AC v The Queen
[2004] WASCA 75
•16 APRIL 2004
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : COURT OF CRIMINAL APPEAL
CITATION: AC -v- THE QUEEN [2004] WASCA 75
CORAM: MALCOLM CJ
WHEELER J
MILLER J
HEARD: 2 MARCH 2004
DELIVERED : 16 APRIL 2004
FILE NO/S: CCA 127 of 2003
BETWEEN: AC
Applicant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :VIOL DCJ
File Number : IND 21 of 2002
Catchwords:
Criminal law and procedure - Limitation provision contained in s 189(6) Criminal Code - Interpretation of - Whether time limit applicable notwithstanding repeal - Crossexamination of defence witnesses - Calling of rebuttal evidence - Whether crossexamination collateral - Whether exception to the collateral rule established - Question of bias - Revelation that witness had told police accused person had interfered with her - Prejudicial effect - Whether sufficiently corrected by trial Judge's directions - Whether Crown case involved impression that accused had committed acts other than those charged - Prejudicial outbursts by accused in the course of his crossexamination - Whether trial miscarried - Whether jury should have been discharged - Effect of trial Judge's directions on the issue
Legislation:
Criminal Code (WA), s 189(1), s 189(2), s 189(6) as at 1985
Evidence Act 1906 (WA), s 21
Result:
Application for extension of time to appeal refused
Category: A
Representation:
Counsel:
Applicant: Mr B S Hanbury
Respondent: Mr R E Cock QC
Solicitors:
Applicant: Beau Hanbury
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
AC v The Queen [2003] WASCA 280
Eastman v R (1997) 158 ALR 107
Gavin v The Queen (1992) 6 WAR 195
Narkle v The Queen (2001) 23 WAR 468
Natta v Canham (1991) 32 FCR 282
Rodway v The Queen (1990) 169 CLR 515
Case(s) also cited:
Adlem v The Queen (1999) 20 WAR 419
Eatwell v The Queen [1963] WAR 121
Gipp v The Queen (1998) 194 CLR 106
R v Birks (1990) 19 NSWLR 677
R v Ireland (1970) 126 CLR 321
R v Jensen (1991) 52 A Crim R 279
R v Kenward [2000] QCA 482
R v King [2001] QCA 525
R v Melville (2003) 27 WAR 224
Ready v Brown (1968) 118 CLR 165
Suresh v The Queen (1998) 153 ALR 145
MALCOLM CJ: This was an application for an extension of time within which to appeal against conviction. The relevant facts and circumstances are set out in the reasons for judgment of other members of the Court. There were originally three grounds of appeal. Ground 1 was abandoned.
Ground 2: Whether prosecution statute-barred
Ground 2 contended that because the complainant was aged more than 18 years at the time complaints were made by her against the applicant in respect of indecent dealing, the prosecution for such offences was statute‑barred having regard to the provisions of s 189(6) of the Criminal Code, as it was in 1985 when the relevant offences were alleged to have been committed. The provisions as they then stood have been set out in the reasons to be published by Miller J, but I repeat them for convenience.
Section 189 relevantly provided that:
"(1)Any person who unlawfully and indecently deals with a girl or woman -
(i)who is under the age of 16 years … is guilty of a crime and is liable to imprisonment with hard labour for 4 years with or without whipping."
Section 189(6) contained a limitation period as follows:
"A prosecution under this section for the offence of unlawfully and indecently dealing with a girl under the age of 16 years must, if she is of or over the age of 13 years, be commenced within 3 months after the offence has been committed."
Section 189 as it then stood was repealed by the Law Reform (Decriminalisation of Sodomy) Act 1989. Section 189 as re‑enacted, then relevantly provided that:
"(1)Subject to subs (2), any person who unlawfully and indecently deals with a person –
(a)who is under the age of 16 years;
…
or procures such a person to deal with him or her or another, or permits such a person so to deal with him or her, is guilty of a crime and is liable to imprisonment for –
(d)4 years; or
(e)if the offender's age does not exceed 21 years – 2 years.
…
(3)If the child dealt with is under the age of 13 years the offender is guilty of a crime and liable to imprisonment for 7 years.
…
(7)The term 'deal with' includes doing an act which if done without consent would constitute an assault as defined in this Code.
(8)A prosecution under this section for the offence of unlawfully and indecently dealing with a child under the age of 16 years or a male under the age of 21 years, as the case may be, must, if the child is of or over the age of 13 years, be commenced within 3 months after the offence has been committed."
By s 6 of the Acts Amendment (Sexual Offences) Act 1992 (WA), a new Ch XXXI was introduced dealing with sexual offences. Section 320(1) defined "child" in that section to mean a child under the age of 13 years. Section 320 created the following offences:
"(2)A person who sexually penetrates a child is guilty of a crime and is liable to imprisonment for 20 years.
(3)A person who procures, incites or encourages a child to engage in sexual behaviour is guilty of a crime and is liable to imprisonment for 20 years.
(4)A person who indecently deals with a child is guilty of a crime and is liable to imprisonment for 10 years.
(5)A person who procures, incites or encourages a child to do an indecent act is guilty of a crime and is liable to imprisonment for 10 years.
(6)A person who indecently records a child is guilty of a crime and is liable to imprisonment for 10 years."
In my opinion, the legislative history of the relevant provision confirms the correctness of the conclusion by Miller J that s 189(6) was aimed solely at ensuring that a prosecution for an offence of unlawful and indecent dealing which had been committed against a girl who was then between the ages of 13 and 16 years had to be commenced within three months after the offence had been committed.
I agree with Miller J for the reasons that his Honour has expressed, that the reference to age in s 189(6) as it stood in 1985 was a reference to the age of the girl at the time when the alleged offence of unlawful and indecent dealing took place. Consequently, as the complainant was under the age of 13 years when the offence was committed against her, the prosecution could be commenced at any time.
Ground 3.1 and 3.2: Cross-examination on credibility and the calling of rebuttal evidence
The facts relevant to this ground are set out in the reasons for judgment of both Wheeler and Miller JJ. I do not propose to repeat them.
The learned Judge referred in the course of his summing up that the jury, when considering the evidence, should put aside any feeling of sympathy or prejudice that might have arisen from what they had heard in the case. His Honour found it unnecessary to give appropriate directions about certain accusations made by the applicant about family members and otherwise, including the evidence of N. In the course of his directions to the jury the learned Judge said:
"You heard in the course of the accused's cross‑examination he made a number of accusations about various people in the family and otherwise and a number of allegations. Of course the position is that none of those allegations are the subject of any cross‑examination or any of witnesses about whom he made them and that what was said, of course, by him was not at all relevant to the evidence and the facts that you have to decide in this case.
Therefore you are not able as jurors to take on board what has been said and let those things that were said to affect your minds in terms of sympathy or prejudice in relation to any of the people about whom were spoken. As with most things that come up in a court trial you deal with them in two ways. Firstly, you do not allow them to affect your minds in terms of sympathy or prejudice, but in this case, of course, in the case of what [sic] the accused saying those things, the way he said them and the circumstances in which he said them and his demeanour, etcetera, is a matter than you can consider in the course of your deliberations as to the reliability and/or credibility of the accused.
So that you see that there is this – there are two parts to it. Firstly, what is said in that particular instance, you have to put aside and not allow your minds to be affected by it, but of course the way in which it is said and the circumstances in which they were said are matters that you can consider. Also in relation to this you have the evidence of the girl [J]. You know that in the course of the cross‑examination of [J] and in the evidence of Mr [E] you heard reference to [J] complaining that she had been touched by the accused.
You know that it was put to her that she had denied saying this to her auntie, [M] or to [D] and you know that [D] came to court ultimately and his evidence was in fact that [J] had made a complaint to him of that nature. So you have the situation where you have heard that evidence but you have to deal with it once again in two very strictly different ways. The evidence that you heard from [J], the cross‑examination as you heard it and the nature of things being put to her were allowed to be heard by you for a very limited but important purpose.
The evidence was not put to you, was not put in front of you to prove that the accused did in fact touch [J]. There was no evidence at all that he in fact touched [J] or dealt with her in any way and he is not charged with doing that. You cannot conclude from the evidence that [J] was allowed to give about that and be cross‑examined about it to conclude that he did in fact touch her.
The way in which you are allowed to deal with that evidence and to use it is to test the credibility of [J] so that you as a jury are placed in the best possible position to assess whether [J] was a witness of truth in the context that it was the position for the defence that she was a witness who was confirming the evidence of her … grandfather, but also in the context of the Crown's submission that she was one of several defence witnesses who had got their heads together in effect to give evidence to exculpate the accused. So you will see that there is a very different purpose involved in the hearing of her evidence.
Most important of all, and this goes really to something I have just said also, having heard the matters being put to [J] and having heard the evidence of [D], talking about the complaint you cannot allow the hearing of this evidence to feel any prejudice against the accused in the sense of thinking, for example, because he may have touched [J] he may have touched the complainant. You cannot allow that evidence to be used in that way.
As I said, the evidence was put before you to test the credibility of [J] and to allow you to examine her evidence as part of your overall job of assessing the strength or otherwise of the case against the accused man."
During the course of the trial, after all other defence witnesses had been called, counsel for the applicant informed the trial Judge that the last witness to be called for the defence was J, one of the daughters of the applicant. Counsel informed the Court that J was able to give certain evidence about who was living in the house at the material time in 1985. Counsel had been informed by counsel for the prosecution that if such evidence was given the Crown wished to attack her credibility and call additional witnesses for that purpose and to establish that J had made inconsistent statements both alleging and denying that the applicant had done the same thing to her. At that stage, the learned Judge deferred giving a ruling until J had given her evidence‑in‑chief. As his Honour explained, the reason for deferring making a ruling was that:
"… It is sometimes quite difficult to make a determination on whether or not cross‑examination of the type sought to be led should be allowed until such time as the evidence is given, because it depends on the flavour of the evidence. It's sometimes difficult to make that decision and sometimes after the evidence is given, it is clear what is … said, the way in it's said, the way in which it fits in with the circumstances of the trial generally …"
J gave evidence that until 1985 she resided in the family home. She lived in her family home until she was married in May 1985. She then lived in Belmont for about three months. She moved back home because her husband was renting a house and the lease had expired. As she was pregnant she moved home and stayed there until after the birth of her child in January 1986. She clarified that it was October 1985 when she actually moved back to the house and stayed there until January 1986.
J said that during 1985 when she was living at her parents' house there was no television set in the master bedroom. There was a large television set in the lounge room and there was as small white portable television in the kitchen. Neither of those television sets was moved into any other room of the house.
She was shown a photograph of a television set which she identified as hers. She said that she had that television set with her when she moved into the main bedroom of the house in 1991. She was certain that the television set was not in the house prior to that date because she had been given it by her husband for her 21st birthday.
At that stage the witness was asked to withdraw. The learned trial Judge then ruled on the application by the Crown to cross‑examine her as to her credit on the basis that she had made a statement to the police in which she said that she often slept in her father's bed at night and that often happened until one night she wet the bed "and he didn't let me sleep with him any more," and then said "during that time my dad never did anything to me."
The learned Judge commented on that evidence that the statements were made in the context of the police questioning her about the allegations made by the complainant. The Crown Prosecutor referred his Honour to statements by two other witnesses given to the police. In each of those statements it was alleged that J had complained to them that the applicant had molested her.
In the course of his ruling the learned Judge said:
"It is said by the Crown that this evidence can come in under an exception to the rule against evidence as to collateral matters and there is a basis for that submission. On the other hand, counsel for the accused has said there are two difficulties as to the leading of that evidence; the first is, of course, that it would involve the jury becoming aware of possibly an allegation that the accused had indecently or in some way sexually dealt with [J], and that that knowledge by the jury could not be cured by a direction in the normal terms.
Secondly, it is suggested that if the evidence were to be – if the cross‑examination were to take place and the Crown were to be allowed to call, in effect, by way of rebuttal, evidence from the two other witnesses … to give evidence in accordance with their statements, that would involve a further inquiry, namely, whether or not they were in fact witnesses of truth.
This application by the Crown is a classic example of situations which often arise in criminal trials; that is to say, the necessity to balance the doing of justice to an accused person and of course the necessity for the jury to be made apprised of the necessary and available evidence as to matters of importance; namely, as I this case, the questions of credibility.
I have now heard the evidence of [J] in chief. I have seen her demeanour. I am aware of the issues which exist in this trial. I am aware of the fact that there is obviously a considerable background in the family as to what may have occurred and what sides – if I can use that expression – people are taking. Her demeanour was such, so far, and what she said was such that, in my view, it would be appropriate for the Crown in this case to cross‑examine her on the basis that is sought.
If I were not to allow that cross‑examination the jury would be deprived of the opportunity of determining whether or not [J] is a witness of truth. It will be the submission on behalf of the accused that she is and ultimately it will obviously be the submission on behalf of the Crown that she is not. If the evidence were not to be led, it is my view that the jury would be, as I have said, deprived of the opportunity of hearing evidence as to matters which are already a matter of record.
Further, assuming the Crown Prosecutor cross‑examines the witness as to these matters and assuming I will also then consider further the question whether or not the Crown would be able to lead evidence from the other two people. That is something I'm going to leave until later. But I am going to be allowing the Crown to cross‑examine the witness and put the questions which would obviously arise as a result of her statement and what is said to have been said by other people in other statements.
The process I'm not going to deal with fully, but I am going to allow cross‑examination on the basis that the Crown has already mentioned and made application for. I appreciate that this will involve the jury becoming aware of the fact of a suggestion that it was evidence or the suggestion of some misconduct to another member of the family, but that prejudice in my view does not – can be cured, I think, but as I've said in the interests of the trial itself and generally require in this particular trial that this question of credit be examined to its fullest extent. So I'm going to allow the cross‑examination in this case."
J was then cross‑examined by counsel for the Crown. Miller J has set out in his reasons what then occurred. Counsel for the prosecution put to J her statement to police on 27 January 2001 in which she supported her father. She agreed with that. It was then put to her that she had expressed a different view on two other occasions. First it was suggested that she had told her sister M that her father " … had done it to me." At one stage she was married to DJE. She was no longer married to him, but her sister Z was married to him. She denied that she had said something to DJE "along the same lines about whether it had happened to" her.
It was in these circumstances that leave was granted to the prosecution to call evidence in rebuttal of the evidence of Z. DJE gave evidence that J told him that there were problems with some family members and she was going to "… say something that would put a stop to it all." It was against this background that DJE gave evidence that rebutted the evidence of Z.
I agree with Miller J that the cross‑examination could only be justified on the basis that J was a witness who was biased in favour of the applicant. The inference of bias arose because of the evidence that on two occasions she had told other persons that she had been interfered with by the applicant. Suffice it to say that I agree with the suggestion by Miller J about how the matter should have been dealt with by the trial Judge. I also agree with his Honour that, notwithstanding the shortcomings in the way in which the evidence was admitted, there was no miscarriage of justice to the applicant, given the directions that were given to the jury by the trial Judge regarding the way in which they should treat the evidence of J. In my opinion, those directions dealt with the matter appropriately so that grounds 3.1 and 3.2 have not been made out.
Grounds 3.3 and 3.4
In my opinion, neither of grounds 3.3 and 3.4 have been made out for the reasons to be published by Miller J.
It follows that I agree with Miller J that this application for an extension of time within which to appeal against conviction should be dismissed.
WHEELER J: I have had the advantage of reading in draft the reasons for decision of Miller J. I gratefully adopt his Honour's summary of the background and facts of this matter. I agree with his Honour's conclusions in relation to all of the grounds of appeal save for 3.1 and 3.2. In relation to those grounds, I have reached a different view.
Grounds 3.1 – 3.2: Cross-examination of JC and rebuttal evidence.
As Miller J has noted, J was called by the applicant. Her evidence‑in‑chief was that she had resided with her parents at certain times and that, contrary to the evidence given by her sister Z, Z and her children (of whom the complainant was one) had not been living at the house at the relevant time. That was relevant it appears to issues of opportunity, as well as to the reliability of the evidence of prosecution witnesses. The second matter about which she gave evidence related to the location of a television set in a master bedroom. She said that while she was living in the house there was no television set in the master bedroom. This was capable of casting doubt on the evidence of the complainant, whose evidence was that when she had been unlawfully and indecently dealt with in 1985 there was an occasion on which she was in the master bedroom watching television when the applicant began to interfere with her. Its force was weakened to some extent by a concession that there was in the house a small television capable of being transported to the bedroom.
The cross-examination of J involved the following steps. First, it was put to her that she had made a statement to investigating police officers in which she had told them that she had often slept in the applicant's bed but that during that time he "never did anything to me". It is not necessary to consider whether it is relevant, in a trial of a person for a sexual offence in relation to one child, to prove that no offence has been committed in relation to another child. Much will depend upon the circumstances of the particular case, although such evidence would generally appear to lack relevance. However, it is clear that in this case the previous statement was not put to J with a view to establishing the
truth of its contents. Nor was it put to her because, taken alone, it was capable of casting any light upon her credibility.
The previous statement to police was put to J only with a view to the prosecutor then putting to her that she had on another occasion made a statement inconsistent with it. She was asked whether she had on other occasions said to her sister and to her ex-husband something different from what was contained in her statement to police. She denied saying either to her sister or to her former husband that "It had happened" to her.
After that cross-examination, leave was then given to the prosecutor to call the former husband to give evidence in rebuttal. He said that J had said to him that what the complainant had accused her father of doing "had happened to her". Effectively, the last piece of evidence which the jury heard, as a result of this method of conducting the case, was that one of the applicant's other daughters had accused him of indecently dealing with her in a way similar to the indecent dealing alleged by the complainant.
As Miller J has noted, there was confusion on the part of the prosecutor and learned trial Judge as to the precise basis upon which the prosecutor was allowed to cross-examine as he did, and to call evidence in rebuttal. The basis of the prosecutor's submission appears to have been to the effect that he was putting to her a "prior inconsistent statement". The learned trial Judge's ruling referred very generally to the "background in the family" and to the need for the jury to have the opportunity of determining "whether or not [J] is a witness of truth". The basis upon which the evidence was admitted is not therefore clear.
As Miller J has noted, this was clearly not a case of cross‑examination on a prior inconsistent statement within the meaning of the Evidence Act. Further, it necessarily involved cross-examination on a collateral issue. I agree with Miller J that in the present case the only justification for the cross‑examination could be on the basis that J was biased.
However, in my view, it was not capable of being used for that purpose either, and was therefore inadmissible. There was no evidence before the jury as to what had actually occurred between J and her father. As I understand the evidence, she adopted neither the statement to the police that he had not indecently dealt with her, nor the statement allegedly made on other occasions that he had. It is fair to say that the tenor of her responses in cross‑examination suggested that she was at that time maintaining a position that he had not behaved indecently towards her. Of course, there was no evidence before the jury that J's father had on any occasion indecently dealt with her. J denied having made any statements out of court to that effect and her former husband's evidence that she had made such a statement was not evidence of the truth of its contents.
The position then was the jury had before it, in relation to the issue of "bias", the bare facts, (if they accepted the evidence of the former husband), that J had said on different occasions contradictory things about her father's behaviour towards her in an important respect. At most, it seems to me that that fact could lead a jury to the view that J had some ambivalence towards her father, being prepared to accuse him on some occasions while supporting him on others. Any other finding as to the significance of that evidence could only rest upon a view as to the truth of the contents of one or the other of the out of court statements, which the jury was simply not in a position to take.
I would add that even if there had been evidence to the effect that J's father had on a prior occasion indecently dealt with her, that would not appear to suggest that in giving evidence which in some respects supported his case she was demonstrating bias in his favour. It is not difficult to understand the proposition that a witness who has suffered a wrong at the hands of an accused person may nevertheless, having taken an oath to tell the truth, give evidence which is in some respects supportive of the accused person if that evidence is in fact true.
The fact that the cross‑examination of J, and the rebuttal evidence of her former husband, were inadmissible, does not of itself determine the question whether there has been a miscarriage of justice. However, there is in this case the further factor that the evidence, and particularly the rebuttal evidence of the former husband, was highly prejudicial. There was an obvious danger of propensity reasoning on the part of the jury. Even if the evidence had been relevant and admissible, the potential for prejudice was such that it would have been appropriate for the trial Judge to have made an assessment of the significance of the evidence of J and the question of J's credit, and to have considered whether in all the circumstances of the case the probable prejudicial effect of that evidence outweighed its probative value. As it was not admissible, it had no purpose other than that of giving rise to a risk of prejudice against the applicant.
It is true that, as Miller J has pointed out, the learned trial Judge was obviously alive to the risk of impermissible reasoning, and warned the
jury that they could not conclude from the evidence that the applicant did in fact deal indecently with J. He also warned them that they were not permitted to allow that evidence either to prejudice them against the applicant or to think "for example, because he may have touched [J] he may have touched the complainant". I note that a difficulty with the propensity reasoning warning is that it necessarily assumes that there is some evidence that the applicant had dealt indecently with J and therefore tends to undermine the warning that the out of court statements are not evidence of the truth of their contents. In any event, it seems to me that it is one thing to permit admissible evidence to be led, and to deal with any danger to which it gives rise by way of a warning. When the evidence is both inadmissible and prejudicial, the notion that a warning can "cure" any risk of injustice is problematic.
The learned trial Judge also advised the jury that the only way in which they were allowed to use this evidence was to "test the credibility of [J]". It is, of course, logically relevant to the credibility of any witness that the witness has said different things on different occasions about a matter of importance. The evidence is generally excluded, where the matter about which the statements are made is not one directly in issue in the trial, because it is collateral and in order to keep trials within manageable limits, not because it is entirely irrelevant. However, although there was theoretically a relevant use to which the evidence might have been put, even though it was strictly inadmissible, it should be noted that the only witness whose evidence was, impermissibly, tested by cross‑examination and by the calling of rebuttal evidence upon a purely collateral issue was a witness generally favourable to the applicant. When one adds the fact that the evidence which was called in that way had a clear potential for use in a way which was both impermissible and highly prejudicial to the applicant, it is my view that the trial miscarried.
I would grant the extension of time and allow the appeal.
MILLER J: The applicant was indicted in the District Court at Perth on four counts of indecent dealing with a girl under the age of 13 years. He was convicted after trial on 12 December 2002 of three counts on the indictment, being two counts of unlawful and indecent dealing by engaging in cunnilingus and one count of unlawful and indecent dealing by penetrating the vagina of the complainant with his finger. On 17 January 2003 the applicant was sentenced to imprisonment for 4 years for these crimes.
Application for extension of time
The applicant filed a notice of appeal on 19 August 2003. He also filed an application for extension of time within which to appeal. That application was supported by affidavits of his solicitor and his wife to the effect that after his conviction, the applicant sought but was refused a grant of legal aid to appeal and was hospitalised for illness. Further, he had to stand trial on two similar charges, in relation to which he was acquitted, and it is contended that it took until August 2003, some seven and a half months after the expiry of the appeal period, for him to instruct solicitors to proceed with the appeal against his convictions of 12 December 2002.
The lapse of time between the final date upon which notice of appeal should have been filed and the date upon which it was ultimately filed, is not, in my view, sufficiently explained in the affidavits filed on behalf of the applicant. It follows that in the absence of exceptional circumstances being established for the grant of an extension of time, it is necessary for the applicant to show that there will be a miscarriage of justice if the extension is not granted. The principle was expressed by Malcolm CJ in Gavin v The Queen (1992) 6 WAR 195 at 198 ‑ 199 as follows:
"It has also been said repeatedly that in a case of lengthy delay the court requires exceptional circumstances to be shown before an extension of time will be granted, unless it can be shown that there will be a miscarriage of justice if an extension is not granted: see Narkle v The Queen (unreported, Court of Criminal Appeal, WA, Library No 6108, 2 December 1985); Nicolakis v The Queen (unreported, Court of Criminal Appeal, WA, Library No 7184, 30 June 1988); and Chapman v The Queen (unreported, Court of Criminal Appeal, WA, Full Court, Library No 7962, 27 November 1989)."
Grounds of appeal
The grounds of appeal proposed by the applicant as amended prior to the hearing and at the hearing of the appeal are as follows:
"1.…
2.Having regard to the fact that the complainant was aged more than 18 years at the time of making the complaints against the applicant of indecent dealing, the prosecution of the offences was statute barred, having regard to s 189(6) of the Criminal Code as it was in 1985 and there has been a miscarriage of justice.
PARTICULARS
2.1Section 189(6) requires that if the complainant is of or over 13 years of age, the offence complained of must be prosecuted within 3 months of the date of the commission of the offence. The complainant in this case was aged in her twenties.
2.2The prosecution of the offences was not commenced within 3 months of the date of the commission of the offences.
3.The applicant did not receive a fair trial and there has been a miscarriage of justice.
PARTICULARS
3.1There was an error in law in permitting the Prosecution to cross examine the witness [JC], a daughter of the applicant as to her credibility - as this was a collateral issue only.
3.2There was an error in law in permitting the Prosecution to re‑open the Prosecution case for the purpose of calling rebuttal evidence about [JC] as to her credibility.
3.3There was an error of law in allowing the trial to proceed without sufficient particularity as to the allegations against the applicant that may have left the impression that the allegations against the applicant were representative of more incidents than were charged.
3.4The trial should not have proceeded after certain disclosures were made by the applicant in the course of him giving evidence as the prejudicial affect (sic) of the evidence could not be overcome by any warning to the jury from the learned trial Judge."
Each of grounds 3.3 and 3.4 contain detailed particulars which it is unnecessary to reproduce.
Ground 2 - Whether prosecution statute‑barred
Each of the counts on the indictment faced by the applicant alleged an offence on a date unknown in the year 1985. Count 1 on the indictment alleged that on a date unknown in the year 1985 at Kensington the applicant unlawfully and indecently dealt with N, a girl under the age of 13 years, by engaging in cunnilingus. Count 3 was in identical terms and count 4 alleged that on the same unknown date and at the same place the applicant unlawfully and indecently dealt with N, a girl under the age of 13 years, by penetrating her vagina with his finger. Each of the offences was an allegation that the applicant was in breach of the provisions of s 189(2) of the Criminal Code ("the Code").
At the relevant time (1985) s 189(1) and (2) of the Code read as follows:
"189(1)Any person who unlawfully and indecently deals with a girl or woman -
(i)who is under the age of 16 years … is guilty of a crime and is liable to imprisonment with hard labour for 4 years with or without whipping.
…
(2)If the girl dealt with is under the age of 13 years he is guilty of a crime and liable to imprisonment with hard labour for 7 years with or without whipping."
Section 189(6) contained a limitation period. It was in the following terms:
"A prosecution under this section for the offence of unlawfully and indecently dealing with a girl under the age of 16 years must, if she is of or over the age of 13 years, be commenced within 3 months after the offence has been committed."
Section 189 of the Code was repealed by Act 32 of 1989.
A preliminary question, which arose at the hearing of the appeal, is whether the repeal of the section, including the repeal of s 189(6) means that whilst a person may be prosecuted for the substantive offence of indecent dealing under s 189(1) or (2), the limitation period contained in s 189(6) has been repealed retrospectively by reason of it being a procedural provision.
In the course of a bail application by the applicant in these proceedings (AC v The Queen [2003] WASCA 280), Hasluck J expressed the view that it had. His Honour said at [37]:
"… the statutory amendments effecting changes to procedural requirements generally result in the procedural position being governed by the law in force at the time the proceedings are instituted or otherwise at the time of the trial."
I am, however, of the view that the 1989 repeal of s 189(6) of the Code (being part of the repeal of the section as a whole) should not be given retrospective operation. To delete the limitation period for institution of a prosecution retrospectively would be to impair an existing right in a person prosecuted. This is to be distinguished from an amendment to practice or procedure of a court, including the admissibility of evidence and the effect to be given to evidence.
The distinction was made clear in Rodway v The Queen (1990) 169 CLR 515 at 518 ‑ 519, where the Court (Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ) said:
"The rule at common law is that a statute ought not be given a retrospective operation where to do so would affect an existing right or obligation unless the language of the statute expressly or by necessary implication requires such construction. It is said that statutes dealing with procedure are an exception to the rule and that they should be given a retrospective operation. It would, we think, be more accurate to say that there is no presumption against retrospectivity in the case of statutes which affect mere matters of procedure. Indeed, strictly speaking, where procedure alone is involved, a statute will invariably operate prospectively and there is no room for the application of such a presumption. It will operate prospectively because it will prescribe the manner in which something may or must be done in the future, even if what is to be done relates to, or is based upon, past events. A statute which prescribes the manner in which the trial of a past offence is to be conducted is one instance. But the difference between substantive law and procedure is often difficult to draw and statutes which are commonly classified as procedural - statutes of limitation, for example - may operate in such a way as to affect existing rights or obligations. When they operate in that way they are not merely procedural and they fall within the presumption against retrospective operation. But when they deal only with procedure they are apt to be regarded as an exception to the rule and, if their application is related to or based upon past events, they are said to be given a retrospective operation provided that they do not affect existing rights or obligations.
Where a period is limited by statute for the taking of proceedings and the period is subsequently abridged or extended by an amending statute, the amending statute should not, unless it is clearly intended, be given a retrospective operation to revive a cause of action which has become barred or to deprive a person of the opportunity of instituting an action which is within time. If it were given a retrospective operation, the amending legislation would operate so as to impair existing, substantive rights - either the right to be free of a claim or the right to bring a claim - and such an operation could not be said to be merely procedural."
The distinction between the presumption against retrospectivity where existing rights or obligations are affected and the absence of such a presumption in relation to practice or procedure of a court was made clear in the following passage at 521:
"… ordinarily an amendment to the practice or procedure of a court, including the admissibility of evidence and the effect to be given to existence, will not operate retrospectively so as to impair any existing right. It may govern the way in which the right is to be enforced or vindicated, but that does not bring it within the presumption against retrospectivity. A person who commits a crime does not have a right to be tried in any particular way; merely a right to be tried according to the practice and procedure prevailing at the time of trial. The principle is sometimes succinctly, if somewhat sweepingly, expressed by saying, as did Mellish LJ in the passage cited by Dixon CJ in Maxwell v Murphy, that no one has a vested right in any form of procedure."
In my opinion the limitation period contained in s 189(6) was such as to give to a person accused of a crime under s 189(1) or (2) a right that in certain circumstances, such an offence could only be brought within a limited period of time. The repeal of s 189(6) did not, in my view, operate retrospectively so as to impair that right.
In the present case the complaint which initiated the proceedings against the applicant was made in August 2001. The day in August is not shown in the copy of the complaint made available to the Court, but the applicant first appeared in response to the complaint on 28 August 2001. This was some 16 years from the date of the offences alleged.
The primary submission of the applicant is that the provisions of s 189(6) of the Code applied to the complaints made against the applicant and the provision is to be read in the present tense so that any prosecution of the complainant for the offence of unlawful and indecent dealing with a girl under the age of 16 years had to have been commenced before she attained the age of 13 years.
The respondent contended that the reference to age in s 189(6) as it stood in 1985 was a reference to the age of the girl at the time when an offence of unlawful and indecent dealing took place. Accordingly, if the girl was aged between 13 and 16 years when such an offence was committed against her, a prosecution for that offence had to commence within three months after the offence had been committed. If, however, the girl was under the age of 13 years when an offence was committed against her, the prosecution could commence at any time. Thus, it was argued, the offences having been committed in this case on dates unknown in 1985, when the complainant was 7 ‑ 8 years of age, the prosecution of the offences was not statute‑barred.
I consider the submission of the respondent to be correct. Section 189(6) was, in my view, aimed solely at ensuring that when an offence of unlawful and indecent dealing had been committed against a girl who was then between the ages of 13 and 16 years, the prosecution had to be commenced within three months after the offence had been committed. I can therefore find no substance in ground 2 of the grounds of appeal.
Ground 3.1 - 3.2 - Cross‑examination on credibility and the calling of rebuttal evidence
The applicant called at his trial his daughter J. She testified about two specific matters. The first was that she had resided with her parents at an address in Kensington during the year 1985, but had left to marry in May of that year, returning in October. J testified that at the time she was living in the house at Kensington her sister Z and her children (of whom the complainant was one) had not been living at the house, which was contrary to the evidence given by the complainant and Z.
The second matter about which J gave evidence related to the location of a television set in a master bedroom at the house. J testified that while she was living in the house there was no television set in the master bedroom but there was a large television set in the lounge and a smaller one in the kitchen. She testified that neither set was ever moved into another room in the house. This again was evidence contrary to that of the complainant, who gave evidence that when she had been unlawfully and indecently dealt with in 1985, there was an occasion upon which she was in the applicant's bedroom watching television when he came in and began to interfere with her.
The Crown prosecutor sought leave from the learned trial Judge to cross‑examine J in relation to what was termed "her credibility and her general credit". The prosecutor informed the learned trial Judge that J had made a statement to police in which she had said certain things, including the fact that the applicant had never interfered with her. The prosecutor told the learned trial Judge that "it was the Crown case that J had said quite the contrary to two different people on two separate occasions and it was therefore relevant for the jury to know that J said one thing on one occasion and other things on another occasion .. they ought to know that because they can then assess fully the credit that they give to the evidence she gives on this occasion".
The prosecutor added:
"It is significant because not only are there inconsistencies or previous inconsistent statements from the witness but the subject matter makes it doubly more significant because on the one hand she now seeks to support a man whom she had previously been prepared to make accusations against. We would submit, your Honour, that the jury ought to know what she has had a change of heart in assessing what weight they give to the evidence she gives on his behalf on his occasion.
I would certainly understand that nothing more can be made of it other than that which is relevant to her credit. It cannot be evidence of the truth of what she says and I would never seek to suggest that it was. What I would, however, seek to argue is that the jury should know that what she says on oath today is different to what she said to two other people, one being her husband, and one being her sister, on earlier occasions. That's I think what my friend has the issue with."
The learned trial Judge decided that he would give no ruling on the matter until the evidence‑in‑chief had been heard. At the conclusion of J's evidence his Honour decided that the proposed cross‑examination would be allowed. In the course of his ruling he said:
"I have now heard the evidence of [J] in chief. I have seen her demeanour. I am aware of the issues which exist in this trial. I am aware of the fact that there is obviously a considerable background in the family as to what may have occurred and what sides - if I can use that expression - people are taking. Her demeanour was such, so far, and what she said was such that, in my view, it would be appropriate for the crown in this case to cross‑examine her on the basis that is sought.
If I were not to allow that cross‑examination, the jury would be deprived of the opportunity of determining whether or not [J] is a witness of truth. It will be the submission on behalf of the accused that she is and ultimately it will obviously be the submission on behalf of the crown that she is not. If the evidence were not to be led, it is my view that the jury would be, as I have said, deprived of the opportunity of hearing evidence as to matters which are already a matter of record."
The Crown prosecutor then examined J by putting to her a statement that she had given to investigating police officers on 27 January 2001. She was asked to identify the statement and read to herself critical paragraphs, including one in which she had said to investigating police that she had often slept in her father's bed but "during that time (the applicant) never did anything to me".
It was put to J that she had, in her statement to the police, supported her father, with which she agreed. It was then put to her that on two other occasions she had expressed a different view to that which was contained within the statement. At this stage, what was in the statement had not been read to the jury.
The cross‑examination then proceeded in the following way:
"And I'm going to put to you that what you say in paragraph 21 which we may get to in a moment to be clear - what I'm going to put to you is that you have said something different to two other people than what appears in paragraph 21. Do you agree that you may have said something different to two others, namely your sister and I think your ex‑husband? --- I said something - I didn't actually say it had happened to me to my sister. I never said it happened to me to my husband, never to my ex‑husband.
Just excuse me a minute please. I suggest that you said to your sister [M] - you said to her, '[M], I've got something to tell you'? --- No. That's not true.
And then you said something else to her? --- No.
You deny that? --- My sister [M] assumed it had happened to me after she had told me that she was going to see a psychiatrist to put her under hypnosis to see if my father had done to her.
Madam, do you deny saying that to [M]? --- I didn't say that.
You deny it? --- I deny it. I did not say that he had done it to me.
Can I suggest that - were you married at one stage to [DJE]? -- Yes, I was.
You're no longer married to him? --- No. My sister [Z] is married to him.
Yes. I suggest that you said something to him along the same lines about whether or not it had happened to you? --- No.
Do you deny saying it to [DJE]? --- Yes. I did not say that to [DJE]."
After this cross‑examination, leave was given to the prosecutor to call DJE to give evidence in rebuttal to that which J had given. He said:
"Doing the best you can tell us what she said to you? --- There had been some problems with family members. She wasn't talking to her mother for several months and some things had been ---
VIOL DCJ: Speak up a little bit please? --- had been going on. She said to me that she was going to go down there and say something that was going to put a stop to it all. Then she said, 'You remember what [Z]'s daughter had accused pa of doing' that it had happened to her. I said, 'What, he touched you?' She said yes. Then she went off and went down there and came back some hours later. I tried to talk to her but she wasn't - didn't seem to want to talk and that was the last time we ever talked about it."
There seems to have been some confusion on the part of the prosecutor and the learned trial Judge as to the precise basis upon which the prosecutor was allowed to cross‑examine J as he did. There was reference to her being cross‑examined on a prior inconsistent statement and there was reference to apparent bias on her part.
Clearly this was not a case of cross‑examination on a prior inconsistent statement within the meaning of s 21 of the Evidence Act 1906. Such a cross‑examination is allowed only in these circumstances:
"Every witness under cross‑examination in any proceeding, civil or criminal, may be asked whether he has made any former statement relative to the subject‑matter of the proceeding, and inconsistent with his present testimony, the circumstances of the supposed statement being referred to sufficiently to designate the particular occasion, and if he does not distinctly admit that he made such statement, proof may be given that he did in fact make it."
There was no question in this case of J having any former statement inconsistent with her testimony before the Court.
Further, the cross‑examination necessarily involved cross‑examination on a collateral issue. It had nothing to do with the facts in issue. Cross‑examination on credit which involves a collateral issue is generally disallowed. There are, however, well‑recognised exceptions to this rule. In Narkle v The Queen (2001) 23 WAR 468 at [35] Murray J summarised the position as follows:
"There are well recognised exceptions to the application of the exclusionary principle and they should be examined, bearing in mind always that, as was said in Natta v Canham, they should not be regarded as a closed list. However, accepted to be among the exceptions to the collateral evidence rule are the fact that a witness has been convicted of a criminal offence or offences bearing upon the character of the witness and his or her truthfulness, the fact that a witness is biased, the fact that a witness has previously made a statement inconsistent with his or her testimony to the court and the fact that the moral character or physical or mental condition of a witness is such as to militate against the witness being accepted as a witness of truth."
It has been said that the categories of exceptions to the exclusionary rule are not closed and that a trial Judge should be given a degree of latitude in allowing cross‑examination as to credit in circumstances such as arose in this trial. In Natta v Canham (1991) 32 FCR 282, the Full Federal Court (French O'Loughlin and Higgins JJ) said (at 298 ‑ 300):
"The exclusion of evidence to contradict a witness' testimony in cross‑examination on matters going to credit is based primarily upon the need to confine the trial process and secondarily upon notions of fairness to the witness. Such evidence is not necessarily excluded because it is logically irrelevant. In the context of a jury trial the first limb of the rationale of the rule may also be expressed in terms of the need to avoid distracting a jury with issues which are not central to the disposition of the case: see Ready v Brown (1968) 118 CLR 165 at 169, per McTiernan J.
…
While judges will be astute to confine or prevent exploration of secondary issues affecting credibility, the exercise of the judicial function in that regard should not be encumbered by over‑nice distinctions between 'collateral' and other matters and the application of enumerated exceptions with a flavour of statutory proviso about them. And even where one of the exceptions can be invoked, as for example where there is an allegation of bias which is denied, 'a court would only permit such a diversion from the material issue if it were satisfied that the interests of justice, namely, the proper investigation of the material issues, demanded it': see Bakopoulos v General Motors Holden's Ltd [1972] VR 732 at 733, per Lush J.
…
This Court cannot, of course, disregard settled authority on the issue, including the decision of the High Court in Piddington (supra). Nevertheless the court is not bound to the view that the exclusionary rule is absolute or that the categories of exceptions to it are closed. It is a rule of practice related to the proper management of litigation. A trial judge should not be precluded from determining in an appropriate case that the matter on which a witness' credit is tested is sufficiently relevant to that credit as it bears upon issues in the case that such evidence may be admitted."
It seems to me that in the present case the cross‑examination had to be justified, if at all, on the basis that J was biased. That is, biased in favour of the applicant. The learned trial Judge's conclusion certainly was that her demeanour was such that she was "taking sides" in the case.
At the hearing of this appeal Mr Cock QC, Director of Public Prosecutions, effectively conceded that the cross‑examination could only be justified on the basis that it fell within the exception to the exclusionary rule by reason of bias of the witness. There was no apparent bias in the answers given by J to the questions put to her by the applicant's counsel, but the learned trial Judge clearly detected bias in the demeanour of the witness.
In my view, although a marginal case, there was a sufficient basis for the learned trial Judge to rule that the Crown prosecutor could cross‑examine the witness as to credit by putting to her that although she was testifying in Court in support of her father's case on the issues in question, she could not be believed because she was exhibiting bias in his favour. That bias arose out of the fact that she had previously, on two occasions, told persons that she had herself been interfered with by the applicant. The basis for allowing cross‑examination of her as to credit could only have been that no person who had herself been interfered with by the applicant, could reasonably be expected to come to Court and testify in his favour in the way in which she did, unless she was biased.
Although the issue was not identified in this way by the learned trial Judge or by the Crown prosecutor, it seems to me that this is the only basis upon which the cross‑examination could have been pursued as it was. The Crown prosecutor misapprehended the situation as being cross‑examination in relation to a prior inconsistent statement by putting to the witness a statement she had made to police and then asking her whether she had said different things on other occasions to other people. It was not a case of cross‑examination on a prior inconsistent statement at all, and it is difficult to see how the prosecutor was entitled to even put to the witness the statement she had made to investigating police.
What could have been put to her was that she had been supportive of her father when interviewed by police, and supportive of her father in the testimony she had given in Court, when she had told two persons out of Court that her father had done to her the very things which were being alleged against him in the trial. Once the complainant denied that she had told anybody out of Court what was alleged, it was open to the prosecution to apply for and for the learned trial Judge to allow rebuttal evidence to be called.
Notwithstanding the shortcomings and the way in which the matter unfolded, I do not consider there was any miscarriage of justice occasioned to the applicant, particularly when regard is had to the directions given by the learned trial Judge to the jury on the way in which they should treat the evidence of J. In this respect his Honour said:
"Also in relation to this you have the position of the evidence of the girl [J]. You know that in the course of cross examination of the girl [J] and in the evidence of Mr [DE] you heard reference to [J] complaining that she had been touched by the accused.
You know that it was put to her that she had denied saying this to her auntie, [MT] or to [DE] and you know that [DE] came to court ultimately and his evidence was in fact that she had made a complaint to him of that nature. So you have the situation where you have heard that evidence but you have to deal with it once again in two very strictly different ways. The evidence that you heard from [J], the cross‑examination as you heard it and the nature of things being put to her were allowed to be heard by you for a very limited but important purpose.
The evidence was not put to you, was not put in front of you to prove that the accused did in fact touch [J]. There was no evidence at all that he in fact touched [J] or dealt with her in any way and he is not charged with doing that. You cannot conclude from the evidence that Jasmine was allowed to give about that and be cross‑examined about it to conclude that he did in fact touch her.
The way in which you are allowed to deal with that evidence and to use it is to test the credibility of [J] so that you as a jury are placed in the best possible position to assess whether [J] was a witness of truth in the context that it was the position for the defence that she was a witness who was confirming the evidence of her father, her grandfather, but also in the context of the crown's submission that she was one of several defence witnesses who had got their heads together in effect to give evidence to exculpate the accused. So you will see that there is a very different purpose involved in the hearing of her evidence.
Most important of all, and this goes really to something I have just said also, having heard the matters being put to [J] and having heard the evidence of [DE], talking about the complaint you cannot allow the hearing of this evidence to feel any prejudice against the accused in the sense of thinking, for example, because he may have touched [J] he may have touched the complainant. You cannot allow that evidence to be used in that way."
Given the circumstances in which the cross‑examination of J occurred and the warnings given by the learned trial Judge to the jury as to how to handle the evidence she gave, I do not consider there has been any miscarriage of justice and I can find no substance in grounds 3.1 and 3.2 of the grounds of appeal.
Ground 3.3 - Evidence of more offences than those alleged
This ground alleges that evidence given by the complainant may have given the jury the impression that the allegations being made against the applicant were representative of more incidents than were charged.
Counsel for the applicant relies upon the fact that when the complainant gave evidence‑in‑chief she said that there were occasions on which she had found herself alone with her grandfather in the house and that this was more than once. She was asked by the prosecutor whether she could remember one particular occasion when something had happened and he said, "I'm going to ask you now to be specific", proceeding then to ask her about an occasion when she had been shown some items in a drawer.
Counsel for the applicant complained that from this one could conclude that the complainant may have been making reference to the fact that being alone with her grandfather on more than one occasion, it was likely that other offences had occurred on those occasions, not being offences which were the subject of the charges.
I cannot accept this submission. In my view, the Crown prosecutor was entitled to ask whether the complainant had ever been alone with her grandfather before taking her specifically to an incident, in relation to which she gave evidence.
Later in the course of her evidence the complainant gave evidence of a specific occasion upon which she was watching television and something happened to her. The evidence went this way:
"Tell us about that please? --- I was sitting on the bed watching TV and my grandfather walked in and he sat down next to me. Then he lied me down on the bed, removing my underwear. He again started rubbing the insides of my legs, parted them and started performing oral sex, again holding my vagina open with his fingers and rubbing the outside of it.
And again by 'oral sex,' do you mean the same that you've already explained to us? --- Yes.
When he was doing that, do you remember if he said anything to you? --- Yes.
What did he say? --- He said that if I needed to go to the toilet to do it in his mouth.
Did he say that on one occasion or on more than one occasion? --- On more than one occasion.
During this one incident or during other incidents? --- During most of them that I remember."
Complaint is made that by the complainant saying "during most of them that I remember" she was making reference to what must have been incidents other than those which were specifically charged.
A further piece of testimony complained about is that of the complainant when she was asked:
"But you can't recall exactly when they took place in 1985, can you? --- No, not the exact date.
You can't tell this court what month they took place in, can you? --- No.
Okay. Paragraph 12 of your statement; you say you cannot remember how many times it happened to you, only that it happened more than once. Is that right? --- Yes.
So you're not certain how many times it happened? --- I do remember three times, yes."
Whilst counsel for the applicant contends that by this answer the complainant was suggesting that she was interfered with on more occasions than those the subject of the charges, I am unable to agree. I consider that it was made quite clear to the jury that the applicant was charged with four and only four offences. The learned trial Judge made that quite clear in his directions to the jury and the prosecutor had done so in his opening. There was no reference to any other incidents having occurred and none of the answers given by the complainant suggested that there had been any more instances of sexual abuse than those which were the subject of the charges before the Court. I do not consider there is any substance in ground 3.3 of the grounds of appeal.
Ground 3.4 - Outbursts made by the applicant
The applicant gave evidence at his trial. He denied having sexually interfered with his granddaughter at any time. The essence of his evidence‑in‑chief was as follows:
"[NT] has made some very serious allegations about you. Did you ever abuse her? --- Never; never. I'm not an animal; never.
Were there ever times when you were left alone in the house with her? --- Never. I was never alone with her. My wife was there.
Okay. What about when your wife was at work? --- I was working. I was never there.
[NT] has alleged that you used to induce her up into your bedroom where these acts took place. Did that happen? --- No. It's not true.
Did you ever take [NT] up into your bedroom? --- Never.
Did you ever invite her up into your bedroom ---? --- Never.
--- to watch television? --- Never.
Did you ever invite her up into your bedroom to obtain items of stationery? --- Never.
Did you ever take her into the shed? --- No. I didn't want nobody in the shed, never, because I had too many tools and wires on the floor and never - I used to them out - my wife used to tell them, 'Get out of the shed,' but I used to throw them out and they used to swear at me. I don't want nobody in my shed."
The applicant was then cross‑examined. He repeated that he had never touched the complainant. Almost immediately the applicant launched into an attack on the complainant and her mother. The following excerpts from the transcript are sufficient to illustrate what occurred:
"[N] was 7 years old? --- That is --
8 years of age, was she not? --- I never touch her.
Surely you don't suggest that at 8 years of age she had too much hate for you to talk to her? --- You don't know her and my daughter is evil. You don't know what - she's evil. That one there - I'm sorry - is evil. She can crucify Jesus Christ in the cross. You don't know - I brought her to this world.
Which one is evil, sir? --- That one, [Z]. that is the one who has made all these things, that one.
I see? --- And she's the one who put it in her daughter's brain, yes. I can tell the jury. She is the one who brought everything - (indistinct) the girls. She's the one, because the girl never told me, 'Pa, you have touched me.' Only was in 2001.
…
What about your grand daughter, sir, you ---? --- No, she was evil like the mother. I never ---
The 8‑year‑old was evil too? --- Yes, she was evil. You don't know. She manipulate the bigger one which is there. She was a puppet of her. She was evil.
How is it that an 8‑year‑old child is evil? Describe what you mean by that? --- Evil. She was - she (indistinct), she used drugs.
The 8‑year‑old did? --- No, the mother, but the mother was in front of them, this is why. She was evil. And I tell you one thing, she broke the leg of that girl there and we had to go and take her to the hospital. I forget her name now. Look how evil she is. And the one in England put her daughter in the toilet and the government wants to get her. That's why she doesn't come to Australia, because the government wants to get her, the welfare and everything because the things she used to do to her child."
In the course of exchanges similar to this, the prosecutor asked the learned trial Judge to control the witness and his Honour told the applicant to listen carefully to the questions and to simply answer them. Again, however, the applicant lapsed into attacks on his daughter Z and her children (including the complainant).
The trial Judge did endeavour to control the witness. The following passage illustrates this:
"VIOL DCJ: Just one moment. Listen to the question? --- I'm not afraid to go to the court ---
Just one moment? --- to gaol. I'm not.
Look, please ---? --- I'm not Australian. I'm not English. I'm nothing and we ---
Just one moment? --- I don't care if you put me right now to gaol.
Look ---? --- It doesn't worry me a bit ---
Just one moment? --- because I've got cancer in the bowel. I got heart attack. You name it, I got seven disease and I don't care if I rot in there but I'm telling you the truth and you not going to convince me, with 63 years - 67 years ---
Just one moment please? --- even if you been in university and everything.
Just ---?--- You don't know them. I know them.
Look ---?--- Yes, judge, you can throw me in gaol right now."
These passages suffice to illustrate that the applicant did behave in a bizarre way which was potentially prejudicial to his case. However, I cannot accept the proposition that because the applicant responded in the way in which he did, the learned trial Judge ought to have discharged the jury. In Eastman v R (1997) 158 ALR 107 at 130 ‑ 131, the Full Federal Court (von Doussa, O'Loughlin and Cooper JJ) said this of a similar situation:
"To all this must be added a reference to the behaviour of the appellant throughout the course of the trial. He made vile, foul‑mouthed, vituperative comments addressed to his Honour and to the Crown Prosecutor which led to the trial judge having him removed from the courtroom for part of the trial.
…
Some examples of the appellant's behaviour extracted from the transcript are set out below. They indicate, among other things, that there were occasions when the appellant was invited by the trial judge to cross‑examine a witness, only to be met with a tirade of abuse. They indicate also that, even when his counsel was present, the appellant was determined to present his case in the manner that he saw fit. His abusive conduct was not put to the jury as constituting some form of propensity evidence - nor should it have been. But it had a material effect on the trial in matters such as bail and the appellant's removal from the courtroom. The Crown put to the jury that the appellant's credibility was a significant part of the case and that, for the purpose of assessing his credibility, the jury was entitled to have regard to a variety of matters, one of which was the manner in which the appellant behaved throughout the course of the trial. The defence was, for its part, entitled as it did to put that the appellant was an innocent man who had been 'framed' by the police and whose outbursts in Court were those of an innocent man unjustly brought to trial. The defence also led evidence that the appellant was a kind man, not given to violence. It was put on the appellant's behalf that his frustrations with the Public Service and the police were momentary expressions of short‑lived anger. These respective submissions of the Crown and the defence were proper submissions for a jury and it was for the jury to make such use of them as they thought appropriate. In the course of its deliberations the jury was therefore entitled to have regard to the manner in which the appellant had conducted himself throughout his trial for the purpose of their evaluation of all the evidence."
In my view the observations of the Full Federal Court are entirely apposite to the facts of the present case. The jury was, in my view, entitled to take into account the way in which the applicant behaved when cross‑examined and to consider his evidence in the totality of the evidence in the case.
The learned trial Judge gave sufficient directions to the jury to avoid prejudice for and against any person, and made reference to the way in which the applicant had behaved in the following passage:
"You heard that in the course of the accused's cross‑examination he made a number of accusations about various people in the family and otherwise and a number of allegations. Of course the position is that none of those allegations are the subject of any cross‑examination of any of the witnesses about whom he made them and that what was said of course by him was not at all relevant to the evidence and the facts that you have to decide in this case.
Therefore you are not able as jurors to take on board what has been said and let those things that were said to you affect your minds in terms of sympathy or prejudice in relation to any of the people about whom were spoken. As with most things that come up in a court trial you deal with them two ways. Firstly, you do not allow them to affect your minds in terms of sympathy or prejudice, but in this case of course, in the case of what the accused saying those things, the way he said them and the circumstances in which he said them and his demeanour, etcetera, is a matter that you can consider and in the course of your deliberations as to the reliability and/or credibility of the accused."
This, in my view, was a more than adequate direction in relation to the manner in which the applicant had behaved. I cannot therefore find any substance in ground 3.4.
For the above reasons I am of the view that the applicant has failed to demonstrate that his convictions on the three counts on the indictment constituted a miscarriage of justice. I would therefore refuse the application for extension of time within which to appeal.
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