ABS v Jasper
[2012] WASC 88
•16 MARCH 2012
ABS -v- JASPER [2012] WASC 88
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 88 | |
| Case No: | SJA:1129/2011 | 7 MARCH 2012 | |
| Coram: | McKECHNIE J | 16/03/12 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | ABS EMILY SKYE JASPER |
Catchwords: | Criminal law Sexual offence Whether failure to comply with Crofts Whether evidence of accident |
Legislation: | Nil |
Case References: | Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427 FGC v The State of Western Australia [2008] WASCA 47; (2008) 183 A Crim R 313 Narkle v The State of Western Australia [2011] WASCA 160 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : ABS -v- JASPER [2012] WASC 88 CORAM : McKECHNIE J HEARD : 7 MARCH 2012 DELIVERED : 16 MARCH 2012 FILE NO/S : SJA 1129 of 2011 BETWEEN : ABS
- Appellant
AND
EMILY SKYE JASPER
Respondent
ON APPEAL FROM:
Jurisdiction : CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE P A ROTH
File No : NO 27 of 2011, NO 28 of 2011, NO 29 of 2011
Catchwords:
Criminal law - Sexual offence - Whether failure to comply with Crofts - Whether evidence of accident
Legislation:
Nil
(Page 2)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr S B Watters
Respondent : Mr S Markham
Solicitors:
Appellant : Griffiths Rice & Co
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427
FGC v The State of Western Australia [2008] WASCA 47; (2008) 183 A Crim R 313
Narkle v The State of Western Australia [2011] WASCA 160
(Page 3)
- McKECHNIE J:
How this matters comes to court
1 The appellant and a young lady, the complainant, attended the same high school and were in the same year. The complainant eventually complained that on three occasions the appellant sexually interfered with her. The first occasion, she said, was when he placed his hand on her breast while they were riding in a bus. The second occasion was on an oval when he put his hand under the leg of her shorts, and under her underwear. The third occasion occurred in a hall when the complainant went to sit down the appellant and put his hand so that she sat on it.
2 The magistrate was not satisfied as to the first incident and acquitted the appellant. While he accepted that the third incident occurred in the manner described by the complainant, he was not satisfied that the touching was indecent and the appellant was acquitted of that incident.
3 As to the second incident on the oval, the magistrate was satisfied that the appellant indecently dealt with the complainant. The appellant was convicted and now appeals against that conviction on two grounds. Both grounds fail and the appeal is dismissed.
Ground 1 - The magistrate failed to properly direct himself in relation to the issue of delay and the complainant's credibility
4 Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427 establishes the overriding duty of a trial judge is to ensure that the accused secures a fair trial. This might oblige a judge in a case otherwise calling for comment, to draw the notice of the jury to aspects of the facts of the case which on ordinary human experience would be material to the evaluation of those facts. This is not necessary where the peculiar facts of the case and conduct of the trial do not require a warning to restore a balance of fairness. In Narkle v The State of Western Australia [2011] WASCA 160, a trial by judge alone, the court noted that there is no hard and fast rule but it depends on the circumstances of each trial ([56], [57], [58]).
5 In FGC v The State of Western Australia [2008] WASCA 47; (2008) 183 A Crim R 313 Wheeler J said:
[I] would understand Crofts as saying no more than that a trial judge's direction, where a case involves a delay in complaining in respect of offences of a sexual nature, must make it clear to the jury that the jury is permitted to consider whether that failure casts doubt upon the
(Page 4)
- complainant's credibility. Of course, the statutory direction required by s 36BD must always be given [94].
6 While the magistrate did not in terms refer to Crofts, it is obvious that he was acutely aware of the question of delay and the reasons for it in the particular case. To adopt the words of Wheeler J, the magistrate expressly considered whether the failure to complain cast doubt on the complainant's credibility and concluded that it did not substantially derogate from it. Nothing more was required.
7 The magistrate considered the explanations provided for failure to complain promptly which were somewhat varied though they are not necessarily contradictory. The complainant gave evidence that she did not complain in relation to the bus incident because she did not want to spoil a good time, a good day that had been had by all. She gave evidence that she did not complain in respect of the other matters. She did not particularly want to get the accused in trouble and that she was concerned that if she did complain he might get into trouble and that may have adverse effects on his future. She also gave evidence about her mother and the reason why she did not complain to her mother. This evidence was corroborated by her mother. The magistrate then continued:
In my view the complainant's failure to complain does not substantially derogate from her credibility in respect of these matters.
8 The magistrate did what he was required to do. He reminded himself of the Evidence Act s 36BD but also critically examined the evidence of lack of complaint as it affected the complainant's credibility before concluding that her credibility was not 'substantially derogated'.
9 Moreover, the evidence in relation to count 2 was not simply the evidence of the complainant. The magistrate found that another witness, who was also present, corroborated the complainant's evidence as to what occurred. Further corroboration was found when the appellant said to the other person:
Do you know that [the complainant] has a hairy muff?
10 The magistrate found the circumstances in which the words were spoken also corroborated the evidence of the complainant that it was the appellant who has touched her in the fashion she described.
11 An early complaint, or lack thereof, can affect the credibility of a complainant but when, as here, the complainant's evidence is corroborated
(Page 5)
- by acceptable evidence, the importance of an early complaint or a lack of complaint diminishes.
12 The magistrate did not err as ground 1 asserts.
Ground 2 - The magistrate failed to consider the defence of accident
13 The written submissions support this ground as follows:
1. The appellant effectively testified that any touching, if it did occur, happened during the course of a 'pile on'. It was implied that any touching was accidental. Further there was evidence that MC 'piled-on' top of the complainant.
14 This is not an accurate summary of the evidence. No such implication is open. The appellant said there was a pile on; that is, a number of people had jumped onto the complainant and KM. The magistrate found there was no 'pile on'.
15 The complainant's evidence:
[The appellant] was playing football and then he came over. ... then he knelt down near my legs and put his hand like up my shorts and then down in my underwear. ... I tried to kick him away but I couldn't get my legs, like, around to kick ... And then I finally kneed him in the leg, then he left.
I said to [the appellant] 'Can you get out? I don't like it'. He then left (ts 14 - 15).
16 The appellant's evidence:
Did you do anything in relation to [the complainant] at that incident?---No.
I mean you know what she is alleging?---Yeah.
That you put a hand up her shorts and - - -?---No, I never did that - - -. Touched her up near her pubic hair?---No. I never did that (ts 26).
17 He also denied making a remark to KM but was disbelieved.
18 There was no evidential basis that enlivened consideration of the Criminal Code (WA) s 23B. The magistrate was satisfied beyond reasonable doubt on the evidence of the complainant and KM that the appellant did in fact kneel down beside the complainant:
I also reject the [appellant's] evidence that there were others who had piled on to the two girls and that they were in a position to touch the complainant as she had described.
(Page 6)
- I'm satisfied beyond reasonable doubt that it was in fact the [appellant] who touched the complainant on the oval and I am satisfied beyond reasonable doubt that he touched her in the manner as described by the complainant. (ts 61).
19 This ground is without merit.
Conclusion
20 The appeal is dismissed.
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