Evidence of a previous representation will only be admissible if it is relevant (Evidence Act 2008 s55).
Even if evidence of a previous representation is relevant, it will generally not be admissible:
To prove the existence of a fact asserted in the representation (the “hearsay rule”) (Evidence Act 2008 s59); or
If it only affects the assessment of a witness’s credibility (“the credibility rule”) (Evidence Act 2008 s101A, 102).
However, there are a number of exceptions to both the hearsay rule[1] and the credibility rule,[2] which allow previous representations to be admitted in certain circumstances.
This topic addresses the directions that should be given when evidence of a previous representation is admitted:
To prove the existence of the facts asserted in the representation (a “hearsay purpose”); or
Because it is relevant for a purpose other than proof of an asserted fact (a “non-hearsay purpose”).
Evidence which is admitted for a non-hearsay purpose may be used to prove the existence of a fact asserted in the representation (Evidence Act 2008 s60).
Similarly, evidence which is admitted for a hearsay purpose may (where relevant) be used by the jury when assessing a person’s credibility (Evidence Act 2008 s101A, 102).
Content of the Charge
There is no direction that must be given whenever evidence of a previous representation is admitted. The judge must tailor the directions to the facts of the case.
Depending on the circumstances, judges may need to:
Tell the jury how they may use the evidence; or
Warn the jury about the potential unreliability of the evidence.
The need for any of these directions depends on whether a direction is sought or whether there are substantial and compelling reasons for giving a direction in the absence of any request (Jury Directions Act 2015 ss14 - 16). See Directions Under Jury Directions Act 2015 for information on when directions are required.
In directing the jury about these matters, it will not always be necessary for the judge to remind the jury of the words used in the previous representation. The degree of specificity with which the judge must refer to the content of a representation will depend upon the circumstances (Jury Directions Act 2015 ss65, 66; R v Demiri [2006] VSCA 64).
How May the Jury Use Evidence of a Previous Representation
The directions about the possible uses of previous representation evidence will depend on:
The nature of the evidence; and
Whether the judge has limited the use of the evidence under Evidence Act 2008 s136.
This topic focuses on the directions that may be given when the following types of previous representations have been admitted:
Evidence of complaint (formerly “recent complaint” evidence);
Evidence of prior inconsistent statements; and
Evidence of prior consistent statements.
Admissibility of Complaint Evidence
Evidence that the complainant made a complaint about the alleged offending is most likely to be admitted under Evidence Act 2008 s66. It may also be admissible under Evidence Act 2008 s108.
Evidence Act 2008 s66 – maker available
Evidence Act s66 provides two alternative pathways for admitting evidence of a previous representation.
For both, the representation will only be admissible if the person who made the representation has been or is going to be called to give evidence (Evidence Act 2008 s66(2)(a)).
Evidence Act 2008 s66(2)(b)(i) – fresh in the memory
A previous representation is admissible under Evidence Act 2008 s66(2)(b)(i) if the occurrence of the asserted fact was fresh in the memory of the speaker when he or she made the representation.
The court may consider all matters it regards as relevant when determining whether an occurrence is fresh in the memory of a person, including:
The nature of the event;
The age and health of the person;
The passage of time before the representation is made (Evidence Act 2008 s66(2A)).
The High Court in Graham v R (1998) 165 CLR 606 held that the temporal connection between the occurrence of an asserted fact and the making of the representation is the primary factor in determining whether an occurrence is fresh in the memory. Under that decision, a representation must be recent, immediate, contemporaneous or nearly contemporaneous. Subsection (2A) was added to the Uniform Evidence Acts to limit the effect of this decision, so that the temporal connection is only one factor the court must consider (ALRC 102 at [8.119]-[8.124]; R v XY (2010) 79 NSWLR 629).
Whether an event remains fresh in the memory is a question of fact and degree. The court should examine the content of the representation and the circumstances in which it was made to determine whether it was fresh in the speaker’s memory (Skipworth v R [2006] NSWCCA 37; Gordon-King v R [2008] NSWCCA 335; R v XY (2010) 79 NSWLR 629).
While the period of time between the event in question and the making of the representation is relevant, other factors will also be relevant and may displace any concerns that arise from the passage of time. Courts have recognised that general information about some forms of offending conduct, such as sexual offences, is inherently likely to remain fresh in the memory of the complainant for an extended period of time, even if memory of details fade (LMD v R [2012] VSCA 164)
The fact that there is a conflict or inconsistency between the previous representation and later statements is not relevant to the court’s determination of whether the event was fresh in the speaker’s memory (Skipworth v R [2006] NSWCCA 37; Gordon-King v R [2008] NSWCCA 335; R v XY (2010) 79 NSWLR 629).
In cases involving repeated sexual offences, or similar conduct, the effect of subsequent offences may keep the memory of earlier offences fresh in the memory of the complainant (R v Le [2002] NSWCCA 49).
Evidence Act 2008 s66 – child complainant
Under Evidence Act 2008 s66(2)(b)(ii), evidence of a previous representation by the complainant[3] is admissible if the complainant is available to give evidence, and the complainant was under the age of 18 years at the time when the representation was made.
A narrower form of this exception was previously provided for by the Criminal Procedure Act 2009 s377. That exception applied only to sexual offences, and did not apply unless the court was satisfied that the evidence was relevant to a fact in issue and sufficiently probative having regard to the nature and content of the representation and the circumstances in which it was made.
While s66(2)(b)(ii) does not contain an express requirement that the evidence must be ‘sufficiently probative’, cases on the operation of that requirement may continue to be relevant to the operation of the exclusionary provisions in Evidence Act 2008 ss135 and 137 (see, e.g., WSJ v R [2010] VSCA 339; Watson v R [2010] VSCA 189; Stark v R (2013) 45 VR 1; HSG v R [2011] VSCA 163). These cases identified that the lapse of time between the event and the representation, the degree of specificity of the representation and the existence of inconsistencies between the representation and the child’s evidence are relevant to assessing the probative value. These considerations must, however, also be considered in light of the requirement from IMM v R (2016) 257 CLR 300 that probative value of evidence must be assessed by taking the evidence at its highest.
Evidence Act 2008 s66(2)(b)(ii) will apply to any trial that has commenced on or after 1 October 2017. A trial commences when the accused is arraigned in the presence of the jury panel from which the trial jury is formed (Criminal Procedure Act 2009 s210). This exception also applies to summary hearings held on or after 1 October 2017. While the Criminal Procedure Act 2009 does not specify when a summary hearing commences, the Act does distinguish between a summary hearing and the procedure before a summary hearing, the latter including a mention hearing and a contest mention hearing (compare Criminal Procedure Act 2009 Part 3.2 and Part 3.3).
The former exception, Criminal Procedure Act 2009 s377, continues to apply to trials and summary hearings that had already commenced on 1 October 2017.
Evidence Act 2008 s108
Even where evidence is not admissible under Evidence Act 2008 s66, it may become admissible under Evidence Act 2008 s108 as a prior consistent statement where it is suggested that the witness’s evidence has been fabricated, reconstructed, or is the result of a suggestion, and the court gives leave. Once the evidence is admitted, it may be used as evidence of a complaint (see Langbein v R [2008] NSWCCA 38; Gordon-King v R [2008] NSWCCA 335; R v XY (2010) 79 NSWLR 629).
Uses of Complaint Evidence
There are three ways in which complaint evidence can potentially be used by the jury:
To prove the truth of the facts asserted in the complaint;
To assess the credibility of the witness (by showing that the witness’ account of the events in question has been consistent); and
To rebut the argument that would otherwise arise that an absence of complaint suggests that the offending did not take place (R v GAR [2003] NSWCCA 224; R v BD (1997) 94 A Crim R 131; R v Lynch [1999] NSWCCA 32).
This differs from the position at common law, where the use of complaint evidence was limited to the jury’s assessment of the complainant’s credibility (see, e.g., R v Freeman [1980] VR 1).
Another difference from the common law position is that the jury may use the evidence without being satisfied that:
the words were spoken spontaneously and constituted a “complaint”; and
the complaint was made at the first reasonable opportunity (Evidence Act 2008 s66; R v Harbulot [2003] NSWCCA 141).
In some cases the jury may take into account the mere fact that a complaint was made when assessing the complainant’s credibility. In other cases it will be the consistency of the account presented in the complaint that the jury may use in their assessment (see, e.g., R v GAR [2003] NSWCCA 224 and R v Harbulot [2003] NSWCCA 141).
It is for the jury to decide what significance, if any, is to be attached to the evidence. The law does not oblige the jury to treat the evidence in any particular way (see R v Matthews [1999] 1 VR 534).
Uses of Prior Inconsistent Statements
A prior inconsistent statement is a “previous representation that is inconsistent with evidence given by the witness” (Evidence Act 2008 Dictionary).
This definition is not limited to verbal “statements”. It covers any previous “representations”, including representations that can be inferred from a person’s conduct (R v Selsby [2004] NSWCCA 381; R v KNP (2006) 67 NSWLR 227).[4]
Evidence that a witness made a prior inconsistent statement may be admissible under Evidence Act 2008 ss103 or 106. The cross-examination of a witness about a prior inconsistent statement is regulated by Evidence Act 2008 s43.
When a party adduces a prior inconsistent statement the jury will have two inconsistent accounts from the same witness. It is for the jury to determine which account, if any, to believe (R v Thynne [1977] VR 98; Sainsbury v Allsop (1899) 24 VLR 725).
The jury may use evidence that a witness made a prior inconsistent statement when assessing a witness’s credibility or reliability, if that evidence demonstrates that the witness is unable or unwilling to accurately recall relevant events (R v Hackett [2006] VSCA 138; R v NRC (No 2) [2001] VSCA 210; R v Thompson (2008) 21 VR 135; Driscoll v R (1977) 137 CLR 517; R v Salih (2005) 160 A Crim R 310).
A witness who makes a prior inconsistent statement is not necessarily lying. While dishonest witness are more likely to introduce inconsistencies into their stories, truthful witnesses may make mistakes about details (R v Salih (2005) 160 A Crim R 310).
The jury may also use evidence of a prior inconsistent statement to prove the truth of the facts asserted in the statement (Evidence Act 2008 s60).
When a party adduces evidence of a prior statement that contains parts that are both consistent and inconsistent with the evidence given in court, the jury may use the evidence to assess the consistency or inconsistency of the witness’ evidence. The jury may find that a prior inconsistent statement enhances the witness’s credit by presenting a generally consistent narrative (R v Kehagias, Leone & Durkic [1985] VR 107; R v Titijewski [1970] VR 371; R v PFG [2006] VSCA 130).
Direction about the Uses of Prior Inconsistent Statements
A direction about prior inconsistent statements is not necessary in all cases. In some cases, counsel’s arguments may have sufficiently identified the relevant principles for the jury and removed the need for a judicial direction (see R v Hartwick, Hartwick & Clayton (2005) 14 VR 125; R v BR [2005] VSCA 145).
While it is not strictly necessary, where the judge directs the jury about prior inconsistent statements, the better approach is to identify the two permissible uses of prior inconsistent statements (Pavitt v R (2007) 169 A Crim R 452; R v Abdallah [1999] NSWCCA 380; Raimondi v R [2013] VSCA 194).
However, where the alleged inconsistencies form an important part of the defence case, they must ordinarily be identified as part of the obligation to put the accused’s case before the jury (R v Mark & Elmazovski [2006] VSCA 251; R v Salih (2005) 160 A Crim R 310; R v Stewart (2001) 52 NSWLR 301 per Howie J; c.f. R v PFG [2006] VSCA 130; R v RH [2004] VSCA 231).
Similarly, if a party has sought a direction under Jury Directions Act 2015 s14, the judge must give the requested direction unless there are good reasons for not doing so.
In addition, if a party has applied for a direction under Jury Directions Act 2015 s32, the judge will need to consider whether, as a form of hearsay evidence, the prior inconsistent statement is evidence of a kind that may be unreliable. See Section 32 Unreliability Warning (below).
Where a prior inconsistent statement suggests a difference in the complainant’s account of the offence charged that is relevant to the complainant’s credibility or reliability, the trial judge will need to give a direction in accordance with Jury Directions Act 2015 s54D. See Differences in a Complainant’s Account.
When directing the jury about a prior inconsistent statement, the judge should avoid implying that the jury must choose between the two statements, or that the jury needs to apply a particular standard of proof to whether a statement was made. Where a prosecution witness makes a prior inconsistent statement, it is appropriate to direct the jury to consider whether the inconsistencies demonstrated raise a reasonable doubt about the witness’ evidence (Raimondi v R [2013] VSCA 194).
Where a party introduces evidence of a prior inconsistent statement that is part of a larger statement, and the jury asks about the remainder of the statement, the judge should direct the jury not to speculate about the content of the rest of the statement, as they are only concerned with what has been admitted into evidence (R v Hackett [2006] VSCA 138).
Uses of Prior Consistent Statements
Evidence that a witness made a prior consistent statement may be admissible under Evidence Act 2008 s108.
Evidence of a prior consistent statement can be used:
To explain why the witness has given an inconsistent account;[5] or
To rebut suggestions that the witness’s evidence has been fabricated, reconstructed or is the result of a suggestion (Evidence Act 2008 s108(3). See also R v Ali [2000] NSWCCA 177; R v Cassar & Ors [1999] NSWSC 352; R v Sood (Ruling No 2) [2006] NSWSC 732).
Circumstances in which evidence of prior consistent statements can be used include:
Where the opposing party suggests that a witness’s evidence was invented in response to a particular incident. In such cases, evidence that the witness made a consistent statement that pre-dates the specified incident may be used to refute that suggestion (R v MDB [2005] NSWCCA 354; R v DJT [1999] NSWCCA 22. See also, in a common law context, R v Martin (No 2) (1997) 68 SASR 419; R v Cox & Sadler [2006] VSC 333).
Where the opposing party attacks the reliability of the witness’s account, suggesting that it has been reconstructed rather than recollected. In such cases, evidence of a statement that was made contemporaneously with the alleged offence, and which demonstrates a consistent recollection of the alleged events, may be used to refute the attack (R v Sood (Ruling No 2) [2006] NSWSC 732).
While evidence of a prior consistent statement is admitted because it is relevant to the jury’s assessment of the complainant’s credibility, it may also be used to prove the truth of the facts asserted in the statement (Evidence Act 2008 s60). This differs from the position at common law.
It will therefore only be correct to direct that jury that a prior consistent statement cannot be used to prove the truth of its contents if the judge limits the use of the evidence under Evidence Act 2008 s136 (R v Singh-Bal (1997) 92 A Crim R 397). See Limiting the Use of Evidence under s136 (below).
The value of a prior consistent statement that is not independently verified is a matter for the jury. The lack of independent verification does not automatically weaken the probative value of the statement (R v DJT [1998] 4 VR 784).
Prior Consistent Statements admitted under s 108 and Complaint Evidence admitted under s 66(2)
When evidence of a prior statement is admitted under an exception to the hearsay rule (e.g. s66(2)), the jury may also use it (if relevant) to assess the credibility of a witness, as the credibility rule will not apply (see Evidence Act 2008 s101A(b)). Similarly, when evidence of a previous representation is admitted under Evidence Act 2008 s108, the jury may also use the statement as hearsay evidence due to s60, unless it is excluded or the use limited under ss 135-137.
The judge must identify the basis or bases for admitting the previous representation and how the jury may or may not use the evidence. Where issues are raised as to the reliability of the evidence of the prior statements, section 32 warnings may also be required (see below).
While judges and parties can and will refer to evidence of prior statements of an alleged victim admitted under s66(2) as “complaints”, they should not refer to evidence admitted under s108(3) as “complaint” evidence in order to minimise the risk of confusion (R v DBG [2002] NSWCCA 328; Friend v R [2007] NSWCCA 41).
Need for a Direction about the Uses of Prior Consistent Statements
It is not always necessary to direct the jury about the uses of prior consistent statements. Without directions, the court may assume that the jury will use such statements in the same way as any other evidence in the trial, as jurors are not aware of the common law distinctions between the use of hearsay evidence and direct evidence (Pavitt v R (2007) 169 A Crim R 452; R v Abdallah [1999] NSWCCA 380).
However, while it is not strictly necessary, the better approach is for judges to identify the two permissible uses of prior consistent statements (Pavitt v R (2007) 169 A Crim R 452; R v Abdallah [1999] NSWCCA 380; Raimondi v R [2013] VSCA 194).
Limiting the Use of Evidence under s136
Judges will need to direct the jury about any limitations placed on the use of the evidence under Evidence Act 2008 s136 (WSJ v R [2010] VSCA 339).
A judge may limit the use of evidence if there is a danger that a particular use of the evidence might:
Be unfairly prejudicial to a party; or
Be misleading or confusing (Evidence Act 2008 s136).
It will usually only be necessary to consider this matter when counsel applies for a s136 order (Pavitt v R (2007) 169 A Crim R 452).
At common law, juries were generally prohibited from using hearsay evidence to prove the existence of the facts asserted in the representation, due to the potential unreliability of that evidence. It was the intention of the Evidence Act 2008 to change this position, and allow evidence that was admitted either as an exception to the hearsay rule, or for a non-hearsay purpose, to be used to prove the existence of asserted facts (see Evidence Act 2008 s60).
Judges should therefore not automatically prevent previous representations that are admitted under the Evidence Act 2008 from being used to prove the existence of any asserted facts. To do so would be to constrain the legislation by reference to common law rules and distinctions which the legislature has discarded (Papakosmas v R (1999) 196 CLR 297; ISJ v R (2012) 38 VR 23).
While a judge may be more willing to exercise the power under Evidence Act 2008 s136 to limit the hearsay use of evidence admitted under s108, compared to limiting the hearsay use of evidence admitted under s66 of the Evidence Act 2008, there is no obligation to do so (Pavitt v R (2007) 169 A Crim R 452).
When the party seeking to adduce the evidence relies on s66, the judge should generally not confine the relevance of the evidence to credibility (ISJ v R (2012) 38 VR 23).
Before limiting the use of evidence to credit, the judge must consider whether the preconditions for admissibility in sections 108(3)(b) and 192 are met, as it is not appropriate to circumvent those conditions by admitting the evidence under s66 and then limiting the use of the evidence under s136. The need to ensure the evidence meets the conditions in ss108(3)(b) and 192 applies regardless of whether the evidence is initially admitted as an exception to the hearsay rule or the credibility rule (ISJ v R (2012) 38 VR 23).
In determining whether to limit the use of previous representations, the judge should consider whether any warning under Jury Directions Act 2015 s32 regarding the dangers of relying on hearsay evidence (see below) would limit the risk of unfair prejudice (see R v BD (1997) 94 A Crim R 131).
If the judge limits the use of prior consistent statements, he or she should also consider whether to limit the use of prior inconsistent statements. Consistency will usually require the same treatment of both types of evidence (R v Ali [2000] NSWCCA 177).
Directions which are not required
Following the commencement of the Jury Directions and Other Acts Amendment Act 2017 on 1 October 2017, the following common law directions in relation to previous representations are no longer necessary:
A direction that repeating a previous representation does not make the original statement true (Jury Directions Act 2015 s44B; contra Papakosmas v R (1999) 196 CLR 297);
Where evidence of a complainant’s previous complaint is given,
a direction that the evidence does not independently confirm the complainant’s evidence of the alleged offence (Jury Directions Act 2015 s44C; contra R v Stoupas [1998] 3 VR 645); and
where the previous complaint evidence is given in general terms, a direction not to substitute the evidence of the previous representation for evidence of a specific charge (Jury Directions Act 2015 s44D; contra R v HJS [2000] NSWCCA 205).
Jury Directions Act 2015 ss44B – 44E only abolish common law rules requiring these directions. Unlike other provisions of the Jury Directions Act 2015 (see, e.g. ss40, 44G, 44J, 44M, 64D), a judge is still permitted to give these directions and there may be cases where such a direction should be given in the interests of ensuring a fair trial (Jacobs v The Queen [2019] VSCA 285, [90]).
Section 32 Unreliability Warning
Where evidence of a previous representation is admitted, a judge may need to warn the jury about the potential unreliability of that evidence under Jury Directions Act 2015 s32.
A s32 warning may be required in relation to any evidence of a previous representation, including complaint evidence, prior inconsistent statements and prior consistent statements.
Section 32 of the Jury Directions Act 2015 closely follows the structure of Evidence Act 2008 s165, as it applied to criminal trials. The most significant difference is that as part of the request, the party must identify the significant matters which make the evidence unreliable.
When is a s32 Warning Required?
A judge must give a s32 unreliability warning if:
A party in a jury trial requests such a warning;
The evidence in question is "of a kind that may be unreliable";
The party making the request specifies the significant matters that may make the evidence unreliable; and
There are no good reasons for not doing so (Jury Directions Act 2015 ss14, 32).
In relation to the second requirement, s31 states that hearsay evidence (evidence in relation to which Part 3.2 of the Evidence Act 2008 applies) is "of a kind that may be unreliable".
This does not mean that a s32 unreliability warning is required for all hearsay evidence that is admitted. Such a warning is only required if the judge finds that the specific evidence in the case is “of a kind that may be unreliable” (and the other requirements of s32 have been met). In some circumstances, there may be no risk that the relevant evidence is unreliable and so s14 does not require a warning (see, e.g., R v Clark (2001) 123 A Crim R 506; R v Fowler (2003) 151 A Crim R 166; R v Harbulot [2003] NSWCCA 141; Derbas v R [2007] NSWCCA 118. Cf R v Stewart (2001) 52 NSWLR 301).
For example, evidence that the complainant made a complaint about a sexual offence is not inherently unreliable. The potential unreliability of such evidence will depend on the circumstances of the case (R v Harbulot [2003] NSWCCA 141).
This means that whenever evidence of a previous representation is admitted, judges must consider whether that particular piece of evidence is “of a kind that may be unreliable” (R v Clark (2001) 123 A Crim R 506; R v Fowler (2003) 151 A Crim R 166; R v Harbulot [2003] NSWCCA 141; Derbas v R [2007] NSWCCA 118. Cf R v Stewart (2001) 52 NSWLR 301).
This is a test of “possibility”. The question is whether the evidence is of a kind that “may be” unreliable (R v Flood [1999] NSWCCA 198).
A s32 warning may be required for any evidence of a previous representation, even if:
The evidence is admitted as an exception to the hearsay rule; or
The same representation would not be hearsay if given as part of the witness’s evidence in court (R v Fernando [1999] NSWCCA 66).
Content of the s32 unreliability warning
A s32 unreliability warning must:
Warn the jury that the evidence may be unreliable;
Inform the jury of matters that may cause it to be unreliable; and
Warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it (Jury Directions Act 2015 s32(3)).
Warning the jury about potential unreliability
The judge must warn the jury that the evidence in question may be unreliable (Jury Directions Act 2015 s32(3)(a)).
A simple repetition of the language of s32(3)(a) is likely to be sufficient to comply with this requirement (see, e.g., the direction approved in R v Stewart (2001) 52 NSWLR 502 at [135]).
Where evidence of a prior inconsistent statement is admitted:
The judge may warn the jury that the evidence may be unreliable due to its hearsay nature; and
The judge should not warn the jury that the inconsistency makes the witness unreliable. The jury can usually assess the effect of a prior inconsistent statement on a witness’ credibility without judicial assistance (Driscoll v R (1977) 137 CLR 517; R v Salih (2005) 160 A Crim R 310; R v BR [2005] VSCA 145; R v Juric (2002) 4 VR 411; Relc v R [2006] NSWCCA 383).
Informing the jury about sources of unreliability
The judge must inform the jury of the significant matters that may cause the evidence to be unreliable (Jury Directions Act 2015 s32(3)(b)(i)).
In informing the jury about the significant matters that may cause evidence of a previous representation to be unreliable, the judge should refer to the risk posed by the specific evidence given in the case. Depending on the circumstances, these may include:
That in repeating what the speaker said, the original words or their effect may not have been accurately recalled and repeated;
That any weaknesses of perception, memory, narration skill and sincerity of the speaker and the person reciting the representation may have been compounded;
That the representation was not made in the court environment and may have been subject to pressures that resulted in a false account being given;
That the representation was not made on oath or affirmation, and so may not have been truthful;
That the jury was unable to assess the credibility of the speaker at the time he or she made the representation, and so are unable to know whether or not he or she was being honest (see, e.g., R v Harbulot [2003] NSWCCA 141; R v Vincent [2002] NSWCCA 369; R v Nemeth [2002] NSWCCA 281; Brown v R [2006] NSWCCA 69).
The judge should identify any inconsistencies that exist between different representations that a person has made. These inconsistencies are a basis for suggesting that the evidence may be unreliable (R v Mayberry [2000] NSWCCA 531; R v TJF (2001) 120 A Crim R 209; c.f. R v Stewart (2001) 52 NSWLR 502 per Howie J).
Judges may note that the memory of what a person has heard is sometimes less reliable than the memory of what he or she has seen (R v Nemeth [2002] NSWCCA 281).
While in relevant cases a judge may also mention that there has been no opportunity to cross-examine the maker of the statement, it is not sufficient for a judge to only mention this matter. Unlike the other matters listed above, lack of cross-examination only affects the potential to discover whether the evidence is unreliable and does not affect the inherent reliability of the evidence (R v Nemeth [2002] NSWCCA 281; Brown v R [2006] NSWCCA 69).
Warning the jury about the need for caution
A s32 warning must alert the jury to the need for caution in determining whether to accept the evidence, and the weight to be given to it (Jury Directions Act 2015 s32(3)(c)).
The warning must alert the jury to the need to exercise caution, but it need not tell them how to exercise that caution (R v Stewart (2001) 52 NSWLR 502).
Statutory Direction on Differences in a Complainant’s Account in Sexual Offence Proceedings
In sexual offence cases where evidence of previous representations is led, the judge will need to consider whether there are gaps, inconsistencies or differences in the complainant’s account. If so, the judge may need to give the jury statutory directions about those differences (Jury Directions Act 2015 s54D). See Differences in a Complainant’s Account for further information.
Notes
[1] See the Notes to Evidence Act 2008 s59 for a list of exceptions to the hearsay rule.
[2] See the Notes to Evidence Act 2008 s102 for a list of exceptions to the credibility rule.
[3] Evidence Act 2008 s66 uses ‘victim’ instead of ‘complainant’. We have retained ‘complainant’ to maintain consistency across the Bench Book.
[4] For example, evidence that the complainant continued to voluntarily associate with the accused after the alleged commission of sexual offences may be said to be a representation by conduct that the accused did not commit an offence against the complainant (see R v Selsby [2004] NSWCCA 381; but c.f. R v ERJ [2010] VSCA 61 and discussion of reasons for delay in complaint and continued association with an offender).
[5] For example, in R v Ali [2000] NSWCCA 177, the complainant reported the alleged offences to a school counsellor under a promise of confidentiality and later denied those allegations to workers from the Department of Community Services (DOCS). The complainant claimed that she made the false denials to DOCS out of fear that they would pass on the allegations to her mother.
Last updated: 17 February 2020