AK v The State of Western Australia [2008] HCA 8 26 March 2008 P27/2007
ORDER
1.Appeal allowed.
2.Set aside the order of the Court of Appeal of the Supreme Court of Western Australia made on 17 November 2006 and in its place order that:
(a)the appeal to that Court be allowed,
(b)the appellant's convictions be quashed, and
(c)there be a new trial.
On appeal from the Supreme Court of Western Australia
Representation
R W Richardson for the appellant (instructed by Aboriginal Legal Service of Western Australia (Inc))
B Fiannaca SC with D A Lima for the respondent (instructed by Director of Public Prosecutions for Western Australia)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
AK v The State of Western Australia
Criminal law – Appeals – Application of the proviso – Statutory requirement that reasons for judgment include the principles of law applied and the findings of fact relied upon – Failure to give reasons meeting statutory requirements in respect of central issue at trial – Failure to comply with statutory requirements an error of law – Appeal against conviction to be allowed unless Court of Appeal satisfied that no substantial miscarriage of justice had occurred – Whether no substantial miscarriage of justice had occurred.
Criminal law – Evidence – Identification – Complainant indecently dealt with by one of two males with whom she and her sister were sharing a bed – Complainant unable to identify the perpetrator by visual or aural means – Complainant adamant that the appellant was responsible – Whether identification warning needed – Whether finding of guilt unreasonable or not supported by evidence.
GLEESON CJ AND KIEFEL J. This is an appeal from the Court of Appeal of Western Australia, which heard a criminal appeal from a judge sitting without a jury. It is common ground that the primary judge erred in law by failing to give adequate reasons for his decision to convict the appellant. All three members of the Court of Appeal (Roberts-Smith, Pullin and Buss JJA) rejected a ground of appeal that the verdict of guilty was unreasonable and could not be supported by the evidence. All three accepted the possibility of application of s 30(4) of the Criminal Appeals Act 2004 (WA), which empowers the Court of Appeal, having upheld a ground of appeal, to dismiss the appeal if it considers that no substantial miscarriage of justice has occurred ("the proviso"). The Court divided on whether the proviso should be applied.
There are three grounds of appeal to this Court:
"2.1.The Court of Appeal erred, having found that the learned trial judge had failed to provide adequate reasons, in finding that the proviso ... had any application.
2.2Alternatively, the Court of…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
AK v Western Australia [2008] HCA 8
Case
[2008] HCA 8
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal by a male appellant against his conviction for indecent dealing with a child. The complainant, his younger cousin, alleged that the appellant had indecently dealt with her in February 2002, leading to a pregnancy in March 2003. The appellant was convicted on three counts of indecent dealing but acquitted of charges relating to later sexual offences. The appeal concerned the adequacy of the trial judge's reasons and the reasonableness of the verdict, particularly in light of the complainant's inability to visually or aurally identify the perpetrator.
The central legal issues before the High Court were whether the Court of Appeal erred in applying the proviso to the Criminal Appeals Act, thereby upholding the conviction despite the trial judge's failure to provide adequate reasons. This involved determining if a substantial miscarriage of justice had occurred. Additionally, the Court considered whether the verdict of guilt was unreasonable or unsupported by the evidence, given the nature of the identification evidence presented at trial.
A majority of the High Court, comprising Gummow and Hayne JJ, and Heydon J, allowed the appeal. Their reasoning focused on the trial judge's failure to provide adequate reasons for conviction, which constituted an error of law. This failure meant that the appellate court could not be satisfied that no substantial miscarriage of justice had occurred, thus precluding the application of the proviso. Heydon J also separately considered the ground that the verdict was unreasonable, finding that the complainant's identification evidence was insufficient to support a conviction beyond reasonable doubt. Gleeson CJ and Kiefel JJ dissented, finding that the proviso could be applied and that the verdict was safe.
Consequently, the High Court allowed the appeal, set aside the order of the Western Australian Court of Appeal, and ordered that the appellant's convictions be quashed and that there be a new trial.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside the order of the Court of Appeal of the Supreme Court of Western Australia made on 17 November 2006 and in its place order that:
(a) the appeal to that Court be allowed,
(b) the appellant's convictions be quashed, and
(c) there be a new trial. (Joint judgment of Gummow and Hayne JJ, and judgment of Heydon J, with Gleeson CJ and Kiefel J dissenting)
Background
Background to the litigation
There are three grounds of appeal to this Court: "2.1.The Court of Appeal erred, having found that the learned trial judge had failed to provide adequate reasons, in finding that the proviso ... had any application.2.2Alternatively, the Court of Appeal erred in concluding, on the whole of the evidence, that the evidence from the record established that the appellant was guilty beyond reasonable doubt, and dismissing the appeal pursuant to s 30(4) of the Criminal Appeals Act.2.3The Court of Appeal erred in failing to find that the verdict of guilty was unreasonable or could not be supported by the evidence."The charges and their background The complainant, a female, and the appellant, a male, are first cousins. They had known one another during the whole of their respective lives, and had lived near one another for much of that time. In February 2002, the complainant was aged 15 and the appellant was aged 13. In March 2003, following some sexual activity between the complainant and the appellant, the complainant fell pregnant. She told a female cousin, other members of her family, and the police, that the appellant was the father. She was ashamed, for reasons that included reasons of culture. She had an abortion. She told the authorities that she had not consented to the intercourse in consequence of which she became pregnant. It is evident from the charges that she also told of an occasion of alleged sexual contact between her and the appellant in February 2002. It seems probable that she said this was the first occasion of such a nature. In October 2004, the appellant was charged as follows: first, there were three counts of indecent dealing with a child between the ages of 13 and 16, relating to three separate aspects of the incident in February 2002; secondly, there was a charge of sexual penetration without consent on 30 March 2003; thirdly, there was a charge of indecent assault without consent on 25 April 2003. The appellant was convicted on the three counts of indecent dealing in February 2002, and received a non-custodial sentence (a supervision order). Consent was not an answer to those charges. The appellant was acquitted of the alleged offences of March and April 2003. In each case, the basis of the acquittal was that the State had failed to negative an honest and reasonable mistaken belief as to consent. It is the alleged indecent dealings in February 2002 that are the subject of the present appeal. In understanding the evidence, and the course of the trial, in relation to those offences it is necessary to keep in mind that it was not disputed that there were sexual relations between the complainant and the appellant in 2003, although the defence case was that they were consensual. According to a version of an act of sexual intercourse put to the complainant in cross-examination by counsel for the appellant, the complainant not only consented but in fact initiated the activity. She denied that allegation. It was put to the complainant that she was making up the story that she was an unwilling partner, partly because of shame at her pregnancy, and partly because she knew that if she, when over 16 (as she was in 2003), had sex with a boy of the appellant's age, she herself would have been committing an offence.The trial
Evidence
Evidence Before The Court
Below the application of s 30(4) will be described as "applying the proviso". In addition, s 24(2)(e)(ii) of the Criminal Appeals Act provides:"The prosecutor may also appeal to the Court of Appeal against any one or more of the following decisions by a judge of a superior court in relation to a charge of an indictable offence –...(e)a judgment of acquittal (other than a judgment of acquittal on account of unsoundness of mind) –...(ii)entered in a trial by the judge alone."[35] Sections 24(2)(e)(ii) and 30 of the Criminal Appeals Act and ss 118-120 of the Criminal Procedure Act were all introduced on 2 May 2005. [35]See also Crimes (Appeal and Review) Act 2001 (NSW), s 107(1)(b); Criminal Law Consolidation Act 1935 (SA), s 352(1)(ab). Ground 3: failure to find that the verdict was unreasonable or not supported by evidence Ground 3 contended that the Court of Appeal erred in failing to find that the verdict of guilty was unreasonable or could not be supported by the evidence. If made out, ground 3 would result in an order of acquittal, for it would not ordinarily be right to order a new trial so that the prosecution could attempt to improve its evidence on a future occasion[36]. If either ground 1 or ground 2 were made out, the result would ordinarily be only an order for a new trial. Thus success on ground 1 or ground 2 is a less satisfactory outcome for the appellant than success on ground 3. It is thus necessary to deal with ground 3 and it is desirable to do so at the outset, for, if ground 3 is made out, it is unnecessary to deal with the other two grounds. [36]R v Taufahema (2007) 228 CLR 232 at 256 [52]; [2007] HCA 11. How did the complainant identify the accused? One main issue at the trial was identification: whether the accused was the person who behaved in the manner complained of by the complainant. The most common form of identification evidence is evidence of visual identification. A less common, but fairly standard, form is identification by sound (by voice, or by distinctive coughing or breathing, for example) – aural identification[37]. A possible, though rarer, form of identification is identification by touch, as where the person identified has some peculiar feature – for example, some corrugation or deformity or texture of the skin. Identification by smell or taste is likely to be even rarer, at least in relation to the identification of human beings as distinct from things[38], but it is possible. [37]Bulejcik v The Queen (1996) 185 CLR 375; [1995] HCA 54. [38]Union v State 66 SE 24 (Ga App, 1909) ("the liquid ... smelled like whisky"); Sherrard v Jacob [1965] NILR 151 at 160 ("felt and smelt") (quoting Attorney-General (Ruddy) v Kenny (1960) 94 ILTR 185 at 191 per Kingsmill Moore J); R v Farr (2001) 118 A Crim R 399 (odour of cannabis on accused's breath). Where a witness gives direct evidence of personal experience, generally that evidence can only be given as a result of experience through one of the five senses in the manner just indicated[39]. It was a central aspect of the appellant's argument in relation to ground 3 that the complainant did not do this in relation to the first three charges. [39]Ogden v People 25 NE 755 (Ill, 1890).
Decision
Reasons for decision
GLEESON CJ
KIEFEL J
GUMMOW AND HAYNE JJ
(dissent)
HEYDON J
This part of the appellant's argument has been made out. There was also an argument, based on s 119(3) of the Criminal Procedure Act that the judge should have given himself certain identification warnings. Having regard to the nature of the evidence in this case, it is hard to see exactly what warnings might have been apt. At all events, the complaint under s 120(2) being made out, error is shown, as all members of the Court of Appeal held.The reasonableness of the decision It is convenient to deal first with the appellant's third ground of appeal, which raises an argument that was considered and rejected by all members of the Court of Appeal. The ground (ground three) in the Court of Appeal was that "[t]he verdicts were unsafe and unsatisfactory … and have occasioned a miscarriage of justice in that a Jury properly instructed could not be satisfied beyond reasonable doubt that it was the Appellant who committed the offence." If the appellant were to succeed on this ground, he would be entitled, not to an order for a retrial, but to an acquittal. It is, therefore, necessary to decide whether it should be upheld. The leading judgment on the point was that of Pullin JA, who discussed a number of decisions of this Court on the application of the proviso, including M v The Queen[2] and Weiss v The Queen[3], and referred in detail to the evidence in chief and cross-examination of the complainant, which he analysed carefully. He considered the inconsistencies, said to have been revealed in cross-examination, between the complainant's evidence and what she had said to the police about the location of people in the bed. He discussed the topic of the dangers of identification evidence, and the nature of the identification evidence in this case. He concluded that a reading of the whole of the evidence left him in no doubt that it was the appellant who touched the complainant.[2](1994) 181 CLR 487; [1994] HCA 63.[3](2005) 224 CLR 300; [2005] HCA 81. Roberts-Smith JA, who agreed with the reasons of Pullin JA, pointed out that the complainant had known the appellant all his life; that it was accepted that she had sexual relations with him at a time after February 2002; that he had a sexual interest in the complainant; and that there was no suggestion in the evidence that the only other male person in the bed, the appellant's brother, had ever shown any sexual interest in the complainant. The complainant adhered to her evidence that it was the appellant, not the appellant's brother, who lay alongside her. She had never expressed any uncertainty about who it was who touched her. Buss JA concluded that ground three had not been made out. He said that it had not been established that the nature and quality of the evidence at the trial was such that, acting reasonably, the trial judge ought to have had a doubt as to guilt. As will appear, his Honour would not have applied the proviso because the failure of the trial judge to make findings bearing on the reliability (as distinct from honesty) of the complainant made it impossible for an appellate court, with only the written record before it, to be satisfied beyond reasonable doubt that it was the appellant who indecently dealt with the complainant. This is a matter to which it will be necessary to return.