Citation: R v Spiteri [2004] NSWCCA 321
Court: New South Wales Court of Criminal Appeal
Date: 20 September 2004
Judge(s): Grove J, Simpson J, Shaw J
Background
The appellant was convicted in the Bega District Court of one count of aggravated sexual assault and one count of sexual intercourse without consent, arising from an incident in Moruya on 17 November 2002. The prosecution's case was that the appellant lured the complainant onto a golf course, physically restrained her using his left arm, inserted a glass bottle into her vagina, and then raped her. The complainant reported the assault immediately to friends, was taken to hospital, and examination revealed injuries consistent with her account. DNA evidence linked the appellant to the offence.
The appellant did not deny that sexual intercourse and the use of a bottle had occurred. His defence was that all activity was consensual and initiated by the complainant. Critically, he also claimed that a motorcycle accident in May 2002 had left him with significant and ongoing disability in his left arm, making it physically impossible for him to have restrained the complainant in the manner she described.
During cross-examination, the Crown put to the appellant that a Corrective Services officer had observed him performing push-ups in his cell six days before he gave evidence. The appellant denied this. The Crown then sought and was granted leave to call that officer as a witness in reply. The appellant appealed against his conviction, challenging the prosecution's conduct on several grounds.
Legal Issues
- Whether the prosecution had breached its duty of disclosure by failing to inform the defence of the Corrective Services officer's evidence before trial
- Whether the Crown's cross-examination of the appellant about his physical capacity was permissible under s 104 of the Evidence Act 1995 (NSW), given that it concerned credibility
- Whether the Crown's case in reply was properly admitted, and whether it constituted impermissible "splitting" of the prosecution case
- Whether s 106 of the Evidence Act 1995 (NSW) permitted the Crown to call rebuttal evidence where the appellant had denied the substance of the impugned conduct
Decision
Disclosure duty: The Court accepted that the prosecution has a continuing obligation to disclose relevant material to the defence. However, Simpson J held that this duty does not extend to material not yet in the prosecution's possession at the time of the alleged breach. The Corrective Services officer's observation was not known to the Crown until the appellant gave evidence raising his physical incapacity as a live issue. No breach of the disclosure duty was established.
Cross-examination under s 104: Section 104 of the Evidence Act restricts cross-examination of a defendant on credibility unless leave is granted. The Court found, however, that the evidence about the appellant's physical capacity was not merely relevant to credit. It was directly relevant to a fact in issue at trial, namely whether the appellant had the physical capacity to commit the offence as alleged. Because the evidence went beyond credibility, the restrictions in Part 3.7 of the Evidence Act (which governs credibility evidence) did not apply, and the cross-examination was permissible.
Case in reply and case-splitting: The Court rejected the argument that the Crown had impermissibly split its case. The rule against splitting prevents the prosecution from holding back evidence that properly belongs to its case-in-chief, in order to ambush an accused. Here, the Crown could not have known that the appellant would raise his physical disability as a defence until he gave evidence. The officer's evidence was therefore a legitimate and appropriate reply to a genuinely new factual issue raised by the defence, not a case of strategic withholding.
Section 106: Simpson J noted that s 106 of the Evidence Act raises significant questions of construction, particularly around whether s 106(e) departs substantially from the common law "finality rule" on credibility rebuttal. Having concluded that the officer's evidence was admissible as relevant to a fact in issue rather than to credibility alone, the Court found it unnecessary to finally resolve those questions of construction, and expressly reserved them for a future case.
Orders Made
- Appeal against conviction dismissed
Key Takeaways
- The prosecution's duty of continuous disclosure does not extend to evidence that has not yet come into the Crown's possession. The duty is triggered by what the Crown knows or holds, not by what may later emerge in response to the defence case.
- Where evidence goes to a fact in issue at trial, rather than merely to the credibility of a witness, the credibility provisions in Part 3.7 of the Evidence Act 1995 (NSW), including s 104 and s 106, do not apply.
- The prohibition on splitting the prosecution case is not engaged where the Crown could not reasonably have anticipated, before the accused gave evidence, the particular factual defence that was raised. Reply evidence responding to a new issue introduced by the defence is permissible.
- The Court of Criminal Appeal expressly declined to resolve the proper construction of s 106(e) of the Evidence Act 1995, noting the significant question of whether it departs from the common law finality rule. That question remains open.
- In dismissing the appeal, the Court confirmed that an accused who places their own physical condition centrally in their defence opens that issue to rebuttal evidence, even where such evidence could not have been gathered before the defence was articulated at trial.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 102, 104, 106
- Crimes Act 1900 (NSW), s 405A
Cases:
- Grey v The Queen [2001] HCA 65; 75 ALJR 1706
- Killick v The Queen (1981) CLR 565
- Shaw v The Queen (1952) 85 CLR 365
- R v Brown (Winston) [1998] AC 367
- R v Keane [1994] 2 All ER 478
- R v Eric, Neil and Shane Heuston (1996) 90 A Crim R 213
- R v Reardon [2004] NSWCCA 197
- Melvin and Dingle (UK, 20 December 1993)