R v Collins

This decision considers the interaction between ss 18, 19 and 101 of the Evidence Act 1977. In particular, at the trial, a previous inconsistent statement was put to a witness who admitted its existence and the truth of its contents. The Court of Appeal considered the admissibility of the prior statement in those circumstances and whether it could be tendered for the truth of its contents pursuant to any of those provisions. It was ultimately held that, because each of the fact of giving the statement and the truth of its contents was admitted by the witness, it could not be tendered for the truth of its contents under ss 18 or 19 of the Evidence Act 1977. However, it was observed by the court that the witness, by not disputing the truth or accuracy of (and thereby adopting) the prior statement, in effect gives evidence of those facts. This was subject to an important qualification, applicable in this case, that the relevant evidence was preliminary complaint evidence. Therefore, in these circumstances, this evidence could not be received as evidence of the truth of the prior statement, but was relevant to the complainant’s credit.

Gotterson and Morrison JJA and Burns J

2 June 2017

The appellant was convicted of a number of offences against a 19 year old woman, including rape. [3]. The complainant’s mother was called as a witness at the appellant’s committal hearing, and also at his trial. [5]. On each occasion she was asked to give an account of a telephone conversation which took place between her and the complainant several hours after the alleged offences. [4]–[5]. The account that she gave of the conversation at trial, however, differed from the account she had given at the committal hearing. [5]. The sole ground of appeal was that a miscarriage of justice was occasioned by the way in which the trial judge directed the jury as to the use that could be made of the account which the complainant’s mother gave at the committal hearing. [6].

Burns J (with whom Gotterson and Morrison JJA agreed) provided a detailed summary of the evidence given at trial, the discussions in the absence of the jury, and the trial judge’s summing up. [8]–[29]. In brief, the appellant’s counsel put to the complainant’s mother her earlier statements in the committal hearing, which were to the effect that she was not sure the complainant had said “I was raped”, but instead that she believed the complainant had said “I think [sic] was raped”. The complainant’s mother admitted to making these statements, after being shown portions of the committal hearing transcript, and accepted that her memory at the time of the committal hearing was better than at the time of trial.

At trial, in the absence of the jury, counsel for the appellant sought to persuade the trial judge that this “prior inconsistent statement” had been proved by virtue of s 18 of the Evidence Act 1977, and relying upon s 101, was therefore admissible as evidence of the facts therein. This was not accepted by the trial judge, who proceeded to give the “usual direction” that prior inconsistent statements of a witness are relevant only to the credibility and reliability of the witness. [26]. 

On appeal, the appellant submitted that the mother’s committal hearing evidence was a “previous statement” within the meaning of s 19 (as opposed to s 18) of the Evidence Act, and had been proved by virtue of that section for the purposes of s 101 of the Act. [31]. The appellant therefore argued that the mother’s committal hearing evidence did not go merely to her credit, but was admissible as evidence of the facts stated therein. [31]. Accordingly, the appellant argued that the jury had been misdirected as to the use which it could make of the mother’s committal hearing evidence. [32]. Against this, the Crown submitted that “where a witness admits the making of a previous inconsistent statement, proof of the statement is not permitted either by statute or at common law”. [33].

Burns J considered in detail the operation of, and law relating to, ss 18, 19 and 101 of the Evidence Act. His Honour noted that the application of ss 18 and 19 in a given case will not always be straightforward, but that the two sections are intended to, and do, work together. [38]. As for s 18, his Honour explained that s 18 is “essentially declaratory of the common law”. [39]. Under that section, proof of a prior inconsistent statement can only be given if the witness “does not distinctly admit that the witness has made such statement” and if the former statement is inconsistent with “the present testimony of the witness”. [39]. However, it is only if the witness fails to distinctly admit its making that the previous inconsistent statement will be receivable in evidence under s 18. [39]. Where the witness does not admit the statement, s 101 makes the statement admissible as evidence of any fact contained therein, contrary to the common law position that it could only go to the credit of the maker. [44].  

In contrast to s 18, s 19 of the Evidence Act, dealing with written statements, modifies the common law rule that a witness cannot be examined on a document without it being put to the witness. [45]. His Honour also noted that s 19(1A) supplements the operation of s 18, where the making of a previous written statement is admitted, but the witness disputes that its relevant contents are true. [47]. In such cases, s 19(1A) contemplates that the written statement will be both the source and the means by which the contradiction is proved. [46]. His Honour continued:

“It follows that where, as here, the witness distinctly admits the making of a previous inconsistent statement and does not dispute the truth or accuracy of that earlier statement, it cannot be proved in evidence pursuant to either s 18 or s 19. In particular, s 19(1A) can have no operation because there is nothing left to contradict ‘by the writing’ and no other basis to advance it into evidence. That being the case, s 101 will not be engaged because no statement will have been ‘proved by virtue of’ that provision (or, for that matter, by s 18).” [48].

His Honour noted that the effect of this was not that the adoption of facts contained in prior inconsistent statements by a witness goes only to that witness’s credit. [50]. Rather, subject to one issue (discussed below), once a witness confirms the relevant facts in a previous inconsistent statement, “that confirmation is every bit as much evidence of those facts as the evidence the witness gave in evidence in chief on the same topic”. [51].

On the facts of the case, that proposition was subject to one qualification, because the mother’s evidence of the complainant’s statement was preliminary complaint evidence. [57]. Such evidence is received not as evidence of the facts complained, but as evidence going to the complainant’s credit. The preliminary complaint evidence, therefore, could not establish the truth of any of the underlying facts, although it could establish the consistency in the making of the complaint by the complainant and, if accepted by the jury, support the complainant’s credit. [57].

From this analysis, it followed that it would be wrong to direct the jury that the mother's prior inconsistent statements could be used only to assess her credit “because that evidence was also available to assess the consistency of the complainant’s complaint and, in that sense, to assess her credit”. [62]. Burns J therefore considered that the primary judge erred when he instructed the jury that what the mother had said to the committal court was “not evidence of the fact that the complainant said those things to her”. [65]. As the mother's prior account had become part of her oral testimony at trial, it was “available for use by the jury when considering what the complainant said by way of preliminary complaint to her mother”. [65]. Accordingly, there had been a misdirection. [69].

In the result, however, his Honour was satisfied that no substantial miscarriage of justice had occurred. [71]. The guilt of the appellant on each of the offences for which he was convicted had been proved beyond reasonable doubt. [72]. The appeal was dismissed. [74].

J English