R v Ali

• 20 - IN THE COURT OF CRIMINAL APPEAL

PRIESTLY JA FOSTER AJA SPERLING J

JUDGMENT 1 SPERLING J: At a trial in the District Court commencing on 27 April 1999, the appellant was convicted on one count of committing an act of indecency towards a person under the age of sixteen years; one count of indecent assault; and three counts of sexual intercourse without consent. The alleged act of indecency under the first count was that the appellant allegedly masturbated himself in the complainant's presence. The alleged indecent assault was an alleged touching of the breast on the outside of the complainant's nightie. The three counts of alleged sexual intercourse without consent were three separate instances of alleged penile-vaginal intercourse. 2 The complainant, in each case, was the daughter of the appellant's de facto wife. The offences were alleged to have occurred during the period December 1991 to March 1994. The complainant was eleven at the commencement of that period and thirteen at the end of it. She was 18 years of age at the time of the trial. 3 The complainant gave evidence of each of the alleged occurrences on which the charges were based. 4 In the course of cross-examination and re-examination of the complainant, evidence was adduced concerning five interviews:

(a) With Ms McLaren, school counsellor, in June 1996, when the complainant said that the appellant had raped her at the age of twelve.

(b) With officers from the Department of Community Services (DOCS) in July 1996, when the complainant said nothing had occurred.

(c) With DOCS officers a few days later when the complainant again said nothing had occurred.

(d) With the police in August 1997, when the complainant said that the appellant had raped her but said nothing about any earlier incident.

(e) With the police in April 1998, when the complainant told them everything that had allegedly occurred. 5 The prior representations which were inconsistent with the complainant's evidence - (b), (c) and (d) above - were brought out in cross-examination, as was (e). The representation mentioned in (a) above was brought out in re-examination. I will review how this happened and what was said by the trial judge about this evidence in the course of the trial. 6 When evidence was adduced in cross-examination concerning the inconsistent representations - (b), (c) and (d) above - nothing was said by the trial judge to the jury, at that stage, as to how they could use the evidence. In the absence of a direction to the contrary, the jury would, at that stage, have taken the inconsistent prior representations to be evidence of the facts stated and not merely as evidence going to the complainant's credit: Hilder (1997) 97 A Crim R 70. 7 The evidence concerning the interview with Ms McLaren - (a) above -was allowed in re-examination over the appellant's objection. The complainant's account of the interview was that Ms McLaren agreed not to tell anyone and that it was only then that the complainant told Ms McLaren that she had been raped by her "ex-stepfather" when she was twelve. 8 At this stage, the trial judge made the following unsolicited observation to the jury: "Now ladies and gentlemen that evidence that you're hearing is not evidence that in fact the complainant was raped by her stepfather because evidence of what somebody tells somebody else outside a court is no evidence of the truth of what's being said. This evidence is all going to tell you what happened before DOCS came to explain to you why DOCS came and why she said to DOCS what she said to DOCS because it was raised in cross-examination. That's the only relevance of this material." (Emphasis added.) 9 Neither side objected to this observation. The jury had now been instructed, in general terms and by common consent, that evidence of statements made out of court were not to be used as evidence of the fact. Unless directed otherwise at a later time that was a direction which the jury could be expected to apply to all evidence of statements made out of court. This direction overrode the assumption the jury would have made earlier that evidence of out-of-court statements was evidence of the fact. 10 It is unnecessary to comment on what his Honour said this evidence could be used for, but I should not be taken to endorse the detail of his Honour's directions in that regard. 11 The re-examination continued. The complainant was now asked about the meetings with the DOCS officers. The evidence adduced was that, when she was approached by these officers during the following month, July 1996, she was shocked to see them because she had trusted Ms McLaren not to tell anyone. She acknowledged what she said in cross-examination, namely, that she told those officers that she had not been raped by the appellant. Conformably with having extracted a pledge of confidentiality from Ms McLaren, the complainant gave as her explanation for lying to these officers that she was scared they would tell her mother what had happened to her. 12 The complainant said she then made a few phone calls to the department. There was then a second visit by DOCS officers a few days after the first The implication was that she had told the department more on the telephone than she had been willing to disclose at the first meeting with the departmental officers. On the second occasion, she said, her mother was present, so she again did not tell the officers what had happened, for the same reason. She agreed that she did, at a later time, tell her mother about what she alleged had happened to her. 13 Asked why she had not included everything in her first statement to the police, the complainant replied that, at that stage, she "just wanted to put it in brief answer form". That appears to have been her way of saying that she told the police, at her first interview with them, what she thought was the salient feature of the appellant's conduct rather than everything she could have said about him. 14 His Honour granted leave and admitted the evidence in a judgment delivered in the course of the trial. His Honour said: "Leave, in my view, is appropriate because of the significance of this evidence in this particular case and because it is evidence which supports the complainant in the account that she has already given to the jury in respect of the statements made by her to the officers from the Department of Community Services." 15 The Crown now sought to call Ms McLaren in its case. The application was founded on s 108 of the Evidence Act 1995. The trial judge ruled, over the objection of counsel for the appellant, that leave should be granted to the Crown to call the witness. Section 108 provides as follows: "108.(3) The credibility rule does not apply to evidence of a prior consistent statement of a witness if: (a) evidence of a prior inconsistent statement of the witness has been admitted; or (b) 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 the court gives leave to adduce the evidence of the prior consistent statement." 16 In the course of the judgment granting leave, his Honour referred to his earlier ruling that the conversation with Ms McLaren could be adduced from the complainant in re-examination (as was then done). His Honour said of that evidence: "I have already told the jury that this evidence is not evidence as to the truth of what the complainant said. It is no evidence that in fact the accused did have sexual intercourse with the complainant but rather that this evidence is put before the jury to explain why it was, and the circumstances in which, she came to say to the officers of the DOCS what she said to them about the accused's conduct toward her." 17 His Honour then proceeded to deal with the application to call Ms McLaren. He recorded the appellant's objection as being that the evidence might be given undue weight by the jury, to the prejudice of the appellant. His Honour said: "I do not believe that the submission should be upheld although there is perhaps some slight suggestion that the jury may misuse this evidence and use it as evidence against the accused of actual guilty of the offences charged. I have already warned the jury once that it has no such effect and I would warn the jury again both when this evidence is given by Miss McDermott and in the summing up." 18 Ms McLaren then gave evidence of the complainant telling her, in June 1996, that she had been raped by the appellant. When that evidence was given, the trial judge immediately made the following observation to the jury, as he said he would: "I remind you ladies and gentlemen of what I said yesterday, the fact that the complainant told somebody else, in this case Miss McLaren, that she was raped by her ex step father, is no evidence at all that in fact she was raped by her ex step father. What somebody says outside a courtroom is no evidence of the truth of what that person asserts. If that was so, we would deal with these matters by rumour and innuendo and hearsay. We do not deal with them in that way, we deal with them by evidence given in the courtroom , and I told you yesterday that the relevance of this evidence is not to prove that (the complainant) was telling the truth , but to explain to you so that you understand the statements that she made to the officers from the Department of Corrective Services how that conversation came about. And in explanation of why there is a conflict it would seem on its face between what she said to the officers from the Department and what she said in evidence to you." (Emphasis again added.) 19 Again, neither side objected to this direction. The trial was proceeding on the basis, by common agreement, that the jury would not rely on out-of-court statements as evidence of the fact. 20 Again, it is unnecessary for me to comment on what his Honour said the evidence could be used for. 21 Ms McLaren's evidence continued. She explained that she had contacted DOCS about the case because she was a mandatory notifier. 22 That was the Crown's case. 23 The appellant gave evidence. He denied the allegations and ascribed a motive to the complainant for lying in that regard. Character evidence was called on his behalf. That was the appellant's case. 24 What had been said in the course of the trial by the trial judge, before the summing-up, was in general terms. It was to the effect that prior representations were not evidence of the fact. The jury was thereby given to understand that no prior representation could be used as evidence of the fact, whether inculpatory or exculpatory of the appellant. The present case was now distinguishable from Hilder (supra) where it was held that a jury would assume that evidence of representation was evidence of the fact unless directed otherwise. Here, there was a direction in general terms which was otherwise. 25 There was no direction given to the jury, at any stage before final addresses, as to what use the jury were entitled to make of the evidence of prior inconsistent statements - the denial of any sexual assault by the appellant when interviewed by the DOCS officers and the failure to mention either of the earlier episodes when first interviewed by the police. However, in view of the general terms in which his Honour had directed the jury concerning other out-court-statements, the jury would have believed that they were precluded from using these statements as evidence of the fact. 26 In his summing-up, the trial judge gave directions concerning the prior consistent and inconsistent representations. He said: "I have told you that in considering the complainant's evidence you would have to take into account the inconsistencies that are apparent between what she said to you in the witness box and what she said on other occasions that have been highlighted to you and detailed to you by Mr Dhanji in his address. The accused, of course, relies strongly on the evidence in relation to the various accounts that she gave to the officers of the Department of Community Services and then to the police, the last time she gave evidence in this matter and of course finally what she told you in the witness box. You have heard argument on those matters by both counsel and I do not intend to repeat them and you will give them what weight you think they deserve. ….. As I indicated to you during the course of the trial, the fact that a person makes an allegation against another person does not tell you anything at all about whether or not that allegation might be true. For example the fact that the complainant made a statement about these matters, or two statements about these matters to the police cannot be used by you as evidence that what she said to you in the witness box is truthful. Nor can you use anything that the complainant said to the police or to the counsellor as evidence that the accused did in fact do these things that she alleges that he did to those people, the police and the counsellor. You have to act on the evidence in the trial. Now the only relevance of what she said to Miss McLaren is what I told you during the course of the trial and that is as an attempt to explain the circumstances surrounding her statements to the officers form the Department, which on their face, seem to be completely inconsistent with the allegations she made to the police and in evidence to you." 27 That covered the field. All the prior consistent and inconsistent representations had been mentioned. The jury was instructed that none of them could be used as evidence of the fact. 28 The addresses, referred to in the summing-up as having dealt with prior representations, were not recorded. However, conformably with what had been said by the trial judge to the jury in the course of the trial (without objection) and conformably with the absence of any criticism of the addresses in the summing-up, it can reasonably be assumed that neither side relied on any one or more of the prior representations as evidence of the fact. 29 There was no objection by counsel for the appellant to any part of the summing-up. 30 The appellant appeals against conviction on the following grounds: "1. His Honour erred in allowing evidence of complaint made 20 June 1996 to Marian McLaren. 2. His Honour erred in granting leave to the Crown under s 108(3) of the Evidence Act 1995 to lead evidence of a prior consistent statement. 3. His Honour erred in the directions he gave to the jury on complaint evidence in the summing-up. 4. His Honour erred in the directions he gave in relation to a prior inconsistent statement, the denial to DOCS, in July 1996 and subsequently, that the complainant had been sexually assaulted by the appellant. 5. His Honour erred in the directions that he gave to the jury on prior inconsistent statement in the summing up."

Ground 4: His Honour erred in the directions he gave on prior inconsistent statement (the denial to DOCS, in July 1996 and subsequently, that she had been sexually assaulted by the appellant).

Ground 5: His Honour erred in the directions that he gave to the jury on prior inconsistent statement in of the summing up.

31 The point argued on appeal under these grounds of appeal was that the trial judge erred in directing the jury that the complainant's inconsistent representation to the DOC's officers (that the appellant had done nothing) should not be used as evidence of the fact. 32 In the appellant's written submissions, it was said that the representation of no sexual assault made by the complainant to the DOC's officers was evidence of the fact that there was no sexual assault, by operation of s 66, or, alternatively, s 72 of the Evidence Act 1995. That argument has not been pressed on the hearing of the appeal, and properly so. 33 The gist of the argument on the hearing of the appeal was that, the evidence having been correctly admitted as to credit in cross-examination of the complainant, it became evidence of the fact pursuant to s 60. That section provides as follows: "60. The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of the fact intended to be asserted by the representation." 34 Section 60 had the effect for which the appellant contends, subject to the exercise of the trial judge's discretion under s 136 to limit the way the evidence could be used: Welsh (1996) 90 A Crim R 364. Section 136 provides as follows: "136. The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might: (a) be unfairly prejudicial to a party; or (b) be misleading or confusing." 35 The appellant argues that the trial judge mistook or overlooked the effect of s 60. Another possibility is that he limited the use of the evidence pursuant to an implicit exercise of his discretion under s 136. In the latter event, the appellant argues that any such limitation on the way the evidence could be used was wrong. 36 It may be assumed for the purposes of the argument that, in one such manner, the trial judge erred in directing the jury as he did. But Rule 4 then stands in the appellant's way. As I have demonstrated in my review of the course of the trial, from a point in the re-examination of the complainant, the trial judge consistently directed the jury that out-of-court statements did not stand as evidence of the fact. In the summing-up that direction was specifically applied to the DOCS interviews. No objection was taken by the appellant's counsel at the trial to the general terms in which the judge directed the jury during the evidence or to the specific direction in the summing-up. This should be seen as a tactical decision by counsel for the appellant. If what the complainant said to the DOCS officers had been allowed as evidence of the fact - as the appellant now says it should have been - there was the risk that the consistent prior representation - the statement by the complainant to Ms McLaren that she had been raped by the appellant - would also have been admitted as evidence of the fact. Indeed, there was no more reason to limit the use that could be made of the one than of the other. Consistency would seem to have required the same treatment of both. 37 Leave will ordinarily not be granted under Rule 4 where the point not having been taken at the trial is explicable as a tactical decision: PAH (CCA, 18 December 1998, unreported), Gillard (1999) A Crim R 479. I would not grant leave in this case. 38 If, contrary to my view, it were to be considered appropriate to grant leave in this case and these grounds of appeal were made good, I would apply the proviso to s 6 of the Criminal Appeal Act 1912. The present case turned on whether the jury accepted the complainant's evidence of what allegedly occurred. The jury did not think that what was said to the DOC's officers sufficiently affected the complainant's credit for them to have a reasonable doubt about the truth of what she said had occurred. If the jury had been told they could use the interviews as evidence of the truth of what the complainant said on those occasions, as well as going to her credit, I do not see any serious prospect that the result would have been any different. 39 In these circumstances, leave to argue Grounds 4 and 5 should not be given. These grounds of appeal accordingly fail.

Ground 3: His Honour erred in the directions he gave to the jury on complaint evidence in of the summing-up. 40 The appellant's argument is that the representation to the DOCS officers that there had been no sexual assault stood as evidence of that fact, by operation of s 60. It is then said that the trial judge's directions in relation to representations by the complainant which were consistent with her evidence could have been taken by the jury as intended to limit the use of the representation to the DOCS officers, confining the use of that evidence to the complainant's credibility. 41 For the reasons I have given earlier, it seems to me that the trial judge intended, by what he said in the course of the evidence, to limit the use of all prior representations in that way, and that this is what he successfully conveyed to the jury. That was articulated in the summing-up in a way which left no room for doubt that the direction was intended to apply as much to the inconsistent statements as to the consistent ones. 42 That is to sharpen the appellant's argument, not to blunt it. But the approach then leads only to the argument advanced in support of Grounds 4 and 5, and fails, accordingly, for the same reasons.

Ground 1: His Honour erred in allowing evidence of complaint made 20 June 1996 to Marian McLaren.

Ground 2: His Honour erred in granting leave to the Crown under s 108(3) of the Evidence Act 1995 to lead evidence of a prior consistent statement.

43 The trial judge perceived - correctly - that the evidence of complaint to Ms McLaren could be admissible only pursuant s 108. The subject matter of the representation was not admissible under s 66. It was not "fresh in the mind" of the complainant some two years after the event: Graham [1998} HCA 61, 157 ALR 404. As I have recorded earlier in my resume of the trial, his Honour granted leave pursuant to s 108(3) and admitted the evidence of complaint to Ms McLaren. 44 I take the appellant's argument as going both to the re-examination of the complainant concerning the McLaren interview and to the evidence by Ms McLaren herself. Of these, the evidence by Ms McLaren was, of course, more damaging to the appellant because it was independent evidence of what was said by the complainant on that occasion. 45 There was only one point of substance argued on the hearing of the appeal in support of these grounds of appeal. The evidence was admitted under s.108(3)(a), that is, as evidence capable of re-establishing the credibility of the complainant, having regard to the possible effect of prior inconsistent representations, namely, the interviews with the DOCS officers brought out in cross-examination (in which the complainant said nothing had happened). It was submitted that the McLaren interview did not rationally answer the possible effect of the statements to the DOCS officers, because the McLaren interview was some two years after the last of the alleged offences. 46 Different considerations apply in relation to s108(3)(b). Where it is or will be suggested that a witness has fabricated evidence (or that the evidence is reconstructed, or the result of suggestion), a consistent out-of-court statement made as part of the train of events leading to the trial for the offence may not be admissible because it adds nothing to what is said by the complainant in evidence at the trial. In such a case, the out-of-court statement does not rationally answer the suggestion of fabrication, reconstruction or suggestion in relation to the evidence given by the complainant in court. The out-of-court statement merely tells the same story in materially the same context as the evidence given in court. It does nothing for the complainant's credibility that the same story has been told out of court in such a case. 47 By contrast, it a very different situation where evidence has been adduced of a prior inconsistent statement. In such a case, a consistent statement made at about the same time, coupled with an explanation for the inconsistent statement which is connected with the truth of the consistent one has the potentiality to answer the attack on the witness' credibility in a rational way. That is this case. What was said to Ms McLaren, in conjunction with the explanation for the inconsistent statement, had the capacity to provide a rational answer to the attack on the complainant's credibility based on the inconsistent statements made to the DOCS officers in the following month.

Conclusion 48 In my opinion, all grounds fail. I propose that the appeal be dismissed. 49 PRIESTLEY JA: I agree with Sperling J. 50 FOSTER AJA: I agree with Sperling J.

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