Andri v The Queen
[2002] WASCA 40
•7 MARCH 2002
ANDRI -v- THE QUEEN [2002] WASCA 40
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 40 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:125/2001 | 5 FEBRUARY 2002 | |
| Coram: | MALCOLM CJ ANDERSON J STEYTLER J | 7/03/02 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal grantedAppeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | WAYNE ROBERT ANDRI THE QUEEN |
Catchwords: | Criminal law Appeal against conviction Indecent dealing Where five years elapsed between commission of alleged offences and trial Whether trial Judge failed to give proper warning regarding delay in complaint Longman warning Whether trial Judge failed to give proper direction that statements made by the complainant to others were only relevant to the issue of whether the complaint had been fabricated and were not evidence of the truth of what was said Turns on own facts |
Legislation: | Evidence Act 1906, s 36BE, s 50, s 106D |
Case References: | Bromley v The Queen (1986) 161 CLR 315 Christophers v The Queen (2000) 23 WAR 106; [2000] WASCA 344 Crampton v The Queen (2000) 75 ALJR 133; [2000] HCA 60 Dawe v The Queen [2001] WASCA 306 Doggett v The Queen (2001) 182 ALR 1; [2001] HCA 46 Gaulard v The Queen [2000] WASCA 218 James v The Queen [2000] WASCA 100 Kelleher v The Queen (1974) 131 CLR 534 Longman v The Queen (1989) 168 CLR 79 BRS v The Queen (1997) 191 CLR 275 Bull v The Queen (2000) 201 CLR 443 Gipp v The Queen (1998) 194 CLR 106 In reference to a question of law pursuant to the Criminal Code s 693A (Reference No 1 of 1999) [1999] WASCA 53 Kailis v The Queen (1999) 21 WAR 100 Nominal Defendant v Clements (1960) 104 CLR 476 R v Dolan (1992) 58 SASR 501 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : ANDRI -v- THE QUEEN [2002] WASCA 40 CORAM : MALCOLM CJ
- ANDERSON J
STEYTLER J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Appeal against conviction - Indecent dealing - Where five years elapsed between commission of alleged offences and trial - Whether trial Judge failed to give proper warning regarding delay in complaint - Longman warning - Whether trial Judge failed to give proper direction that statements made by the complainant to others were only relevant to the issue of whether the complaint had been fabricated and were not evidence of the truth of what was said - Turns on own facts
Legislation:
Evidence Act 1906, s 36BE, s 50, s 106D
(Page 2)
Result:
Leave to appeal granted
Appeal dismissed
Category: B
Representation:
Counsel:
Applicant : Mr M J Bowden
Respondent : Mr R E Cock QC
Solicitors:
Applicant : Cannon Bowden & Co
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Bromley v The Queen (1986) 161 CLR 315
Christophers v The Queen (2000) 23 WAR 106; [2000] WASCA 344
Crampton v The Queen (2000) 75 ALJR 133; [2000] HCA 60
Dawe v The Queen [2001] WASCA 306
Doggett v The Queen (2001) 182 ALR 1; [2001] HCA 46
Gaulard v The Queen [2000] WASCA 218
James v The Queen [2000] WASCA 100
Kelleher v The Queen (1974) 131 CLR 534
Longman v The Queen (1989) 168 CLR 79
(Page 3)
Case(s) also cited:
BRS v The Queen (1997) 191 CLR 275
Bull v The Queen (2000) 201 CLR 443
Gipp v The Queen (1998) 194 CLR 106
In reference to a question of law pursuant to the Criminal Code s 693A (Reference No 1 of 1999) [1999] WASCA 53
Kailis v The Queen (1999) 21 WAR 100
Nominal Defendant v Clements (1960) 104 CLR 476
R v Dolan (1992) 58 SASR 501
(Page 4)
1 MALCOLM CJ: In my opinion, while the applicant should be granted leave to appeal, the appeal should be dismissed for the reasons to be published by Steytler J with which I am in complete agreement.
2 ANDERSON J: I have had the advantage of reading in draft the reasons for judgment of Steytler J. I agree with them and there is nothing I wish to add.
3 STEYTLER J: The applicant has applied for leave to appeal against his conviction by a jury on five counts of indecent dealing with a child under the age of 14 years.
4 The offences were alleged to have been committed between 30 June 1995 and 1 November 1995. The complainant was then eight years old. Her mother and the applicant had formed a relationship, as a result of which they commenced living together in 1993. The complainant's evidence at the trial (which took place on 16 and 17 August 2000) was that, on five separate occasions, the applicant came into her bedroom at night and placed her hand on his penis. The applicant denied that he had done any such thing.
5 The complainant was asked, in the course of cross-examination, why it was that she had not immediately complained to her mother, her teachers or her school friends. She said that she had not known whether or not her mother would believe her, that the offences were not something about which she had wanted to talk to her teachers and that her school friends were too young and would not have known what to do. She said that the first person to whom she had spoken about the offences was her friend, Shanna Hicks. Although the complainant could not recall upon what day that conversation took place, it seems, from the evidence as a whole, that it was on 17 March 2000. It was suggested to the complainant that she had made up the allegations in response to Shanna Hicks telling her that her sister had been molested. She denied that this was so.
6 The complainant was also asked, in cross-examination, whether her mother had told her to make the complaint. The complainant's mother and the applicant had separated in January 2000 in acrimonious circumstances. It was put to the complainant that, on the day upon which she told her friend Shanna about the alleged offences, her mother had been at the Family Court for the purpose of disputed proceedings against the applicant in respect of the applicant's rights of access to his son Dillon, born during his relationship with the complainant's mother. The
(Page 5)
complainant denied that her mother had put her up to making the complaint.
7 The complainant's mother was called by the prosecution in order to give evidence as to the dates of birth of her children. She was cross-examined by counsel for the applicant. In the course of that cross-examination she acknowledged that she had attended the Family Court on 17 March 2000 for the purpose of the proceedings then on foot between her and the applicant and that, on that day, an order had been made entitling the applicant to unsupervised access to Dillon. She said that she was told of the allegations made by the complainant against the applicant, for the first time, on the morning of 18 March 2000. She was told of them by Shanna Hicks' mother, Deborah Tills, who had accompanied her to Court on 17 March 2000. It was put to her that the allegations were "a fabrication" designed to assist her in having the order for unsupervised access reversed and that she had "recruited" her daughter to make the allegations. She denied that this was so. She had earlier said, in response to a suggestion that it was in her interest to say that she believed that the offences occurred, that she believed that her daughter had told the truth.
8 The cross-examination of the complainant's mother appears to have motivated the Crown to lead evidence from each of Shanna Hicks and Deborah Tills.
9 Shanna Hicks testified that, in March or April 2000, after she and the complainant had ridden home from school one day, she told the complainant that her sister had been molested. The complainant then told her that she, too, had been sexually abused and that the applicant "used to go into her bedroom when everybody else was asleep and touch her and put her hand on his penis and stuff". Shanna Hicks said that, later that night, she told her mother what the complainant had said. It was put to her in cross-examination that the complainant's mother, and not the complainant, had first told her about these offences. She denied that this was so.
10 Deborah Tills, in her evidence, said that her daughter told her, on 17 March 2000, what the complainant had said. She denied that she had ever suggested to the complainant's mother, or that the complainant's mother had suggested to her, that "perhaps things would be different [in the Family Court proceedings] if it transpired that … [the applicant] was guilty of interfering with her daughter".
(Page 6)
11 The trial Judge directed the jury in respect of the consequences of the complainant's delay in making any complaint and also in respect of the use to which the evidence of Shanna Hicks, the complainant's mother and Deborah Tills could be put. The applicant challenges both directions. He advances two grounds of appeal. The first is that the trial Judge should have instructed, but did not instruct, the jury that it would be dangerous to convict on the evidence of the complainant alone unless the jury, scrutinising the evidence with great care, considered the circumstances relevant to its evaluation, and paying heed to the warning, was satisfied of its truth and accuracy. The second is that he should have told, but did not tell, the jury that the evidence of Shanna Hicks, the complainant's mother and Deborah Tills as to the complainant's statements to them "was evidence only to rebut the suggestion of fabricated/false complaint and that the statements made by the complainant to those witnesses was [sic] not in itself evidence of the facts contained within the complaint".
12 I will deal with each of these grounds in turn.
13 As to the first ground of appeal, counsel for the applicant contended that this was a case in which a warning of the kind given in Longman v The Queen (1989) 168 CLR 79 should have been, but was not, given. As I have previously mentioned in Dawe v The Queen [2001] WASCA 306, par 22, the courts had, prior to 1985, traditionally warned juries of the danger which they saw in acting on the uncorroborated testimony of an alleged victim of sexual offences (see Bromley v The Queen (1986) 161 CLR 315 at 319, 323 and Longman, above, at 85). Convictions, in cases in which no such warning was given and in which the alleged victim's evidence was uncorroborated, were usually regarded as unsafe and unsatisfactory (see Kelleher v The Queen (1974) 131 CLR 534 at 551 and Longman, above, at 85). Then, in 1985, the legislature in this State enacted provisions designed to deal with evidence in trials for sexual assault offences. One of these was s 36BE of the Evidence Act. Subsection (1) of that section read as follows:
"(1) On the trial of a person for a sexual assault offence or an offence under Chapter XXII of The Criminal Code -
(a) the judge is not required by any rule of law or practice to give in relation to any offence of which the person is liable to be convicted on the charge for the offence a warning to the jury to the effect that it is unsafe to convict the person on the uncorroborated evidence of the person upon
(Page 7)
- whom the offence is alleged to have been committed; and
- (b) the judge shall not give a warning to the jury of the kind described in paragraph (a) unless satisfied that such a warning is justified in the circumstances.
…"
14 The section was repealed in 1988 and replaced by s 50 of the Evidence Act which reads as follows:
"50. Corroboration warnings not generally required
(1) In this section 'corroboration warning' in relation to a trial means a warning to the effect that it is unsafe to convict the person who is being tried on the uncorroborated evidence of one witness.
(2) On the trial of a person on indictment for an offence -
(a) the judge is not required by any rule of law or practice to give a corroboration warning to the jury in relation to any offence of which the person is liable to be convicted on the indictment; and
(b) the judge shall not give a corroboration warning to the jury unless the judge is satisfied that such a warning is justified in the circumstances."
"106D. Particular form of corroboration warning not to be given
In any proceeding on indictment for an offence in which evidence is given by a child, the Judge is not to warn the jury, or suggest to the jury in any way, that it is unsafe to convict on the uncorroborated evidence of that child
(Page 8)
- because children are classified by the law as unreliable witnesses."
16 As I have also mentioned in Dawe, above, par 24, it is plain from these provisions that the legislature regarded a "rule of law or practice" of the kind which had developed prior to 1985 as unwarranted, insofar as it applied indiscriminately in all cases of alleged sexual offences (cf Longman, above, at 85 - 86). However, the Judge, in each case, retains a discretion to comment on the circumstances of the case.
17 There were, in Longman's case, several circumstances which required comment. There the appellant had been charged with two counts of indecent dealing with his stepdaughter. She had been six years old at the time of the first of the alleged offences and 10 years old at the time of the second. She said that she had been asleep on each occasion and was awakened by the appellant touching her. The first time she complained to the police was 20 years after the time of the second offence. In these circumstances, Brennan, Dawson and Toohey JJ said (at 90 - 91):
"It would not have been surprising if these circumstances had elicited some comment from the trial judge, for it would have been proper to remind the jury of considerations relevant to the evaluation of the evidence. Of course, any comment must be fairly balanced. For example, any comment on the complainant's failure to complain should include (as indeed s.36BD [of the Evidence Act] requires) that there my 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'. But there is one factor which may not have been apparent to the jury and which therefore required not merely a comment but a warning be given to them: see Reg v Spencer [1987] AC, at p 141. That factor was the applicant's loss of those means of testing the complainant's allegations which would have been open to him had there been no delay in prosecution. Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant's story or confirming the applicant's denial. After more than twenty years that opportunity was gone and the applicant's recollection of them could not be adequately tested. The fairness of the trial had necessarily been impaired by the long delay (see Jago v District Court (NSW) (1989) 168 CLR
(Page 9)
- 23 at 31 - 32, 42 - 44, 56 - 57, 71 - 72) and it was imperative that a warning be given to the jury. The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, was satisfied of its truth and accuracy. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice. The jury were told simply to consider the relative credibility of the complainant and the appellant without either a warning or a mention of the factors relevant to the evaluation of the evidence. That was not sufficient."
18 Deane J, in that case, said (at 97) that, when complaint is made of the absence of a warning of that kind, the ultimate question for the Appellate Court is whether, "viewed in the context of the summing up as a whole and of any other particular or general defects in it, the effect of the absence of a warning of that kind is that there is a real risk that justice has miscarried with the result that the verdict is unsafe and unsatisfactory".
19 McHugh J said (at 107 - 108):
"The fallibility of human recollection and the effect of imagination, emotion, prejudice and suggestion on the capacity to 'remember' is well documented. The longer the period between an 'event' and its recall, the greater the margin for error. Interference with a person's ability to 'remember' may also arise from talking or reading about or experiencing other events of a similar nature or from the person's own thinking or recalling. Recollection of events which occurred in childhood is particularly susceptible to error and is also subject to the possibility that it may not even be genuine …".
20 His Honour went on to say (at 108), in respect of the case before him, that:
"The jury should have been warned that, in evaluating her evidence, they had to bear in mind that it was uncorroborated, that over twenty years had elapsed since the last of the alleged offences occurred, that experience has shown that human recollection, and particularly the recollection of events occurring in childhood, is frequently erroneous and liable to
(Page 10)
- distortion by reason of various factors, that the likelihood of error increases with delay, that the complainant had testified concerning incidents occurring to her as a young child after she had awoken and pretended to be asleep, that no complaint was made to her mother, and that, by reason of the delay and lack of specificity as to the dates, the defence was unable to examine the circumstances of the alleged offences. To what extent these matters needed elaboration or a consequential warning that it would be unsafe to convict on such uncorroborated evidence was very much a matter for the trial judge."
21 In Crampton v The Queen (2000) 75 ALJR 133; [2000] HCA 60, Gaudron, Gummow and Callinan JJ discussed (at 141, par 42) possible differences of degree between the joint judgment in Longman and the judgments of the other members of the Court in that case, as follows:
"[T]he former would confine the affirmative obligation to give a warning to the matter of delay and the difficulties of testing and disproving allegations by reason of the passage of time, and of the danger of convicting on the complainant's evidence alone ... . The reasons of Deane and McHugh JJ might perhaps be read as suggesting that the positive obligation to warn that it might be dangerous to convict on a complainant's evidence, may arise in a case in which emotion, prejudice or suggestion may operate to distort recollection, or, in which other circumstances of potential danger in acting upon particular evidence exist. For reasons which will appear, in this case we do not think it necessary to explore the significance (if any) of such differences as there may be between the respective reasons for their Honours' unanimous decision in the result ... ."
22 Kirby J, in Crampton (at 157, pars 129 and 130), said that, in cases of the kind before him, Longman obliges trial Judges, "not only to comment about the difficulties which the long delay in complaint presents but specifically to warn the jury, in clear and emphatic terms, of the dangers that may be inherent in such a trial".
23 Hayne J, too, said (at 159, par 142) that:
" ... [W]hat has come to be known as a 'Longman warning' is not just a judicial comment of this kind, proper and appropriate as it may be. It is a warning to the jury that, because the evidence of the complainant could not be adequately tested after
(Page 11)
- the passage of so many years, it would be dangerous to convict on that evidence alone unless the jury, scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy."
24 However, in Doggettv The Queen (2001) 182 ALR 1; [2001] HCA 46, Gleeson CJ stressed that Longman is not authority for the proposition that, in any case where there has been substantial delay in complaining of a sexual offence, it is, on that account alone, imperative to give a warning that it would be "dangerous" or "unsafe" to convict on the uncorroborated evidence of the complainant. His Honour also said (par 13) that the use of the expression "a Longman warning" is not particularly enlightening, unless accompanied by an explanation of the terms of the warning, and may distract attention from the need to relate all directions to the circumstances of the particular case, and to the issues as they have emerged for resolution by the jury.
25 McHugh J, in Doggett, also placed emphasis (par 80) on the special circumstances which had been present in Longman. He said (ibid) that those circumstances had required, in that case, "a warning that it was dangerous to convict on the uncorroborated evidence of the complainant unless her evidence was scrutinised with great care".
26 In this case there was a direct conflict in the evidence as between the complainant and the applicant. The complainant was, as I have said, eight years old at the time of the alleged offences. She said that, at the time of the first of the offences, she had been asleep but woke up when the offence was being committed. She said that she recognised the applicant by his shadow and also because he spoke to her after she had woken up. She was also woken up at the time of the commission of the second offence, but pretended still to be asleep. Once again, she recognised the applicant by identifying his shadow. On the third occasion she was able to identify the applicant because the toilet light was on. On the fourth occasion, the complainant said, the applicant told her to move her hand on his penis and said that if she did not, he would hit her. On the last occasion upon which an offence of this kind allegedly occurred, the complainant pulled away and ran out of her room. She said that the applicant told her that if anyone found out what he had done, then he would "come and get" her.
27 Consequently, the complainant had, on her evidence, a very good opportunity to identify the applicant both by his appearance and his voice
(Page 12)
- on three of the five occasions of which she spoke. The applicant's defence was, as I have said, a bare denial that anything of the kind alleged had happened.
28 The trial Judge, in his charge to the jury, recounted the evidence which had been given by the complainant and by the applicant. He then said the following:
"As I have said, if the accused is telling the truth, then obviously there is very little he can say other than to say it did not happen, and it is difficult to go into evidence chapter and verse with a simple denial. Furthermore I need to point out that there was a delay of nearly 5 years before the matters were investigated by the police and before the accused was asked to account for what he was doing and what happened on these particular alleged occasions when it is alleged the offences occurred.
So there is some difficulty in dealing with issues that come to light or allegedly come to light 5 years after the event. Human nature being what it is, recollections do fade over time, and obviously it is difficult for witnesses to remember precise details of what allegedly happened 5 years before. You also have to bear in mind that the accused is at a disadvantage in trying to defend himself against allegations about what happened 5 years ago. If the trial had taken place shortly after the alleged events, then he might have been in a better position to remember exactly what he was doing on a particular night or who might have been around or been in a position to call evidence to corroborate his version of things. So given the lapse of time, it is difficult for him to test the complainant's evidence and to test her credibility.
So for this reason you need to be very careful when you are assessing the complainant's evidence and before accepting her evidence as being truthful and correct, bearing in mind that the accused is at a disadvantage because of the lapse of time. So you need to be very cautious when you are assessing the evidence and very cautious before accepting the complainant's evidence when she says each of these offences occurred.
It has also been suggested by the defence that the fact that there was a 5-year delay before there was any complaint by … [the
(Page 13)
- complainant] impacts on her credibility and there has been considerable evidence as to the circumstances in which the complaint was made and as to the fact of the delay and you will remember that … [the complainant] was cross-examined about her relationship with her mother and with teachers and friends and it was essentially put to her that there's no reason why she couldn't have made a complaint at an earlier time. But what I need to tell you is that the fact there is delay by a complainant telling someone about alleged misconduct, doesn't necessarily mean that those allegations are untrue."
29 A little later in the course of his charge to the jury, the trial Judge said:
"You must also remember that although someone might give evidence to the best of his or her ability, that person's recollection might still be wrong, particularly when there has been a lapse of 5 years or so."
30 Counsel for the applicant was at pains to say that he did not complain about the trial Judge's failure to use the word "dangerous" in the course of his direction, having regard for what has been said by this Court in such cases as Christophers v The Queen (2000) 23 WAR 106 at 117; [2000] WASCA 344 at [37]; Gaulard v The Queen [2000] WASCA 218 at [14]; James v The Queen [2000] WASCA 100 at [22] and Dawe v The Queen, above, pars 4 and 47. It was said, in those cases, that it is not necessary for a trial Judge to use the word "dangerous", as long as words are used which convey an emphatic warning of the danger of conviction on the uncorroborated evidence of a complainant, in cases of that kind, unless the complainant's evidence is scrutinised with great care. Without departing from what was there said, I might add, if I might be forgiven for stating the obvious, that if it is necessary for a judge to convey to a jury that it will be "dangerous" to convict in particular circumstances, then that word would seem to be the sensible choice in conveying that notion.
31 Returning to the contention which is advanced in this case, I should say at once that the facts of the case are very different to those considered in Longman. Here the delay was one of five years, which, while still a long time, is very much less than that found in Longman, and, as I have earlier mentioned, the complainant was, on her evidence, in a good position to identify the applicant in the case of at least three of the alleged offences.
(Page 14)
32 While there was still, in my respectful opinion, a need, in these circumstances, for an emphatic warning of the need to be very careful before accepting the evidence of the complainant and rejecting that of the applicant, such a warning was, in my respectful opinion, sufficiently given by the trial Judge. As will be apparent from the extract from his Honour's charge to the jury quoted above, the trial Judge specifically warned of the disadvantage which had been created for the applicant in trying to defend himself against allegations of matters which were said to have occurred five years previously. The trial Judge also warned of the fact that recollections faded over time and of the need to be "very careful when … assessing the complainant's evidence and before accepting her evidence as being truthful and correct".
33 As I understood counsel for the applicant, his only complaint about the charge was that the trial Judge should have gone on to say that the jury should only convict the applicant if, after considering this warning, they were still satisfied as to the truth and accuracy of the complainant's evidence. In my opinion, it was obvious from what the trial Judge said that this was so. Nothing more needed to be said.
34 It follows, in my opinion, that ground 1 has not been made out.
35 As to ground 2, the trial Judge, after mentioning the defence contention that the complainant's allegations were motivated by the Family Court proceedings, went on to say:
"As to this area of the evidence, it's common ground that … [the complainant's] mother and the accused separated on New Year's Day in the year 2000. At that time, the couple had a young child, being … [the complainant's] younger brother Dillon and there was a dispute between … [the complainant's] mother and the accused as to the conditions under which the accused could have access to Dillon and this resulted in proceedings in the Family Court, which came to a head on 17 March 2000, when it seems there was some mediation session which resulted in some agreement as to the basis on which the accused would have unsupervised access to Dillon.
The evidence also shows that it was on that same day, 17 March, that … [the complainant] first made the complaint about the alleged offences and the defence contends that … [the complainant's] mother, or her close friend Deborah Tills, induced … [the complainant] to fabricate that complaint for the
(Page 15)
- purpose of the Family Court proceedings. So it's for this reason that you have heard evidence as to the circumstances in which the complaint was allegedly made and that's the only relevance of all of this evidence as to what was said to who on 17 and 18 March, because in order to assess whether there was a motive for a false complaint, you're entitled to know the circumstances in which the complaint was in fact made."
36 At the end of his charge, the trial Judge was asked to make a further direction about this evidence. He did so, in the following terms:
"Normally, in a trial such as this, you would never hear that evidence because what someone said about what happened out of court is not evidence. It's what lawyers call hearsay but it's what [sic] said in the witness box or on the video that counts. That's the evidence as to what allegedly happened and that's what you have to believe or disbelieve and what's said out of court is irrelevant, as a rule, but in this case you have heard that evidence of what was said by … [the complainant] out of court and what was said by Shanna to her mother and what Shanna's mother said to … [the complainant's mother].
You have heard all of that because of the issue as to whether there was a motive for a false complaint to be made and of course the defence case is that there was a motive because of the Family Court proceedings which, on the defence contention, were fairly bitter and it was squarely put to, for instance, Deborah Tills that she may have suggested to … [the complainant's mother] that the Family Court proceedings would be helped if there were allegations of sexual misconduct by the accused against … [the complainant].
So that's the relevance of that evidence. It is only relevant to that question of whether there is a reasonable possibility of a motive for a false complaint. If in the end, after considering that evidence, you believe the witnesses like Shanna Hicks and Deborah Tills and … [the complainant's mother] when they say that there wasn't any fabrication of the complaint. [sic] They didn’t induce a false complaint and the Family Court proceedings had nothing to do with the fact of the complaint being [sic]. If that's the conclusion you come to, what I need to emphasise is that that doesn't justify you in somehow leaping to
(Page 16)
- the conclusion that that must mean the accused is guilty, quite obviously.
As I said to you, a man in the accused's position, if he is innocent, he's not really in a position to say why a false complaint might be made and he is just putting one suggestion forward and that if you reject that suggested motive, that doesn't mean you should infer or come to conclusion that because there wasn't any fabrication that means he's guilty because there's no basis for such a conclusion.
So remember the context in which that evidence is relevant and don't stray beyond that and it's only relevant to the issue of whether or not there was a basis for a false motive to be made and whether that in turn impacts upon the real issue as to whether or not you believe … [the complainant] and whether you're satisfied beyond reasonable doubt that she has given you a truthful account of what happened. That's the real issue. Are you satisfied beyond reasonable doubt that … [the complainant] has given you a truthful account of what happened?"
37 There is no doubt that it needed to be made quite plain to the jury that the statements made by the complainant to Shanna Hicks, and repeated to Deborah Tills and her mother, were not evidence of the truth of what was said.
38 The trial Judge had, prior to the redirection, made it plain to the jury that the evidence in question was only relevant to the issue of whether or not the complaint had been fabricated for the purpose of the Family Court proceedings. While he did not then say that the evidence was inadmissible for any other purpose, in my opinion he did, in the course of his redirection on that point, sufficiently clarify to the jury that that evidence was not admissible as evidence of the truth of what had been said. As will be apparent from the quoted redirection, his Honour explained, albeit in general terms, the hearsay rule, saying that "what someone said about what happened out of court is not evidence" and that it is what is "said in the witness box or on the video that counts", that that was the "evidence as to what allegedly happened" and that that is what the jury had to "believe or disbelieve". He then reiterated that the evidence in question was only relevant to the question whether there was a reasonable possibility of a motive for a false complaint. This was reinforced by his Honour's direction that the jury should not "stray beyond" the context in which that evidence was relevant and that the "real issue" was whether
(Page 17)
- the jury was satisfied beyond reasonable doubt that the complainant had given them a truthful account of what had happened.
39 While it might have been preferable, in my respectful opinion, if the trial Judge had said, in simpler and more direct language, that the evidence could not be used to establish the truth of what was said by the complainant to these three witnesses, I am, in the end, satisfied that what was said was enough to instruct the jury accordingly. For what it may be worth, that, seemingly, was also the opinion of the applicant's counsel at the trial. Having asked for, and heard, the redirection, he made no complaint in respect of it. I am consequently not prepared to uphold this ground of appeal.
40 In the circumstances, while I would give to the applicant leave to appeal, I would dismiss the appeal.
0
24
1