(d) The idea that Jenkinson's reply be struck out emanated from the judge and his Honour proceeded to strike out that evidence despite the persistence of the crown prosecutor in his attitude that the evidence should stand and he should be allowed to cross-examine Jenkinson under s 38 in respect thereof, and despite the opposition of the appellant's counsel.
26 The obvious relevance of Jenkinson's reply, the rolled-up question, which in a sense explained - if it did not invite - the answer in the terms given, the failure of the prosecutor to object at the time, and the opposition of the parties to the course of conduct proposed by the judge, lead me to conclude that his Honour erred in striking out the material.
27 The next question is whether his Honour erred in refusing to allow counsel for the appellant to cross-examine Jenkinson so as to elicit in cross-examination the evidence that had been struck out.
28 As appears from the comments made by the judge, he considered that the evidence should not be the subject of cross-examination as it was "strictly irrelevant" and would "expand the case into areas where it need not go, both in relation to this witness and potentially in relation to other witnesses". His Honour gave another reason for refusing to allow cross-examination and this needs to be noted. The crown prosecutor had informed the judge that there was an ongoing relationship between Jenkinson and the appellant and, by implication, submitted that Jenkinson had a motive to give false evidence about the issue in question. His Honour appeared to accept that this was a reason for not allowing cross-examination on the matter.
29 His Honour erred, as I have said, in regarding Jenkinson's testimony as irrelevant. This disposes of the factor that to allow cross-examination would expand the case. That Jenkinson may possibly have been lying (as to which I can express no opinion), had no bearing on the question of cross-examination - save to the extent that, had the evidence not been struck out, or had it been adduced by the defence in cross-examination, there would have been strong grounds for the application under s 38 of the Evidence Act foreshadowed by the crown prosecutor.
30 It follows, in my opinion, that Dodd DCJ erred in striking out Jenkinson's evidence on the grounds relied upon by him and in refusing to allow the appellant to cross-examine Jenkinson about the issue, the subject of the evidence that was struck out.
31 Next, it is necessary to determine whether that error led to a miscarriage of justice. Two questions arise. Firstly, is it the case that Jenkinson's evidence was hearsay and inadmissible as such? If the answer to this question were to be in the affirmative it would mean that no miscarriage of justice occurred as the evidence should have been struck out and no cross-examination allowed, in any event. If the answer to the question were to be in the negative, the further question arises as to whether the striking out of the evidence and the refusal to allow the appellant to cross-examine Jenkinson resulted in a miscarriage of justice.
32 I shall deal, firstly with the question whether Jenkinson's evidence was hearsay, and - hence - inadmissible.
33 Mr Stratton QC (who appeared for the appellant in the appeal) submitted, that Jenkinson's evidence was admissible as evidence of prior consistent statements by the appellant. Implicitly, this involves a concession (that was inevitable) that Jenkinson's evidence was hearsay, but that it was nevertheless admissible under an exception to the rule against hearsay.
34 The exception on which Mr Stratton relied is that which holds that hearsay evidence of prior consistent statements is admissible to rebut allegations of recent invention or reconstruction. The rule was explained by Windeyer J in Nominal Defendant v Clements (1960) 104 CLR 476 at 494 as follows:
"The kind of imputations and allegations that - if sufficiently clearly made - will let in prior consistent statements are: First, that the witness' testimony is a recent fabrication, in the sense of being invented at or after a particular time. Evidence that he had said the same thing before that time becomes admissible. Secondly, that his testimony was the result of some motive, bias, influence or moral duress operating from some particular time and not before. Evidence that he had said the same thing before that time becomes admissible. The two situations can obviously overlap and in many of the cases in which the evidence was admitted elements of both operated".
35 Dixon CJ expressed similar views at 479 to 480 and warned that caution was required in applying the recent invention rule. He said (at 479):
"But, in as much as the rule forms a definite exception to the general principle excluding statements made by the witness, great care is called for in applying it."
36 The crown prosecutor opened his case by pointing out that Mr Hall of Nambucca would say that "by October/November" 1994 the appellant or Austwide had raised invoices claiming fees "for some consultancy and management type work" (Black 68). Hall in fact testified that on 15 November 1994 he received three invoices reflecting charges by Austwide, the first of which was dated 14 October 1994, the second was dated 8 November 1994 and the third was dated 15 November 1994. The first two invoices reflected charges for work done and the third specifically claimed $2,000 for "management fee, head office on account … ". Hall's evidence in this respect was not challenged.
37 In opening, the prosecutor asserted to the jury that the appellant's claims in the first two invoices that he was entitled to be paid for work done, and the claim in the third invoice that he was entitled to a management fee, were false. The prosecutor also contended that any like claims that may have been made in any other, later, invoices (that is, those which the jury might consider were sent) were equally false. The Crown persisted in these contentions throughout the trial.
38 In effect, it was common ground between the parties that by 15 November 1994 the appellant had begun sending invoices to Nambucca claiming fees pursuant to a management agreement. The appellant contended that he had continued to send invoices (amounting to 20 or 30 more) making such claims and the Crown argued that this contention was false.
39 For Jenkinson's evidence about the statement the appellant allegedly made to him "some time in November" to constitute a "prior consistent statement" by the appellant (so as to permit it to be admitted in to evidence as an exception to the hearsay rule), the statement in question would have to have been made prior to the time the appellant commenced sending invoices claiming management fees. But, on Hall's unchallenged evidence, he received the first invoice in which such a claim was made on 15 November 1994 (that is, more or less at the same time that the appellant made the statement in questions to Jenkinson).
40 In the circumstances, in my view, Jenkinson's evidence does not tend to rebut the Crown's suggestion that the appellant's claim to be entitled to fees for consultancy work was a fabrication. The fact that, at about the time the appellant began claiming fees from Nambucca for consultancy work, he told others that he was entitled to fees on the same basis, takes the matter no further.
41 For these reasons, in my opinion, Jenkinson's evidence did not become admissible on the ground of the recent invention doctrine.
42 Mr Stratton did not refer to s 108 of the Evidence Act and the Court did not raise that section with him. The Court, did raise s 65 and s 66 of the Act with Mr Stratton and, in view of the conclusion to which I come in regard to s 66, it is unnecessary to discuss s 108.
43 Section 65 provides:
"1. This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact …
8. The hearsay rule does not apply to:
(a) oral representation of a previous representation adduced by a defendant if the evidence is given by a person who saw, heard or otherwise perceived the representations being made …"
44 Section 66 provides:
"(1) This section applies in a criminal proceeding if a person who made a previous representation is available to give evidence about an asserted fact.
(2) If that person has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by:
(a) that person; or
(b) a person who saw, heard or other perceived the representation being made;
if, when the representation was made, the occurrence of the asserted fact was fresh in the memory who made the representation".
45 Admissibility of hearsay evidence under s 65 or s 66 depends upon the "availability" of a witness to give evidence (s 65(1) and s 66(1)).
46 Paragraph 4 of the dictionary to the Evidence Act provides:
"1. For the purposes of this Act, a person is taken not to be available to give evidence about a fact if:
(a) …
(b) the person is, for any reason other than the application of s 16 (competence and compellability: judges and jurors), not competent to give the evidence about the fact …
…"
47 Section 17(2) of the Act provides that a defendant in a criminal proceeding "is not competent to give evidence as a witness for the prosecution". There is, of course, nothing that precludes a defendant from giving evidence as part of his or her own case.
48 Thus, a defendant in criminal proceedings is not competent (and hence not "available") to give evidence as part of the prosecution case, but is competent (and "available") to give evidence as part of his or her own case.
49 In the present case it is necessary to judge the admissibility of Jenkinson's evidence under s 65 and s 66 on a notional basis. That is because the question of hearsay was not advanced at the trial and it is necessary, for the purposes of the appeal, to judge whether, had the point been taken, the evidence would have been admitted. I assume that, had the Crown taken the point that the evidence was hearsay, the appellant would have contended that the evidence was admissible under either s 65 or s 66. The admissibility of the evidence in question under either section depends, in the first instance, upon whether the appellant was "available to give evidence".
50 "Availability," in the sense the term is used in s 65 and s 66, concerns the availability of a witness to be called to give evidence and to be cross-examined. That is, availability to testify about the veracity of representation previously made by the witness to another person. In the present circumstances, the critical aspect of the appellant's availability is whether he would notionally be available, as part of his case, to confirm that the statement he had made to Jenkinson was true. The appellant was, in fact, so available. In the circumstances, in my opinion, the appellant was available to give evidence within the meaning of s 66(1). In other words, the appellant was available, as part of his case (albeit not as part of the Crown case) to give evidence about the representation he had made to Jenkinson.
51 On the basis of this reasoning, the only remaining issue that needs to be addressed under s 66(2) is whether, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the appellant (see s 66(2)).
52 As the issue of hearsay was not canvassed at the trial, the issue of freshness was not canvassed. In Graham v The Queen (1998) 195 CLR 606 Gaudron, Gummow and Hayne (at 608) said:
"The word 'fresh', in its context in s 66, means 'recent' or 'immediate'. It may also carry with it a connotation that describes the quality of the memory (as being 'not deteriorated or changed by lapse of time') but the core of the meaning intended is to describe the temporal relationship between 'the occurrence of the asserted fact' and the time of making the representation. Although questions of fact and degree may arise, the temporal relationship required will very likely be measured in hours or days, not, as was the case here, in years".
53 The appellant contended that the consultancy agreement was arrived at in September 1994, and the work done for the fees in question must have been performed in the period between September and November 1994. According to Jenkinson, the appellant gave the "representation" "some time in November 1994".
54 Accordingly, the occurrence of the asserted fact (to which s 66(2) requires regard to be had) - namely, that the appellant had done some consultancy work for the Nambucca group and was expecting some fees to come through - was likely to have been "fresh" (in the sense of Graham) in the appellant's memory at the time he made the representation to Jenkinson.
55 In the circumstances (and having regard to the fact that the issue was not raised at trial and the appellant had no opportunity of dealing with it there), I am of the opinion that this Court should deal with the issue as if Jenkinson's evidence, although hearsay, was capable of being elicited by either party in the proceedings as, by virtue of s 66(2), the hearsay rule did not apply thereto.
56 Accordingly, I consider that Dodd DCJ erred in refusing to allow the appellant to cross-examine Jenkinson and to elicit the evidence that in November 1994 the appellant represented that he was involved in some consultancy work and was expecting some fees in that connection.
57 The next question to be considered is whether, despite the error, the appeal should be dismissed on the ground that "no substantial miscarriage of justice has actually occurred (s 6(1) of the Criminal Appeal Act 1912).
58 In Glennon v The Queen (1994) 179 CLR 1 Mason CJ, Brennan and Toohey JJ (at 9 to 10) said:
["It should not be accepted] that the proviso [the Victorian equivalent of the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW)] will never be applied where the misdirection goes to the accused's credibility. The assessment of whether the proviso should be applied depends upon the circumstances of each case, and it would not be appropriate to lay down such an absolute rule …"
59 It is convenient to deal with the question whether there the proviso should apply after all the grounds of appeal have been considered. It is at that stage that the entire circumstances of the case are best considered.
60 The second ground of appeal is that his Honour erred in permitting the crown prosecutor to cross-examine the witness Ian Harris under s 38 of the Evidence Act.
61 Harris was an employee of Austwide. Apparently, he was also a long-standing friend of the appellant and was perceived by the Crown "to be fairly solidly in the defence camp". Nevertheless, the Crown decided that he should be called as part of its case. In making this decision, the crown prosecutor believed that Harris might give evidence capable of being unfavourable to the Crown in three areas. The first concerned the existence of a management agreement. Harris had stated previously that he had seen a management agreement being executed. Secondly, at the committal proceedings the appellant had produced a copy of a minute dated 25 October 1994 purporting to authorise the entering into by Nambucca of a management agreement with Austwide. The Crown contended that that minute was a forgery. On an earlier occasion, Harris (contrary to the Crown case) had testified that he had seen Hall sign that minute in front of him. The third area concerned the number of invoices sent by Austwide or the appellant to Nambucca. Harrris had testified previously that more than 20 invoices had been sent by Austwide or the appellant to Nambucca, although, according to the prosecutor Harris had given various accounts as to the precise number of invoices that had been sent.
62 The Crown decided to call Harris to testify about other matters and, in the light of his prior evidence in regard to the first two areas I have mentioned, not to question him in chief about them. In regard to the invoices, the Crown decided to ask Harris only about certain specific invoices that had been found and which were tendered in evidence. His evidence in chief proceeded in this way.
63 In cross-examination, Counsel for the appellant asked Harris about the management agreement but he did not testify that he had seen it being executed. Harris said that he had a belief that he had seen such an agreement but could not say when. He was not asked about the minute of 25 October 1994. Thus, the Crown's decision not to ask Harris any questions in his evidence in chief about these topics was forensically successful.
64 Counsel for the appellant referred to the invoices about which Harris had testified in chief. He asked Harris whether, between the end of September to the end of December 1994, any other invoices were raised by Austwide at the appellant's direction. Harris replied that somewhere between 20 and 30 invoices were so raised. Later, in his cross-examination, he said that the 20 to 30 invoices had been raised in relation to Nambucca.
65 In the course of re-examination, the crown prosecutor applied to cross-examine Harris under s 38 of the Evidence Act in regard to his evidence about the 20 to 30 invoices. In making the application the prosecutor informed the Court that "the assertion that invoices were raised in greater number is certainly something that he has sworn to previously, although the number of varieties seem to vary". The prosecutor submitted that the evidence about the invoices was unfavourable to the Crown. He accepted that he had not been taken by surprise by the evidence that Harris had given.
66 Counsel for the appellant, in opposing the application, informed Dodd DCJ that:
"The Crown has been on notice that this was the gentleman's evidence, that there were 20 to 30 invoices raised in relation to Nambucca".
67 Dodd DCJ granted leave to the Crown and said:
"I make that ruling notwithstanding the terms of sub-section 4 of s 48. But questioning under this section is to take place before the other parties cross-examine a witness, unless the Court otherwise directs. So I for that purpose am otherwise directing".
68 The prosecutor proceeded to question Harris and his questions on the issue of the 20 to 30 invoices occupy some eight pages of the transcript. Harris was asked about evidence he had given earlier in the year in the Supreme Court. Harris agreed that he had said that he could not accurately state the number of invoices sent by Austwide to Nambucca from the end of September 1994 to the end of December 1994. He agreed that he had said that he would have sent more than ten and probably more than 20, but he accepted that he had "no real recall".
69 The 20 to 30 invoices was an important part of the defence case. Dodd DCJ, in the course of his directions to the jury, described the Crown's approach to these invoices as follows:
"The Crown says to you in essence that apart from those invoices that we actually have in evidence and that were paid, no additional work was done for other invoices, but no other invoices actually exist. They were not seen by Mr Hall, Mr Phillip Hall and that you would accept his evidence on that rather than the evidence of Mr Parkes and that of Mr Harris such as it is, that up to 20 to 30 other invoices did exist for amounts totalling up to $165,000 or so".