R v Russell [2022] NSWCCA 294

R v Russell [2022] NSWCCA 294 · Read the judgment on AustLII

Catchwords: Credibility evidence – Unavailability of witnesses – Sufficiency of staying silent for the purpose of credibility, or unavailability

In this decision the Court of Criminal Appeal (‘CCA’) has examined whether a witness who is unresponsive or silent will give rise to exceptions in the Evidence Act which would otherwise allow the tender of an earlier statement, either based on the credibility rule, or based on the ‘maker unavailable’ exception to hearsay. The Court has held that silence will not, in all circumstances, be a sufficient basis to find that an earlier inconsistent statement should be admitted. The decision also highlights the need for all of the relevant parts of the inconsistent evidence to be put to the witness in order for the earlier evidence to be admissible.

Following a trial, the applicant was convicted of a range of sexual offences against two nephews and, importantly, a niece when they were variously aged between 5 and 15 years old. The niece gave a statement, but by the time of trial was a reluctant and difficult witness. She said, in the presence of the jury, that she wanted the charges dropped, broadly because her status as a complainant meant she had been estranged from her family for several years. Her evidence in court was frustrated, argumentative, and (importantly) largely unresponsive. The Crown Prosecutor proposed to tender her statement. The judge suggested s 106 of the Evidence Act as the means of doing that. Section 106 is an exception to the credibility rule which applies where the substance of inconsistent evidence is put to a witness in cross-examination and the witness denies, or does not admit or agree to, the substance of that evidence. There was a luncheon adjournment, after which the niece was either silent or unresponsive in her evidence, in the face of further cross-examination by the Crown Prosecutor. The statement was then admitted by the trial judge on the basis that the contents of the statement were inconsistent with the evidence she gave. In his Honour’s reasons, he determined that the statement was admissible both on the basis of s 106, and on the basis of s 65 of the Evidence Act, which is an exception to the hearsay rule where the maker of the representation is relevantly ‘unavailable’ (which the Evidence Act dictionary defines as including a party having unsuccessfully taken all steps to compel the relevant witness to give evidence).

The applicant appealed his convictions on grounds alleging, amongst other things, that the niece’s statement ought not have been admitted under s 106 or s 65.

The CCA (Yehia J, with whom Button J agreed; Fagan J also agreeing as to the basic outcome, but dissenting as to whether there should be a retrial) held that the evidence was not properly admitted on either basis.

In relation to s 106, in the circumstances of this case the substance of the allegedly-inconsistent evidence was not sufficiently put to the witness. Section 106 does not require the adoption of a mechanistic approach in which each and every proposition in the prior representation is put to the witness, but it does require that the substance of the evidence is put (at [88]). In this case, particularly important paragraphs were left out during the cross-examination by the Crown Prosecutor (at [89]). Secondly, although the complainant did deny some words in some paragraphs of the statement, she did not deny the core allegations. In contrast to examples raised by earlier authorities, in this case the complainant either remained silent or became argumentative when the relevant parts of the statement were put to her. She did not in fact deny the contents of the core aspects of the statement, nor did she give an inconsistent account or say that she could not remember; she simply gave no account at all (at [90]-[94]). This raised the question of whether remaining mute or giving unresponsive answers satisfies the requirement under s 106(1)(a)(ii). For reasons relating to both analogous cases and the Australian Law Reform Commission report which led to the Evidence Act, the Court here determined that it is possible that silence would amount to a denial, but it will depend on the circumstances of the particular case (at [96]-[101]). In the circumstances of this case, it could not be inferred that the niece’s silence or unresponsiveness constituted a denial, or a failure to agree or admit to, the substance of her statement. All that could be inferred here was that she was reluctant to give evidence because she wanted to re-establish contact with her family and feared that giving evidence would further strain her relationships (at [103]).

Insofar as the evidence was sought to be admitted as an exception to the hearsay rule, because the witness was ‘unavailable’ within the terms of s 65, the CCA also ruled that the trial judge erred in admitting the evidence. The trial judge ruled that the niece’s failure to answer meant that she was an ‘unavailable witness’ and that ‘all reasonable steps’ had been taken by the Crown to compel her to give evidence, without success. However, no application was in fact made by the Crown pursuant to s 65 at trial. Moreover, the mere fact that a witness refuses to answer questions, without more, will not always satisfy the definition of unavailability in cl. 4(g) of Part 2 of the Dictionary to the Evidence Act. There must be some evidence to establish that ‘all reasonable steps’ have been taken to compel the witness, without success. It is not possible to set out an all-encompassing list of what will meet that description (at [114]). Relevant considerations include the nature of the case, the importance of the evidence, the higher standard of proof in a criminal trial, and the importance of the liberty of the individual. Moreover, it is ‘no light thing’ to admit hearsay evidence inculpating an accused, and the serious consequences of successfully invoking s 65 emphasises the need for compliance with the conditions of admissibility prescribed by the section (at [115]-[116]). Other factors which were relevant in the circumstances of this case were the fact that the niece was herself in custody at the time she was called to give evidence, her reasons for wanting to drop the charges, the fact that there was no evidence that the niece had been provided witness support by the prosecution or that the prosecutor had spoken to her to address her concerns, the fact that there was no application made for the trial judge to warn the witness that she may be dealt with for contempt, and she was not offered the opportunity of a short adjournment to obtain legal advice in relation to a possible referral for contempt.

Yehia and Button JJ, as the majority, upheld the appeal and remitted the matter for retrial (flagging that it is a matter for the Director of Public Prosecutions whether the niece is called in a further trial). Fagan J agreed that the appeal should be upheld, but considered that there should be no retrial ordered in relation to the counts relating to the niece because calling her again would simply result in the same ‘chaos and disorder’.