Citation: R v Mattiussi (No.2) [2022] NSWDC 235
Court: District Court of New South Wales
Date: 23 June 2022
Judge(s): Abadee DCJ
Background
The accused stood trial on sexual offence charges. The alleged offending occurred on 11 April 2020, shortly after a consensual threesome involving the accused, his then-partner (the complainant), and his former partner. The complainant and the former partner had been in contact after the alleged offences, and the complainant sent the former partner a written message stating that the accused had "fucked me 3 times after you left too. I didn't really get a choice."
The Crown called the former partner as a witness and led evidence about those post-offence communications. During examination-in-chief, the former partner expressed the opinion that the complainant had been joking about the sexual acts, and that she did not believe the complainant's written statement indicated an absence of consent. These opinions directly contradicted the Crown's case that the complainant had not consented.
The Crown applied for leave under s 38(1) of the Evidence Act 1995 (NSW) to cross-examine its own witness on that unfavourable evidence. The defence opposed the application on the ground that it was premature, arguing the evidential foundation for the opinions had not yet been fully explored.
Legal Issues
- Whether the former partner's opinion evidence was "unfavourable" to the Crown within the meaning of s 38(1)(a) of the Evidence Act 1995 (NSW)
- Whether the application was premature because the basis for the lay opinions had not been sufficiently developed before leave was sought
- What scope of cross-examination was permissible if leave were granted
Decision
Issue 1: Whether the evidence was "unfavourable" under s 38(1)(a)
The court held that evidence is "unfavourable" within s 38(1)(a) when it is inconsistent with, or likely to be contradictory of, the case the party seeks to advance (at [15]). Applying that test, the former partner's opinion that the complainant consented to the sexual acts plainly contradicted the Crown's case on counts 1 to 3 (at [17]). Her opinion also challenged what appeared, on its face, to be a contemporaneous written statement by the complainant that she had no choice, which the Crown sought to use as complaint evidence (at [16]-[17]).
Issue 2: Whether an unexplored basis for an opinion prevents a finding of "unfavourable"
The court rejected the defence prematurity argument. It held that even where the basis for an opinion has not been articulated clearly, or at all, its expression can still satisfy the concept of "unfavourable" evidence under s 38(1)(a) (at [16]). The court noted that the witness had already stated her opinion was not based on anything visible in the text message, and that she had also given evidence that the complainant "laughed" about the incidents, suggesting a partial basis had already emerged (at [12]). Further elucidation of the basis was, if anything, likely to produce additional unfavourable material, not to rehabilitate the Crown's position (at [19]). To the extent prematurity had any relevance, the court held it went only to the exercise of discretion, not to whether the condition in s 38(1)(a) was satisfied (at [18]).
Issue 3: Scope of cross-examination
Relying on Heydon JA's analysis in R v Le (2002) 54 NSWLR 474, the court held that the Crown should be permitted to question the witness in a way that establishes the probability of the factual state of affairs relating to the unfavourable features of her evidence, as well as questions directed to her credit, including her motive or bias (at [21]). The Crown's identified motive was that the witness, as the mother of the accused's children, had a financial interest in the accused avoiding conviction.
Orders Made
- Leave granted to the Crown to cross-examine Ms Robertson under s 38(1) of the Evidence Act 1995 (NSW) regarding her opinion evidence, with the scope of cross-examination as described at paragraph 21 of the judgment.
Key Takeaways
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Under s 38(1)(a) of the Evidence Act 1995 (NSW), opinion evidence can be "unfavourable" even where the witness has not yet fully articulated the basis for that opinion. The District Court held that the expression of an opinion inconsistent with the party's case satisfies the statutory condition, regardless of whether the evidentiary foundation for that opinion has been completely explored (at [16]).
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The meaning of "unfavourable" in s 38(1)(a) extends to evidence that is inconsistent with, or likely to be contradictory of, the case the party calling the witness seeks to advance. This formulation, drawn from DPP (Vic) v Garrett (2016) 257 A Crim R 509, was applied without modification (at [15]).
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A prematurity argument, based on the insufficiency of the evidentiary foundation for an opinion, goes at most to the exercise of the court's discretion to grant leave under s 38(1), not to whether the "unfavourable" condition in s 38(1)(a) is satisfied in the first place (at [18]).
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Where leave to cross-examine under s 38 is granted, the permitted scope encompasses both questions directed at establishing the probability of the factual matters underlying the unfavourable evidence and questions bearing on the witness's credit, including evidence of motive or bias (at [21]).
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The probative value of complaint evidence can be affected by how the recipient of that complaint interpreted it. The District Court noted that a witness's lay opinion about the complainant's state of mind, formed at the time of receiving the complaint, was itself probative and relevant to the jury's assessment of the complaint's truthfulness (at [16]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW) s s 38 , 78
Cases
- DPP (Vic) v Garrett (2016) 257 A Crim R 509
- R v Le (2002) 54 NSWLR 474