Citation: R v Corbett (Supplementary Judgment NSWCCA 137) [2002] NSWCCA 402
Court: NSW Court of Criminal Appeal
Date: 1 October 2002
Judge(s): Handley JA, Sully J, Smart AJ
Background
The appellant had been convicted in the District Court of sexual offences alleged to have occurred against the complainant between 1969 and 1976, when she was aged between four and ten. The complainant did not report the offending to police until 1997, though she had made earlier disclosures: first to a man named Seaton in 1986, and then to a girlfriend in 1989.
At trial, the disclosure to Seaton arose in a specific context. The complainant's mother had asked her to allow the appellant (her first cousin) to share her flat with Seaton. The complainant had objected but ultimately agreed under pressure, and she spoke to Seaton about the offending before the appellant moved in.
Defence counsel foreshadowed at the start of the trial that he intended to cross-examine the complainant about her decision to permit the appellant to move in, with the aim of proving a prior inconsistent statement by conduct. This prompted the Crown to seek leave under s 108(3) of the Evidence Act to adduce evidence of the prior consistent statement made to Seaton.
Legal Issues
- Whether the trial judge erred in admitting the complainant's prior consistent statement to Seaton under s 108(3) of the Evidence Act.
- Whether the procedural sequence required by s 108(3)(a) was violated, because the prior consistent statement was adduced before the prior inconsistent statement had formally been admitted in evidence.
- Whether any error in the exercise of the trial judge's discretion to grant leave under s 108(3) was established.
Decision
The supplementary judgment addressed Ground 2 of the appeal, which the Court had omitted from its earlier reasons of 19 April 2002. Handley JA acknowledged the omission and confirmed that, although Ground 2 had been considered, the failure to include it in the written reasons was an oversight.
On the procedural sequence issue, the Court found that, although the order of events under s 108(3)(a) had been reversed (the prior consistent statement was adduced before the prior inconsistent statement was formally in evidence), this did not occasion a miscarriage of justice. By the close of evidence, both limbs of s 108(3) were satisfied: evidence of a prior inconsistent statement by conduct had been admitted, and it had been suggested that the complainant's evidence was fabricated or reconstructed.
On the discretion question, the Court found no established ground for interfering with the trial judge's exercise of discretion under s 108(3). The accused had himself adopted statements in his record of interview suggesting fabrication, and the complainant had been cross-examined on that basis. The Court noted that the complainant's account of the complaint to Seaton was not entirely consistent with other parts of her evidence or with Seaton's own evidence, which tempered any potential prejudice from admission.
The Court concluded that the admission of Seaton's evidence had not prejudiced the accused and had not occasioned a miscarriage of justice.
Orders Made
- The orders pronounced by the Court on 19 April 2002 are confirmed.
Key Takeaways
- Under s 108(3) of the Evidence Act, a court may grant leave to adduce a prior consistent statement where a prior inconsistent statement has been admitted or where fabrication has been suggested; both limbs were ultimately satisfied on the facts of this case.
- The reversal of the procedural sequence contemplated by s 108(3)(a) does not automatically vitiate the admission of a prior consistent statement; the critical question is whether any miscarriage of justice resulted.
- No error in the exercise of judicial discretion under s 108(3) was established where the accused had himself raised fabrication and the complainant's account contained internal inconsistencies that the jury could weigh.
- A prior inconsistent statement within the meaning of the Evidence Act can be constituted by conduct, not only by oral or written representations.
- In dismissing this ground of appeal, the Court of Criminal Appeal confirmed that procedural irregularities in the admission of credibility evidence will not warrant appellate intervention absent demonstrated prejudice or miscarriage of justice.
Legislation and Cases Referenced
Legislation:
- Evidence Act (NSW), s 108(3) (prior consistent statements and the credibility rule)
- Evidence Act (NSW), Dictionary (definitions of "prior inconsistent statement" and "representation")
Cases: No cases were cited in this judgment.