RC v The The King

[2022] NSWCCA 281

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

RC v R [2022] NSWCCA 281

Hearing dates:

07 November 2022

Date of orders:

14 December 2022

Decision date:

14 December 2022

Before:

Button J at [1]
Fagan J at [2]
Yehia J at [10]

Decision:

(1)   Grant leave to appeal in respect of Ground 1.

(2)   Uphold Ground 1.

(3)   The convictions of the applicant in the District Court on 14 December 2020 in respect of Counts 1 to 9 (inclusive), and the sentence imposed on 08 June 2021, be quashed.

(4)   A new trial be ordered in respect of Counts 1 to 9 (inclusive).

(5)   The proceedings be remitted to the District Court at Albury on 03 February 2023 for Mention to list the matter for re-trial.

(6) Refuse leave to appeal in respect of Ground 2 pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).

Catchwords:

APPEALS — Appeal against conviction — Sexual assault and indecent assault of children — Reluctant witness — Error in admitting into evidence complainant’s police statement — Whether silence is sufficient to establish a denial or a failure to agree or admit to the substance of the evidence under s 106(1)(a)(ii) of the Evidence Act — Whether witness is “unavailable” — Whether “all reasonable steps” taken by the Crown Prosecutor to compel the witness to give evidence — Appeal allowed — Conviction quashed — Re-trial ordered

Legislation Cited:

Crimes Act 1900 (NSW) ss 61M, 66A

Criminal Appeal Act 1912 (NSW) s 5

Evidence Act1995 (NSW) cl 4, ss 38, 59, 60, 65, 101A, 106

Supreme Court (Criminal Appeal) Rules 2021 (NSW) r 4

Cases Cited:

Adam v R (2001) 183 ALR 625, [2001] HCA 57

Col v R [2013] NSWCCA 302

IW v R [2019] NSWCCA 311

Lee v The Queen (1998) 195 CLR 594, [1995] HCA 60

Mukherjee v Work Cover Authority (NSW) [2008] NSWIRComm 53

Papakosmas v The Queen (1999) 196 CLR 297, [1999] HCA 37

R v Omar [2022] NSWSC 371

R v Rose [2002] NSWCCA 455

R v Ryan [2020] NSWSC 1394

R v Suteski [2002] NSWCCA 509

R v Tarantino [2019] NSWSC 939

Sio v The Queen (2016) 259 CLR 47, [2016] HCA 32

Texts Cited:

Australian Law Reform Commission, Evidence (Interim) (Report No 26, August 1985)

Australian Law Reform Commission, Evidence (Report No 38, June 1987)

Category:

Principal judgment

Parties:

RC (Applicant)
Rex (Respondent)

Representation:

Counsel:
S Hall SC (Applicant)
M Kumar (Respondent)

Solicitors:
Legal Aid Commission (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s):

2018/00138989; 2018/00272367

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

08 June 2021

Before:

Grant DCJ

File Number(s):

2018/00138989; 2018/00272367

HEADNOTE

[This headnote is not to be read as part of the judgment]

Following a trial at Albury District Court before his Honour Judge Grant and a jury of 12, the applicant was convicted of nine counts of sexual misconduct against his niece (CG), and nephews (PH and JB). Counts 1 to 3 relate to CG, and comprise two counts of sexual intercourse with a child under 10, contrary to s 66A of the Crimes Act 1900 (NSW) (“Crimes Act”), and one offence of aggravated indecent assault, contrary to s 61M(2) of the Crimes Act. Counts 4 to 6 relate to PH, and Counts 7 to 9 relate to JB, all of which are offences of indecent assault, contrary to s 61M(2) of the Crimes Act. The applicant was sentenced to an aggregate term of imprisonment of 12 years, with a non-parole period of 8 years.

CG completed a police statement, dated 6 July 2018, in relation to the alleged sexual assaults and indecent assault over two meetings with Detective Binns. Detective Binns gave evidence that he read the jurat to CG, had a conversation with her, drafted the statement, read her the statement, and then witnessed CG read and sign the statement.

The complainants’ grandmother, SC, was called in the trial and gave evidence that it was never suggested to her by the complainants that the applicant had been “interfering” with them. PH gave evidence at the trial to the effect that the applicant first attempted “to molest” him when he was 11 years old. He gave evidence regarding several incidents where he said the applicant touched his penis or bottom. JB gave evidence at the trial of three occasions on which the applicant woke him up by touching his bottom, or squeezing his penis. JB and PH gave evidence that they had a conversation with one another, and their sister, CG, where they discussed what had happened to them and the allegations regarding the applicant.

When CG was called to give evidence in the trial, it was immediately apparent that she was a reluctant and difficult witness. She indicated before the jury that it was her desire to “drop the charges”. She was frustrated, largely unresponsive, and increasingly argumentative and angry. The Crown Prosecutor made, and the trial Judge granted, an application under s 38 of the Evidence Act 1995 (NSW) (“Evidence Act”) to cross-examine CG as an unfavourable witness. In cross-examination, she agreed that she made a statement on 6 July 2017, identified her signature on the document, and agreed that when she spoke to police, she was telling the truth. The Crown Prosecutor proceeded to read portions of the statement to the witness. She disputed aspects of the statement, and become increasingly upset, indicating that she would like to go back to her cell and saying: “I’m done with this shit”.

The Crown Prosecutor indicated an intention to seek to tender the 6 July 2017 statement. His Honour directed the Crown Prosecutor to s 106 of the Evidence Act, pointing out that it would be necessary to take the witness to the paragraphs of the statement that dealt with the allegations specifically. After a luncheon adjournment, an attempt was made to put those portions to the witness. CG was either silent or unresponsive. She left the AVL suite, and upon being brought back, remained silent or unresponsive when asked questions. His Honour then admitted the statement on the basis that her responses were inconsistent with the contents of the statement.

In a judgment, dated 28 September 2022, the trial Judge held that the statement was admissible not only pursuant to s 106 of the Evidence Act, but also pursuant to s 65 of the Evidence Act. No application had been made by the Crown Prosecutor during the trial pursuant to s 65.

The issues arising on the appeal were:

1. Whether his Honour erred in admitting the statement of the complainant under both ss 65 and 106 of the Evidence Act.

2. Whether his Honour erred in his directions to the jury relating to the 6 July 2017 statement.

3. Whether, if the above errors were established, the proceedings should be remitted to the District Court for re-trial, or there should be an acquittal on Counts 1 to 3.

The Court held (per Yehia J; Button and Fagan JJ agreeing), allowing leave to appeal and upholding the appeal.

As to the first ground of appeal

4. The 6 July 2017 statement of CG was not admissible under s 106 of the Evidence Act. Section 106(1)(a) requires the substance of the evidence to be put to the witness in cross-examination, and although portions of the statement were read to CG, certain crucial parts of it were not put to her at all. Further, it was not accepted that CG either denied, or did not admit or agree to, the substance of the evidence in respect of the sexual misconduct, given that she remained silent or was unresponsive. In the circumstances of this case, CG’s silence did not amount to an inference that she was denying, or failing to admit or agree to, the substance of the evidence: [1] (Button J); [3]-[7] (Fagan J); and [84]-[104] (Yehia J).

Col v R [2013] NSWCCA 302; Lee v The Queen (1998) 195 CLR 594; [1998] HCA 60; R v Rose [2002] NSWCCA 455 considered.

5. CG’s statement was not admissible under s 65 of the Evidence Act, because she was not an “unavailable witness”. A person is an “unavailable witness” where “all reasonable steps” are taken without success to compel a person to give evidence. Here, there was no evidence of the steps taken by the Crown Prosecutor to compel CG to give evidence. While attempts had been made to cross-examine CG, there was no evidence that attempts had been made to talk to her about her concerns in the luncheon adjournment, to warn her of the risk that she may become subject to contempt proceedings, or to provide her with an opportunity to speak to a Witness Assistance Officer: [1] (Button J); [8] (Fagan J); and [105]-[120] (Yehia J).

Sio v The Queen [2016] HCA 32; R v Tarantino [2019] NSWSC 939; R v Omar [2022] NSWSC 371; Mukherjee v Work Cover Authority (NSW) [2008] NSWIRComm 53 considered.

As to the second ground of appeal

6. His Honour directed the jury not to attribute disproportionate weight to the statement and directed them to also consider the evidence, or lack thereof, CG gave in court. No issue was raised about the direction on behalf of the applicant at trial, and no re-direction was sought. Per r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW), the failure to raise any issue with the direction, or seek a re-direction at trial, militates against upholding this ground of appeal: [1] (Button J); [2] (Fagan J); and [123]-[129] (Yehia J).

IW v R [2019] NSWCCA 31 considered.

As to whether the proceedings in respect of Counts 1 to 3 should be remitted to the District Court for re-trial or acquittals entered

7. Yehia J expressed the view, with which Button J agreed, that the proceedings in respect of Counts 1 to 3, in addition to the remaining counts, should be remitted to the District Court for re-trial, and it would be a matter of the Director of Public Prosecutions whether the charges should proceed to trial again (noting the distressed experienced by CG at trial): [1] (Button J); [122] (Yehia J).

8. Fagan J expressed the view that no further trial should occur in which CG would be called as a witness. As a consequence, verdicts of acquittal should be entered in relation to Counts 1 to 3, and in relation to Counts 4 to 9, noting that it is a matter for the Director of Public Prosecutions whether the charges are sustainable without her evidence: [9] (Fagan J).

Judgment

1. BUTTON J: I agree with the judgment and proposed orders of Yehia J.

2. FAGAN J: I have had the benefit of reviewing Yehia J’s judgment in draft. For the reasons her Honour has given, I agree that the convictions appealed from cannot stand. I would join in the orders proposed by her Honour, except so far as they provide for a new trial in respect of the counts concerning CG. The following additional reasons of my own proceed from Yehia J’s summary of the course of the trial, which I adopt.

3. The non-cooperation of the complainant, CG, presented the trial judge and both counsel with difficult decisions, which had to be made under the pressure of the applicant being in the jury’s charge and CG misconducting herself and issuing a stream of vile abuse towards the prosecutor and the judge. CG was called to support allegations that she had made some three and a half years before the trial. Upon those allegations police had conducted an investigation and delivered a brief to the Director of Public Prosecutions. Having thus activated the machinery of the law, by the time the trial was conducted CG had changed her mind. When called as a witness she addressed the Crown prosecutor and the trial judge in foul language and, for the most part, refused to give responsive answers to questions. The Crown prosecutor might well have applied for further steps to be taken to compel the witness. He might have sought to have her counselled and advised as a means of encouraging her to give evidence. The learned judge might have adjourned to facilitate such a course before receiving CG’s police statement into evidence. The statement having been admitted, defence counsel might have cross-examined on it. None of the participants can be criticised for not having found, under difficult circumstances, a solution that might have enabled the trial to proceed to sound verdicts. CG sabotaged the proceeding.

4. CG’s answers quoted by Yehia J at [50] amounted to a positive assertion that the applicant “had done those things” that were set out in her statement to police. Those answers were given before she was affirmed. After the affirmation had been administered, CG again agreed that she had made the police statement, in the answers referred to by Yehia J at [54]. She provided this answer:

Q   When you spoke to the police, were you telling the truth?

A   Yes, I was.

5. That might have been understood as meaning that she adopted on affirmation the whole of the statement, except for the fact that she then asserted that she “did not say [the contents of par 4 of the statement] to the police” and that par 3 “was never wording from my mouth. I never spoke those words”. The witness similarly disputed that she had said parts of pars 6, 7, 9 and 14. She said that she did not read the statement before signing it and nor did anyone else read it over to her. Up to when CG first left the room from which the Audio Visual Link (“AVL”) was connected to the court, as described by Yehia J at [65], she had not been questioned on any paragraphs of her statement that contained substantive evidence concerning either the three counts for which CG was the complainant, or the remaining counts alleging offences against PH and JB.

6. When CG came back to the AVL room the prosecutor read back to her parts of the four paragraphs in which she had described the events of count 1 but CG did not give any answer as to whether those paragraphs did or did not accord with what she had told the police orally, nor as to whether the events described in those paragraphs did or did not occur. With respect to some of the content of paragraphs concerning the events of counts 2 and 3, CG was asked whether she remembered telling police the things that appear in her statement but, again, she did not say one way or the other whether she had told the police those things or whether they were true.

7. I agree with Yehia J that the prerequisites in s 106(1)(a) of the Evidence Act1995 (NSW) (“Evidence Act”) were not satisfied so that CG’s police statement could not be tendered by way of exception to the general exclusion of evidence that “affects the assessment of [CG’s] credibility”: ss 101A and 102. The substance of the police statement was not “put to” CG and therefore no occasion arose for her to deny the statement, or fail to agree with it, in any respect material to the counts on the indictment. Further, because CG did not give any evidence in support of, or against, any of the counts, there was nothing upon which her credibility was in issue. Hence, having regard to the introductory words of s 106(1), the section was not engaged. In the absence of a credibility issue there was nothing to which a prior police statement could be relevant.

8. For the purposes of s 65(2)(c) of the Evidence Act, I agree with Yehia J that it would have been open to the trial judge to find that CG’s police statement was made in such circumstances that it was highly likely to be reliable. However, CG was not “unavailable” so that s 65 was not engaged. It was not shown that all reasonable steps had been taken to compel CG to give evidence, as required in order to satisfy cl 4(1)(g) of the definition of an unavailable person, according to the Dictionary to the Evidence Act. If further steps to compel CG had been taken, without success, so that she fulfilled the definition of an unavailable witness, enabling her statement to be tendered under s 65, consideration would have to have been given to whether the danger of unfair prejudice to the accused as a result of receiving the statement would outweigh its probative value. The danger would have been very significant in view of the apparent impossibility of cross-examining CG because of her uncooperative conduct.

9. All of the convictions must be set aside because the wrongly admitted evidence in the police statement was treated as cross admissible in the trial. With respect to counts 1-3 concerning CG, in my view verdicts of acquittal should be entered and no retrial ordered. There should not be a further trial in which CG would be called as a witness. It could only be expected that if she should be called again the same chaos and disorder would ensue. It is a matter for the Director of Public Prosecutions to determine whether the charges concerning sexual misconduct against PH and JB are sustainable without the cross-admissible evidence of CG.

10. YEHIA J: RC (the applicant) stood trial at Albury District Court between 9 and 14 December 2020, before his Honour Judge Grant and a jury of 12 on an indictment containing nine counts of alleged sexual misconduct committed against his niece, CG, and nephews, PH and JB.

11. Counts 1 to 3 relate to CG. They allege sexual misconduct against her when she was aged between 5 and 13 years. Counts 1 and 2 allege sexual intercourse with a child under 10, contrary to s 66A of the Crimes Act 1900 (NSW) (Crimes Act). Count 3 alleges aggravated indecent assault, contrary to s 61M(2) of the Crimes Act.

12. Counts 4 to 6 allege indecent assaults committed against PH when he was between the age of 11 and 13 years. Counts 7 to 9 allege indecent assaults committed against JB when he was 15 years old. Counts 4 to 9 (inclusive) are offences contrary to s 61M(2) of the Crimes Act.

13. The jury returned guilty verdicts to all nine counts on 14 December 2020. On 8 June 2021, the applicant was sentenced to an aggregate term of imprisonment of 12 years, with a non-parole period of 8 years’ imprisonment. The aggregate head sentence expires on 5 December 2032.

14. The Crown case at trial relied heavily on the pre-recorded interviews with HL and JB, their viva voce evidence during the trial, and the un-sworn police statement of CG. In addition, the Crown relied upon complaint evidence and tendency evidence. The evidence going to the counts relating to each of the complainants was held to be cross-admissible, as well as internally admissible as tendency evidence in the Crown case relating to each of the complainants.

15. The applicant seeks leave to appeal against all nine convictions, pursuant to s 5(1)(a) of the Criminal Appeal Act 1912 (NSW) (Criminal Appeal Act). The applicant appeals on the following grounds:

Ground 1: His Honour erred in admitting the statement of the complainant, CG.

Ground 2: His Honour erred in his directions relating to the tendered statement of the complainant, CG.

16. Both grounds of appeal concern the evidence of the eldest complainant, CG. CG made a statement to police, which she signed on 6 July 2017. This statement was initially marked as VD #3, then MFI #4, and was later admitted into evidence in redacted form as Exhibit #6. ^[1]

    1. Appeal Book (AB) 200:35.

17. The applicant requires leave to appeal both grounds. In respect of Ground 2, leave is required pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) (Supreme Court (Criminal Appeal) Rules).

The Crown Case

Background

18. The complainants are the children of N, and the niece and nephews of the applicant. SC is the mother of the applicant and N, and the grandmother of the complainants. The complainants lived with their mother in East Albury at some point during the period of the allegations. At the time of the allegations, the applicant lived at a different address in East Albury. SC lived in Wellington.

19. The conduct giving rise to the allegations was said to have taken place at CG’s home (Count 1); SC’s home (Counts 2 and 7); and at the applicant’s home (Counts 3, 4, 5, 6, 8 and 9).

20. The Crown Prosecutor called a number of witnesses in the case against the applicant. I have had full regard to the evidence given at trial and intend to summarise the evidence below.

Summary of Evidence

Detective Sergeant Adam Binns

21. Detective Sergeant Adam Binns gave evidence in the trial on 9 December 2020 and 11 December 2020. During his examination-in-chief, he was provided with copies of his statements, dated 29 May 2018 (MFI #1), 5 March 2019 (MFI #2) and 7 December 2019 (MFI #3), which were read out. During the course of his investigation, Detective Binns obtained a number of records, including the following: COPS entries; Centrelink records; birth certificates of CG and the applicant; records with respect to vehicles owned and registered in the name of the applicant; residential arrangements of the G and C families; and school records of CG.

21. Detective Binns gave evidence that he first spoke to CG at her home and informed her that he wished to take a statement from her in relation to allegations of sexual assault. He met with CG on two occasions between 1 June 2017 and 6 July 2017 for the purposes of completing her statement. Referring to his statement made on 5 March 2019, Detective Binns stated that he spoke to SN, CG’s boyfriend. He gave evidence that he had a conversation with SN and asked him if CG had ever spoken to him about things that happened between her and the applicant as a child, to which SN responded that he did not “want to get involved”.

22. In cross-examination, Detective Binns confirmed that he and Detective Senior Constable Galea spoke to the applicant regarding the allegations. Detective Binns gave evidence that the applicant remarked that they were “bullshit”.

23. Detective Binns was re-called to give evidence later in the day on 9 December 2020. He was shown CG’s statement, which he recognised. He confirmed that the date on the statement was 6 July 2017, and that the statement was witnessed by him. Detective Binns gave evidence about the method he used to obtain statements from witnesses and confirmed that he would typically start by explaining to the person making the statement that the first paragraph is a jurat. He gave evidence that he read CG the jurat when taking her statement. He had a conversation with CG and, based on that conversation, drafted CG’s statement, and detailed events in chronological order. He read the statement to CG, following which CG appeared to read the statement for herself and then sign it.

SC

25. SC is the applicant’s mother and the grandmother of the complainants. In examination-in-chief, SC gave evidence that she never resided at Pierce Street, however, she visited the residence on one or two occasions. She recalled that CG, PH and JB had previously visited her in Wellington.

26. JB and PH only stayed with SC twice for one night at a time. On both occasions, the children slept in her room on the floor. During these visits, SC could not confirm if the applicant also attended with the children. SC recalled giving an account to police that JB and PH visited her in the few years before 2017, but only for one night. She told police that JB would sleep in the room with her when he visited and, at other times, JB and PH would sleep in the loungeroom on mattresses.

27. During the course of SC giving evidence, the Crown Prosecutor was granted leave to cross-examine her, pursuant to s 38 of the Evidence Act 1995 (NSW) (Evidence Act). In cross-examination by the Crown Prosecutor, SC gave evidence that she could not remember if she was read, or read herself, the statement before she signed it. She clarified that there was only one mattress, and the boys only stayed a couple of times. She maintained that PH and JB visited on only two occasions and stopped visiting because their mother kept them away.

28. SC could not recall having a conversation with N at all about the allegations and confirmed that she never spoke to the applicant about the allegations because N never told her about them. SC confirmed that CG only visited SC once whilst she lived in Wellington, and only for a cup of tea, never staying overnight. SC had no recollection of asking the applicant why he was sleeping on a mattress with CG, and denied ever witnessing such an event. In cross-examination by Counsel for the applicant, SC said PH, JB and CG never suggested to her that the applicant was “interfering” with them.

PH

29. PH was interviewed by the Murray Child Abuse Unit on 18 April 2017. The audio and video footage of the interview was recorded. The interview was played to the jury as part of PH’s evidence-in-chief. In the interview, PH was asked what he was there to talk about, to which he responded that he was there to talk about his “uncle”, who he identified as the applicant. PH told police that the applicant tried to “molest [him] and [his] brother and sister”. PH stated that he was in Year 6 and approximately 11 years old when the applicant first tried to molest him.

30. PH resided at Alexander Street, which was the applicant’s address at the time, and where PH and N were staying. PH gave evidence that he was asleep when the applicant walked in and tried to grab his “arse or something”. He stated that he woke up to the applicant’s hand on his “arse” underneath his clothing. In particular, he gave evidence the applicant was touching the middle of his bottom. He told the applicant to “move” and recalled that the applicant responded that he would give PH “a hundred dollars if you let me”.

31. PH refused and asked the applicant to leave him alone. PH recalled that he went back to sleep and thought that the applicant might have come in about three or four times to touch his “arse” underneath his clothing. PH confirmed that he lived at the applicant’s house with N and JB when they came down from Sydney.

32. The next incident occurred between 27 January and 4 April 2015 when PH was visiting his grandmother, SC. PH and the applicant were both sleeping on the lounge. SC was also sleeping in the lounge room on a queen size bed. PH woke to the applicant touching the middle of his bottom beneath his pants. The applicant moved his hand around, touching PH and waking him up. When PH woke, he said “move” and the applicant quickly moved his hand. In cross-examination, PH said he did not tell his grandmother even though he wanted to because he went back to sleep and that he was “too scared to tell her”. PH also gave evidence that his grandmother never asked him if the applicant was touching him. However, he recalled that she had asked his sister, CG, when she was at her old house in Wellington.

33. Count 6 relates to an incident that occurred between 27 January and 4 April 2015. PH was staying at the applicant’s house, and both he and the applicant were sleeping on the lounge because PH was “little”. The applicant put his hands down PH’s pants and touched the middle of PH’s bottom. PH woke to the applicant “trying to feel my arse”. He recalled that the applicant quickly moved his hand when PH woke.

34. PH told his brother and sister about these events when he was at his sister’s house in Lavington. PH said that his brother and sister told him what happened to them and asked if the applicant had touched him as well. JB told them that the applicant tried to touch his “nuts” and CG told them that the applicant tried to rape her since she was 5 years of age. PH gave evidence that ET, CG’s boyfriend at the time, was at CG’s apartment when PH told JB and CG about what the applicant had done to him.

35. In cross-examination, PH agreed that he did not tell his mother, N, about the assaults until after he disclosed the incidents to his sister and brother. He stated that he did not tell his mum because she would not believe him due to her love for the applicant. Furthermore, it was put to PH in cross-examination that he was making up the allegations to support JB and CG. PH disagreed with that proposition.

PHS

36. PHS is PH’s father. He gave evidence at the trial by way of audio-visual link. PHS gave evidence that in February 2018, two police officers visited him to speak to him about PH. He stated that he told police that he was not aware of the allegations, and that PH probably did not tell him as he was “… frightened, worried that I might do something stupid”. At that time, PHS “very rarely” heard from PH. The last time he spoke to PH was during Christmas in 2018. In cross-examination, he said he did not stay in contact with PH much due to an Apprehended Violence Order that was in place for two years.

ET

37. ET gave evidence that he was in a relationship with CG in 2016 and 2017. During this time, ET met CG’s brothers, PH and JB. In September 2016, CG and ET moved into an apartment in Lavington together. ET gave evidence that in July or August 2016, ET and CG holidayed in Wyong.

38. ET stated that CG disclosed that her uncle had “touched her” since she was eight. ET gave further evidence that in February 2017, he was at his and CG’s apartment with CG, JB and PH. He recalled that JB appeared irritated and was not acting like himself. CG asked JB what was wrong, upon which JB disclosed that the applicant had “touched him” on the “dick”. CG said: “he’s raped me since I was eight”. PH then disclosed that the applicant touched him on the “arse”. In cross-examination, ET said he was sitting on the couch at the time when JB came over. ET said that CG may have said something about wanting to go to the police, but he could not remember.

JB

39. On 13 April 2017, JB was interviewed by the Murray Child Abuse Unit. An audio-visual recording was taken of the interview. The interview was played to the jury as part of JB’s evidence-in-chief. JB said that he was there to tell police that he had been sexually assaulted by his uncle, the applicant.

40. JB stated that he was “kicked out” of his home by his mother around 2016, just after his 15^th birthday. The first incident occurred between 30 April to 31 July 2016 in Wellington. JB and the applicant visited JB’s grandmother, SC, in Wellington for a week. JB gave evidence that the only people in the one-bedroom apartment at night was himself, the applicant and SC. JB gave evidence that SC slept in her room, the applicant slept on a mattress in the lounge room, and JB slept on the lounge. JB woke to the applicant squeezing his bottom beneath his clothing. JB said that he did not say anything at the time and did not tell anyone about it because he was ashamed.

41. The next incident took place between 30 April 2016 and 21 July 2016. JB stated that he and the applicant had been sleeping in the lounge room. He gave evidence that the applicant walked over from where he was sleeping, put his hands down JB’s pants and touched his penis. When JB woke, the applicant then got up and moved. JB recalled that a few nights later, the applicant said to him words to the effect of: “I’m pretty sure you saw me doing that the other night”.

42. JB stated that between 30 April 2016 and 31 July 2016, he was sleeping on the mattress behind the lounge while the applicant was sleeping on the lounge. JB gave evidence that he woke up to the applicant’s hand down his pants, and the applicant holding and squeezing his penis. JB estimated that it went on for about a minute. He stated that as soon as he woke up, the applicant stopped touching him and moved back to the lounge.

43. JB gave further evidence that on one occasion, the applicant wrote on a piece of paper and asked JB if he would “flash it”, or if the applicant could “get a feel of it”. JB recalled that the applicant would ask him if he wanted money or the “green car out the back”. JB also stated that the applicant tried to bribe him with a “shard” if he let the applicant touch him.

44. In cross-examination, it was put to JB that none of the allegations actually took place. He disagreed with the proposition. It was further put to JB that he fabricated the incidents in order to corroborate the allegations made by his sister, CG, and his brother, PH. Again, he disagreed with the proposition.

The Proceedings in the District Court in Respect of CG

45. It is necessary to set out in some detail what transpired once CG was called to give evidence. It was immediately apparent that she was a reluctant witness. She became frustrated and angry. The atmosphere became increasingly tense.

46. On occasion, CG was unresponsive. At other times, she became argumentative. On many occasions, she simply refused to answer questions. Accepting the difficulties faced by the trial Judge and the parties, what unfolded was a hastily conducted process which resulted in the admission into evidence of CG’s statement without clearly identifying the enabling provisions under the Evidence Act, and in the absence of any application being made pursuant to s 65 of the Evidence Act.

47. CG was called to give evidence on 9 December 2020. She was the second Crown witness called to give evidence in the trial. CG was serving a sentence and was called via audio-visual link from gaol. Prior to being called, and in the absence of the jury, the Crown Prosecutor informed the Court that CG: “may be a difficult witness”, and that a notice pursuant to s 38 of the Evidence Act had been served, but remarked: “we’ll see how we go”. ^[2]

    2. AB 115:3.

48. Almost immediately upon being brought into the audio-visual suite, CG stated: “I wish to drop the charges…honestly I want to drop the charges because I miss my family. I want my family. I want my family. I’m alright though”. ^[3]

    3. AB 116.

49. The jury was brought into court and informed that CG was giving evidence from gaol because she was serving a sentence. An unsuccessful attempt was made to affirm the witness. CG repeated, in front of the jury, that she wanted to “drop the charges”. When asked why she wanted to do that, she responded: “because I am missing time with my family. I am out on the streets by myself. I have no one. I want to go home. I want to be able to sit down and have a cup of coffee with my uncle. I’d like to sit down and have a feed with my uncle and my mother and my brothers”. ^[4]

    4. AB 117:30.

50. CG was asked about making a statement to the police alleging that the applicant had “done certain things to [her]”. The witness agreed she had made the statement. She was asked:

“Q. Did he do those things?

A. I'd rather not speak on the subject, sir.

Q. I am just asking you to answer my question, did he do those things?

A. I'd rather not speak on the subject, sir.

Q. Did you tell police he had done those things?

A. Correct.” ^[5]

5. AB 118:5-12.

51. The Crown Prosecutor made an application pursuant to s 38 of the Evidence Act. The application was not opposed. His Honour granted the application, allowing the Crown Prosecutor to cross-examine CG. The application was granted on the basis that the witness was not making a genuine attempt to give evidence, and that she was unfavourable to the Crown case. ^[6]

    6. AB 119:3.

52. The applicant did not take issue with his Honour granting the Crown leave to cross-examine CG. She was clearly an unfavourable witness who was not making a genuine attempt to give evidence. However, the application was not granted pursuant to s 38(1)(c) of the Evidence Act, namely, that “the witness has, at any time, made a prior inconsistent statement”.

53. Section 38 provides the mechanism under the Evidence Act whereby a witness can be cross-examined by the calling party. It does not, in terms, enable a party to tender the witness’s statement to police.

54. The transcript indicates that CG was affirmed at 12:37pm. CG was then cross-examined by the Crown Prosecutor. She agreed that she made a statement to police on 6 July 2017, and identified her signature on the document. CG agreed that when she spoke to the police, she was telling the truth. ^[7]

    7. AB 119:26.

55. The Crown Prosecutor then commenced to read to the witness portions of her statement. Upon reading out paragraph 3 of the statement, CG responded:

“A. That's what paragraph 3 says, but that was never wording from my mouth. I never spoke those words.” ^[8]

8. AB 120:48.

56. Parts of paragraph 4 of CG’s statement were read:

“Q.  Does paragraph 4 say this, "I have been waiting to tell the police about this for years, I have waited until I was 18 years old because I felt that I was no longer a child and was able to make my own decisions."

A.  Again, the paragraph says that, but those words are not from my mouth, they are not from my being.  Do you comprehend what I'm saying?

Q.  Did you tell the police that you had waited until you were 18 before you--

A.  Look, I did not.

Q.  You signed this document; do you agree with that?

A.  I signed the document, but those words did not come from my mouth, that's for fucking sure.

Q.  Did you read the document before you signed it?

A.  No, I didn't.

Q.  Was it read to you?

A.  No, it wasn't.

Q.  I want to suggest that Senior Constable Binns, as he then was, read it to you before you signed it

A.  Binns did not read anything to me before I signed anything, I didn't read anything, and the words that are written in these paragraphs are not of my wording, they're not of my tongue, that's a fact, that's for sure.

Q.  Where do you say they came from?

A.  Probably from Binns, or probably from whoever the fuck wrote it and put it down in other wording, because it's not my wording.

Q.  You say other wording, did you say the same thing in other words?

A.  Did I say the same thing in other words?  Well, I didn't say that I was waiting for years to say anything to anyone.

Q.  Why did you wait for years?

A.  I told him that my mother had found out about a situation and had forced me to go to the police.

Q.  How did your mother find out about it?

A.  That's none of your business, sir, that's none of your concern.” ^[9]

9. AB 121:1-39.

57. When the contents of paragraph 7 were put to the witness, she agreed that the first three sentence of that paragraph were her words, although disputed one word, “sooner”, in the last sentence. Similarly, in relation to the contents of paragraph 14, CG disputed that she had ever said that any of her uncles had been in Queensland. ^[10]

    10. AB 124:1.

58. As the Crown Prosecutor put the contents of paragraph 14 to the witness, she indicated that she wanted to go back to her cell:

“A. I’d like to go back to my cell. Now. I’m done with this shit. Like I said I’d like the fucking Court case ..(not transcribable)... I’m done with it. I’m not going to Court for it ever again.” ^[11]

11. AB 124:18.

59. The jury was then sent out to lunch and his Honour asked: “Mr Crown, what’s the plan?” ^[12] The following exchange took place:

    12. AB 125:3.

“CROWN PROSECUTOR: The plan is this, your Honour, to take some short evidence from Detective Sergeant Binns that he witnesses CG sign that document, that he read it to her before she signed it, then I will seek to tender it and provide copies to the jury, subject to some certain deletions that we’ve agreed upon.

HIS HONOUR: We might do that then at 2 o’clock.  Once the document is tendered what are you proposing to do with the witness, if anything?

CROWN PROSECUTOR: Nothing.  I don’t know that there’s any point, your Honour.  There was an indication that something along those lines might happen.

HIS HONOUR: Well you’ve got from the witness that it’s her signature that’s on the document and that’s probably enough for it to be tendered.

CROWN PROSECUTOR: Yes, the jury can decide whether she said what’s in it.

HIS HONOUR: They can accept it or reject it.  But then the problem arises then though, Mr Crown, in regard to the ability for Mr Buckman to cross-examine the witness.  Now, he may make a forensic decision that he doesn’t want to, but if he does and if she’s refusing to give evidence then it does make a problem for the trial.  Mr Buckman, you don’t need to answer this on the spot, but you’ll need to think about your position too as to whether you wish to cross-examine the witness or simply rely upon her refuting now what’s contained inside the document.

BUCKMAN: Do I understand my friend is seeking to tender it under s 65?

HIS HONOUR: I think because he’s been granted leave to cross-examine - I’ll have a look at it over lunch - but he’s granted leave to cross-examine the witness pursuant to s 38 of the Evidence Act. He’s identified with the witness that in fact that’s her signature on the document and that she did make a statement to the police and it might very well be that he can tender it pursuant to s 38 but I’ll have to look further at it because - that’s my inclination at this stage, Mr Buckland, but you might want to make some submissions at 2 o’clock.

CROWN PROSECUTOR: Your Honour, can I hand up and return voir dire exhibit 3.  Can I hand up to your Honour two decisions of the CCA that are relevant.  The first and most relevant is Col v R [2013] NSWCCA 302. The second is Michael v R [2014] NSWCCA 2.” ^[13]

13. AB 125:5-47.

60. Upon resuming after the luncheon adjournment, and in the absence of the jury, his Honour referred the Crown Prosecutor to s 106 of the Evidence Act. His Honour pointed out that the Crown would need to take the witness to those paragraphs of her police statement that dealt specifically with the allegations. His Honour then said:

“If she denies those matters, you then can make an application for the statement to be tendered. I think that pre-hurdle needs to be met first, because you have to establish essentially the substance of the evidence as put to the witness, and at the moment I think you had only got up to para 14 of the statement when we had the luncheon adjournment.” ^[14]

14. AB 127:12-17.

61. The portions of the statement that had been put to the witness up until that point did not deal with the specific allegations. The contents of paragraphs 3, 4, 7 and 14 related to peripheral or introductory matters. To the extent that the witness had disputed the contents of those paragraphs, she did not give an account, let alone an inconsistent account, about the specific allegations or complaint. Therefore, it could not be said that she denied, or did not admit or agree to, the substance of the evidence contained in those paragraphs.

62. Following the exchange between the trial Judge, the Crown Prosecutor and Defence Counsel about s 106 of the Evidence Act, the jury were brought back into court and the audio-visual link was re-activated. His Honour reminded the witness of her obligation to tell the truth. The following exchange took place:

“CROWN

Q.  Ma'am, have you had a statement given to you since--

A.  No, the fuck, I haven't.

Q.  Okay.  I want to read to you from your statement, and if that statement could be put on the overhead again.

A.  Actually, no, I'm about to ask them for mine, because they've got it here, so.  I'd like to be seen on the camera instead of the fucking statement being put up instead of my face, yeah.

Q.  Why don't you knock on the door, ma'am, and see if you can get the statement off the correctives officer.

A.  Why don't you go home and get some loving from your wife.

HIS HONOUR: Let's not have this interchange, just do what you are told, please.

WITNESS: You're angry dad, bro, I didn't come from your ball sack.  Like I said, I've got me own brain, I come from me own tribe, not from yours.” ^[15]

15. AB 128:11-43.

63. Paragraph 28 of CG’s statement related to the first allegation. It essentially dealt with CG’s description of what the applicant was wearing, but not the substance of the allegation. CG denied saying the words to police, stating:

“Fuck off, liars, I didn't even say that, fucking liars. I read, I don't want to be in this fucking place, get the fuck off my fucking back.” ^[16]

16. AB 129:10.

64. His Honour then instructed the Crown Prosecutor to put the question to her, following which the Crown asked:

“CROWN PROSECUTOR:

Q. Do you agree that that appears in your statements?

A. I agree that you are fucking wankers.

HIS HONOUR: Put paras 30 and 31 to her, Mr Crown.

CROWN PROSECUTOR

Q. Ma’am, paragraph--

A. ..(not transcribable)..

Q. Paragraph 29, “I went inside to the living room with RC. He stood in front of me and told me to get on my hands and knees—" ^[17]

17. Ibid: 17-30.

65. While this portion of paragraph 29 was being put to the witness, she left the audio-visual suite. His Honour noted: “Mr Crown, she’s left the AVL suite. I don’t know why they’ve allowed that to happen. Perhaps you just might want to put the counts to her”. ^[18]

    18. AB 129:34.

66. His Honour then informed the jury that some assistance was required to bring the witness back into the audio-visual suite and, as a result, there may be a 5 or 10 minute delay. The jury refused an invitation to go back to the jury room and waited in court until the witness was brought back into the audio-visual suite. The Crown Prosecutor commenced putting to CG representations that she had made to the police about what the applicant had done to her:

“CROWN PROSECUTOR:

Q. CG, did you tell the police that your uncle, RC, had sexually assaulted you by inserting his penis into your vagina? Did you tell the police that?

[No response]

HIS HONOUR: The next question, please, Mr Crown.

CROWN PROSECUTOR:

CG, did you tell the police that RC, your uncle, had indecently assaulted you by pulling your underwear down while you were in your bed? Did you tell the police that?

[No response]” ^[19]

19. AB 130:13-25.

67. It is clear from the transcript that CG remained mute. In the face of the witness’s non-responsiveness, the jury was sent out so that a “short legal argument” could take place. Defence Counsel was asked whether he opposed the application for the tender of the statement. He did object to the tender, pointing out that the witness had not admitted to making an inconsistent statement. His Honour responded:

“HIS HONOUR: Well, she has refused to answer questions, so in my view, one can readily draw the inference that what is contained in her statement is inconsistent by the silence that she is currently maintaining.  She is clearly an unfavourable witness in regard to the Crown case, and Mr Crown has put to h er the substance of the evidence, and she has not agreed to it.  So therefore you have inconsistency on the part of the witness.

BUCKMAN: It is a matter for your Honour.  In my submission, it is not inconsistent if she hasn't answered the question.  She has simply not answered the question, and therefore she hasn't given evidence that is inconsistent with what has been put to her.

HIS HONOUR: Are there any other submissions you wish to make?

BUCKMAN: Only just take into account 135 and 137.

HIS HONOUR: Yes well I’m planning, Mr Buckman, to give a warning to the jury that they not attribute disproportionate weight to the statement and in my view the substantial probative value of the statement outweighs any risk of unfair prejudice to the accused.

BUCKMAN: As your Honour pleases.

HIS HONOUR: I’m going to allow the statement and I’ll publish my reasons in relation to doing that at a later time.  Mr Crown, the statement will go in.  I assume that that’s the end of the examination-in-chief of the witness?” ^[20]

20. AB 131:18-43.

68. His Honour did not publish his reasons during the trial. His Honour’s judgment setting out his reasons for admitting the statement is dated 28 September 2022.

69. Upon the resumption of the proceedings in the presence of the jury, CG was informed that the Crown Prosecutor was going to ask further questions. What followed was a series of unresponsive answers by the witness:

“CROWN PROSECUTOR

Q.  CG, did you tell the police that the first time RC had sexually assaulted you, about a month after that happened there was in your words “really bad storm”; do you remember saying that?  Do you remember telling the police that your nan’s house in Wellington was near a corner called Rogans?  Rogans was a shop on the corner of the street where you lived.  Wellington in New South Wales, ma’am.

A.  You can call me Miss.

Q.  Do you remember telling the police that there was a corner shop called Rogans in the same street that your nan lived?

A.  What I do remember is telling the DPP from both Wellington and Wollongong that I’d like to drop the charges.

Q.  Do you remember telling the police that after RC had sexually assaulted you by putting his penis into your vagina that you had noticed blood in your underpants so you put them in a plastic bag and hid them--

A.  I thought I was dumb, aye?  That I was stupid.

Q.  --and then you put them in the bin outside?

A.  Yeah I was doing university work in Year 4.

Q.  Do you remember telling the police, Miss, that--

A.  I was doing university mathematics in Year 4 so get fucked.

Q.  You went back--

A.  That’s enough--

Q.  --to your mattress after you had been assaulted by RC and when you woke up the next morning he was still in bed with you and your nan asked why he was in bed with you.  Do you remember telling the police that?

A.  ..(not transcribable).. you little cat prick.

Q.  Do you remember telling the police that shortly after you got your first period the accused asked you if he could pay you $100 to touch you on the vagina and that you said no?  Do you remember telling the police that?  Do you remember telling the police that after you had turned 14 and you moved back to Albury and back to the accused’s home, for the next year you told the police on--

A.  I’ve got a lover in Albury too.

Q.  --almost a nightly occurrence you would wake up in the middle of the night to your uncle RC touching you on the legs or stomach and as soon as you would wake up or say anything he left the room?

CROWN PROSECUTOR: Thank you, your Honour.” ^[21]

21. AB 133:8-50.

70. There was no cross-examination of CG, and she was excused.

71. The following observations can be made from what transpired during the proceedings:

1. CG agreed that what she told the police in her statement was the truth and identified her signature on the document.

2. The propositions put to CG were couched in terms of what she told the police, as opposed to whether the conduct she alleged took place.

3. Although some of the representations contained in the police statement were disputed, those representations related to introductory or preliminary matters, as opposed to the substance of the allegations or complaint.

4. When the representations in the police statement relating to the specific allegations were put, CG either remained silent, or gave unresponsive answers.

5. CG did not give any account about the allegations during the trial. Insofar as she gave answers inconsistent with what appeared in her police statement, those answers related to peripheral matters.

6. The paragraphs in her statement that related to complaint by her or to her were not put to the witness.

7. At no point during the trial did the Crown Prosecutor make an application pursuant to s 65 of the Evidence Act. When it became clear that the statement was going to be admitted, Defence Counsel asked whether the Crown Prosecutor was seeking to tender it under s 65 of the Evidence Act. ^[22] The Crown Prosecutor did not make such an application, and instead relied upon the case of Col v R [2013] NSWCCA 302 (Col). After the luncheon adjournment, the discussion in respect of the admissibility of the statement was couched in terms of s 106 of the Evidence Act only.

8. No evidence was adduced on a voir dire regarding attempts made, prior to CG being called to give evidence in the trial, to calm her and/or encourage her to give evidence. No submissions were received on the issue of whether the witness was “unavailable”.

9. No application was made by the Crown Prosecutor that the trial Judge caution CG that she risked punishment for being in contempt of court.

10. No opportunity was given to CG to obtain legal advice on that issue.

22. AB 125:33.

Trial Judge’s Reasons for Admitting CG’s Statement at Trial

72. The trial Judge set out his findings and the reasons for admitting the statement in his judgment, dated 28 September 2022. His Honour made the following findings:

1. The witness was unfavourable to the Crown case.

2. The witness was not making a genuine effort to answer questions.

3. The witness denied parts of her statement; the denial was inconsistent with the contents of the statement.

4. The witness was mute and would not adopt her statement. For all intents and purposes, she was unfavourable.

5. She had agreed that she had signed the statement and she told the police the truth.

73. The bases of admissibility were itemised as follows:

1. “The answers given by the complainant were inconsistent to those contained in a statement that she signed and said the contents were true. The statement was admissible as a prior inconsistent statement”. ^[23]

2. Relying on Col, his Honour reasoned that, given the complainant denied the substance of the evidence, the contents of the statement were admissible, pursuant to s 106 of the Evidence Act, as a prior inconsistent statement. Once the statement was admissible for a non-hearsay purpose, the representations constituted evidence of the facts, as per s 60 of the Evidence Act.

3. Thirdly, his Honour found that, pursuant to s 65 of the Evidence Act, the witness was “unavailable”. His Honour was satisfied that the representations were made under a duty to make the representations (s 65(2)(a)), and were made in circumstances that made it highly probable that the representations were reliable (s 65(2)(c)). The Crown in this Court disavowed any reliance on s 65(2)(a).

   23. AB 168.

74. Although the trial Judge admitted the entirety of the redacted statement, pursuant to s 106 and/or s 65(1) of the Evidence Act, the Crown in this Court accepted that s 106 was only a partial answer to the admissibility of the statement because portions of the statement were not put to CG. The only basis upon which the entirety of the redacted statement was admissible was said by the Crown to be pursuant to s 65 of the Evidence Act. ^[24]

Ground One: His Honour erred in admitting the statement of the complainant

24. Appeal Transcript (AT) 18: 1- 23.

Consideration

Hearsay – The position before the commencement of the Evidence Amendment Act 2007 (NSW)

75. At common law, a prior inconsistent statement was not evidence of the truth of its contents, only evidence that the witness may not be telling the truth: see Adam v The Queen (2001) 207 CLR 96, [2001] HCA 57 (Adam) at 104 [19]; Blewitt v The Queen (1988) 62 ALJR 503 at 505. In Aslett v R [2006] NSWCCA 49, Barr J (with whom the other members of the Court agreed) pointed out at [76]:

“Before the commencement of the present Evidence Act, such statements, when admissible, were relevant only to the credit [of] the witness who made them. If their making was admitted, therefore, there was no purpose in tendering them: Alchin v. Commissioner for Railways (1935) 35 SR (NSW) 498.”

76. The High Court in Adam (see also Court of Criminal Appeal in R v Adam aka Odishou (1999) 47 NSWLR 267) decided that under the Evidence Act, evidence of a witness's prior inconsistent statements will be admitted as evidence of the truth of what was said in them if the evidence is relevant for another purpose (that is, for a purpose other than proof of the truth of what was said in them). A footnote refers to s 60 of the Evidence Act, which provided at that time:

“The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of the fact intended to be asserted by the representation.”

77. Gleeson CJ, McHugh, Kirby and Hayne JJ in their joint judgment reasoned as follows:

“(a) The basic test of admissibility is relevance (s 56 Evidence Act);

(b) Relevance is to be determined on the assumption that the tribunal of fact accepts the evidence: s 55(1);

(c) Evidence of prior inconsistent statements relate to the credit of the witness;

(d) The credibility rule established by s 102 in its then form operated to exclude evidence that was relevant only to the witness' credibility;

(e) The content of the inconsistent statement could rationally affect the question of a witness' credibility as well as the assessment of the probability of several facts in issue, accordingly, the credibility rule was not engaged;

(f) Although prima facie excluded by the hearsay rule established in s 59, s 60 created an exception if the evidence was admitted because it was relevant for a purpose other than proof of the asserted fact, ie the credit of the witness.”

78. At 109[37], their Honours concluded:

“It is true, of course, that the result differs from what would be the result at common law, the difference being that, by s 60 of the Act, the prior statements would be admitted as evidence of the truth of their contents. But that difference brought about by s 60 was one of the significant alterations in the rules of evidence that the Act was intended to effect. No longer were tribunals of fact to be asked to treat evidence of prior inconsistent statements as evidence that showed no more than that the witness may not be reliable. The prior inconsistent statements were to be taken as evidence of their truth. Thus far from the result being, as the appellant asserted, bizarre or unintended, it is the intended operation of the Act.”

Hearsay – Considerations following the Evidence Amendment Act 2007 (NSW)

79. The 2007 Amending Act introduced significant amendments to Pt 3.7 Credibility which alter the way the hearsay rule (s 59), the credibility rule (s 102), the provisions about unfavourable witnesses (s 38) and the exception to the hearsay rule created by s 60 are to be understood as operating.

80. Section 59 of the Evidence Act provides that a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation: see also Papakosmas v The Queen [1999] HCA 37 at [24]-[25].

81. Clearly, CG’s statement to the police contained out-of-court representations. The statement was not sworn or affirmed. It was hearsay and, therefore, inadmissible unless it fell within one of the exceptions to the hearsay rule.

82. Section 60 of the Evidence Act provides that the hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of an asserted fact.

83. Although Part 3.1 of the Evidence Act was designed and intended to change the common law prohibition on the admission of hearsay evidence, it does not abolish the prohibition altogether. The rationale for the statutory provisions relating to hearsay evidence under the Evidence Act was set out in the Australian Law Reform Commission Evidence (Interim) Report 26. While the Australian Law Reform Commission (ALRC) supported what was a radical change from the common law, emphasis was placed on an accused’s entitlement to confront those who accuse him/her. ^[25]

Admission of the Statement Pursuant to s 106 of the Evidence Act

25. Australian Law Reform Commission, Evidence (Interim) (Report No 26, August 1985) para [675].

84. Section 101A of the Evidence Act states:

101A Credibility evidence

Credibility evidence, in relation to a witness or other person, is evidence relevant to the credibility of the witness or person that—

(a) is relevant only because it affects the assessment of the credibility of the witness or person, or

(b) is relevant—

(i) because it affects the assessment of the credibility of the witness or person, and

(ii) for some other purpose for which it is not admissible, or cannot be used, because of a provision of Parts 3.2 to 3.6.

85. The credibility of a witness is regarded as ancillary to the facts in issue. Admissibility of evidence which is relevant to the credibility of a witness requires consideration of the exceptions to the credibility rule. The trial Judge relied upon s 106 of the Evidence Act as one of the bases for admitting CG’s statement. The contents were determined to be admissible as a prior inconsistent statement. The trial Judge found that the Crown Prosecutor had complied with the requirements of s 106(1), and the complainant had denied the substance of the evidence.

86. Section 106 provides:

106 Exception: rebutting denials by other evidence

(1) The credibility rule does not apply to evidence that is relevant to a witness’s credibility and that is adduced otherwise than from the witness if—

(a) in cross-examination of the witness—

(i) the substance of the evidence was put to the witness, and

(ii) the witness denied, or did not admit or agree to, the substance of the evidence, and

(b) the court gives leave to adduce the evidence.

(2) Leave under subsection (1) (b) is not required if the evidence tends to prove that the witness—

(a) is biased or has a motive for being untruthful, or

(b) has been convicted of an offence, including an offence against the law of a foreign country, or

(c) has made a prior inconsistent statement, or

(d) is, or was, unable to be aware of matters to which his or her evidence relates, or

(e) has knowingly or recklessly made a false representation while under an obligation, imposed by or under an Australian law or a law of a foreign country, to tell the truth.

87. Once admitted, pursuant to the exception captured in s 106, a prior inconsistent statement may (subject to ss 137 and 136), by virtue of the operation of s 60, be admissible as evidence of the truth of the facts asserted: see generally Adam. However, s 106 limits the calling of rebuttal evidence that is relevant to a witness’s credibility to evidence that satisfies the two conditions expressed in subss 106(1)(a) and 106(1)(b). Those preconditions were not satisfied in this instance.

88. First, s 106(1)(a)(i) requires the substance of the evidence to be put to the witness in cross-examination. Section 106 does not require the adoption of a mechanistic approach in which each and every proposition contained in the evidence in question is put to the witness. However, it does require that the substance of the evidence be put.

89. Although the Crown Prosecutor read out several paragraphs in the police statement, paragraphs 86 to 93 were not put to CG. Those paragraphs contained the details of the complaint made to the complainant’s then boyfriend and, importantly, the details of a conversation between CG, PH and JB, during which each complained of sexual misconduct alleged to have been perpetrated by the applicant. The account of the latter conversation was of particular importance given its potential in the trial to support the evidence of complaints made by PH and JB, and, therefore, the counts relating to them.

90. Secondly, I do not agree that CG denied, or did not admit or agree to, the substance of the evidence in respect of the alleged sexual misconduct. Although CG denied, or disputed the accuracy of, some of the words contained in paragraphs 3, 4, 7, and 28 of the statement, she did not deny those portions of the statement that contained details of the specific allegations and uncharged acts.

91. The circumstances in this case can be distinguished from the case of Col, which was relied upon by the Crown Prosecutor, and referred to by the trial Judge, to support the admission of the entirety of the redacted statement. In Col, the victim made a statement to police, which included an account of the applicant throwing methylated spirits onto the bed that she was laying on, and then setting the bed alight. The statement was dated 24 August 2009 and signed by the victim. On 28 July 2011, the victim gave a handwritten statement to the Office of the Director of Public Prosecutions and to the legal representatives of the applicant. In that handwritten statement, she retracted her account, said that her statement to the police was “not the truth”, and indicated that she had no recollection of the events described in her initial statement to police.

92. It was in those circumstances that the victim was cross-examined by the prosecution as an unfavourable witness, pursuant to s 38 of the Evidence Act. She maintained in her evidence that the applicant did not douse her with methylated spirits and set her on fire, and that the version in the police statement was not the truth. She was cross-examined on the contents of her statement and versions of events she had given to several others, including the ambulance officer, family members, and friends.

93. The statement was admitted pursuant to s 106 of the Evidence Act as a prior inconsistent statement. The Crown Prosecutor complied with the requirements of s 106(1) of the Evidence Act. The victim denied the substance of the evidence; that is, while she agreed that she had received burns after she had been doused with methylated spirits, she denied any knowledge of how that occurred, and denied that the conduct of the applicant was deliberate.

94. In the present case, CG either remained silent, or became argumentative when the contents of the statement relating to the sexual allegations were put to her. CG did not deny the contents of the statement insofar as the contents dealt with the specific allegations. She did not give an inconsistent account. She did not say that she could not remember. CG gave no account at all in the trial about the specific alleged acts.

95. The question arises as to whether remaining mute or giving un-responsive answers satisfies the requirements under s 106(1)(a)(ii) of the Evidence Act. Did her silence or unresponsiveness mean that she did not admit or agree to the substance of the evidence?

96. In a different context, the Court of Criminal Appeal in R v Rose [2002] NSWCCA 455 (Rose) dealt with the question as to whether a “representation”, for the purposes of s 59 of the Evidence Act, can arise from a person’s silence or a failure to respond. The applicant appealed his conviction on a charge of murdering his wife. During his evidence, he denied having been involved in his wife’s death. He said that after having dinner with the deceased, a man whom he did not know but who seemed to know the deceased arrived at the flat and invited the deceased to accompany him to the bowling club. The applicant said that they left in a white Ford Fairlane or a Ford Falcon.

97. In order to disprove the possibility that the deceased had been picked up by a young man in such a car, the police undertook investigations at the New England University Campus. Police visited each of the classes that the deceased had attended. The police officer showed each class a large photographic slide of the deceased, and asked a number of questions in relation to her associates, both on and off campus. In the course of these inquiries, the police officer asked whether any person knew of the deceased’s associations with a person who drove a white Ford Fairlane or a similar vehicle. In all, the police officer spoke to 300 students. Only two people came forward to indicate that they knew the deceased, however, neither could assist as to her associates.

98. At trial, Kirby J held that the evidence was not hearsay because there was no representation made by those persons who did not come forward in answer to the superintendent’s inquiry. His Honour was of the view that it was open to the jury to draw an inference from the police officer’s inquiry and from the fact that only two people came forward.

99. On appeal, the Court of Criminal Appeal held that the evidence of the response to the inquiry ought not to have been admitted into evidence because it could not form any basis, either by itself or in conjunction with other evidence, for proving that the applicant’s version of the circumstances in which the deceased went missing was false.

100. The Court considered whether a “representation”, as used in the Evidence Act, encompassed a communication made by silence or a failure to respond. The Court referred to the case of Lee v The Queen (1998) 195 CLR 594; [1998] HCA 60, where the High Court had occasion to consider the provisions of Pt 3.2 of the Evidence Act. In reference to the operation of s 59, the Court stated at 599[21]-[22] (omitting references to footnotes):

"[21] "Representation" is often used in the law to refer to words that are intended to induce action or inaction by the person who hears or reads them. It may, therefore, seem to be an unusual word to use in this context. But it is clear from the Interim Report of the Law Reform Commission on evidence that, in the proposals that were later formulated in the Act, the term "representation" was used to apply to statements and to conduct and was used to encompass all that those statements or that conduct would convey to the observer. It is also clear that the proposal was intended to resolve "the issue of whether the proposed rules should apply to implied assertions as well as express assertions, by recommending that a distinction be drawn between intended and unintended implied assertions, with the latter outside any hearsay rule" In its Interim Report, the Commission went on to state why it excluded unintended implied assertions from the operation of a hearsay rule and its exceptions. Chief among those reasons was the conclusion that it is unlikely that the person making some implied assertion would deliberately attempt to mislead if the implied assertion was not intended.

[22] S59 must be understood in this light. The rule's operation requires consideration first of why it is sought to lead evidence of something said or done out of court (a previous representation). What is it that that "previous representation" is led to prove? In particular, is it sought to lead it to prove the existence of a fact that the person who made the representation intended to assert by it? The fact that the statement or the conduct concerned might unintendedly convey some assertion is not to the point. The inquiry is about what the person who made the representation intended to assert by it."

101. The ALRC intended for the term “representation” to be given a wide application so as to encompass statements or conduct, and all that those statements or conduct could convey to an observer. However, whether a representation does arise from the silence or non-action of a person on a particular occasion will depend upon the circumstances: see Rose at [262].

102. In the circumstances of this case, it cannot be inferred that CG, by her silence or unresponsiveness, was denying, or failing to admit or agree to, the substance of the evidence. That inference is not available in this case for the following reasons:

1. Firstly, CG stated that what she told the police was the truth.

2. Secondly, she explained that the reason she wanted to “drop the charges” was so she could reconnect with her family.

3. Thirdly, CG did not give an inconsistent account in the trial. Indeed, she gave no account at all about the specific allegations.

103. In these circumstances, it cannot be inferred that CG’s silence or unresponsiveness constituted a denial of, or a failure to admit or agree to, the substance of the evidence. The only inference that could properly be drawn was that she was reluctant to give evidence because she wanted to re-establish contact with her family and feared that giving evidence about the allegations would further strain her relationships.

104. Furthermore, the statement, as far as it dealt with the allegations of sexual misconduct, was not material relating to credibility. In truth, the admission of the statement placed before the jury the only account of the allegations. Put another way, the purpose of admitting the statement into evidence was to prove the truth of the facts asserted therein, contrary to the hearsay rule.

Admission of the Statement Pursuant to s 65 of the Evidence Act

105. The second basis relied upon to admit the statement was s 65 of the Evidence Act. The trial Judge noted that the Crown Prosecutor put the allegations of sexual and indecent assault to CG. The witness remained mute and did not answer the questions. The trial Judge was satisfied that the CG’s failure to answer meant that she was an “unavailable witness” and that “all reasonable steps” had been taken by the Crown Prosecutor to compel her to give the evidence, without success. In making that determination, his Honour was satisfied of the requirements pursuant to ss 65(2)(a) and 65(2)(c).

106. During oral argument in this Court, the Crown did not rely on s 65(2)(a). Furthermore, the Crown did not rely on s 106 of the Evidence Act as an alternative way in which the statement (in its entirety) was admissible to prove the truth of its contents, given that only part of the statement was put to CG.

107. Section 65 relevantly provides:

65 Exception: criminal proceedings if maker not available

(1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.

(2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation—

(a) was made under a duty to make that representation or to make representations of that kind, or

(b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication, o

(c) was made in circumstances that make it highly probable that the representation is reliable, or

(d) was—

(i) against the interests of the person who made it at the time it was made, and

(ii) made in circumstances that make it likely that the representation is reliable.

108. For present purposes, a person is taken not to be available to give evidence about a fact if “all reasonable steps” have been taken by the party seeking to prove the person is not available to compel the person to give the evidence, but without success: see pt 2, cl 4(g) of the Evidence Act.

109. In R v Suteski [2002] NSWCCA 509, at [83], the Court, referring to the ALRC Report 38, confirmed that the definition of “unavailability” was intended to cover the position of a witness who refused to give evidence. ^[26] It is clear that where a person attends court, but refuses to give evidence, the person may come within the meaning of cl 4(1). However, it is not automatically the case that a police statement is admitted into evidence in circumstances where a person is uncooperative or refuses to give evidence.

     26. Although the Australian Law Reform Commission Report 36 is cited in Suteski, the correct citation is Australian Law Reform Commission Report Evidence (Report No 38, June 1987) vol II, para [43].

110. Firstly, it must be established by the party seeking to prove the person is not available that “all reasonable steps” have been taken to compel the person to give evidence, but without success: see pt 2, cl 4(g) of the Evidence Act.

111. Secondly, the requirements of s 65 must be satisfied. In the present case, the Crown on appeal relies upon s 65(1)(c), namely, that the representations contained in the police statement were made in circumstances that make it highly probable that the representations are reliable.

112. Given that no application was made pursuant to s 65 of the Evidence Act at trial, and no evidence adduced in support of any such application, there is limited material upon which to determine whether the necessary requirements were met.

113. The evidence established that the statement was made to police in circumstances where CG was aware of the risk of being prosecuted for making a false statement. Furthermore, Detective Binns gave evidence that he read the statement to CG, following which he gave her a copy and she appeared to read it before she signed it. For the purposes of this appeal, I am prepared to find that there was sufficient evidence before the trial judge to establish that the statement was made in circumstances that make it highly probable that the representation is reliable. To be clear, however, it is not my view that it will always be the case that these circumstances will suffice to establish the requirements of s 65(1)( c ). Each case will depend upon the evidence adduced with respect to the circumstances in which the statement was made.

114. However, there was no evidence as to the steps that had been taken by the Crown Prosecutor to compel CG to give evidence. The mere fact that a witness refuses to answer questions, without more, will not always satisfy the requirements of cl 4(g). There must be some evidence that “all reasonable steps” have been taken to compel the witness to give evidence. What constitutes “all reasonable steps” will depend upon the circumstances of the particular case. It is not possible to set out an all-encompassing list of what constitutes “all reasonable steps”.

115. Some relevant considerations include: the nature of the case; the importance of the evidence; the higher standard of proof in a criminal trial; and the importance of the liberty of the individual.

116. It should be borne in mind that it is “no light thing” to admit hearsay evidence inculpating an accused: see R v Tarantino [2019] NSWSC 939 (Tarantino) at [22]. The serious consequences of the successful invocation of s 65 emphasises the need for compliance with the conditions of admissibility prescribed by the section: see Sio v The Queen [2016] HCA 32 (Sio) at [60]-[61]; R v Omar [2022] NSWSC 371 at [72]; Tarantino at [22].

117. In R v Ryan [2020] NSWSC 1394, Button J reiterated the importance of the decision in Sio. His Honour stated at [14]:

“The High Court at [60] emphasised the strictness with which such the statutory exceptions need to be approached. The point was made that the admission into evidence of a hearsay statement adverse to an accused has serious procedural consequences, first and foremost the inability to cross examine the maker of the statement if it is incorporated. I think respectfully, as a matter of common sense, the rule against hearsay is something that has been part of our jurisprudence for hundreds of years, and I believe it is the objective intention of Parliament that exceptions have been carved out by Parliament be approached with a degree of rigour, and with appreciation of the consequences.”

118. In the present case, CG was not deceased. Arguably, she could have been cross-examined. However, the reality was that Defence Counsel at trial found himself in an impossible position where the witness had not actually given an account of the sexual allegations. Instead, she remained silent, or gave unresponsive answers during her examination-in-chief.

Were “All Reasonable Steps” Taken to Compel the Witness to Give Evidence?

119. The following matters are known or can be inferred from the record of the trial:

1. CG was in custody at the time she was called to give evidence.

2. Although CG almost immediately indicated her desire to “drop the charges”, she also said that when she spoke to the police, she told the truth.

3. When asked as to why she wanted to “drop the charges”, CG explained that she was missing time with her family and wanted to go home and “…be able to sit down and have a cup of coffee with my uncle”. ^[27] It was clear that CG was a young Aboriginal woman who was estranged from her family and had not spoken to them in “over six years because of this”. ^[28]

4. There was no evidence that CG had been provided with an opportunity to speak to a Witness Assistance Officer from the Office of the Director of Public Prosecutions Witness Assistance Service (WAS). Guideline 5.7 of the Office of the Director of Public Prosecution Guidelines provides that the solicitor with carriage of a matter must ensure it has been referred to the WAS as early as possible in the prosecution process if it involves, amongst other offences, sexual assault. The role of the WAS is to provide support in appropriate cases to victims and witnesses during the criminal justice process. WAS can assist with providing information, identifying special needs of victims and witnesses, referring victims and witnesses for counselling and support, providing court preparation, and coordinating court support.

5. No application was made by the Crown Prosecutor during the trial for a short adjournment so that he could speak to his witness to determine whether steps could be taken to address the concerns she had expressed.

6. No application was made by the Crown to have the trial Judge warn CG that her refusal to give evidence may give rise to contempt proceedings, and, further, that there was a risk that she could be prosecuted for contempt which was potentially punishable by way of an additional term of imprisonment.

7. No application was made for a short adjournment so that CG could obtain legal advice in relation to possible referral to contempt proceedings, or any opportunity given to her to purge her contempt.

   27. AB 117:34.

   28. AB 117:43.

120. Where a prosecutor did not take “all reasonable steps” to compel the witness to give evidence, the prosecutor may face real difficulties in establishing the requirements set out in s 65 of the Evidence Act: see Mukherjee v Work Cover Authority (NSW) [2008] NSWIRComm 53 at [32]. The onus was on the Crown Prosecutor to establish that CG was an “unavailable witness” and that “all reasonable steps” had been taken to compel her to give evidence. That onus was not discharged in this case. As a result, the police statement was not admissible, pursuant to s 65 of the Evidence Act. The wrongful admission of CG’s statement led to a miscarriage of justice.

120. It follows that Ground 1 should be upheld. The Crown does not seek to rely on the proviso. The Crown conceded that in the event Ground 1 was successful and an order made to quash the convictions in respect of Counts 1 to 3 (inclusive), it would be necessary to conduct a re-trial on all nine counts. That concession is clearly correct in light of the fact that the evidence in respect of each complainant was cross-admissible as tendency evidence. Furthermore, the complaint evidence contained in CG’s statement was capable of being used to support the complaints of PH and JB.

121. I am of the view that Ground 1 has been made out. Accordingly, each of the nine counts should be quashed and the proceedings remitted to the District Court for re-trial. Given the attitude forcefully expressed by CG during the proceedings that she did not want to proceed with the allegations, and the chaos that ensued, it is unlikely that the witness will be more cooperative in the future. It should also be borne in mind that CG, by her behaviour during the trial, demonstrated a degree of frustration and anger with the process that was likely to have been highly distressful for her. I see no benefit in putting CG through that process again. However, I am of the view that it is a decision for the Director as to whether the charges concerning sexual misconduct against CG should proceed to re-trial.

Ground 2: His Honour erred in his directions relating to the tendered statement of the complainant

123. The complaint made in Ground 2 relates to the asserted inadequacy of the direction given by the trial Judge in respect of CG’s statement. The trial Judge raised the directions with the parties during the trial,^[29]and during his Honour’s summing up. ^[30] His Honour specifically foreshadowed the direction that he proposed to give in respect of the statement, ^[31] and invited the parties to ask for a re-direction. ^[32]

     29. AB 161:221.

     30. AB 31; AB 49; AB 51.

     31. AB 142:20.

     32. AB 222:4.

124. His Honour warned the jury not to attribute disproportionate weight to the statement. His Honour also directed the jury to take into account the oral evidence CG had given in the trial and her refusal to answer questions about the contents of the statement and the allegations generally. It was pointed out to the jury that the statement was not given “on oath as opposed to a witness giving evidence in the trial”. ^[33]

     33. AB 26.

125. In answer to the jury question about whether the statement was made under oath, his Honour directed the jury as follows:

“In the witness statement you will see in paragraph1 is what is called a jurat. That is different to a witness giving evidence in court under oath and you might recall that when we tried to administer the oath or affirmation to her she was reluctant to engage in that process. So, yes, there is a difference between a statement being taken by the police and when a witness goes into the witness [box] and is sworn in to give evidence upon oath or affirmation”. ^[34]

34. AB 53.

126. No issue was raised that the initial direction, or the answer to the jury question, was inadequate, nor was any re-direction sought a trial.

127. The applicant accepts that r 4.15 of the Supreme Court (Criminal Appeal) Rules applies to Ground 2. ^[35] The absence of any discussion of the directions about the statement during the trial, or any re-direction being sought during or after summing up, militates against what is now being contended for by the applicant on this appeal. It has been consistently observed that an appeal is not an opportunity for Counsel to go through the record of trial in minute detail looking for possible arguments without regard to the manner in which the trial was conducted: see Roach v R [2019] NSWCCA 160 at [195].

     35. Applicant’s Written Submissions (AWS) [72].

128. In IW v R [2019] NSWCCA 311, at [168], Bellew J (with whom Bathurst CJ and Fullerton J agreed) said:

“It is convenient to note at this point that r 4 is not a mere technicality, and the Criminal Appeal Act 1912 (NSW) does not exist to enable an accused who has been convicted on one set of issues to have a new trial under a new set of issues which could or should have been raised at the first trial. However if, in a clear case, a necessary element of a fair trial according to law was overlooked, then leave should usually be granted. However, it is not possible to be prescriptive. It must, in some sense, be in the interests of justice that leave be granted; otherwise leave should be refused.”

129. Pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules, leave to appeal in respect of Ground 2 should be refused.

Orders

130. Accordingly, I propose the following orders:

1. Grant leave to appeal in respect of Ground 1.

2. Uphold Ground 1.

3. The convictions of the applicant in the District Court on 14 December 2020 in respect of Counts 1 to 9 (inclusive), and the sentence imposed on 08 June 2021, be quashed.

4. A new trial be ordered in respect of Counts 1 to 9 (inclusive).

5. The proceedings be remitted to the District Court at Albury on 03 February 2023 for Mention to list the matter for re-trial.

6. Refuse leave to appeal in respect of Ground 2 pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).

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Endnotes

Decision last updated: 14 December 2022