New South Wales Court of Criminal Appeal CITATION : R v Corbett (Supplementary Judgment NSWCCA 137) [2002] NSWCCA 402 FILE NUMBER(S) : CCA 60086/01 HEARING DATE(S) : 8 February 2002 JUDGMENT DATE : 1 October 2002 Regina PARTIES : v William George Corbett JUDGMENT OF : Handley JA at 1; Sully J at 14; Smart AJ at 15 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DC 00/21/0193 LOWER COURT JUDICIAL Luland DCJ OFFICER : COUNSEL : Crown - P G Ingram Appellant - J S Stratton SOLICITORS : Crown - S E O'Connor Appellant - D J Humphreys CATCHWORDS : EVIDENCE - credibility - s 108(3) - prior inconsistent statement - prior consistent statement - discretion - leave of Court LEGISLATION CITED : Evidence Act DECISION : The orders pronounced by the Court on 19 April 2002 are confirmed IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL 60086/01 DC 00/21/0193 HANDLEY JA SULLY J SMART AJ 1 October 2002 R v William George CORBETT EVIDENCE – CREDIBILITY – s 108(3) – PRIOR INCONSISTENT STATEMENT – PRIOR CONSISTENT STATEMENT – DISCRETION – LEAVE OF COURT Under s 108(3) Evidence Act, if evidence is led to prove a prior inconsistent statement, the party who has called the witness may, with the leave of the Court, adduce evidence of a prior consistent statement to restore the witness's credit. Counsel for the accused intended to adduce evidence of a prior inconsistent statement by the Complainant. The Crown sought leave to adduce evidence of the Complainant's prior consistent statement in chief, which was granted. It was submitted on appeal that the prior consistent statement was wrongly admitted because the order of events under s 108(3)(a) was reversed and because the trial Judge erred in the exercise of his discretion. HELD: The reversal of the order of events under s 108(3)(a) did not occasion miscarriage of justice, and no ground had been established for interfering with the exercise of the trial Judge's discretion under s 108(3). ORDERS: The orders pronounced by the Court on 19 April 2002 are confirmed. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL 60086/01 DC 00/21/0193 HANDLEY JA SULLY J SMART AJ 1 October 2002 R v William George CORBETT Supplementary Judgment 1 HANDLEY JA: This Court gave judgment on 19 April 2002 allowing in part the appellant's appeals against conviction and sentence. The appellant has lodged an application for Special Leave to Appeal to the High Court and his solicitors have written to the Registrar drawing attention to this Court's failure to deal, in its reasons, with Ground 2 of the appellant's grounds of appeal. This was the case and since I wrote the principal judgment I accept responsibility for the omission. 2 The omission does not mean that ground 2 was not considered. It was considered and having concluded that it did not assist the appellant I unfortunately put the matter out of my mind. 3 The complainant gave evidence of offences by the appellant which were alleged to have occurred between 1969 when she was 4 and 1976 when she was 10. She did not complain to anyone about his conduct until 1986. She then complained to a Mr Seaton, who was sharing a flat with her at the time. In 1989 she again complained, this time to a girlfriend, but she did not complain to the police until 1997. 4 Ground 2 in the appellant's notice of appeal provides: "The learned trial Judge erred in allowing evidence of a prior representation of the complainant to Colin Seaton to be admitted". 5 The complaint to Mr Seaton arose as a result of her mother's request that she allow the appellant, her first cousin, to stay in the flat which she shared with Mr Seaton. The appellant was or was about to become homeless and could not obtain other accommodation. The complainant objected to this but ultimately acquiesced when her mother insisted that she provide the appellant with accommodation. She said she was not yet willing to tell her mother what had happened. The complainant had the conversation with Mr Seaton referred to in ground 2 before the appellant moved in. 6 Counsel for the accused knew of the complaint to Mr Seaton from the depositions. At the start of the trial he foreshadowed an objection to this evidence. 7 Counsel for the accused informed the trial Judge during argument on the admissibility of this evidence that he intended to cross-examine the complainant about her decision to allow the accused to share the flat with her. The purpose of that cross-examination would have been to prove a prior inconsistent statement. The dictionary in the Evidence Act defines a prior inconsistent statement as "a previous representation that is inconsistent with evidence given by the witness". "Representation" is defined as including: "(a) an express or implied representation (whether oral or in writing) or (b) a representation to be inferred from conduct, or (c) … (d) …". 8 Such a cross-examination of the complainant would have enlivened one or both limbs of s 108(3) of the Act which provides: "The credibility rule does not apply to evidence of a prior consistent statement of a witness if: (a) evidence of a prior inconsistent statement of the witness has been admitted, or (b) it is or will be suggested … that evidence given by the witness has been fabricated or re-constructed (whether deliberately or otherwise) … ; and the Court gives leave to adduce the evidence of the prior consistent statement". 9 The intention of counsel for the accused to cross-examine the complainant on this basis prompted counsel for the Crown to seek leave under sub s (3)(b) to adduce evidence of the prior consistent statement to Mr Seaton. This did not cause counsel for the accused to abandon his proposed line of cross-examination, and the Judge granted leave. 10 By the close of the evidence the complainant had been examined and cross-examined about the events which led up to this complaint, and she and Mr Seaton had been examined and cross-examined about the complaint itself. Although the order of events had been reversed the result was that sub para (a) was satisfied because evidence of a prior inconsistent statement, by conduct, had been admitted and sub para (b) was also satisfied and the Judge granted leave. 11 The appellant has not established any ground for interfering with the exercise by the trial Judge of his discretion under s 108(3)(b), and the reversal of the order of events for the purposes of s 108(3)(a) could not have been prejudicial or occasioned a miscarriage of justice. The accused had given evidence adopting statements in his record of interview which suggested that the complainant's evidence was fabricated or reconstructed and the complainant had been cross-examined along those lines. Moreover the complainant's evidence of this complaint was to some extent inconsistent with other parts of her evidence and was not altogether consistent with the evidence of Mr Seaton. 12 In my judgment this ground of appeal has not been established but in any event I have not been persuaded that the accused has been prejudiced or that the grant of leave and the admission of the evidence of this complaint occasioned a miscarriage of justice. 13 The orders pronounced by this Court on 19 April 2002 are therefore confirmed. 14 SULLY J: I agree with Handley JA. 15 SMART AJ: I regret not dealing with ground 2 in my earlier reasons. I agree with the supplementary judgment of Handley JA and the order proposed by him. ****** 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.