The Queen v PJ
[2012] ACTSC 185
•20 November 2012
THE QUEEN v PJ
[2012] ACTSC 185 (20 November 2012)
CRIMINAL LAW – trial procedure – admissibility of evidence – application for leave to admit evidence to re-establish credibility – Evidence Act 2011 (ACT) s 108(2)(b) – prior consistent statement – direct challenge in cross-examination as to fabrication – indirect challenge in cross-examination as to recent invention – R v MDB [2005] NSWCCA 354 –relevant factors justifying leave – Evidence Act s 192 – where trial marginally lengthened – where no adjournment necessary – where directions may be granted – where no unfairness to the accused – where case of a type in which corroborative evidence of the complainant is rarely available – leave granted.
Evidence Act 2011 (ACT), ss 66, 108, 192,
DBG (2002) 133 A Crim R 227
Frankcombe v Holloway [1957] VR 139
Graham v The Queen (1998) 195 CLR 606
R v Ali [2000] NSWCCA 177
R v Fraser (1995) 65 SASR 260
R v MDB [2005] NSWCCA 354
W (1999) 109 A Crim R 51
Woodward v Shea [1952] VLR 313
EX TEMPORE JUDGMENT
No. SCC 254 of 2010
Judge: Refshauge J
Supreme Court of the ACT
Date: 20 November 2012
IN THE SUPREME COURT OF THE )
) No. SCC 254 of 2010
AUSTRALIAN CAPITAL TERRITORY )
THE QUEEN
v
PJ
ORDER
Judge: Refshauge J
Date: 20 November 2012
Place: Canberra
THE COURT ORDERS THAT:
Leave is granted, pursuant to Evidence Act 2011 (ACT) s 108(2), for the Crown to adduce the witness’ diary entries as evidence in the proceedings.
The accused has been charged with three counts of assault occasioning actual bodily harm, indecent assault and incest (or, in the alternative, attempted incest). The complainant is the accused’s daughter.
The trial before a jury has commenced and evidence has been given by a witness, the complainant’s sister, of an incident in which the accused made sexual contact with the witness. That evidence was admitted as tendency evidence, evidence that was capable of showing a tendency for the accused to have a sexual interest in his daughters.
That incident was challenged in cross examination by Mr S Gill, who appears for the accused. The relevant portion of the cross examination is as follows:
What I want to suggest you, [MS], is that you are lying about his incident. Are you lying about this incident, [MS]?---I believe I am not lying about this incident.
You believe you are not lying about this incident. Is that your
evidence?---It was a moment where, again, like with everything you just think was that him doing it on purpose or was it not? As [the accused] put his arm round my waist he just happened to put it across my chest.
[MS], in fact, I'm going to suggest to you that you are lying about the whole incident, breasts, penis, the lot. You’re lying about the whole incident, [MS]?
---I'm not lying about any of this. Why would I?
In fact, [MS], I'm going to suggest to you that since you agreed to give your sister support that you, in fact, reinvented some of the history that’s occurred in your family. Do you agree with that?---Not at all.
The Crown, represented by Mr S Drumgold, has now applied for leave under s 108 of the Evidence Act 2011 (ACT) to adduce evidence of a diary entry apparently made by the witness in about 1988, some years after the relevant incident, in which the witness recounted the incident. Section 108 provides:
108 Exception—re-establishing credibility
(1) The credibility rule does not apply to evidence given by a witness in re-examination.
(2) The credibility rule does not apply to evidence of a prior consistent statement of a witness if—
(a) evidence of a prior inconsistent statement of the witness has been admitted; or
(b) it is or will be suggested (either expressly or by implication) that evidence given by the witness has been fabricated or reconstructed (whether deliberately or otherwise) or is the result of a suggestion;
and the court gives leave to present the evidence of the prior consistent statement.
The application is made under s 108(2)(b).
At common law, there is considerable hesitation about permitting evidence of a prior consistent statement being admitted, thus, in R v Fraser (1995) 65 SASR 260 at
266–7, Doyle CJ explained by reference to
the common law rule which prevents the introduction of previous consistent statements to bolster the credit of a witness, the source of those statements was ultimately the witness. This principle has often been stated in terms which suggest that to rely on such a previous statement is illogical or dangerous, due to the lack of probative value in the statement.
This was reflected in an extract from Starkie on Evidence (4th ed, 1853) which was quoted by Menzies J in Clement’s case (at 486):
It seems to be the better opinion that a witness cannot be confirmed by proof that he [sic] has given the same account before, even though although it has been proved that he has given a different account, in order to impeach his veracity; ... his having said the same thing does not in general carry his credibility further than, nor so far as, his oath.
A more modern statement of the same principle is that ‘A witness may not lift himself [sic] by his own bootstraps to enhance his credit.’ (R v Connolly [1991] 2 Qd R 171 at 173 (Thomas J)). That is, such evidence would be simply lacking in logical probative value; it is legally irrelevant. This principle has been supported by references to the ease with which it would otherwise be possible to manufacture evidence by the re-telling of a story to all one’s friends before trial: see Gillie v Posho Ltd [1939] 2 All ER 196.
However, this explanation cannot be complete. There are many cases where previous consistent statements may be valuable and probative; the exception in the case of evidence which rebuts an allegation of recent invention is an example. However, even if a case does not fall into one of those exceptions the previous statement may seem to possess some logical relevance to the matter, even if its legal relevance is denied.
There is no doubt that s 108 of the Evidence Act is wider than the common law, though narrower in the sense that it requires leave before such evidence is admitted.
The evidence of the witness by and large corroborated the evidence of the complainant, though there were differences, some of which may be regarded as significant. The credibility of the witness, therefore, was a relevant issue in the trial.
Even under the Evidence Act, there are clearly circumstances where a prior consistent statement would not be admitted — in such circumstances, for example, where it was made as part of the train of events leading to the trial of the offences — for “it adds nothing” to what the witness says in evidence at the trial: R v Ali [2000] NSWCCA 177 at [46].
The Crown submitted, however, that Mr Gill’s cross examination had suggested that MS’s evidence was a recent invention, dating from 2008 when she decided to support the complainant in making her complaint to the police and cut off all contact with the accused. This would clearly make relevant a statement made some 20 years prior to that complaint.
Mr Gill submitted that the question of recent invention was referrable to an incident of violence about which he then cross examined the witness, and not to a sexual offence. This may have been his intention, but I am not satisfied that the jury would have so understood it.
In cross examination, the witness was directly challenged as lying. She was directed to the change in her attitude to the accused following her support of the complainant in 2008 and she was challenged as having exaggerated a number of the relevant incidents.
I refer to what Sholl J said in Frankcombe v Holloway [1957] VR 139, when referring to his Honour’s own decision in Woodward v Shea [1952] VLR 313, where he said (at 140):
I summarised the question by saying that the matter which I then had to decide was whether the meaning or effect of the cross-examination was to impute recent invention and I continued,
In other words, is the suggestion of recent invention fairly open to counsel on the answers given by the witness in cross-examination, or if he does not choose to make the imputation, is it something which the jury or any member of the jury might fairly infer?
I then went on to examine the nature of the cross-examination and I came to the conclusion in that case that the imputation of recent invention was one that some member of the jury might not unreasonably make. The way in which I put it ... was this, ‘I think I cannot exclude the possibility of a suggestion by counsel upon the basis of that evidence or an inference by the jurymen or one of them on the same basis that those answers might indicate recent invention.’
It seems to me that the cross examination here is in the same category.
To separate the challenges to the witness’ credibility from the challenge of recent invention would be very difficult for the jury, even had the different challenges to different parts of her evidence been made crystal clear. They were not.
In my view, not merely was the witness challenged on this particular piece of evidence as having fabricated it, but the jury would, in the context, have understood that it was a challenge based on recent invention.
This is clearly a basis for admission under s 108 of the Evidence Act. As Simpson J, with whom Adams and Johnson JJ agreed, said in R v MDB [2005] NSWCCA 354 at [23]:
[I]t will often be the case that evidence of a prior consistent statement will assist in the determination of credibility where, for example, the suggestion of fabrication is tied to a time or event or circumstance, and the prior consistent statement can be shown to predate that time or event or circumstance.
I hasten to add that, as her Honour pointed out and as is clearly the case, s 108(2)(b) is by no means limited to this situation. It includes, and may be applicable to, the situation where the evidence of the witness has merely been challenged as having been fabricated.
In my view, the evidence is admissible. The question, then, is whether leave should be granted.
In Graham v The Queen (1998) 195 CLR 606 at 609; [8], Gaudron, Gummow and Hayne JJ said of the exercise of the discretion to grant leave:
In exercising the discretion under [the section equivalent to s 108(2)] to permit the adducing of evidence of a prior consistent statement, it is important to bear two matters in mind. First, s 108 creates an exception to the “credibility rule” – the rule that evidence that is relevant only the witness’ credibility is not admissible (s 102). Second, it is important to identify how the evidence relates to the statutory premise for its admission. Whether, if admissible, the complaint becomes evidence of the truth of what is asserted is not relevant to the exercise of the discretion to give leave under s 108. The exercise of the discretion under s 108 depends upon the effect of the evidence in the witness’ credibility; here, the suggestion of fabrication. (emphasis in original)
In W (1999) 109 A Crim R 51, Greg James J, with whom Newman and Sperling JJ agreed, pointed out that the question of leave needs to be considered in the context of the policy of the Evidence Act setting its face against evidence relevant to credibility alone, unless made relevant by some course consciously chosen by the accused.
That does seem to be the situation here. The challenge to the evidence and, at the very least, the suggestion of its fabrication, or, as I consider the jury may well see it, as recent invention, was clearly an approach that was deliberately taken. The condition precedent for admission has been made out.
As to whether leave should be granted, the Court is required to have regard to the matters in s 192 of the Evidence Act, which provides:
192 Leave, permission or direction may be given on conditions
(1) If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on the conditions that the court thinks fit.
(2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it must take into account—
(a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing; and
(b) the extent to which to do so would be unfair to a party or witness; and
(c) the importance of the evidence in relation to which the leave, permission or direction is sought; and
(d) the nature of the proceeding; and
(e) the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence.
I do not consider that sub-s 192(2)(a), (d) and (e) provide any reason for refusing leave. The trial will marginally be lengthened, but not so that leave should be refused. There is nothing in the nature of the proceedings to justify a refusal of leave, and there is no real likelihood that the proceedings should be adjourned. That I can give a direction in relation to the evidence, if sought, would tend in favour of the grant of leave.
The principal question is one of unfairness to the accused. The accused has challenged the veracity of the witness, in circumstances where the challenge may well be able properly to be answered by the diary entry. That does not seem to me to make the admission of the evidence unfair. Where evidence of such claims as are made by the complainant are often ones for which there is no corroborating or supporting evidence, that there may be some such corroboration or support seems to me to elevate the importance of the evidence.
It was pointed out that the diary entry was written some years after the event to which it refers. That would make it inadmissible under, for example, s 66 of the Evidence Act. As Howie J commented, in DBG (2002) 133 A Crim R 227 at 241; [57], that “[t]he fact that a statement is made close to the conduct to which it relates is not a crucial requirement for admissibility under [the section equivalent to s 108(2)] as it is when complaint evidence is being tendered under section 66(2).”
Nothing else was put to me to justify the refusal of leave. Accordingly, I propose to grant leave. The only question is the terms of the grant of leave and the portion of the diary entry that is admissible. I shall hear counsel on those matters.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 5 February 2013
Counsel for the applicant: Mr S Drumgold
Solicitor for the applicant: ACT Director of Public Prosecutions
Counsel for the respondent: Mr S Gill
Solicitor for the respondent: Kamy Saeedi Lawyers
Date of hearing: 19 November 2012
Date of judgment: 20 November 2012
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