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Criminal Law Blog NSW

The complaining witness in Stevens v R testified that she was kidnapped and raped

Neither the complaining witness’ testimony in another prosecution nor discrepancies in the evidence were sufficient reason to set aside the guilty verdict

The complaining witness in Stevens v R [2015] NSWCCA 235, testified that she was kidnapped, raped, and indecently assaulted by a group of men in 1978, when she was 17. She identified Stevens as one of those men.

Stevens’ first trial ended with no verdict. At the end of his second trial, Stevens was convicted of violating section 89 of the Crimes Act 1900 by taking the complaining witness against her will with the intent to have sex with her, of two counts of rape in violation of section 63, and of indecent assault in violation of section 76. All of those sections of the Crimes Act were in effect in 1978, but were later abolished when NSW’s sexual assault laws were modernized.

A third trial took place after Stevens was convicted. That trial involved two men who allegedly participated in the sexual assaults with Stevens. In that trial, the testimony of the complaining witness differed in some respects from the testimony she gave in Stevens’ first and second trials. The two men who were accused in the third trial were found not guilty.

Fresh evidence

On appeal, Stevens argued that the testimony of the complaining witness was “fresh evidence” that could have produced an acquittal if it had been available to him during his second trial. Stevens argued that the details of the sexual assault that the complaining witness described were inconsistent with the details to which she testified during Stevens’ two trials, thus undermining her credibility.

The Crown argued that Stevens’ testimony in the third trial was merely more detailed than, not inconsistent with, the testimony in Stevens’ trial. The Crown argued that the testimony was not “fresh” because Stevens’ lawyer could have uncovered it by cross-examining her more vigorously during Stevens’ trial.

Of course, what the complaining witness would have said if she had been questioned differently in the second trial can never be known. Nevertheless, the Court of Criminal Appeals (CCA) found nothing in the evidence to suggest that the witness would not have given the same testimony in the second trial that she gave in the third trial if she had been asked the same questions. The court also agreed that the witness’ testimony in third trial could be understood in a way that created no inconsistency with her testimony in the second trial. The court therefore determined that the more recent testimony was neither “fresh” nor “cogent” evidence that impeached the credibility of the complaining witness. The court held that Stevens was not entitled to a new trial on that ground.

Reasonableness of verdict

Stevens’ lawyer argued that his convictions were unreasonable for several reasons. First, the passage of time made it impossible for Stevens to acquire evidence of his innocence, such as a medical examination of the complaining witness or a forensic examination of her clothing. Second, inconsistencies in testimony given by the complaining witness and another prosecution witness undermined the prosecution’s proof of guilt. Third, the complaining witness undermined her own credibility by changing her testimony during the second trial about the date on which the crimes occurred (a discrepancy of about two months).

Fourth, the complainant did not seek help during the assault when she had an opportunity to do so. Fifth, she deliberately misled the police about the identity of one assailant and gave confusing testimony about the location of the assaults. Sixth, the complainant received mental health treatment in 1986 after she became convinced that someone cast a spell on her.

Despite these and other alleged problems with the prosecution’s proof, the CCA dismissed Stevens’ appeal. The court concluded that the jury was in the best position to assess the credibility of witnesses, including the complaining witness. Her testimony was partially corroborated by other witnesses and was not so irrational or otherwise lacking in credibility that it could not be accepted by reasonable jurors. While appellate courts will set aside guilty verdicts if there is a significant possibility that an innocent person was convicted, the appellate court accepted the jury’s judgment of Stevens’ guilt.

Disclaimer : This article is just a summary of the subject matter being discussed and should not be regarded as a comprehensive legal advice for you to defend yourself alone. If you are charged with criminal offences, it is recommended that you seek legal assistance from criminal lawyers.

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