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Sexual Assault - Matters to Consider when Preparing and Conducting Sexual Assault Trials

 

A paper by Leonie Flannery, SC
Public Defender

Current as of 16 March 2007

 

A. INTRODUCTION

This paper provides a fairly bare bones guide to the relevant principles and authorities which may be relevant in this area. I hope it will provide a basis for a practical look at the application of the principles in everyday situations.


 

B. PREPARATION

(i) IS THERE ANY BASIS FOR APPLYING FOR A PERMANENT STAY OF THE PROSECUTION ?

Allegations of sexual abuse are often made many years after the alleged misconduct and as a result it is tempting to think about applying for a permanent stay of the proceedings on that basis. Unfortunately, even in cases where the time between the alleged events and the charging of the accused is as much as thirty years, the courts are disinclined to stay the proceedings without some other significant prejudice being present.

When an application is made for a permanent stay, the court will have regard to whether a fair trial can be had in the absence of one. In particular, a court will consider whether the trial judge's capacity to rule on the admissibility of evidence, to give appropriate directions to the jury and to ensure that all relevant factual issues arising from the alleged unfairness are put before the jury are sufficient to cure the unfairness that would otherwise be engendered. AG's reference (No 1 of 1990) [1992] QB 630 .

In R v McD , (unrep, CCA, 2 May 1996) , the Court of Criminal Appeal declined to overturn a trial judge's refusal to permanently stay proceedings in circumstances where the events the subject of the counts on the indictment were alleged to have occurred some twelve to nineteen years before the trial and where three potential witnesses had died before the matter came on for trial. The Court considered that, although one of the three potential witnesses could have given significant evidence, it had not been shown that the trial judge was in error in refusing the application . (The significant evidence would have come from the accused's wife whom the complainant alleged had come into the shed just after the assault and had yelled at the complainant to pull her pants up and to make herself ready for lunch ).

The principles set out in Jago v District Court, 168 CLR 23, were referred to and applied.

'In essence then, the power to prevent an abuse of process in this context is derived from the public interest; first that trials and the processes preceding them are conducted fairly and, secondly, that, so far as possible, persons charged with criminal offences are both tried and tried without unreasonable delay. In this sense, fairness to the accused is not the sole criterion when a court decides whether a criminal trial should proceed.'(Mason CJ at 30)

Deane J (at 55) said;

'...the burden of criminal proceedings even where intensified by such delay cannot, without more, properly be seen as unfairly oppressive or as an abuse of the process of the particular court...the stage can, however, be reached where the delay in the institution or prosecution of criminal proceedings is so prolonged that it becomes unreasonable'.

For an example of where an application for a permanent stay was successful in this area see John Phillip Aitchison v DPP, 90 A Crim R 448 where Higgins J in the Supreme Court of the ACT granted a permanent stay in circumstances where the accused had been dealt with for much more serious matters which occurred later in time and which were the subject of a lot of adverse publicity which would have militated against a fair trial and the Crown case was not strong and a multiplicity of proceedings would have been required to prosecute the matters and even if there were convictions, Higgins J was satisfied that they would not be visited with custodial sentences.

See also R v Littler, unrep, CCA, 4 June 2001 , where the Court of Criminal Appeal upheld an appeal against a refusal by a trial judge to grant a permanent stay where the allegations were of conduct that occurred between 1955 and 1963 and where witnesses were dead, demented or unable to be identified and where the applicant's ability to remember with reasonable reliability contextual facts of the alleged occurrences was compromised, and where the evidence established that the applicant would be unable to give evidence coherently and fluently, would be unable to remember evidence previously given in the trial by other witnesses and would be unable to quickly understand questions asked in examination in chief and cross examination.

In Littler Hodgson AJ suggested that where a stay of proceedings was sought, the applicant, if not unfit for trial, should normally be prepared to state on oath what he or she says would be the particular difficulties he or she would face in dealing with a trial of the charges brought.

See also R v Westley [2004] NSWCCA [192,] where an appeal was upheld against the refusal of the trial judge to permanently stay the proceedings where confusion as to exact dates meant that evidence could not establish that the complaint was under 14 years, which meant that the proceedings were doomed to failure.


 

(ii). SHOULD THE TRIAL BE HELD BEFORE A JUDGE ALONE OR WITH A JURY?

Whilst most accused opt for a jury trial, s16 of the Criminal Procedure Act 1986 provides that an accused person must be tried by a judge alone if he or she so elects and the DPP consents.

The DPP has published guidelines which detail the matters that it has regard to when it determines whether or not that consent will be forthcoming. (See Volume 4 Butterworths Criminal Practice and Procedure Service at 28.30.065). It seems that where a trial involves allegations of sexual misconduct, there would have to be some prejudicial material in the case which a direction from the judge could not overcome, before that consent would be forthcoming.

As a practical matter if it was thought preferable to have a judge alone trial for whatever reason, an election should be submitted to the DPP for consent because it may be that the complainant wishes to minimise his or her trauma by having his or her case determined by a judge alone.


 

(iii) SHOULD THERE BE SEPARATE TRIALS WHERE MORE THAN ONE COMPLAINANT?

WHERE NO SIMILAR FACTS ALLEGED?

Where a person is charged with sexual offences against different complainants and there is no suggested similarity between the sets of offences, the charges should not be heard together and an application for the separation of the counts should be made if the Crown is not prepared to sever the indictment. A trial judge should in the normal course exercise his discretion in favour of severance in these circumstances. (see R v De Jesus 22 A Crim R 375 ).

WHERE SIMILAR FACTS ALLEGED?

Where similar allegations are made against an accused person by two or more complainants the Crown not infrequently presses for a 'joint trial'. S97 and s101 are likely to have application. See generally Ellis (2004) 144 A Crim R 1 . And, for examples of the application of Ellis in this area see Milton [2004] NSWCCA 195 and Barton[2004] NSWCCA 229 .

A useful starting point in this area is the Queensland case of R v Phillips [2006] HCA 4. However it must be noted that in Queensland Pfennig principles still apply. In that case the appellant stood trial on eight counts. The first seven related to complaints made by five teenage females. The incidents complained of allegedly took place in the period August 2000 to November 2001. The conduct was alleged to have occurred in and around Innisfail, a small country town in the north of Queensland. Application was made for separate trials of each complainant's allegations. The application was refused. Mr Phillips appealed. Ultimately the High Court at [78] -[79] was moved to point out:


'It can be appreciated that separate trials of the several complaints by different complainants adds to the cost of the prosecutions and the defence of the accused. However, the dangers, in the trial of the appellant, of admitting the evidence relevant to all of the several allegations against him, was very great. Despite the efforts of the trial judge to give the jury precise instructions on the separate admissibility and use of different evidence, in a case such as the present, such instructions were bound to be confusing and prone to error. The prejudice to the fair trial of the appellant was substantial.

Criminal trials in this country are ordinarily focused with high particularity upon specified offences. They are not, as such, a trial of the accused's character or propensity towards criminal conduct. That is why, in order to permit the admission of evidence relevant to several different offences, the common law requires a high threshold to be passed. The evidence must possess particular probative qualities; a strong degree of probative force; a really material bearing on the issues to be decided. That threshold was not met in this case. It was therefore necessary that the allegations, formulated in the charges brought against the appellant, be separately considered by different juries, uncontaminated by knowledge of other complaints. This is what Pfennig and other decisions of this Court require. To the extent that O'sKeefe or other authority suggests otherwise, it does not represent the law. No other outcome would be compatible with the fair trial of the appellant. '



R v Fletcher [2005] NSWCCA 338 is also useful reading. In that decision at [49]-[50] Simpson J said:


'A lay person may well be forgiven for thinking that evidence of a tendency to sexual misconduct with adolescent boys could rationally affect the assessment of the probability that the appellant sexually misconducted himself with the complainant as an adolescent.

But this is where caution needs to be exercised. While it may be tempting to think, for example, that evidence of a sexual attraction to male adolescents has probative value in a case where the allegations are, as here, of sexual misconduct with a male adolescent, an examination must be made of the nature of the sexual misconduct alleged and the degree to which it has similarities with the tendency evidence proffered. There will be cases where the similarities are so overwhelming as to amount to what, in pre-Evidence Act days was called 'similar fact' evidence, showing 'a striking similarity' between the acts alleged; and there will be cases where the similarities are of so little moment as to render the evidence probative of nothing. And there will be cases where reasonable minds may differ as to the extent to which proof of one fact or circumstance may rationally affect the assessment of the probability of the existence of another fact'.


 

CONCOCTION

One matter that may reflect on whether the evidence has substantial probative value is whether there is any material that suggests that the complainants got their heads together before making their complaints. In R v AK, unrep, CCA, 22 April 1996 , Gleeson CJ said that;


'The law as declared in Hoch, requires the trial judge to determine the admissibility of the evidence and, in that connection, to consider for himself or herself the question whether there is a "real chance" of conspiracy or collaboration, as that expression has been explained in the authorities. The evidence will not be admitted unless the trial judge has made a decision in accordance with the test enunciated in Hoch. Whether that necessitates the conduct of a voir dire will depend upon the circumstances of the case. '


In R v Hoch 165 CLR 292 at 304 , Brennan and Dawson JJ said;


'Here, his Honour identified circumstances of association between the complainants which plainly raised the question whether there was a real chance that they had put their heads together to concoct their allegations. That is not to say that a trial judge should lightly conclude that there is a "real chance" of conspiracy among complainants in sexual cases, whether children or adults. Contact or, antecedent friendship between complainants may be quite insufficient to found such a conclusion. But the circumstances of their contact or friendship may warrant an inquiry whether there was a real chance that they had agreed to concoct their allegations'.


The Court of Criminal Appeal in R v Colby, unrep, CCA, 26 August 199 9, reinforced the need for there to be a real possibility of concoction rather than a merely speculative chance before evidence is ruled inadmissible. The court referred with approval to the following passage of Ambrose J in R v Robertson (1997) 91 A Crim R 388 at 409 ;


'It is necessary for the trial judge to determine whether there is a real chance of concoction or contamination rather than a merely speculative chance. Similar facts could not be reasonably explained on the basis of concoction unless there was a real chance of it. To determine whether there is a real chance the trial judge must look at the facts of the case before him and determine what were the circumstances of the witnesses sought to be called to give similar fact evidence. Undoubtedly where such witnesses are in close relationship and there is both an opportunity and motivation to concoct and they give evidence of the same sorts of sexual behaviour on the part of an accused person, the determination of admissibility ...will be in favour of its rejection'.


In a case involving two complainants, neither of whose evidence was admissible in the case involving the other, and where there was a risk of concoction, the judge must clearly warn the jury that it cannot use the evidence of alleged misconduct against one complainant as proof of the alleged misconduct against another complainant. Failure to do so will result in a re-trial. R v Mitchell, unrep, CCA 5.4.95 ,R v Mayberry, unrep, CCA 14.12.00


 

C. PRE TRIAL ISSUES

(i)WHETHER EVIDENCE OF COMPLAINT IS ADMISSIBLE

(For an overview of this area of the law it is useful to read Howie J's judgement in DBG [2002] NSWCCA [328])

s66

If a complaint is "fresh", that is made within hours or days of the alleged offence, it will be admissible as first person hearsay pursuant to s 66 Evidence Act, Graham v R (1998) 157 ALR 40 4.

The Courts have generally taken a flexible approach. In R v Le, unrep, CCA, 7.3.00 , a complaint covering conduct over the preceding sex months was admitted. In R v Adam, (1999) 47 NSWLR 267 at 281-282 , it was said that there was much to commend a statement by the trial judge that a complaint made seven weeks after the event should not be regarded as outside the period of fresh memory.

See also G.A.R [2003] NSWCCA [224] where evidence of complaint had been admitted under s66(2). The court held that where evidence of fresh complaint is admitted it must include details of what was asserted in the complaint. It was insufficient to state the complainant told the witness 'what happened'.

S108

If a complaint is not "fresh", it is only admissible if s108 applies. Either where:

* it is or will be suggested (either expressly or by implication) that evidence given by the witness has been fabricated or re-constructed (whether deliberately or otherwise) or is the result of a suggestion, and if the court gives leave to adduce the evidence of the prior consistent statement. (s108(3)); or.
* if the evidence is not lead in chief but is raised by the defence in cross examination it can be lead by the Crown in re-examination if it is relevant. (s108(1)).

The evidence to be admissible pursuant to s108(3) must be capable of restoring the complainant's credibility or of rebutting any allegation of fabrication, reconstruction or suggestion, before leave will be granted, so that if a complaint is made years after the event it will not normally be capable of restoring credit or rebutting suggestions of fabrication and hence will not be admissible: Graham v R , at 406.

In W, unrep, CCA, 20.8.99, in circumstances where the complaint was made three years after the alleged incidents, the Court of Criminal Appeal suggested that a denial of the events alleged without more does not necessarily suggest expressly or implicitly, positively, reconstruction, fabrication or suggestion and hence would not necessarily lead to the granting of leave to adduce the prior consistent statement.

Where the case is one where leave may be sought by the Crown, it is sensible to raise the issue before the trial judge in the absence of the jury and before the trial proper commences, so that if leave is granted, the evidence of complaint can be led in examination in chief of the complainant rather than in re-examination.

Directions

See DBG [2002] NSWCCA [328] where Howie J discusses the differences between evidence admitted under s66(2) and evidence of a prior consistent statement admitted with leave under s108(3). Evidence under s 108(3) is not admitted to show consistent conduct on the part of the complainant following the incident alleged in the complaint but, rather, to restore the complainant's credit that has been impugned within the terms of s 108(3)(a) or (b). Evidence admitted under s 108(3) is relevant to the complainant's credibility, either generally or in a particular respect, whereas evidence admitted under s 66(2) is relevant to the complainant's credibility in respect of the particular allegation or allegations raised in the complaint:

S136?

The High Court rejected the submission that as a general rule a court should limit the use of complaint evidence pursuant to s136 of the Evidence Act so that it is only available to show consistency of the complainant's conduct. Papakosmas v R, 73 ALJR 1274. The court did consider that there may be circumstances in which a court would see fit to limit the use of complaint evidence and did envisage that this would sometimes be in a manner that corresponds to the position as it was at common law.


 

(ii). ADMISSIBILITY OF CONTEXT/TENDENCY EVIDENCE

(Howie J's judgements in Qualtieri (2006) NSWCCA 95 and Galvin (2006) 161 A Crim R 449 are essential reading in this area)

The first step here is to identify the purpose for which this evidence is led, ie, whether it is simply led as relationship evidence in the sense of background and context or whether it is also led as evidence of tendency, AH (1997) 42 NSWLR 702).


Context evidence

If it is led as relationship evidence it is not tendency evidence and the requirements of s 97 and s101 are irrelevant. Once admitted for that purpose, however, the evidence cannot also be used as tendency evidence in the sense that, because the accused had the guilty passion ( now called sexual interest), he did the act in question unless it does comply with those requirements; R v AH (supra).

There is no temporal limitation on relationship evidence. The test for its admissibility is the capacity of the evidence to explain the conduct charged. However acts subsequent to the charged offences, and acts remote in time, may have a reduced capacity to explain the charged conduct and will therefore be less probative. Remoteness will also be relevant to the exercise of the discretions under ss135, 136 and 137. The generality of the evidence may also render it inadmissible, see AN (2000) 117 A Crim R 176 at [45]-[49]. ATM (2000) NSWCCA 475 and more recently Howie J's judgement in Qualtieri (2006) NSWCCA 95.

Tendency evidence

When the Crown does wish to use the evidence of sexual interest as tending to show that the accused did do the act in question it is tendency evidence and so must comply with s97 and s101 before it may be used for that purpose.

S97 requires the Crown to establish that the evidence has significant probative value. That means that its degree of relevance to the events giving rise to the offence charged is important or of consequence R v Lockyer(1996) 89 A Crim R 457 . Ireland J in R v AH (supra ) suggested that if the conduct in question is not remote from the time of the alleged offence, the Crown should usually have little difficulty in establishing that the evidence has importance in establishing the guilt of the accused, and thus that it is of significant probative value.

S101 (2) requires the Crown to establish that the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused. The prejudicial effect of tendency evidence is that the ordinary person may think that someone with an established tendency to conduct himself in a certain way whenever a particular opportunity arises will yield to that tendency and so conduct himself in the circumstances of a particular case, see generally Ellis (2004) 144 A Crim R 1.

Notice provisions

The Crown must give notice of an intention to tender tendency evidence pursuant to ss99 and 100 Evidence Act. Failure of the accused to challenge a notice at trial does not necessarily constitute a waiver unless accused has been appraised of rights and advised to waive those rights by a legal representative and the Court is satisfied the accused understands the consequences of the waiver, AN (supra).

In Qualtieri (at [117]) Howie J has pointed out that 'context evidence in child sexual assault offences will normally come from the complainant because it is part of the narrative or the history of events surrounding the particular allegations in the counts set out in the indictment,' whereas 'evidence of the accused's sexual interest in the complainant will usually be found outside of the complainant's evidence, such as in a letter written by the accused to the complainant or some other act of the accused that shows a sexual interest in the complainant or children generally'[118].


 

(iii) MEDICAL ISSUES

Often there will be some medical evidence that is said to be consistent with the allegation made by the complainant. When this is so it is important to qualify an expert to either give evidence or to assist with the cross examination of the Crown expert. For this purpose it will be necessary to ensure that the sexual assault kit (SAIK) is available either as part of the Crown brief or under subpoena.

Sometimes there is either no medical evidence or no injury seen in circumstances where you might expect there would be. Then, an expert should be qualified to find out whether, based on the complainant's account, there should be some sign of what he/she alleges happened.

Medical evidence of limited value should be the subject of an objection. In R v Dwyer, unrep, CCA,25 March 1999 , a Doctor gave evidence in the trial that the complainant at a relevant time had a vaginal discharge which was possibly blood. He was asked by the Crown Prosecutor if this type of discharge was consistent with digital penetration of the vagina. The doctor responded that it was not necessarily the case however that type of rubbing could cause discharge through abrasion. The Court of Criminal Appeal considered that this evidence was inadmissible (i)as it went no further than establishing the vaginal discharge(which may or may not have been blood) may have been consistent with rubbing of the vaginal area as alleged by the complainant, and (ii) that there was ample scope for it being consistent with a number of conditions not related to any alleged conduct of the accused.

See also RTB [2002] NSWCCA 104 and Skaf [2004] NSWCCA 74 and Thorne v Regina [2007] NSWCCA 10.


 

(iv) ERISPS

Often in these cases an ERISP will just contain the police putting a complainant's allegations and the accused denying them. The repetition of the allegations at the end of the Crown case ( which tends to be when the ERISP is played) is not necessarily helpful to the accused regardless of how he/she dealt with the questions. As denials are not capable of being regarded as admissions they are irrelevant. (see R v Graham, R v BFM, unrep, CCA, 6 February 1996 and Plevac, 84 A Crim R 570 ). An objection to the whole of the ERISP may be worth considering.

There was a time in 2005 where some Crown prosecutors were refusing to tender exculpatory ERISPS. This practice was challenged by the accused in a decision of Rymer [2005] NSWCCA 310. Mr Rymer had been arrested for an alleged sexual assault and interviewed by the police, where he gave a wholly exculpatory account. The Court accepted an argument that the ERISP was admissible 'because it has the dual purposes of assertion of the fact of innocence and the credibility of that assertion implicit in the denial of guilt conveyed by the plea' and 'was thus admissible as within what is conceived by s60'subject to discretionary exclusion under s137. Stephen Odgers at 1.3.7660 Uniform Evidence Law, expresses some doubts about the legitimacy of this approach.


 

D. MATTERS WHICH MAY ARISE DURING THE TRIAL

(i) S293 CRIMINAL PROCEDURE ACT

(s.293 Criminal Procedure Act 1986 is similar, although not identical to, s.409B Crimes Act 1900, and s105 Criminal Procedure Act. The following cases primarily refer to s.409B).

Before considering s.293, it is necessary to first determine if the evidence is admissible at common law. If the proposed evidence is not relevant or probative to any fact in issue s.293 will not make it admissible. ( Henning NSW CCA 11.5.1990 at 71; Uhrig NSW CCA 24.10.1996 at 9)

S.293 applies to all prescribed sexual offence proceedings. Prescribed sexual offences are listed in s.3 of the Act. Prescribed sexual offence proceedings include proceedings where an accused is charged with a prescribed sexual offence and any other offence ( s.293(9) and ARS NSW CCA 25.9.1997)

S293 (2) and (3)

S.293 provides that:

Evidence relating to sexual reputation is inadmissible (s.293(2)).

Evidence that discloses or implies that a complainant has or may have had sexual experience or a lack of sexual experience, or has or may have taken part in any sexual activity, is inadmissible (s.293(3)).

It has been held that suggesting to a complainant that he or she has made a statement in relation to previous sexual activity will disclose or imply previous sexual activity. It is irrelevant that the purpose of the evidence is to prove the making of the statement, not the previous sexual activity.

Evidence that complainant had told accused she had broken up with boyfriend after he found her in bed with another man was rejected as inadmissible. ( White (1989) 46 A Crim R 251 at 259)

Evidence that complainant had told the accused and others that her father and brothers were sexually abusing her was not admissible, although the purpose of evidence was to show that the complainant had lied about previous, unrelated, sexual activity. ( M (1993) 67 A Crim R 549 at 554)

S293 (4) (a)

Evidence that is inadmissible pursuant to s293 (3) may be admissible in the following circumstances:

(a). If the evidence relates to the complainant's sexual experience or lack of experience, or sexual activity or lack of activity at or about the time of the commission of the alleged sexual offence and the events form part of a connected set of circumstances in which the alleged sexual offence was committed( s.293(4)(a))

Examples include;


-non consensual activity ( G (1997) 42 NSWLR 451 at 457-8, affirmed in HG (1999) 197 CLR 414 at [28] - [31, [67], [147])

-evidence of intercourse between complainant and other men may be relevant to issue of belief of consent if accused present - but not admissible in this case where accused not present. ( McGarvey (1987) 10 NSWLR 632 at 634)

-although in some circumstances conversation may constitute sexual activity, a discussion by complainant as to previous sexual encounters with other men did not qualify in circumstances of case. ( White at 259)

-evidence that the complainant had consensual sexual intercourse with her boyfriend about one hour after the alleged sexual assault was found to be sufficiently connected to events to be admissible. ( Morgan (1993) 67 A Crim R 526 at 527 and 534)

-evidence of a sexual relationship between the complainant and a crown witness showing motive for the crown witness to lie was found to be sufficiently connected to alleged offence to be admissible ( Bond NSW CCA 20.8.1996)


See also Rahme [2004] NSWCCA 233 per Sully J at [50]

S293 (4) (b)

(b). If the evidence related to a relationship between the complainant and the accused that was existing or recent at the time of the commission of the alleged offence. (s.293(4)(b))

It has been held that an emotional and /or sexual connection between parties will ordinarily be sufficient to constitute a relationship - a reasonable regular sexual liaison, with little or no emotional involvement, is sufficient. It is said to be unwise to define relationship as it depends upon the circumstances. ( Henning at 76-7)

This section permits evidence in child sexual abuse cases of uncharged sexual acts which tend to show guilty passion. ( Beserick (1993) 66 A Crim R 419 at 425-6; Fraser NSW CCA 10.8.1998) Although there is no temporal limit placed upon evidence of uncharged sexual acts time will affect admissibility of evidence. Less weight will be given to evidence of acts occurring remotely in time, or subsequent to, act charged. ( Beserick at 428-9)

Evidence that several weeks after alleged violent and degrading rape, the complainant sought out and resumed co-habitation with accused was admissible in Warner NSW CCA 7.5.1997

S293 (4) (c)

(c). Where the accused does not concede intercourse took place and the evidence is relevant to whether the presence of semen, pregnancy, disease or injury is attributable to the sexual intercourse alleged to have been had with the accused (s.293(4)(c))

Injury is not restricted to injury caused by sexual activity ( Dimian (1995) 83 A Crim R 358 at 367)

See MJG NSW CCA 4.11.1998 in relation to pregnancy

S293 (4) (d)

(d) The evidence is relevant to whether at the time of the alleged offence a disease was present in either the accused or the complainant. (s.293(4)(d)

S293(4) (e)

(e) The evidence is relevant to whether the allegation was first made following a realisation or discovery of pregnancy or disease (s.293(4)(e))

S293 (4) (f)

(f) There has been some disclosure or implication in the Crown case as to the complainant's sexual experience or history and the accused might be unfairly prejudiced if not permitted to cross-examine in relation to that disclosure. (s.293(4)(f), (6))

There must be an intentional expressed revelation or intentional suggestion. Silence of complainant does not necessarily imply lack of sexual experience. ( Tubou NSW CCA [243] 28.6.2001 at 40) but see Rahme [2004] NSWCCA 233 at [188] per James J and see Sharyn Ann Munn v Regina; Thomas Miller v Regina [2006] NSWCCA 61

It has been held that where the complainant claims she barely knew accused it may be unfair to accused if he cannot put to complainant in cross-examination that they were frequent sexual partners. ( Henning at 73)

PROVISO

These exceptions are subject to the proviso that the probative value of the evidence outweighs any distress, humiliation or embarrassment to the complainant (s.293(4)). See R v Dann NSWCCA 185, 19.5.00 for an example of where 'context' evidence was excluded pursuant to the proviso.

All provisions should be construed broadly. ( McGarvey at 634; Henning at 71; Dimian at 365; Uhrig at 11)

S 293 (8) -RECORD OF NATURE AND SCOPE OF ADMISSIBLE EVIDENCE

Where the court decides such evidence is admissible it must record the nature and scope of the evidence that is admissible, and give reasons for decision (s.293(8) An accused counsel should provide the Judge with a written record of the evidence proposed to be led under a s.293 application. This leaves a clear record as to what evidence has been rejected for the appeal court. ( McGarvey at 635; Dimian at 364 - no need to record specific questions; Uhrig at 10)

IS THERE A WAY TO DEAL WITH INJUSTICE TO THE ACCUSED CAUSED BY s293?

The courts have alluded to the fact that the exclusion of evidence pursuant to this section has the potential to cause an injustice to an accused, where it prohibits the admission of evidence showing a complainant has previously made false accusations of sexual abuse. This, however, does not give the courts the discretion to admit the evidence, or rule the trial unfair. ( Morgan (1993) 67 A Crim R 526 per Mahoney JA; M (1993) 67 A Crim R 549 at 558; Bernthaler NSW CCA 17.12.1993; Berrigan HCA Special Leave Application, 23.11.1995 per Dawson J; Grills HCA Special Leave Application, 9.9.1996 per Brennan J)

In Bamblett (Snr) NSW CCA [464] 7.11.2000, the Crown indicated the complainant had been previously sexually abused by a different person. Although the evidence was inadmissible, the Court concluded on appeal that the judge's suggestion to the jury that the sexual activities described by the complainant would be beyond the capacity of a child of that age to invent caused a miscarriage of justice in light of the undisclosable material. Further it held that the undisclosed evidence created an element of unreliability which, when combined with inconsistencies in the complainant's evidence, made the verdict unsafe and unsatisfactory.


 

(ii) WHY WOULD THE COMPLAINANT LIE ?

In sexual assault cases the issue of why a complainant might lie will usually be raised, either implicitly or directly, by the denial of the accused. The way it should be dealt with at trial will depend upon the way it is raised in evidence.

Although the following principles apply to both general and sexual assault cases, the courts have acknowledged they have particular significance to sexual assault cases. ( Gilbert NSW CCA 10.12.1998 - in cases involving oath against oath; Baker NSW CCA [277] 9.9.1999 at [21]; Fuge NSW CCA [208] 4.6.2001 at [32])

Asking the Accused in cross-examination whether the complainant is lying.

The cases have made it clear that the accused should generally not be asked in cross examination whether a complainant is lying, nor be questioned as to a possible motive for the complainant to lie. ( Palmer (1998) 193 CLR 1; Rich (1998) 102 A Crim R 165; Gilbert at 6-11; Dennis NSW CCA [23] 25.2.1999 at [9] - [22]; [45]; KCW NSW CCA [112] 12.5.1999 at [79] - [93]; Baker at [16] - [38])

Evidence elicited by cross-examination that the accused has no knowledge of any motive to lie is irrelevant and prejudicial.


* It can focus the jury on irrelevancies, especially where the case is oath verses oath. ( Palmer at [8])
* It invites the jury to accept the complainant's evidence unless a positive answer can be given by the accused, thus reversing the onus of proof. ( Palmer at [8])
* It can unfairly bolster the complainant's credibility by the absence of evidence ( Palmer at [8])
* It deflects the jury from a proper assessment of the credibility of Crown witnesses ( Rich at 170)
* It improperly confines the issues at trial to the credibility of the complainant ( KCW at [90])


An exception is where there are facts from which an inference of a motive to lie may be drawn, and those facts are within the knowledge of the accused. Lack of knowledge of those facts may be elicited to disprove the facts. (see Palmer at [7] and Covill (2000) 114 A Crim R 111)

The fact that counsel for the accused has put to a Crown witness that he or she is lying will not justify cross-examination that attempts to have accused express opinion that crown witness is lying. ( Baker at [32])

Such cross-examination, however, may not necessarily cause a mistrial:

'The question remains, however, whether in pressing for the opinions the appellant was unfairly prejudiced. ... Did the impermissible question have any real or perceptible tendency to deflect the jury from properly considering the issues in the trial, having due regard to the onus and standard of proof and in particular, fairly evaluating the evidence of, and the case made by the appellant.'( Baker) at [32])

A firm and clear direction from Judge may prevent miscarriage ( Palmer at [8])

Raising the Issue With the Complainant

This is always permitted ( Palmer at [7]) but once the evidence has been raised there are certain consequences, dealt with below.

Comment by Crown / Judge - Where No Evidence of Motive Raised in Trial

Where there is no evidence of a motive to lie it is 'imprudent and inadvisable' for Crown to ask jury the question 'Why w ould the complainant lie?'Smith NSW CCA [468] 20.11.2000; see also Uhrig NSW CCA 24.10.1996

Such a question invites jury to infer that in the absence of any evidence to the contrary there is no motive to lie and therefore the complainant is telling the truth. ( Uhrig)

Comment by Crown / Judge - Where Evidence of Motive Raised in Trial

Evidence of a possible motive to lie will usually be highly relevant to credibility of complainant. If raised by evidence at trial, a Crown is permitted to put arguments relating to the validity of the proposed motive. ( Uhrig; Palmer; GET NSW CCA 25.6.1998; Smith)

Appropriate Directions.

Where evidence as to a possible motive to lie has been raised at trial, Hunt CJ at CL has suggested 'In many cases where the evidence of a witness is vital to the Crown case it will be appropriate to direct the jury that if they reject the motive to lie proposed by the accused it does not mean a witness is necessarily telling the truth and emphasis that the Crown must still satisfy them that the witness is telling the truth.'( Uhrig at 13 )

Such a direction is not mandatory, and will depend upon the circumstances of the case. These may include the following:


* Where a clear direction has been given as to the onus of proof, a direction as to the evidence of motive to lie may not be needed ( GET; Smith; Connors NSW CCA [470] 20.11.20 00; Fuge)
* Where evidence of motive is not a central or prominent issue in the case (Smith; Fuge)
* The failure of trial counsel to request direction ( Connors)
* The manner in which the evidence is raised - if raised by the accused the direction is more likely to be appropriate than where evidence is raised by another witness, or in a half-hearted, passing manner. ( Smith)


(iii) RETRIAL AFTER A SUCCESSFUL APPEAL

The Criminal Procedure Amendment (Evidence) Act 2005 commenced operation on 12 May 2005. It establishes that, after a successful appeal against conviction for a sexual assault offence, if a new trial is ordered, the Crown may tender as evidence in the new trial, a record of the original evidence of the complainant.

The provisions extend to proceedings for a new trial ordered by an appeal court before commencement of the Act, including new trial proceedings that have commenced or are part-heard.

The provisions are set out at s.306A to s.306G of the Criminal Procedure Act 1986.

Section 306B: Admission of evidence of complainant in new trial proceedings

Despite anything to the contrary in the Evidence Act, or any other Act, a record of the original evidence of the complainant is admissible in the new trial if the prosecutor gives notice to the accused and the court of the intention to tender the record of the original evidence. The notices are to be given no less than 21 days before the new trial commences or such other period as the court may allow: s.306B(3).

The hearsay rule does not prevent the admission of a record of original evidence: s.306B(4).

The court has no discretion to decline to admit a record of original evidence: s.306B(5).

The court can give directions requiring a record of original evidence to be edited for the purpose of removing inadmissible evidence: s.306B(6).

A complainant is not compellable to give further evidence: s.306C.

However, a complainant may, with the leave of the court, give further oral evidence if he/she so chooses: s.306D(1).

The court is to give leave to the complainant to give further evidence only if the court is satisfied that it is necessary that the complainant give further oral evidence: s.306D(2):


-to clarify any matters relating to the original evidence of the complainant, or
-to canvas information or material that has become available since the original proceedings; or

-in the interests of justice.


A record of original evidence of the complainant tendered by the prosecutor must be the best available record. For the purposes of Division 3, the best available record is an audio visual recording, an audio recording if an audio visual recording is not available, or a transcript of the evidence if neither an audio visual or audio recording is available: s.306E.
If the record of original evidence proposed to be tendered in the new trial is an audio visual or audio recording, the accused and his/her counsel is not entitled to be given possession of the record or copy of it but are to be given reasonable access to it: s.306F.

For the time being its is expected that retrials will proceed by way of the tendering of transcript. Thought should be given to who should read the evidence. As counsel in the retrial of Skaf has pointed out the legislation requires that the evidence be read, not acted. In that case a female Crown prosecutor (not the Crown in the trial) read the evidence of the complainant and a female solicitor from the DPP read the responses. The solicitor sat in the witness box.

It is obviously essential to study the transcript closely to ensure that all inadmissible material is excluded.


(iv) SHOULD THE ACCUSED GIVE EVIDENCE ?

Since RPS v R 74 ALJ 449 an accused in the ordinary sexual assault trial no longer faces the risk that a Weissensteiner direction will be given.

But with the abolition of the dock statement an accused person who does not give evidence in a sexual assault case faces the real risk that the jury's verdict will reflect what they consider the unfairness of a complainant being subjected to cross examination without the accused being subject to a similar rigorous workout.

It would only be where the high point of the case for the accused is at the close of the Crown case and the accused has acquitted himself/herself well in the ERISP, that you would consider not calling the accused.

 


(v) SHOULD THE JURY BE GIVEN TAPES/TRANCRIPTS OF THE EVIDENCE TENDERED PURSUANT TO S9 OF THE CHILDREN (EVIDENCE) ACT 1997?

It is now commonplace for the evidence in chief of a child complainant to be given by way of a recording of an interview between the complainant and a police officer (and sometimes a DOCS worker) conducted at the time the allegations were first made. The question then arises should the jury be given the recording and or the transcript? S15A Children (Evidence) Act 1997 provides:

The court may order that a transcript be supplied to the court or, if there is a jury, to the jury, or both, of all or part of evidence of a previous representation to which this part applies made by a child that is given in the form of a recording if it appears to court that a transcript would be likely to aid its or the jury's comprehension of the evidence.
There is no similar provision in respect of recordings.
In R v NZ [2005] NSWCCA 278, Howie and Johnson JJ with whom Wood CJ at CL and Hunt AJA agreed, said at [184]-[210], that a discretion to withhold an exhibit from the jury room exists at common law where there is a risk that the exhibit will be given undue influence over viva voce evidence. The request by the jury for the replaying of the videotape should be dealt with by the judge in the exercise of discretion bearing in mind the need for fairness and balance in addressing the request. However, as a general rule, the preferred procedure to be followed where the evidence in chief of a witness has been given by the playing of the videotape is:


(a) The videotape evidence of a Crown witness should not become an exhibit and therefore, should not be sent with the exhibits to the jury on retirement:
(b) Any transcript given to the jury under s15A should be recovered from the jury after evidence of the witness has been completed;
(c) It is for the discretion of the trial judge how a jury request to be reminded of the evidence in chief of the witness should be addressed;
(d) It would be inappropriate for the judge to question the jury as to the purpose for which they wish to have the tape replayed:
(e) If the tape is to be replayed or the transcript of the tape provided to the jury, the judge should caution the jury about their approach to that evidence when the tape is being replayed to them or the transcript of the tape returned to them in terms to the effect that 'because they are hearing the evidence in chief of the complainant repeated a second time and well after all the other evidence, they should guard against the risk of giving it disproportionate weight simply for that reason and should bear well in mind the other evidence in the case'.
(f) The judge should consider whether the jury should be reminded of any other evidence, for example the cross-examination of the witness at the time that the tape is replayed or sent to the jury room, if that step is considered to be appropriate.

 

E. DIRECTIONS THAT SHOULD BE SOUGHT

(In proceedings commenced before 1 January 2007)


(i) HOW A DELAY IN COMPLAINT CAN AFFECT THE CREDIT OF THE COMPLAINANT

Firstly, if there is any suggestion in the trial that the complainant did not make a complaint or there was a delay between the time of the alleged events and the making of a complaint, the Trial judge must give the jury a s107 direction. s107 (2) provides that the Judge shall:


a) give a warning to the jury to the effect that absence of complaint or delay in complaining does not necessarily indicate that the allegation that the offence was committed is false; and
b) inform the jury that there may be good reasons why a victim of a sexual assault may hesitate in making, or may refrain from making a compliant about the assault.

If such a direction is given it will normally be appropriate for the judge to draw the attention of the jury to the balancing consideration identified by the High Court in Crofts (1996) 186 CLR 427 at 451. The court there said;
'...the purpose of such legislation, properly understood, was to reform the balance of jury instruction not to remove the balance. The purpose was not to convert complainants in sexual misconduct cases into an especially trustworthy class of witnesses. It was simply to correct what had previously been standard practice by which, based on supposed 'human experience' and the 'experience of courts', judges were required to instruct juries that complainants of sexual misconduct were specially suspect, those complained against specially vulnerable and delay in complaining invariably critical. In restoring the balance, the intention of the legislature was not to 'sterilise' complainants from critical comment where the particular facts of the case and the justice of the circumstances, suggested that the judge should put such comments before the jury for their consideration. The overriding duty of the trial judge remains to ensure that the accused secures a fair trial.
And at 448;
Delay in complaining may not necessarily indicate that an allegation is false. But in the particular circumstances of a case, the delay may be so long, so inexplicable, or so unexplained, that the jury could properly take it into account in concluding that, in the particular case, the allegation is false.'
A trial judge, if giving a s107 direction, must not speculate as to what the reasons for delay may have been, although he or she can take the jury to any evidence as to what those reasons for delay were. R v Williams, unrep, CCA,22 February 1999

 

(ii). HOW A DELAY IN COMPLAINT CAN AFFECT THE CONDUCT OF THE DEFENCE

Frequently charges are brought many years after the alleged assault because the complainant does not complain at the time. In such cases it is understandable that an accused is likely to suffer prejudice.

In any criminal trial where there has been a substantial delay in a complaint being made of an alleged sexual offence the Court must give a warning (called a Longman warning, (1989) 168 CLR 79 at 91) as to the effect of the delay on the ability of the accused to challenge the evidence of the complainant. The trial judge does not have a discretion not to give the warning or to water it down according to the circumstances of the case: BWT, unrep, CCA 12.4.02, and SJB, unrep, CCA 31.5.02.

A Longman warning warns the jury that, as the evidence of the complainant could not be adequately tested after the passage of [the particular period relevant to the particular trial] it would be dangerous to convict on that evidence alone unless the jury, scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. See Crampton, (2000) 75 ALJR 133, Markuleski, unrep, CCA 1.8.01, BWT.

The direction must be delivered in the form of a warning. A caution or comment is insufficient. It must also have the stamp of the court's authority. BWT [95].

The warning must include the following elements:


 the passage of time means the complainant's evidence cannot be adequately tested
 it would therefore be dangerous to convict on that evidence alone
 the jury is nevertheless entitled to act on that evidence alone if satisfied of its truth
 the jury must first scrutinise the evidence with great care
 the jury must take careful account of any particular elements of the case
 the jury must keep in mind the warning at all times

It is not clear what constitutes a substantial delay. It would therefore be prudent to request that judges give the warning unless the delay is so small that a reasonable mind would consider it trifling and the risk of forensic disadvantage would be seen by any reasonable mind to be far fetched or fanciful. BWT [95]
The presence of corroborating evidence does not obviate the need for the warning. Doggett v The Queen (2001) 75 ALJR 1290, Roberts, unrep, CCA 5.10.01, BWT (supra).

For other cases dealing with delay see Kesisyan [2003] NSWCCA 259, Percival [2003] NSWCCA 409, Mills [2003] NSW CCA 145, LTP, [2004] NSWCCA 109, MM [2004] NSWCCA 81, DBG [2004] NSWCCA 328

See also Dina Yehia's November 2006 paper 'Recent Developments in Sexual Assault Law' which is on the Public Defenders Website, for a more detailed consideration of the cases in this area.


PROCEEDINGS COMMENCED ON OR AFTER 1 JANUARY 2007

Amendments to the Criminal Procedure Act, which circumscribe the circumstances in which a Crofts (1996) 186 CLR 427 and a Longman (1989) 168 CLR 79 direction are required, came into force on 1 January 2007. They relate to proceedings which commenced on or after 1 January 2007.

The relevant passages of the Second Reading Speech for these amendments is as follows:

Crofts
In Crofts v The Queen (1996) 186 CLR 427 the High Court has stated that if a warning is given in accordance with section 294, then the jury should also be informed that the delay, or absence of complaint may be taken into account in evaluating the complainant's evidence, and determining whether to believe him or her. Item [6] of the bill therefore extends section 294 to ensure that a judge does not also warn the jury that such a delay or absence of complaint is relevant to the victim's credibility, unless there is sufficient evidence to justify such a warning.

Longman

It must be acknowledged that in some cases a delay in complaint may prejudice an accused person by denying the accused the ability to marshal witnesses who may have died or may no longer be able to be located. Prejudice may also be occasioned due to a loss of evidence, for example, the destruction of school records, medical records, employment records or photographs which may have otherwise been able to cast doubt on the evidence of the complainant. These issues may not necessarily be apparent to the jury, which is not entitled to speculate on evidence that is not before it. Other Australian States have also identified problems with the Longman direction and suggested a number of options for reform. Most importantly, the Australian Law Reform Commission [ALRC] has also examined this issue and recommends that the uniform Evidence Act be amended.

Accordingly, item [7] of schedule 1 further amends section 294 to provide that where the delay is significant and the accused can show he or she suffered a significant forensic disadvantage as a result of the delay, the judge may warn the jury of the nature of the disadvantage and the need for caution in determining whether to accept or give any weight to the relevant evidence, but only where a party requests the warning. The amendment is designed to ensure in the first instance that a Longman warning should not be given unless it is established factually that there has been a significant delay. The word 'significant' has been purposely used to ensure that the warning is given in cases where the delay is warranted, and conversely not given where the delay is not significant.'

A new provision, s294AA, was also enacted. It attempts to prevent a Judge giving a Murray direction (1987) 11 NSWLR 12. The relevant portion of the 2nd reading speech is as follows:
The direction in Murray provides that where there is only one witness asserting the commission of the offence, the evidence of the witness is to be scrutinised with great care. The typical sexual assault offence takes place in private without any other witnesses. The members of the [Criminal Justice Sexual Offences] Taskforce agreed that the direction was unnecessary, as existing directions as to reasonable doubt were sufficient to protect the accused. Item [8] of the schedule therefore adds a new section s294AA which prohibits a judge from stating or suggesting to a jury that complainants in sexual offence proceedings are unreliable witnesses as a class, mirroring s165A of the Evidence Act which relates to children. The new section also prohibits the judge from warning the jury of the danger of convicting on the uncorroborated evidence of the complainant.
S294 and s294AA are set out below. The changes to s294 are in italics.
'S294 Warning to be given by Judge in relation to lack of complaint in certain sexual offence proceedings

(1) This section applies if, on the trial of a person for a prescribed sexual offence, evidence is given or a question is asked of a witness that tends to suggest:

(a) an absence of complaint in respect of the commission of the alleged offence by the person on whom the offence is alleged to have been committed, or
(b) delay by that person in making any such complaint.

(2) In circumstances to which this section applies, the Judge:

(a) must warn the jury that absence of complaint or delay in complaining does not necessarily indicate that the allegation that the offence was committed is false, and
(b) must inform the jury that there may be good reasons why a victim of a sexual assault may hesitate in making, or may refrain from making, a complaint about the assault, and

(c) must not warn the jury that delay in complaining is relevant to the victim's credibility unless there is sufficient evidence to justify such a warning.

(3) However, if:

(a) the delay in making a complaint by the person on whom the offence is alleged to have been committed is significant, and
(b) the Judge is satisfied that the person on trial for the offence has suffered a significant forensic disadvantage caused by that delay, and [sic]

the Judge may inform the jury (but only if a party to the proceedings so requests) of the nature of the disadvantage and of the need for caution in determining whether to accept, or give any weight to, the evidence or question referred to in subsection (1).
(4) For the purposes of subsection (3)(b), the factors that may be regarded as establishing a 'significant forensic disadvantage' include, but are not limited to, the following:

(a) the fact that any potential witnesses have died or are not able to be located,
(b) the fact that any potential evidence has been lost or is otherwise unavailable.

(5) The mere passage of time is not in itself to be regarded as establishing a significant forensic disadvantage.'

S294AA Warning to be given by Judge in relation to complainants' evidence

(1) A judge in any proceedings to which this Division applies must not warn a jury, or make any suggestion to a jury, that complainants as a class are unreliable witnesses.
(2) Without limiting subsection (1), that subsection prohibits a warning to a jury of the danger of convicting on the uncorroborated evidence of any complainant.

(3) Sections 164 and 165 of the Evidence Act 1995 are subject to this section.'

 (iii) s164
Whilst s164 of the Evidence Act provides that it is not necessary for the judge to warn the jury that it is dangerous to act on uncorroborated evidence or to give a warning to the same or similar effect, a direction based on what was said by Lee J in R v Murray (1987) 11 NSWLR 12 at 19 should be sought in proceedings commenced before 1 January 2007 when a conviction requires the acceptance of the complainant's evidence; R v V, unrep, CCA, 16 April 1998, R v Burt [2003 NSWCCA 248, Li [2003] NSWCCA 386). In R v Murray, Lee J said;

In all cases of serious crime it is customary for judges to stress that where there is one witness asserting the commission of the crime, the evidence of that witness must be scrutinised with great care before a conclusion is arrived at that a verdict of guilty should be brought in, but a direction of that kind does not of itself imply that the witness's evidence is unreliable.
The trial judge's powers and obligations to give appropriate warnings and directions remain, AGJ, unrep, CCA 20.10.97 and is 'necessary to avoid the perceptible risk of miscarriage of justice arising from the circumstances of the case' Longman at 86.
Prior to the introduction of the Evidence Act (NSW) 1995, whether or not evidence amounted to corroboration was the subject of debate. Although the term corroboration is not used in the Evidence Act, it is still useful to refer to the cases about 'corroboration' because there is often a need to determine whether evidence is supportive of the complainant's version.

Evidence which may be supportive of the complainant's account (what used to be 'corroboration').

The following evidence was held to amount to corroboration:

  • distress may amount to corroboration, but a cautious approach is necessary. Talbot, unrep, CA 28.3.79, Wright, unrep, CCA 18.12.94, Ryan, unrep, CCA 15.4.94, Berrigan, unrep, CCA 7.10.94 at 21-23,. The jury should be warned that except in special circumstances little weight ought to be given to such evidence, Knight, [1966] 1 WLR 230 at 233, Wright.
  • injury may amount to corroboration but it may on the evidence be susceptible of more than one explanation Kelleher v The Queen, (1971) 131 CLR 534 at 555, Coles, unrep, CCA, 16.9.93, Gallagher, (1986) 41 SASR 73, Thorne v Regina [2007] NSWCCA 10

 

(iv) CONTEXT/TENDENCY
The trial judge must give clear directions as to the purpose to which this evidence has been led, and give directions as to the use the jury can make of the evidence.

If the evidence of other acts is admitted solely as context evidence, the jury must be specifically directed that such evidence is confined to making the circumstances of the specific offences charged more intelligible, or, in other words, giving context to the charges: Qualtieri [2006] NSWCCA 95 at [80]; and such evidence cannot be used by the jury as establishing the accused's tendency to commit offences of the type charged and, therefore cannot be used as an element in the chain of proof of the offences charged. Such a process of reasoning would be quite wrong (the propensity warning).

If the evidence is admitted for tendency purposes, directions must be given to the following effect;


For a specific act of sexual misconduct to qualify as tendency evidence, the jury must be satisfied that it has been proved beyond reasonable doubt: Gipp v The Queen (1998) 194 CLR 106 at 132.

If so satisfied of a specific act, the jury should be directed that they may use that as tendency evidence, that is, evidence establishing a tendency of the accused to commit offences of the type charged against the complainant, thus making it more likely that the offences charged were in fact committed.
The judge must clearly distinguish, for the jury's benefit, between the alleged tendency evidence in question and evidence admitted solely as context evidence.

If evidence admitted for reasons, other than proof of tendency, in fact reveals a criminal or reprehensible tendency on the part of the accused, the jury must be carefully directed that they can use the evidence only for the purpose admitted and not as reliance upon tendency.


In relation to both context and tendency cases the jury should be warned that they cannot use evidence of other acts in substitution for proof of the acts charged and that they must not reason that merely because the accused committed one or more of the other acts, the accused committed the acts charged.

(v) WARNINGS S. 165

This section provides a number of categories of potentially "unreliable" evidence in respect of which a warning must be given if a party requests it, unless the judge is satisfied that there are good reasons for not doing so.

There is not a specific category that relates to the evidence of complainants in sexual assault trials but the Court of Criminal Appeal has considered the necessity for such a warning in a variety of situations and has accepted that there are cases in which a warning should have been given. Some of those cases are set out below:


-Complaint evidence (hearsay)-s165(1)(a): TJF, [2001] NSW CCA 127, there a warning was required due to delay in complaint and inconsistent versions. The Court said that the warning should extend to different versions of the complaint, In Mayberry [2000] NSW CCA 531, a warning was required due to inconsistencies of complaint.
-Age ie child complainants -s165(1)(b): In AGJ, unrep, CCA, 30.10.97 the court said there was no need to give a direction simply because of the young age of the complainant. In PKS, unrep, CCA 1.10.98, where the child was only 5-6 at the time of the assaults and still young at trial, a warning was required. But now see s165B Evidence Act which provides that a warning can only be given if the party has satisfied the court that there are circumstances particular to the relevant child that affect the reliability of the child's evidence and that warrant the giving of a warning or the information.

-Physical or mental ill health: Monks, unrep, CCA 5.8.97 where it was said that no warning was required where the complainant had cerebral palsy.

-See also: Lane, (1996) 66 FCR 144, Vawdrey (1998) 100 ACrimR 488 where there was a suggestion of fabrication and the complainant was made against the background of a family dispute/animosity, Greenham, unrep, CCA, 8.3.99, Kennedy, unrep, CCA, 9.12.98, where the complaint was lacking in detail preventing the defence from proper preparation of the defence case,


Query whether the Court would decide these cases in the same way if Howie J's view of the law as set out in Stewart 52 NSWLR 301, becomes widely accepted.
In Stewart he said at [99]:

"In my opinion, matters which would not generally attract a warning under s 165 include: prior inconsistent statements made by a witness; inconsistencies within the evidence of a witness; inconsistencies between the evidence of a witness and other evidence in the trial; an allegation of bias made against a witness; or the fact that it has been suggested that the witness had a motive to lie. Evidence which is tainted by any of these types of matters is not for that reason alone 'evidence of a kind that may be unreliable.' However, as I will indicate later, these types of matters might be made the subject of comments by a trial judge, and, in the case of a crucial Crown witness, a summing up may be defective if no reference is made by the trial judge to such matters when reviewing the case against the accused."
Recently in RELC v REGINA [2006] NSWCCA 383, in a situation where a s165 warning had been given about the evidence of one young girl but not about the evidence of the young complainant, McClellan CJ at CL referred to Stewart and said at [79]:
'In Stewart this Court was divided as to whether s 165 should be understood having regard to the common law origins of warnings or seen as a "fresh start". It is not necessary to enter upon that debate to resolve this appeal. However, it is plain that when a judge gives a warning it will commonly be seen by the jury to be of importance with a potential to significantly influence the jury when it is considering whether or not to accept that witness's evidence. This must have been the case in the present matter.
80 For this reason although the justification for a warning is not exhaustively provided by s 165(1), to my mind, careful reflection is necessary before accepting that evidence which falls outside any of the categories identified in the section should be the subject of a warning. Furthermore, if in a particular case the evidence of a witness is the subject of a warning, care should be exercised to ensure that evidence of another witness, whose evidence may be thought to have similar characteristics justifying a warning, is also made the subject of a similar warning. This is particularly the case if the witnesses are perceived to be separately favourable to the Crown or the defence. Unless this course is taken the potential for a warning to influence the jury is so great that the trial may become unfair.

81 The warning which the trial judge gave in relation to LC raised a number of matters for the jury's consideration. The reference to her age implied, in my view, that being aged only eight the jury should for that reason alone consider whether her evidence may be unreliable. However, the direction went significantly further and carried with it warnings because:


 She was giving evidence against her father (this should I believe have referred to "for her father");
 She had given inconsistent accounts of the events;

 She told the police that she had lied to them;

 She had given untrue answers in cross-examination after the Crown had been allowed to attack her evidence.


82 Leaving aside the matter of her age, each of the other matters referred to by the trial judge required careful consideration by the jury. Any one of them, or a combination of them, may have caused the jury to reject her evidence, at least where it was favourable to her father. However, there was nothing about any of the matters which brought them within the kind or type of evidence which may be unreliable as contemplated in s 165. The jury may have concluded that her evidence was unreliable, but, they should have been left to form that judgment for themselves, without the burden of a warning from the trial judge.
83 To my mind the warning which the trial judge gave in the present case with respect to LC's evidence was not justified by s 165 and, either alone, or, together with the failure to give a warning in relation to the evidence of the complainant has occasioned a serious injustice. Although LC and the complainant were relatively young there was nothing in their evidence which, by reason of their age, justified a warning to the jury. If a warning was justified, a warning was required in relation to the evidence of both children because they were of similar ages. However, I am satisfied that a warning was not required and the case should have been left to the jury without a warning in relation to either child's evidence.

84 Any chance which the appellant had of an acquittal was significantly influenced by the approach which the jury took to his daughter's evidence. If it was rejected, the likelihood of the jury accepting the complainant's evidence was overwhelming. In these circumstances I am satisfied that the appellant lost the chance of an acquittal and a new trial should be ordered.

 
(vi) DIRECTION TO THE JURY ABOUT EFFECT OF REJECTING COMPLAINANT'S EVIDENCE ON ONE OR MORE COUNTS
This has been considered by the 5 judge bench in Markuleski, unrep, CCA, 1.8.01.

The suggestion in RAT [2000] 111 ACrimR 360 that a judge should direct the jury that if they find the accused not guilty in relation to one count they must acquit on the other counts is overruled.

In cases where there is more than one count, and the Crown relies upon the uncorroborated evidence of the complainant it is desirable that the traditional directions as to treating each count separately is supplemented some reference ought to be made to the effect upon the assessment of the credibility of a complainant if the jury finds itself unable to accept the complainant's evidence with respect to any count. Markuleski at 186 referring to Robinson'(2000) 111A Crim R 388.,

The precise wording of such a direction will depend upon the circumstances of the case. 'the crucial matter is to indicate to the jury that any doubt they may form with respect to one aspect of the complainant's evidence, ought to be considered by them when assessing the overall credibility of the complainant and, therefore when deciding whether or not there was a reasonable doubt about the complainant's evidence with respect to others'. (191)

The direction should be given as a general rule, although its absence will not necessarily be fatal (per Spigelman CJ). Wood CL at CJ and Grove J expressed opinions that the direction should not be considered mandatory and depended upon the circumstances of the case.

 

 (vii). CHARACTER

It is now possible to raise good character in a particular respect. (s110(3) Evidence Act). See PKS, unrep, CCA, 1 October 1998.

 

(viii). WHERE A CHILD CANNOT BE EFFECTIVELY CROSS-EXAMINED

It can happen that by the time a matter comes to trial a child has forgotten much of what they had alleged occurred. In the past this often led to verdicts by direction or resulted in the matter being no billed. Nowadays, since the implementation of s.9 of the Children (Evidence) Act 1997, the child's evidence in chief is a recorded interview conducted months if not years previously and so that problem does not exist, at least for the Crown. But it can be extremely problematic for an accused. How do you cross examine a young child who has no real memory of the events about which he/she was interviewed about months or years before?

It is important to have a judge explain to the jury the problems that this creates for an accused.

Dina Yehia, in her November 2006 paper entitled Recent Developments in Sexual Assault law, suggests that in a situation where you suspect that the young complainant might not have a memory of the alleged events, you might argue, pursuant to s15 Childrens (Evidence) Act, that it is not in the interests of justice for the child's evidence to be given by way of recording. A voir dire might be required.

 

F. APPEAL

(i). UNREASONABLE VERDICTS

This situation emerges where there has been multiple counts of sexual offences on an indictment and the jury has acquitted accused of some and convicted of others. This becomes problematic where there is no corroborating evidence - it is the word of the complainant against the word of the accused on all counts.

In recent cases there had emerged the view that where the jury has acquitted on some counts and convicted on others, the result is unreasonable unless the Crown could point to some feature of the complainant's evidence that could explain such a distinction. (RAT [2000] 111 A Crim R 360.)

This has been addressed by a 5 judge bench in Markuleski NSW CCA [290] 1.8.2001 as follows:

The general test for unreasonable verdict is found in M v The Queen (1994) 181 CLR 487 at 494-5:

In most cases a doubt experienced by an appellant court would be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a reasonable doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contained discrepancies, displayed inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantage enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based on that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must be always whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
In Jones v the Queen (1997) 191 CLR 439, the High Court dealt with the issue of unreasonable verdicts on the grounds of inconsistency (ie multiple counts where jury convicted on some counts and acquitted on others). The cases that suggest that Jones establishes a presumption that in any case where the case consists of the uncorroborated evidence of the complainant a mixture of acquittals and convictions cannot stand unless there can be identified a relevant difference in the quality of the complainant's evidence in relation to each of the counts are wrong.
The finding of inconsistent verdicts in Jones was based upon a combination of the effect of the acquittals on the credibility of the complainant, the absence of corroboration and an absence of warning in relation to the long, unexplained delay.

Each case must be considered on its facts and all the surrounding circumstances.

Ultimately the question remains one of fact and degree as to whether the difference in verdicts is such that, as a matter of logic and reasonableness, bringing into account all of the factors which I have mentioned, including the practical approach which juries are entitled to bring to their task, the conviction should be regarded as unreasonable or incapable of being supported upon the evidence. (per Wood CJ at CL at para 238)
Where, as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness'. (MacKenzie v The Queen (1990) 190 CLR 348 at 366 quoted by Spigelman CJ at para 6).