District Court New South Wales Medium Neutral Citation: R v Mattiussi (No.2) [2022] NSWDC 235 Hearing dates: 21 June 2022 – 27 June 2022 Date of orders: 23 June 2022 Decision date: 23 June 2022 Jurisdiction: Criminal Before: Abadee DCJ Decision: See paragraph 21 Catchwords: EVIDENCE – criminal proceeding – application by Crown to cross-examine Crown witness – whether evidence of witness 'unfavourable' to the Crown case – where it is asserted that the basis or bases for lay opinions by the Crown witness have not been developed, or fully developed, means that the lay opinions cannot be regarded as unfavourable – Evidence Act 1995 (NSW), s 38(1)(a) – exercise of discretion - scope of cross-examination Legislation Cited: Evidence Act 1995 (NSW) ss 38, 78 Cases Cited: DPP (Vic) v Garrett (2016) 257 A Crim R 509 R v Le (2002) 54 NSWLR 474 Category: Procedural rulings Parties: Office of the Director of Public Prosecutions (ODPP) Mr M Mattiussi (accused) Representation: Counsel: Ms E Winborne (solicitor advocate) for the Crown Mr E McMahon for the accused Solicitors: ODPP Total Legal for the accused File Number(s): 2020/00145510 Publication restriction: Non-publication of complainant's identity pursuant to s 578A Crimes Act 1900 (NSW). Judgment Background 1. The Crown applies for leave under s 38(1) of the Evidence Act 1995 (NSW). At the time the application was brought, the second day of this trial had virtually concluded and the Crown was leading evidence in chief from Ms Sarah Robertson. 2. As indicated in my reasons for a pre-trial evidentiary ruling concerning sexual relationship evidence, Ms Robertson was a former partner of the accused before the alleged offending and had delivered birth to two of his children. This was before the accused entered into the relationship with the complainant. The latter occurred in early February 2020. There is evidence to indicate that the accused saw Ms Robertson at some time in March 2020 and, according to the complainant, engaged in regular correspondence with her. The complainant knew about this and the accused was aware of that. The complainant indicated that this contact with the accused's ex-partner caused tension and difficulties in her own relationship with the accused throughout March and the early part of April 2020. 3. On the Crown case, the accused put to the complainant a proposal, on 10 April 2020, that the complainant, the accused and Ms Robertson engaged in a 'threesome' at the complainant's place. On the complainant's account, corroborated to some extent by Ms Robertson, the accused had gotten the complainant to agree to this proposal upon the understanding that he would treat her like a 'princess', and engage in penile-vaginal intercourse with her; whilst he would give relatively less attention to Ms Robertson, by engaging in penile-anal intercourse with Ms Robertson. To the complainant's mind, an advantage of this was to effectively send a message to Ms Robertson that the accused was committed to the complainant, and not to Ms Robertson. 4. But, on the Crown case, from the complainant's perspective, the threesome went awry: the complainant was displeased with the particular sexual activities that the accused had with Ms Robertson. She made her displeasure known to the accused who, in turn, was displeased with her. Ms Robertson left early the next morning, 11 April 2020, and it was after this, on the Crown case, in a spirit of mutual dissatisfaction, as between the accused and the complainant, that the accused committed the alleged sexual offences against the complainant. 5. The Crown relies, in part, upon complaint evidence. During the evidence of the complainant, evidence was adduced of written communications between the complainant and Ms Robertson which occurred after those alleged offences. They are in Exhibit E. In one of the messages, the complainant wrote to Ms Robertson that the accused had "fucked me 3 times after you left too. I didn't really get a choice". There were also conversations. It is Ms Robertson's evidence about these communications that have given rise to the current issue. 6. The transcript (T 110-112) indicates the following exchange in Ms Robertson's evidence in chief: EXHIBIT E SHOWN TO WITNESS Q. Ms Robertson, firstly, do you recognise-- A. Yes. Q. --those screenshots? A. Yes. Q. Are they messages between you and (the complainant)? A. Yes. Q. Can I ask you to turn to the third page of that document? A. Yep. Q. I draw your attention about a third of the way down, and I read, "He fucked me three times after you left, too. I didn't really get a choice." Do you recall reading those words from (the complainant)? A. Yes. Q. What did you understand that to mean? A. Basically, she's said that he's raped her. Q. Did you believe her? A. No. Q. Did (the complainant) at any point tell you any detail about any of the three offences? A. Yes. Q. Did she tell you anything about an incident involving faeces on Mr Mattiussi's penis? A. Yes. Q. Do you recall the date on which she told you of that incident? A. No. Q. Do you recall what else she said to you about the three alleged offences? A. The complainant said that they were having sex and he stuck it up her butt, like, anal sex. They went and had a shower, he put it in her mouth, she sucked his dick and got poop in her mouth. She was quite happy to tell me that and it was a joke, like, they - she laughed about. Q. Well, in that message, would you agree that she says in that message that she didn't have a choice about it? A. Yes, she does. Q. And is that your view? A. No. Q. Well, what is it that you say that she said? A. Am I being asked is that what I'm seeing? If that's what I'm seeing, yes. But that's not my opinion of yes. Q. So, in terms of what you're seeing-- A. Mm-hmm. Q. --it is clear there that she says, "I didn't have a choice". Do you accept that part? A. Yes, yes. I see that, yes. Q. In terms of your opinion of it - your opinion that she did have a choice-- A. Yes. Q. --was that to do with anything that she told you, or was that simply your view? A. My view. 1. After this evidence, Ms Crown asked Ms Robertson, "Ms Robertson, are you concerned about your children having a father present in their lives?" But prior to Ms Robertson answering, I intervened. The application 1. The Crown argues that Ms Robertson's opinions that the complainant was joking when the complainant described the sexual acts the accused perpetrated upon her and that she herself did not believe the complainant's statement in Exhibit E about an absence of consent to them, was evidence which was 'unfavourable' to the Crown, thereby satisfying the requirement in s 38(1)(a) of the Evidence Act. 2. Ms Crown indicated that, if leave was granted to cross-examine Ms Robertson on this unfavourable evidence, the scope of such cross-examination was to try to establish that Ms Robertson had a motive to give unfavourable evidence, being that, as the mother of the accused's children, she needed his support which, it was implicitly suggested, she would not likely receive from him if he was found guilty of the charges and was sentenced on them. Ms Crown would want to put to Ms Robertson that she was not telling the truth about her opinions. She described her as being a partisan. 3. Mr McMahon, Counsel for the accused, opposed the application but this was on a narrow ground. It was that although the circumstance might arise where it might probably be made, the application was premature. It was premature because the evidentiary foundation had not been laid. Although the opinions expressed to date may be accepted as not assisting the Crown case, until the basis, or bases, underlying the opinions was revealed, the opinions were not 'unfavourable' within the meaning of s 38(1)(a). He argued that Ms Robertson should first be questioned, as in the ordinary course of questioning of a witness in chief, to elicit what was said, or done, by the complainant or what otherwise formed the basis for the opinions she expressed. 4. On the premise that I rejected his argument, Mr McMahon did not say anything against the grant of leave, with reference to the matters in s 192. Consideration 1. An initial difficulty in Mr McMahon's argument is that the premise is not entirely correct. The exchange that I have referred to during Ms Robertson's evidence indicates that after Ms Robertson recalled what the complainant had told her of the alleged offensive acts and was shown the text message (in Exhibit E) to her, and after Ms Robertson expressed her opinion that the complainant having consented to them, Ms Robertson was asked whether that opinion was based on anything she could see in the written message. Ms Robertson said it was not. That does, however leave as a potential possibility that her opinion might have been formed by what the complainant actually said to her. But Ms Robertson has already given evidence that when discussing what had occurred with the complainant, the complainant had "laughed" about it. It might be the case that this is the circumstance which caused Ms Robertson to form the opinion she did. At any rate, it is arguable that the basis, or bases for Ms Robertson's opinion had not been fully revealed. 2. The word 'unfavourable' in s 38(1)(a) is not defined. Although a number of cases have shown attempts to elucidate the term, with reference to ordinary dictionary meanings, care needs to be taken that dictionary definitions are not treated in a conclusive way in and certainly not in substitution for the text. 3. The context for s 38(1)(a) assists to some extent. The term was intended by Parliament as a substitute for the term 'hostile' witness in the common law, and self-evidently was intended to be broader. 4. In DPP (Vic) v Garrett (2016) 257 A Crim R 509, the Victorian Court of Appeal said about the expression that it meant "unfavourable to the case which the party is seeking to advance in the proceeding" (at [67]). The Court of Appeal went on to observe (at [68]) that "If the evidence of the witness called by that party is inconsistent with, or 'likely to be contradictory' of, that identified case, it will ordinarily satisfy the description of 'unfavourable'". 5. In my opinion, even if the basis for the opinion may not be articulated clearly, or at all, its expression may still satisfy the concept of 'unfavourable' evidence and thereby satisfying the condition in s 38(1)(a) of the Evidence Act. It is unfavourable to the case that the Crown wishes to advance that Ms Robertson expressed an opinion, in effect, that the complainant did consent to being "fucked three times", which was the written report the complainant made to Ms Robertson in the text; especially when that particular report was accompanied by the statement that "I didn't really get a choice". Relevant in this regard is that the complainant chose to confide this information in Ms Robertson. It might be inferred by the jury that she did so because of at least some closeness of personal connection, or empathy, that the complainant felt in Ms Robertson so that communications that the complainant confided in Ms Robertson were likely to be truthful. In this last respect, I anticipate that part of the use that the Crown wishes to put the complaint evidence is to establish that what the complainant told Ms Robertson was truthful. But the jury's evaluation of that submission may be apt to be affected by Ms Robertson's evidence of how the complainant's verbal disclosure, or reporting, of the offending was received, or interpreted, by Ms Robertson. Her lay opinion therefore is probative. 6. Notwithstanding Mr McMahon's argument that the basis or bases for the opinions were not sufficiently explored, it is notable that he did not object to the evidence on the basis that the evidence did not fall within an exception to opinion evidence in s 78(a) of the Evidence Act and was therefore inadmissible. That was hardly surprising and itself is an indication of the unfavourable nature of the opinions to the Crown case. The opinions plainly contradict or are inconsistent with the Crown case that the complainant did not consent to the acts of sexual intercourse which make up counts 1 to 3 on the indictment. In particular, the opinions represent a challenge to what appears, at face value, to be a contemporaneous written statement by the complainant to Ms Robertson that she did not consent to the acts of intercourse. 7. If there is any merit in the prematurity argument, namely that further information is required before a conclusion is reached that it is unfavourable, to my mind, that only goes to the exercise of the discretion to grant leave under s 38(1) of the Evidence Act. 8. But it is idle to suppose that any further explanation given by Ms Robertson to account for her opinions would assist the Crown in an attempt, in a non-leading fashion to effectively arrest or reverse the unfavourable nature of the opinion evidence she has already given. Ms Robertson has already indicated that to the extent that her opinion was based upon her interpretation of the text message, there was nothing in that message which led to the formation of her opinion that the complainant consented. That tends to suggest that her opinion may have been based upon what the complainant otherwise said to her or did. I have already noted Ms Robertson's evidence of the complainant having laughed about the incidents. It is possible, indeed likely, that further elucidation may also be unfavourable to the Crown case. In any event, should leave be granted, Mr McMahon has the opportunity, if he wishes, in a leading way, to elucidate what this other information affecting the formation of her opinions is. That is, as s 38(6)(b) indicates, a matter that favours the grant of leave. I note, further, that the accused's Counsel took no point whether the matter in s 38(6)(a) militated against the grant of leave. 9. There being no issue, on the accused's part, that any matter referred to in s 192 would tell against the Crown's application, I grant the application to the Crown to cross-examine Ms Robertson in that regard. 10. As to the scope of such cross-examination, as Heydon JA held in R v Le (2002) 54 NSWLR 474 at [66]-[67] the Crown should be permitted to question Ms Robertson in a way which would establish the "probability of the factual state of affairs in relation to the unfavourable features of her evidence"; in addition to asking questions relevant to her credit, such as the motive of the witness, or bias identified by Ms Crown in argument. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 June 2022