W S J v The Queen
[2010] VSCA 339
•15 July 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| WSJ | S APCR 2009 0799 |
| Applicant | |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | BUCHANAN, REDLICH and HARPER JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 15 July 2010 |
| DATE OF ORDERS | 15 July 2010 |
| DATE OF REASONS | 15 December 2010 |
| MEDIUM NEUTRAL CITATION | [2010] VSCA 339 |
| JUDGMENT APPEALED FROM | R v WSJ (Unreported, County Court of Victoria, Judge Jenkins, 27 August 2009) |
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CRIMINAL LAW – Conviction – Three counts of committing an indecent act with a child under 16 years – Complainant subject to persistent sexual abuse by applicant’s brother – Identifying witness was familiar with the applicant – Whether need for full direction as to unreliability of identification evidence – Whether identification warning undermined by trial judge’s comments – Delay in making complaint – Counsel wrongly prohibited from cross-examining or addressing the jury as to delay – s 61 Crimes Act 1958 (Vic) – Prior representations by complainant as to the alleged conduct of the applicant – Representations inconsistent with complainant’s account – Error to admit – s 41D Evidence Act 1958 (Vic) – s 66 Uniform Evidence Act considered – Relevance of lapse of time between the alleged offending and the making of the representation – Representation admitted only as going to the complainant’s credibility and not as proof of the truth of the facts asserted – Failure to warn jury that not original evidence – Misdirection – Appeal allowed – Retrial ordered
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Appearances: | Counsel | Solicitors |
| For the Applicant | Mr J Sutton | Revill & Papa Lawyers |
| For the Crown | Mr J D McArdle QC Ms D I Piekusis | Mr C Hyland, Solicitor for Public Prosecutions |
BUCHANAN JA:
I agree with Redlich JA.
REDLICH JA:
The applicant faced a presentment in the County Court at Melbourne containing three counts of committing an indecent act with a child under 16 years and one count of incest. The complainant was the applicant’s stepdaughter. All of the charges arose out of a single occasion alleged to have occurred in 2006. The applicant pleaded not guilty to all charges. For reasons that are presently irrelevant, the jury was discharged before verdict (the first trial). The second trial commenced immediately after the discharge of the jury in the first trial. The applicant was acquitted on the count of incest and was convicted on each of the three counts of committing an indecent act with a child. He received a total effective sentence of 22 months’ imprisonment with a non-parole period of 15 months. He sought leave to appeal against his conviction.
After hearing the appeal on 15 July 2010 the Court ordered that the appeal be allowed, quashed the convictions and directed that a new trial be had. Since the Court pronounced those orders and prior to publishing its reasons, the Court was advised that the Director of Public Prosecutions had entered a nolle prosequi. As no further trial is to be had, the reasons which follow are confined to those grounds upon which senior counsel conceded material errors, which viewed individually or in combination required the conviction be quashed.
Relevant facts
The alleged offence occurred whilst the complainant was 14 years of age. The occasion was a cold Friday night in 2006. The complainant said that the whole family, including the applicant, her stepfather, had dinner at the table at about 5:30pm. At about 6:30 the complainant and her mother dropped the complainant’s
sister off at a bus area as she was to go to a ‘Pathfinders’ camp for the weekend. They returned home and the complainant watched a movie. Her two brothers, her mother and the applicant all went to bed. She said it was cold so that it could have been winter and that she wore her winter pyjamas.
About 20 minutes after she went to bed, someone came in to her room. She described, in the following words, the scene and what happened next:
All the lights were off but when you walk into my room you can still see so it’s not, like, pitch black. I got scared and I heard these footsteps coming down the hallway. All the lights were off but when you walk into my room you can still see so it’s not, like, pitch black….then I felt someone – I knew someone was in my bedroom, I didn’t know who and I felt someone lifting the blanket down and was starting to touch or run his hands up my body, up to my hip.
The complainant was laying on her right side facing the wall with her eyes closed. She said she realised it was the applicant:
Just after he pulled my pyjama pants halfway down below my knees and my undies and at the same time he rolled me over so I’m facing, not against the wall, but now I’m facing him and that’s when I realised it was him. He had clothes on but I can’t identify what he was wearing. He was, kind of, crouched over a bit leaning on the bed for support.
The complainant said that the applicant pulled down her pyjama pants and underwear and started to rub her vagina with his left hand for maybe about a minute (count 2). The applicant then lifted her T-shirt and rubbed each breast in turn (count 3). The applicant also sucked each breast whilst rubbing her other breast (count 4). It came to an end, she said, when ‘I pulled his hand away and I pulled down my top and then he just walked away’. She said the whole incident lasted about half an hour.
The complainant in cross-examination said she could not remember whether she opened her eyes and caught a glimpse of the applicant and then closed her eyes again. She said that when the lights are off in the house ‘there’s still a little bit of light to be able to see’.
The prosecution tendered records of the Fridays when the complainant’s sister attended camp. They were 19 May, 9 June and 15 September 2006. It also tendered records showing that the applicant was not working his usual nightshift on 19 May and 15 September.
Evidence of complaint was also adduced by the prosecution. That evidence is set out under the ground dealing with s 41D of the Evidence Act 1958.
The complainant had been the subject of persistent sexual abuse by the applicant’s brother (‘the uncle’) for a period that commenced in 2003 and continued into 2007. The complainant made her complaint to the police concerning the applicant and his brother on the same day in March 2008. The uncle was subsequently interviewed and in substance admitted that he had sexually abused the complainant over the period alleged. He pleaded guilty to charges subsequently laid and was sentenced to a lengthy term of imprisonment.
The complainant said much of the abuse from the uncle occurred at the family home although it also occurred at other locations. There was evidence from the complainant and her mother that in 2006 the uncle lived in Wodonga and at various times he would come to Melbourne, including on weekends, and would either stay at the family home sleeping in the lounge room or stay at the home of other relatives and visit. On occasions he would arrive unannounced and was sometimes discovered sleeping in the lounge the following morning.
The complainant described in her evidence the circumstances in which the uncle had sexually abused her when he slept overnight at her home. She said that he would come into her bedroom late at night when she was asleep, crouch over her and would wake her by touching her. He had done so on so many occasions that she lost count. It was not in issue that his conduct on these occasions was very similar to that which she alleged against the applicant.
The applicant denied the complainant’s allegations in a record of interview conducted on 2 April 2008 and suggested that the complainant must have confused him with his brother who he said frequently stayed at the family home. Accordingly the identification of the applicant as the person who had committed the offences was the primary issue in the trial.
Whether the direction in relation to identification evidence was adequate
Here it was the Crown case that the identifying witness was familiar with the accused. In ‘recognition’ cases the question will arise as to whether it is necessary to give a full direction in which the jury is warned as to the unreliability of identification evidence in the terms discussed in Domican v R[1] and Festa v R.[2] The matter was considered in R v Spero[3] where it was said that the content of the warning will depend upon a number of factors, including the extent of the relationship between the witness and the person identified and the opportunity to observe that person subsequently identified. Where the person identified is very well known to the witness and there was an extended opportunity to recognise the person, as was the case in Spero, no more than a few words of the warning may be necessary. But if the opportunity of the witness to recognise the person is of a very short duration, or the witness has previously seen that person for only a brief period, a full Domican warning may be necessary. In this case the complainant’s opportunity to identify her assailant in her dark bedroom was limited. Hence a full warning was called for. That said, the criticism of the trial judge’s directions are without merit. The trial judge gave the jury an appropriately extensive warning as to the dangers associated with such an identification.
[1](1992) 173 CLR 555.
[2](2001) 208 CLR 593.
[3](2006) 13 VR 225.
Whether the identification warning was undermined by the learned trial judge’s comments
Before giving the direction her Honour said:
But as I said, you may be satisfied before even considering this evidence, that [the complainant] knew that only her stepfather and not her uncle…was in the house that night.
After giving the direction her Honour said:
you might think that having suffered abuse at the hands of [the uncle] for so long that she would notice when it was another male and this incident stood out amongst all the other incidents involving [the uncle].
It was accepted that these were comments. The trial judge did not, until the very end of her charge, give the usual direction to the jury distinguishing any ‘comment’ she might make from directions of law. I doubt that the jury understood at the time those comments were made that they were entitled to disregard them. The direction concerning comments should be given early in the charge so that when a comment is made, the jury then understands that it can be disregarded. It is also preferable if the judge informs the jury when making the comment that it is a comment.
Before charging the jury, the trial judge had said that there was an independent ground for the jury to find the applicant guilty, namely the complainant’s evidence that she believed the uncle was not at her home when the offences were committed. Let it be assumed for the purpose of argument that the complainant’s belief was capable of being so used. While a trial judge should remind the jury of such other evidence which may tend to confirm direct evidence of identification,[4] the existence of such evidence does not diminish the importance of the direction as to identification. As this case illustrates, such other evidence may make the warning as to identification even more critical. The complainant’s belief that only the applicant was at home at that time may have fed her conviction that her assailant was the applicant. In these circumstances, there is an increased need for the jury to carefully consider what opportunity the complainant had to identify the applicant as the person who in the darkness of her bedroom had sexually assaulted her. I accept the applicant’s submission that there was a real risk that her Honour’s comments impermissibly diminished the importance of the warning she gave.
The learned trial judge erred in prohibiting counsel from cross-examining the complainant or addressing the jury on the delay in the making of complaint unless ‘expert evidence’ was led.
[4]Ibid [36].
The trial judge, having been satisfied that the accused had suffered a significant forensic disadvantage,[5] gave a forensic disadvantage warning in accordance with s 61 of the Crimes Act 1958. However, her Honour ruled that as no ‘expert evidence’ was led to show that the complainant should have availed herself of an opportunity to complain, defence counsel was not permitted to cross-examine the complainant as to her delay in making complaint. Her Honour also prohibited the defence from making any submission to the jury on that issue. As senior counsel for the Crown conceded, ‘something had gone wrong’ in the trial judge concluding that such evidence was a condition precedent to the defence having a right to challenge the complainant as to the delay in making a complaint.
[5]Crimes Act 1958 (Vic) s 61(1A).
Nothing in s 61 inhibits the right of the defence to explore the reasons of the complainant for any delay in making complaint. That she may have good reasons, or that she may be unable to recognise or articulate them,[6] would not preclude the defence from exploring the issue. The section contemplates that such questions may be asked,[7] and if they are then the trial judge must inform the jury that there may be good reasons why a victim of a sexual assault may delay or hesitate in complaining about it.[8]
[6] Svajcer v R [2010] VSCA 116, [21]–[22].
[7] Crimes Act 1958 (Vic) s 61(1)(b).
[8]Crimes Act 1958 (Vic) s 61(1)(b)(i).
The section forbids the trial judge from warning or suggesting that the credibility of the complainant is affected by the delay unless satisfied that there is sufficient evidence tending to suggest that the credibility of the complainant is so affected as to justify the giving of such a warning.[9] The trial judge cannot warn or suggest to the jury that it would be dangerous or unsafe to find the accused guilty because of the delay.[10] No such constraints are placed upon the defence.
The learned trial judge erred in permitting the learned prosecutor to lead hearsay evidence from the informant
[9]Crimes Act 1958 (Vic) s 61(1)(b)(ii).
[10]Crimes Act 1958 (Vic) s 61(1)(b)(iii).
The police informant was the last witness called at the trial. During his evidence the prosecutor, over objection by defence counsel, was permitted to ask the informant about what the complainant had alleged concerning the assaults upon her by her uncle. On the appeal, it was not in issue that such evidence was hearsay. The Crown conceded that the objections made should have been upheld.
The learned trial judge erred in the admission of evidence of complaint under s 41D of the Evidence Act 1958
This ground concerns evidence led from two witnesses, KJ and AJ, who were friends of the complainant’s family and persons to whom representations were made by the complainant relating to the alleged conduct of the applicant. The Crown acknowledged at trial that the representations, having been made some 18 to 19 months after the alleged offences, could not constitute recent complaint. The representations fell into two categories. First were representations made by the complainant to AJ and KJ of the facts constituting the offences charged. Second were representations of other conduct of the applicant which the Crown submitted demonstrated that the applicant had a sexual interest in the complainant. The Crown sought to have all of the representations admitted pursuant to s 41D of the Evidence Act 1958. The provisions of s 41D were as follows:
Evidence of previous representations made by child complainants
(1) If, in a legal proceeding that relates (wholly or partly) to a charge for a sexual offence, a child complainant who has made a previous representation is available to give evidence –
(a)about the existence of a fact of which he or she had personal knowledge and that he or she intended to assert by the representation; or
(b)if the child complainant’s credibility is relevant, to support his or her credibility –
the hearsay rule, subject to subsection (2), does not apply to evidence of the representation that is give by –
(c) the child complainant; or
(d)a person who saw, heard or otherwise perceived the representation being made.
(2) Subsection (1) does not apply unless the court is satisfied that the evidence is relevant to a fact in issue and is sufficiently probative having regard to the nature and content of the representation and the circumstances in which it was made.
(3) A witness has personal knowledge of the asserted fact if his or her knowledge of that fact was, or might reasonably be supposed to have been, based on something that the person saw, heard or otherwise perceived, other than a previous representation made by another person about the fact.
(4) Evidence of the kind referred to in subsection (1) is admissible for either or both of the following purposes –
(a)to prove the truth of the fact contained in the representation; or
(b) to support the credibility of the child complainant as a witness.
(5) if the court receives evidence of the kind referred to in subsection (1) for the purpose referred to in subsection (4)(a), the court must warn the jury that evidence of that kind may not be as reliable as original evidence.
(6) Nothing in this section takes away from, or limits, any discretion a court has to exclude evidence.
Pursuant to sub-s (4)(b) the Crown relied upon these representations to support the complainant’s credibility. It did not rely upon them as proof of the truth of the facts contained in the representations. The defence opposed their admission. In compliance with the obligation mandated by sub-s (2) her Honour assessed the probative weight of the representations by reference to the reasons why the complainant delayed in making complaint, the circumstances in which they were made and the level of detail with which they were provided. Her Honour then ruled
that the evidence of the representations was admissible in the trial as supporting the complainant’s credibility.[11]
[11]Note that this ruling was made in the course of the first (aborted) trial and the ruling seems to have been accepted by both parties to apply in the second trial.
In substance the complaint on appeal was that the representations were:
(a)insufficiently contemporaneous with the events the subject of the charges;
(b)not uttered in circumstances of spontaneity; and
(c)insufficiently consistent with the evidence that complainant would and did give of those facts;
and that accordingly the representations failed to meet the requirement contained in sub-s (2) that the representations be ‘sufficiently probative’ of the facts in issue.
AJ gave evidence of a conversation with the complainant in 2006. He said he had noticed ‘a few changes’ in the complainant, such as reverting to the surname of her paternal father (rather than that of her stepfather, the applicant), no longer sitting with the applicant at church and other conduct that suggested a decline in their relationship.[12] He asked the complainant whether there was something wrong. The complainant responded by saying that there was an incident to do with the bathroom. She said that the applicant had opened the bathroom door while she was having a shower and had said ‘oh sorry’ and then closed the door. AJ asked if there was a lock on the door and the complainant said that the applicant had taken it off. He asked if it was broken, and she said ‘no’. AJ said his wife was sitting close by at the time of this conversation. AJ then went outside but the complainant followed him and told him that that the applicant had come into the bathroom on more than one occasion and had actually washed his hands at the basin while she was showering. AJ then asked her whether the applicant knew that she was in the shower and she said he did because the bathroom fan was on and she had told him she was going to have a shower. According to AJ she then described the events the subject of the present charges in these terms:
[The complainant] was waiting on the front veranda and I was standing just on the lawn and she said ‘Oh, there is one more thing that I didn’t mention’, and with that I asked her what that was. She was telling me about how that – and we was away on camp and that [her mother] was asleep. Her words were her mum was asleep, [her two brothers were] asleep and [the applicant] was at the computer and he came into her room, he had put his hands up her shirt touching her breasts and started kissing her breasts and then he ran his hands down into her pants and she said that he was playing around downstairs. I then asked her – I said, ‘Look, that’s pretty bad but I do need to ask you what do you mean by “downstairs”?’ She then said you know, that he was touching her vagina. I then said to her, ‘Look, I’m really sorry I had to ask you this but did he actually put his fingers in or anything like that?’ and she said, ‘Yes, he inserted his finger’. I then said to her, ‘that’s pretty bad, but did he use his penis at all?’ and she said, ‘No’. I said, ‘what did he do after that?’ She said that he just got up and walked out. I then asked her if anyone else had ever done anything like that. She then told me about [the uncle], how [the uncle] would wait for [the applicant or his wife] to leave the room and then he would walk up and touch her on the breasts and put his hands down her pants as well…
[12]This was the subject of a separate ground of appeal.
KJ said that she heard the conversation between AJ and the complainant while she was close by. She said AJ then left and she was able to speak to the complainant herself. The complainant told her that the applicant had walked in to the bathroom while she was having a shower. Later in the conversation the complainant said that it was about four or five times that he walked in while she was showering. KJ said she told AJ about the conversation. KJ also narrated what she had heard the complainant tell AJ as to the events the subject of the present charges.
In her evidence the complainant said that the applicant walked into the bathroom on two occasions and washed his hands slowly while she was showering. She agreed that she spoke to AJ about the bathroom incidents but she said she did not remember saying that the applicant opened the door to the bathroom, apologised and shut the door. She said he did come in. That evidence was fundamentally inconsistent with the representation to which AJ testified. She also rejected the contention that the applicant had walked into the bathroom on ‘four or five occasions’. That evidence was inconsistent with the account she had given KJ.
During her evidence she said she could not remember whether her uncle had come into the bathroom and said he could have come in once or twice but she was not sure. That, as the evidence established, was consistent with her earlier police statement in which she said that on an occasion her uncle came into the bathroom while she was showering. She agreed that she told AJ about this incident. The complainant denied in cross-examination that she had transposed the incident involving the uncle and said that it was the applicant.
The lack of contemporaneity between the representations and the events the subject of the charges
The applicant contends that the lapse in time was such as to deny the representations the necessary probative quality required regardless of any other considerations. He relied upon the decisions of the High Court in Papakosmas v R[13] and Graham v R[14] which had interpreted s 66 of the Evidence Act 1995 (Cth) (‘the Uniform Evidence Act’), the provision upon which s 41D had been modelled (as recommended by the Victorian Law Reform Commission),[15] in support of the contention that as a consequence of the lapse of time, the representations could not be ‘sufficiently probative’. The Crown submitted that as, in contradistinction to s 66 of the Uniform Evidence Act, there is no express requirement under s 41D for the facts the subject of the representation to be ‘fresh’ in the mind of the complainant at the time the representation is made, the lapse of time does not provide a basis for excluding the representations.
[13](1999) 196 CLR 297.
[14] (1998) 195 CLR 606.
[15]Victorian Law Reform Commission, Sexual Offences: Final Report (2004) 232.
Gaudron and Kirby JJ said in Papakosmas v The Queen, with reference to s 66 of the Uniform Evidence Act but in terms of principle of more general application:
The principle expressed in Ratten is crucially dependent on the virtual certainty of the statement in question being true and, to that extent, it reflects the common law's bias against the reception of hearsay evidence. That is because it is not logically necessary for the possibility of concoction to be excluded before a statement is probative of the fact asserted in it. Rather, all that is necessary is that the statement be consistent with the fact to be proved and its making so connected to that fact that, when taken in conjunction with other evidence in the case, it bears on the probability of that fact having occurred.
The nature and degree of the connection necessary before a statement is probative of the fact asserted in it will, of course, depend on the nature of that fact and, if it be different, the fact ultimately to be proved. Even so, the connection will ordinarily be found in the close contemporaneity of the statement with the fact in issue and the consideration that the statement is a statement of the kind that might ordinarily be expected from the maker if the fact were true. Similarly, a statement that is closely contemporaneous with the fact in issue and is contrary to what would ordinarily be expected if that fact were true rationally bears on the improbability of its having occurred.
The question whether, in the particular circumstances, a statement that is not closely contemporaneous (for example, a subsequent statement to police) is probative of the facts asserted in it can logically only be answered in a case in which those circumstances arise. However, there must be some connecting circumstances because, otherwise, evidence that a particular statement was made is probative only of its making and its contents and such inferences as, in the circumstances, may be properly drawn.[16]
[16](1999) 196 CLR 297, 314–15.
In Watson v R[17] both the joint reasons of Nettle JA and Beach AJA and my own make clear that having regard to the above quoted passage from Papakosmas v The Queen,[18] the time at which a representation was made was not intended to be excluded from consideration as one of the circumstances in which a representation was made, despite the absence of an express requirement of freshness in s 41D.[19] That is to say, one of the considerations to which a trial judge was obliged to have regard for the purpose s 41D(2) and s 41D(6) was the lapse of time between the alleged offence and the making of the complaint.[20] Therefore the submissions of the applicant and the Crown must both be rejected. The lapse of time between the alleged offending and the making of the representation will ordinarily be relevant but it is not to be viewed in isolation from other relevant considerations which bear upon the probative value of the representation.
[17][2010] VSCA 189.
[18](1999) 196 CLR 297.
[19]Watson v R [2010] VSCA 189, [6]–[8] (Nettle JA and Beach AJA).
[20]Ibid [27]–[29] (Redlich JA).
The trial judge took into account the extended period of time between the alleged incident and the representations. Her Honour accepted that it was a relevant consideration that there was ‘no temporal connection’ between the alleged incident and the complaint ‘sufficient to buttress the credibility of the complainant’. Her Honour considered that the lapse of time was ‘not sufficient of itself to preclude the admissibility of such complaint’. Her Honour found that there were other aspects of the representations which were capable of giving rise to the necessary degree of probative value. Her Honour made no error of principle in her approach.
With respect to the first representation concerning the conduct the subject of the offences charged, it is unnecessary to decide whether the trial judge erred in deciding that the representation was made in circumstances of spontaneity or whether its detail and the lapse of time before it was made were such as to render it incapable of having the requisite probative value.
The focus of oral argument on the appeal was upon the second of the representations, that concerning the bathroom incidents. By the conclusion of oral argument on the appeal it was clear that her Honour had erred in admitting that representation and that her Honour had misdirected the jury as to its use.
Inconsistency of representation with evidence adduced from the complainant
The Crown readily conceded in oral argument that her Honour was in error in treating the second representation made to AJ and KJ concerning bathroom incidents as proof of a sexual interest by the applicant in the complainant. The evidence fell short of permitting an inference that the applicant’s conduct demonstrated a sexual interest in the complainant. The Crown further conceded that the differences between the evidence given by the complainant and the evidence of the representations given by AJ and KJ as to what the complainant had said to them were so significant that their evidence was incapable of buttressing the credibility of the complainant’s evidence in that regard. Although the question of consistency is one of degree, the inconsistencies may be of such an order that such evidence cannot enhance the credibility of the witness. The evidence of AJ and KJ as to that representation should not have been admitted.[21]
[21] BRL v R [2010] VSCA 258, [21] (Harper JA).
Misdirections as to the use of the second representation
As to the directions given to the jury, the Crown acknowledged that having admitted the evidence, the very least the trial judge should have done was to have directed the jury’s attention to the fact that the representation AJ and KJ recounted was so inconsistent with the complainant’s evidence that it could not support her credibility.
Second, the Crown conceded that the trial judge misdirected the jury as to the use that could be made of the evidence of AJ and KJ concerning the complainant’s representation as to the bathroom incidents. The trial judge gave the jury separate directions with respect to that representation. The jury were directed that they might use the evidence of the ‘witnesses’ as to the bathroom incidents in two ways:
First, if you are satisfied beyond reasonable doubt that the accused has behaved in the manner described at around the same time as the alleged offending, then you may use this fact to infer that he had a sexual interest in [the complainant] and was prepared to pursue that interest. From this conclusion you may infer that it is likely that he acted on his sexual interest for [the complainant] by doing the things alleged by her in the offences charged. In other words, you may decide that the fact that the accused was sexually attracted to [the complainant] and was willing to act on that attraction, makes it more probable that he committed the offences charged. You will remember what I told you about drawing inferences.
Secondly, the evidence has been given in this case because if accepted, it may enable you to understand the evidence relating to each count in a more complete and realistic context and setting. This may assist you to appreciate the significance of what may otherwise seem an isolated and unexpected event.
It is important that you only use this evidence of these witnesses to understand the context for the alleged offences and only if you accept that it is true. It is important that you only use the evidence about the accused’s alleged sexual interest in the complainant for either or both of these purposes and only if you are satisfied beyond reasonable doubt that it is true and makes it more likely that he committed the offences charged.
Her Honour treated the evidence of all witnesses concerning the bathroom incident in the same way. By so directing the jury, they must have understood that they could treat evidence of the representation as evidence of the truth of the facts represented, namely as proof that the bathroom incidents occurred. This was contrary to the basis upon which the representations had been admitted. The representation was to be use for the limited purpose of buttressing the complainant’s credit. Moreover, by leaving this evidence to the jury in this manner, the trial judge was obliged to direct the jury in accordance with s 41D(5) of the Evidence Act 1958 that evidence of that kind may not be as reliable as original evidence. No such direction was given.
It was for these reasons that I joined in the orders made at the conclusion of the appeal.
HARPER JA:
I also agree.
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