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[1995] SASC 5335
Supreme Court of SA
1995-12-13
Doyle CJ
Original judgment source is linked above.
COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL DOYLE CJ(1), OLSSON(2) AND WILLIAMS(3) JJ
CWDS Criminal law - evidence - evidentiary matters relating to witnesses and accused persons - Admissibility
Criminal law - evidence - evidentiary matters relating to witnesses and accused persons - Admissibility - previous statements of witness - whether admissible to establish context of parts which counsel cross-examined the witness on. Alchin v Commissioner for Railways [1935] NSWStRp 23; (1935) 35 SR (NSW) 498, applied.
Criminal law - evidence - evidentiary matters relating to witnesses and accused persons - Previous consistent statements
HRNG ADELAIDE, 16 October 1995 #DATE 13:12:1995 #ADD 15:1:1996
Solicitors for appellant: David Stokes and Associates
JUDGE1 DOYLE CJ The appellant in this case, Mr Gordon Ewen Fraser, was charged with one count of indecent assault and one of false imprisonment. The two counts arose out of the same matter, namely, an incident on 4 July 1993 in which the appellant was said to have dragged the complainant, Ms Jodie Hillier, into his house, and detained her there for a time while indecently assaulting her.
THE MATTER AT FIRST INSTANCE 3. In relation to conviction, it is said, first, that the verdict of the trial judge was unsafe and unsatisfactory. Secondly, it is said that the trial judge erred in admitting previous statements and notes made by the complainant, or in relying on them in the manner in which he did. I will deal with the second matter first.
It is necessary first to outline the testimony of the complainant.
The complainant testified at trial that the appellant had taken her into his house forcibly by way of the back door. He had then locked the door. She had initially fallen into a seat in the sun-room of the house, and the appellant had then unbuttoned her top, put his hands up under her shirt, and tried to take her bra off. He had touched her on the breasts, and kissed her on the neck. She had tried to push him away, and had stated that she needed to go. He had put a cigarette in her mouth. She had begun to cry.
The complainant testified as to further events in the lounge room near the front of the house, where the appellant had pushed her on the sofa. He had tried to pull down her tights with his hands and teeth. She had managed to get up, had kicked the appellant, and then fled the house. The appellant followed her for a distance in his van, asking her to come back.
The complainant contacted friends from home, in an upset state. They arrived and took her to the police station. The trial judge found (and it was conceded by counsel on the appeal, correctly) that the circumstances surrounding the arrival of the friends and the complainant's statements to them amounted to a prompt and spontaneous complaint. The trial judge considered that this statement could be used to show the consistency of her conduct with her story in the witness box; he concluded that the credibility of the complainant was "enhanced" by the statements.
However, the trial judge also relied upon various other prior consistent statements in assessing the credibility of the witness. This is the subject of the second ground of appeal.
On the night of 4 July, the complainant made an entry in her diary, which described the incident in brief form. Later on, she made two handwritten statements in longer form. The first was described as "the messy one", and the second, which was substantially only a neater version of the first, was described as "the neat one". Some notes were made by a solicitor, Ms Rusalen, in the course of proofing the complainant ("the proofing notes"); there was also a statement made to the police by the complainant.
There were a number of inconsistencies between these statements and the testimony that the complainant gave at trial. In the course of cross-examination, defence counsel put sections of the neat statement and of the police statement to the complainant as previous inconsistent statements. The complainant was also asked about what she had said to Ms Rusalen.
In re-examination, counsel for the prosecution tendered the neat statement and the messy statement. These were admitted as P2 and P3 respectively. The admission was subject to a "formal" objection by defence counsel, "... appreciating what your Honour is likely to rule, that I have cross-examined on it ..." (Transcript at p85).
Defence counsel also argued that, as these statements essentially arose from the complainant's diary note, he should be allowed to further cross-examine the complainant in the light of that diary note, or alternatively that page of the diary should be tendered. It was agreed that the relevant page and a half of the diary should be tendered, and this became exhibit P4.
The police statement was then tendered by prosecution counsel. Defence counsel objected to the admission of this document, unless the proofing notes were also admitted. In the result, the police statement was admitted as exhibit P5, and defence counsel, after argument, did not pursue the tender of the proofing notes. Defence counsel stated that, "given that pretty well all or most of the materials are in the transcript and are not unacknowledged", he would withdraw the application to tender those notes.
In his reasons for judgment, the trial judge relied upon P2, P3, P4 and P5 when assessing the credit of the complainant. His Honour stated that the defence had suggested that the complainant had fabricated a false account of events, and that the exhibits were admissible under an exception to the rule against prior consistent statements, because the exhibits tended to rebut a suggestion that the witness' account was a late invention or reconstruction. His Honour then found that the exhibits, and indeed the proofing notes, "... do, in fact, bolster the credit of Jodie Hillier and restore her credit, which otherwise might have been seen as tarnished."
WHETHER THE STATEMENTS WERE ADMISSIBLE TO REBUT RECENT INVENTION 15. On appeal, it was properly conceded by counsel for the Director of Public Prosecutions that His Honour was mistaken in applying the doctrine of recent invention to this case.
If it is alleged that the witness fabricated a story just after the incident in question, it will be that much more difficult to produce to the Court a previous consistent statement which rebuts the suggestion. If it is merely suggested that the witness is fabricating testimony, then there will be no point in proving an earlier statement to the same effect. This does not go to answer the allegation, and has no more legal relevance than any other previous consistent statement; the witness might have fabricated the earlier statement too. If however it is suggested that the witness recently (or after a certain stage) fabricated the story (possibly for a suggested motive) then an earlier statement will possess some probative effect. It was this matter of the probative force of a previous statement that constituted the difference of opinion between Cox J and Lander J in Barry's Case.
SUBMISSIONS ON APPEAL 25. Counsel for the DPP argued that the admission and use of the exhibits did not lead the trial judge into error, even if he was mistaken about the ambit of the recent invention doctrine.
WHETHER THE STATEMENTS WERE ADMISSIBLE TO ESTABLISH CONTEXT 30. It seems to me that the appellant cannot complain of the admission of P4, the diary page, which was tendered it seems by agreement. However, the question remains as to the use which the trial judge was entitled to make of that exhibit once it was admitted.
inconsistent statement, the purpose of discrediting him by the inconsistency had (sic) been achieved, and the statement cannot be further proved in evidence unless it is otherwise admissible ... If cross-examining counsel suggests by his questions that the witness had made an earlier statement inconsistent with his present testimony, but does not proceed to tender the statement, the judge may require the statement to be put in evidence: Reg. v Jack (15 NSWLR 196), and may allow counsel who has called the witness to put the statement in. But if the cross-examination is as to parts
only of the statement, only that part and such other parts as are so connected with that part as to be necessary to explain it, may be put in: Meredith v Innes (31 SR 104). And the mere fact that counsel has cross-examined a witness as to a previous written statement does not necessarily involve his having to tender the statement in evidence: Walton v Deaton (31 SR 393). In the present case, the witness MacDonald did not fail to admit having made any of the statements put to him; and there was no ground for putting his statement in evidence at all. "
Again, given that the complainant distinctly admitted the making of this statement, and the parts of it which were put to her in a piecemeal fashion, the whole document was not admissible to put in context the parts cross-examined upon. Nor was the tender put on that basis.
THE USE OF THE MATERIAL 37. Given these conclusions as to the admissibility of the material, the question remains as to whether the trial judge used the material in an impermissible way.
The question is whether, once material has been admitted for one purpose, it may properly be used to bolster the credit of a witness whose testimony is consistent with it, even if the material originated from that witness.
This approach may seem to be at odds with the common law rule which prevents the introduction of previous consistent statements to bolster the credit of a witness, if the source of those statements was ultimately the witness. This principle has often been stated in terms which suggests that to rely on such a previous statement is illogical or dangerous, due to the lack of probative value in the statement.
This is reflected in an extract from Starkie on Evidence (4th ed, 1853) which was quoted by Menzies J in Clement's case (at 486): "It seems to be the better opinion that a witness cannot be confirmed by proof that he has given the same account before, even though although it has been proved that he has given a different account, in order to impeach his veracity; ... his having said the same thing does not in general carry his credibility further than, nor so far as, his oath."
A more modern statement of the same principle is that "A witness may not lift himself by his own bootstraps to enhance his credit." (R v Connolly (1991) 2 Qd R 171 at 173 Thomas J). That is, such evidence would be simply lacking in logical probative value; it is legally irrelevant. This principle has been supported by references to the ease with which it would otherwise be possible to manufacture evidence by the re-telling of a story to all one's friends before trial: see Gillie v Posho Ltd (1939) 2 All ER 196.
However, this explanation cannot be complete. There are many cases where previous consistent statements may be valuable and probative; the exception in the case of evidence which rebuts an allegation of recent invention is an example. However, even if a case does not fall into one of these exceptions, the previous statement may seem to possess some logical relevance to the matter, even if its legal relevance is denied.
One well-known case is that of Jones v South-Eastern and Chatham Railway Co Managing Committee (1918) 118 LT 802. In that case, it was considered that, although witnesses had been called to testify as to a plaintiff's previous inconsistent statements (namely, that she had told these witnesses that a certain accident had happened in her home rather than at work), the plaintiff was not able to call evidence consistent with her testimony (as she had told other witnesses that the accident had happened at work). In this case, it might seem to be a relevant matter that the plaintiff had not invariably told friends of one account rather than the other.
Similarly, one can consider the rationale behind the rule examined above, in relation to the requirement that, in some circumstances, counsel tender previous statements put to a witness as inconsistencies. There is little point in counsel forcing the tender of such a document, unless it may be used in some way to confirm the credit of his or her witness.
What such examples illustrate is that the rule operates as a rule of admissibility which is dependent upon notions of legal relevance rather than logical relevance. A well-known statement of this distinction is that of Schreiner JA in Matthews v R (1961) SA 752 (Appeal Div.) at 758, which was quoted with approval by the Victorian Court of Criminal Appeal in R v Harmer (1985) 28 A Crim R 35: "Relevancy is based upon a blend of logic and experience lying outside the law. The law starts with this practical or
commonsense relevancy and then adds material to it or, more commonly, excludes material from it, the resultant being what is legally relevant and therefore admissible."
In this sense the rule may be likened to the rule which prevents the leading of evidence on collateral matters. However, such evidence is excluded, not just for its lack of probative value or logical relevance (although this rationale has been accented in some cases: see Piddington v Bennett [1940] HCA 2; (1940) 63 CLR 533 at 559-60 Evatt J); sometimes it may seem to possess considerable, if indirect, relevance to the issue in question. Otherwise probative evidence is excluded because its admission would prejudice the efficient disposal of cases, by leading to the creation of side issues and increasingly lengthy trials. This was recognised by Cox J when he stated (Kurgeil v Mitsubishi Motors (1990) 54 SASR 125 at 128-9): "It is not that such collateral matters are not relevant or important - there are cases in which they may be very important, and therefore in one sense entirely relevant -but that the exhaustive pursuit of collateral issues in a trial will tend to be time-consuming and expensive and distracting, so that it is better as a matter of curial policy that it not be embarked upon at all. "
There are of course exceptions to this rule, which may ultimately be justified on the basis of probative force: see Ligertwood, Australian Evidence (2nd ed.) at 418; cf Natta v Canham [1991] FCA 470; (1991) 32 FCR 282 at 297 (Full Court).
In my view, the rule against the introduction of prior consistent statements has a similar operation to that relating to evidence upon collateral matters. That is, both rules operate not solely from the lack of probative force of the evidence; rather, they depend upon a view of legal relevance which is conditioned by policy values relating to "the proper management of litigation." (Natta v Canham [1991] FCA 470; (1991) 32 FCR 282 at 300).
There are undoubtedly cases in which a previous consistent statement may be of little probative value, due to the probability of manufacture or repetition. However, on many occasions the consistency of previous statements is an important matter which may tell in the favour of a witness. It is frequently a matter put forward by the accused (as happened in this case), that his or her testimony remained unchanged through police questioning and at trial.
PERMISSIBLE USE OF PREVIOUS STATEMENTS 50. The forgoing argument has not been directed to a reform of the rule in relation to previous consistent statements. Rather, it has been directed to demonstrating that, even though such statements will not as a matter of judicial policy be admitted, reliance upon these statements as such may not be incorrect. Therefore, if they have been properly admitted, it seems to me that the trial judge may use them for support in coming to the conclusion that the witness in question is a credible one.
evidence of (the complainant), and if you found inconsistencies or what you regarded as inconsistencies, you would be entitled to treat that fact as adversely affecting her credibility. If, on the other hand, you found a high degree of consistency, you would be entitled to treat this statement as reinforcing her credit, but the statement can only be used in that way in considering the weight to be attached to her sworn evidence in the witness-box."
establishing discredit. If the document looked at as a whole was capable either of destroying the credit of the witness or of confirming the credit of the witness, according to the view taken of it by the jury, it was, in my opinion, relevant to the issue, and once it became so admissible its use either way could not, I think, be denied. "
CONCLUSION ON THE STATEMENTS 62. The approach contained in these cases is one which should be applied to the present matter.
THE REMAINING MATTERS 69. On behalf of the appellant it was argued that a number of factors should convince this Court that there was a significant possibility that an innocent person had been convicted (M v R [1994] HCA 63; (1994) 126 ALR 325 at 329 Mason CJ, Deane, Dawson and Toohey JJ). On this point I have nothing to add to the reasons of Olsson J, with whom I agree.
JUDGE2 OLSSON J This is an appeal against convictions of the appellant of one count of indecent assault and one count of false imprisonment and a sentence imposed on him by a District Court Judge, consequent upon those convictions. The convictions were recorded as the outcome of a trial by judge alone. In essence the learned Judge accepted the complainant's version of what had occurred and rejected that of the appellant.
In the event the learned Judge imposed a single head sentence of two years' imprisonment and fixed a non parole period of nine months. He declined to suspend that sentence.
The appellant complains that his convictions were unsafe and unsatisfactory and that the learned trial Judge fell into error in the admission and use of documents tendered to demonstrate consistent conduct on the part of the complainant. The appeal against sentence is prosecuted on the basis that the head sentence and non parole period were manifestly excessive in all the circumstances; and that any term of imprisonment ought to have been suspended.
The relevant facts sought to be proved by the Crown were of simple compass.
The offences charged were said to have been committed on 4 July 1993, at premises occupied by the appellant at Unley Park.
Evidence was led to establish that the complainant, a single young woman then about 20 years of age, resided in a flat adjacent to the appellant's premises. On the afternoon of, 4 July 1993 (which was a Sunday) she was returning on foot from visiting her disabled mother, who also lived in the close vicinity. The appellant was known to the complainant as a neighbour.
As the complainant neared the appellant's premises it appeared that he and a male and female friend, who were visiting him and known to the complainant, were having a drink outside of the house. One of the group called out and invited her to join them. She did so.
After a time the appellant's friends left and the complainant went to leave with them.
However, the complainant asserted that the appellant called her back as the friends departed. He pulled her inside the house through its rear door. The learned judge found that she had done nothing whatsoever to invite or encourage any advances on his part.
It was said that, inside the house, the appellant - - unbuttoned the complainant's shirt - ran his hands up and down underneath her shirt and tried to remove her bra - kissed her on the neck - touched her breasts with his hands - pulled her down onto a sofa and tried to pull down her tights
The complainant's evidence was to the effect that these activities continued over the space of about 20 minutes, after which she managed to get free of the appellant, ran out of the house to her flat and telephoned for assistance.
It was accepted by the learned trial Judge that, throughout the incident, the conduct of the complainant was such that it must have been obvious to the appellant that she neither welcomed nor consented to his advances.
Against the foregoing brief and over simplified background, I shall, like counsel, first proceed to a consideration of the second ground of appeal against conviction.
In the course of her evidence the complainant was strongly cross examined as to what were said to be serious inconsistencies as between her evidence at trial and earlier statements said to have been made over time. It was directly put to her that her evidence was a fabrication as to the key accusations against the appellant. However, it was never specifically put to her that her evidence, as ultimately given, was a recent fabrication, or that she had some post incident motive for telling a false story.
In the course of her cross examination, substantial extracts were put to her from a written declaration prepared by the investigating police officer and signed by her on 2 August 1993, and two editions of a handwritten statement (one said to be rough and the other somewhat tidier) said to have been prepared by her after she had been interviewed by a legal practitioner in the office of the Director of Public Prosecutions.
During re-examination of the complainant the Crown Prosecutor, sought, in effect, to support the credibility of the complainant by tendering the full text documents from which excerpts had been put, in cross examination, to the complainant. The purpose was, of course, to place the excerpts in context and demonstrate that, in reality, the complainant had not been inconsistent over time - at least in any substantial degree. The learned trial Judge permitted the tender of the various statements, whereupon counsel for the accused asked that a copy of extracts from the complainant's diary also be put in.
It is important to note that the transcript of the exchanges which occurred at the time records the following situation:- "MR CHAPMAN: I tender both of those documents, the untidy one and the tidier one.
MR STOKES: I am just reflecting on that. I realise I cross-examined on the document, but given the witness's position, I didn't really have much choice. I suppose if I raise a formal objection, appreciating what your Honour is likely to rule, that I have cross-examined on it, that will probably follow.
EXHIBIT P2 Three page messy copy of extract of diary tendered by Mr Chapman. Admitted.
EXHIBIT P3 Two page neat copy of extract of diary tendered by Mr Chapman. Admitted.
MR STOKES: These purport to be notes taken from the diary, and if those are both to be tendered, then I am in a position - I am just trying to reflect as I go - because either I apply to further cross-examine on that point because of an answer that has been given to Mr Chapman in light of my having read that diary page, or perhaps the diary for that page is tendered to your Honour as well because otherwise I will be in a position of having to ask to cross-examine on that particular point.
MR CHAPMAN: I don't see any problem with a copy of the diary page for the date in question being copied rather than the whole diary being tendered.
HIS HONOUR: Let that page be copied and you tender it, although I don't suppose it matters if the defence tenders it under the present state of law.
The copy police declaration was subsequently put in by the Crown without objection.
Given those circumstances it becomes difficult to see how the appellant can, on any view, now maintain the second ground of appeal. The plain fact is that, not only was no objection raised to the tender, but counsel for the appellant impliedly conceded the propriety of the documents going in.
It appears to me that the appellant is bound by the conduct of his case by his counsel and cannot now be heard to complain. (See, for example, R v Ensor (1989) 2 All ER 586, R v Cameron (1990) 47 A Crim R 397, R v McLeod (1991) 56 A Crim R 320.)
Moreover, I consider that the argument of the appellant that this was not a "recent invention" case indicates a misapprehension of the tenor of the relevant authorities. Nominal Defendant v Clements [1960] HCA 39; (1960) 104 CLR 476 ("Clements") and the line of authorities stemming from it were relied upon for the proposition that evidence of prior consistent conduct is not admissible to bolster or restore the credit of a witness unless it has, directly or by necessary implication, been put to the witness that his or her evidence is a recent invention.
In my opinion the appellant's contention as to this aspect of the appeal misconceives the essential nature of the so-called doctrine of recent invention.
As is pointed out in Gillies, Law of Evidence in Australia 2nd Ed at 167, the mere fact that the testimony of the witness in question is attacked by the other side, when that witness is cross examined as to credit, does not mean that such witness is accused of recent invention. So much is clearly established by Clements.
However, as both Gillies and the learned authors of Cross on Evidence, Australian Edition Vol 1 par 17305 are at pains to stress, the principle spelt out by Dixon CJ in Clements was that a previous consistent statement by a witness is admissible to rehabilitate (or "bolster") credit, by rebutting the suggestion that evidence sought to be adduced is a fabrication subsequent to the events in question, but anterior to the trial. The words "recent" or "late" invention are, the learned authors suggest, used only in that sense. Their text in that regard is patently based on Wentworth v Rogers (No 10) (infra).
So it is that allegations of mere faulty recollection or the mere making of a prior inconsistent statement, without more, is not enough. (See, for example, R v Weekes (1988) Crim LR 244.) The essential "trigger" for the invocation of the doctrine is a specific assertion of fabrication, made by the cross examiner to the witness.
This was the point so compellingly made by the Court of Appeal in Wentworth v Rogers (No 10) (1987) 8 NSWLR 398, in which Glass JA, speaking for the whole Court, at p401, commented:- "It was next sought to question his Honour's ruling by a contention that the question put to the plaintiff did not suggest that the fabrication had been made in comparatively
recent times. For all that appeared from its terms the question could have suggested fabrication at any time during the period of seven years and ten months which intervened between the events in January 1977 and the trial in November 1985. The most thorough discussion of the doctrine of recent invention is to be found in Nominal Defendant v Clements [1960] HCA 39; (1960) 104 CLR 476. Nowhere is it affirmed that the imputed invention must have been located by the questioner within the recent past. On the contrary there are clear indications that the adjective 'recent' is a misnomer and that the doctrine is concerned with any fabrication subsequent to the events in question but anterior to the trial. The following passages are apposite:
'... I regard evidence of an earlier consistent statement as admissible in accordance with this exception only when the Court itself considers that the evidence of a witness has been impeached as a later contrivance (at 490).
The kind of imputations and allegations that - if sufficiently clearly made - will let in prior consistent statements are: First, that the witness's testimony is a recent fabrication, in the sense of being invented at or after a particular time (at 494).
... There must be an imputation, clearly made and not unequivocally disclaimed, that the witness is not speaking from his own recollection of events, but is recounting a story subsequently made up by him or for him (at 495).'"
That reasoning is consistent with what fell from the two Full Courts in question in R v Boland [1974] VicRp 100; (1974) VR 849 at 875 and Higgins v Davries (1965) QdR 389.
Moreover, for myself, I would join issue with the contention that the doctrine of recent invention mandates that it must be suggested that an alleged fabrication must have been made anterior to the trial. As was pointed out by the majority of the Court of Appeal in the recent case of Eaton v The Nominal Defendant (Court of Appeal, Queensland, 3 October 1995, unreported) the judges of the High Court in Clements did not express their reasoning in uniform manner. With respect, I agree with Pincus J in Eaton where, inter alia, he stresses that Windeyer J expressed the relevant principle in these terms:- "But the evidence is only to be let in when the grounds for doing so clearly exist. It is not enough that a witness has been cross-examined as to credit, however much his credibility may appear to have been shaken ... There must be an imputation, clearly made and not unequivocally
disclaimed, that the witness is not speaking from his own recollection of events, but is recounting a story subsequently made up by him or for him." (Windeyer J at 495)
It was the view of Windeyer J, which was consistent with the reasoning of Dixon CJ and Menzies J, that the essential touchstone for operation of the doctrine was merely an assertion that the story of a witness was invented at or after a particular time. It mattered not that the alleged invention was during the trial itself.
Such an approach accords with plain common sense and was that adopted by the Queensland Court of Appeal. I consider that this was the true principle espoused in Clements and I do not read Wentworth v Rogers (No 10) (which turned on its own factual scenario) as necessarily denying such an approach, even given the use of the phrase "but anterior to the trial". If the court in that case did intend a specific time limitation then I would not follow its decision.
It is apparent that the learned trial Judge approached the situation on the basis consistent with that which I have indicated when, in the course of his decision, he reasoned thus:- "I now should say something about prior consistent statements. The suggestion was made by the defence, in no uncertain terms, that, since the events of the day in question, the complainant, Jodie Hillier, had fabricated an account of those events which was false. Early in the cross-examination of Jodie, Mr Stokes, counsel for the accused, asked: 'I suggest that you have lied to this court; do you agree with me or disagree with me?' to which Jodie replied 'I disagree'. Later Mr Stokes made suggestions to Jodie that she had made up the allegations; indeed, late in the cross-examination of Jodie Mr Stokes put this to her: 'All of these allegations about Gordon, both in relation to the actual incident and the so-called incident some months before, are a fabrication, a lie; you have made them up?' to which Jodie responded 'That's not true'.
Jodie was cross-examined about a number of statements made by her which were said to be inconsistent with her testimony, and cross-examining counsel highlighted the number and extent of the inconsistencies. The Crown then adduced evidence by way of rebuttal during re-examination, and Exhibits P2, P3, P4, and P5 were tendered.
Exhibit P4 is an extract from Jodie's personal diary for 4 July and part of 5 July. Exhibit P2 is a handwritten statement described as 'the messy one', brought into existence by the complainant. Exhibit P3 is another attempt at a handwritten statement described as 'the neat one'. Exhibit P5 is Jodie's witness statement dated 2 August 1993. Such exhibits were admissible by virtue of the so-called doctrine of recent invention (or fabrication or reconstruction), which operates as an exception to the rule against prior consistent statements. These out of court
statements (Exhibits P4, P2, P3, and P5), which are, in broad terms and subject to understandable and explainable differences, consistent with Jodie's evidence from the witness box, are admissible. They are admissible because the credit of the complainant had been impugned upon the ground of recent (or late) invention and had been lately made up or fabricated.
Statements to the same effect as the account which that witness gave from the witness box, albeit not in identical terms, are admissible if they are made by the witness contemporaneously with the incident, as in the case of the diary entry, or at a time (or at times), as in the case of Exhibits P2, P3, and P5, sufficiently early to be inconsistent with the suggestion that the witness's account is a late event or reconstruction (Nominal Defendant v Clements [1960] HCA 39; (1960) 104 CLR 476).
The basis of this exception to the rule against consistent statements is that, as the defence has alleged the fabrication of the Crown witness's account of an incident in issue, the Crown should be able to bolster or restore the credit of the witness by various means, including the adducing of prior consistent statements which will tend to support (as I think they do) the witness's testimony. Such statements are adduced only as a matter bearing upon the credit of the witness, and not by way of proof of the matters asserted in them.
In my judgment Exhibits P4, P2, P3 and P5, and, to an extent, the statements made by the witness when she was proofed by the Crown, do, in fact, bolster the credit of Jodie Hillier and restore her credit, which otherwise might have been seen as tarnished.
I have exercised care in determining, not only that the account given by Jodie Hillier in her testimony was being attacked upon the ground of what the law calls 'recent invention' or 'fabrication', but also that the contents of the statements, Exhibits P4, P2, P3 and P5, are, in all the circumstances and in the context in which they came into existence, in fact, cogent and to the like effect as her account given in her evidence.
Having regard to the time and circumstances in which those statements were made, they rationally tend to answer (and do answer) the attack (Nominal Defendant v Clements supra at p.479 and T and G Insurance Company Limited v Edmandson [1961] HCA 86; (1961) 106 CLR 23 at pp.28 to 29 and 30 and 32).
In my capacity as judge of the facts in this trial by judge alone, it is for me to decide whether the consistent statements allegedly made were, in fact, made, and whether they bolster the testimony of the maker. The consistent statements allegedly made were, in my judgment, in fact, made. As I have previously indicated, they do bolster the credit of Jodie Hillier; in my considered opinion, they bolster it to a significant extent."
I have recited that excerpt in extenso because it patently reveals that the learned trial Judge had carefully studied and applied the relevant authorities to a situation in which there had been an unequivocal assertion of fabrication after the relevant events in issue and, by necessary implication, at some point in the period up to the time of trial and, possibly, at the trial itself - as evidenced by the complainant's evidence at trial. Moreover, contrary to what was asserted by Mr David QC, of senior counsel for the appellant, the learned trial judge was employing the word "bolster" in the same sense as the text writers ie in the sense of "rehabilitating" the credit of the complainant. Indeed, his mode of expression in that regard was a clear citation from a paragraph in Gillies.
What he said was a correct exposition of the law and the conclusion to which came was fairly open to him.
I would dismiss the second ground of appeal as to conviction.
I now turn to the first ground of appeal in that regard.
The approach proper to be adopted to such a ground was recently restated by Mason CJ in M v R [1994] HCA 63; (1994) 126 ALR 325 at 329. He there said:- "But it is, we think, possible to make too much both of the view expressed by Barwick CJ and of the qualification suggested. In most cases a doubt experienced by an appellate court will 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 doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays 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 advantages 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 upon 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 always be 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. Although the propositions stated in the four preceding sentences have been variously expressed in judgments of members of the court in previous cases, we have put aside those differences in expression in order to provide authoritative guidance to courts of criminal appeal by stating the propositions in the form in which they are set out above."
In the course of his submissions Mr David QC relied upon what, he asserted, was the combined effect of:- - the uncorroborated evidence of the complainant; - alleged inconsistencies between her evidence at trial and what she had said in earlier statements; - alleged inconsistencies as between her evidence and that of other witnesses; - alleged objective inconsistencies related to the locking mechanism of a door and the presence of explosives in the house; - the consistent denials of the appellant at all stages.
I do not find it necessary to discuss all of these matters in detail.
It is true that the complainant's evidence was uncorroborated by other evidence and that the appellant did consistently deny her story - he gave evidence on oath to that effect. However, the learned trial Judge had ample opportunity to observe and assess both of these persons. Appreciating, as he did, that there were some defects in the complainant's evidence he, unhesitatingly, accepted her as a witness of truth and rejected the appellant as a credible witness. Having commented upon the adverse view that he had formed of the credibility of the appellant, his final conclusion was expressed in these terms:- "The evidence given by the main Crown witness, Jodie Hillier, contains some defects. The various accounts given by her do differ in certain respects, but I hasten to state that those defects to be found in her evidence are
understandable and explainable, and they are not such as to lead me not to rely upon it. The main aspects of the accused's evidence are unreliable, and not to be believed."
That assessment was necessarily a product of the atmosphere at trial and the manner in which the appellant gave evidence. It is not for this court, on well settled principles, to attempt to go behind the conclusion that the learned trial Judge "was not impressed by the accused".
Equally, it is important to note that, in finding that the complainant was a witness of truth, the learned trial Judge quite consciously bore in mind the existence of certain defects in her evidence and made due allowance for them.
As Mr Millsteed, of counsel for the Crown, pointed out, certain of the "inconsistencies" relied on by the appellant were, in fact, explicable, whilst others were not of fundamental importance.
The debate concerning these last mentioned matters is enshrined in the transcript and I do not find it necessary to recite the contentions in detail. I have, however, examined and considered them all.
At the end of the day I am simply not convinced that there is a significant possibility that an innocent person - the appellant - has been convicted.
As was stressed by Mr Millsteed in the course of his submissions, given the evidence of the accused on oath, a number of important, objective facts remained without logical explanation on the alternative version of the facts testified to by the appellant
There is, in my opinion, no reason to question the propriety of the ultimate conclusion come to by the learned trial Judge. His published reasons evidence a very careful consideration of the evidence and appreciation of the residual defects in the complainant's evidence. His actual conclusions were reasonably arrived at on the whole of the evidence before him.
I would therefore dismiss the appeal against conviction. No miscarriage of justice has been demonstrated.
There is little doubt that the complainant was considerably upset by what occurred and has had ongoing emotional problems as a consequence of it - although the learned Judge was not persuaded that these were as profound as she suggested in her victim impact statement.
The material before the learned Judge indicated that the appellant is a single man, 37 years of age. He has no significant or relevant prior antecedent record.
He has been in regular employment. Immediately prior to trial he worked as a concrete sprayer and had held his present employment for some six years.
He speaks with a stutter and is assessed as operating within the Low Average Range of intellectual functioning. Mr Fugler, a forensic psychologist, reports that, although the appellant does not present with any serious psychological dysfunction, he is, nevertheless, a somewhat inadequate personality and an individual with some anxiety and poorly developed social skills. His history indicates a difficulty in attaining comfortable relationships with persons of the opposite gender.
In the course of his sentencing remarks the learned judge noted that there had been an earlier occasion on which the appellant had pushed the complainant onto a bed and kissed her, to which she had also not consented and as to which had resisted him. This was, he felt, an aggravating circumstance, because the earlier incident had made it plain that the complainant did not welcome physical advances on the part of the appellant.
The learned judge pointed out that, the appellant, having fully defended the charges against him, was not entitled to credit for a timely plea, although that did not imply that he should receive other than a normal, full sentence in respect of his offending. He said that he was prepared to deal with the appellant as being entitled to some leniency by reason of an absence of prior convictions for sexual offences, but not as a person with an entirely unblemished record. He was disposed to treat the offending as at neither the higher nor the lower end of the scale of seriousness.
It is argued, on behalf of the appellant, that, having regard to the personal background of the appellant and the circumstances of the offending, the sentence imposed is unduly harsh; and that his personal mitigating and general background is such that it ought, in any event, to have attracted a suspended custodial sentence.
It is convenient, first, to consider the severity of the sentence imposed.
On the one hand it must be accepted that this was, by any standard, a serious course of offending perpetrated by the appellant against a young woman who had, on a previous occasion, made it quite clear that she did not welcome advances by him. All in all it must have been a distressing and frightening experience for her - one which, it is to be expected, may well have left her with not insubstantial ongoing emotional problems. She had done nothing to encourage him or facilitate his actions. In the normal course such conduct must inevitably, have attracted an appropriate custodial sentence. On the other hand, there were a number of personal mitigating circumstances to be considered and the evidence suggested that it is fairly unlikely that the appellant will reoffend.
It must be said that the head sentence imposed was substantial, although it lies within a range of reasonable sentencing outcomes, given that no discount for a timely plea was attracted. The non parole period imposed was a relatively small proportion of the head sentence and, on the face of it, clearly reflects a significant allowance for mitigating factors.
It is fair comment to say that Mr David QC did not really seek to argue that the head sentence and non parole period were, on the face of them, manifestly excessive, given the gravity of the offending conduct. Rather, he suggested that, bearing in mind the background and antecedents of the appellant, the custodial sentence ought to have been suspended.
Whilst individual minds may have differed as to the question of suspension I am quite unable to say that the learned Judge fell into error in what he did. The conduct was serious and the consequences of it were not insubstantial. No compelling case for interference by this court was made out.
I would also dismiss this aspect of the appeal.
JUDGE3 WILLIAMS J The facts of this matter have been comprehensively reviewed in the reasons of the Chief Justice and Olsson J respectively. I wish to say something concerning the use made at trial of the four documents P2, P3, P4 and P5. These comprise an extract from the complainant's diary, two editions of the complainant's hand-written statements and a statement made by the complainant to the Police. All these documents came into existence prior to the trial.
(2) It was proper for the trial judge to use these documents to "confirm the credit" of the complainant; this is the expression used by Winneke CJ in R v Titijewski [1970] VicRp 48; (1970) V R 371 at 375. Relying upon this authority, Brown on Documentary Evidence in Australia at page 170 refers to the availability of a document in appropriate circumstances to "bolster the witness's credibility". (It is noteworthy that this lastmentioned expression was used in the present case by the trial judge).
of fabrication - statements inadmissible. Fox
General Medical
(1995) 65 SASR 260
(1960) 104 CLR 476
(1987) 8 NSWLR 398
(1991) 2 Qd R 171
(1940) 63 CLR 533
(1990) 54 SASR 125
(1991) 32 FCR 282
(1994) 126 ALR 325
(1961) 106 CLR 23