Vasilevski v R [2019] NSWCCA 277

Vasilevski v R [2019] NSWCCA 277 · Read the judgment on AustLII

Catchwords: Cause witness to withhold true evidence – Jack Nicholson – A Few Good Men

What is the truth, anyway? In a debate befitting the times of ‘alternative facts’, the CCA has considered whether offences of persuading someone to withhold ‘true evidence’ refer to evidence that the witness believes to be true, or evidence which is objectively true. Although strictly unnecessary to decide, the Court considered that the purposes of the legislation are only furthered if it refers to ‘the evidence that a witness truly believes and would give under oath’. They also caution prosecutors to stick as closely as possible to the language of the statute when formulating counts on an indictment (which means disregarding the headings in NSW legislation).

The applicant was charged with a variety of assaults and sexual assaults, as well as one count of influencing a witness to withhold true evidence: The applicant and the complainant had been in a sexual relationship for about two years. They argued (for reasons unexplained, in a graveyard), there was a fight, then the complainant got away. She alleged that later that evening there occurred sexual and further physical assaults (of which the applicant was eventually acquitted). After the applicant had been charged, the complainant swore a Statutory Declaration in which she sought to apologise for her ‘false rape accusations’, explaining them by reference to her struggle with substance abuse. But this declaration, the complainant would later further allege, was drafted by her at the applicant’s direction. The Crown called evidence from an expert to the effect that false withdrawal of domestic violence allegations is common (the opinion was to the effect that 44% of victims withdraw their allegations), has complex causes, and in this case might have been influenced by the fact that the complainant had a mild intellectual disability. The complainant’s credibility was further clouded by the fact that she had previously made a false allegation to the police about the applicant. The applicant’s case was to the effect that the complainant’s original allegations were untrue, that the declaration was truthful, and that the applicant had nothing to do with it. He was acquitted of all the counts except one each of Assault Occasioning Actual Bodily Harm, and of influencing a witness; he appealed those convictions as well as the sentence (which was 4 years with a non-parole period of 3 years). This summary only deals with the argument in relation to the conviction for influencing a witness.

The CCA (Bell P, Simpson AJA and Fullerton J, in a unanimous judgment) dismissed each of the appeals. They helpfully set out the essential elements for an offence of influencing a witness under s 323(1), both by reference to the legal requirements (at [59]), and then by reference to the particular facts in this case (at [60]-[65], and [71]-[91]). But of interest for the purposes of this summary were the (obiter) observations set out under the heading ‘A further point’ at [101]ff. The analysis in this case had proceeded on the basis that ‘true evidence’ when used in s 323 of the Crimes Act means ‘objectively true evidence’ – the argument having been that the evidence about the sexual assaults could not have been objectively true, given it was rejected by the jury. But there was a nice question of construction, unexplored in argument, about whether ‘true evidence’ when used in the offences under ss 321, 322, and 323 really means ‘the evidence that a witness truly believes and would give under oath’ – whether true or not. The different was illustrated by hypothesizing a case where a witness is persuaded not to give evidence which they believe to be true, but which is objectively untrue, for example in a case of mistaken identity. If the evidence needs to be ‘objectively true’, then an accused who persuades that witness not to give their honest (but mistaken) evidence would not commit the offence. But that construction might not be thought to further the purpose of s 323 [or, presumably, ss321, or 322] of the Crimes Act (at [102]-[105]). It was unnecessary to decide the question here, there having been no argument, and given that the Court would have dismissed the appeal regardless of the interpretation. The implication, however, is that in this case the Court favoured the view that the gravamen of the offence is persuading a witness not to give the evidence they believe to be true.

The Court went on to make a further observation about the drafting of the indictment. It used the language of ‘with intent to influence’, which seemed to have been drawn from the heading of the section. But the Interpretation Act deems the heading not to be part of the Act. In that context there was a further point raised by the Court (again, not the subject of argument) about whether the words used were sufficiently similar to those in the Crimes Act (at [107]). The Court therefore cautioned prosecutors to adhere as closely to the language of the statute creating the offence (at [108]).