Ashweirth v The Queen - [2004] WASCA 195

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: ASHWEIRTH -v- THE QUEEN [2004] WASCA 195

CORAM: MURRAY J
TEMPLEMAN J
WHEELER J

HEARD: 12 MARCH 2004

DELIVERED : 12 MARCH 2004

PUBLISHED : 25 AUGUST 2004

FILE NO/S: CCA 96 of 2003

BETWEEN: DENNIS RONALD WAYNE ASHWEIRTH
Applicant
AND
THE QUEEN
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram   :MACKNAY DCJ
File Number             :  IND 1000 of 2002

Catchwords:

Criminal law and procedure - Appeal against conviction - Jury directed on danger of conviction where delay in complaint and lack of corroboration - Whether direction adequate

Legislation:

Criminal Code, s 329(3)

Evidence Act, s 50(2)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Applicant: In person
Respondent: Ms T D Sweeney & Ms L J Van Der Ende

Solicitors:

Applicant: In person
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Crisafio v The Queen (2003) 27 WAR 169
Longman v The Queen (1989) 168 CLR 79

Case(s) also cited:

Gee v The Queen [2003] WASCA 178
Gill v R [1999] WASCA 68
Kailis v R (1999) 21 WAR 100

MURRAY J: I invite Templeman J to give his reasons first.
TEMPLEMAN J: The appellant was convicted on five counts of procuring his son to engage in sexual behaviour, an offence which is referred to in s 329(3) of the Criminal Code. The appellant appeals on the following grounds of appeal, and I quote:
"The learned trial Judge failed and then upon invitation by the defence declined to give any or any adequate Longman direction to the jury, the same being appropriate in the circumstances having regard to (1) the age of the complainant, (2) the absence of early complaint, (3) the lack of particularity in the charges, (4) the lack of any corroborative evidence and (5) the fact that no evidence was given by the complainant in relation to count 1, evidence on that count being given by his sister only, and the fact that evidence was given by the complainant that his sister was present at the commission of other counts on the indictment but his sister did not give evidence of her presence on those subsequent occasions."
The offences changed in the first count were alleged to have been committed between 30 November 1998 and 1 February 1999, and in the fifth count, between 4 February 2000 and 7 February 2000, in each case on a date unknown. The complainant was born on 18 August 1989 and was therefore aged between 9 and 10 at about the time when the offences were alleged to have been committed.
The complaint was made, it seems, by the complainant to the police sometime in early December 2001 which was about three years after the first offence was alleged to have been committed and a little under two years after the last offence was alleged to have been committed.
As the appellant says, and we have the benefit of his outline of submissions as well as his grounds of appeal, there was no corroboration. However, s 50 of the Evidence Act provides, in subsection (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 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."

A warning is given in the Longman form - which was the direction sought in this case - where it would be dangerous to convict. In other words, where there would be a risk of a miscarriage of justice if the corroboration warning was not given.
Warnings of that kind are very commonly given where there is uncorroborated evidence by a complainant which is given a very long time after the events complained of, and when it is no longer possible to test the allegations forensically, and particularly where the complainant was very young at the time the offences are alleged to have been committed.
It is the experience of the courts in those circumstances that a child, on reaching adulthood, can be quite convinced that something happened which did not in fact happen, and there is therefore in those kinds of cases a real danger that a jury may convict on evidence which is totally honest but completely wrong.
In the present case, the learned trial Judge declined to give a Longman warning. But his Honour did direct the jury so as to draw their attention to various matters which juries need to consider where uncorroborated evidence is given by a child, and particularly after a delay in complaining.
These matters were dealt with by the learned trial Judge in this way in his charge, and I pick up his Honour's charge at p 70 of the appeal book. First of all, relevantly, his Honour drew the jury's attention to the fact that:
"The complainant's statement to the police was about two years after the events he alleged in relation to count 2."
I pause to say again that count 1 was the earliest count in time, but it was the count about which the complainant himself gave no evidence, the evidence having been given by his sister. To go back to his Honour's charge, his Honour noted that:
"There was no evidence about when the sister spoke to the police in relation to that matter."
His Honour then said:
"There was a need to consider the evidence carefully, given the ages of the two witnesses at the time of the alleged events, the absence of any immediate complaint –"
and his Honour said that he would speak about that a little bit more later on, as he did, when he referred to:
"the absence of other evidence in each case in relation to the particular offences –"
and his Honour said:
"Bearing in mind the longer delay between the time of the alleged offence and a report of it, as you would know, the greater possibility of error and hence the need to consider the evidence carefully."
His Honour then went on to say:
"Delay does have an effect on an accused person's ability to test the allegations made by each of the two child witnesses."
That was the son and daughter. Again, his Honour reminded the jury that there was no evidence from the complainant about the offence alleged in count 1, and his Honour reminded the jury also that, in effect, although the complainant had said that his sister was present when the offences, the subject of counts 2 and 5, had been committed, the sister herself gave no evidence that she had been present.
His Honour then went on to refer to other matters bearing on the complainant's credibility. He pointed out to the jury that the complainant was not able to give specific evidence in relation to other matters. His Honour then went on to deal with the absence of a recent complaint and his Honour said - and I refer to p 73 of the transcript:
"Exceptionally, juries are permitted to hear if a complaint was made by the alleged victim of a sexual offence as soon as reasonably practicable after the offence occurred."
His Honour said:
"That is regarded as something that, as a matter of ordinary human experience, a jury is entitled to hear and is a relevant matter to take into account."
His Honour emphasised at p 74 that:
"The absence of a complaint is a fact relevant to a consideration of a complainant's evidence, although a delay in complaining did not necessarily indicate that an allegation that an offence had been committed was false."
Then a little later in his Honour's charge, starting at p 81, his Honour went through each of the counts and drew the attention of the jury to the matters put on the appellant's behalf by his counsel: in other words, pointing out to the jury the weaknesses in the prosecution case. His Honour pointed out that, in relation to count 1, the Crown allegation was that the offence had occurred at Beckenham, when the evidence was that it had occurred in Queens Park. There was evidence of inconsistency between the sisters about who had shared bedrooms at the material time.
In relation to count 2 on p 82, his Honour reminded the jury that the sister had not given evidence that she was in the room, and his Honour reminded the jury again of defence counsel's submission that the jury might have been expecting the sister to recall the offence had she then been present. His Honour reminded the jury of defence counsel's submission that that made the allegation in count 2 "very strange".
His Honour then went on to deal with count 3 and drew attention to the suggestion by defence counsel that the complainant had changed his mind in relation to the evidence bearing on that count on more than one occasion. His Honour made reference to count 4 and again "the difficulties", as he put it, with the complainant's evidence.
Again, in relation to count 5, there was the same difficulty: the complainant had said his sister was present, whereas she had not said anything about being there. His Honour reminded the jury that defence counsel had submitted that the jury should regard the complainant's allegations as figments of his imagination, that he brought about at somebody else's behest. That was because the complainant had not been able to give specific details and was vague about his evidence and was "all over the shop". That was the substance of the submission made by defence counsel, which his Honour properly reminded the jury about.
His Honour then said it was not necessary for him to summarise the evidence in any formal way - it was short; it had been referred to by counsel shortly before his Honour charged the jury - but his Honour concluded his charge by saying:
"Questions do arise, of course, as you would no doubt think, as to who is to be believed and, when you come to consider that question in any particular case, it is essential to have regard to what I have said to you as to the onus of proof and the standard of proof; to be aware that, even if you prefer the prosecution evidence, you are not entitled to act on it unless you are

satisfied as to both the truthfulness and the accuracy - that is, the reliability of the evidence."
Further, even if you do not positively believe the evidence of the accused person in relation to an issue, you are not entitled to be satisfied as to the Crown version of that issue if the accused person's evidence gives rise to a reasonable doubt in relation to the issue. And, members of the jury, even if you positively disbelieve the accused person on an issue - that is, if you are satisfied his evidence is untrue - you must of course still be satisfied as to the reliability of the prosecution evidence on the issue before you act on it."

In short, although his Honour did not direct the jury in the Longman form - that it would be dangerous to convict - his Honour, in my view, did emphasise to the jury all the factors which they needed to consider in order to avoid that danger.
As I have said, this was not a case of a complainant giving evidence about matters which had occurred many years before. It was not, therefore, a case which fell within the kind of cases or the category of cases to which the decision in Longman applies. His Honour was asked to give a Longman direction; his Honour gave consideration to that and declined to do so. In my view, his Honour was entirely justified in taking that course.
I am not persuaded, therefore, that there is any error in his Honour's direction and I would, therefore, dismiss the appeal.
MURRAY J: I agree. I would take the same course, and I also am not persuaded that there is any possibility that a miscarriage of justice has resulted in this case. In one sense, there is an element of oddity about it because although at the end of debate with counsel his Honour said that it was not his intention to give a Longman direction as such - he said he intended to speak about matters that the case of Longman would give rise to - and when, at the conclusion of his Honour's charge to the jury, defence counsel raised again the submission that a Longman style direction should have been given to the jury, his Honour said that he thought that he had spoken of many of the matters - most of the matters raised, if not all of them - in the Longman case. It is abundantly clear, of course, that Longman v The Queen (1989) 168 CLR 79 is concerned with the instruction and the warnings that should be given to a jury in a case where there is delay and a lack of corroboration of the evidence of the

complainant, circumstances which heighten the danger of conviction, where it is necessary to rely upon the evidence of a complainant alone, or almost so.

But the courts have made it clear over the years, and most recently in this Court in the case of Crisafio v The Queen (2003) 27 WAR 169, that there is no particular formula of words which the law lays down and requires in giving appropriate directions in circumstances such as those to which I have referred.
The important task of the trial judge is to ensure that the jury understand what are the limitations of the evidence, what are the forensic difficulties with which the accused person was confronted, and what are the dangers of misjudgment if great care and careful scrutiny is not applied to the evidence upon which reliance must necessarily be placed if a conviction is to be returned, or a verdict of guilty is to be returned.
In this case I am quite satisfied that his Honour, in words that have been discussed by Templeman J, very carefully and adequately adverted to all the relevant factors and circumstances to which the evidence in this case gave rise in its particular circumstances.
WHEELER J: I am in agreement with the reasons given by Murray and Templeman JJ, and there is nothing further I need to add.