The State of Western Australia v ASM - [2024] WADC 40

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION:   PERTH
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- ASM [2024] WADC 40
CORAM:   RITTER DCJ
HEARD:   7 MAY 2024
DELIVERED          :   7 JUNE 2024
FILE NO/S:   IND 1876 of 2022
BETWEEN:   THE STATE OF WESTERN AUSTRALIA

AND
ASM

Catchwords:

Recent invention - Rebuttal evidence - Credibility of witness - Prior consistent statement

Legislation:

Nil

Result:

Application granted

Representation:

Counsel:

The State of Western Australia	:	Ms E J Martin & Ms A E Bradley
Accused	:	Ms A G Elliott & Ms N Tasic

Solicitors:

The State of Western Australia	:	State Director of Public Prosecutions
Accused	:	TASIC Legal

Case(s) referred to in decision(s):

Fraser v The Queen (1995) 65 SASR 260
GJ Coles & Co Ltd v McDonald [1998] 2 VR 218
Maynard v The State of Western Australia [2019] WASCA 189
Mundy v The King [2023] SASCA 59
Nominal Defendant v Clements (1960) 104 CLR 476
R v Boland [1974] VR 849
R v Martin (1996) 65 SASR 590
Transport & General Insurance Co Ltd v Edmondson (1961) 106 CLR 23

RITTER DCJ:

The decision in the trial

These are the reasons for my decision to allow the State, in the re‑examination of the complainant, to lead evidence of the redacted contents of an email sent by the complainant to a 'Dr John' on 23 August 2019. The email said, insofar as it was not redacted: 'He raped me and I became pregnant with this pregnancy' (the email evidence). The prosecutor also led the complainant to agree that the email said the event occurred at Christmas 2018.
The email evidence was led as it constituted a prior consistent statement which was admissible to 'rehabilitate' the credit of the complainant by 'rebutting a suggestion' that her evidence was 'devised or reconstructed after the events in question'.[1]
[1] Maynard v The State of Western Australia [2019] WASCA 189 [45] (Maynard).

The relevant evidence and cross‑examination

The evidence in question was given during cross‑examination when the complainant was being questioned about a series of photographs.
The cross‑examination proceeded in this way:[2]
Can you tell me when this photograph was taken? Roughly. I don't need you to give me an exact time and date?---I think 2021.
2021. I'm going to suggest to you that it may have been after 2019 and before 2021?---Sorry, what was the question?
Do you agree or disagree with that?---I think it was 2021.
Okay. Do you remember what the occasion was?---Coral Bay.
Coral Bay. Did you - I'm sorry, I withdraw that. Were you in - in fear of your life at this - at this time of your marriage?---Yes.
That's you in the photograph with [ASM]?---Yes.
Right. Thank you?---Right.
We'll go to the next photograph in the sequence.
[2] ts 457.
Following a brief discussion with defence counsel about how the photographs would be tendered, the evidence continued:[3]
[3] ts 458.
This one here?---Is Coral Bay.
Same time as the last one - - -?---Yes.
- - - in - in broad - - -?---Sorry?
In - same time as the last one in broad terms?---Yes. Exactly the same holiday.
Thank you. And I gather from your answer that this was a time when you were in fear of your life?---Yeah. Well, I had to bring my mum on holiday so that he wouldn't hurt me in any way.
Thank you. Let's see the next one. All right. The third photograph?---Yeah. After this photograph was taken, he raped me.
Mm hmm?---And - - -
What, immediately after?---In the - after he got drunk that night.
That night?---Yes. And our son was there. Our son [redacted] was the product - product of that.
The evidence that the complainant had been raped was a surprise to defence counsel. The evidence was not included in the indictment as a charge, or as one of the particularised 'prescribed offences' supporting the first charge in the indictment or in the complainant's statements in the Brief for Prosecution, or any other disclosure document.
Defence counsel did not raise anything at that time or seek any redress as a consequence of the giving of the evidence. However, defence counsel cross‑examined about the giving of the evidence.
Relevantly, the following questions and answers next occurred:[4]
[4] ts 458 - ts 460.
I see. Did you tell the police about this?---No.
Tell me when this - this was that this occurred?---This occurred - - -
This photograph?---This was New Year - New Year's Eve on - in 2019. I remember it well.
And where are you?---We are at the beach in Mandurah - - -
And you - - -?--- - - - with friends.
- - - you remember the occasion well?---Yes.
You remember the incident well?---Yes.
Thank you. So when this photograph was taken, is - is that a moment in time where you were anxious - - -?---Yes.
- - - for - for what might happen?---Yes. Everything looks like a pretty picture on the outside. And I wanted to ensure that my children had a good life and that they were insulated from the things that were going on between me and Adrian to an extent, as much as they could be.
How old is [redacted] there?---She - so it was New Year's Eve 2018 going into 2019, so she would have been two and five months.
All right. I see. So after this night when for the first time I suggest you're telling people he raped you - - -?---Correct.
- - - presumably you would have had it by him - with him completely?‑--I was terrified.
You were terrified?---Yes.
Within a matter of three months, were you deciding that you should have another baby with him?---I didn't want to have another baby with him and that's why I didn't bring it up to police because I didn't want him to know that. My son, I mean.
Did you decide that you were going to have one more baby and that was going to - - -?---I didn't want one more baby.
Well, just hold on. And that was going to come about in September?---Yes. I was forced into that. I wanted - unfortunately wanted to terminate him, but I - because I just couldn't bear bringing another baby into this world. But I - I'm so glad - he is the most beautiful, beautiful kid and, you know, he's amazing. I'd never, ever kill a child, so I couldn't do that.
All right. So you're saying this baby came into the world as a - as a result of a rape?---Correct.
And you were unhappy about it?---I was.
But you thought it best - - -?---No, I just don't like - I wouldn't kill a child.
So it wasn't the case that you decided to give it one last go?---No.
Because you like even numbers?---No.
And it all fell into place?---No.
Did you tell anyone about - about this child being born as a result of an act of rape?---I did.
Who did you tell?---I told my friend [redacted].
Did you tell the police that you told [redacted]?---No, I haven't told - I haven't reported this incident to the police.
I'd suggest that's very convenient for you?---I've only - - -
What do you say to that?---I've only reported things I have proof for, evidence.
Well, you can't have much better proof than an act of sex - for an act of sex than a baby having been born, can you?---You can't. But you can't take that away from a child either, you know, to know that about his conception. I don't want him to know that about his conception.
This is the child that you really didn't want to keep, but kept because you can't kill a child?---Correct.
Is that the one?---Yes.
All right?---And I love him dearly. He's the most beautiful child. It's just awful to have to say that.
There was then a short pause in the evidence as the complainant was crying.
The complainant was next asked about a screenshot of a Facebook Messenger exchange with RS, who was the cousin of ASM,[5] the accused, on 31 March 2019 or 1 April 2019.
[5] This is an anonymisation of the name of the accused and his cousin. The complainant had agreed that RS was the cousin of the accused: ts 463.
The complainant agreed that RS was to be married in 2019 and she was invited to the wedding.
The complainant, after agreeing that in September 2019 she was expecting 'baby number four' with ASM, was asked to read the message which said:
We decided to give it one last go as we like even numbers and it fell into place, we're gutted to miss the wedding though.
The complainant was then cross-examined about having previously denied saying those words to anyone.
There were then these questions and answers:[6]
You denied that you were giving it one last go instead, 'I was raped and this was the child that - ' - - -?---That's correct.
- - - can you wait for the question please. You denied - I'll start again. You denied that you were giving it one last go, as you wrote in this message, and you told this jury that instead you were raped on the night the previous photograph was taken and this was not a child that you wanted, didn't you?---That's correct, I wrote the text message to [redacted] to make an excuse because we couldn't go to her wedding because we were expecting baby number four and I didn't want to tell her that 'your cousin raped me and that's how I'm pregnant with baby number four', instead I wanted to make nice because that's what I do because I'm people pleaser.
So if we didn't have this screenshot where you say something contrary about the conception of this child, all we would have is your story that you were raped, isn't it?---That's correct. And the product of the rape, yes - - -
And - - -?--- - - - my son.
And - and if we didn't have this screenshot to show you, all the jury would ever have heard is your tale that you were raped on a night and it led to a child, that's right, isn't it?---That's correct.
[6] ts 465.

The issue

The prosecution asserted the effect of this cross‑examination was to suggest the evidence from the complainant that she had been raped was fabricated or invented since the time of the events which were the subject of the evidence. Accordingly evidence could be lead in rebuttal of the suggestion, and further, the email evidence was evidence which, given the time and circumstances of its sending, logically or rationally answered the assertion of the ex post facto fabrication or invention.
The application by the prosecution was opposed by the defence, primarily on the basis that there had not been a relevant suggestion of invention or fabrication, or even if there was, the email evidence did not rehabilitate credit as rebuttal evidence.

Written submissions received

After the issue was raised by the State I requested written submissions.
Helpfully, I was provided with an Outline of State's Submissions in Relation to Recent Invention[7] dated 19 May 2024. Submissions from the defence opposing re-examination to adduce certain evidence on the basis of the allegation of recent invention were filed and dated 19 May 2024.
[7] The submissions also discussed another issue not presently relevant.
After the receipt of these submissions, I directed my associate to ask additional questions of the parties to be answered in written submissions. As a result, the following were received:
(a)The State's supplementary submissions in relation to recent invention dated 22 May 2024.
(b)Supplementary submissions opposing re-examination to adduce certain evidence on the basis of the allegation of recent invention by the defence dated 21 May 2024.
After the receipt of the submissions it was agreed that I would give a determination upon the State's application prior to the conclusion of the cross-examination of the complainant by defence counsel. This was so that, dependent upon the ruling, defence counsel would have the opportunity to cross-examine the complainant about the email evidence, if he wished to do so.

The delivery of the decision

As it turned out, just prior to the conclusion of the cross‑examination of the complainant, defence counsel informed the court that even if the ruling was adverse to the accused, he did not wish to cross-examine the complainant about the email evidence.
The parties said that it would be sufficient for me to inform the parties of my decision and give reasons for decision later. This was in particular having regard to the fact that it was clear the trial would extend for significantly longer than the time it was listed for.
Accordingly, I informed the parties that, in my view, the email evidence could be adduced in re-examination in rebuttal of the suggestion of invention or fabrication since the date of the alleged rape.
My reasons for reaching this conclusion follow.

Principles

In forming my opinion I took into account the following principles:
(1)As set out earlier, a prior consistent statement by a witness is admissible to rehabilitate their credit by rebutting a suggestion that the witness' evidence at the trial was devised or reconstructed after the events in question.[8]
[8] Maynard [45].
(2)Although the doctrine is sometimes referred to as that of recent invention, the adjective 'recent' is a misnomer as the doctrine is concerned with fabrication or invention after the events in question.[9] Relevantly, what is required is a suggestion, or the laying of a basis for the suggestion that the testimony is the product of an afterthought or a recent invention. The essence of the suggestion must be that there has been a fabrication or invention, at or after a particular time, and proof of an earlier statement will only tend to rebut such a suggestion.[10]
[9] Maynard [45]; Mundy v The King [2023] SASCA 59 [62] (Mundy).
[10] Fraser v The Queen (1995) 65 SASR 260 (Fraser), citing Nominal Defendant v Clements (1960) 104 CLR 476, 479 (Dixon CJ) (Clements).
(3)A suggestion of 'recent invention' is often made 'not so much by affirmative evidence as by negative evidence that the witness did not speak before, at a time when it would have been natural to speak'.[11]
[11] R v Boland [1974] VR 849, 875 quoting Wigmore on Evidence (3^rd ed, vol 4, 1940) s 1129.
(4)It is for the trial judge to determine whether the relevant suggestion is made so as to impugn the credit of the witness.[12]
[12] Maynard [47], quoting Transport & General Insurance Co Ltd v Edmondson (1961) 106 CLR 23, 28 ‑ 29 (McTiernan, Taylor & Menzies JJ) (Edmondson).
(5)It is therefore for the trial judge to decide not only whether the witnesses' credibility has been attacked on the basis of the alleged recent fabrication or invention but also, if so, whether the alleged prior consistent statement rationally tends to answer that attack.[13]
[13] Maynard [47], [48].
(6)(a) As stated in the reasons of Windeyer J in Clements,[14] and quoted by the Court of Appeal in Maynard:[15]
[14] Clements (495).
[15] Maynard [50].
… the statement which it is sought to use to dispel this imputation must be made in such circumstances that it logically does so. For if evidence be attacked as a recent fabrication, the attack is not repulsed by proving another statement, itself the product of pressure or of a motive to falsify. …
(b)The Court of Appeal in Maynard decided the issue on the basis that:[16]
[16] Maynard [60].
… The prior consistent statement, having regard to the time and circumstances in which it was made, tended rationally to answer the suggestion that the complainant's evidence at trial implicating the appellant was a recent fabrication or invention.
(c)In Fraser,[17] Olsen J, with whom Williams J agreed, said the prosecution should be able to bolster or restore the credit of the witness by various means including the adducing of prior consistent statements which will tend to support the witness' testimony. His Honour[18] said the issue was whether the mooted rebuttal evidence was, having regard to the time and circumstances in which it was made, rationally tended to answer and did answer the attack upon credit. His Honour said that such statements are adduced only as a matter of bearing upon the credit of the witness and not by way of proof of the matters asserted in them.[19]
(d)In Maynard,[20] the court also quoted from the reasons of Windeyer J in Clements[21] where his Honour outlined the kind of imputations and allegations which, if sufficiently clearly made, would allow evidence to be given of prior consistent statements. These were, firstly, that the witness' testimony is a recent fabrication in the sense of being invented at or after a particular time so that evidence that the witness had said the same thing before that time becomes admissible and, secondly, that the testimony was the result of some motive, basis, influence or moral duress operating from some particular time and not before. Then, evidence that the witness had said the same thing before that time became admissible. His Honour said the two situations can obviously overlap and in many of the cases in which the evidence was admitted elements of both operated.
(e)Doyle CJ said in Fraser, that if it is suggested that the witness recently or after a certain stage fabricated the story, possibly for a suggested motive, then an earlier statement will possess some probative effect.[22]
(7)The relevant imputation does not need to be made explicitly.[23] As Windeyer J said in Edmondson, and quoted by the Court of Appeal in Maynard,[24] what is material is what counsel directly or indirectly invites the jury to infer.[25]
(8)The purpose of the admission of the evidence is to rebut the suggestion that the witness belatedly fabricated or invented their account.
(9)In determining whether the relevant imputation has been suggested, the trial should take into account not just the words used but take into account the way in which the cross‑examination was done: what the judge has seen and heard.
(10)In determining an application such as the present, the court should be careful not to hamper legitimate cross‑examination and be cautious in allowing supposed rebuttal evidence.[26]
[17] Fraser (275).
[18] Fraser (476).
[19] Citing Clements (479) and Edmondson at [28] - [29], [30] and [32].
[20] Maynard [49].
[21] Clements (494).
[22] Fraser (264).
[23] Mundy [64].
[24] Maynard [51].
[25] In Maynard [53] the same point is made by quoting from the reasons of the Court of Appeal in GJ Coles & Co Ltd v McDonald [1998] 2 VR 218, 233.
[26] Mundy [65]; R v Martin (1996) 65 SASR 590.

Suggestion of 'recent' invention or fabrication

In my opinion a combination of the following factors led to the conclusion that there was an indirect or implicit assertion of recent invention by defence counsel in his cross‑examination of the complainant.
Firstly, the defence case theory. This was put to the complainant in her evidence in this way. Defence counsel obtained an admission that the complainant, according to her evidence, had told a lie to an insurance company to support a claim that her mobile telephone was accidentally damaged, when she now asserted the accused had done so. The following questions and answers then occurred:
I'm suggesting to you that you've come to this court to tell lies because you're motivated to get money from [the accused] in the Family Court proceedings?---That's not correct.
There's a lot more money at stake in the Family Court proceedings than there is here - than - than there was on this claim, wasn't there?---No.
The assertion, quite clearly and specifically put, was that the telling of lies in the court by the complainant was related to motivations in the Family Court proceedings.
The undisputed evidence of the complainant was the Family Court proceedings were commenced by the accused on 27 May 2022.[27]
[27] ts 345.
In his cross‑examination, after the first mention of the rape, defence counsel:
(a)Asked and was told that the complainant had not told the police about it.
(b)Asked a question which, although not entirely clear, had the intonation of asking whether it was the first time the complainant was telling people about the rape.
(c)Asked whether the complainant had told anyone that she had told her friend C that her son was conceived from the rape. It was then suggested that was 'very convenient for you'.
(d)Defence counsel referred to the 'story' that the complainant was raped.
(e)Counsel said that without the screenshot of the Facebook message, all the jury would have heard was the complainant's 'tale' that she was raped and that led to a child.

It was my assessment, when seeing and hearing the evidence, that the words 'story' and 'tale' were used pejoratively to suggest the asserted rape was fictional and 'made up'. This was also suggested, in particular by eliciting that the complainant had not told the police about the rape or that she had told her friend C that her child was conceived as a result of the rape. Additionally, this questioning was within the context of the defence case theory that the complainant was telling lies to boost her attempts to gain property in the Family Court proceedings.
From this combination of questions and the manner of the questions, my assessment was that it was suggested that the evidence of the rape was fabricated or invented after the time when the rape was said to have occurred; and at least after the time when the Family Court proceedings commenced. I was also satisfied that it was suggested by a combination of the questions that a motive for the fabrication was to boost the complainant's chances of a successful outcome in the Family Court proceedings. As was referred to by Windeyer J in Clements, quoted above, the suggestions of motive and 'recent' invention and fabrication often overlap.
I was therefore satisfied that the circumstances existed for the prosecution to be able to try to rehabilitate credit by the use of a prior inconsistent statement, if it logically or rationally did so.

Caution in application

However, before doing so I was cautious in my consideration of the issue because of the nature of cross‑examination as expressed above, and the desire not to unduly hamper proper cross‑examination.

Email evidence logically or rationally rebutted

My opinion was that the email evidence had the relevant character because:
(a)The email was sent on 23 August 2019, well before the commencement of the Family Court proceedings and the present trial. Accordingly the fact of the email, containing the allegation of rape, rationally answered a suggestion that the rape was made up to assist the complainant in the Family Court proceedings, by way of the making of allegations against the accused in the trial.
(b)The undisputed evidence was the complainant and the accused separated in November 2021; also well after the email was sent.
(c)The email was sent to a doctor in relating a chronology and narrative of events albeit in support of a concern expressed in the email about fears if the accused returned home from Graylands. However, to avoid undue prejudice this part of the email was not put before the jury.
(d)The email included not only the fact of the alleged rape but the accompanying consequence, also asserted in the complainant's evidence, that the rape led to the conception of their child. In my opinion the coincidence of this detail supported the conclusion that the email evidence rationally or logically answered the suggested imputation. Additionally in my view it was relevant not only because of the coincidence of the assertion but the nature of it. It is not the type of assertion that I think would have been lightly made.
(e)The email evidence was the rape occurred at Christmas and the complainant's evidence was that it occurred on New Year's Eve. This is a close coincidence of dates and a rape on either occasion could be referable to the birth of the child that was, on the basis of uncontested evidence, born on 28 September 2019. This was about 38 ‑ 39 weeks later.
For these reasons I formed the view I expressed earlier and permitted the prosecution to lead the email evidence in rebuttal. Also the jury will be instructed as to the limited use they can make of the prior consistent evidence; including that even if they found the email evidence did bolster the complainant's credibility it does not in any way prove that the alleged rape occurred.[28]
[28] See as an example of a suitable direction, Maynard [37].

The disclosure of the 'rape' evidence

I also mention that the State said they had not become aware of the email evidence after the rape alleged in the complainant's evidence. As I said earlier, although it was apparent the assertion of the 'rape' took defence counsel by surprise, the email evidence was annexed to an affidavit used in the Family Court proceedings dated 24 November 2022. It was therefore in the possession of the accused before the trial.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
HM
Associate to Judge Ritter
7 JUNE 2024