Citation: [2024] NSWDC 704
Court: District Court of New South Wales
Date: 10 October 2024
Judge(s): Mahony SC DCJ
Background
The accused faced three counts on indictment in a sexual assault trial. During the complainant's evidence-in-chief, defence counsel applied for an advance ruling under s 193A of the Evidence Act 1995 (NSW) to prevent the Crown from leading a specific portion of the complainant's police statement.
The disputed evidence was the complainant's account that, approximately one to one and a half hours after the alleged offence in Count 2, she telephoned the accused's parents overseas via WhatsApp and told them their son had raped her. The Crown did not intend to call the accused's parents as witnesses. Defence counsel had opened to the jury on the complainant's alleged failure to tell anyone about the assaults despite multiple opportunities.
Legal Issues
- Was the complainant's account of her phone call to the accused's parents (in which she said she told them their son had raped her) relevant and admissible, given the accused's parents were not being called as Crown witnesses?
- If the evidence was relevant, did its probative value outweigh the danger of unfair prejudice to the accused (the s 137 balancing exercise under the Evidence Act)?
Decision
Mahony SC DCJ ruled the evidence inadmissible. Because the Crown was not calling the accused's parents as witnesses, the complainant's account of what she told them could not constitute "complaint evidence" in the recognised legal sense. Instead, it was hearsay. The only function it could serve was to bolster the complainant's own credibility, which offended the credibility rule in s 102 of the Evidence Act. The evidence did not fall within any exception to that rule.
The Crown argued the evidence was relevant because defence counsel had opened to the jury on the complainant's failure to disclose the assaults, and excluding it would create artificiality. The Crown also submitted it showed consistency of conduct by the complainant, a recognised purpose of complaint evidence. However, the Court was not persuaded, precisely because the evidence was not complaint evidence given the absence of the parents as witnesses.
In the alternative, Mahony SC DCJ found that even if the evidence were relevant, it would be excluded on the basis that its probative value was outweighed by the danger of unfair prejudice. There was a real risk the jury would expect the accused to call his parents to respond to the allegation. A direction on the onus of proof, however carefully crafted, could not cure that risk. The jury might readily infer that the parents' absence from the defence case confirmed the complainant's account.
Orders Made
- The Crown was refused permission to adduce the evidence contained in paragraph 38 of the complainant's police statement dated 1 April 2022.
- The defence objection to that evidence was upheld.
Key Takeaways
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A clear distinction exists between true complaint evidence, where the recipient of the complaint is available and called as a witness, and a complainant's own account of having complained to someone. The District Court held that the latter, standing alone, is hearsay and may fall foul of the credibility rule in s 102 of the Evidence Act 1995 (NSW).
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Although the defence opening highlighted the complainant's failure to disclose the assaults, prompting the Crown to seek admission of the phone call evidence, the Court found that this tactical context did not overcome the evidentiary barriers to admissibility.
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Significant weight was placed on the risk that the jury would draw an adverse inference from the accused's failure to call his parents as witnesses. The District Court identified this "absent witness" prejudice as a key factor supporting exclusion, reasoning that Crown evidence may implicitly call for an answer from a person in the accused's camp.
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Under s 193A of the Evidence Act 1995 (NSW), the ruling was made as an advance determination before the evidence was led, reflecting the Court's recognition that pre-emptive exclusion avoids the need for a potentially inadequate direction to disregard evidence already heard by the jury.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 102 (credibility rule), 137 (exclusion of prejudicial evidence in criminal proceedings), 193A (advance rulings)
Cases:
- No cases were cited in the published judgment.