R v SH, MV and KC

R v SH, MV AND KC
[2011] ACTSC 198 (17 November 2011)

EVIDENCE – witnesses – unfavourable witnesses – advanced rulings on whether leave should be given to cross-examine witnesses.

EVIDENCE – witnesses – unfavourable witnesses – test for granting leave to cross-examine witnesses.

Crimes Act 1900 (ACT), s 54
Evidence (Miscellaneous Provisions) Act 1991 (ACT), Div 4.2A
Evidence Act 1995 (Cth), ss 11, 38, 41, 55, 135, 137, 192, 192A

Wigmore, Evidence, Chadbourn Revision (Little Brown & Co: Boston, 1974) Vol 8
ACT Director of Public Prosecutions, Prosecution Policy

Whitehorn v The Queen (1983) 152 CLR 657
Tran v The Queen (2000) 105 FCR 182
McLellan v Bowyer (1961) 106 CLR 95
Director of Public Prosecutions v Nair (2009) 236 FLR 239
Burrell v The Queen (2007) 190 A Crim R 148
DPP v McRae [2010] VSC 114
R v Souleyman (1996) 40 NSWLR 712
R v Lozano (NSWCCA, No 60487 of 1996, 10 June 1997, unreported)
Colonial Mutual Life Assurance Society Ltd v Donnelly (1998) 82 FCR 418
Velevski (No 2) (1997) 93 A Crim R 420
Cakovski (2002) 133 A Crim R 18
R v White (2003) 140 A Crim R 63
R v Fowler [2000] NSWCCA 142
R v Taylor [2003] NSWCCA 194
Radisich v Molina & Ors [2009] FMCA 1121
R v Anyang (Ruling No 1) [2011] VSC 31
R v Ronen & Ors [2004] NSWSC 1298
Lee v The Queen [2009] NSWCCA 259
Hadgkiss v Construction, Forestry, Mining and Energy Union (2006) 152 FCR 560
Klewer v Walton [2003] NSWCA 308
R v Pantoja (NSWCCA, No CCA 60174/97, 5 November 1998, unreported)

Pantoja v The Queen [1999] HCATrans 599
R v Kneebone (1999) 47 NSWLR 450
R v Yates [2002] NSWCCA 520
R v Shamouil [2006] NSWCCA 112

EX TEMPORE JUDGMENT

No. SCC 2 of 2010
No. SCC 3 of 2010
No. SCC 4 of 2010

Judge: Refshauge J
Supreme Court of the ACT

Date: 17 November 2011

IN THE SUPREME COURT OF THE     )          No. SCC 2 of 2010
  )          No. SCC 3 of 2010
AUSTRALIAN CAPITAL TERRITORY           )          No. SCC 4 of 2010

R
v

SH, MV AND KC

ORDER

Judge:  Refshauge J
Date:  17 November 2011
Place:  Canberra

THE COURT ORDERS THAT:

The Crown have leave to cross-examine witnesses MBO, VT, TRS and RAP should they give evidence consistent with those parts of the statements they have made to police as set out in Annexure B to the Reasons for Judgment given on 17 November 2011 as to the demeanour of the complainant when she returned to the College in the afternoon of 18 June 2009, which includes the circumstance under which they saw the complainant and any issues of credibility relating to these specific matters.

On 19 June 2009, the complainant in these proceedings, after using some marijuana that morning, went with the three accused from a Canberra college to a house where the four engaged in sexual acts including sexual intercourse.
The complainant says that the acts were not consensual acts and this has led to the charges against the accused of sexual intercourse with the complainant without her consent contrary to s 54(1) of the Crimes Act 1900 (ACT).
The complainant was interviewed by police and these interviews were recorded. They were admitted as evidence in accordance with Div 4.2A of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) and she subsequently gave evidence at a Pre-Trial Hearing where she gave additional evidence-in-chief and was cross-examined by counsel for each of the accused. This hearing was recorded in accordance with Div 4.2B of that Act and has been played at the trial.
During that evidence, the complainant said that she was distressed when she returned to school from the house where the sexual activity took place. That would be consistent with the charges in the indictment alleging that the sexual intercourse was without her consent.
The Crown prosecutor has indicated that she proposed to call four women who, at the time, knew the complainant and say that they saw her when she returned to school at various times from that house and that they will say she was happy and not distressed.
The Crown prosecutor has submitted that she is calling those witnesses as they are relevant, having in some cases been allegedly present when the complainant used the marijuana and also been present when she returned to the college. See Whitehorn v The Queen (1983) 152 CLR 657 (at 674).
The Crown prosecutor, however, says that, insofar as they are expected to say that the complainant was happy when she returned to the college, they are unfavourable witnesses and seeks leave under section 38(1)(a) of the Evidence Act 1995 (Cth) to cross-examine them on that issue.
That application is opposed by counsel for each accused on the grounds that the grounds for the application are not made out, that I should consider the whole case and not merely the complainant’s evidence before deciding that these witnesses are unfavourable, and that, in my discretion, especially having regard to ss 192 and 135 of the Evidence Act and as required under s 137 of that Act, leave should not be granted.
Attached to these reasons are, at Annexure “A”, extracts from the evidence of the complainant and, at Annexure “B”, the relevant paragraphs from the statements of the four young women.
At the commencement of the trial, the Crown prosecutor opened to the jury as is conventional. Each of the counsel for the accused also addressed the jury, before evidence was adduced.
In Tran v The Queen (2000) 105 FCR 182, the Full Court of the Federal Court of Australia (Black CJ, Weinberg and Kenny JJ) said of the Crown opening (at 202; [130]):
In the conduct of a trial, the prosecutor’s duty of fairness typically arises first when the prosecutor opens the Crown case to the jury. The opening is intended to inform them briefly of the elements of the offence or offences charged, the facts which constitute each offence, and the witnesses the prosecution intends to call to prove those facts. The prosecutor will ordinarily make clear, in outlining the elements of the offence to be proven, that the directions regarding the applicable law are the province of the judge. A prosecutor must not make any reference to proposed evidence where its admissibility is in dispute. A prosecutor should not advance any theory, or make any submission, which does not carry conviction in the prosecutor’s own mind. Importantly, although a prosecutor may legitimately invite the jury to draw inferences from such facts as are proved, the prosecutor must not encourage the jury to engage in mere speculation or conjecture.
In the opening, the Crown prosecutor outlined the offences and referred to the elements of them. She outlined the course of the events that she said the evidence would establish and referred to the complainant as giving evidence which had, as noted above (at [3]), already been recorded and of another witness who she said helped the complainant on the morning of 19 June 2009 to walk to the car of the accused. The Crown prosecutor also referred to the evidence of police officers and of records of telephone calls and Facebook contact between the complainant and the accused.
Relevantly and, perhaps, significantly in light of the application I am considering, no mention in that opening was made by the Crown prosecutor of evidence that those four witnesses were likely to give, though the fact that they would be called was mentioned and nothing was mentioned of what, if any, of the facts constituting the offences they were likely to give.
The addresses of counsel for the accused all made it plain that the contentions of the accused was that any sexual intercourse was consensual and this was plain from the viewing of a video that was taken during certain acts of sexual intercourse.
As Mr F J Purnell SC, who appears for the accused, SH, said:
... in this particular case you, the jury, are going to be in an almost unique situation, certainly a special one. It’s not normal in a jury trial that you’ll have a video of two of the acts complained of. So the video in this case will play an absolutely critical role in you deciding whether [the complainant] is telling the truth, whether she is consenting. And you will see the two acts the Crown prosecutor told you about. That is, you will see [the complainant] sitting astride [KC] and giving oral sex to [MV].
It’s a matter for you to decide whether what you see is consensual. I’ll be submitting to you, and I submit to you now, that there could be nothing more consensual but you don’t have to take my submission. It’s a matter for you. But you look at it and see whether there’s any forced material from what you see.
Mr J Pappas, who appears for the accused, MV, said:
The simple answer that [MV] makes to the allegation against him, the count on the indictment against him that he had sexual intercourse without consent, is that consent was forthcoming. It was full and free and willingly given. And so that, he says, is his answer to the first count.
Ms B Boss, who appears for the accused, KC, adopted the submissions of Mr Purnell and Mr Pappas and said, “[a]s with the other young men [KC] says this was a consensual act between persons.
Section 38 of the Evidence Act is in the following terms:
(1)   A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about:
(a)    evidence given by the witness that is unfavourable to the party; or
(b)   a matter of which the witness may reasonably be supposed to have knowledge about and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence; or
(c)    whether the witness has, at any time, made a prior inconsistent statement.
(2)   Questioning a witness under this section is taken to be cross-examination for the purposes of this Act (other than section 39).
(3)   The party questioning the witness under this section may, with the leave of the court, question the witness about matters relevant only to the witness’s credibility.
(4)   Questioning under this section is to take place before the other parties cross-examine the witness, unless the court otherwise directs.
(5)   If the court so directs, the order in which the parties question the witness is to be as the court directs.
(6)   Without limiting the matters that the court may take into account in determining whether to give leave or a direction under this section, it is to take into account:
(a)    whether the party gave notice at the earliest opportunity of his or her intention to seek leave; and
(b)   the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party.
(7)   A party is subject to the same liability to be cross-examined under this section as any other witness if:
(a)    a proceeding is being conducted in the name of the party by or on behalf of an insurer or other person; and
(b)   the party is a witness in the proceeding.

In this, it makes a significant change from the common law which permitted such cross-examination only where a witness was declared hostile. To do that, a court had to find affirmatively that the witness was deliberately withholding or lying about material evidence: McLellan v Bowyer (1961) 106 CLR 95 (at 101, 104).
The comparison between the common law in this regard and section 38 and the rationale behind the enactment of that section is helpfully summarised by the Court of Appeal in Director of Public Prosecutions v Nair (2009) 236 FLR 239 (at 246-7; [30] to [34]) (Nair).
A helpful exegesis of the rationale for the provision is also given by McClellan CJ at CL, with whom Sully and James JJ agreed, in Burrell v The Queen (2007) 190 A Crim R 148 (at 201-2; [232] to [235]). As his Honour said (at 202; [233]):
... on occasions, because of the forensic risks a material witness would not be called by either side. Section 38 was intended to ameliorate the common law and make it easier for a party to test the evidence of their own witness.
His Honour also noted (at 203; [238] to [239]):
One of the reasons why the common law regarding hostile witnesses was so strict was the assumption that a party who calls a witness is vouching for their honesty. This assumption plays no part in the statutory approach which allows a party to cross-examine their own witness, even when the unfavourable evidence is not unexpected. In its Interim Report of 1985 (Report No 26), the ALRC (at [626]) rejected the idea that the new rule should only apply where the unfavourable evidence came as a surprise to the calling party:
It is argued that where a party knows that a witness will not swear up to his proof of evidence, but calls such a witness intending to attack his evidence, it is a misuse of evidence – the witness is not being put forward as a witness of truth. Thus this argument is based on the “vouching the witness” theory which has been discredited. As to the prosecution, it is argued that it will receive a tactical advantage because, where a prior statement is used, it will go into evidence as an exhibit and go to the jury room. The prosecution, however, has suffered the tactical disadvantage of having to call a witness to prove its case and that witness has supported the defence. The argument also wrongly assumes that the defence will never have the need to call an unfavourable witness. A grave danger in imposing the requirement that the unfavourable evidence is unexpected is that it would enable criminals to defeat prosecutions by suborning key witnesses. The prosecution will normally find out before the hearing, particularly where there is a committal, that a witness is unfavourable.
That, of course, is not to say that the fact that the prosecution is aware when they call a witness that the witness is likely to give unfavourable evidence is not a relevant consideration when exercising the discretion to grant leave or to make a direction.
Nair is also an authority for the proposition that, in making an application under
s 38(1), the Crown is not required to show more than the existence of one or more of the factors set out in section 38(1) (a), (b) or (c) before the court can consider exercising its discretion to grant leave.
The question here is whether the evidence proposed to be given is unfavourable. The evidence has not yet been given, however, and I only have copies of statements made by the witnesses to the police. Nevertheless, s 192A of the Evidence Act permits an advanced ruling to be made.
As Curtain J said in DPP v McRae [2010] VSC 114 (at [20]):
Section 38 applies in circumstances where it may be anticipated that the witness will be unfavourable. It is not confined to a situation where a party calling a witness is confronted unexpectedly by evidence which is unfavourable or by a witness who unexpectedly appears not to be making a genuine attempt to give evidence. So much is apparent from the decision of the High Court in Adam’s case [Adam v The Queen (2001) 207 CLR 96] and R v Petroulias (No 29) [[2007] NSWSC 1005].
No counsel suggested any unfairness in making an advanced ruling and, given the obvious benefits of doing so, I shall proceed accordingly.
The first issue, then, is whether the evidence to be given by the witnesses is unfavourable.
There is still some uncertainty about the exact boundaries of the term “unfavourable.” Mr Pappas submitted that I should read the term ejusdem generis with paragraphs 38(1) (b) and (c). He cited no authority for that submission and I have been unable, in the admittedly relatively short time I have had to research this issue, to find any support for it. Indeed, the authorities seem uniformly to the contrary.
Nair addressed this issue but without coming to a final view. In that case reference was made to what was described (at 247; [35]) by Besanko J, with whom Gray P and Penfold J agreed, as “a broad meaning” given by Smart J in R v Souleyman (1996) 40 NSWLR 712 (at 715) as follows:
The word “unfavourable” in s 38(1)(a) does not mean “adverse”. It means “not favourable.” That construction could have wide ranging ramifications but the Court is given a discretion and would carefully examine the circumstances to see how the discretion should be exercised. A far fetched example would be if a witness said he could not remember something that happened three years ago. The discretion is important and designed to prevent any form of abuse in the administration of the more liberal test of “unfavourable.”
This approach has been followed in a number of decisions including of the New South Wales Court of Criminal Appeal. See R v Lozano (NSWCCA, No 60487 of 1996, 10 June 1997, unreported). It has also been followed by the Full Court of the Federal Court of Australia in Colonial Mutual Life Assurance Society Ltd v Donnelly (1998) 82 FCR 418 (at 430). See also Velevski (No 2) (1997) 93 A Crim R 420 (at 422); Cakovski (2002) 133 A Crim R 18 (at 22; [13]); R v White (2003) 140 A Crim R 63 (at 72; [56]); R v Fowler [2000] NSWCCA 142 (at [12]); R v Taylor [2003] NSWCCA 194 (at [14]); Radisich v Molina & Ors [2009] FMCA 1121 (at [34]); DPP v McRae (at [24]); R v Anyang (Ruling No 1) [2011] VSC 31 (at [10]); R v Ronen & Ors [2004] NSWSC 1298 (at [49]) and Lee v The Queen [2009] NSWCCA 259 (at [30]).
While there is some possible difference, for example, in the decision of Graham J in Hadgkiss v Construction, Forestry, Mining and Energy Union (2006) 152 FCR 560 (at 562; [9]), and in Klewer v Walton [2003] NSWCA 308 (at [20]) and R v Pantoja (NSWCCA, No CCA 60174/97, 5 November 1998, unreported), I am not convinced that these are not able to be made consistent with the clearly more widely accepted approach. In particular, it seems to me that to say that evidence that is strictly neutral is not unfavourable, as was suggested in Klewer v Walton, is consistent with the approach in R v Souleyman. I am also of the view that the general approach taken by the High Court in dismissing the application for special leave to appeal in R v Pantoja is supportive of the wider approach: Pantoja v The Queen [1999] HCATrans 599. In that decision McHugh J expressed some views similar to those expressed by Adams J in R v Pantoja but considered that the terms of the section were inconsistent with those views.
I acknowledge what Adams J said in R v Pantoja, in a passage referred to in Nair (at 248; [36]):
It seems to me that some attention will need to be given in due course to the meaning of “unfavourable” so far as the Crown case is concerned. The Crown case is, in essence, the truth, wherever that might lead and even if it leads to a reasonable doubt about guilt. I am far from persuaded that merely because a witness declines to give evidence supporting the theory of the facts for which the prosecution contends or, indeed, gives evidence that contradicts that theory or contention, his or her evidence may thereby be regarded as “unfavourable”. How can truthful evidence ever be “unfavourable” from the Crown’s point of view? In the circumstances of this case, however, there were good reasons for concluding that, if not untruthful (and I do not think that this was ever suggested in the sense of being deliberate) the evidence of the witness as adduced by the cross-examination was doubtful, even if (by parity of reasoning) the evidence adduced in chief by the Crown was also doubtful.
This is an approach somewhat supported by what Greg James J said in R v Kneebone (1999) 47 NSWLR 450 (at 461; [54]):
Section 38 of the Evidence Act refers to the concept of the witness being “unfavourable”. In the context of a criminal case, care may have to be given to the question of what “unfavourable” to the Crown means. That concept will not necessarily be satisfied simply because the witness’ potential testimony does not accord with some prosecutor’s view of the appropriate “camp” or some case theory which does not accord with all the otherwise reliable evidence.
In R v Pantoja, however, neither of the other judges expressed a similar view. Indeed, when taken in the context of what Adams J said about the ground of appeal immediately before the passage quoted, it may be accepted that their Honours did not share the views expressed. His Honour said:
I agree that, in the peculiar circumstances of this case, the learned trial judge has not been demonstrated to have erred in the exercise of his discretion in permitting the further examination by the Crown prosecutor although (with unfeigned respect to his Honour) I do not say that I would necessarily have come to the same conclusion.

It seems to me, however, that these issues really go to the exercise of the discretion to grant leave rather than to the meaning of “unfavourable”. While it may be correct to say that the Crown is to pursue the truth wherever it might lead but that is not inconsistent, it seems to me, with the greatest respect to his Honour, the Crown, having laid certain charges, should be able to test the evidence that is inconsistent with those charges. Wigmore described cross-examination as “the greatest legal engine ever invented for the discovery of truth” (Wigmore, Evidence, Chadbourn Revision (Little Brown & Co: Boston, 1974) Vol 8, para 1367). Where no other party is likely to test evidence inconsistent with the Crown’s allegation, there may well be a need for the Crown to do so in the interests of truth.
It seems to me that the state of the complainant’s demeanour after returning to the college is a very relevant matter to assist the jury to determine whether the sexual intercourse was consensual or not. It also goes directly to the credibility of the complainant who, notoriously in cases of sexual offences, is often the only direct witness for the prosecution to the offences, especially where consent is an issue.
For these reasons, I am satisfied that the evidence of the four young women as to the state of the complainant when she returned to college is unfavourable to the Crown within the meaning of section 38(1)(a) of the Evidence Act.
Counsel for the accused submitted that because there was only one witness, the complainant, asserting that she was distressed and four other witnesses to be called by the Crown who assert to the contrary, the evidence cannot be unfavourable.
I do not accept that. In the first place, I do not consider that this is a matter of numbers. In that, I am supported by the decision in DPP v McRae where, similarly, four witnesses were in the same relative position.
In the second place, it seems to me that the Crown case depends upon an absence of consent. The Crown is entitled to prosecute its case and I am not prepared to accept that it has not been professionally considered so that the test provided for in the Prosecution Policy has not been properly applied, namely that, “there is reliable evidence, duly admissible in a court of law, that a criminal offence has been committed by the person accused... [and that]... [t]he evidence [provides] reasonable prospects of a conviction”: ACT Director of Public Prosecutions, Prosecution Policy, at at [2.3].
The question, then, is whether leave should be granted. That depends on the application of ss 38(6), 135, 137 and 192(2) of the Evidence Act. I shall deal with these in sequence:
(a)Section 38(6)(a). I was first informed of such notice yesterday, before the evidence of the complainant had been completed and some time before the first of the young women was to be called. It was, in fact, raised by Mr Pappas from which I infer that notice had been earlier given to counsel for the accused. No point was taken by any counsel for the accused as to any delay in giving notice. There is nothing in that ground to justify a refusal of grant of leave.
(b)Section 38(6)(b). No party other than the Crown submitted that they would be questioning any of the women. No doubt the accused would wish to ask such questions as would strengthen the defence to the charges. They are entitled, of course, to do so. I have found no authority on this point, but it would seem to me that the use of “question” in this paragraph really means, as in s 38(1) “question... as though the party were cross-examining the witness,” for the point is that if another party is likely to be testing the evidence, as cross-examination does, then the need for leave to permit the party calling the witness to do so is much diluted. Here, no suggestion was made that any other party would wish to test the evidence in this sense. There is nothing in this ground that would suggest grant of leave should be refused.
(c)Section 135. No submission was made as to what unfair prejudice would be visited on any of the accused, how any cross-examination would be misleading or confusing or what time would be unduly wasted. Given the nature of the likely ambit of any leave, I cannot conceive of any undue waste of time that would be occasioned, especially as I have some power under s 41 of the Evidence Act to restrict, for example, repetitive questioning, under s 55 of the Act to reject irrelevant evidence and generally under s 11 to ensure that time is not unduly wasted.
I cannot see that the cross examination would be misleading or confusing.
As to unfair prejudice, I do not see that the cross-examination would be likely to result in the jury using the evidence, thereby elicited, on an improper, perhaps emotional, basis or one that is logically unconnected with the issues in the case. For example, it is unlikely to lead the jury to adopt an illegitimate form of reasoning: R v Yates [2002] NSWCCA 520 (at [252]). Indeed, it seems to me that the cross-examination would be of assistance to the jury in determining whether to accept the evidence of the young women, or not.
Given that none of these grounds are made out there is, perhaps, no need for me to consider the probative value of the evidence. That is difficult for the cross-examination has not taken place. Again, no submissions were made to me about the weakness or strength of the likely evidence to be elicited by the cross-examination. That the evidence would be reliable or credible is, perhaps, not of importance: R v Shamouil [2006] NSWCCA 112 (at [60] to [64]).
It seems to me that there is no basis for limiting the evidence or rejecting leave under this section.
(d)Section 137. This section provides a mandatory exclusion of evidence, where the probative value is outweighed by the danger or unfair prejudice to the accused. Again, no such unfair prejudice was identified. I am not satisfied that there is any.
(e)Section 192(2)(a). As noted above I do not consider the cross-examination on this limited issue will unduly add to the length of the trial.
(f)Section 192(2)(b). Again, for the reasons noted above, I do not consider that the grant of leave to the Crown to cross-examine the proposed witnesses on this issue would be unfair to the accused. Further, I do not consider that it would be unfair to any of the proposed witnesses.
(g)Section 192(2)(c). The evidence is very important, both because it goes to the heart of the counts of sexual intercourse without consent and it goes to the credibility of the complainant, who is the primary and, in some senses, only Crown witness to the central issues of the counts.
(h)Section 192(2)(d). I do not consider the nature of the proceedings, a criminal trial, as determinative. That they are the trial of counts on the indictment means that the fairness of the trial to both parties, especially the accused, is important. The fairness to the Crown favours the grant of leave. There is, in my view, no unfair prejudice to the accused.
(i)Section 192(2)(e). The capacity to adjourn a jury trial is very limited. In this case, this consideration seems to me to be irrelevant.
(j)Section 192 generally. It is clear that the matters to be taken into account set out in s 192(2) are not exhaustive and do not limit what else the court can take into account. Nothing further, however, was put to me that I could take into account, either for or against the grant of leave. I do take into account, however, insofar as I consider it is relevant in this issue, the approach indicated by Adams J in R v Pantoja and Greg James J in Kneebone. Leave should not be readily granted to the Crown, particularly where it is simply a matter of a forensic tactic and, unlike this case, not related to a central and critical issue in the case.
In all the circumstances I am prepared to grant leave to the Crown to cross-examine the four witnesses, as to the demeanour of the complainant when she returned to the college in the afternoon of 19 June 2009 and, to that extent, the circumstances in which they say they saw her and any issues of credibility relating to these specific matters.
I was also asked to grant leave for the Crown to cross-examine one of the young women, in respect of the terms of a conversation she says she had with the complainant by telephone while the complainant was at the house. The terms of that conversation were denied by the complainant.
I do not, however, consider that, as an exercise of my discretion, that passage should be the subject of such leave. It is not, in my view, the case that every difference in evidence between witnesses for the Crown should be the subject of such cross-examination. In any event, I am not at all convinced that, so far as the Crown case is concerned, the difference between the statements amounts to evidence that is unfavourable, in the sense in which I have indicated above that it should be construed.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 5 December 2011

Counsel for the prosecution:  Ms M Jones
Solicitor for the prosecution:  ACT Director of Public Prosecutions
Counsel for the accused SH:   Mr F J Purnell SC
Solicitor for the accused SH:  Kamy Saeedi Lawyers
Counsel for the accused MV:   Mr J Pappas
Solicitor for the accused MV:  Ben Aulich and Associates
Counsel for the accused KC:   Dr B Boss
Solicitor for the accused KC: Legal Aid ACT
Date of hearing:  16 and 17 November 2011
Date of judgment:  17 November 2011

ANNEXURE “A”

ROI between Harris/ [The complainant]

Page 8And then they – I can’t even remember if they pulled up out the front of the school or not or where I got out, but I just remember walking up, like, obviously getting out of the car and walking up, like, the front entrance of [the school]. And I just went straight into the bathroom and that’s when it kind of, like, hit me and I just started crying. Um, like uncontrolled – I couldn’t stop myself and then – and then, um, it was only, like, fifteen minutes until my Nan had to pick me up.
So I kind of just, like, got myself together and then I walked outside and I just – she – I got in the car and she just asked what was wrong and I just said that I had a fight with my boyfriend, I didn’t say anything else. And the effects of the weed, I was still feeling that night.

Page 7
Q46 So what happened when you got back to school?

A46Um, I walked up to – I was just, because sometimes when I get upset, um, the first thing I try – like, I just try and go to the toilet, to the bathroom, just so I can sit there, and just, like, because I feel kind of safe there. And, um, so I walked up, walked straight into the science room bathrooms, which are the closest ones to where I was, and just, like, walked straight in, shut the door, and sat down. And it as kind of, like, a relief, because I was, you know, safe in my own cubicle thing. And, um, I just, kind of, just was like, “Okay, all right,” like, just trying to say, like, be calm, and stuff, but then – because sometimes I get really emotional, and I just, like, cried for a bit.
Um, and then I realised I had to go to, um, my Nan’s, like, she was picking me up from the front of the school, so I just, like, kind of, just went, like, deep breaths and stuff, and just, um, fixed my makeup up. And then I just walked out, down to the car, um, and then I got in, and I just remember thinking to myself, “Well, you know, it’s easy. If she just asks what happened, or why am I crying, like, I will just say, o, you know, had a fight with my boyfriend, and stuff.” And because I was still really funny with the – like, I was still pretty badly affected, um – I didn’t feel as much as I was walking, when moving, but just when I sat still. Especially when I was sitting still in a car, when it was moving, it kind of, just, like – I don’t know, my head, it felt really funny.

Cross-examination of the complainant by Mr F J Purnell SC on 23 November 2011

Page 88
Lines 19-36And I’m suggesting to you that that was after 2 pm in the foyer, you ran into [witness 3]? --- I don’t – I walked straight to the bathroom downstairs, so unless she might have been downstairs and got them mixed up or something, but I don’t actually recollect that.
When you spoke to her, you were presenting as someone that was very happy and you were smiling when you spoke to her? --- I actually don’t have any recollection of speaking to her, so I can’t answer that question.
And you have no recollection of even talking to [witness 3], after you had had sex with the boys? --- No.
All right. And you further told [witness 3] that you had lunch with [SH] in Woden, didn’t you? --- Again, no I don’t remember.
Because indeed that was how you were feeling. You were feeling pretty pleased with yourself that you were able to sexually interest three boys on that day, weren’t you? --- That’s not correct.

Cross-examination of the complainant by Mr J Pappas on 24 November 2011
Page 129
Lines 1-29What I mean is physically I know I was under the influence, but for anyone else, bystanders looking on, I can’t tell if they thought something was up or not or if they thought I was just walking. I don’t know.
Well, you see, when you spoke to police on this first occasion at page 8 of your discussion with them, the unaided narrative, at about the middle of the page, the paragraph commenting: “So I kind of just like got myself together”? --- Yes
You said to the police, “I got in the car and she just asked what was wrong and I just said that I’d had a fight with my boyfriend.” Do you see that? --- That’s correct.
So was that truthful? --- Sorry, can you repeat the question? I didn’t hear you.
Was that truthful, that you got in the car and your grandmother inquired what was wrong with you? --- Yes, I wasn’t going to sit there and tell her I’d smoked marijuana and I’d been raped by three men.
Just answer my question. It’s truthful that she made that inquiry is it? --- Sorry, I can’t understand you.

It was truthful to tell the police your grandmother made that inquiry of you when she came to pick you up that day from school? --- Yes, she asked me that question.
And you said, “I’ve had a fight with my boyfriend”? --- That’s correct.

Page 128
Lines 25-43I’m coming to that. You were still affected and noticeably affected when you were picked up by your Nan or Grandmother? --- That’s correct.
You were still affected and noticeably affected to such an extent you were worried your father would be able to tell? --- That’s correct.
And in addition of course, you say that when your Nan picked you up from school you believe that you were showing the signs of being visibly upset, you’d been crying hysterically, uncontrollably, is that right? --- Yes, I wouldn’t say hysterically, but yes uncontrollably.
Now according to your evidence then, and it is your evidence I take it, that by the time your Nan picked you up to anyone paying moderately close attention it ought to have been obvious that you were very upset, or had been? --- Yes, I have a pair of sunglasses that usually conceal that, I don’t know if I was wearing them at the time, but it could be obvious.
And ought also have been obvious that you were under the influence of something? --- Yes, it could have been.

Page 131
Lines 1-7And just nonsense to suggest that when you returned from your tryst with these boys at this house on the 19^th you were in any way upset or showing signs of being upset? --- I completely disagree with that.
And an absolute nonsense to suggest that when you went out to be picked up by your grandmother that afternoon to leave school you were still upset? --- That’s incorrect.

Lines 34-45Now, very shortly after you were dropped off in the car park you ran into [witness 3], in the foyer of the college, didn’t you? --- I don’t have any recollection of that at all.
She was one of your circle of friends? --- She was, yes.
You were in a good mood, you were smiling and happy? --- That definitely is probably the furthest from the truth.
So that’s just wrong, can’t possibly be right? --- No.
Is that so? --- That’s correct.

Page 133
Lines 1-21When you came back out to be picked up by your Nan you spoke to [witness 4] and [witness 2], didn’t you? --- I have absolutely no recollection of that.
I suggest you went over to [witness 2’s] car which was parked in the car park? --- No, that’s not correct.
[Witness 2] had a car, didn’t she? --- She did.
It was a relatively new car? --- Yes.
She parked it in the car park at school, didn’t she? --- Yes, in the car park.
You went over and the two girls, [witness 4] and [witness 2], were sitting in [witness 2’s] car. You were completely normal, you weren’t upset, you weren’t crying? --- No, that’s not true. I don’t have any recollection whatsoever of even going to a car besides my Nan and pop’s.
Let me see if I can prompt your memory. You said something like, “You should have given me a call because I was in Woden”? --- That’s not correct.

ANNEXURE “B”

Statement of MBO (witness 3) (Con’t) (11 August 2009)

Page 3About 2.00 pm, I am not sure exactly what time it was, I saw [the complainant] in the foyer of the college. She seemed to be good mood and was smiling and happy.
(I asked her where she had been, she said she had been in Woden with [SH] and she had lunch with him. She also said something about talking to a security guard in Woden).

3 November 2011

[KC] and [the complainant] parted and I think that [the complainant] sort of waved goodbye to him. [the complainant] walked up to the foyer and entered. I had a conversation with her.
(I asked her where she had been and she said that she had been in Woden having lunch with [SH]. When she said [SH] I presumed that she meant [SH]. She said something about talking to a security guard in Woden. At some point in the conversation [the complainant] was singing a song. I do not know what the name of the song is but I think the artist is something like Tila Tequila. [The complainant] was signing the words “I like to fuck, every day, every night, I like to fuck if it’s wrong, if it’s right”. I think [the complainant] kept singing the next verse but I cannot remember the words. [The complainant] was in a very cheerful mood, she seemed to be a lot happier than normal. I did not ask [the complainant] any questions about why she was singing or what else had occurred during the day).
I can remember [the complainant] singing the song quite clearly now, I do not know why I did not include it in my original statement.

ROI between Harris/VT (witness 2) (14 August 2009)
Page 15
Q169So after that, did you have any more conversation with [the complainant], about what else occurred on that day?
A169Um, no. We saw her at school after that, and she was fine.
Q170What time did you see her at school?
A170Mm, when it was over, like, three o’clock, probably.
Q171So it was three pm that same day, is that right?
A171Yep.
Q172Whereabouts did you see her?
A172Out the front of school, because she left her bag in my car, or [witness 5] did, and they came over, because they were catching the Queanbeyan bus.
Q173So [witness 5] left her bag in your car, is that right?
A173Yep.
Q174So who was [the complainant] with, when she came over to your car?
A174[witness 5].
Q175And what did [the complainant] say, when she came over?
A175Ah, not much, she just asked us how we were and stuff, what we were doing.
Q176And how did [the complainant] seem at that time?
A176fine, she was happy.

Statement of TRS (witness 4) (Con’t) (14 August 2009)

Page 4
I waited inside [the school] and spoke to some other friends. [Witness 2’s] class finished early, I think about 3.15 pm. After that [witness 2] and I went back to her car and we sat in her car. While we were sitting there [the complainant] approached [witness 2’s] car. [the complainant] seemed to be normal and was not loud like she had been after we had smoked the Cannabis. She didn’t seem to be upset and was not crying.
(She asked what we did and I we said that we had been to Woden. She said “you should have called me I was in Woden”. [The complainant] said that she was still “high”. She said that she had walked around by herself and she had been harassed by security guards. She said something about a family member was picking her up and they were going out to dinner).

Statement of RAP (witness 6) (Con’t) (27 August 2009)
Page 4
I was sitting out the front of the school when I saw a greenish-blue car, I think it was a Commodore sedan pull into the stopping bay directly out the front of the school. I could not see who was in the car but [the complainant] got out of the back seat. She walked over to me and spoke with me. [The complainant] seemed to be normal and happy and did not seemed to be stoned anymore. I do not know if the car drove off again or not.
(I asked her where she had been and she said she had been in Woden with [KC] and had been shopping. She then said something about a security guard asking her questions about something. I may have spoken with her further, but I cannot remember what we said to each other).

[2011] ACTSC 198

November 17, 2011