The Queen v Majak [2022] NTSC 57

[4]

EVIDENCE - Defence application to re-call complainant for cross-examination regarding hearsay evidence that complainant said she is 'setting up' the accused - Complainant had been overseas but now present in the jurisdiction - Significant probative value of evidence supports re-call - Failure to cross-examine complainant on this point on previous occasion was no fault of defence - If witness gives evidence at trial, complainant should be re-called for cross-examination regarding the hearsay representation.

The Queen v Majak [2022] NTSC 57 | Case summary | Zoe

[10]

[1] By an indictment dated 23 November 2020, the accused was charged with one count of sexual intercourse with the complainant without her consent, contrary to s 192(3) of the Criminal Code. On 26 May 2022, the defence filed a notice seeking to adduce certain evidence as tendency evidence pursuant to s 97 of the Evidence (National Uniform Legislation) Act 2011 (NT) ('ENULA'). Essentially, the proposed tendency evidence related to complaints made to police by the complainant against two other men, alleging that they had committed acts of violence against her. On 27 May 2022, the defence filed a notice seeking to adduce essentially the same evidence as coincidence evidence pursuant to s 98 of the ENULA. At the hearing of the voir dire on 1 June 2022, the defence abandoned the tendency evidence application and pressed the coincidence evidence application. At that hearing, I granted the defence's application for an adjournment to obtain and place before the Court further evidence on the coincidence evidence application. At a mention on 21 June 2022, the defence abandoned the coincidence evidence application and filed a tendency notice seeking to adduce the evidence relating to only one of the complaints made by the complainant. Later on 21 June 2022, the defence filed a slightly different tendency notice seeking to adduce essentially the same evidence related to that single complaint. At the further hearing of the voir dire on 12 July 2022, the defence sought to orally amend the tendency notice to add reference to the other of the two complaints made by the complainant.
[2] The trial is listed for 2 August 2022 for seven days. The complainant is a 'vulnerable witness' within s 21AB(c) of the Evidence Act 1939 (NT). At trial, her evidence will comprise recorded statements given to police on 14 and 23 March 2021 admitted pursuant to s 21B(2)(a) of the Evidence Act and the audio-visual recording of her examination at a special sitting on 30 July 2021 pursuant to s 21B(2)(b). The defence made an application for the complainant to be recalled to be cross-examined about the two complaints made by her against the other men (i.e. to adduce some of the proposed tendency evidence) and about a statement she is said to have made to one of those other men to the effect that she is 'setting up' the accused because he was not nice to her, which statement is pressed both as tendency evidence and as evidence of the fact.
[3] The Crown opposed both the tendency (and ultimately abandoned coincidence) evidence application and the application for the complainant to be recalled.

[11]

[4] The Crown case against the accused is as follows.
[5] The accused and the complainant were 'loose acquaintances' who had met on two occasions before the alleged offending on 14 March 2020. They were both members of the Palmerston Sudanese community.
[6] On the evening of 13 March 2020, the complainant went to the accused's home for a social gathering. A number of people were present, including the accused's housemate ('JK'). Both the accused and the complainant consumed alcohol during the evening. During the evening, the accused tried to position himself as close as possible to the complainant on the couch, and the complainant resisted those attempts, pushing him away and telling him to give her space.
[7] The complainant became heavily intoxicated. She fell asleep on the couch in the living room. The accused picked her up and carried her to his bedroom. She was not in an alert state and was not supporting her own weight as she was carried into the bedroom.
[8] At around 9.00am on 14 March 2020, the complainant woke up alone in JK's bedroom. She was no longer wearing her underwear. She left the home and sought assistance from neighbours to call the police.
[9] Police searched the home and found the complainant's underwear and her shoes in the accused's bedroom. A used condom was found in the kitchen rubbish bin. After forensic analysis, the complainant's DNA was found on the outside of the condom and the accused's DNA was found on the inside.
[10] When police spoke to the accused outside the home, he denied having sexual intercourse with the complainant, but said he had kissed her. In a formal record of interview on 18 May 2020, the accused denied engaging in sexual intercourse with the complainant, but then said he had tried to have sexual intercourse with her but was unable to do so.
[11] The Crown alleges that the accused engaged in penile/vaginal sexual intercourse with the complainant while the complainant was incapable of consenting by reason of her level of intoxication, and her incapacity to give consent was apparent to the accused and would have been apparent to any reasonable person. The defence case is that consensual sexual intercourse took place.

[29]

[17] The complaint identified in the tendency notice is a complaint against SJ ('SJ complaint'). The complainant provided a statement to police on 13 August 2021 (Exhibit D6) alleging that, on 12 August 2021, she was assaulted by SJ, a man she had been in a relationship with for about two months. She alleged that, after they had been drinking alcohol, he had attacked her and wrestled with her after she had forced her way into a locked bedroom in which he, her phone and the remaining alcohol were located. She said he had hit her on the face with a beer bottle, thrown her to the floor and repeatedly punched her to the face. She said he then choked her and slammed her face to the floor. She was observed by police to have injuries to her face and upper arm (photographs were received: Exhibit P3) and was taken to hospital for treatment. A video recording made on a mobile phone was received (Exhibit P2) which was taken from the hallway outside the bedroom where the incident was said to have taken place and through the closed bedroom door. A male and a female voice can be heard yelling, the female voice also sobs or makes sounds of distress and calls out that she cannot breathe a number of times. Both voices yell for police to be called. The male voice yells words to the effect that 'you are not going anywhere until the police arrive'. SJ was charged on complaint (Exhibit D4) with aggravated unlawful assault causing harm, threatening the victim with a beer bottle, choking a person in a domestic relationship and deprivation of liberty. The Crown facts (Exhibit D5) replicated the complainant's statement. SJ denied the charges. He gave a recorded statement to police on 13 August 2021 (a transcript of which was provided by the defence on 28 June 2022) in which he said that, after she broke the door to gain access to the bedroom, she attacked him, beating him and hitting him including with a glass bottle. He said she was 'crazy' and he tried to restrain her but she 'went off'. He said he was on the ground and she was throwing bottles at him, hitting him and biting him. He said he bit her back to get her off him. He said she was still hitting him and throwing bottles. He said she cut herself with a bottle. He said he was telling the other person present (Dan Makar, whose home and bedroom it was) to call police and was holding her down to stop her doing more damage. The charges were dismissed by the Local Court on 16 February 2022. The Local Court was not satisfied, beyond reasonable doubt, that the prosecution had discharged the self-defence argument or that what occurred was not a 'consensual fight', and found SJ not guilty of all charges.

[36]

[23] In oral submissions explaining why a tendency to initiate violence towards men would be probative in this case, defence counsel conceded that such a tendency, without the additional aspect of making a false complaint about who initiated the violence, would have no probative value in this case. Consequently, the alleged tendencies in paragraphs (a)(vi) and (vii) can be put to one side.
[24] In oral submissions explaining why a tendency to make allegations whether true or false would be probative in this case, defence counsel drew a distinction between a tendency to make a false allegation (that is, a tendency to deliberately tell an untruth, to lie) and a tendency to make an unreliable allegation (that is, one that could not safely be acted on by a jury because it was either false or inaccurate).
[25] Despite that, the alleged tendencies in the tendency notice are either described as being 'false allegations' or the reliability of the allegations is not mentioned. Defence counsel explained that, essentially, what the defence seeks to establish[4] by the proposed tendency evidence is that the complainant is an unreliable witness who has a tendency to make false or unreliable allegations against men that they assaulted or committed crimes against her when they did not, so her evidence cannot safely be acted upon by the jury. That tendency was pressed to raise the relevant reasonable possibility consistent with innocence[5] that the complainant's account that she was too intoxicated to consent to sexual intercourse with the accused is false or unreliable. By contrast, a tendency to make allegations against men which are or may be true would not raise a reasonable possibility consistent with innocence. Such a tendency would have no probative value in the defence case.
[26] By s 100(1) of the ENULA, the Court has a discretion to dispense with the requirement to give notice under s 97 and allow tendency evidence to be admitted despite the failure to give that notice. The defence argued that, to the extent necessary, the Court could 're-draft' the tendency notice to capture the essence of the alleged tendency actually put by the defence.[6] I note that in DPP v Wilson,[7] Taylor J held that the proposed tendency evidence did not support the tendency alleged, but some of the evidence supported some of the tendency alleged, and that if the tendency were phrased differently, some of the tendency evidence would be supportive of it and significantly probative of the reasonable possibility that the account of the accused was true. Her Honour allowed the application in relation to those parts of the tendency evidence that supported the re-phrased alleged tendency.
[27] Given what was pressed by the defence at the hearing, and that the Crown was not prejudiced and was able to respond to the defence submissions, I will deal with the application to adduce the proposed tendency evidence on the basis that the alleged tendency of the complainant is a tendency to make false or unreliable allegations against men that they assaulted or committed crimes against her when they did not, and her evidence cannot safely be acted upon by the jury. In the reasons which follow, I will refer to this tendency as 'the alleged tendency'.

[38]

[28] In light of these matters, the Crown argued that the proposed tendency evidence is actually credibility evidence within the credibility rule in s 102 of the ENULA. Section 102 sets out the credibility rule, providing that credibility evidence about a witness is not admissible. There are various exceptions to the credibility rule.[8]
[29] 'Credibility evidence' is defined by s 101A as evidence relevant to the credibility of a witness that is relevant: (a) only because it affects the assessment of the witness's credibility; or (b) because it affects the assessment of the witness's credibility and for some other purpose for which it is not admissible or cannot be used. 'Credibility of a witness' is defined to mean the credibility of any part or all of the evidence of the witness, and includes the witness's ability to observe or remember facts and events about which the witness has given, is giving or is to give evidence. Credibility imports notions of both truthfulness and reliability.[9]
[30] Ultimately, the proposed tendency evidence is relevant because it affects the assessment of the credibility of the complainant and for no other reason. The proposed tendency evidence is sought to be led for the purpose of establishing the alleged tendency which is said to be probative of the issues in the case. On that basis, it might be thought that the evidence falls within s 101A(b) of the definition of 'credibility evidence' because it is relevant 'for some other purpose', namely to establish a tendency. However, the defence seeks to adduce the proposed tendency evidence in order to prove the falsity or unreliability of the SJ complaint and the MA complaint in order to establish that the complainant has the alleged tendency, the essence of which is that she is an unreliable witness, in order to have the jury reject her evidence about the accused. That is, in substance, the reasoning applicable to credibility evidence, i.e. the complainant has told false or unreliable stories before, in circumstances where she was required to tell the truth, making her an unreliable witness whose evidence about the sexual intercourse with the accused should be rejected. Consequently, it cannot be said that the evidence is relevant because it affects the assessment of the credibility of the complainant and for some other purpose. The sole purpose of the proposed tendency evidence is its relevance as affecting the assessment of the complainant's credibility. The proposed tendency evidence is therefore credibility evidence within the credibility rule.
[31] The question then arises as to what flows from that conclusion, particularly as to whether credibility evidence can be admitted as tendency evidence. In my view, it cannot. No authority has been located which deals with this question. It is a question of statutory construction which turns on the terms of the relevant provisions, their context, and the mischief to which they are directed.
[32] The rationale for the common law genesis of the credibility rule was described by McHugh J in Palmer v The Queen,[10] as follows:

[41]

[33] This rationale is reflected in the constraints on admissibility of credibility evidence in Part 3.7 of the ENULA.
[34] The clear intention of s 101A is that the provisions of Part 3.7 relating to credibility evidence operate in respect of evidence which is relevant because it affects the assessment of a witness's credibility unless the evidence is also relevant and admissible for some other purpose, in which case the provisions relating to the admissibility of the evidence for that other purpose will operate, and the evidence may be used to affect the assessment of the credibility of that witness even if it would not satisfy the provisions of Part 3.7 if they had applied.[11] Under that scheme, there is no scope for evidence to be both credibility evidence and tendency evidence. That is confirmed by s 94(1), which provides that Part 3.6 (dealing with tendency and coincidence) does not apply to evidence that relates only to the credibility of a witness.
[35] Usually, tendency evidence relates to a tendency on the part of the accused or another person (such as the complainant) to engage in behaviour or have a state of mind which is directly operative in relation to the alleged offending, such as a tendency to aggression or violence or sexual misconduct or the like. The defence was not able to identify any case in which evidence going to a witness's reliability was admitted as tendency evidence. The reason for that would appear to be because such evidence is not pressed as tendency evidence within Part 3.6 of the ENULA; it is dealt with as credibility evidence within Part 3.7.
[36] On this basis, the defence application to elicit evidence about the SJ complaint and the MA complaint as tendency evidence must be refused.
[37] In case I am wrong in the conclusion that Part 3.6 has no application to the proposed tendency evidence, I will consider the remaining issues about the admissibility of what I will continue to refer to, despite the conclusion that it is not tendency evidence but credibility evidence, as 'the proposed tendency evidence'.

[44]

[40] The tendency rule is set out in s 97 of the ENULA. Generally speaking, evidence of a person's character, reputation or conduct, or a tendency they have or had, is not admissible to prove they have or had a tendency to act in a particular way or to have a particular state of mind (s 97(1)). Such evidence is admissible if the party seeking to adduce the evidence gave reasonable notice in writing to the other party(ies) of their intention to adduce the evidence; and the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value (s 97(1)).
[41] 'Probative value' means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.[16]
[42] Tendency evidence will have significant probative value if it could rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent.[17] A 'significant' probative value is a probative value which is important or of consequence.[18] The term 'significant' connotes something more than mere relevance but less than a substantial degree of relevance and requires a judicial evaluation of whether the hypothetical jury would rationally think it likely that the evidence is important in relation to the determination of the fact(s) in issue.[19]
[43] In the context of an application by the prosecution to adduce tendency evidence, it is well accepted that the evaluation of the probative value of the proposed tendency evidence involves consideration of two interrelated but separate matters: first, the extent to which the evidence supports the tendency; and second, the extent to which the tendency makes more likely facts making up the charged offence.[20] Where the application to adduce tendency evidence is made by the defence, this is not done to prove a tendency which makes more likely facts making up the charged offence. In such contexts, it has been accepted that the analysis still requires consideration of the two interrelated matters, but the test must of necessity be different because the accused does not bear any legal onus of proof.[21] In such circumstances, the evidence is pressed in order to establish, as a reasonable possibility, a state of facts consistent with the innocence of the accused; rather than, where tendency evidence is pressed by the prosecution, in order to establish beyond reasonable doubt facts that make up the charged offence. It follows that evidence which could be classified as having 'significant' probative value in a defence application may not be so classified if it were a prosecution application, and the test for the admission of tendency evidence is easier to satisfy where the evidence is sought to be adduced by the defence than where tendency evidence is sought to be adduced by the prosecution.[22]

[50]

[47] The first question is the extent to which the proposed tendency evidence supports the alleged tendency, i.e. a tendency to make false or unreliable allegations against men that they assaulted or committed crimes against her when they did not.
[48] There is a problem with the proposed tendency evidence in this regard. In assessing the probative value of proposed tendency evidence, the evidence must be taken at its highest (i.e. it must be assumed that it will be accepted and regarded as both reliable and credible) and no question as to the credibility or reliability of the evidence should, for that purpose, be entertained.[24] The proposed tendency evidence about the SJ complaint comprises what the complainant said in her complaint (that SJ assaulted her), what the complainant might say about that if further cross-examined, what SJ said (that he did not assault her, but rather she attacked him and he then acted in self-defence and/or in protection of the property from damage by her), what SJ might say about that in cross-examination, what the other witnesses said (the witness who recorded the video was not present in the bedroom where the incident occurred and the other witness's presence was disputed - he said he did not enter the bedroom until the violence was essentially over, while the complainant said he saw the whole thing), the video footage containing the sounds coming from the bedroom during the incident and the photographs of the complainant's injuries. If it be assumed that the jury will accept all of that evidence as reliable and credible, it is not possible to determine the extent to which the proposed tendency evidence supports the alleged tendency because the evidence pulls in opposite directions. On that basis, the jury will not be able to determine, with any rational degree of satisfaction, whether the SJ complaint was true or whether the complainant was lying or was an unreliable witness whose testimony could not be safely acted on.
[49] As regards the MA complaint, the problem is, at best, the same, but potentially worse. The only proposed tendency evidence before me about the MA complaint is the complainant's statement to police and the statement of the eye witness who said she saw and heard the incident in the car. There is nothing before me as to what MA has said about the complaint, if anything. Assuming that the complainant would confirm her version of events if cross-examined at the accused's trial, the proposed tendency evidence does not have the capacity to support the alleged tendency to make false or unreliable complaints. If MA were to give evidence at the accused's trial about the incident, and to deny it, then the same observations as made in paragraph [48] above in relation to the SJ complaint apply.
[50] Defence counsel argued that the way to deal with this difficulty was to take the same approach as Kelly J took in The Queen v Smiler (No 2).[25] In that case, the proposed tendency evidence related to the commission of three previous assaults by the complainant on two previous occasions to establish a tendency to serious violence in certain circumstances. The proposed tendency evidence comprised the agreed facts on the guilty plea in relation to one previous occasion, evidence from a witness of the alleged assault on the other previous occasion, and the proposed cross-examination of the complainant about both incidents. Because there was sufficient evidence for the issue of self-defence to be put to the jury, her Honour held (at [15]-[18]) that the proposed tendency evidence met the threshold of 'significant probative value' for defence tendency applications. The Crown argued that the proposed tendency evidence relating to the alleged assault was likely to result in an undue waste of time within s 135 of the ENULA because the evidence of the eye witness was disputed, which would result in extensive cross-examination on a side issue, evidence in rebuttal and a 'trial within a trial'. The complainant had refused to provide a statement about the incident so it was unknown what he would say. Her Honour held that she was unable to say whether there would be a dispute about the incident and, if so, what issues and evidence might be opened up. She concluded that the best course would be to allow cross-examination of the complainant about both incidents and reserve judgment on the question of what other evidence (if any) would be allowed in.
[51] That proposed course does not address the difficulty in relation to the SJ complaint. It is clear that there is quite an extensive array of conflicting and disputed evidence. As regards the MA complaint, either the complainant's version of events would be confirmed, meaning the proposed tendency evidence would not support the alleged tendency, or MA would dispute the complainant's version of events and all of the evidence relating to the complaint would be led, including that of the eye witness, investigating police and medical records, with the jury left to determine, if possible, whether the complainant's version of events was false or unreliable or not. If the truth or reliability of the SJ complaint or the MA complaint are indeterminable, the probative value of the proposed tendency evidence is negligible.

[52]

[54] It is not necessary that the conduct relied on as tendency evidence be strikingly or even closely similar conduct to, or that it have an underlying unity with, the charged conduct.[27] However, the closer the degree of similarity, the more significant and more probative the evidence is likely to be, because the specificity of the tendency directly informs the strength of the inferential mode of reasoning.[28] Similarity may be supplied as much by the circumstances in which particular conduct occurred as by the similarity of the conduct itself, such that, even if the conduct is not necessarily similar or particularly so, a close similarity of circumstances in which the relevant conduct occurred may render the tendency evidence of 'significant probative value'.[29] The case of TL v The Queen referred to in paragraph [52] above is an example of this proposition. The level of generality of the alleged tendencies may affect its proba[30]ve value.30 As the High Court observed in Hughes, a tendency expressed at a high level of generality might mean that the tendency evidence provides significant support for the tendency, but that the tendency cannot establish anything more than relevance, whereas a tendency expressed at a level of particularity will be more likely to be s[31]nificant.31
[55] The SJ complaint and the MA complaint involve the complainant alleging that two different men committed physical acts of violence against her, causing physical injuries. In the accused's case, he has said the sexual intercourse was consensual, whereas the complainant says she was too intoxicated to consent. There is no allegation of physical violence against the accused, and no suggestion he caused the complainant any physical injury. Neither the SJ complaint nor the MA complaint involve allegations of a sexual nature. The complainant was in a relationship with SJ for about two months before the SJ complaint incident, and had known MA for around 12 or 13 years, had dated him some seven years before, and had recommenced a friendship with him two months before the MA complaint incident. She had only met the accused twice, as acquaintances, before the night of the alleged offending. The complainant had drunk alcohol on the night of the alleged offending, and on the night of the SJ complaint, but was not intoxicated at the time of the MA complaint.
[56] Defence counsel admitted that the references in the alleged tendencies set out in the tendency notice to circumstances such as the complainant consuming alcohol; being or drinking 'in the company of men'; and being in a 'casual intimate relationship' with the man complained about were simply attempts to give greater particularity to the alleged tendencies in order to enhance their probative value. The difficulty is that those circumstances were not present in relation to each of the two incidents the subject of the proposed tendency evidence and the alleged offending. For example, the alleged tendency to falsely claim that violence in which she took part was initiated by the man when she herself initiated it only potentially applied to the SJ complaint. It had no relation to the MA complaint or the alleged offending. The proposed tendency evidence does not support, to any significant degree, the tendencies described with those matters of particularity.
[57] Furthermore, to argue that the proposed tendency evidence supports multiple (here, 10) particular tendencies all expressed differently is substantively the same thing as arguing that the proposed tendency evidence supports a single tendency expressed with generality. The application is not strengthened by this approach.
[58] As set out in paragraph [27] above, I have reformulated the alleged tendencies in the tendency notice to the alleged tendency to make false or unreliable complaints against men that they assaulted or committed crimes against her when they did not. The similarities and differences in the conduct and surrounding circumstances of the three complaints identified above remain relevant.

[59]

[66] I will next deal with the proposed tendency evidence comprising the statement by SJ that the complainant told him she was 'setting up' the accused because he was not nice to her.
[67] Assuming that SJ was prepared to give that evidence at the accused's trial (a matter currently unknown as the SJ statement is unsigned and SJ could not be contacted before the voir dire), the SJ statement would appear to be admissible first-hand hearsay under s 66(2) of the ENULA. The SJ statement would have significant probative value as evidence of the fact (that the complainant is 'setting up' the accused because he was not nice to her) to support the reasonable possibility consistent with innocence (that the complainant is lying or unreliable about being too intoxicated to consent to the sexual intercourse with the accused).
[68] The SJ statement does not have any additional probative value as tendency evidence to its value as evidence of the fact. Receiving it as tendency evidence cannot expand its probative value when the fact it can prove directly and the inference to be drawn from the alleged tendency are essentially the same, namely that the complainant is lying or unreliable about being too intoxicated to consent. Consequently, the proposed tendency evidence comprising the SJ statement does not satisfy the requirements of s 97 of the ENULA and is not admissible at the accused's trial as tendency evidence.
[69] The defence referred to difficulties it had experienced in trying to make contact with SJ in order to have the statement signed and argued that, consistent with the prosecution's duties, the Crown should have been assisting to obtain the evidence from SJ.[34] The Crown resisted this submission, pointing to the numerous shifts in the defence's position, the lack of clarity about how the evidence was sought to be used and the fact that the defence had not actually requested any assistance from the Crown in this regard.
[70] Given the significant probative value of the SJ statement as evidence of the fact, and the clarity about the defence position now, it may be expected that the Crown and the defence will co-operate in relation to obtaining this potentially significant evidence.

[60]

[71] In case I am wrong in my conclusions that the proposed tendency evidence does not have significant probative value, I will consider the operation of s 135(c) of the ENULA.
[72] Section 135(c) provides that the court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might cause or result in undue waste of time.
[73] In The Queen v Taylor,[35] it was observed that the occasions on which the exercise of the discretion under s 135 to reject evidence tendered by an accused in the course of criminal proceedings will be few. This was not a case about tendency evidence and the Court held that the trial judge's exclusion, in the exercise of the discretion under s 135, of the evidence tendered by the accused was open. In The Queen v Cakovski,[36] which concerned a defence tendency application, it was observed that 'a trial judge would need to think long and hard before exercising [the s 135] discretion against an accused in a criminal trial'. In rejecting a Crown submission that the tendency evidence sought to be led by the defence would result in a 'trial within a trial' and an undue waste of time, Kaye JA held in DPP v Dixon (at [137]) that the proposed tendency evidence in the trial for attempted murder and causing serious injury (that the victim had shot and killed a man 25 years before the incident the subject of the trial) would be susceptible of rather simple proof, which the prosecution could adduce, with the consequence that the evidence would be quite confined. The circumstances of that killing were not in dispute (see [132]). Those observations are a far cry from the proposed tendency evidence in this case, which comprises contested evidence from multiple witnesses, as well as video and documentary evidence, in relation to two separate incidents which may be expected to take a number of days to hear. There is a real possibility that the proposed tendency evidence could take longer to hear than the evidence relating to the alleged offending.
[74] The admission of the proposed tendency evidence would add considerable complexity to the trial, potentially without assisting resolution of the facts in issue,[37] given the risk that the jury may not be able to determine whether the complaints were false or unreliable or not. Furthermore, an evaluation of that evidence would deflect the jury from their main task (determining the guilt of the accused)[38] and even from the relevant issue, namely the complainant's credibility.[39] The jury would be asked to decide, if they could, whether the facts occurred as the complainant described them in her complaints, which would require them to assess all of that evidence, including the credibility of all the witnesses called to give evidence about those complaints. The proposed tendency evidence would call for not one, but two, trials within the trial before the jury.
[75] Even if the proposed tendency evidence had significant probative value, I consider that its probative value is substantially outweighed by the danger that the evidence might cause or result in undue waste of time within s 135(c) of the ENULA. If it were admissible under s 97, I would refuse to admit it pursuant to s 135(c).

[61]

[76] The defence seeks to have the complainant re-called to cross-examine her about the proposed tendency evidence, that is, about the SJ complaint, the MA complaint and the SJ statement. Given the conclusions I have reached about the proposed tendency evidence, the application to cross-examine her about the SJ complaint and the MA complaint must be refused. That evidence is simply not relevant.
[77] As regards the SJ statement, I have concluded it is significantly probative evidence to support the fact that the complainant is setting up the accused. That is a matter that points in favour of the complainant being re-called.
[78] The SJ statement says the complainant told SJ she was setting up the accused in around March 2021. The special sitting for the complainant's evidence was on 30 July 2021. The reason the SJ statement was not put to the complainant at the special sitting when she gave her evidence was that the SJ statement was made by SJ whilst instructing his lawyers in relation to the Local Court proceeding against him, which arose from the SJ complaint made on 13 August 2021, after the special sitting for the complainant's evidence on 30 July 2021. The inference is that the SJ statement was made after the special sitting for the complainant's evidence. That is the explanation for why the SJ statement was not put to the complainant in cross-examination. The failure was not through any fault of the defence. That is also a matter that points in favour of the complainant being re-called.
[79] The complainant's availability to be re-called to give further evidence at the trial is uncertain. The Crown has attempted to remain in contact with her, and has done so by email. She was apparently in Egypt in February 2022, then in Sudan in April 2022. In June 2022, she was asked if she would come back to Australia for this trial and the MA matter and responded that she is still overseas and needed help to get back to Australia. There was a further email to her on 27 June 2022, but no response was received. The Crown's understanding at the hearing of the second day of the voir dire was that she had not returned to Australia. The Crown advised via email on 21 July 2022 that the complainant had returned to Australia and had left messages for the Crown witness assistance officer, however they were yet to speak to each other. The expectation is, therefore, that the complainant will be in the jurisdiction and compellable to give further evidence at the trial.
[80] The complainant's status as a vulnerable witness is a relevant matter. Since 30 July 2021 when she gave evidence at the special sitting, she has most likely considered her involvement in the accused's trial to be over. To have to subject her to further cross-examination requires a balancing of the likely stress, anxiety and mental anguish she would suffer against the importance of the evidence in the defence case.
[81] The Crown argued that she should not be re-called without evidence from SJ that the complainant said those words to him. The defence put the argument about the prosecutor's obligations as set out in paragraph [69] above. Given the significant probative value of the SJ statement, there is some force to the defence argument effectively that, if the Crown wants to be satisfied that SJ will say that the complainant said those words to him, the Crown should contact him and find out.
[82] The defence argued that an inability to cross-examine the complainant about the SJ statement would have the consequences for the trial that: (a) SJ would nevertheless give oral evidence about the SJ statement; (b) the defence would nevertheless argue that the jury could act on the SJ statement and find a reasonable possibility that the complainant was lying or unreliable about being too intoxicated to consent to sexual intercourse with the accused; (c) the jury would be told that: (i) they would need to bear in mind in considering these questions that the complainant was not cross-examined about them so did not have the opportunity to respond; and (ii) the jury would not be told that they could draw an adverse inference against the accused from the failure to cross-examine the complainant. defence counsel added, effectively, that there was no guarantee that such a course would ensure the accused received a fair trial.
[83] I do not accept that a failure to permit the defence to cross-examine the complainant about the SJ statement would result in an unfair trial. However, on balance, I consider that, if SJ gives evidence at the trial consistent with the SJ statement, the complainant should be re-called to be cross-examined about it. The cross-examination would be short and of narrow compass, confined to what she said to SJ, if anything, and what she meant by it. It would not descend into the matters the subject of the SJ complaint. If the complainant is in the jurisdiction and thereby compellable to give evidence, she should be recalled for that purpose.

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