Ground 1(b ) - failure by Chief Military Judge to direct himself pursuant to s 165 of the Evidence Act
63 Defence counsel below submitted to his Honour that if he concluded that Recruit Pitt had given prior inconsistent evidence (rather than a prior inconsistent statement) she was then to be characterised as an unreliable witness and he should warn himself in accordance with s 165 of the Evidence Act about her unreliability. He was here referring to Recruit Pitt's evidence in the summary proceedings where she was asked, in respect of the firing range conversation the subject of charge 1, if the appellant could have used the word "girlfriend". She there agreed that he could have. In her evidence at trial she said that he did not and could not have used that expression and explained that she had been confused about the nature of the question in the summary proceedings, understanding it to have been put as, in effect, a hypothetical, that is, he could have used that expression. At trial she said that while he could have, he did not.
64 On appeal the appellant's position was that the obligation to warn was wider than that identified below and encompassed, on the defence case, all the material inconsistencies in the evidence of Recruit Pitt.
65 Section 165 "applies to evidence of a kind that may be unreliable, including the following kinds of evidence…" There follows a recital of broad categories of evidence, for example, that of accomplices, prison informers and those suffering from physical or mental frailty. As a matter of statutory construction the categories, being inclusive in nature, are not closed but, nonetheless, it must be evidence "of a kind that may be unreliable". In R v Baartman [2000] NSWCCA 298 Kirby J, with whom Spigelman CJ and Smart AJ agreed, said at [62]:
In the nature of things, evidence given by all witnesses may be unreliable. Evidence is necessarily dependent upon observation and recollection. Both are fallible. However, s 165 is not dealing with unreliability in this sense. Rather, the need for a warning typically arises either because the jury needs to be acquainted with the accumulated experience of courts in dealing with certain types of evidence, or because there is the danger that the jury may over-estimate the probative value of certain evidence…
66 That passage was quoted with approval by Howie J with whom Hulme J agreed in R v Stewart [2001] NSWCCA 260. His Honour said at [99]:
In my opinion, matters which would not generally attract a warning under s 165 include: prior inconsistent statements made by a witness; inconsistencies within the evidence of a witness; inconsistencies between the evidence of a witness and other evidence in the trial; an allegation of bias made against a witness; or the fact that it has been suggested that the witness had a motive to lie. Evidence which is tainted by any of these types of matters is not for that reason alone "evidence of a kind that may be unreliable". However, as I will indicate later, these types of matters might be made the subject of comment by a trial judge, and, in the case of a crucial Crown witness, a summing up may be defective if no reference is made by the trial judge to such matters when reviewing the case against the accused.
67 A warning need only be given under s 165(2) "if there is a jury and a party so requests": Evans v The Queen (2007) 241 ALR 400 per Heydon J at [231]. Both counsel submitted that a judge sitting alone as the trier of fact in a criminal trial, if requested, would fall within the requirement of s 165(1). To the extent that a judge must expose his process of reasoning in reaching his decision when sitting alone that may perhaps be so, but the underlying rationale for the warning involves, in part, the danger that the unreliability "is not necessarily obvious to a lay mind": R v Spencer [1986] AC 128 per Lord Halisham at 135, quoted with approval by Howie J in Stewart at [75].
68 Assuming, without deciding, that s 165 applies to a judge sitting alone in a criminal trial and the request by counsel encompassed material inconsistencies and not just the summary evidence referred to, there is no reason in this case to have given a warning of the kind contemplated by s 165 about perceived inconsistencies. That is because the alleged inconsistencies by Recruit Pitt were not, by that reason alone, "evidence of a kind that may be unreliable". But because Recruit Pitt's alleged inconsistencies were central to the defence submissions that her evidence ought not to be accepted it was appropriate that his Honour make comment about them. This he did carefully. Of charges 1 and 2 his Honour said:
There is some common ground as to the fact of certain conversations between them [the appellant and Recruit Pitt] and so far as charges 1 and 2 are concerned as to the general tenor of the conversation at the range. However so far as the words alleged to give rise to the charges are concerned Private Pitt is not corroborated, that being so, it is necessary that I scrutinise her evidence with great care before relying on it. There is of course evidence that Private Pitt told other people, including her mother and Corporal Bowerman, of the incidents, which she says occurred, with Sergeant Stapleton. Again, I shall refer to that evidence subsequently but I note at this point that something which is false or exaggerated in the first place does not become true or reliable simply because it is repeated to others. For this reason evidence of Private Pitt's complaint must be treated with caution.
69 Later in his Honour's reasons, after rejecting the appellant's account of the events and conversations at the lines, his Honour said:
As I have already indicated, the fact that I may not accept Sergeant Stapleton's evidence on the events does not mean that Private Pitt's evidence should therefore itself be accepted. As I have said, it is necessary to scrutinise her evidence with great care and I have done this having particular regard to the matters put to her in cross-examination.
70 His Honour said:
I have carefully considered all the learned defending officer's submissions concerning the potential unreliability of Private Pitt's evidence. I shall refer in some detail to which I consider the more significant issues but I have carefully considered the issues in their entirety.
71 His Honour then said:
The next issue to which I have turned my mind are the inconsistencies between Private Pitt's evidence of what she told Mrs Pitt and Corporal Bowerman and what those witnesses say Private Pitt said to them. I do not attach a great deal of weight to Private Pitt's evidence of what she says that she told her mother or Corporal Bowerman. Private Pitt's concern would logically have been focused on the events, which she says gave rise to the complaint, rather than to the form of the complaint itself, particularly if she believed the underlying allegations to be true. In this regard I prefer the evidence of Mrs Pitt and Corporal Bowerman. I accept that both made notes of what was said and I am satisfied that the versions they say they received from Private Pitt were generally consistent with Private Pitt's allegations in court.
72 His Honour set out what Corporal Bowerman said was the content of his conversation with Recruit Pitt on 26 March 2007 and concluded:
I do not, for example, see very much turning upon Private Pitt saying to Mrs Pitt that Sergeant Stapleton had said that he wanted to see Private Pitt naked as opposed to, "Just remember I will be mentally undressing you every time I see you". I have also looked carefully at the events which Private Pitt agreed in cross-examination that she also alleged were perpetrated by the then Corporal Stapleton but which are not the subject of charges before this Court. This is the elbow squeeze in the room and the incident when she says Corporal Stapleton pointed his cane at her and said he was watching her and the conversation during the debrief on training on 21 March.
73 Of the complaint that Recruit Pitt had given inconsistent testimony in the summary hearing which founded the application for the s 165 direction below, his Honour concluded:
Private Pitt was cross-examined about inconsistent testimony before the commanding officer. In connection with Private Pitt's cross-examination before the commanding officer concerning the words used by Corporal Stapleton while they were on the range. She was asked a question in the following terms, and this is from exhibit 16, question:
He asked if you batted for the other team, that may not have been the correct term to use, but could he have been asking and possibly used another world like, "Do you have a girlfriend?"---He could have.
The question potentially involves two propositions: firstly, could Corporal Stapleton have been asking, "Do you have a girl friend?" Secondly, could Corporal Stapleton possibly have used another word like, "Do you have a girlfriend?" That being so it is difficult to contribute [sic] the concession given by Private Pitt in her evidence. It could have related to both propositions or only one. I think there is no issue that agreement with the first of these propositions would be consistent with her evidence before me. When asked about this in these proceedings she said, when she was in court before the commanding officer she was flustered, it seemed more like the defending officer was saying it would have been more appropriate to say, "Do you have a girlfriend?"
Having regard to the two propositions that the question of the summary proceedings entailed I consider that response satisfactory.
74 His Honour engaged in a scrupulous analysis of the evidence mindful of the weaknesses in Recruit Pitt's evidence. There was no requirement to make specific reference to s 165 nor to consider that that provision required any particular warning to be given or to articulate care greater than that which his Honour set out in his reasons. The appellant's real complaint is that his Honour was satisfied, notwithstanding some inconsistencies, that they were explicable by reference to the distress suffered by Recruit Pitt together with an assessment that, in essential matters, there was no inconsistency between her evidence and the evidence of Mrs Pitt and Corporal Bowerman and that she was an honest and reliable witness. In truth, the inconsistencies were largely peripheral to the main issues. His Honour's rejection of the account by the appellant of the events the subject of the charges was based on a coherent analysis of the whole of the evidence.