A Child v The State of Western Australia
[2005] WASCA 91
•23 MAY 2005
A CHILD -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 91
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 91 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CCA:60/2004 | 9 FEBRUARY 2005 | |
| Coram: | MALCOLM CJ MCLURE JA PULLIN JA | 23/05/05 | |
| 44 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Convictions quashed | ||
| B | |||
| PDF Version |
| Parties: | A CHILD THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Particular offences Sexual offences Indecent dealing and sexual penetration Child complainants and accused Offences tried before Judge alone Duty to give adequate reasons Whether adequate Longman direction given Whether Melbourne direction applied Whether Liberato observed |
Legislation: | Children's Court of Western Australia Act 1988 (WA), s 19B Criminal Code (WA), s 319, s 320(2), s 320(4), s 651B, s 689 Evidence Act 1906 (WA), s 106C |
Case References: | Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 Director of Public Prosecutions for Nauru v Fowler (1984) 154 CLR 627 Drago v The Queen (1992) 8 WAR 488 Dyers v The Queen (2002) 210 CLR 285 Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 209 ALR 568 Flannery v Halifax Estate Agencies Ltd [2000] 1 All ER 373 at 377 Fleming v The Queen (1998) 197 CLR 250 Garrett v Nicholson (1999) 21 WAR 226 Ilich v The Queen (1987) 162 CLR 110 King v The Queen (1986) 161 CLR 423 Liberato v The Queen (1985) 159 CLR 507 Lloyd v Faraone [1989] WAR 154 Longman v The Queen (1989) 168 CLR 79 Melbourne v The Queen (1999) 198 CLR 1 R v ALH [2003] VSCA 129 R v Court [1989] AC 28 R v Ibbs (2001) 122 A Crim R 377 R v Keyte [2000] SASC 382 R v Wilkes (1948) 77 CLR 511 Rabey v The Queen [1980] WAR 84 Spies v The Queen (2000) 201 CLR 603 Tran v Claydon [2003] WASCA 318 Vallance v The Queen (1961) 108 CLR 56 Crampton v The Queen (2000) 206 CLR 161 Crofts v The Queen (1996) 186 CLR 427 Harling v Hall (1997) 94 A Crim R 437 Ladlow v Hayes (1983) 8 A Crim R 377 Murray v The Queen (2002) 189 ALR 40 Nevermann v The Queen (1989) 43 A Crim R 347 R v Lavell [2002] WASC 200 RBK v The Queen [2004] WASCA 216 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : A CHILD -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 91 CORAM : MALCOLM CJ
- MCLURE JA
PULLIN JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram : REYNOLDS P
File No : PCC 4284-97 of 2003
(Page 2)
Catchwords:
Criminal law - Particular offences - Sexual offences - Indecent dealing and sexual penetration - Child complainants and accused - Offences tried before Judge alone - Duty to give adequate reasons - Whether adequate Longman direction given - Whether Melbourne direction applied - Whether Liberato observed
Legislation:
Children's Court of Western Australia Act 1988 (WA), s 19B
Criminal Code (WA), s 319, s 320(2), s 320(4), s 651B, s 689
Evidence Act 1906 (WA), s 106C
Result:
Appeal allowed
Convictions quashed
Category: B
Representation:
Counsel:
Appellant : Mr G F Edwards
Respondent : Mr D Dempster
Solicitors:
Appellant : Bayly & O'Brien
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430
Director of Public Prosecutions for Nauru v Fowler (1984) 154 CLR 627
Drago v The Queen (1992) 8 WAR 488
Dyers v The Queen (2002) 210 CLR 285
Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 209 ALR 568
(Page 3)
Flannery v Halifax Estate Agencies Ltd [2000] 1 All ER 373
Fleming v The Queen (1998) 197 CLR 250
Garrett v Nicholson (1999) 21 WAR 226
Ibbs v The Queen (2001) 122 A Crim R 377
Ilich v The Queen (1987) 162 CLR 110
King v The Queen (1986) 161 CLR 423
Liberato v The Queen (1985) 159 CLR 507
Lloyd v Faraone [1989] WAR 154
Longman v The Queen (1989) 168 CLR 79
Melbourne v The Queen (1999) 198 CLR 1
R v ALH (2003) 6 VR 276
R v Court [1989] AC 28
R v Keyte (2000) 78 SASR 68
R v Wilkes (1948) 77 CLR 511
Rabey v The Queen [1980] WAR 84
Spies v The Queen (2000) 201 CLR 603
Tran v Claydon [2003] WASCA 318
Vallance v The Queen (1961) 108 CLR 56
Case(s) also cited:
Crampton v The Queen (2000) 206 CLR 161
Crofts v The Queen (1996) 186 CLR 427
Harling v Hall (1997) 94 A Crim R 437
Ladlow v Hayes (1983) 8 A Crim R 377
Murray v The Queen (2002) 189 ALR 40
Nevermann v The Queen (1989) 43 A Crim R 347
R v Lavell [2002] WASC 200
RBK v The Queen [2004] WASCA 216
(Page 4)
1 MALCOLM CJ: This is an appeal against the conviction of the appellant in the Children's Court of a number of sexual offences involving three young girls. The appellant was aged 12 – 13 at the material times and the three girls, A, B and C, were aged nine, six and four respectively.
2 The relevant facts are fully set out in the reasons to be published by both McLure JA and Pullin JA. In essence, the appellant's grounds contend that:
(1) (a) The learned President failed to apply the onus and standard of proof because he 'essentially treated the resolution of the case as a matter of whose evidence he preferred';
(b) His Honour did not accept the evidence of the appellant for his decreasing visits to the complainants' house or his denials in respect of the alleged offences, saying that:
'I do not accept [the appellant's] denials. Where there is material conflict between the evidence of each of [the complainants'] and [the appellant], I prefer and accept the evidence of each of the girls in each instance. I'm satisfied of each of the charges beyond reasonable doubt.'
(2) His Honour failed to instruct himself adequately on those aspects of the prosecution case which required him to test, assess and carefully scrutinise the evidence of the complainants before acting upon their evidence, having regard to the particulars referred to in the reasons to be published by Pullin JA and the decision in Longman v The Queen (1989) 168 CLR 79, including the delay in making complaints.
(3) His Honour failed to state adequately his reasons for rejecting the evidence of the appellant and finding against him on the facts.
(4) The trial Judge in assessing the credit of the complainants did not sufficiently take account of the delay in the complaints made by the complainants and the doubt it may have cast on the reliability of the evidence of each of them.
(Page 5)
- (5) His Honour failed to implement the direction he gave himself in relation to the evidence of the appellant's good character.
Ground 3: Adequacy of Reasons
3 It is convenient to deal with ground 3 first. As McLure JA has pointed out, counsel on both sides were unable to assist the Court on the questions whether s 651B of the Criminal Code (WA) (the "Code") applied to this case and whether the decision of the High Court in Fleming v The Queen (1998) 197 CLR 250 also applied. It is a matter of regret that no consideration was apparently given to this question by either counsel.
4 By s 43 of the Children's Court of Western Australia Act 1988 (WA), an appeal lies from the Children's Court when constituted by or so as to include a Judge to the Court of Appeal against both conviction and sentence. Such an appeal is as of right, whether for error of fact or law.
5 As I said in Lloyd v Faraone [1989] WAR 154 at 163:
"In these circumstances, the trial judge has a duty, in which both the litigants and the appellate court have an interest, to reveal his reasons. Those reasons must be revealed to such an extent as will enable an appellant court to consider and determine whether or not the judgment is erroneous. In Carlson v King (1947) 64 WN (NSW) 65 at 66 Jordan CJ said:
'It has long been established that it is the duty of a court of first instance, from which an appeal lies to a higher court, to make, or cause to be made, a note of everything necessary to enable the case to be laid properly and sufficiently before the appellate court if there should be an appeal. This includes not only the evidence, and the decision arrived at, but also the reasons for arriving at the decision.'
In Pettitt v Dunkley [1971] 1 NSWLR 376 at 387-388 Moffitt P (with whom Manning JA agreed) said:
'... there is as much a duty or judicial obligation or an obligation imposed by law to give reasons in an appropriate case as there is otherwise a duty to act judicially, such as to hear arguments of counsel and hear
(Page 6)
- evidence and admit relevant evidence of a witness. The reason why the judicial obligation to give reasons in an appropriate case exists, is that, where an appeal is provided, the trial at first instance does not exhaust the rights which parties may have. Just as an expressed statutory requirement to find facts and give a decision on the particular question of law which arises is directed to ensuring that the right of appeal in case of error of law is effective, so any general judicial duty to give reasons is similarly directed. The views of Jordon CJ quoted (supra) recognise that the duty of the judge or court is not limited to hearing the case and entering a verdict. Not only has he a judicial duty to determine and enforce the rights of parties at a trial judicially conducted at first instance, but he also has a judicial duty which, within some limits, is directed to preserving and facilitating any rights of appeal from his decision which a party may have.'
- This passage was repeated by Moffitt P (with whom Glass JA agreed) in Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697 at 702."
6 In Garrett v Nicholson (1999) 21 WAR 226 at 237, Pidgeon J said at [31]:
"The question is whether the reasons are sufficient. The law relating to this question is set out by Malcolm CJ in Lloyd v Faroane[1989] WAR 154 at 163. His Honour said that the reasons must be revealed to such an extent as will enable an appellate court to consider and determine whether or not the judgment is erroneous. In Pallot & Ors v Harrison,unreported; SCt of WA; Library No 950261; 12 May 1995 Owen J said that each case must depend on its own circumstances but that the reasons must show to the litigant and the appeal court why a decision was made in a particular way. His Honour said that unless it is apparent on the face of the reasons why the decision maker arrived at the conclusion which he or she did the entire process can be called into question."
7 In the context of a criminal trial conducted by a Judge alone without a jury, as McLure JA has pointed out, it is incumbent on the trial Judge in the context of ss 651A and 651B of the Code both to make any findings or give any verdict that could have been made or given by a jury if the trial
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- had been held before a jury and to include the principles of law applied by the Judge and the findings of fact on which the Judges relied. There is a proviso, however, that "the validity of the judgment is not affected by any failure of the Judge to comply with this subsection". This does not mean that a failure to give adequate reasons is not a ground of appeal.
8 Section 651B of the Code applies to proceedings in the Children's Court by virtue of s 19B(4)(c) of the Children's Court of Western Australia Act 1988 (WA). I agree entirely with the comments of McLure JA on the effect of these provisions.
9 The provisions are similar to those in par 9 of the Criminal Procedure Act 1986 (NSW) which were inserted by the Criminal Procedure Legislation (Amendment) Act 1990 (NSW) which made provision for the trial of persons on indictment by a Judge alone in certain circumstances. As was acknowledged by the High Court in Fleming v The Queen (1998) 197 CLR 250, these provisions are similar, but not identical to the provisions of ss 651A and 651B of the Code.
10 In Tran v Claydon [2003] WASCA 318 at 336 the duty to give reasons was acknowledged by McLure J (as she then was) as an aspect of the requirement of procedural fairness, in that a litigant is entitled to be informed of the reasons for the decision. Such reasons should include the reasons for the acceptance or rejection of the evidence, or parts of the evidence, given by each of the witnesses. I agree with Pullin JA that the failure of the learned President of the Children's Court to deal with the evidence on each charge separately, makes it impossible for this Court to properly review the President's decision. It follows that I would uphold ground 3. In the result, for this reason alone, the appropriate course to adopt is to allow the appeal and quash the convictions.
Grounds 2 and 4
11 I note that there is a difference of opinion between McLure JA and Pullin JA in relation to grounds 2 and 4. Ground 2 contended that the learned Judge failed to instruct himself adequately on those aspects of the prosecution evidence that required him to test, assess and scrutinise the evidence of the complainant before acting on that evidence as required by the decision of the High Court in Longman v The Queen (1989) 168 CLR 79.
12 McLure JA has reviewed and analysed the evidence in considerable detail. With respect, the analysis is both thorough and convincing. Her Honour has identified a number of reasons for closely scrutinising the
(Page 8)
- evidence which were not dealt with by the learned Judge. I agree with her Honour that the learned Judge approached the matter essentially in terms of belief or disbelief of the complainants and the applicant without the careful scrutiny of the details of the evidence which the Longman warning requires.
13 It follows that I agree with McLure JA that grounds 2 and 4 should be upheld.
Ground 5
14 As to ground 5, I agree with McLure JA that this ground was linked with grounds 2 and 4 and was not of sufficient merit to be upheld as an independent ground of appeal.
Conclusion
15 In my opinion, the appeal should be allowed on grounds 1, 2, 3 and 4. I agree with McLure JA that there should be no order for a new trial.
16 As to the question whether there should be a retrial, it is of considerable relevance that the offences involved in this case were alleged to have been committed between March 1999 and January 2000, when the complainants were aged between four and nine and the appellant was aged between 12 and 13. If a retrial were to be ordered, it is unlikely that it would be heard until later this year, which will be some six years or more since the alleged offences occurred.
17 The question whether a new trial should be ordered when convictions have been quashed is a matter for the exercise of judicial discretion: R v Wilkes (1948) 77 CLR 511 at 518 per Dixon J, Vallance v The Queen (1961) 108 CLR 56 at 62, 66, 69, 83; Director of Public Prosecutions for Nauru v Fowler(1984) 154 CLR 627 at 630 – 631; King v The Queen (1986) 161 CLR 423; and Ibbs v The Queen(2001) 122 A Crim R 377. In the present case, I consider that for the reasons stated by McLure JA, as well as the undesirability of the complainants having to go through the experience of giving their evidence again, there should be no order for a retrial.
18 MCLURE JA: The applicant applies for leave to appeal from his conviction in the Children's Court of Western Australia of two counts of sexual penetration of a child under 13 years contrary to s 320(2) of the Criminal Code (WA) and 11 counts of indecent dealing with a child under 13 years contrary to s 320(4) of the Criminal Code. The learned President of the Children's Court presided without a jury.
(Page 9)
19 The charges were formulated in very general terms, the allegation being that between 1 March 1999 and 31 January 2000 the applicant sexually penetrated or indecently dealt with a named complainant. A statement of material facts was provided to the applicant prior to trial. The convictions relate to three complainants who are sisters. The applicant and the complainants lived in neighbouring houses in a cul-de-sac.
20 The applicant was convicted of two counts of sexual penetration (oral and digital respectively) and six counts of indecent dealing with the youngest of the sisters ("C") who was aged four at the relevant time; two counts of indecently dealing with the second-youngest sister ("B") who was aged five - six at the relevant time; and three counts of indecent dealing with the elder sister ("A") who was aged nine at the relevant time. One count (11) relating to "B" was dismissed on the ground there was no evidence to support it.
21 The applicant was born on 4 January 1987 and was aged 12 years at the time of the offences save for count 8 when he may have turned 13.
22 At common law there is a rebuttable presumption that children between the ages of 10 and 14 are incapable of a crime. The rationale for the common law rule is explained by Cummins AJA in R v ALH (2003) 6 VR 276 at [72] as follows:
"Children should be protected by the mantle of the criminal law, not oppressed by it. The time of Aethelstan although not illuminated by the insights of modern developmental psychology well understood the humanity and justice of protecting children from the full rigor of the criminal law. The wisdom of such protection is manifest. Harper J in R (a child) v Whitty (a decision favourably noticed by Lord Lowry in C (a minor) v DPP at 40) cited with evident approval a passage from Professor Colin Howard's Criminal Law:
'No civilised society regards children as accountable for their actions to the same extent as adults.'
The ancient sense of justice and modern cognitive psychology come together properly to protect children in their development to adulthood. The 'intermediate zone' between 10 and 14 years is one of significant psychological, moral and personal development in children. The law should not be blind to its quality and character."
(Page 10)
23 In this jurisdiction, s 29 of the Criminal Code governs age-related criminal capacity. It provides that a person under the age of 10 years is not criminally responsible for any act or omission and that:
"A person under the age of 14 years is not criminally responsible for an act or omission, unless it is proved that at the time of doing the act or making the omission he had capacity to know that he ought not to do the act or make the omission."
24 Prior to the commencement of the trial, the applicant, by his counsel, conceded he had the requisite capacity. His defence was that he did not commit any of the offences with which he was charged.
The Trial Judge's Reasons and Grounds of Appeal
25 Closing submissions were completed on 7 April 2004. The trial Judge handed down his reasons for decision on 23 April 2004. He commenced by referring, among other things, to the rules relating to multiple counts, the evidence of good character given on behalf of the applicant and the use to which it could be put, what he described as "Longman-type directions", and the inconsistencies in, and between, the evidence given by the complainants. He continued:
"In the final analysis and weighing all of the evidence of all of the witnesses within the rules when dealing with multiple counts, as I've already explained and bearing in mind all of the comments that I've made on the variety of issues that I've referred to, I find that ['C'] was a very credible and reliable witness on the essential aspects. I accept that she had problems that required her to go to see Ms Val Kostic, but nevertheless I think that she has an underlying bubbly personality that is usually to the fore. On my assessment, she gave her evidence with a great degree of frankness and also innocence, and simply gave an account of what she recalled happening.
On my assessment, ['B'] has a relatively quiet and shy personality. She clearly appreciated the seriousness of giving evidence and impressed me as being very truthful. ['A'] is a relatively mature young girl on my assessment and, as to be expected, more mature than each … On my assessment she gave her evidence in a very straightforward and honest manner.
It is true that in the case of each of ['C'] and ['B'] in particular, there were some inconsistencies within their evidence and
(Page 11)
- between what each of them had stated earlier in their statements to police and their evidence respectively, but in my view such inconsistencies were on peripheral details only and don't strike at the core of their evidence. Each and every one of ['C'], ['B'] and ['A'] was consistent on essential aspects of their evidence."
26 After stating that he did not accept the applicant's evidence concerning the frequency of his visits to the complainants' house after January 2000 and the reason for the decrease in frequency, the trial Judge continued:
"I also do not accept [the applicant's] denials. Where there is material conflict between the evidence of each of ['C'], ['B'] and ['A'] and [the applicant], I prefer and accept the evidence of each of the girls in each instance. I'm satisfied of each of the charges beyond a reasonable doubt."
27 The Judge identified his findings of fact when dealing with each of the counts as follows:
"In summary, on each count; count 1, of sexual penetration, that concerns licking of the vagina and clearly that comes within the definition of sexual penetration in the code. Count 2 relates to [the applicant] lying on the clothes in the shed and having ['C'] lick his penis. Count 3 concerns events near the fence at the side of the house, where ['C'] licked [the applicant's] penis; and count 4, where [the applicant] licked ['C's'] vagina. Count 5 occurred on the surfboard and involves [the applicant] using his fingers and touching ['C'] between her bottom. Count 6 is the sexual penetration, where there was digital penetration of ['C's'] vagina by [the applicant].
Count 7, this was an occasion where [the applicant] touched his own penis and played with it and wriggled it around in ['C's'] presence; count 8, where in ['C's'] room he wriggled his penis in front of ['C']. Count 9, that relates to ['B'] where ['B'] says - and I accept - that [the applicant] licked her nipples; count 10 where [the applicant] said, 'Lick my penis and your wish will come true,' when he exposed his penis to ['C'] - sorry, to ['B'], and ['B's'] response to that was to leave the shed on the pretence that she wanted to go to the toilet.
And lastly, moving to each of counts 12, 13 and 14, which relates to ['A']; count 12 is the indecent assault when ['A'] was
(Page 12)
- on the bicycle and [the applicant] grabbed her on the bottom and also the breast; and each and both of counts 13 and 14 relate to the trampoline incident, where [the applicant] grabbed ['A'] on the breast - that's count 13 - and also touched her vagina - that's count 14."
28 The grounds of appeal are set out in full in the reasons of Pullin JA and it is unnecessary to repeat them here. In summary, the contentions are that the trial Judge failed to:
(1) apply the criminal onus and standard of proof;
(2) instruct himself adequately on those aspects of the prosecution evidence that required him to test, assess and scrutinise the evidence of the complainants before acting upon that evidence;
(3) adequately state the reasons for rejecting the applicant's testimony and finding against him on the facts;
(4) have sufficient regard to the complainants' delay in making complaints;
(5) follow and implement his direction relating to evidence of the applicant's good character.
29 The essence of much of the applicant's case as argued at the hearing is more accurately encapsulated in the question whether the trial Judge adequately considered and applied the relevant legal principles to the facts or alternatively, gave reasoned consideration to the legal and factual issues that emerged at trial. The former goes to the adequacy of the trial Judge's consideration of relevant matters and the second to the adequacy or sufficiency of his reasons for decision. The two complaints often overlap.
30 Before considering the question of the adequacy of the trial Judge's consideration of these matters, it is convenient to consider the nature and extent of the trial Judge's duty to give reasons for his findings that the applicant was guilty as charged and what, if any, inferences can be drawn from a failure to deal with a particular matter.
Reasons for Decision
31 Counsel for the parties were unable to assist the Court on the questions whether s 651B of the Criminal Code applies and the
(Page 13)
- applicability of the decision of the High Court in Fleming v The Queen (1998) 197 CLR 250.
32 The starting point of the analysis is ss 19A to 19F of the Children's Court of Western Australia Act 1988 (WA) which deal with the situation where a child is charged with an indictable offence. Section 19B(1) relevantly provides that:
"If a child is charged with an indictable offence and -
(a) the offence is such that, if an adult were charged with it, it must be tried on indictment; or
(b) …
the child may elect to be tried on indictment by the Supreme Court or the District Court (as the case requires), and the Court shall so inform the child."
33 Pursuant to s 19B(4)(c) if a child does not make an election under subs (1):
"(c) the [Children's] Court shall, subject to the provisions referred to in section 19(1), hear and determine the charge as if the complaint were an indictment, and the hearing were a trial on indictment and The Criminal Code shall apply with such modifications as circumstances require; but the child is not thereby entitled to have any issue tried by a jury".
34 Each of the offences with which the applicant was charged are an indictable offence that, if an adult were charged with it, must be tried on indictment. I infer the applicant did not elect to be tried on indictment by the Supreme Court or the District Court, in which case, the Criminal Code applies with such modifications as the circumstances require.
35 Chapter LXIVA of the Criminal Code deals with trial by Judge alone without a jury. Section 651A(2) materially provides that, subject to certain matters not relevant here, where an accused person committed for trial before any court for an indictable offence elects to be tried by a Judge alone, the trial is to proceed without a jury.
36 Section 651B provides:
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- "(1) In a trial by a judge alone under this chapter the judge may make any findings or give any verdict that could have been made or given by the jury if the trial had been held before a jury, and any finding by or verdict of the judge has, for all purposes, the same effect as a finding by or verdict of a jury.
(2) A judgment in any trial by a judge alone under this chapter is to include the principles of law applied by the judge and the findings of fact on which the judge relied, but the validity of the judgment is not affected by any failure of the judge to comply with this subsection."
37 By virtue of s 19B(4)(c) of the Children's Court Act, s 651B of the Criminal Code applies.
38 The High Court in Fleming considered s 33 of the Criminal Procedure Act 1986 (NSW) and its relationship with, inter alia, s 6 of the Criminal Appeal Act 1912 (NSW). The latter is in substantially the same terms as s 689(1) of the Criminal Code which provides that the Court of Appeal shall (subject to the "no substantial miscarriage of justice" proviso) allow an appeal against conviction if they think the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before whom the appellant was convicted should be set aside on the ground of a wrong decision of any question of law or that on any ground there was a miscarriage of justice and in all other cases shall dismiss the appeal.
39 Section 33 of the Criminal Procedure Act (NSW) provides (now s 133 of the Act):
"(1) A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury.
(2) A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied.
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- (3) If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter."
40 Section 651B(2) is in substantially the same terms as the former s 33(2) of the NSW legislation. The High Court made a number of points of construction about s 33 which in my view are applicable to the construction of s 651B. They are first, s 651B may attract the operation of one or more of the limbs of s 689(1) of the Criminal Code. There will then be the question of the operation of the proviso. This means that a breach of s 651B will not result in a successful appeal unless it comes within one of the limbs in s 689(1) and the proviso does not apply. Second, the High Court said the requirements of s 33(2) and (3) of the NSW legislation are expressed in terms of legal imperatives and a failure to observe either or both of them is to make a wrong decision on a question of law. It is also appropriate to characterise s 651B(2) as a legal imperative. That is not contradicted by the second part of the subsection concerning the validity of the judgment which is consistent with the first point of construction. Third, whilst s 651B(2) does not use the expression "reasons for judgment", it should not be taken as intending that the requirements of the subsection be satisfied merely by a bare statement of the principles of law that the Judge has applied and the findings of fact that the Judge has made. Rather, there must be exposed the reasoning process linking them and justifying the latter and, ultimately, the verdict that is reached. Fourth, if the judgment fails to show that the Judge applied a relevant principle of law, then, unless the judgment shows expressly or by implication that the principle was applied, it should be taken that the principle was not applied, rather than applied but not recorded. Fifth, the various requirements that warnings be given as expressed in rules of law or practice fall within the principles of law referred to in s 651B(2). The fourth and fifth points are of particular relevance to this case.
41 The legal principles that apply in the absence of a statutory provision as to the duty to provide, and the content of, reasons are stated by Doyle CJ in R v Keyte (2000) 78 SASR 68. He makes the point that the adequacy of reasons will depend upon the circumstances of, and issues in, the particular case. Having regard to the interrelationship between s 651B and s 689(1), that is also true in the statutory context.
42 Grounds of appeal 2 and 4 overlap and provide a logical starting point for a consideration of the application.
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Failure to Adequately Consider (Grounds 2 and 4)
43 The essence of the applicant's complaint is that the trial Judge did not give the complainants' evidence the careful scrutiny which the circumstances of the case required in accordance with Longman v The Queen (1989) 168 CLR 79. In particular, the applicant contends the trial Judge failed to adequately consider or examine the relevant inconsistencies in the evidence (which, it was said, go beyond peripheral details), the delay in complaining of the conduct and the evidence relating to concoction and contamination which, together with age and the lack of corroborative evidence, are factors relevant to the reliability of the complainants' evidence.
44 I start with the complainants' evidence and the identification of the inconsistencies. "C" was nine years old at the time of trial. She gave unsworn evidence pursuant to s 106C of the Evidence Act 1906 (WA). In her evidence-in-chief she said (in the order in which the evidence was given) that she and "B" would go into the shed in the backyard of their home with the applicant at his request and that the applicant "would do stuff". She could not remember the first time, but gave evidence of a time when "[h]e licked my private part" which she said she later became aware was called her vagina. She said "B" was present in the shed when that happened. "B's" evidence was that she did not ever see the applicant touch "C".
45 "C" was asked what other stuff would happen and said, "He would tell us to lick his dick and our wish would come true." She then gave evidence that that is what she did.
46 On another occasion "C", "B" and the applicant went around the side of their house. "C's" evidence was that the applicant licked her private parts and she licked his penis. She did not think "B" was present when she licked the applicant's penis. She gave evidence of another occasion when she went to the side of the house with the applicant and lay on a broken surfboard. She said on this occasion "He stuck his finger up my private part", that it did not hurt and she did not say anything to him about it. She then turned on to her stomach and he put his finger up the crack of her bottom.
47 She was then asked whether the applicant did anything to himself in the shed and she said he would take out his penis and wriggle it around.
48 "C" also gave evidence that on one occasion the applicant was in her bedroom. He sat on her bed "and he was playing with his penis". She
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- said her mother came in and told the applicant to get out of the house. There was then the following exchange as to her discussion with her mother:
"Did you speak to your mother then after [the applicant] had left?---She spoke to me.
Okay. Did you tell her anything?---No.
Okay. Did you tell her something later?---Yeah."
50 "B's" evidence was that she remembered the applicant being in "C's" bedroom. "C" was sitting on her bed and the applicant was standing. The applicant said something to "C" but she could not hear what he was saying. She was asked did he do anything to "C" and she said, "I forget."
51 "C" said the first she told her mother about the applicant's conduct was at or around the time she saw a psychologist (Dr Kostic) in July 2003. She also said in evidence-in-chief that she did not tell "A" or "B" about what had happened to her.
52 In cross-examination "C" was asked about "B's" presence and what she told her sisters:
"Was ['B'] ever there when these things that you say happened with - - say, you were laying down and had your private part licked, did she ever see that?---Yes.
In the shed?---Yes.
And did you ever see her private part getting licked?---Yes.
Are you sure?---Yes.
She didn't run off?---No.
Say, 'I want to go to the toilet'?---No.
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- … Do you remember her saying, 'I've got to go to the toilet. I can't stay here' or something like that?---Yeah.
When did she say that?---I don't know when she said it, like what date, but she did say it."
53 Then on the question of whether she spoke to her sisters:
"… did you speak to your sisters about what had happened, or any of them?---No.
You didn't talk to ['B']?---No.
['B'] was there, you say, on some of these occasions?---Yeah.
So you didn't talk to her at all about what was happening?---No.
Did you tell her later on?---No.
Did you speak to your sisters before you went down to talk to the police?---No.
Did they speak to you before you went down to talk to the police lady?---No.
All right. Well, what about ['A'] did you tell - - did you talk to ['A'] before you went down to talk to the police lady?---No.
Are you sure about that?---Yeah."
54 Counsel then referred to par 17 of her statement to the police that:
"I've spoken to both my sisters about what happened. I told ['A'] what I was going to say to the police so that I wouldn't be so nervous and scared to talk about what happened."
55 "C" then conceded that she spoke to "A" about what had happened.
56 "B" gave sworn evidence. She was asked whether she recalled a time when she went into a shed in her backyard with "C" and the applicant and she said, yes. She was asked whether she remembered the conversation that occurred between them and she said, no. She was asked did the applicant do anything and her evidence was as follows:
"What did he do?---He said, 'Let me lick you on your puss to see if you have any milk.'
(Page 19)
- And did he do anything?---Yes.
What did he do?---He - - he rode up my shirt and licked my nipple.
Okay. When he did that was ['C'] still there?---Yes.
How old was she? I think you've said that. She was -- she's younger than you, isn't she?---Yes.
Now, he did that to you. Did you say anything to him?---No.
Did he do anything else that you saw?---Yes.
What did he do?---He said, 'Suck my penis and your wish will come true.'
Okay. Did he do anything when he said that?---He started to undo his zip on his pants.
Then what did he do?---He - - I forget.
Okay. Did you see - - what part of [the applicant] could you see?---I could see under his - - his - - under his belly button.
Okay, and what could you see under his belly button?---His penis and down like to his knees.
…
- - - did he do anything else?---I don't remember.
Did you stay in the shed?---No.
What did you do?---I went out of the shed.
Okay. Was ['C'] still in the shed when you left?---Yes.
Did you see [the applicant] touch ['C'] at all?---No."
57 "B's" evidence was that the three of them went into the shed almost every weekend and on each occasion the applicant would say, "Let me lick your nipples to see if they've got any milk" and "Lick my penis and your wish will come true."
58 In cross-examination "B" said the applicant had pulled up her shirt and "C's" shirt. In her statement to police, "B" said that she pulled up her
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- shirt on the first occasion. After being referred to this aspect of her statement, she then said in evidence that she pulled her sister's shirt up as well, whereas in her statement she said her sister had pulled up her own shirt. Further, her evidence and her police statement varied on whether the applicant said "suck" or "lick", "penis" or "dick".
59 "B's" evidence was that the applicant always wore jeans on the occasions in question. In contrast, "C's" evidence was that she never saw him in jeans but had seen him in shorts. Further, contrary to "C's" evidence, "B" said that she did not ever let the applicant lick her vagina and did not ever see the applicant doing that to "C". "B" also said she did not speak to anyone about the applicant's conduct for some three years until she saw Dr Kostic, the clinical psychologist.
60 Both "B" and "C" gave evidence that the applicant had pubic hair which was contradicted by the applicant in which he was supported by evidence from his brother.
61 "A" gave sworn evidence. She said the first count against her occurred when she, her two sisters and the applicant were riding their bicycles at the front of their house and were playing a game of tag or chasy. She was asked whether she remembered any time when they were playing this game of chasy using bicycles where touching occurred. She said:
"We were playing and when he got it he said, 'Tag me' just normally and then it started to get more of a grab and so he grabbed at my bottom and my breasts."
62 She was asked whether she said anything and she responded:
"He just - - I said - one time I said, 'Don't' and he just acted like he hadn't done anything but then I really told him that I knew he was doing it on purpose and so I said 'Don't'."
63 It was unclear from her examination-in-chief whether the applicant had made contact. However, she was asked a leading question in cross-examination concerning this matter as follows:
"You're saying that it was on one of those instances that you got touched in the chest area?---Yes.
And also on the bottom?---Yes."
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64 "A" confirmed she was not upset by this conduct and continued to play with the applicant.
65 "B's" evidence was that the applicant only played with "C" and "B", not "A"; that "C" and "B" did not have their own bikes in 1999 and did not play on bikes out the front in the cul-de-sac. "C" confirmed that she would normally play with "B" and that there was never a time when the three complainants and the applicant played together.
66 "A" gave evidence of a subsequent incident on a trampoline in the backyard of her home. Both she and the applicant were sitting on the trampoline and then he jumped up and "[h]e sort of forced himself onto me. He grabbed my boobs and touched my vagina … over my clothes". "A" conceded that she did not have breasts ("was flat") at the time. She said she slapped him on the wrist and he sat there "pretending he had not done anything". She ran inside and told her mother that the applicant was touching her and her mother went outside and told the applicant to go home. "A" said this incident occurred around Christmas 1999. Mrs F did not corroborate "A's" evidence of complaint.
67 "A" did not at any stage see the applicant touching her sisters.
68 I turn now to delay and the evidence relating to the issues of concoction and contamination. As previously noted, none of the complainants complained of the applicant's conduct until "C" and "B" attended on Dr Kostic in July 2003, some three and a half years after the last incident. Mrs F gave evidence of the circumstances leading to the children being taken to the psychologist. "C" had become extremely emotional, stressed and worried about everything, including whether she was lesbian. Mrs F first noticed "C's" behaviour in the summer holiday period of December 2002/January 2003. It appears Mrs F and "C" attended on Dr Kostic on or about 29 July 2003. As a result of something the psychologist said to her, Mrs F mentioned the applicant in the context of him being in "C's" bedroom in January 2000. Mrs F said she questioned "C" in accordance with a "road map" supplied by the psychologist. "C" told Mrs F what the applicant had done such as "he put his fingers in my vagina" and she was sore because of that and "he got me to suck his penis". Mrs F made a statement to police about these matters on 30 July 2003. In the course of cross-examination when counsel raised the delay in "C" manifesting anxiety problems the following exchange occurred:
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- "Go on. You say first?---Well, I was just going to say that - - I mean, I've heard what - - you know, she just began to know how wrong it was, what he did.
Well, this is about 3½ years after the episode?---Yes."
69 Mrs F conceded in cross-examination that she hated the applicant, knew he was guilty and regarded him as a paedophile who needed mental help. Mrs F also conceded that her feelings about the applicant had manifested themselves, as appears in the following exchange:
"… that hatred, which I think was your word for him, has been manifested, has it not?---Since I found out what he did, absolutely, yeah.
All right. And that's manifested itself by you shouting profanities at the - - -?---Yes, and the - - and the - - yeah."
70 At that stage there was a relevance objection with the result that the matter was not pursued further. However, it is apparent that as a result of Mrs F's conduct, the applicant's family obtained court orders against her.
71 As already noted, "C" informed "A" of what had happened to her prior to "C", "B" and "A" giving their statements to police. "A" also manifested her attitude to the applicant, as conceded in the following cross-examination:
"… you've been in the street screaming at him and calling him names and swearing at him?---Not swearing but, yes, I have been.
Well, I put it to you that you have been swearing at him?
---Yeah.
It's true, isn't it?---Yeah.
Calling him a molester?---Yeah.
Another name starting with 'f'?---F? Well I'm not sure."
72 "B" also gave relevant evidence on the subject of contamination. She was asked whether Mrs F had taken her to see Dr Kostic and she said yes. The following exchange then occurred:
"Do you know why?---Yes.
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- Why did she take you to see Dr Val?---Because there were too many things that were making me upset.
And were those things that had happened at school that made you upset?---No.
Where were those things that made you upset coming from?
---[The applicant].
From [the applicant]?---Yes.
And is that what you told your mum before she took you to see Dr Val?---Yes.
And as far as you can remember, is that why you went to see Dr Val?---Yes.
Was there any other reasons that you went to see Dr Val?---Not really."
73 Mrs F said that the complainants spoke to her about what happened to them but that all she ever said to them was to be strong, tell the truth and it was not their fault. That is difficult to reconcile with "B's" evidence and Mrs F's public demonstration of her strong feelings about the applicant.
74 The applicant contends the trial Judge failed to adequately consider the evidence relating to reliability and apply, properly or at all, the principles in Longman. The trial Judge referred in summary form to all of the material inconsistencies that I have outlined without expressly linking them to any particular offence. He concluded, without explanation or analysis, that the inconsistencies were on peripheral details that did not strike at the core of the complainants' evidence. There is no proper foundation for that generalised conclusion.
75 A number of the inconsistencies and conflicts were relevant to particular charges as well as of general relevance to the assessment of the complainants' reliability. Further, the weight to be given to inconsistencies is not to be viewed in isolation. Due regard must be paid to other relevant factors affecting reliability to which I will refer.
76 There are inconsistencies that are directly relevant to counts 1, 8 and 12. In relation to count 1 (the incident in the shed), "C" said "B" was present during the conduct the subject of the charge. "B" denied ever seeing the applicant touch "C". Whilst on count 1, it is pertinent to note
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- that the trial Judge did not set out in his reasons the elements of the offences of sexual penetration and indecent dealing or the other relevant legal principles that apply. One might think that, when considering the unsworn evidence of a nine-year-old concerning conduct that she said occurred when she was four, the finder of fact would want to satisfy himself or herself that "C's" understanding of the language she used to describe what happened corresponds with the legal definition so as to be satisfied beyond reasonable doubt there was penetration. Further, I note the trial Judge's finding on count 4 is in the same terms as count 1, notwithstanding that count 4 was of indecent dealing. As there is evidence of a number of uncharged acts and no particulars of the charges, the trial Judge must have been uncertain as to what were the charged and uncharged acts. However, these matters were not raised in the grounds of appeal and I do not rely on them for the determination of this appeal.
77 There are also inconsistencies that are directly relevant to count 8 (the incident in "C's" bedroom). Neither "B" nor Mrs F saw anything that could constitute an indecent dealing. The trial Judge's finding is that the applicant "wriggled his penis in front of ['C']". That was not "C's" evidence. She said the applicant sat on her bed and he was playing with his penis. There is no other information as to the applicant's conduct. That being the case, there is a question as to whether the conduct is capable of constituting an indecent dealing as defined in s 319(1) and (3) of the Criminal Code and as explained in Drago v The Queen (1992) 8 WAR 488. Further, there is a live issue as to whether sexual purpose or motivation is a relevant factor in determining whether an act is of such a nature which right-minded persons would regard as indecent: Drago v The Queen per Murray J at 503; R v Court [1989] AC 28. That issue also arises where a child touches the chest area of a pre-pubescent girl as in counts 12 and 13. Although it is inappropriate to determine these matters as they are not raised in the grounds of appeal, I do express disquiet that the trial Judge did not refer to and analyse the relevant legal principles in his reasons and expose the reasoning process linking the principles of law and the findings of fact, justifying the latter and ultimately the verdicts.
78 As to count 12 (the bicycle incident), "A's" evidence of the situation in which the conduct is said to have occurred is contradicted by both "C" and "B". As an aside, I note there is no consideration by the trial Judge of whether the touching in this count (and counts 13 and 14) was intentional which is relevant to whether it is indecent. It is to be expected that express and reasoned consideration would be given to this question which should include the evidence relied on to conclude that the touching was intentional (and sexual).
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79 Other inconsistencies are of more general relevance. In context, the most important of those is "C's" evidence that she saw the applicant licking "B's" private part which was positively contradicted by "B". This is to be seen in the light of "C's" age, the delay in making any complaint and the circumstances in which the complainants made the complaints.
80 The possibility of concoction and contamination was a live issue at the trial. There was relevant evidence on the topic. Mrs F raised the question of the applicant's conduct before "C" told her mother what had happened and before "C" made her statement to police. "B" said Mrs F told her before she went to see the clinical psychologist that the reason "B" was upset stemmed from the applicant. "C" initially denied in her evidence that she had told anyone about what happened to her, but changed her position after referred to her police statement. Mrs F's open hostility to the applicant commenced after she became aware of the applicant's conduct which was before the children made their statements to police. There was, in my view, sufficient evidence to require the trial Judge to consider the possibility of concoction and contamination not just for the purpose of the similar fact evidence rule, but in relation to reliability in general. The trial Judge made no reference to these matters in his reasons. To the contrary, he said Mrs F's evidence was of very limited use.
81 If the evidence discloses any circumstances which suggest the evidence of a complainant in a case of this nature may be unreliable, the trial Judge has a duty to make a jury (or himself in the absence of a jury) aware of the dangers concerning that person's evidence. The terms of the warning will depend on the particular circumstances of the case: Longman v The Queen (supra) at 107 per McHugh J; Fleming (supra) at 264. The nature and extent of the sources of potential unreliability will affect the strength of the warning.
82 The trial Judge expressly referred to Longman in his reasons. He stated that there are "some other important comments I should make at the outset which relate to Longman-type directions that judges are required to give juries". He said these comments relate to the time that elapses between the alleged offence and complaint. He refers to the very long delay in this case and the effect of delay on memory and recall and that the applicant has lost the chance to defend himself as best he might. Finally, he notes:
"It's often said in these sorts of cases that it's dangerous to convict where evidence isn't corroborated. Evidence doesn't
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- necessarily have to be corroborated, but it needs to be very carefully scrutinised, so that danger is not realised, and I'll bear that in mind.
I also note that in this particular case ['C'] in particular, and also ['B'], went to see Ms Val Kostic, a psychologist, and that that happened a relatively long time after the alleged offences. And so in relation to those visits to Ms Kostic, there are issues that arise as to why each and both of them, and particularly ['C'] needed to go to Val Kostic, what issues needed to be addressed and what was behind the visits."
83 However, he does not go on to address the significance of, or otherwise deal with, those issues. Further, there were a number of other reasons not mentioned by the trial Judge for closely scrutinising the reliability of the complainants. In addition to delay in complaining there is the complainants' age, "C's" emotional problems at the time of complaint, whether or not there was a real possibility of contamination, particularly as a result of Mrs F's manifested hostility, all of which should have been considered in the context of the material inconsistencies to which I have already referred. However, the trial Judge approached the matter essentially in terms of belief or disbelief of the complainants or the applicant. He did not in fact give the complainants' evidence the sufficiently careful scrutiny which the Longman warning, carried into effect, would have required. As stated by the High Court in Fleming (at 264), there must be:
"… the recording and heeding of a warning, if one is called for in the particular case, and the giving of effect to it in a real sense by stating reasons why, notwithstanding the warning or as a consequence of it, a particular verdict is reached. A mere recording or statement of it, without more, would amount to an empty incantation."
84 For these reasons, I would uphold grounds of appeal 2 and 4.
Onus and Standard of Proof (Ground 1)
85 In support of his claim that the trial Judge failed to apply the criminal onus and standard of proof, the applicant relies on the trial Judge's statement in his reasons that:
"I also do not accept [the applicant's] denials. Where there is material conflict between the evidence of each of ['C'], ['B'] and
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- ['A'] and [the applicant], I prefer and accept the evidence of each of the girls in each instance. I'm satisfied of each of the charges beyond a reasonable doubt."
86 It follows from the conclusion that the trial Judge failed to consider adequately, or in some cases at all, matters relating to the reliability of the complainants' evidence on particular charges and generally that the trial Judge did not in fact apply the criminal standard of proof notwithstanding his statement to the contrary. I would uphold ground of appeal 1.
Adequacy of Reasons for Rejecting Applicant's Testimony (Grounds 3 & 5)
87 These grounds are in a practical sense linked with grounds 2 and 4. If the trial Judge had properly considered all relevant matters affecting the reliability of the complainants' evidence and applied the Longman warning and in the light thereof made a positive finding as to the truth and reliability of the complainants' evidence, then, in a case which is essentially oath on oath, the inevitable consequence would be the rejection of the applicant's evidence. I am not persuaded there is any merit in these matters as independent grounds of appeal and would dismiss them.
Conclusion
88 I would uphold grounds of appeal 1, 2 and 4 (which, having regard to my reasons, involves questions of mixed law and fact). I would therefore grant leave to appeal, uphold the appeal and quash the convictions. That being the case, the Court can either direct a judgment and verdict of acquittal to be entered or order a new trial: s 689(2) of the Criminal Code.
89 Unless the interests of justice require the entry of an acquittal, an appellate court should ordinarily order a new trial of a charge where a conviction in respect of that charge has been set aside but there is evidence to support the charge: Spies v The Queen (2000) 201 CLR 603. However, it is not an invariable rule that a new trial should be ordered where there is evidence upon which a jury (or Judge) could have convicted on an adequate assessment of the evidence: Ilich v The Queen (1987) 162 CLR 110.
90 In this case there are a number of weighty considerations favouring a conclusion that there be no order for a retrial. The penalty imposed for all of the convictions was a 12-month conditional release order and is nearing completion. There is no realistic prospect that the applicant would receive any additional punishment if convicted a second time. The proper
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- leniency of the penalty is a clear recognition that the applicant was at the relevant time a child in a period which the law recognises as involving significant psychological, moral and personal development. In these circumstances, justice having once miscarried would be better served in the end if there were no order for a retrial.
91 PULLIN JA: This is an application for leave to appeal against convictions recorded by the President of the Children's Court. I will call the applicant the appellant in these reasons because most of the proposed grounds of appeal raises questions of law.
92 It is a case where the criminal justice system has become involved in an examination of the behaviour of a group of four children who were neighbours living in a cul de sac in a suburb in Perth. The ages of the children at the relevant time were three girls aged 4 years old, 6 years old, 9 years old and a boy of 12-13 years of age. The boy (the appellant) was charged in relation to his conduct towards and involving the other children. The appellant was born, according to his Honour's reasons, on 4 April 1987 (although the appellant gave evidence that his date of birth was in January 1987). The charges relate to a 9 month period between 1 March 1999 and 31 January 2000. The formal complaints against the appellant were filed in the Children's Court on 15 September 2003 which was only a few days after the police first came to see him on 11 September 2003.
93 I will call the oldest girl - the 9-year-old, "A", the second oldest, "B" and the youngest, "C". There was one charge that the appellant sexually penetrated "C" by placing his tongue in her vagina. There was one other charge of sexual penetration concerning "C" (charge 6) which alleged that the appellant placed one of his fingers in "C's" vagina.
94 All of the other 14 charges against him were indecent dealing charges. Seven of the indecent dealing charges involved "C", two of them involved "B" and three involved "A". The charges as they appeared in the complaint were completely unparticularised. The two sexual penetration charges read:
"Between the 1st day of March 1999 and the 31st day of January 2000 …. [the appellant] sexually penetrated [C] a child under the age of 13. Section 320(2) of the Criminal Code."
95 All of the indecent dealing charges were in the following form, that:
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- "Between the 1st day of March 1999 and the 31st day of y 2000 at …. [the appellant] indecently dealt with [name of complainant inserted] a child under the age of 13 years. Section 320(4) Criminal Code."
96 It appears that the appellant was given a written "Statement of Material Facts" which provided the particulars of the charges. It read as follows:
"SUMMARY OF OFFENCE
Between the 1st of March 1999 and the 31st of January 2000 the accused was living across the road from the 3 complainants, who were 4, 6 and 9 at the time. The accused attended the complainant's address on a regular basis and became friends with the complainant's father. He would regularly attend the complainant's house to assist the father with tasks.
Complainant 1. [C]
1) Sexual Penetration of a child under 13 years, Section 320(2) Criminal Code
On one occasion the accused has attended at the complainant's house and spoken with her at which time he asked her to go into the rear shed with him. The complainant has agreed and once in the shed he has asked her if he could lick her vagina.
The complainant agreed to this act and subsequently the accused has asked her to lie down and remove her pants to which she complied.
The accused has then placed his head between her legs and used his tongue to lick the outside of her vagina before placing his tongue inside her vagina.
SUMMARY OF OFFENCE
2) Indecent Dealing with a Child under 13 years, Section 320(4) Criminal Code
On another occasion the accused has attended at the complainant's house and again attended the rear shed with the complainant. The accused has removed his erect penis from his
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- pants and asked her to lick it. He told her that if she licked his penis her wish would come true.
The complainant subsequently made a wish and then complied with this request. The accused placed his penis on her mouth and she licked it with her tongue.
3) Indecent Dealing with a Child under 13 years, Section 320(4) Criminal Code
On another occasion the accused has attended at the complainant's house and has asked the complainant to go around the side of the house with him. She has complied with this and the accused has removed his penis from his pants whilst leaning against the fence and asked the complaint [sic] to lick his penis. She has complied with this and licked his penis with her tongue.
4) Indecent Dealing with a Child under 13 years, Section 320(4) Criminal Code
On completion of this act the accused has requested that the complainant allow him to lick her vagina to which she again complied. The complainant has placed herself against the fence and the accused has licked her vagina with his tongue.
5) Indecent Dealing with a Child under 13 years, Section 320(4) Criminal Code
On another occasion the accused has attended at the complainant's house and again the complainant and he attended at the side of the house. The accused has asked the complainant to lay down on a surfboard to which she complied. She lay on her back and pulled her pants half way down her legs before the accused asked her to turn over.
She has turned over onto her stomach and the accused has used one of his fingers to feel the middle of her bottom cheeks by moving it from the lower section up to the top of her bottom.
6) Sexual Penetration of a Child under 13 years, Section 320(2) Criminal Code
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- The accused has then asked the complainant to turn over onto her back, to which she again complied. The accused has then placed one of his fingers into the complainant's vagina.
7) Indecent Dealing of a Child under 13 years, Section 320(4) Criminal Code
On another occasion the accused has attended at the complainant's house and they have both gone into the rear shed. The accused has pulled his erect penis from his pants and masturbated in front of her.
8) Indecent Dealing with a Child under 13 years, Section 320(4) Criminal Code
On another occasion the accused has attended at the complainants house and during the course of the visit has entered the complainant's bedroom where she was. He has pushed her door closed and sat on her bed. He has then proceeded to masturbate his penis on the outside of his pants.
A short time later the complainant's mother came into the room and questioned what he was doing in the bedroom. The mother has demanded that he leave the room and she has later told the accused that it was inappropriate for him to be in the bedroom and that he was to have no further contact with the girls or attend the house.
Complainant 2. [B]
9) Indecent Dealing with a Child under 13 years, Section 320(4) Criminal Code
On one occasion the accused has attended at the complainant's house and has gone to the rear shed where the complainant was. The accused has asked her if she would let him lick her breasts to which she has agreed, lifting her top up exposing her breasts. The accused has used his tongue to lick her left breast.
10) Indecent Dealing with a Child under 13 years, Section 320(4) Criminal Code
The accused has then requested the complainant to lick his penis stating that if she did this her wish would come true. As he requested this he pulled his pants down exposing his penis.
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- On observing the accussed's [sic]penis the complainant has stated that she needed to go to the toilet and left the shed.
11) Indecent Dealing with a Child under 13 years, Section 320(4) Criminal Code
On another occasion the accused attended at the complainant's house at which time the accused requested her to attend the rear shed with him, to which she complied. Once inside the shed he asked her to suck his penis, at which time he remained dressed. The complainant declined this and then left the shed.
Complainant 3. [A]
12) Indecent Dealing with a Child under 13 years, Section 320(4) Criminal Code
On one occasion the accused and the 3 complainants were playing on their bicycles in the street out the front of their homes. At the time they were playing a game of tag on their bicycles.
The accused tagged the complainant several times in a normal matter [sic] before he started tagging her by grabbing her breasts and bottom. This caused the complainant to tell him off although he continued to tag her in this way until she got off her bike and stopped playing the game.
13) Indecent Dealing with a Child under 13 years, Section 320(4) Criminal Code
On another occasion the accused attended at the complainant's address and observed the complainant sitting on the trampoline in the rear yard. He has gone up to her and sat on the trampoline and started talking to her. He has then jumped onto the trampoline and grabbed the complainant's breast on the outside of her clothes and squeezed it.
14) Indecent Dealing with a Child under 13 years, Section 320(4) Criminal Code
The accused has then moved his hand down to her vagina area and felt her vagina outside of her clothes. This caused the complainant to slap him across the face and get off the trampoline and run away from him. She has ran inside the house
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- and told her mother. Her mother has gone outside and spoken to the accused about his behaviour.
On Thursday the 11th of September 2003 Police attended at the accused's house and conveyed him and his mother to the Scarborough Detectives Office. The accused's father also attended at which time the accused was requested to participate in a video interview with Police. At the direction of his mother and father legal advice was sought. After obtaining the legal advice the accused and his parents decided not to participate in a video interview. He was subsequently arrested and charged with the present matters."
97 The complainants and their parents shifted into the cul de sac in question in March 1999. The appellant lived with his family nearby in the same cul de sac. The complainants went to a nearby primary school. The appellant went to the same school. Soon after the complainant's family shifted into their new home the appellant came to visit . According to "A" the appellant would come over to the complainants' house and "play with me and my sisters" (AB 75). They would play "games" (AB 75). They used to play "chasie" (AB 76).
98 At the trial the complainants' mother gave evidence that she knew nothing of the acts complained about during the period when they are alleged to have taken place. She gave evidence that over two years later in July 2003 she took "C" to a clinical psychologist because "C" became "extremely sad, emotional, stressed, worried about everything" (AB 31). The mother told the psychologist that "C" was particularly distressed after a year 1 student had been killed in a car crash and that "C" had said something about lesbianism.
99 It appears that a "road map" was given by the psychologist to the mother. I infer from some of the evidence given that this was a document which was intended to elicit information that the psychologist thought would be relevant to her assessment. The "road map" apparently showed years of age and sought to elicit information about the first time that the child had experienced certain events including her first kiss with a boyfriend. "C" referred to the appellant's name in answer to this and the mother asked when this happened and "C" said "You know mum, when he used to come over all the time". Further questions then or later prompted "C" to disclose details of matters set out in the statement of material facts. This suggests that the police were called in after the "road map" was
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- discussed. However, the mother in cross-examination said that the police were called in first. The evidence on this point read (AB 67):
"You made a statement to the police at the end of July. You went through this road map with your daughter subsequent to that?---Yes.
And is it not the case that your ill-feeling towards this defendant was present in early July?---Early July? After my daughter told me what he had done to her?"
101 The only other relevant event I wish to mention at this stage is an incident which the complainants' mother said occurred in January 2000. She said that in that month she walked into her house and into "C's" bedroom and opened the door and the appellant was standing "right up at her". The mother said that she said to the appellant "What are you doing in [C's] bedroom?" and that he said "Nothing". The mother then gave evidence:
"So I said 'Well what do you mean nothing? You're in her bedroom. What are you doing?' and he said 'Nothing'. 'First of all it's inappropriate to be in a little girl's bedroom. Get out'."
102 The appellant left the house and the mother claimed that he had never come back to the house since January "2003" (AB 33) which may be an incorrect reference to January 2000. One of the complainants gave evidence about this occasion in the bedroom. She said an indecent act was performed. This led to the conviction on charge 8. I will say more about this charge below.
103 The appellant was tried in the Children's Court by his Honour on 31 March, 1 and 7 April 2004. The girls gave evidence about the events particularised. The appellant denied these events occurred. His Honour reserved his decision and then on 23 April 2004 delivered oral reasons for decision. He convicted the appellant on all charges except for charge 11 on which no evidence was led.
104 The appellant appeals on the grounds that the learned President erred in law in not directing himself in relation to the onus of proof in accordance with the observations made by Brennan J in Liberato v The
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- Queen (1985) 159 CLR 507; that he did not take into account factors which had to be taken into account in assessing the evidence as required in Longman's case (Longman v The Queen (1989) 168 CLR 79); that his Honour did not apply the direction he gave himself concerning the use of character evidence in accordance with Melbourne v The Queen (1999) 198 CLR 1, and finally that the reasons for decision were inadequate.
105 The actual grounds of appeal read as follows:
"1. In finding the Applicant guilty of the charges the Learned President ('the trial Judge') failed to apply the onus and standard of proof required in a criminal case.
PARTICULARS
(a) although the trial Judge referred to the requirement that he be satisfied beyond reasonable doubt of the guilt of the Applicant, he essentially treated the resolution of the case as a matter of whose evidence he preferred;
(b) the trial Judge did not accept the Applicant's explanation for his decreasing visits to the complainant's house and did not accept the Applicant's denials of the offences. The trial Judge said:
'I also do not accept [the appellant's] denials. Where there is material conflict between the evidence of each of [the complainants] and [the appellant], I prefer and accept the evidence of each of the girls in each instance. I'm satisfied of each of the charges beyond a reasonable doubt'.
2. The trial Judge failed to instruct himself adequately on those aspects of the prosecution evidence that required him to test, assess and scrutinise the evidence of the complainants before acting upon the evidence.
PARTICULARS
(a) the circumstances of this case required that the trial Judge properly instruct himself within the terms of a Longman direction;
(b) matters which should have been considered included:
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- (i) the fact that the complainants were children who were sisters and who may have concocted their stories;
(ii) the mother's hostile attitude to the Applicant and her role in possibly contaminating the testimony of the complainants;
(iii) although referred to by the trial Judge, a more considered approach of the fact that the complaints were delayed and to the difficulties which this imposed upon the applicant in the preparation and the conduct of his defence; and
(iv) the need to subject the evidence of the complainants to careful scrutiny before being satisfied as to its truth and as to its accuracy and placing reliance on it.
- 3. The trial Judge failed to state adequately the reasons for rejecting the testimony of the Applicant and finding against him on the facts.
PARTICULARS
(a) although the authorities for the most part deal with the obligations cast on Magistrates to give sufficient reasons, there is no reason to suggest that the same obligation does not fall upon Judges sitting alone;
(b) the trial Judge did not accept the testimony of the applicant on particular aspects of the evidence, instead preferring the testimony of the complainant's but gave no reasons why that testimony was rejected or what evidence contradicted it.
4. The trial Judge in assessing the credit of the complainants did not sufficiently take account of the delay in the complaints made by the complainants and the doubt it may have cast on the reliability of the evidence of each of them.
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- 5. The trial Judge failed to follow and implement his direction relating to the evidence of the Applicant's good character."
Ground 3 - The Adequacy of the Reason for Decision
106 I will begin with the appellant's complaints about the adequacy of the reasons for decision.
107 His Honour's reasons began with a description of the complainants and the appellant and their ages. His Honour referred to the fact that charge 11 was not the subject of evidence and he dismissed that charge. He then referred to the remaining 13 charges, describing them generally as charges of indecent dealing and two charges of sexual penetration. His Honour then reminded himself that each charge needed to be separately considered and that there were effectively 13 trials in one. He summarised the evidence of good character given about the appellant and the use which could be made of it in terms suggested in Melbourne's case. His Honour referred to Longman's case and noted some of the factors which have to be taken into account in cases of this kind. His Honour then said that he needed to look at the:
"… consistencies and inconsistencies within each witness's evidence and where evidence was of a general nature, between the evidence of the various witnesses. I don't propose to be exhaustive in the examples that I cite from my careful consideration of all of the evidence. …"
108 His Honour then gave some examples of what were said to be inconsistencies in the evidence. Some of the inconsistencies were said to relate to count 8 and some, his Honour said, related to the "trampoline incident" which was a reference to evidence concerning charges 13 and 14. His Honour then referred to other inconsistencies without relating them to particular charges. There was a reference to the complainants' mother's evidence and the fact that it was of limited use. His Honour referred to the fact that there had been a lack of early complaint, save in one respect. His Honour then said:
"[The appellant] denies each and every one of the alleged offences. He has explained why his visits decreased as from about February 2000. He has spoken of the clothes that he wore, that he didn't wear jeans.
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- I have had the advantage of observing him, together with all of the witnesses, in the witness box. I have already referred to the character evidence called on his behalf. There is also evidence given by his brother and that goes to [the appellant's] physical immaturity at the time, such that his brother's observations of [the appellant] are at odds with what [C] and [B] could have observed about the extent of his physical development at the relevant time."
109 His Honour then said that he found "C" was a "very credible and reliable witness on the essential aspects". His Honour then noted that there were some inconsistencies between the evidence of "B" and "C" within their evidence and between what each of them stated earlier in their statements to the police, but his Honour concluded that such inconsistencies were on peripheral details and did not strike at the core of their evidence. His Honour then noted that the appellant was "relatively quiet and pleasant young person". His Honour said he disbelieved the appellant when he said that his visits did not decrease after the "incident in [C's] bedroom". His Honour then concluded:
"I also do not accept [the appellant's] denials. Where there is material conflict between the evidence of each of [A], [B] and [C] and [the appellant] I prefer and accept the evidence of each of the girls in each instance. I am satisfied of each of the charges beyond a reasonable doubt. … Also in relation to count 8, while there is an inconsistency in the evidence between [C] and [the mother] on whether [the appellant] was sitting or standing when [the mother] went into the room, I am satisfied that when in that room, [the appellant] did expose himself to [C]. I am satisfied that each charge is proved beyond a reasonable doubt."
Applicable principles
110 McLure JA has set out s 651B of the Criminal Code in full. Apart from the words 'validity of the judgment is not affected by any failure of the Judge to comply with this subsection' this is substantially similar to s 33(2) of the Criminal Procedure Act (NSW) as it stood when it was considered in Fleming v The Queen (1998) 197 CLR 250. In that case the High Court said at [27] and [28]:
"27 … the requirements of s 33(2) … are expressed in terms of legal imperative … and a failure to observe [it] is to make a wrong decision on a question of law within the
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- second limb of s 6(1) of the Criminal Appeal Act. Such failure may also mean that justice has miscarried, within the meaning of the third limb, because justice according to law, to which the accused was entitled, included compliance with the mandatory requirements of s 33.
- 28 …whilst s 33(2), when specifying that which a 'judgment' must include, does not use the expression 'reasons for judgment', it should not be taken as intending that the requirements of s 33(2) be satisfied merely by a bare statement of the principles of law that the judge has applied and the findings of fact that the Judge has made. Rather, there must be exposed the reasoning process linking them and justifying the latter and, ultimately, the verdict that is reached."
111 Section 6 of the Criminal Appeal Act is substantially similar to s 689 of the Criminal Code. In addition to securing a right of appeal, the obligation to give adequate reasons is an aspect of procedural fairness to a litigant who is entitled to know why it is that he or she has been successful or unsuccessful: Tran v Claydon [2003] WASCA 318 at [36] per McLure J.
112 It is also the case that the requirement to give reasons for decision focuses the mind. A decision supported by reasons is much more likely to be soundly based on the evidence than if no reasons, or inadequate reasons are given. See Flannery v Halifax Estate Agencies Ltd [2000] 1 All ER 373 at 377. In Tran v Claydon (supra) [38] McLure J referred to Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 in which Meagher JA said at 443-444 that the three fundamental elements of a statement of reasons for decision are as follows. First, the Judge should refer to relevant evidence. There is no need to refer to the relevant evidence in detail but where conflicting evidence of a significant nature is given the existence of both sets of evidence should be referred to. Secondly, a Judge should set out any material findings of fact and any conclusions or ultimate findings of fact reached. Where one set of evidence is accepted over a conflicting set of significant evidence, the trial Judge should set out his findings as to how he comes to accept the one over the other. Thirdly, a Judge should provide reasons for making the relevant findings of fact and conclusions in applying the law to the facts found.
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113 These requirements do not mean that overly elaborate reasons must be given. Overly elaborate reasons can serve to undermine public confidence in the judiciary in the same way that insufficient reasons can. However, the provision of inadequate reasons can lead to a sense of injustice and a reduced appreciation or understanding of legal rights and obligations: Beale v GIO (supra) per Meagher JA at 444; Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 209 ALR 568 at [83].
The reasons for decision in the Children's Court
114 At no point did his Honour embark on a consideration of the evidence in relation to each charge or make findings in relation to each charge.
115 From my review of the reasons for decision, I am afraid I cannot escape the conclusion that his Honour took a global approach to the determination of these charges. He decided to accept the evidence of the complainants in their entirety, he discounted what he regarded as peripheral or immaterial discrepancies (which in my opinion were not in every instance peripheral or immaterial discrepancies), he disbelieved the appellant and by that method found the appellant guilty of all but one charge.
116 In my opinion, his Honour should have proceeded in his reasons by referring to the evidence which had been advanced in relation to each charge. He should then have identified any inconsistencies in the evidence of prosecution witnesses in relation to that charge. He should have made findings of fact in relation to each charge and finally, he should have considered, if he believed the prosecution witnesses but not the applicant, whether notwithstanding that conclusion, he was satisfied beyond reasonable doubt that the charge had been proved.
117 The failure to deal with each charge separately makes it impossible for this Court to properly review the decision. I will give just two examples which point up the problem. I refer first to charge 8. As can be seen from the passage of his Honour's reasons set out above, his Honour did refer briefly to count 8. However, a reference to the evidence reveals the following.
118 "C" said the act occurred when the appellant (who only once went to her bedroom) sat on her bed. The only evidence of "C" was that the appellant "played with his penis and then Mum came in and said 'Get out of the house'." (158) The respondent's written submissions concede that this evidence was "somewhat ambiguous" but that it "suggested" he did
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- not have his penis exposed. The appellant denied that he committed this offence. "B" said she was in the bedroom when the appellant was there. She gave no evidence of any indecent conduct. The mother said that she walked into the bedroom and the appellant was standing not sitting. She did not corroborate her daughter's evidence that an indecent act was taking place. The mother said she knew nothing of any indecent conduct until 2003. In my opinion his Honour should have referred to all of this evidence and then made findings about what happened. If the mother saw no indecent conduct, "B" gave no evidence of indecent conduct and the appellant denied he engaged in any indecent conduct, then there was surely the possibility of doubt about whether his Honour could be satisfied that this offence occurred particularly as the evidence of an offence was very slight. The failure to refer to all the evidence on the point and to make findings of fact makes it impossible to know why his Honour was satisfied beyond a reasonable doubt that this charge had been proved.
119 I also refer to charge 12 concerning "A". The particulars of the charge are set out above. The evidence of "A" was that the appellant "grabbed at my bottom and my breasts". The impression "A" gave in her evidence was that the other two girls were there and they were on their bikes. However, one of the other girls denied she owned a bike and denied playing on a bike at the front of the home. The other girl also denied ever playing on a bike at the front of the house. Each other alleged offence or group of alleged offences involved a separate set of evidence which required separate treatment in the reasons for decision.
120 When reviewing decisions of judicial officers, particularly in the busy lower courts, some regard should paid to the fact that such judicial officers often deal with matters ex tempore, with little time for preparation before the hearing itself. As a result, an appeal court must not overturn decisions simply because of infelicitous language. Nevertheless, it must be possible in relation to any judicial decision to understand from the reasons given, the intellectual process which was followed to arrive at the decision.
121 This was not an ex tempore decision. The court was dealing with charges, the evidence in relation to each being separate from the evidence in the other charges. The evidence was heard over several days. The learned President reserved his decision and returned to deliver his reasons at a later date. In my opinion the inadequacy of the reasons constitute an error of law.
122 I would therefore uphold ground 3.
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Ground 1 - the Liberato point
123 This ground of appeal asserts that his Honour erred in law when he treated the resolution of the case as a matter of whose evidence he believed. Brennan J's judgment in Liberato reinforces the point that a Judge must not give a direction which suggests that in situations where the prosecution and defence witnesses are in conflict, the tribunal of fact can decide the case merely by deciding who the court believes Even if the prosecution witnesses are believed and the defence witnesses are not believed, the tribunal of fact must still consider whether the case has been proved beyond reasonable doubt. In short, there must not be a watering down of the onus on the prosecution to prove its case beyond a reasonable doubt.
124 His Honour said that he preferred the evidence of the complainants and that the case had been proved beyond a reasonable doubt. He did not say he preferred the complainants' evidence and therefore he found the charges proved beyond reasonable doubt. Nevertheless the statement that he preferred the evidence of the complainants, which was followed immediately by his Honour's statement that he was satisfied "of each of the charges beyond a reasonable doubt", in circumstances where there had been no separate consideration of the evidence in relation to any of the charges and no findings of fact in relation to any of the charges, leads me to the conclusion that his Honour did decide the case merely by preferring the evidence of the complainants and rejecting the appellant's evidence, without considering whether there was nevertheless some remaining reasonable doubt which would have warranted a verdict of not guilty on any of the charges.
125 I would therefore uphold this ground of appeal.
Ground 5 - Good character
126 This ground of appeal complains that his Honour failed to "follow and implement his direction" relating to the evidence of the appellant's good character. His Honour was clearly aware of Melbourne's case because he referred to the fact that the evidence of good character could go to propensity to commit the crime and to the appellant's credibility. Melbourne's case makes it clear that there is no obligation on a Judge to give a direction about the use that can be made of character evidence. In this case his Honour did give himself a direction that the evidence could go to propensity and to the question of credibility. His Honour then mentioned good character again in the course of his reasons leading to the
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- conclusion that he did not accept the appellant's "denials". In my opinion, no error is revealed in relation to this aspect of his Honour's reasons.
Grounds 2 and 4
127 I dismiss these grounds. His Honour was clearly aware of Longman's case and in my opinion he warned himself adequately of the hazards and difficulties associated with prosecutions of this kind. He was aware of and stated that the complainants were young girls. He mentioned the delays, the lack of early complaint and the difficulties these matters created for the appellant. Ground 4 alleges an error of fact. I would refuse leave to appeal in relation to that ground.
Conclusion
128 I would therefore uphold the appeal and quash the convictions.
129 The question then is whether it would be possible to direct that the charges should be retried. The case was concerned with events which occurred in 1999 and January 2000. The complainants were young at the time they gave evidence and so was the appellant.
130 In Rabey v The Queen [1980] WAR 84 at 95, Wickham J said:
"A new trial ought not to be ordered as a matter of course. Once justice has miscarried it is not always easy to maintain the scales in precise equipoise on a second occasion."
131 His Honour mentioned that the public interest in securing a fair trial on an alleged wrongdoer must be weighed against a number of factors included among them being public inconvenience and expense and against the possible oppression of a member of the public who is placed in jeopardy twice for the same offence.
132 In Dyers v The Queen (2002) 210 CLR 285 at [82] Kirby J gave instances of where the High Court had refused to order a new trial. They included circumstances where the length of time that had elapsed since the events giving rise to the charges was great and whether the age of the appellant is such that it would make a re-trial unjust in the circumstances.
133 In this case, all of the complainants were young children at the time of the alleged offences. If they have to give evidence again, they will be giving evidence of events which occurred five years ago or more. That evidence may be unreliable. There were already signs of unreliability at the trial. For example, in relation to count 8 when "B" was asked whether
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- the appellant did "anything" to "C" in the bedroom, gave the answer "I forget". In relation to one of the other charges she said (AB 109) that she had forgotten about the incident but she remembered it three years later. Added to that is the fact that the appellant who was only 12 to 13 years old when the alleged offences occurred and who was at a disadvantage during the first trial because of the passage of time which had elapsed before he had to respond to the allegations against him, will be placed at an even greater disadvantage because of the passage of yet further time.
134 All of these factors lead me to the conclusion that a re-trial is not in the interests of justice.
135 I would therefore direct a judgment and verdict of acquittal to be entered in relation to all of the charges.
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