Did the trial judge fall into error?
47 In my opinion, the trial judge fell into error in the present case. The evidence sought to be led from the accused, as I have said, should have been precisely put to the complainant, to Kamal and the other family members present in the bedroom. It was clearly important evidence. It was clearly capable, if accepted, of undermining in an important respect, the credibility of the complainant, Kamal and Angelina. It went to the core of the nature of the complaint made by the complainant to the brother's girlfriend. Equally, if accepted, it was powerfully capable of supporting the appellant's credibility in relation to the defence case. His principal assertion before the jury was that there had been no act of penetration. If the complainant's statements to Angelina and her brother did not suggest that penetration had taken place, but were concerned with acts of lesser intimacy, that would have been a powerful matter for the jury to take into account in assessing whether the appellant was guilty of the charge.
48 The importance of the evidence required that it be permitted, not excluded, provided that a satisfactory technique could be fashioned, in the circumstances, to prevent unfairness to both sides.
49 The general structure of the Evidence Act (NSW) is clear. Evidence that is relevant in a criminal proceeding is, except as otherwise provided by the Act, admissible in the proceeding (Section 56(1)). Equally, evidence that is not relevant in the proceedings is not admissible. The test of relevance is plainly stated in s 55(1). Evidence is not taken to be irrelevant because it relates only to the credibility of a witness. Where evidence is admissible (and not excluded by any other provision of the Act) it should be admitted unless the court decides, in the exercise of its discretion under s 135, it ought not to be admitted, or where the court is bound to exclude it under s 137 of the Act. There are, of course, other exclusionary and discretionary provisions bearing on the issue as to whether evidence should be admitted in a criminal trial but they are not relevant to this discussion.
50 It is, I trust, not an unfair reading of the argument that took place before the trial judge, and her brief reasons for her decision, to state that the view was taken that a breach of the rules in Browne v Dunn required, as a matter of admissibility, the exclusion of the evidence. That, in any event, is the way in which I read the argument and her Honour's remarks.
51 In fairness to the trial judge, it must be stated that nobody appears to have flagged the possibility that the witnesses could have been recalled. There was a general power to do so, and in addition, there was a specific power under s 46 of the Evidence Act. The latter section appears to be designed to bring about a consequence that non-compliance with the rule in Browne v Dunn will not result in the exclusion of the evidence (Australian Law Reform Commission, Evidence, Report No 38 (1986) Ch 7, item 115 (h)). It has been noted that one "curious" aspect of s 46 is that it places the burden of rectifying a breach of the Browne v Dunn duty on the innocent party, not upon the party in breach. (Cross on Evidence (8th ed, 2010 [17460] fn 647). Be that as it may, when the problem arose in the present trial, as I have said, neither the Crown nor defence counsel made any application for the recall of witnesses. They should have done so. It appears to have been accepted, however, by all concerned that there was no option beyond that of exclusion of the evidence.
52 Had the general range of options available in the situation that developed been entertained, consideration could have then been given to the question as to whether leave should have been granted to recall, either under s 46 of the Evidence Act or under the court's general power. If s 46 had been relied on for that purpose, this in turn would have required the court to consider the various matters listed in s 192 of the Evidence Act, together with any other matter that the court regarded as appropriate. Relevant considerations would have necessarily included any practical problems in securing the re-attendance of the witnesses, the importance of the evidence and any issue of unfairness to the Crown. The trial judge would have also been required to consider the issue as to whether any directions should be given to the jury, if leave were granted. In the present matter, her Honour had in fact perceived that the evidence was "significant" and, in that regard, her reasoning was plainly correct. In addition, quite about from the matters that might be considered on a leave to recall application, the evidence sought to be adduced by the appellant, if otherwise admissible, had to pass through the discretionary filter of s 135 of the Evidence Act. Prejudice and unfairness could also be examined in that context.
53 It must be said, however, that none of these matters were considered simply because the court, no doubt influenced by the parties reticence on the point, did not consider that any option other than exclusion was available. The parties argued the matter as if the rule in Browne v Dunn was an exclusionary rule of evidence and the ruling was essentially made on that basis. The rule is not a preclusive rule of evidence. Its breach does not necessarily dictate that evidence may not be called in contradiction. (Scalize v Bezzina [2003] NSWCA 362). A rule that is grounded in fairness should not be used, except as a last resort, to exclude evidence going to the question whether a person is guilty or not guilty of a criminal charge. That would be to respond to procedural unfairness by imposing substantive unfairness. It is, of course, recognised in this State that a power to exclude the evidence exists but, in my opinion, in a criminal trial, concerning evidence that an accused seeks to adduce, it is a power that should, generally speaking, be used sparingly, and only in circumstances where no other option is available.
54 The Crown's essential submission on the appeal was that, if the Court should find that her Honour erred in her application of the rule in Browne v Dunn, it had not been demonstrated that the result was detrimental to the appellant's case, or that a miscarriage of justice was occasioned by the exclusion of the evidence. I accept, as the Crown submitted, that her Honour made no reference to the credibility of the appellant in her remarks to the jury at the time the evidence was excluded and the comment she did make, of itself, would not have warranted a finding that a miscarriage of justice had been occasioned.
55 I do not agree, however, that, in the circumstances of the case, recalling the witnesses would not have assisted the case for the appellant. The complainant had said in her evidence-in-chief that she had told Angelina, in the bedroom, the appellant had been trying to kiss her and "like he put his penis like in my vagina". In her evidence, Angelina was equivocal about the terms of complaint. Her evidence was that the complainant had said to her that "she fell asleep and then after…Omer was on top of her and she started feeling something that was hurting her and when she woke up she found like Omer on top of her, naked, and he said 'Oh nothing's happened'". She later alleged that she told Kamal that Omer had been "sleeping with" his sister…"in other words like raping your sister". Kamal in his evidence stated that Angelina spoke to him: -
"She told me that as along you say that he is something like a relative or a friend, why he goes inside your sister's room to have sex with her. To attack her…".
56 He then said he spoke to his sister and she told him: -
"Omer was naked and he pulled her panties down and she felt something getting in".
57 The Crown argued that all this was not just "word against word". There was corroboration of the complaint's evidence.
58 It will be seen however, from the foregoing that it was highly significant in the trial to assess the credibility of the complainant and the details of what she had told Angelina and the information then provided by Angelina to Kamal. The evidence sought to be led on the appellant's behalf demonstrated on one view of it, that the slapping of the complainant by her brother, and his threats and statements to her, seriously put in issue the version of the complaint given by Angelina in her evidence and hence the accuracy of the report to Kamal. It had the capacity to undermine the complainant and the other members of the family.
59 Against the background of the cultural overtones in the trial, together with the negotiations for marriage and the talk of a financial settlement, the conversation alleged by the appellant might well have been seen by the jury as an important part of the events of the day in question. In my opinion, it was critically important in the trial for the jury to hear the evidence that was excluded. Equally, it would have been important for the jury to hear what the complainant and the other witnesses had to say about his assertion. Presumably, they would have denied, it but the matter had not been put to them and the entire topic was, by virtue of her Honour's ruling, simply shelved. The appellant's case had focused on his denial that there had been penetration. He admitted that his conduct was "wrong" but that may well have been simply an admission that he had breached a cultural protocol, as the mother was later to suggest in her evidence. He had not consulted the family before raising the question of marriage, and his presence in the bedroom, even with a minor degree of consensual intimacy, may well have been perceived as culturally inappropriate and wrong.
60 At least on the complainant's evidence, there was no doubt that she had been slapped by her brother. The jury, in the end, were not able to take into account the accused's evidence as to the full circumstances of the slapping. In my view, that deprived the appellant of a substantial part of the case he was seeking to advance. It led to a clear miscarriage of justice.
61 The Crown further submitted on appeal that the appellant's credibility had been rather severely damaged by the answers he gave during his ERISP interview. It is true that, when questioned by the police, the appellant gave a story that differed quite substantially from the evidence he gave at trial. He said that he and the complainant were just "hugging and kissing" and that he left the bedroom shortly thereafter. The ERISP interview did provide a real difficulty for the appellant at trial, although he attempted to explain before the jury that he omitted details of the events in the bedroom because "it was a shame like to talk about her…I thought like no need to talk about these embarrassing things". He also explained that there had been no interpreter available when he spoke to the police. He suggested he had been badly treated by the police. I agree with the Crown's submission, however, that a full reading of the cross-examination of the appellant on the subject scarcely assisted his credibility. However, I consider that the shaky state of his credibility, arising from the ERISP, really demanded that the particular evidence in issue in this appeal, critical as it was to the credibility of all the principal witnesses, should have been allowed to remain before the jury, provided that the relevant witnesses were able to be recalled. There was ample scope within ss 135 and 192 of the Evidence Act to allow for any possible unfairness if that situation were to arise for any reason relied upon by the Crown.
62 In my view, there should be a new trial. I propose the following orders: -