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R v Whitmore

R v Whitmore

Case [1999] NSWCCA 247 20 August 1999

Complaint of sexual offence

Prior consistent statement

Admissibility of Evidence

Credibility

Fabrication

Criminal Law

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Reported Decision:
109 A Crim R 51

New South Wales

Court of Criminal Appeal

CITATION: REGINA v. WHITMORE [1999] NSWCCA 247

FILE NUMBER(S): CCA 60676/98

HEARING DATE(S): Monday 2 August 1999

JUDGMENT DATE:
20 August 1999

PARTIES :

REGINA v.
WHITMORE, Brian John

JUDGMENT OF: Newman J at 1; Sperling J at 2; Greg James J at 3

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 97/31/0552

LOWER COURT JUDICIAL OFFICER: McGuire DCJ.

COUNSEL: Crown: P.G. Berman
App: S.J. Odgers

SOLICITORS: Crown: S.E. O'Connor
App: T.A. Murphy

CATCHWORDS: Complaint of sexual offence - prior consistent statement - leave for admission on credibility only - suggestion of fabrication not made by mere denial - such suggestion should be expressly put - criteria for leave - criteria for exercise of discretion - criteria for waiver of the necessity for leave.

ACTS CITED: Crimes Act 1900
Evidence Act 1995

CASES CITED:
Lillyman (1896) 2 QB 167;
Allied Pastoral Holdings v. Federal Commissioner of Taxation (1983) 1 NSWLR 1;
Graham (1998) 157 ALR 404
Cassar & Ors (No. 12) [1999] NSWCCA 352;
BD (1997) 94 A. Crim. R. 131;
DJT [1999] NSWCCA 22;
JGW [1999] NSWCCA 116;
RPS (CCA, unreported 18 August 1997);
Curwood (1944) 69 CLR 561;
Heydon (1966) 1 NSWLR 708;
Domini (1972) 178 CLR 144;
Nominal Defendant v. Clements (1960) 104 CLR 476;
Gillard [1999] NSWCCA 21;
Dwyer [1999] NSWCCA 47;
RNS [1999] NSWCCA 122;
Ayoub [1999] NSWCCA 221;
Jones (1997) 191 CLR 439;
Fleming [1998] HCA 68
James [1999] NSWCCA 191

DECISION: Appeal upheld

IN THE COURT OF
CRIMINAL APPEAL
No. 60676 of 1998 CORAM: NEWMAN, J.
SPERLING, J.
GREG JAMES, J.

FRIDAY 20 AUGUST 1999

REGINA v. BRIAN JOHN WHITMORE
JUDGMENT

1 NEWMAN, J: I have read the judgment of Greg James, J. and I agree with the reasons he gives and the orders he proposes.
IN THE COURT OF
CRIMINAL APPEAL
No. 60676 of 1998 CORAM: NEWMAN, J.
SPERLING, J.
GREG JAMES, J.

FRIDAY 20 AUGUST 1999

REGINA v. BRIAN JOHN WHITMORE
JUDGMENT
2 SPERLING, J: I agree with the orders proposed by Greg James, J. and with his reasons.

IN THE COURT OF
CRIMINAL APPEAL
No. 60676 of 1998 CORAM: NEWMAN, J.
SPERLING, J.
GREG JAMES, J.

FRIDAY 20 AUGUST 1999

REGINA v. BRIAN JOHN WHITMORE
JUDGMENT

GREG JAMES, J:
The appeal

3 The appellant was tried before his Honour Judge McGuire and a jury in the District Court at Newcastle, on 8 September 1998. He was convicted on two charges, the first of having, between 1 December 1992 and 31 December 1992, indecently assaulted a child under the age of 10 years, contrary to s.61M(2) of the Crimes Act 1900. The maximum penalty in respect of such conviction is imprisonment for 10 years. The second conviction was in respect of a charge of having had sexual intercourse with the same child between 1 December 1992 and 31 December 1992, a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Whitmore

Details

AGLC: R v Whitmore [1999] NSWCCA 247
Case: [1999] NSWCCA 247
Decision Date: 20 August 1999

CaseChat Overview and Summary

In the case of R v Whitmore, the respondent, a former police officer, was convicted of sexual offences against a complainant. The appeal centred on the admissibility of a prior consistent statement made by the complainant. The High Court was asked to determine whether the trial judge erred in his approach to the admission of this evidence and whether the court should grant leave for its admission on the basis of credibility alone. The case raised significant issues concerning the rules of evidence, particularly in relation to the hearsay exception and the circumstances under which prior consistent statements can be admitted.

The legal issues before the court included whether the suggestion of fabrication of a complaint needed to be expressly put to the witness or if a mere denial could suffice, and whether the criteria for granting leave to admit a prior consistent statement on credibility alone were properly applied. The court was also required to consider the discretion of the trial judge in exercising leave and the circumstances under which such leave might be waived. The central question was whether the trial judge correctly balanced the probative value of the prior consistent statement against any prejudicial effect it might have on the respondent.

The court held that the suggestion of fabrication must be expressly put to the witness, rather than inferred from a mere denial. In this case, the suggestion was not explicitly made, and thus, the trial judge should have granted leave for the admission of the prior consistent statement on the basis of credibility alone. The court outlined the criteria for granting such leave, emphasising the importance of ensuring that the probative value of the statement substantially outweighs any prejudicial effect. The court also considered the discretion of the trial judge in exercising leave and the circumstances in which such leave might be waived, reaffirming the need for a careful and reasoned approach. The court concluded that the trial judge's failure to grant leave was an error of law, and the conviction was quashed. The final orders were that the conviction be quashed, and the matter be remitted to the Court of Appeal for further consideration.

Orders