Regina v Abdulkader & Hohaia

The Applicant's Submission. 14 Upon the basis of this material, the applicant sought leave under s108(3) of the Act to tender the statement made by Mr Dibb to the solicitor on 29 June 2004. The statement began with these words (MFI 33): "1. On Wednesday 3 December 2003, at approximately 12.00 midnight I was at my house at 53 Barremma Road, Lakemba." 15 The remainder of the statement simply described, in terms similar to Mr Dibb's evidence, his visit to the 7/11 restaurant at midnight, the journey to Haldon Street, Lakemba, the sighting of Mr Abdulkader and their conversation. 16 Mr Scragg of counsel for Mr Abdulkader relied upon s108(3)(b). It is convenient to set out the entire section which is in these terms: "s108(1) The credibility rule does not apply to evidence adduced in re-examination of a witness. (2) (Repealed). (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." 17 Since leave is required, s192 is also relevant and is as follows: "s192(1) If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit. (2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account: (a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing, and (b) the extent to which to do so would be unfair to a party or to a witness, and (c) the importance of the evidence in relation to which the leave, permission or direction is sought, and (d) the nature of the proceeding, and (e) the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence." 18 Mr Scragg acknowledged that the Crown had not suggested fabrication. The Crown had, or would, in final address, suggest that Mr Dibb had either identified the date (3 December 2003) as a result of suggestion, or that his evidence was the product of reconstruction. 19 The words of s108(3)(b) are very broad, extending beyond the questions asked of the witness, to implications arising from such questions. Here it was not put, in terms, that the recollection of Mr Dibb was either the result of suggestion or the product of reconstruction. Nonetheless, that is the implication. The Crown will undoubtedly ask the jury to infer mistake by Mr Dibb, either as the result of suggestion or reconstruction. The words of s108(3)(b) are therefore satisfied. The issue arises whether leave should be given. 20 In Graham v The Queen (1998) 195 CLR 606, Gaudron, Gummow and Hayne JJ identified two important issues in the exercise of the discretion under s108(3). Their Honours' said this: (para [8]) "[8] In exercising the discretion under s108(3) to permit the adducing of evidence of a prior consistent statement, it is important to bear two matters in mind. First, s108 creates an exception to the 'credibility rule' - the rule that evidence that is relevant only to a witness's credibility is not admissible (s102). Second, it is important to identify how the evidence relates to the statutory premise for its admission. Whether, if admissible, the complaint becomes evidence of the truth of what is asserted is not relevant to the exercise of the discretion to give leave under s108. The exercise of the discretion under s108 depends upon the effect of the evidence on the witness's credibility: here, the suggestion of fabrication." (emphasis in original) 21 Dealing with the first issue, Howie J made the following observations in DBG (2002) 133 A Crim R 227: (at 241) "... Further the evidence is not being admitted in order 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 either by proof that the witness has made a statement inconsistent with the evidence now being given or an allegation that the evidence that is being given is a fabrication, reconstruction or the result of suggestion." 22 The second issue in Graham concerns the importance of identifying the statutory basis for admission and the capacity of the material to address that issue. Gaudron, Gummow and Hayne JJ dealt with that issue, in the context of the case before them, as follows: (para [9]) "[9] How does the making of a complaint six years after the events bear upon that question? Unless the making of the complaint can be said to assist the resolution of that question, the evidence of complaint is not important (cf s192(2)(c)) and would do nothing except add to the length of the hearing (cf s192(2)(a)). And in this case, it is by no means clear that the making of a complaint six years after the event does assist in deciding whether the complainant had fabricated her evidence. Although trial counsel for the appellant suggested to the complainant, by his last question in cross examination, that she was 'making it all up' the allegation of fabrication of evidence did not loom large in the trial. No question was put, and no answer was given, from which the time of alleged fabrication could be identified. The complaint having been made in 1994, and it having led at once to the start of police investigations, it may be doubted that a jury could gain assistance from its making in deciding whether the complainant had fabricated her story." 23 Hunt CJ at CL spoke of the same issue in BD (1997) 94 A Crim R 131 in these words: (at 141) "... However, the ability of the prior consistent statement to answer the suggestion must remain a matter to be considered in determining whether leave is to be granted." 24 Here, the implication arising from cross examination was that Mr Dibb's description of having seen Mr Abdudlkader on Wednesday 3 December 2003 between 12.30 and 1.00 am was the result of suggestion or reconstruction. How does the making of a statement seven months after the event, in terms which simply repeat the assertion that he saw Mostafa Abdulkader on Wednesday 3 December 2003, assist in determining whether his evidence was the product of reconstruction or suggestion? In my view it does not. The other material in the statement (that is, apart from the date in paragraph 1) was not the subject of challenge or serious challenge by the Crown, such as to raise an issue of credibility concerning Mr Dibb. As to the date, the statement does not add to the evidence given by Mr Dibb himself. It does not enlarge upon his thought processes as to how he knew, some weeks after the event, that the date he had seen Mr Abdulkader was Wednesday 3 December 2003, or how he appreciated that his sighting of Mr Abdulkader was relevant to the charge which he faced (which involved an appreciation of the timing of the assault causing death). The statement does no more than the jury would infer having heard Mr Dibb's evidence, namely, that he had told the solicitor on 29 July 2004 that he saw Mostafa Abdulkader on Wednesday 3 December 2003 between 12.30 and 1.00 am. I doubt whether the jury would get any assistance from the statement in determining whether in fact Mr Dibb had arrived at the date by a process of reconstruction or suggestion. 25 Addressing the issues under s192(2), the evidence, were it admitted, may lengthen the hearing, although not by much. The Crown has foreshadowed that, were leave given and the statement admitted, it may seek leave to further cross examine Mr Dibb upon that statement (s192(2)(a)). No particular unfairness attaches to either party (s192(2)(b)). For the same reasons as given in Graham, that is, because the statement really does not address the credibility attack, nor assist in resolving the issue of reconstruction or suggestion, I do not regard the evidence as important (s192(2)(c)). The evidence, of course, is tendered in the course of a murder trial (s192(2)(d)). Section 192(2)(e) does not arise. 26 For these reasons I refused leave to tender the statement of Mr Dibb in re-examination. **********