New Evidence
56 Prior to the trial a voir dire was conducted as to the admissibility of the evidence of the complainant on the basis that the complainant's memory had been recovered or reconstructed in such a manner that it was unreliable and, accordingly, was inadmissible. Alternatively, it was submitted the evidence was so unreliable that the trial judge should exercise his discretion under s137 of the Evidence Act to exclude the evidence.
57 Before the trial judge the Appellant primarily relied on this Court's decision in R v Tillott (1995) 38 NSWLR 1 which drew an analogy between hypnotically induced testimony and the evidence of a person who had undergone a form of memory recovery known as eye movement desensitisation and reprocessing (EMDR). In that case the evidence was held to be inadmissible. In this case the trial judge admitted the evidence.
58 The case for the Appellant before the trial judge was based on an expert opinion from a clinical neuro psychologist, Dr Andrew Gibbs, who gave evidence to the effect that the evidence of the complainant showed signs of being based on a reconstructed or recovered memory and was unreliable. The Crown called an associate professor of psychiatry from the University of New South Wales, Dr Quadrio, whose evidence to the contrary was preferred by the trial judge.
59 The complainant asserted, before the trial judge as in this Court, that she had never forgotten the general features of the abusive relationship she had had with her brother, although she accepted that she may have lost sight of some details.
60 One of the few pieces of evidence before the Court, on which Dr Gibbs had based his opinion, was a letter which the complainant had written to her mother. In his judgment on the voir dire the trial judge said:
"It is true that within this letter there are statements that are consistent with someone who is trying to remember parts of things that have happened in the past but cannot remember all of them, but it is not, in my view, contrary to what Dr Gibbs says, self-evident that [the complainant's] memory was being reconstructed.
I prefer the evidence of Dr Quadrio who says that the statements in this letter are consistent with a person who does have a memory of the basic facts but has lost the detail. Dr Quadrio says this is common, and I accept that evidence."
61 His Honour rejected the submission that the complainant's evidence was inherently unreliable. He also refused to exercise his discretion under s137 of the Evidence Act to exclude the evidence.
62 The additional evidence which has become available to the defence goes to the issue of whether or not the complainant did in fact retain, as she asserted during the course of her evidence on the voir dire, a recollection of the general substance of the events of which she complained.
63 A witness, Ms Elizabeth Gunn, swore an affidavit in these proceedings indicating that she has known the family of the Appellant and the complainant since 1972. In her work as a primary school teacher she had contact with the special education needs of the complainant's stepson. In that capacity she became aware that the stepson was upset and discovered from his teacher that it had something to do with sexual abuse allegations by the complainant against the Appellant. Ms Gunn said that she had a conversation with the complainant about this matter. She said:
"When I asked why she had waited so long to do something about it, she said that she had only recently remembered it. I asked how the memories had surfaced and she said it was at her natural son's birthday party. I asked what had specifically triggered the memory. There was a long pause and then she said vaguely 'A curtain moving at a window'. I asked her about what she had done when she had experienced these memories and she said that she had just continued with the party. She said that she had not exhibited any physical symptoms."
64 A second witness, Ms Glenda Gilmore, who was a teacher of the complainant's stepson, swore an affidavit and said that another teacher at the school, Ms Julie Sheppard, became the friend and confidante of the complainant. She said that Ms Sheppard had shown her a letter written by the complainant. Ms Gilmore said:
"The letter included a statement by [the complainant] that she had recently begun experiencing very disturbing distress.
She said that this distress was being caused by her having very recently remembered being sexually abused by her brother, [PV], when she was a child. She said that these memories were only just coming back to her for the first time."
65 Ms Sheppard swore an affidavit about her conversations with the complainant about the complainant's stepson. She indicated that the complainant had written a letter to her and annexed that letter to her affidavit. She referred to the evidence of Ms Gilmore and said that the letter annexed to her affidavit was the only letter she had shown Ms Gilmore. That letter made no reference of the character identified in Ms Gilmore's evidence.
66 The complainant swore two affidavits in this Court. She asserted that she had always remembered what had happened to her and had never said that she had "only recently remembered it". She said that she had no recollection of writing a letter of the character to which Ms Gilmore referred.
67 Dr Andrew Gibbs was shown the affidavit of Ms Gunn and found that the evidence about the recent revival of the complainant's memory that Ms Gunn gave was consistent with his earlier opinion, which he reiterated forcefully. He said that the new evidence was consistent with his conclusion that this was a case of recovered or restored memory.
68 None of the deponents were cross-examined in this Court.
69 The Appellant's submission in this Court does not assert that the fresh evidence was such as to require the rejection in its entirety of the complainant's evidence. Nor was it submitted that the exercise of a discretion under s137 should have led to the exclusion of the evidence. It was submitted that this was evidence which may have assisted the accused's case by having "a further impact on the jury's assessment of the complainant's reliability which might have rendered that evidence of even lesser weight, so that even when combined with the evidence given by [SV], it was still insufficient to establish guilt in relation to the fifth count on the indictment." Nevertheless, the Appellant conceded that as the jury only convicted where there was corroboration, the new evidence "is not of compelling force".
70 The new evidence goes only to credit. By reason of the denial by Ms Sheppard, an independent witness, the evidence of Ms Gilmore is entitled to little weight. In the absence of cross-examination in this Court of either the complainant or Ms Gunn, it is difficult to assess what, if any, impact that evidence would have had in the case, if admissible at all. The evidence of Ms Gunn has probative value, however, I am not able to conclude that if taken into account with all the other evidence, it may have given rise to a reasonable doubt about the complainant's veracity.
71 In the case of "fresh evidence", an appropriate formulation of the applicable test is whether, if the new evidence had been before the jury, there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant (Gallagher v The Queen (1985) 160 CLR 392 at 396, 400-402; R v Hemsley (NSWCCA, 8 December 1995, unreported). The onus is on the Appellant to establish that the absence of the evidence resulted in a miscarriage of justice.
72 In my opinion, the Appellant has not discharged that onus. The jury did not convict on the uncorroborated evidence of the complainant. The new evidence as presented to this Court does not have sufficient force to have led the jury to conclude that the complainant's recollection was in fact a recent one. I do not believe that there would have been a significant possibility of an acquittal if the evidence of Ms Gunn and Ms Gilmore had been before the jury.
73 Alternatively, the Crown submitted that the evidence was not admissible. The new evidence is relevant only to the complainant's credibility and, the Crown submitted, is inadmissible by s102 of the Evidence Act. This "credibility rule" is subject to the exceptions in Part 3.7. The Appellant invoked s103 and s106.
74 Section 103 refers to evidence adduced in cross-examination. The new evidence of Ms Gunn and Ms Gilmore is sought to be adduced as evidence in chief. Section 103 is inapplicable.
75 Section 106 relevantly provides:
"The credibility rule does not apply to evidence that tends to prove that a witness:
(a) is biased or has a motive for being untruthful, or
(b) has been convicted of an offence, including an offence against the law of a foreign country, or
(c) has made a prior inconsistent statement, or
(d) is, or was, unable to be aware of matters to which his or her evidence relates, or
(e) has knowingly or recklessly made a false representation while under an obligation, imposed by or under an Australian law or a law of a foreign country, to tell the truth,
if the evidence is adduced otherwise than from the witness and the witness has denied the substance of the evidence."
76 The issue turns on the proper construction of the words "unable to be aware of matters" in s106(d). Section 104 is relevant:
"(1) This section applies only in a criminal proceeding and so applies in addition to section 103.
(2) A defendant must not be cross-examined about a matter that is relevant only because it is relevant to the defendant's credibility, unless the court gives leave.
(3) Despite subsection (2), leave is not required for cross-examination by the prosecutor about whether the defendant:
(a) is biased or has a motive to be untruthful, or
(b) is, or was, unable to be aware of or recall matters to which his or her evidence relates, or
(c) has made a prior inconsistent statement."
77 As can be seen s106(a) and (c), relating to bias and prior inconsistent statements, are in identical terms to s104(3)(a) and (c). There is however a significant difference between s104(3)(b) and s106(d). The former extends to a case where an accused is or was "unable to be aware of or recall matters to which his or her evidence relates". The italicised words "or recall" are excluded from s106(d), so that it applies only to matters of which a witness was "unable to be aware".
78 This is an important distinction for present purposes. The substance of the new evidence sought to be adduced is an inability to recall, i.e. the complainant had only recently remembered. It is not of a character which falls within the concept of inability "to be aware".
79 The suggestion has been made that the omission of the words "or recall" in s106(d) may have been inadvertent. (See Odgers Uniform Evidence Law 4th ed par 106.6). The issue is whether this Court should construe s106(d) as if it applied to recollection as well as awareness.
80 There is a line of authority which suggests that the Court may sometimes "read words into an Act". On my reading of the authorities, and I acknowledge that this is not the only possible reading, this is not an accurate description of what is involved in the process of interpretation that is sometimes so described. (See my discussion of the authorities in R v Young (1999) 46 NSWLR 681 at [5]-[32]).
81 It is no part of the function of a judge to supply words believed to have been omitted by the legislature per se. What a court does is to construe the words actually used by the legislature, with an effect as if certain words appeared in the statute. The words so 'included' reflect in express, and therefore more readily observable, form, the true construction of the words actually used.
82 The task of the courts is to determine what Parliament meant by the words used, not to determine what Parliament intended to say (see the authorities collected in Young supra at [5]). The task is to interpret the words of the legislature, not to divine the intent of the legislature (see State v Zuma (1995) 4 BCLR 401 at 402; Matadeen v Pointu [1999] 1 AC 98 at 108).
83 In a passage which has been frequently applied by Australian courts (see the authorities referred to in Young supra at [10]), Lord Diplock formulated three conditions for the process of "reading" words into an Act (Wentworth Securities v Jones [1980] AC 74 at 105). However, the opening words of the frequently cited passage by Lord Diplock include:
" … the task on which a court of justice is engaged remains one of construction; even where this involves reading into the Act words which are not expressly included in it."
84 To similar effect are the references as to how a provision should be "read" in the course of "adding or omitting words" as part of an "interpretative function" or a process of "interpreting a statute", in the application of Lord Diplock's conditions by Lord Nichols of Birkenhead delivering the judgment of the House of Lords in Inco Europe v First Choice Distribution [2000] 1 WLR 586 at 592.
85 In Inco the court took words of general application, namely "any decision of the court under that Part" and found that the particular composite phrase did not extend to the full scope of the dictionary definition of the words used. As a matter of construction, the phrase "under that Part" was read down so that it applied only to some sections in the particular Part of the Act.
86 The most frequently cited authority on legislative inadvertence in Australia, Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 also involved a process of reading down words of general application, a recognised process of statutory construction (see Young supra at [17]-[22]).
87 The process remains one of construction if the words actually used by the Parliament are given an effect as if they contained additional words. That is not, however, to "introduce" words into the Act. It is to construe the words actually used. Interpretation must always be text based. The reformulation of a statutory provision by the addition or deletion of words should be understood as a means of expressing the court's conclusion with clarity, rather than as a precise description of the actual process which the court has conducted.
88 The authorities which have expressed the process of construction in terms of 'introducing' words to an Act or 'adding' words have all, so far as I have been able to determine, been concerned to confine the sphere of operation of a statute more narrowly than the full scope of the dictionary definition of the words would suggest. I am unaware of any authority in which a court has 'introduced' words to or 'deleted' words from an Act, with the effect of expanding the sphere of operation that could be given to the words actually used. This was the actual issue in Young. There are many cases in which words have been read down. I know of no case in which words have been read up.
89 The introduction of the words "or recall" into s160(d) would expand the sphere of operation of that section. It is not, in my opinion, a permissible process of statutory construction.
90 In any event the conditions identified by Lord Diplock in Wentworth v Jones supra at 405 are not satisfied here. It is not "apparent" to me that the drafter has "omitted to deal with an eventuality that required to be dealt with if the purpose of the Act was to be achieved".
91 I do not believe that this Court can be sure that Parliament intended s106(d) to have the same operation as s104(b). There is a distinction between s104 and s106. The former applies to cross-examination of an accused. The latter applies to the introduction of evidence contradicting the evidence of a witness, including that of an accused. Parliament may not have taken the same attitude to evidence by one person about another person's ability to recall as it did to cross-examination of an accused about his or her own ability to recall. The two sections have different purposes. (See McNicol "Credit, Credibility and Character under the Evidence Act, 1995 (NSW) and (Cth)" 1999 23 CrimLJ 339 at 346-352).
92 In my opinion the evidence sought to be used was not admissible. Accordingly, for two alternative reasons, this ground of appeal should be dismissed.