Citation: R v Bates [2024] NSWDC 612
Court: District Court of New South Wales (sitting at Broken Hill)
Date: 9 October 2024
Judge: Haesler SC DCJ
Background
The accused stood trial before a jury on a single count of sexual intercourse without consent alleged to have occurred on 6 October 2022. The central factual dispute was whether the complainant consented, and whether the accused knew she did not. Both the complainant and the accused gave starkly different accounts of the nature of their prior relationship, which was directly relevant to each party's state of mind at the time of the alleged offence.
The defence case was that the relationship had been longer and more intimate than the complainant described, and that extensive electronic communications (Facebook messages and text messages spanning several years) supported the accused's version. During cross-examination, the complainant declined to accept the authenticity of the bulk of those documents, insisting she could only accept messages that displayed her Facebook profile photograph. She also denied that a phone number appearing in the documents was hers.
Because the complainant rejected the communications, the defence could not tender the documents through her during the prosecution case. The defence then sought, in its own case, to tender the documents through the accused's solicitor, who had accessed the accused's Facebook account and retrieved the communications. The prosecution objected, arguing the material could only be admitted through the accused himself.
Legal Issues
- Whether electronic communications (Facebook and text messages) whose authorship the complainant disputed could be tendered through a third-party witness, namely the accused's solicitor, rather than through the accused himself
- Whether documents of contested authenticity are admissible at all, and if so, on what basis under the Evidence Act 1995 (NSW)
- What directions the jury required when provisionally admitted documents of disputed authenticity were placed before them
Decision
Haesler SC DCJ ruled the documents were admissible. The judge rejected the prosecution's contention that the only permissible path to tendering the communications was through the accused himself. Under sections 57 and 58 of the Evidence Act 1995, evidence is admissible if there is a reasonable basis for concluding it is relevant, even if that relevance depends on a preliminary finding of fact, such as whether a document is authentic. The documents cleared that threshold.
The judge reasoned that the defence was not bound by the prosecution's preferred method of proof. The accused's solicitor could give evidence of how she accessed the Facebook account and retrieved the messages, and the documents could be tendered through her. The prosecution would retain the opportunity to cross-examine on any matters within that witness's knowledge. The contested question of whether the messages were genuine communications between the complainant and the accused was a matter for the jury to resolve.
Rather than excluding the material, the court admitted it provisionally and gave the jury detailed directions on how to approach it. The jury was instructed to first ask whether it was "reasonably open" to conclude the documents were what the defence claimed them to be. If the jury could not reach that conclusion, the documents were to be disregarded entirely. If the jury found it reasonably open that the messages were genuine communications between the two parties, the documents could be used as part of the overall body of evidence, without being treated as determinative of any issue.
The jury ultimately returned a not guilty verdict.
Orders Made
- The documents sought to be tendered by the defence were ruled admissible.
- The jury was directed to assess the authenticity of the documents as a preliminary step before considering their evidential weight.
- Accompanying jury directions were issued, as set out in the annexure to the judgment.
Key Takeaways
- The District Court confirmed that documents of disputed authenticity are not automatically inadmissible: under sections 57 and 58 of the Evidence Act 1995 (NSW), evidence may be provisionally admitted where there is a reasonable basis for finding the fact upon which relevance depends, here, that the documents were genuine communications between the parties.
- A defending party is not constrained to tender contested documentary evidence only through the accused. Where a third-party witness (in this case the accused's solicitor) can give evidence of how documents were accessed and retrieved, the tender may proceed through that witness.
- Where documents of uncertain authenticity are admitted, the trial judge retains responsibility for directing the jury on a structured, staged approach: first, whether it is reasonably open that the documents are what the tendering party claims; second, if so, how they bear on the contested issues alongside all other evidence.
- Under sections 57 and 58 of the Evidence Act 1995, the preliminary question of authenticity functions as a gateway: if the jury cannot be satisfied that the documents are authentic, they are to be disregarded entirely and given no weight.
- Showing a document to a witness during cross-examination does not of itself render the document admissible: section 45(4) of the Evidence Act 1995 requires independent admissibility through Chapter 3 of that Act.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), particularly ss 45(4), 57, 58
- Evidence Act 1900 (NSW) (referenced for historical contrast)
- Criminal Procedure Act 1986 (NSW), ss 294CB, 294(6)
Secondary Sources
- S Odgers, Uniform Evidence Law (19th ed, 2024, Thomson Reuters)
- RP Croom-Johnson and GFL Bridgman, Taylor on Evidence (8th ed, 1894, Sweet and Maxwell Ltd)
Cases cited: No specific cases were identified as directly on point in this judgment.