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7
Court of Criminal Appeal 20 August 1999

REGINA v. WHITMORE

[1999] NSWCCA 247

Also reported as (1999) 109 A Crim R 51
Sexual offences
COMPLAINT OF SEXUAL OFFENCE PRIOR CONSISTENT STATEMENT LEAVE FOR ADMISSION ON CREDIBILITY ONLY SUCH SUGGESTION SHOULD BE EXPRESSLY PUT CRITERIA FOR LEAVE CRITERIA FOR EXERCISE OF DISCRETION

Citation: Regina v Whitmore [1999] NSWCCA 247
Court: New South Wales Court of Criminal Appeal
Date: 20 August 1999
Judge(s): Newman J, Sperling J, Greg James J

Background

The appellant was convicted in the District Court at Newcastle of two offences against his granddaughter, who was eight years old at the time of the alleged events in December 1992. The first conviction was for indecent assault of a child under ten years of age, and the second was for sexual intercourse with the same child. A third charge was the subject of an acquittal by the jury.

The Crown case rested entirely on the complainant's evidence, which was uncorroborated and directly contradicted by the appellant and his daughter. Given this, the complainant's credibility was central to the outcome of the trial. The complaint evidence, describing disclosures the complainant made to others some years after the alleged events, was strongly relied upon to support that credibility.

The appellant challenged his convictions on multiple grounds, with the central issue being the admissibility and treatment of the complaint evidence at trial.

  • Whether complaint evidence (a prior consistent statement) was properly admitted, given that it is generally admissible only on credibility and not as evidence of the truth of its contents
  • Whether leave was required before such complaint evidence could be admitted, and whether the correct criteria for granting leave were applied
  • Whether a mere denial by a defendant is sufficient to constitute a "suggestion of fabrication" that would justify admission of prior consistent statements
  • Whether the jury directions on the complainant's credibility were adequate in a case wholly dependent on the complainant's evidence
  • Whether the convictions were inconsistent with the acquittal on the third count, and whether the verdicts were unreasonable or unsupported by the evidence

Decision

Greg James J, with Newman J and Sperling J agreeing, allowed the appeal on the ground relating to the complaint evidence. Consistent with the High Court's analysis in Graham (1998) 157 ALR 404 and a line of Court of Criminal Appeal decisions including Gillard, Dwyer, and RNS, the court held that the admission and use of the complaint evidence was not handled correctly at trial. Complaint evidence of this kind is a prior consistent statement and is, as a general rule, admissible only on credibility rather than as proof of the facts it asserts.

The court confirmed that a suggestion of fabrication, which is one basis upon which such evidence may be admitted, cannot arise from a bare denial of the offence by the accused. For fabrication to be properly raised as a basis for admission, it must be expressly put to the complainant in cross-examination. The criteria governing leave to admit such evidence, the exercise of any associated discretion, and the circumstances in which the need for leave may be waived all required closer attention than they received at trial.

On the question of whether the convictions were unreasonable or inconsistent with the acquittal, Greg James J declined to overturn the convictions on that ground alone. The complainant's evidence was not so tainted that acquittals were required, and the verdicts were not unsupported by the evidence. However, given the errors in relation to the complaint evidence, a new trial was ordered.

The court noted, without deciding, that in cases dependent on a complainant's credibility, directions to the jury must be sufficiently strong on matters such as reliability, and must make clear that the jury must be satisfied of each element beyond reasonable doubt having regard to all matters affecting the complainant's credibility.

Orders Made

  • Appeal upheld
  • New trial ordered
  • Application for leave to appeal against sentence not determined (made unnecessary by the appeal outcome)

Key Takeaways

  • A suggestion of fabrication sufficient to justify admission of a complainant's prior consistent statement cannot be established by a mere denial of the offence; such a suggestion must be expressly raised, typically in cross-examination.
  • Complaint evidence in sexual assault proceedings is a prior consistent statement and is generally admissible only on credibility, not as proof of the facts stated. Specific criteria govern whether leave to admit it should be granted and how any associated discretion is exercised.
  • The Court of Criminal Appeal confirmed that its approach in this area flows from the High Court's decision in Graham (1998) 157 ALR 404 and is reflected consistently across decisions including Gillard, Dwyer, and RNS.
  • Where a criminal trial is wholly dependent on the credibility of a complainant, jury directions must adequately address the need to accept the complainant's evidence beyond reasonable doubt and must be sufficiently strong on reliability and other matters affecting credibility.
  • Inconsistency between a conviction and an acquittal does not automatically warrant setting aside the conviction. The court found the evidence sufficient to support the convictions, but ordered a retrial due to the errors in handling the complaint evidence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M(2), 66A
- Evidence Act 1995 (NSW), ss 135, 136

Cases
- R v Lillyman (1896) 2 QB 167
- Allied Pastoral Holdings v Federal Commissioner of Taxation (1983) 1 NSWLR 1
- Graham (1998) 157 ALR 404
- Cassar & Ors (No 12) [1999] NSWCCA 352
- BD (1997) 94 A Crim R 131
- DJT [1999] NSWCCA 22
- JGW [1999] NSWCCA 116
- RPS (CCA, unreported, 18 August 1997)
- Curwood (1944) 69 CLR 561
- Heydon (1966) 1 NSWLR 708
- Domini (1972) 178 CLR 144 (reported as "Domini" in the judgment)
- Nominal Defendant v Clements (1960) 104 CLR 476
- R v Gillard [1999] NSWCCA 21
- R v Dwyer [1999] NSWCCA 47
- R v RNS [1999] NSWCCA 122
- R v Ayoub [1999] NSWCCA 221
- R v Jones (1997) 191 CLR 439
- Fleming v The Queen [1998] HCA 68
- R v James [1999] NSWCCA 191