Background
Andrew Harling was tried on four counts of sexual intercourse with a child between 14 and 16 years old. The complainant alleged that Harling, a family friend, committed four sexual acts during an overnight stay at Harling’s home in 2006 or 2007, when the complainant was 15. Harling denied that any sexual activity occurred.
At trial, the complainant had difficulty recalling the number and sequence of the alleged acts, which he had described in a 2020 police statement. After an attempt to refresh his memory under s 32 of the Evidence Act 1995 (NSW), the trial judge permitted the prosecution to cross-examine him under s 38 by taking him through the statement. A jury convicted Harling on counts 1 and 4 but could not agree on counts 2 and 3; he was later acquitted of those two counts at a retrial. He received an aggregate sentence of four years and two months, with a non-parole period of two years and eight months.
Harling challenged the convictions on the grounds that the prosecution should not have been permitted to cross-examine the complainant about the statement, that its contents amounted to inadmissible hearsay, that the jury received inadequate directions, and that the verdicts were unsafe or unsupported by the evidence.
The Court’s Holding
The Court unanimously dismissed the appeal, granting leave on grounds 1, 2 and 4 and refusing leave on ground 3. It held that ss 32, 38 and 43 of the Evidence Act are machinery provisions governing how evidence is adduced rather than independent rules of admissibility. Evidence that a witness reads aloud under s 32(3) forms part of the witness’s oral testimony and is not hearsay merely because the witness cannot independently recall the underlying events.
The trial judge misconstrued part of s 32 by treating the relevant time under s 32(2)(b)(ii) as when the complainant accepted that his statement was accurate, rather than when the events were fresh in his memory, and by applying the wrong alternative within that paragraph. Those errors were immaterial, however. The judge committed no error of the kind identified in House v The King when permitting cross-examination under s 38: the complainant’s failure to come up to proof could make his evidence “unfavourable,” meaning not favourable, and the judge properly considered fairness.
A prior inconsistent statement admitted for the credibility purpose permitted by s 103 may also be used for its truth under s 60, whether the witness accepts, rejects or cannot recall the statement’s truth. Although prosecutors should ordinarily ask whether the previous statement was true rather than merely whether it was made, the evidence here was not inadmissible hearsay. No special reliability warning had been requested, the complainant ultimately gave positive testimony adopting the relevant allegations, and the memory problems and inconsistencies were apparent to the jury. Considering that evidence, the contemporaneous complaint evidence and Harling’s testimony, the guilty verdicts on counts 1 and 4 were reasonably open.
Key Takeaways
- Sections 32, 38 and 43 of the Evidence Act regulate the manner of adducing evidence; they do not themselves determine admissibility.
- A witness who fails to give expected evidence may be “unfavourable” under s 38 even without hostility, and a prior inconsistent statement admitted for credibility may be used for its truth through s 60.
- Memory difficulties and inconsistent accounts do not necessarily make a conviction unsafe when the jury can assess those weaknesses and the evidence as a whole supports guilt beyond reasonable doubt.
Why It Matters
The decision gives practical guidance on handling witnesses who cannot fully recall events recorded in earlier statements, particularly in delayed child-sexual-abuse prosecutions. It distinguishes refreshing memory, cross-examining an unfavourable witness and determining admissibility, while confirming that prior statements admitted for a legitimate credibility purpose may become evidence of their truth.
The Court also cautioned that such evidence may still warrant exclusion, restricted use or an appropriate jury warning in a particular case. Its weight and treatment depend on matters including the witness’s degree of memory loss, the ability to conduct meaningful cross-examination and the circumstances in which the earlier statement was made.