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Court of Criminal Appeal 17 May 2000

R v Ali [2000] NSWCCA 177 revised - 23

[2000] NSWCCA 177

Sexual offences
CRIMINAL LAW POINT NOT TAKEN BELOW NO MISCARRIAGE OF JUSTICE EVIDENCE TO RE ESTABLISH CREDIT

Citation: R v Ali [2000] NSWCCA 177
Court: Court of Criminal Appeal (NSW)
Date: 17 May 2000
Judge(s): Priestley JA, Foster AJA, Sperling J

Background

The appellant was convicted in the District Court on five counts arising from alleged sexual offences against his de facto partner's daughter. The offences were alleged to have occurred between December 1991 and March 1994, when the complainant was aged eleven to thirteen. She was eighteen at the time of trial.

The complainant's credibility was a central issue. Evidence emerged during cross-examination that she had told Department of Community Services (DOCS) officers on two occasions in July 1996 that nothing had occurred. Those statements were inconsistent with her trial evidence. She had, however, told a school counsellor (Ms McLaren) in June 1996 that the appellant had raped her.

In re-examination, the Crown drew out evidence of the McLaren disclosure. The Crown then sought and obtained leave to call Ms McLaren directly under section 108(3) of the Evidence Act 1995, to rehabilitate the complainant's credibility in light of the prior inconsistent statements. The appellant challenged both the admission of this evidence and certain directions given to the jury.

  • Whether the trial judge erred in admitting the evidence of the complainant's prior consistent statement to Ms McLaren under section 108(3) of the Evidence Act 1995.
  • Whether the McLaren interview, having occurred approximately two years after the last alleged offence, provided a rational answer to the attack on the complainant's credibility arising from her inconsistent statements to DOCS officers.
  • Whether any misdirection by the trial judge regarding the use of out-of-court statements gave rise to a miscarriage of justice.

Decision

The Court of Criminal Appeal dismissed the appeal on all grounds, agreeing with the reasons of Sperling J.

On the central evidentiary question, Sperling J drew a distinction between two situations in which section 108(3) operates. Where fabrication is alleged (under subsection (b)), a prior consistent statement made in essentially the same context as the trial evidence may add nothing, because it does not rationally answer the suggestion that the story has been invented. The position is materially different, however, where prior inconsistent statements have been admitted (under subsection (a)).

In this case, the McLaren disclosure, taken together with the complainant's explanation for why she denied the abuse to DOCS officers in the following month, had the capacity to rationally answer the attack on her credibility. The disclosure to Ms McLaren predated the denials to DOCS, and the complainant's explanation linked her later inconsistency to her having sought confidentiality from the counsellor. That connection gave the McLaren evidence real rehabilitative force under section 108(3)(a).

On the jury direction issue, the trial judge had, without objection from either party, directed the jury during trial that evidence of out-of-court statements was not evidence of the facts stated. Sperling J noted that this direction, delivered in general terms and by common consent, applied to all such evidence and corrected any assumption the jury may have made earlier about using the prior inconsistent statements as proof of fact. The Court expressed no endorsement of all aspects of the directions given, but found no miscarriage of justice.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • Under section 108(3)(a) of the Evidence Act 1995, a prior consistent statement can be admitted to re-establish a witness's credibility where prior inconsistent statements have been received in evidence, provided the court grants leave and the consistent statement rationally answers the credibility attack.
  • A prior consistent statement does not need to have been made immediately after the alleged events to satisfy the "rational answer" requirement. Its probative value depends on the circumstances, including whether it is linked to an explanation for the inconsistent statements.
  • Where fabrication is alleged under section 108(3)(b), a prior consistent statement made in materially the same context as the trial evidence may not rationally answer that allegation, because it merely repeats the same account. The analysis under subsection (a) is distinct and more permissive in this respect.
  • In dismissing the appeal, the Court confirmed that a mid-trial direction to the jury, given without objection from either party, that out-of-court statements are not evidence of the facts stated will ordinarily be taken to apply to all such statements adduced during the trial.
  • No miscarriage of justice arose from the trial judge's directions, even where points were not taken below, where the overall direction adequately addressed the risk of the jury misusing the evidence.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), s 108(3)
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Criminal Appeal Rules 1952 (NSW), r 4

Cases:
- Hilder (1997) 97 A Crim R 70
- Welsh (1996) A Crim R 364
- PAH (CCA, 18 December 1998, unreported)
- Gillard (1999) A Crim R 479
- Graham (1998) HCA 61; 157 ALR 404