Stenner-Wall v R

Relevant Facts

1. The reasonableness of maintaining proceedings is assessed against the accepted fact that the Crown case depended on any jury accepting KW beyond reasonable doubt as to the allegations she made against the applicant.
2. The applicant was interviewed by police on 26 and 27 August 2020 and provided his version of events. Accordingly, the Crown was required to establish that the version given by him could not reasonably possibly be true and to convince the jury to put his evidence to one side and consider only the reliability of KW.
3. The ultimate question therefore is, on all of the relevant facts, whether KW was so substantially lacking in credit that it was unreasonable for the Director to rely on her as a witness to prove the case against the applicant.
4. The relevant facts are as follows: 1. KW was always a reluctant witness because: 1. She did not originally complain to police. Her mother complained. 2. She was initially reluctant to proceed with any allegations. There was a period of delay in her reporting the alleged assaults. 3. She failed to keep a police interview appointment on 1 August 2017. 4. She attended upon police on 3 August 2017 in the company of her mother and signed a statement, stating that she did not wish to be interviewed and did not require an Apprehended Violence Order for her protection. 5. She did not attend a subsequent police interview appointment on 5 March 2018. 1. The Crown had the benefit of a direction at trial, and it is the case, that even genuine and credible witnesses can be initially reluctant to report. 2. KW ultimately agreed to be interviewed on 19 March 2018, almost a year after the alleged events. The delay in itself would not in my view make it unreasonable to continue with the prosecution. 3. Whilst KW's account in her interview was inconsistent with her sister's account, it is to be expected that some inconsistencies may arise even with credible complainants and there is no reason to think that the jury might reject KW on that basis. KW's sister was also an unwilling witness. 4. KW was unwilling to co-operate with police in the further investigation and in fulfilling the Crown's disclosure obligations. Despite requests by police, she failed to provide her correct Snapchat and Instagram log-in details, despite having consented to do so on two occasions (28 June 2018 and 8 October 2018), a fact that of itself undermines her credit and which gave rise to a reasonable apprehension that she was in possession of material that did not assist the Crown case. 5. By the time police obtained KW's Snapchat log-in details on 15 November 2018, no relevant messages remained. Indeed, KW had deleted such messages on 29 August 2017 after the allegations had first been raised with police, a matter that significantly undermined her credit. 6. The Snapchat history showed that KW and the applicant remained in communication for at least three months after the alleged sexual assaults, inconsistent with them having occurred in the way KW had alleged. 7. Allowing for consideration that not all genuine victims of sexual abuse act in ways that one can expect, or which allow for one to distinguish between genuine and false complaint, six matters are relevant: 1. KW alleged that forced sexual assaults had occurred in her home surrounded by her family. This included her sister and her father (who was likely in the house on at least one occasion). Police did not have statements from either of them. 2. Despite the alleged offending, KW continued to invite the applicant to her home for about a week. 3. KW gave an inconsistent account as to when she ended her relationship with the applicant. 4. KW's record of interview contained internal inconsistencies. There were also inconsistencies between her account to police and her evidence in Court. 5. Contrary to the Crown case on a lack of consent, according to her friend EB, KW told her that she enjoyed the sexual activity with the applicant. EB was also a reluctant witness. 6. KW gave an inconsistent account as to what she told EB, both as to some of the physical acts and her enjoyment of them. 1. KW had seen the statement made by EB, thus at least potentially contaminating the evidence, further undermining the Crown case. KW's explanation about when and in what circumstances she saw EB's statement potentially further undermined her credit. The statements by the relevant police were either unrevealing or had not been obtained.
5. Finally, it is necessary to consider, if appropriate, the fact that when challenged, KW refused to return to the witness box rendering her evidence to that point questionable, and rendering her evidence in chief largely untestable. That occurred in the following circumstances: 1. KW left the remote witness room without the Court's notice, or consent, claiming that the questions were going to "piss her off", and she did not "want to talk about it": transcript on 13 November 2023 at page 30. 2. She also stated, "I don't want to do this anymore, I'm over it": transcript on 14 November 2023 at page 51. 3. Despite the best efforts of all involved, KW refused to return to the room.
6. In my view, for reasons that I will come to, there is no question that KW's conduct rendered her an utterly incredible and unreliable witness. A witness who refuses to engage with any question because she does not want to is the least credible of any witness.

Is the Conduct of KW in Refusing to Give Evidence a "Relevant Fact"?

1. In support of the Director's submission that KW's conduct, in refusing to answer questions, is not a relevant fact, the Crown Prosecutor referred me to a number of District Court decisions.
2. The first of these is R v Ferguson (DCNSW, 9 February 2007, unreported) ("Ferguson") in which Sorby DCJ ordered a verdict by direction arising from "the action of the complainant to decide not to give further evidence and declined to do so". His Honour was persuaded that "relevant facts" were limited to only those facts being "an examination of the evidence, whether already adduced, or to be adduced, capable of bearing on the tribunal of fact's decision". Part of his Honour's reasoning involved consideration of Allerton v DPP (1991) 53 A Crim R 33 ("Allerton"), in which his Honour recorded that a question a court must ask is "addressed to evidence of all the relevant facts" (emphasis added by his Honour).
3. With respect, I cannot agree with his Honour's consideration of the issue because: 1. The Costs Act should not be read in a way which limits the reach of its application: Allerton and cited with approval in Rodden v R [2023] NSWCCA 202 ("Rodden") 2. The beneficial nature of the Costs Act should be fully borne in mind: Allerton at [559] - [560]; Mordaunt v The DPP [2007] NSWCA 121 at [36] ("Mordaunt") and cited with approval in Rodden. 3. In my view, his Honour misquoted Allerton when he recorded his decision at [16]. Allerton is authority for the proposition that the question a court must ask is addressed to: "All of the relevant facts, whether discovered before arrest or before committal (if any), after committal and before trial, during the trial or afterwards whenever they became known to the prosecution and whether or not evidence in the trial". 1. His Honour in Ferguson applied a test, that relevant facts were confined to "evidence of all the relevant facts", and restricted himself to "evidence discovered, collected and collated" and found therefore that it did not include the refusal of a witness to give evidence. 2. In my view, there is no basis, either by consideration of the words of the Costs Act itself, or of its purpose (to compensate a defendant who has been subjected to a trial process that is objectively unreasonable), to restrict the operation of the Costs Act to evidence given or to be given, and not to include a refusal by a crucial witness to give evidence rendering her so substantially lacking in credit that it was unreasonable for the Crown to continue in the proceedings. 3. Later authority makes that position clear. The Costs Act requires a consideration of the position at the time proceedings were instituted or continued in light of "what was known and became known about the facts of the case"; Rodden at [156]. It is clear that it extends beyond an examination of the evidence available at trial and extends to any fact that might impact on the credibility of a witness: Mordaunt. 4. "The facts of the case", as referred to in Rodden, include whether any witness on which the case depended was so very substantially lacking in credit such that it was unreasonable for the Crown to have relied on it, and that without the witness it would have been unreasonable to have brought the prosecution: R v Hatfield [2001] NSWSC 334, per Simpson J at [14]. 5. In respect of Ferguson, once it is accepted that "relevant facts" include an assessment of the credibility of a witness, assuming all that is ultimately known about that witness, then it must necessarily include a refusal by the witness to continue her evidence if the witness sees fit to exclude herself. The words of the section do not prevent such a consideration, and in my view, it is a relevant fact.
4. The Crown also drew my attention to the decision of R v Bloomfield (DCNSW, 21 June 2019, unreported) ("Bloomfield") in which a complainant, during cross-examination, "indicated that she did not wish to continue giving evidence".
5. Lakatos DCJ referred to Mordaunt and McColl JA's seminal observations that "other facts will also be relevant going to the question posed by s 3(1)(b) and to the ultimate question including inherent weakness in the prosecution case". Whilst "matters of judgment concerning credibility, demeanour and the like" may not be sufficient in some cases, it was obvious that they remain to be considered as "relevant facts" in the appropriate case.
6. In my view that statement is sufficient to find that the refusal to give evidence is a relevant fact.
7. Further, in my view, a refusal of a witness to be questioned is not "a matter of judgment concerning credibility". It is, rather, a fact that renders the witness entirely incredible. It is not a matter of considering the reasonableness of a prosecution based on the word of a complainant against the word of a defendant (referred to in the decisions as "word on word cases", a blunt summary where there is no real corroborative evidence in the Crown case). It is a situation, rather, where the witness refused to give the entirety of her word particularly where her word was subject to challenge. The immediate withdrawal by the Crown of the prosecution was merely an acceptance of the obvious. Mindful of the direction required by R v Markuleski (2001) 52 NSWLR 82, without the witness continuing, the case could not possibly proceed on any count.
8. In Mordaunt, the reasons for the witness not wishing to give evidence on appeal was relevant. Mordaunt supports the conclusion that consideration is not limited to "evidence". To limit the evidence in the way suggested by the Crown in this matter is in my view contrary to Mordaunt.
9. It is also relevant to note the breadth of the relevant facts in Mordaunt that need to be considered including as her Honour did at [64], any fact, "to ensure an objective review of the criminal prosecution upon which a person was ultimately acquitted, discharged or had his or her conviction quashed in order to determine whether, in all those circumstances, it was not reasonable that that person should have been exposed to the proceedings in the first place."
10. Lakatos DCJ had regard to Kamali v R; Mosawi v R; Shahsawari v R; Bejoushin v R [2013] NSWSC 799 ("Kamali") in which a number of witnesses had not come up to proof. R A Hulme J accepted that the prosecution is assumed to know that witnesses will not come up to proof rather than it being a matter where a jury may not accept the evidence. The former is a relevant fact telling in favour of a certificate. His Honour considered, as a relevant fact, the "hypothetical knowledge that the evidence [in the statements] may never be given".
11. Whilst I accept that KW completed her evidence-in-chief, I see no material difference in holding that the prosecution is assumed to have the hypothetical knowledge that the witness will not complete her evidence, and that this is also a relevant fact. In my view, KW failed to "come up to proof" in a most serious way.
12. Lakatos DCJ accepted in Bloomfield that an important witness who has been totally discredited is different to an attack being made on her credit and that where it could be held that the witness had little or no credit at all, an application for a certificate might be successful. Having made that finding, it is difficult, with respect, to see why his Honour did not regard, as entirely without credit, a witness who "would seek to take numerous breaks and ultimately refuse to give evidence in cross-examination" such that the prosecution had to be withdrawn mid-stream.
13. Further, I do not agree with his Honour's conclusions that such a witness, as with the majority of cases, is "thought to be deficient in the quality of the evidence but nonetheless could be accepted as a witness of truth". I am of the view that such a witness has little or no credit, no matter her reasons for refusing to continue.
14. I note the difference in Bloomfield, where the witness was held to be unable to continue as she was overcome with stress, where KW was simply annoyed and unwilling to continue. However, in my view, it matters not; the prosecutor is assumed to know that the evidence for whatever reason will not be completed, such that the matter must be withdrawn and it is itself therefore unreasonable to commence.
15. At [41] in Bloomfield, his Honour appears to consider relevant, the likelihood that the evidence would not be given. With respect, in my view that misapprehends the relevant test laid down in the Costs Act. Compensation arises where it is assumed that the evidence would not be given. It is not a provision that seeks to impugn a prosecutor's decisions, made on judgment, as to the "real possibilities" as to the outcomes. The test deliberately eschews such a course, but rather assumes, that the evidence is not given and whether in that circumstance a prosecution could otherwise be supported and whether, if that was known, it would have been unreasonable to institute or continue the proceedings.
16. His Honour in Bloomfield did not regard the situation as analogous to Kamali where there was "the unexpected, unavailability of an important witness" and held that had it been truly analogous, his Honour would have been bound to follow that decision or at least find it highly persuasive. His Honour concluded that it was not analogous because the witness had given some evidence including of the essential ingredients of the offences before she was unable to continue. In my view that is an irrelevant consideration. The relevant fact is, in my view, that once the witness refuses, or is unable to complete her evidence, such that the prosecution cannot be completed, it becomes objectively unreasonable to have started it. I am unable to follow his Honour's reasoning in that case and indeed I found the principled reasoning in Kamali to have been persuasive.
17. I was also provided with the decision of R v Peter Anthony Quinn [2014] NSWDC 59 ("Quinn") before Haesler SC DCJ, where a key witness (a child complainant in a sexual assault trial) indicated that she would not be returning to Court in the middle of her cross-examination, and the Director directed no further proceedings, there being insufficient evidence to convict. His Honour's remarks were very brief. His finding was that, "the Director was not to know that at trial the complainant's frustration would mean that she would refuse to submit to cross-examination. In any event that is not a relevant consideration".
18. Similarly in this case, the Director could not have known that KW would refuse to continue. I have been at pains in my engagement with the Crown Prosecutor, Ms Mulley, to record that the Crown in this case has, in my view, acted impeccably at all times.
19. For the reasons stated, I cannot agree with the decision in Quinn.

The Effect of a Refusal to be Cross-Examined

1. In my view, the Director is assumed to know by reason of the tests laid down in the Costs Act that the witness would refuse to submit to cross-examination. In my view, this renders the witness utterly devoid of any credit as a reliable and honest witness no matter what reason can be divined for her departure, such that it would be unreasonable to rely on her in support of a prosecution that relied entirely on her to prove the elements alleged against the defendant. That fact was made abundantly clear by the fact that once it was known to the Crown Prosecutor that the witness refused to continue, she almost immediately withdrew the case in clear acceptance that without the witness she had no case.
2. The language and purpose of the Costs Act deliberately avoids the requirement to make good any criticism of the witness, or of the prosecution in the particular case and the need for any interrogation into the reasons why a witness may not wish to continue, perhaps other than in a general consideration of the discretion. Whilst it is true that the Director, in some cases that I have referred to, has waived privilege and the reasons for the discontinuance has been apparent, that is something that the Costs Act avoids having to occur. It avoids both the need for the Director to waive privilege or any studious avoidance of such suspicion as to why a witness refused to continue. It means that it is irrelevant, whether or not the witness could have a good reason for refusing to continue. It is the fact of that failure to continue that is the relevant fact.
3. Finally, I have had regard to Fisher v R [2024] NSWCCA 68. I agree that an unwilling or angry witness, who threatens to leave and not to continue her evidence may, or may not, be credible and that this is a matter for the jury such that it is not necessarily unreasonable to put her forward. The same is true of a sad and vulnerable witness as was the case in Quinn. However, where a witness refuses to continue, that of itself undermines her credibility completely because she is unwilling to have her account tested.
4. Section 306U(3) of the Criminal Procedure Act 1986 (NSW) provides that KW (as a vulnerable person who gave evidence as to sexual offending against her) must subsequently be available for cross-examination and re-examination. Section 306U(3) applies as if it required the witness to be available: LF v R [2023] NSWCCA 232 at [40].
5. The Court in Tikomaimaleya v R [2017] NSWCCA 21 referred to cross-examination as "a necessity".
6. In A2 v R; Magennis v R; Vaziri v R [2018] NSWCCA 174, the provision was interpreted as mandating cross-examination, that is to say that the evidence could not be accepted without it being attended with cross-examination if that was required.
7. In the time available to me, I have not been able to locate a decision that clearly sets out the status of the evidence that has been given once a witness refuses to be cross-examined further. Much may depend on the extent and the timing of the refusal and the attitude of the parties as to whether the entirety of the evidence would be rejected.
8. In this case, KW had been tested to some extent only on two counts. Immediately before refusing to continue, she conceded that she did not know if she had told the police the truth, a matter that of itself was extremely telling as to her lack of credit. At that point she said that she did not wish for a break; she did not wish to do this anymore; that she was over it; and that she was done.
9. It has been useful to consider the analogous situation, where a witness prepares an affidavit but who refuses to be cross-examined on it. It appropriately most often leads, absent any consent, to the affidavit being rejected wholesale because it is objectively, by reason of it not being able to be tested, so substantially lacking in credit. See for example in Juul v Northey [2010] NSWCA 211 at [17].
10. The Uniform Civil Procedure Rules 2005 (NSW) r 35.2 provides that, if a person who proposes to use an affidavit as the evidence in chief and does not attend to be cross-examined, the affidavit may not be used at all. See for example Trade Right New South Wales Pty Ltd v Bank of Queensland Ltd (No 12) [2012] NSWSC 1363.
11. Underlying the civil rule is the principle that if a witness is not willing to submit themselves to cross-examination the risk of the evidence being so fundamentally unreliable is such that it ought not be allowed to be used at all. See Martin v NRMA Insurance Limited [2000] FCA 773 in respect of the Federal Court Rules.
12. I am mindful that some authorities and rules that I have referred to arise in the civil jurisdiction. In my view, the principles are no different in any criminal matter. Indeed, the credibility of such a witness, given the onus of proof on the Crown in respect of such a witness, and the need for proof beyond reasonable doubt that is required, makes a rejection of the evidence in those circumstances more likely.

Was KW so Lacking in Credit?

1. The relevant fact in this case is that KW, the key witness on which the prosecution depended, did not continue. The refusal by KW to continue was provoked by relevant and respectful questions challenging her account, and in particular her lack of honest account to police.
2. KW was a witness who was otherwise somewhat lacking in credit as outlined in the other relevant facts, and although I may not have granted a certificate on the basis of any one of them alone, considering most of those matters to be properly matters for the jury, it remained the fact that there was much to cross-examine on that had not been traversed before KW absented herself from the courtroom never to return.
3. There was no reasonable basis upon which any jury could convict in that circumstance, and the Director had little choice but to direct no further proceedings.
4. In all the circumstances, I am of the view that given all the relevant facts, assumed to be known by the hypothetical prosecutor, it was unreasonable to initiate the proceedings where the case depended on KW being accepted beyond reasonable doubt as an honest and reliable witness. Whilst each of the matters alone may not give rise to such a finding, overall KW was so lacking such that the finding was open. Indeed, given KW's final concession before she left the witness box that she may not have told the truth to the police, and taking into account all of the other matters relied on, such a finding would have been open without taking into account KW's refusal to continue her evidence.

Orders

1. I grant the certificate in respect of counts 2, 3, 4, 5, 8, 9, and 10 on the indictment and in the terms provided to me by the applicant's legal representatives.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 August 2024