ADL v The State of Western Australia
[2022] WASCA 12
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: ADL -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 12
CORAM: BUSS P
MAZZA JA
ALLANSON J
HEARD: 20 JANUARY 2022
DELIVERED : 18 FEBRUARY 2022
FILE NO/S: CACR 38 of 2021
BETWEEN: ADL
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: SWEENEY DCJ
File Number : IND 1259 OF 2018
Catchwords:
Criminal law - Sexual offences - Delay in making complaint - Where complainant a child with an intellectual disability - Whether sufficient direction to jury regarding delay - Turns on own facts
Legislation:
Criminal Code, s 329(4)
Evidence Act 1906 (WA)
Result:
Application to extend time refused
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | T F Percy QC & S Nigam |
| Respondent | : | B M Murray |
Solicitors:
| Appellant | : | Nigams Legal Pty Ltd |
| Respondent | : | Director of Public Prosecutions (WA) |
Cases referred to in decision:
Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427
De Wet v State of Western [2021] WASCA 83
DKA v The State of Western Australia [2019] WASCA 123
FGC v The State of Western Australia [2008] WASCA 47
JS v The State of Western Australia [2012] WASCA 198
M v The Queen [1994] HCA 63;(1994) 181 CLR 487
Narkle v The State of Western Australian [2011] WASCA 160
NPK v The State of Western Australia [2020] WASCA 50
Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234
JUDGMENT OF THE COURT:
Introduction
The appellant was convicted after trial in the District Court of Western Australia on four charges of knowingly sexually penetrating a lineal relative, contrary to s 329(2) of the Criminal Code (WA). He was sentenced to 8 years' imprisonment, backdated to the date of conviction.
The appellant seeks leave to appeal against his conviction on one ground:
The learned trial judge erred in failing to direct the jury that the absence of recent complaint might be considered by them in assessing the credibility of the complainant as required by Crofts v The Queen,[1] occasioning a miscarriage of justice.
[1] Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427.
The appellant lodged the appeal notice on 7 April 2021, and requires an extension of time. The appellant's application for an extension of time within which to appeal and his application for leave to appeal were referred to the hearing of the appeal.
The trial
The appellant was charged on an indictment containing eight counts: two counts of indecently dealing with a lineal relative under the age of 16,[2] and six counts of having knowingly sexually penetrated a lineal relative under the age of 16. Two of the offences (counts 1 and 2) were alleged to have been committed against the appellant's son, DZ; the other six offences were alleged to have been committed against his daughter, JT.
[2] Criminal Code, s 329(4).
The evidence of both complainants was pre-recorded between 23 January 2019 and 25 January 2019. The trial was conducted before a judge and jury between 9 April 2019 and 18 April 2019.
On 18 April 2019, the jury returned verdicts of guilty in relation to counts 3, 4, 5, and 6 on the indictment, which concerned JT, and not guilty verdicts on the other four charges.
The appellant was sentenced on 5 July 2019. He was sentenced to imprisonment for four years on each charge, with two of those terms cumulative and the other two concurrent.
The allegations
The single ground of appeal does not require any detailed examination of the facts.
The offences relating to JT were alleged to have been committed on dates unknown between 1 January 2014 and 1 October 2017.
JT was born on 30 May 2006 and was between 7 and 11 years old at the time of the offending.
Two of the offences were committed by the appellant penetrating JT's anus with his finger, and two by penetrating her vagina with his finger.
At the time of trial, DZ had been convicted in the Children's Court of Western Australian for two offences of sexual penetration of JT and one offence of indecent dealing with her. DZ had also admitted to sexually interfering with JT when he was around seven or eight years old, below the age of criminal responsibility.
The defence case at trial
The defence case at trial was that the allegations arose in the context of a matrimonial breakup, and where there had been sexual activity between JT and her brother, DZ.[3] The defence case was that JT was susceptible to suggestion and manipulation and that she believed, or had been made to believe things that were not true.[4]
[3] ts 210.
[4] ts 209 (opening); ts 44 - 45 (closing submissions).
The defence relied on the evidence that JT had first been interviewed in 2016, when she told the police about the appellant checking her for tapeworms. The State accepted that JT did not then make any complaints about improper conduct by the appellant (although, in cross examination, JT said that she did).[5]
[5] ts 81 - 82.
In 2017, JT was interviewed by the police about what DZ had done to her. JT agreed that she did not then tell the police about what the appellant had done. When asked why, JT replied:
I was too scared. See, I'm autistic like my brother, but different. So me and my brother were too scared to tell me what happened…Because my father is evil and he would get angry and he smacked us a lot, that's why.[6]
[6] ts 85.
JT agreed that the first person she told about the appellant touching her was her mother.[7] JT denied that her mother told her to say bad things about the appellant and to say things that were not true.[8]
[7] ts 86.
[8] ts 87.
In closing submissions, defence counsel emphasised the issue of reliability of the child witnesses. Counsel referred to inconsistency in JT's evidence about when she told things to the police, and to the fact that she did not complain about her father's conduct when interviewed in 2016 and again in 2017.[9]
[9] ts 51 - 52.
The appellant's submissions
The appellant's sole ground of appeal relies upon the absence of a direction in accordance with Crofts v The Queen,[10] when the offences were alleged to have occurred on unknown dates between 2014 and 2017, and when JT did not disclose them until 2018, despite being interviewed in 2016 and 2017.
[10] Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427.
The appellant contended that the trial judge, having directed the jury in accordance with s 36BD of the Evidence Act 1906 (WA),[11] failed to give a further direction to balance the effect of that direction and restore the balance of fairness.
[11] Section 36BD provides:
Senior counsel for the appellant accepted that the direction of the trial judge was fair and balanced in the way in which her Honour put both cases to the jury.[12] He submitted, however, that the trial judge was required to make clear to the jury that they were entitled to consider the failure of JT to complain before 2018 in relation to her credibility. Counsel submitted that a direction that the delay was something to which the jury could have regard was insufficient. The circumstances of the case required a specific direction, with the imprimatur of the trial judge, that the evidence of delay in complaint was a matter the jury could take into account specifically in regard to JT's credibility.
[12] Appeal ts 13.
Counsel submitted that, without the direction for which he contended, there was a real risk that the jury may have thought that JT's delay in making a complaint was irrelevant to their assessment of her honesty and reliability.[13]
[13] Appeal ts 23.
The respondent's submissions
The respondent submitted that Crofts requires no more than that, in a case where there was a delay in complaining of an offence of a sexual nature, the trial judge's directions must make it clear that the jury is permitted to consider whether that delay casts doubt on the complainant's credibility.[14]
[14] FGC v The State of Western Australia [2008] WASCA 47 [94].
The respondent submitted that the court must take the summing up as a whole and as a jury listening to it might understand it.[15] The respondent submitted that, when the trial judge's directions are read as a whole, the jury were directed that they could have regard to delay when assessing JT's credibility, and could have been in no doubt that delay was a factor which they were entitled to take into account.
[15] DKA v The State of Western Australia [2019] WASCA 123 [43]; NPK v The State of Western Australia [2020] WASCA 50 [35]; De Wet v State of Western [2021] WASCA 83 [36] - [38].
The respondent further submitted that the circumstances of the present case fall within that class of cases of sexual assault on a child by a person who has the child's trust and confidence, where a conviction would not be set aside simply because there has not been a direction of that kind.[16]
[16] M v The Queen [1994] HCA 63;(1994) 181 CLR 487, 514 - 515: FGC [124]; Narkle v The State of Western Australian [2011] WASCA 160 [55] - [56]; JS v The State of Western Australia [2012] WASCA 198 [40].
The merits
A trial judge's instructions to the jury are measured against the judge's obligation to secure a fair trial for the accused:
This obligation requires the trial judge to put fairly before the jury the case which the accused has made or is entitled to rely upon in the evidence that has been adduced. [17]
[17]Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234, 249 [46]; (2007) 81 ALJR 391 [46].
The delay in this case had two aspects: the delay between the offending conduct and JT first making any complaint; and the delay between the offending and trial. The trial judge directed the jury on both.
JT's credibility was a central issue in the trial. Delay was only one factor relevant to the jury's assessment of JT's credibility and the reliability of her evidence. The consideration of when and how JT disclosed the offending also had to be considered by reference to her age and her intellectual disability, her brother's offending against her, and her relationship with her father.
The trial judge instructed the jury that the State's case in relation to each of the allegations by JT depended on their assessment of her credibility, and whether they found her evidence to be honest and reliable.[18] Her Honour told the jury:
When you assess a witness's credibility, everything about the witness comes into play. So you can take into account their age, their maturity levels, their educational level, their intellectual abilities, their ability to express themselves. And also the passage of time between the offence they are recounting and their giving of evidence. Anything which you consider might have bearing upon their memory and their perception and the way in which they testify.[19]
[18] ts 608; 619.
[19] ts 609.
Her Honour reminded the jury that no official complaint to the police was made at the time of the alleged offending, and that it was accepted that neither child made any complaint to their mother or anyone else at the time of any alleged incident. The potential delay between JT's allegations and the police investigation getting under way was as much as four years and they could not determine how long the delay was between the alleged events and her disclosure to her mother.[20] Her Honour said:
Human memory is fallible. The longer the delay, the more opportunity there is for error and that's particularly so for events occurring in childhood. It is a matter of common experience that the longer you believe something to have happened the more convinced you are that it has happened. That can be so even if you are mistaken in your recollection….
In relation to [JT], in considering this issue you will also want to take into account that she has an obvious intellectual disability. She operates with the intellectual maturity, according to her mother, of about a seven to eight-year-old. [21]
[20] ts 619, 620.
[21] ts 620.
The trial judge initially directed the jury on the relevance of delay between the events and the children giving evidence at trial, referring to both the effect of time on the ability of the witnesses to recall, and the loss of opportunity for the defence to test that evidence.[22] Her Honour specifically referred to the compounding effect of delay and JT's reduced intellectual capacity on her ability to answer questions in detail.[23]
[22] ts 621.
[23] ts 623 - 624.
The trial judge later moved to what she described as a separate topic: delay in complaint and the circumstances of the complaint. Her Honour said:
It's uncontroversial that neither child made any complaint about what they say their father was doing prior to January 2018. I've already given you a direction rather earlier in this charge about the disadvantage to the accused on account of the delay between the alleged incidents and the formal police investigation getting under way.
Now, I want to talk to you about delay in a different context and there's a bit to go through here. Firstly I want to talk about the basic proposition that neither child said anything to their mother or anyone else close in time to any alleged offence. That of itself is something that you will want to consider carefully.
I'll talk about the timing of their eventual complaint shortly and what opportunities there might have been which might have prompted them to complain earlier, but at the moment I'm talking about the basic proposition that neither child said anything to their mother or anyone else close in time to any alleged offence.
In this regard I must tell you that absence of complaint or delay in complaining does not necessarily indicate that the allegation that the offence was committed is false. There may be good reasons why a victim of an offence such as these alleged may hesitate to make a complaint or may refrain altogether from making a complaint. ….
In considering this issue of both children delaying in disclosing anything about what they say had been occurring, you'll obviously want to consider certain factors.[24]
[24] ts 644 - 645.
Her Honour then referred to the age of the children, the evidence of the appellant being strict and authoritarian, JT's general vulnerability and intellectual disability, and the evidence about how the disclosure to the mother came about.[25]
[25] ts 645 - 646.
Her Honour summarised for the jury the State and the defence submissions, referring to the evidence about the earlier interviews and the opportunity they provided for JT to disclose conduct by her father.[26] Her Honour clearly put the defence case that JT's failure to disclose the allegations in 2016 and 2017 should lead the jury to have a real doubt about the veracity of the allegations she then made in January 2018; and that, because of her age and intellectual disability, JT was vulnerable to suggestion and manipulation.[27]
[26] ts 653 - 657.
[27] ts 654, 656 - 657.
Her Honour told the jury:
So it is an important part of the defence case that there was this delay on the part of both children, and complaining about what they say occurred. And the defence points specifically to the timing of the disclosure, and also suggests that their mother has likely played a pivotal role in bringing those disclosures forth, and positively inviting those disclosures.[28]
[28] ts 657.
The instruction to the jury was continued on the morning of 18 April 2019. The trial judge began with a short summary of her directions from the previous day:
I took you through the elements of the charges and I summarised the children's evidence just in relation to the alleged offences and then before the close of yesterday, I spent quite a long time talking to you about the delay in making a complaint, how there can be good reasons for a complainant to delay in saying anything and delay in complaint doesn't mean the allegation is false and I took you through the sequence of how the disclosures emerged and what the parties say you should draw from that and their respective cases.
The defence does place significance on not only the delay in complaint but also the way in which the complaints emerged whereas the State says that that shouldn't cause any doubt in your mind about the credibility of the children. I mentioned some other things as well.[29]
[29] ts 673.
Her Honour directly addressed the defence's suggestion that JT had been influenced or manipulated by her mother and DZ, and instructed the jury that they should consider those submissions as part of their overall consideration of the case and of the credibility of the mother and both children.[30] That direction was immediately accompanied by further directions that the appellant had no obligation to prove anything and was under no obligation to 'come up with any reason why a person might make a false allegation'. Her Honour then said:
If you are not persuaded by those submissions that doesn't establish by default that either [DZ or JT's] evidence is to be accepted by you. It doesn't mean that the State has proved its case. It still all comes back to your assessment of whether you consider each child to have been both an honest witness, that is a witness doing his or her best to tell you the truth, and also a reliable witness who has given an account that is accurate as to its essential details and whether the State has proved its case to you.[31]
[30] ts 676.
[31] ts 677.
The trial judge then summarised each case, and the overall contention made by the defence that the jury should accept his denials of these allegations, or should at least be left with a reasonable doubt because of the timing of the complaints by the children, and the way in which the complaints emerged.[32]
[32] ts 693.
The appellant was represented at trial by experienced counsel who raised no complaint about the terms in which the jury had been instructed.
In summary, the trial judge clearly instructed the jury that the State's case relied entirely on the jury accepting JT's evidence. Her Honour's directions dealt comprehensively with the issues that had arisen on the evidence, and the way in which the State and the defence had presented their cases at trial. Reading the directions as a whole, the jury could have been left in no doubt that in assessing JT's credibility, they were entitled to consider JT's delay in making the complaint, and the way in which JT's complaint emerged, together with other factors such as her age, her intellectual disability, and her relationship to the appellant.
No further 'balancing' direction was required.
The application for extension of time
The notice of appeal was filed substantially out of time. Where the sole ground of appeal is without merit, it is not in the interests of justice to extend time.
The application to extend time should be refused, leave to appeal refused and the appeal dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TW
Associate to the Honourable Justice Mazza
18 FEBRUARY 2022
Where on the trial of a person for a sexual offence or an offence under Chapter XXII of The Criminal Code (as enacted at any time) evidence is given or a question is asked of a witness which tends to suggest an absence of complaint in respect of the commission of the alleged offence by the complainant or to suggest delay by the complainant in making any such complaint, the judge shall -
(a) give a warning to the jury to the effect that absence of complaint or delay in complaining does not necessarily indicate that the allegation that the offence was committed is false; and
(b) inform the jury that there may be good reasons why a victim of an offence such as that alleged may hesitate in making or may refrain from making a complaint of that offence.
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