that it was when you felt his penis against you that you decided to turn around and leave, is that right?‑‑‑Yes.
COUNSEL: So that was when in your mind you said, ‘Enough’, correct?‑‑‑Yes, I had to get out of there.
COUNSEL: But is that because in fact what had happened before that time being consensual?‑‑‑No.
COUNSEL: Are you sure?‑‑‑Yes. During the whole time I was crying.
COUNSEL: And then you were kissing each other at the same time?‑‑‑No.
COUNSEL: At no stage did you tell him to stop?‑‑‑That’s not correct.
COUNSEL: And at no stage were you crying in the disabled toilet?‑‑‑That’s not correct.
COUNSEL: But you did say to him at the very end of consensual sexual activity that you had to find your friends?‑‑‑I said it more than once.
COUNSEL: What you say to the jury is that was something you said to him a number of times in the toilet?‑‑‑That’s correct.
It was also put to the complainant in cross‑examination that she had told the police that:
His penis was touching the front of me, I’m not sure if it was touching my vagina or leg or what but I definitely felt it touching some part of my skin.
She agreed that this was what she had told the police, but said that she had said that it had touched ‘either but I wasn’t sure which’. She said that the applicant was fully clothed, but his fly was undone when he was touching her with his penis. It was put to her that she had not told the police that his fly was undone and she said that:
I didn’t feel it necessary to say that his zip was undone and that’s how his penis came to be out of his pants and touching me.
In re-examination she was asked about the evidence she had given about this matter at committal. At the committal she was asked by defence counsel where on her leg she had felt his penis and she replied ‘my upper thigh’. Defence counsel had then put to her that she had not felt his penis anywhere near her vagina and she had said ‘it touched the front of my vagina’. Defence counsel put to her that there was a difference between her upper thigh and her vagina and her answer was ‘It touched both’. She said that the answers she gave at the committal were correct.
The complainant told her mother about what had happened on Christmas Day, and the offences were reported to the police. Whilst she was at the police station she received a Facebook notification that the applicant had tried to add her as a friend and a message which said ‘hi, hope you had a good nite if you want to give me a call it will be nice to talk to you if you’re up to it’.
The applicant’s evidence
As I have said, the applicant admitted to the events covered by charges 1 to 3. He said that he had knocked on the door of the toilet because he thought the complainant was taking too long and had then waited till she opened the door. She exited the toilet, put her arms around his neck and started kissing him. While her back was against the side of the door, he pushed the door and it closed automatically. He said he had kissed her and touched her breasts and licked her vagina and that the act of digital penetration occurred at the same time as he was licking her vagina. She then masturbated him and he ejaculated. He pulled up his pants and the complainant then told the applicant that she had to find her friend. He had unlocked the top and bottom locks on the door and she had left the toilet and he had used the toilet himself. While he was doing so she had moved off.
The applicant denied that the acts covered by charges 5 and 6 had occurred.
Evidence of distress
Security guards Rohan De Moore, John Voulvoulis, John Ierufi, who knew the complainant through mutual friends, and the complainant’s friend, JA, gave evidence that they saw the complainant in the laneway outside the club, where she was crying and distraught. De Moore said she had not been upset before she entered the nightclub on the second occasion. The part-owner of the nightclub, Jess Conti, saw her before she was taken to the toilet, when she was ‘a bit emotional’ and she told him her friends had left her and she had lost her handbag. He also saw her in the laneway after she had left the club, when she was upset and again mentioned her friends and that she could not find her bag. He assumed this was why she was upset. In cross-examination De Moore agreed with Conti that the complainant was relieved when she found her friends, but said that she was still upset.
Danny Materia had previously agreed to give JA a lift home and agreed to drop off the complainant on the way. Both Materia and JA said that she was distressed and upset while she was being driven home. She and JA were dropped off at the complainant’s home. She sat on the side of the road with JA who asked her what was wrong and she said she had been inappropriately touched in the toilet.
The following morning (Christmas Day) the complainant phoned her friend RS and gave her an account of what had happened on the previous evening. The complainant said that she had told RS:
everything that had happened at the club within the bathroom with Siros, which was that he had been touching and kissing me, that he put his fingers in my vagina, that he had tried to have sex with me. And that he had licked my vagina as well.
RS’s evidence was that during the conversation the complainant was hysterical and had said that the applicant had come into the toilet, touched her inappropriately and pulled at her dress, while she was saying ‘No, No, No’. She said the complainant had said she was so drunk she ‘sort of just wanted it to be over, and so she stopped screaming’. In cross-examination RS said the complainant had not given specific details about where she had been touched and had said the applicant had not raped her. In her evidence at the trial the complainant said that at that time she thought that rape was ‘penetrative with the penis’.
Shortly after speaking to RS the complainant phoned her friend RH. RH said the complainant had told her that something had happened at the nightclub, but did not give full details. RH said that the complainant was really upset and it was difficult to understand what she was saying. She had deduced that the complainant was saying that she had gone into the staff toilets and someone had followed her. The door was locked behind her and she was held up against a wall and she was not sure how she got free, although she eventually escaped. In cross‑examination she said that the complainant had said she had tried to fight Niaros off and did not know how she had got out of the toilet.
JA said he had told Materia to drop him off with the complainant because he wanted to understand what was going on and console her. She told him that she had been touched by someone in the toilet but did not provide any other details. He stayed at the complainant’s house and the complainant had dropped him home in the morning, but there was no sexual contact between them.
JA’s girlfriend was annoyed that he did not come home on Christmas Eve. She gave evidence she had received two SMS messages from the complainant saying that nothing had happened between her and JA and that the complainant ‘was almost raped last night’.
Medical Evidence
The complainant was examined by Dr Angela Sungaila, a forensic physician, on Christmas Day. The doctor observed a laceration on the outside entrance of the complainant’s vagina of approximately two millimetres, which indicated blunt trauma from an object or body part which had penetrated the vagina. The injury could have occurred in the time during which the sexual assaults were said to have occurred.
In cross-examination she agreed that a tear or laceration of this kind could occur even where the sexual activity was consensual. In her evidence the complainant said she had not been sexually intimate with anyone in the preceding week.
Dr Sungaila said that when she was taking a history the complainant referred only to one incident of digital penetration, but she did not recall any conversation with the complainant about whether there had been more than one act of penetration and nothing about this was recorded in her notes.
Conclusion on ground 1
The test to be applied in deciding whether verdicts are inconsistent is one of logic and reasonableness. If a reasonable jury could not logically have acquitted the applicant of charges 1 to 3 and convicted him of charges 4 to 5 on the basis of the evidence pertaining to the relevant charges, the verdicts of guilty will be regarded as inconsistent with the acquittals.[5]
[5]MacKenzie v The Queen (1996) 190 CLR 348, 368 (Gaudron, Gummow and Kirby JJ); D F A v The Queen [2001] VSCA 97, [45]–[46] (Chernov JA).
Although the fact that the alleged sexual offences occurred on a single occasion may be relevant in determining whether different verdicts can logically be reconciled,[6] that fact does not, of itself, establish a logical inconsistency.[7] Appellate decisions based on alleged inconsistency of verdicts necessarily turn on the evidence adduced in support of the relevant offences[8] and are of little help in determining whether verdicts in a case with different facts are logically reconcilable.
[6]See, eg, C J J v The Queen [2012] VSCA 196.
[7]See, eg, R v Scott [2009] VSCA 20, [68]–[80].
[8]M F A v The Queen (2002) 213 CLR 606, 618 [35] (Gleeson CJ, Hayne and Callinan JJ).
In this case, there was a sufficient evidentiary basis for distinguishing between charges 1 to 3 and charges 5 and 6. The fact that the jury acquitted the applicant on some of the charges did not necessarily mean that they rejected the complainant’s evidence. The judge gave the jury the usual direction that they must consider each charge separately. The applicant admitted to the sexual acts covered by charges 1 to 3 and said that the complainant said nothing while they were occurring. The judge correctly directed the jury that:
The fact that the complainant did not say or do anything to indicate free agreement to a sexual act … is enough to show that the act took place without that person’s free agreement.
She also directed the jury that they were entitled to take account of the reasonableness of the accused’s belief in consent, in deciding whether he was aware that the complainant was not consenting or might not be consenting.[9]
[9]Crimes Act 1958 (Vic) s 37AA.
The jury might well have believed the complainant’s evidence that she did not consent to the acts covered by charges 1 to 3, but not have been satisfied beyond reasonable doubt that the applicant had the requisite intent for rape, when he was committing those offences, particularly in light of his evidence that he believed the complainant was consenting.
The complainant’s evidence in chief describes a sequence of events. Although she said that she was crying throughout the assault, in her evidence in chief the complainant said she had ‘told him to stop it’, when ‘he used his fingers inside [her] vagina again’. In cross-examination the complainant said she did not recall whether she had said anything to the applicant when he first began to touch her.
The defence case was that charges 4 and 5 had not occurred at all. When considering charges 4 to 5 it was open to the jury to reject the applicant’s denial that these acts occurred and to find beyond reasonable doubt that even if he was not aware that the complainant was not consenting or might not have been consenting when he committed the acts covered by charges 1 to 3, by the time charges 4 and 5 occurred he must have been aware that the complainant was not consenting to the relevant sexual acts. The jury were entitled to reject the inference from the complainant’s evidence in chief that the applicant must have been aware of her lack of consent during the acts covered by charges 1 to 3, but to accept her evidence that she had told him to ‘stop’ before charges 4 and 5 occurred. As Kirby J observed in Jones v The Queen:[10]
Any other hypothesis would require a conclusion that, in all cases of this kind, complainants must be wholly believed or wholly disbelieved. That would put at naught the need for separate verdicts on the separate counts of the indictment and the principle of particularity in the proof of separate offences charged upon such separate counts. That principle necessarily posits the possibility ... that different verdicts may be returned on different counts as occurred here.[11] It would also overlook the practical way in which juries often approach different charges expressed in different counts of an indictment.[12]
[10](1997) CLR 439. His Honour dissented in the result in that case.
[11]The case is distinguishable from the facts in this case, as the alleged offences occurred on different occasions.
[12](1997) CLR 439, 470.
The jury might also not have been satisfied beyond reasonable doubt of the complainant’s lack of consent to the acts covered by charges 1 to 3, but have been satisfied that she withdrew her consent before the acts covered by charges 4 and 5. Because all of the offences occurred on the one occasion they might also have exercised their prerogative to show mercy to the applicant and find him guilty of only some of the offences.
Further, if the jury were satisfied that the applicant lied when he denied that the sexual conduct covered by charges 4 and 5 occurred, those lies provided powerful support for the inference that he was aware that the complainant was not consenting, or might not have been consenting, by the time he committed the acts covered by those charges.
In order to set aside the jury verdicts on the basis that they were unsafe, this court must be satisfied on the whole of the evidence that it was not open to a reasonable jury to find the applicant guilty of charges 4 and 5.[13] The fact that the jury acquitted the applicant on some counts did not require that conclusion. In M F A v The Queen[14] Gleeson CJ, Hayne and Callinan JJ approved of the comment in R v Markuleski,[15] that it is erroneous to consider that when a jury hands down verdicts of not guilty on some counts in a case where multiple sexual offences are alleged the court must take the view that the complainant is untruthful or unreliable and must therefore consider whether the guilty verdicts were open on the basis that the complainant is a person of damaged credibility.[16]
[13]M v The Queen (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ).
[14](2002) 213 CLR 606, 618 [35].
[15](2001) 52 NSWLR 82.
[16]Ibid [225]; see also R v Ash [2011] VSCA 112, [70].
The complainant said that she had had a considerable amount to drink before the offences occurred and conceded that she could not recall some of the events preceding or following the assaults. The jury also heard evidence from a number of other witnesses that she was affected by alcohol, although the applicant himself denied that she was intoxicated.
All of the matters relied upon by the applicant in support of ground 1 were pursued in cross‑examination of the complainant and the jury were reminded of them in the judge’s charge. Although there were some minor variations between the complainant’s statement in her police interview the day after the alleged events and her evidence at committal and trial, these inconsistencies were not such as to require the jury to have a reasonable doubt as to the commission of the offences.
The matters which the complainant could not recall were not crucial in satisfying the jury beyond reasonable doubt of the applicant’s guilt of charges 4 and 5. The judge gave the jury detailed directions about how to use the evidence of the complainant’s distress[17] when she left the nightclub and told them that ‘such evidence is usually given little weight’. Her Honour also directed the jury on how the evidence of the complainant’s complaints to RS and RH the following morning could be used and told them that it was important to remember that:
just because a person says something on more than one occasion, that does not mean that what she says is truthful and accurate. So a false or inaccurate statement does not become true by virtue of it being repeated.
[17]R v Meyer [2007] VSCA 115.
Although neither the evidence of distress or the complaints[18] made to RS and RB were independent evidence that the alleged offences had occurred, the jury were entitled to regard these matters as consistent with her allegation that she had been sexually assaulted by the applicant while she was in the disabled toilet. Further the complainant gave a plausible explanation as to why she told RS that she had not been raped. The jury were entitled to take the view that gaps in the accounts she gave to her friends were attributable to her distress when she spoke to them. She was, according to RH, virtually incoherent. It is not surprising that the jury rejected the defence hypothesis that the complainant’s distraught state in the alley outside the nightclub was attributable to the fact that she could not find her handbag or her friends.
[18]Although this would have been admissible as evidence of the truth of her statements under s 66 of the Evidence Act 2008 (Vic) it does not appear to have been relied upon for that purpose.
The forensic evidence of vaginal laceration also provided some support for the complainant’s account that she had been digitally penetrated on Christmas Eve. Whilst the laceration could have occurred during the first alleged act of digital penetration (charge 2) of which the applicant was acquitted, it was not irrelevant to charge 4. The jury were entitled to accept the complainant’s evidence that she had had no other sexual contact in the week preceding the alleged offences or on Christmas Day, before she reported the offences.
Finally, the applicant initially denied any sexual contact with the complainant, but later admitted to the acts covered by charges 1 to 3, although his evidence was that these acts were consensual. It was well open to the jury to infer that the applicant’s initial denial to his employer that he had gone into the toilet at all and his denial of any sexual activity with the complainant during his police interview supported the inference that he was conscious of his guilt of criminal behaviour of the kind covered by charges 4 and 5. The jury were entitled to regard it as particularly telling that the admission to the conduct in charges 1 to 3 was made after the DNA evidence on the complainant’s underpants supported the claim that there had been intimate contact of some kind between her and the applicant.
Finally, I would reject the argument that there was an insufficient basis for finding the applicant guilty of charge 5 because the evidence did not provide any basis for concluding that the assault occurred with an intent to rape. In her statement to the police, which was put to the complainant at trial, she said that:
And then he stood up, which is when I felt his penis touching me. I’m not sure if it was touching my vagina or leg or what, but I definitely felt it touching some part of my skin.
The differences, such as they were, between the victim’s statement to the police and her evidence at committal and trial were extensively explored in cross‑examination. If the jury were satisfied that the applicant put his naked penis against the complainant’s upper leg or vagina, they were also entitled to infer that he intended to rape her, particularly having regard to the fact that the jury accepted her evidence of the charge 4 digital rape.
Ground 2
Ground 2 was that:
The trial miscarried due to an inadequate direction as to lies and consciousness of guilt in all of the circumstances of this case.
In her charge, her Honour directed the jury on the use of lies in assessing the applicant’s credit and in determining whether the lies told by the applicant could be used to raise an inference as to consciousness of guilt. In relation to credibility, her Honour said the following:
Firstly, you may use a lie to help you assess an accused’s credibility. If you find that the accused lied about something you can use the fact to help you decide whether you believe the other things that the accused said. That is, not to say that just because you found that the accused lied about one matter you must also find that he has been lying about everything else but you can use the fact that he lied to help you determine the truthfulness of the other things he said. It is one factor to take into account.
You can use any of the accused’s alleged lies in this way and I will give you an example. If you find that the accused lied when he gave evidence in chief that Rowan De Moore asked him to take the complainant to the disabled toilet rather than simply asking him to take her to the toilet, which is the evidence of Rowan De Moore and the accused in fact admitted that this was a lie, you may take this lie into account when assessing the rest of his evidence.
She then went on to direct the jury about the circumstances in which they could use a lie told by the accused as an implied admission that he was responsible for an offence. She said that:
You may be able to use the lie in this way if you can reason that, firstly, that the accused told a deliberate lie. Secondly that the only explanation for him telling that lie was because he believed that he had committed a particular crime and he believed that by telling the lie he would be implicated in that crime. So by telling the lie the accused admitted his responsibility for the crime.
Now in that situation the accused would not have explicitly admitted his responsibility for the crime. You would be drawing an inference that he had admitted responsibility for the crime from the fact that he told a lie. Remember what I just told you about the drawing of inferences? That is how you could use the drawing of inferences. It is important to note that finding that an accused lies, that he had implicitly admitted responsibility for the crime is not the same as finding the accused guilty of the crime.
At the most lies prove no more than that an accused believed that he was guilty of the crime. In other words just because you find that the accused lied because he believed that the truth would implicate him of the crime does not mean that you must necessarily find him guilty of that crime.
It may be that he may be mistaken about having committed the crime. He may have some other legitimate defence. The lies are just one piece of evidence that you use in making your final decision whether or not the prosecution has proved the accused’s [sic]guilty beyond reasonable doubt.
Now I have told you that you can only use certain lies in this way. In this case the lies relied upon by the prosecution as an admission of the accused’s responsibility for the offences are two. One, that he did not go into the disabled toilet with the complainant at all. Two, that there was no sexual contact between him and the complainant.
In this respect the prosecution are relying on the record of interview of 31 December 2010, p.215, 216 for counsel, where the accused said that he took the complainant to the toilet there. He stood there for a little bit waiting for her to come out. He knocked on the door and said ‘Are you okay?’ She said: ‘Yeah I’m okay’ so he just stood outside the toilet.
When she came out he asked her then to wait while he went to the toilet. When he finished she had left. ...
The account of what happened - this account of what happened has been admitted by the accused to be a lie. The accused has given a different version of events to this court in which he has admitted going into the toilet and to having sex with the complainant albeit the case for the accused is that that sex was consensual.
The prosecution case is that the accused only decided to change his story after he was given the hand up brief which contained documents relating to the finding of DNA on the complainant’s underwear. The prosecution case is that the reason he lied was that he knew he had taken advantage of the complainant when she was in the disabled toilet and he knew that the sex they had was not consensual.
After describing how the prosecution relied on this lie, her Honour then told the jury that:
However the case for the defence is that the accused did have a reason for lying. That is, that he was scared by the accusation of rape. In her closing address Ms Condon said to you he did not lie because he knew the complainant was not consenting, he lied because he was scared by the accusation of rape. He lied about having sex because ‘this is one of the things that people lie about to protect their position’.
Her Honour then went on to give an Edwards direction expressed in conventional terms.[19] She referred to the requirement that the jury be satisfied that the statement was a deliberate lie. She also instructed the jury of the need to be satisfied that the accused told the lie was because he believed he had committed the relevant offence or some aspect of it. She said:
So before you use the alleged lie as evidence that he implicitly admitted responsibility for the offences, you have to be satisfied, having regard to all the evidence, that this was not the reason for his lie. That is you must be satisfied that the reason told the lie was because he believed he had committed the acts which constituted the crime. That is you have to be satisfied that it was not because he was scared of the police or the police station or scared of the accusation of rape. You have to be satisfied beyond reasonable doubt that he believed that by telling the truth he would be implicated in it.
If it is reasonably possible that the accused told the lie for another reason you cannot use it as evidence that he implicitly admitted responsibility for that crime. The last little bit of this direction, you’ll probably be glad to hear, is I just have to remind you that when I instructed about inferences earlier I told you that you must not draw an inference about an important fact without being satisfied that it is the only reasonable inference open in the circumstances.
The same rule applies when you draw an inference from a lie, and that should be pretty clear to you by now. In other words, if the inference that the accused has implicitly admitted responsibility for a particular crime forms a significant part of your reasoning towards his guilt, or provides a significant reason for you concluding that he is guilty of the crime, then you must be satisfied that the prosecution has proven each of the matters I just raised beyond reasonable doubt.
That is, you must be satisfied that the accused has lied, the lie was deliberate, that it was related to a significant circumstance or event connected with the offence, that it was told due to the accused believing he had committed a particular crime, and believing by telling the truth that he would implicated in it. If you are not satisfied as to all of these matters then you cannot use the lie as evidence that the accused implicitly admitted responsibility for those crimes.
[19]Edwards v The Queen (1993) 178 CLR 193.
Counsel’s submissions
The applicant submitted that the judge erred in directing the jury as to how they could use lies in assessing credibility for two reasons.
First, the Judge [did not] instruct the jury that they would have to be satisfied that this was a deliberate lie in order to use it as to credit. Counsel for the Applicant took exception on this basis – however the Judge declined to re‑direct the jury on the point. The Judge stated that ‘surely it goes to his credit if he told a lie whether it was deliberate or not’.
Secondly, it was submitted that the judge’s use of the applicant’s evidence that De Moore told him to take the complainant to the disabled toilet was unfair to the applicant because the applicant had corrected his evidence when confronted with De Moore’s evidence and in re-examination he gave evidence that this was not a deliberate lie. The judge should have alerted the jury to the fact that the applicant claimed this was not a deliberate falsehood.
The applicant also submitted that the judge was required to give more detailed instructions on consciousness of guilt than she had done, because the lies in the record of interview had the capacity to overshadow all of the other issues in the trial. The judge should have specifically linked the consciousness of guilt direction to the question whether the applicant was aware that the complainant was not consenting to the sexual activity or might not have been consenting. Her Honour should have assisted the jury by instructing them that they must be satisfied that the only reasonable explanation for the applicant’s lie was that he knew he had had sex with the complainant whilst knowing that the complainant was not consenting or might not be consenting.
Further, although the judge had referred to the possibility that the applicant might have lied because he was scared by the accusation of rape, she had not referred to the possibility that he might have been afraid of a false accusation of rape, might have panicked when confronted with the allegation and might have been concerned about the implications for his employment. It was insufficient for the judge to simply say that the applicant might have lied because he was scared.
In relation to the judge’s directions on the relevance of lies in assessing the applicant’s credibility, the Crown submitted that it would have been better for the jury to be told they should be satisfied that the statement was deliberately false, but that the failure to give such a direction did not give rise to a miscarriage of justice.
Further, her Honour had given clear directions about the need to be satisfied that any lie was deliberate in the context of the consciousness of guilt direction and the jury would have understood that this requirement also applied if they were considering the applicant’s credibility. The Crown submitted that the jury direction about the use of lies to raise an inference of guilt was entirely adequate.
Conclusion on ground 2
In his evidence in chief De Moore said that he was taking the complainant to the female toilets when an altercation occurred at the front of the club and he had then asked the applicant to escort her. He was cross-examined about whether he had specified that the applicant take the complainant to the disabled toilet and he repeated that he had simply said she should be taken to the female toilet. It was put to him that he had previously given evidence that the complainant wanted to go to the disabled toilet because it was more private. He agreed with that proposition and said he had assumed that she wanted to go to the disabled toilet but that he had not specifically told the applicant to take her there.
In his evidence in chief the applicant said that De Moore had instructed him to take the complainant to the disabled toilet. In cross-examination it was put to the applicant that in his evidence in chief he had said that De Moore had asked him to take the complainant to the disabled toilet, but that this was inconsistent with his police statement. He agreed that he had lied to the jury and that De Moore had only asked him to take her to the toilet. In re-examination he again admitted to lying but said this was not deliberate and that he had assumed that that De Moore meant the disabled toilet because this was the toilet that bar staff used.
There was discussion during the charge about the use of this example by the judge in directing the jury about the use of lies in assessing the applicant’s credibility. Defence counsel submitted that it would be better for her Honour to have used the contradiction between the applicant’s evidence that he waited outside the disabled toilet and Rachel Moseley’s evidence that when she went to the female toilet she did not see anyone standing in the alcove close to the disabled toilet. Her Honour said in discussion that it would be ‘tricky’ to use that example because it was too similar to the applicant’s lie that he did not go into the toilet, which was relied on by the Crown as evidence from which an inference of guilt of the offences could be drawn.
Her Honour said she would ‘think about’ whether she should specifically refer to the accused’s evidence that the lie was not deliberate and tell the jury that it was a matter for them. Ultimately she did not do so.
I do not consider that the judge erred in using this as an example of a lie which might be relevant in assessing the applicant’s credibility. While it would have been better for the judge to direct the jury that they should be satisfied that the lie was deliberate, before taking it into account in assessing the applicant’s credibility, I consider that her Honour’s failure to do so was of little significance. The passage of which the applicant complained must be read in context. The requirement that the lie is ‘deliberate’ was mentioned immediately after the passage relating to the use of lies in assessing the credibility of a witness. The jury had heard De Moore’s evidence that he had not told the applicant which toilet the complainant should be taken to and the applicant’s evidence in re-examination that he had simply assumed that the complainant wanted to go to the disabled toilet. The direction was favourable to the applicant, having regard to the more obvious examples of lies which the judge could have used as matters the jury could take into account in assessing the applicant’s credibility.
I do not accept that there was any real risk that the jury would have considered that an accidental misstatement by the applicant that De Moore had instructed him to take the complainant to the disabled toilet (and not just to the toilet), standing alone, indicated that the applicant was not a credible witness. More importantly, the question whether the applicant had lied about whether he had been instructed to take the complainant to the disabled toilet faded into complete insignificance in light of the much more substantial lies on which the Crown relied as both evidence relevant to credibility and evidence from which an admission of guilt could be inferred.
There was no deficiency in her Honour’s direction on consciousness of guilt, which instructed the jury on all the matters of which they had to be satisfied before they could use the lies for this purpose. The jury were clearly told that they must be satisfied beyond reasonable doubt that the lie was told because the accused believed he had committed the relevant crime. It was not incumbent on her Honour to specify all of the reasons why a particular accused may lie.
For these reasons, ground 2 fails.
Ground 3
The third ground of appeal was that:
The trial miscarried due to an inadequate direction in respect of prior inconsistent statements and prior consistent statements.
In her jury charge her Honour directed the jury on the way they could use prior inconsistent and prior consistent statements. As an example of the former, she referred to the complainant’s evidence in chief that she felt the accused’s penis on her upper thigh and the front of her vagina and her statement to the police that she was not sure whether the penis had touched ‘her vagina or legs or what’. The judge said that:
If you accept that she made the statement to the police on the previous occasion, you can use the contents of that statement in evidence in this case. For example, you could use the statement to the police that she was not sure if it was touching part of her vagina or leg, that in fact she was not sure if it was touching some part of her vagina or leg.
Secondly, if you find that that statement is inconsistent with her account in court, being that she felt his penis on her upper thigh and it touched the front of her vagina, you can use that when assessing her reliability and credibility. You might find the fact that she told a different version on a different occasion means that the evidence she is giving in court is less likely to be truthful or accurate. You might therefore be less willing to accept her evidence.
It is for you to determine whether to draw this conclusion from the inconsistency or not, and you should keep in mind that a witness who gives inconsistent accounts is not necessarily lying. While dishonest witnesses are more likely to introduce inconsistencies in their stories, truthful witnesses can make mistakes about details. If you accept that her statement is inconsistent to the evidence to court, you have two different accounts from one witness.
The judge then went on to point out that the complainant gave consistent evidence on this matter at both committal and trial. She said:
Just to complicate things a little bit - and this is to give you an example of a prior consistent statement - using the same example, the prosecution case is that the witness has made a prior statement which is consistent with the evidence that she made to court. That is, that she felt his penis touching her vagina and she felt the penis touching her thigh. The consistent evidence is the evidence that she gave on the committal on 21 February 2012. When she was asked, in relation to the penis, if she could remember where it touched her, her evidence was that she felt his penis both on her upper thigh and vagina.
So if you accept that she made this statement at the committal, you can use the statement when assessing her credibility. You can use the consistent statement in the opposite way, as going to her credibility, but in this case you have a situation where she has made statements about the same subject matter which is inconsistent and you have a statement which is consistent.
That is for you, ladies and gentlemen of the jury, to decide whether this increases her reliability, decreases her reliability, increases her credibility, decreases her credibility - you will have to sort that out yourselves.
Her Honour then referred to the fact that in her police statement the complainant mentioned one episode of digital penetration, but that her evidence to this court that there were two episodes of digital penetration and that these allegations is related to Counts 2 and 4 of the indictment. Her Honour said that:
When she was cross-examined about this - once again she was taken by counsel for the prosecution to evidence at the committal where she gave evidence consistent with the evidence she has given in court and that is at the committal she said the accused used his fingers first and then he licked her vagina and then he used his fingers again. So you have some evidence that is inconsistent and some evidence that is consistent.
The applicant submitted that the judge’s jury charge treated the prior inconsistent statements and prior consistent statements in the same way. Her Honour had directed the jury in ways which effectively cancelled out the significance of the prior inconsistent statements. The fact that the Evidence Act 2008 (Vic) no longer required an allegation that a witness had recently invented his or her statement, before a prior consistent statement was admissible in order to rebut that allegation, did not mean that a prior consistent statement was to be given greater significance than was the case in the past. The judge should have told the jury that the prior inconsistent statement could be admitted as evidence of the truth of the applicant’s statement that he had only digitally penetrated the complainant once and his denial of charge 5. She should also have told the jury that a false or inaccurate statement did not become more reliable, simply because it had been repeated on more than one occasion.
Although the applicant conceded that there was no direct authority on this issue which was directly in point, he relied on a number of New South Wales cases which were said to demonstrate the rigour with which the Court should treat prior consistent statements.[20]
[20]D B G v The Queen (2002) 133 A Crim R 227, 240 [53]–[61]; Friend v The Queen [2007] NSWCCA 41, [124]–[137]; Nikolaidis v The Queen [2008] NSWCCA 323, [208]–[221].
The Crown submitted that there was no basis either at common law or under the Evidence Act2008 (Vic) for prior inconsistent statements to be given greater weight than prior consistent statements and the fact that the complainant’s prior consistent statements could now be admitted as truth of their contents[21] did not require that to be done.
[21]Evidence Act 2008 (Vic) s 66.
In my opinion this ground is not made out. When read as a whole her Honour’s charge did not weaken the weight to be given to the applicant’s prior inconsistent statements. Her Honour specifically addressed the alleged inconsistencies, in the passages of her charge set out above.
In addition, after she gave the directions set out above, and not long before the conclusion of her charge, she said that:
In relation to the second charge of rape, which is Charge 4, the complainant’s evidence was, after the accused had licked her on her vagina and he was on his knees at that time, he got back up, he continued to kiss her, he used his fingers inside her vagina a second time. Asked again in examination to be a little bit more specific in examination-in-chief, she said that he put his fingers inside her vagina, … She said at the time she was telling him to stop it and she needed to phone Bec, she needed to leave.
Now, you will understand that the prosecution relies on the complainant’s evidence that there were two instances of penetration by the accused. The defence case, however, is that the accused has admitted to one occasion where he put his thumb into the accused’s vagina and that was at the same time he was licking her vagina. So he had admitted to the first count of sexual penetration, but not to doing it a second time.
I remind you that in relation to that issue, in her closing address, defence counsel relied on the fact that the complainant did not mention two acts of sexual penetration by the accused, in her statement on 25 December 2010 or on 29 December, however the prosecution rely on the fact that at the committal, the complainant gave evidence of two instances of penetration by the accused with his fingers.
I remind you that, as I said, the accused, in his evidence to this court, has referred to one instance but not to two and you should look carefully at the evidence in relation to these matters.
Similarly, her Honour reminded the jury of the cross-examination of the complainant on her police statement relating to charge 5. The judge said:
In relation to this matter, I will remind you again that defence counsel cross‑examined her about her evidence in relation to this, in that she had mentioned in her evidence to this court that the accused’s zip was undone, but she did not make any mention of the accused’s zip being undone in her statement to the police. However the evidence of the complainant in relation to this, is that she was not asked that question.
Moreover, the judge had previously warned the jury that the complainant’s statements were not independent evidence of her allegations about what happened in the toilet, although this occurred in the section of the judge’s charge relating to the complaint evidence.
The only way the jury could assess the importance of the inconsistencies was to examine them in the context of the whole of the evidence at the trial, including the statements which the complainant made at the committal which were revisited at the trial. It is fanciful to posit that the jury might not have given the prior inconsistent statements appropriate weight in assessing the truth of the complainant’s allegations.
The cases cited on the appeal deal with the admissibility of evidence of prior consistent statements under s 108(3) of the Evidence Act 2008 (Vic), as an exception to the general principle in s 102 that ‘credibility evidence about a witness is not admissible’. In this case there was no challenge to the admission of the evidence of prior consistent statements. Cases on whether evidence should be admitted under s 108(3) of the Evidence Act 2008 (Vic) have no direct relevance to the point which was argued in this case.[22]
[22]See, eg, Abdul-Kader v The Queen (2007) 178 A Crim R 281; R v Ali [2000] NSWCCA 177; D B G v The Queen (2002) 133 A Crim R 227; Friend v The Queen [2007] NSWCCA 41, 131–136; R v K N P (2006) 67 NSWLR 227, 230 [14]–[31]; Nikolaidis v The Queen [2008] NSWCCA 323, [70]–[83] (McLellan CJ in Eq) [208]–[223] (Simpson J).
For these reasons I would refuse the application.
REDLICH JA:
I would refuse the application for leave to appeal against conviction for the reasons given by Neave JA.
I wish, however, to make some additional observations concerning directions on prior consistent and inconsistent statements.
At common law a prior inconsistent statement was generally admissible as bearing upon the credibility of the testimony of the witness. However the common law strictly controlled the introduction of a prior consistent statement under what was sometimes called ‘the rule against self corroboration’. It was not admitted into evidence save in well defined and limited circumstances. Differing rationales for the
rule include the ease with which a false allegation can be manufactured and repeated, that its admission would be superfluous and would create a collateral issue or because the evidence should concentrate on that which is capable of being cogent.[23]
[23]Fox v General Medical Council [1960] 3 All ER 225, 230 (PC).
Under the Evidence Act 2008 (Vic), evidence of a prior consistent statement may now be admitted to rebut an attack upon the witness’s general credibility which arises because of the introduction of a statement which is inconsistent with the witnesses testimony.[24] It is also admissible, as it was at common law, where the allegation is made that testimony is a fabrication, reconstruction, or the result of suggestion.[25] Under the Act, both prior consistent and inconsistent statements, once admitted as such, become evidence of the facts therein asserted and bear also upon the credibility of the witness who made the statements.[26]
[24]See s 108(3)(a) of the Evidence Act 2008 (Vic).
[25]See s 108(3)(b) of the Evidence Act 2008 (Vic).
[26]See ss 43, 60 and 108 of the Evidence Act 2008 (Vic).
It should not be assumed that where a prior consistent statement has been admitted into evidence because a prior inconsistent statement has been introduced, that the two of statement will necessarily have the same probative value. The logic and experience of the common law concerning such statements remains relevant. A prior consistent statement may not necessarily affect the credibility of a witness in the same way as a prior inconsistent statement. Where the same matter is addressed in both a prior consistent and inconsistent statement, the statements should not be evaluated as though they necessarily carry the same weight and have an equal and opposite effect on the credibility of the witness.
An evaluation of the significance of any prior consistent or inconsistent statement to the credibility of a witness should ordinarily be undertaken by a discrete consideration of each statement. That is particularly so where the same matter is addressed in both types of statements. Rather, the separate evaluation should take account of the timing and circumstances in which the statement was made and the nature of the matter in issue. So, for example, the fact that a statement was made on oath in court proceedings may lead to it being given greater weight. Because a prior consistent statement is being admitted to meet a particular attack, the timing of the making of the statement, generally speaking, may assume more importance than the circumstances in which the statement was made.
Although it would have been preferable if the trial judge, in directing the jury, had approached the consistent and inconsistent statements in this way, I agree with Neave JA that having regard to the significance of the prior inconsistent statements and their timing, the statements were adequately dealt with by the trial judge.
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