Citation: R v RJ (No. 3) [2023] NSWDC 157
Court: District Court of NSW
Date: 4 May 2023
Judge(s): Abadee DCJ
Background
The accused stood trial on charges of indecent and sexual assault against the complainant. The Crown called a witness, PS, a former friend of the complainant, to give evidence about telephone and Snapchat conversations she had with the complainant in September 2019, at the time the complainant first made disclosures to police about the alleged offending.
During cross-examination proceedings, it emerged that PS had a separate Snapchat exchange in September 2021 with JE, a member of a family that the complainant regarded as hostile to her. In that exchange, PS made remarks suggesting the complainant "used to lie all the time" and that the complainant's "story did not add up."
Defence counsel applied for leave to cross-examine PS on that 2021 Snapchat exchange before the jury, arguing the representations were relevant to the complainant's credibility, a central issue in the trial. A voir dire was conducted to assess the admissibility of this proposed line of questioning.
Legal Issues
- Whether the representations made by PS in the September 2021 Snapchat exchange constituted admissible opinion evidence under the Evidence Act 1995 (NSW)
- Whether any exception to the opinion rule under s 78 of the Evidence Act applied
- Whether the evidence should be excluded under s 135 of the Evidence Act on the basis that its probative value was outweighed by unfair prejudice to the Crown
Decision
Issue 1: Admissibility under the opinion rule (s 76)
The court found that the two representations relied upon by the defence were bare opinions, unsupported by any articulated foundation. PS herself acknowledged during the voir dire that she could not explain why she thought the complainant's story did not add up and gave no detail about what "lies" she was referring to (at [18]). The court agreed with the Crown that no exception to the general prohibition on opinion evidence had been established, including the lay opinion exception in s 78, because no foundation for the opinions had been provided (at [15]). The evidence was inadmissible under s 76 (at [19]).
Issue 2: Exclusion under s 135
The court also accepted the Crown's submission that admission of the evidence would be unfairly prejudicial in a way that outweighed its probative value (at [20]). The probative value was assessed as low: the opinions were vague, were expressed in a Snapchat conversation more than two and a half years earlier, and PS had had little contact with the complainant since. The court noted the context was a fact-finding exercise by JE, whose family the complainant regarded as hostile, and that one of the representations appeared to have been influenced by JE's own framing of an earlier event (at [17]). Recalling the complainant to respond to an unsubstantiated opinion would serve no useful purpose, leaving the jury with nothing more than a bare assertion of the complainant's dishonest character (at [20]).
Orders Made
- The application by defence counsel for leave to further cross-examine PS on the proposed line of inquiry was refused.
Key Takeaways
- A lay opinion expressed in a Snapchat conversation is not admissible under s 76 of the Evidence Act 1995 (NSW) where the person expressing the opinion cannot identify what facts or observations underlie it, and no exception under s 78 has been established (at [15], [18]).
- Under s 135, a court may exclude evidence where its probative value is genuinely low and its admission would leave a jury with an unsubstantiated assertion on a central issue such as complainant credibility, with no practical means for the opposing party to respond (at [20]).
- The context in which an out-of-court statement was made is relevant to assessing its probative weight. Here, the statements were made in a conversation initiated by a person with a motive to assist the defence, and one representation appeared influenced by the questioner's own framing (at [17]).
- Where a proposed line of cross-examination on credibility rests entirely on unfounded opinion, the absence of any factual foundation is fatal to admissibility under both the opinion rule and the discretionary exclusion provision (at [18]-[19]).
- The District Court noted that the same line of inquiry had been rejected during the accused's first trial on the basis of an absence of foundation, and concluded that the position in the second trial was no different (at [13], [16]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW) s 55, 76, 78, 135
Cases
- Nil