In this case the Court of Appeal set aside CND’s conviction for sexual penetration without consent and ordered a retrial after fresh evidence emerged from a witness (KM) that the complainant had told her in a telephone call that the complainant ‘just decided to tell people that it was rape, that she made it up’.
In giving evidence on the appeal, the complainant rejected any suggestion that she admitted to lying about the allegations. As such, KM’s evidence as to what the complainant said to her would be admissible at trial as a prior inconsistent statement (under Evidence Act 1906 (WA) s 21). As a prior inconsistent statement, this would be relevant only to the complainant’s credibility (at –).
In many cases, it might be difficult to establish that a miscarriage of justice occurred where admissible evidence which goes only to credibility could not be adduced at trial. However, in this case the sole issue was the complainant’s lack of consent and in this regard the complainant’s credibility when giving evidence about her lack of consent was central.
The Court of Appeal found that if accepted, KM’s evidence had the potential to materially affect assessment of the complainant’s credibility, and thus, could cause the fact-finder to have doubt about whether the complainant’s evidence as to a lack of consent should be accepted (at ). Accordingly, a miscarriage of justice was established, the appeal was allowed, the conviction was set aside and a retrial before a different judge was ordered.
The judgment was delivered late last year. The judgment can be accessed here.
Prior inconsistent statement: CND v Western Australia [No 2]  WASCA 159