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District Court 27 August 2020

Perry v Kinnear & Ors (No. 2)

[2020] NSWDC 898

Sexual offences
CIVIL PRACTICE & PROCEDURE ADMISSIBILITY OF EVIDENCE ALLEGATIONS OF SEXUAL ASSAULT HEARSAY CREDIBILITY

Citation: Perry v Kinnear & Ors (No. 2) [2020] NSWDC 898
Court: District Court of New South Wales
Date: 27 August 2020
Judge: Montgomery DCJ

Background

The plaintiff brought civil proceedings against the defendants, including allegations of sexual assault by the first defendant and related conduct within a household. The plaintiff was the central witness to the primary facts in dispute. Three witnesses, Turner, Morris, and Scofield, had each provided statements and were scheduled to give evidence via audio-visual link on the fourth day of hearing.

On the morning that their evidence was to be taken, the defendants raised, for the first time and without prior notice, objections to the admissibility of those witnesses' statements and anticipated evidence. The objection came after the plaintiff had already been substantially cross-examined and the hearing had been running for several days. The lateness of the application drew criticism from the Court, which noted that the parties had been aware of the hearing arrangements since at least April 2020.

The Court conducted a voir dire (a preliminary hearing to determine the admissibility of evidence) to resolve the objection before the witnesses gave their evidence.

  • Whether the evidence of Turner, Morris, and Scofield constituted inadmissible hearsay under section 59 of the Evidence Act 1995 (NSW), as prior consistent statements of the plaintiff
  • Whether the complaint evidence went only to the plaintiff's credibility, or also to facts in issue in the proceedings
  • Whether, if the credibility rule applied, leave should be granted under section 108(3) of the Evidence Act to admit prior consistent statements, given the nature of the cross-examination of the plaintiff
  • Whether, in the alternative, leave should be granted under section 192 of the Evidence Act on discretionary grounds

Decision

Montgomery DCJ held that the evidence of each witness was admissible, and did so on several independent bases. The complaint evidence was not purely hearsay going to credit: it was relevant to facts directly in issue, including the second defendant's knowledge of the plaintiff's complaint about the first defendant's conduct. Because the evidence was adduced to establish that the complaints were made and their timing, rather than only to prove the truth of the underlying facts asserted, it did not fall squarely within the hearsay rule in the first place. His Honour drew on Pollitt v The Queen (1992) 174 CLR 558 to support this reasoning.

On the question of Ms Scofield's evidence, the Court noted it included not just complaint evidence but also her direct observation of conduct by the first defendant, providing an additional independent basis for admissibility.

Turning to section 108(3) of the Evidence Act, which permits prior consistent statements to be admitted where credibility is challenged in particular ways, the Court found the threshold was met. The cross-examination had already challenged the plaintiff on alleged inconsistencies in her complaints to police, suggested she had not complained to members of the household, and substantially attacked her recollection. Drawing on the reasoning of Simpson J in R v Sood (Ruling No 2) [2006] NSWSC 732, Montgomery DCJ was satisfied the cross-examination carried the implication that the plaintiff had no genuine recollection of the events she described, bringing the case within section 108(3)(b). Leave was therefore available.

Finally, the Court addressed the section 192 discretionary factors, as the defendants had expressly requested. Montgomery DCJ held that even if the evidence were not otherwise admissible without leave, he would exercise his discretion to grant leave. The evidence was expected to take no more than two hours, making delay a minimal concern. Critically, the plaintiff was the sole witness to the primary facts, and the complaint evidence bore directly on the circumstances of the alleged conduct. The Court held it would be unfair to exclude evidence of that kind in proceedings of such gravity.

Orders Made

  • The evidence of Ms Alberta Turner, Ms Meg Scofield, and Ms Anique Morris be admitted.

Key Takeaways

  • Complaint evidence in civil sexual assault proceedings is not necessarily confined to credibility: where it also bears on facts in issue (such as a defendant's knowledge of a complaint), it may be admissible as relevant evidence under section 60(1) of the Evidence Act, independently of the hearsay rule.

  • Under section 108(3)(b) of the Evidence Act, prior consistent statements may be admitted where cross-examination carries the implication, whether express or by strong inference, that a witness has no genuine recollection of the events described. A sustained challenge to memory, falling short of an explicit allegation of fabrication, can satisfy this threshold.

  • The Sood reasoning, while developed in a criminal context, was applied here in a civil proceeding, illustrating that its principles are not confined to criminal trials.

  • Where a plaintiff is the sole witness to primary facts in serious civil proceedings, that circumstance carries weight in the section 192 discretionary analysis, and may favour granting leave to admit complaint evidence that corroborates or contextualises their account.

  • Late evidentiary objections, raised without prior notice after days of hearing, are liable to attract judicial criticism and may disrupt proceedings for parties, witnesses, and court staff alike.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 59, 60(1), 108, 108(3), 108(3)(a), 108(3)(b), 192, 192(2), 192(2)(b), 192(2)(c), 192(2)(d)

Cases:
- Pollitt v The Queen (1992) 174 CLR 558
- R v Sood (Ruling No 2) [2006] NSWSC 732