B v The State of Western Australia
[2011] WASCA 114
•11 MAY 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: B -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 114
CORAM: McLURE P
BUSS JA
MAZZA J
HEARD: 14 APRIL 2011
DELIVERED : 11 MAY 2011
FILE NO/S: CACR 217 of 2010
BETWEEN: B
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :GROVES DCJ
File No :IND 807 of 2010
Catchwords:
Criminal law - Appeal against conviction - Whether summing-up fair and balanced - Turns on own facts
Legislation:
Nil
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr P B Cassidy
Respondent: No appearance
Solicitors:
Appellant: Anthony Hughes & Co
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Cooper v The State of Western Australia [2010] WASCA 190
Hill v The Queen [2003] WASCA 177
Johnson v The State of Western Australia [2008] WASCA 164
Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507
Murray v The Queen [2002] HCA 26; (2002) 189 ALR 40
McLURE P: This is an application for leave to appeal against conviction. The appellant was convicted after trial on two counts of indecent dealing with a child whom he knew to be his lineal relative and who was under the age of 16 years.
The complainant was the appellant's grand‑daughter who was 10 years old at the time of the offences. The video record of an interview of the complainant by police officers was tendered in evidence at trial as the complainant's evidence‑in‑chief. She gave evidence that she had awoken from her sleep in a bedroom at her grandparents' house to find her grandfather touching her vagina (count 1). He later returned to the complainant's bedroom and manipulated her hand so it touched his penis (count 2). The complainant testified that, after the appellant left the bedroom after count 2, she went down the hall to the bathroom to wash her hands. She did not wake her mother, who was sleeping in the next bedroom, to tell her what had happened. She told her mother the following day.
The appellant participated in an interview during a search of his house. He also gave evidence in his own defence at trial and called his wife to give evidence. The appellant admitted that he had gone into the complainant's bedroom that night to turn off her lamp but denied indecently dealing with her then or at any other time.
The only ground of appeal is that, taking the summing‑up as a whole, the trial judge directed the jury in a way that was unfair to the appellant. A trial judge has a duty to put the respective cases of the prosecution and the defence to the jury in a fair and balanced way: Hill v The Queen [2003] WASCA 177 [85].
The appellant contends there are five particulars, which taken individually or in combination, render the summing‑up unfair. First, it is contended that the trial judge implied that the jury should balance the reliability of the appellant's testimony with that of the complainant.
The implication in the submissions is that the jury may have regarded the trial judge as inviting the jury to decide which version of events to accept. That has the potential to mislead the jury as to the onus and burden of proof: Murray v The Queen (2002) 189 ALR 40; Liberato v The Queen (1985) 159 CLR 507, 515. A Liberato direction is not required as a matter of law: Cooper v The State of Western Australia [2010] WASCA 190 [38]. Such a direction should be given if, in the circumstances of the case, there is a real (not fanciful) risk that the jury may otherwise have the impression that disbelief of an accused's evidence, or preference for a complainant's evidence, means the State has proved its case beyond reasonable doubt: Cooper [38]; Johnson v The State of Western Australia [2008] WASCA 164 [14] ‑ [17].
After repeated directions (ts 142) to the effect that the State bore the onus of proving the charges beyond reasonable doubt, the trial judge directed the jury in this case that:
[B]efore you can convict, you have to be satisfied that [the complainant's] evidence is truthful, that it is honest, that it is reliable. You have to make an assessment as to her credibility. That is the reliability of her evidence (ts 143).
The trial judge then went on to explain what was involved in assessing credibility. He said:
And the judgment about the credibility of a witness is really a two fold exercise. It's necessary in making such a judgment to consider firstly the honesty of the witness and your impression of the honesty of that witness.
And it's also necessary to consider the reliability of what he or she says. What [the complainant] says and what [the appellant] has said. An honest witness can be a mistaken witness. So you need to bear that in mind (ts 144).
The trial judge also directed the jury that they 'must consider [the complainant's] evidence most carefully' (ts 145). The appellant's specific complaint is that the trial judge referred to both the complainant and the appellant on the issue of reliability. Both were witnesses whose reliability fell to be assessed. The complainant gave evidence that the appellant was very drunk on the night in question. There is no arguable unfairness in that direction. In oral submissions, counsel for the appellant said that aspect of the direction had to be read with the trial judge's direction concerning the evidence of the appellant. Referring to the appellant's interview with police the trial judge said:
I said earlier that [the appellant] ‑ he doesn't have to prove that he's innocent. He doesn't have to prove anything at all. He could if he had so wished, simply said to the interviewing police, 'I don't want to answer your questions', other than to give his name and address. That's his right. That's my right. That's your right.
Similarly, in court, he doesn't have to go into the witness box. He could have chosen not to give evidence and simply put the State to [proof] of the charges against him. But he did; he answered questions, he elected to give evidence. And so you can weigh up his evidence and bear that in mind. (emphasis added)
The appellant relies on the words in italics in support of the first particular. The trial judge closed his direction to the jury with a statement which commenced with the following:
The State urges you to the view that you can accept [the complainant's] evidence as being truthful and reliable. And that you can be satisfied beyond reasonable doubt that these events were not a dream, were not a nightmare but that, in fact, they did happen and that it was [the appellant] who committed the offences. On the other hand, of course, [the appellant] denies that there was any touching of the nature as set forth or as alleged.
If you're not satisfied beyond reasonable doubt as to the truthfulness and reliability of [the complainant's] evidence, then necessarily you would find the accused not guilty of the charges.
The jury could have been left in no doubt from the summing‑up as a whole that the appellant could not be convicted unless they were satisfied beyond reasonable doubt as to the truthfulness and reliability of the complainant's evidence. There is no error or any unfairness to the appellant in this aspect of the summing up.
Secondly, the appellant contends the trial judge directed the jury that they should disregard certain aspects of the complainant's make‑up and personality when assessing her evidence. The trial judge did no such thing.
The relevant aspect of the direction in its context is as follows:
As I said, you have to decide the facts in this case. And I'm merely suggesting an approach, which you might make to make that assessment of the evidence. The test in this respect is not to judge how smart [the complainant] appeared to be or how quick intellectually she was. Your task is to judge how reliable her evidence is. How honestly, in your view, she gave her evidence and how truthful, in other words, her complaint is.
The trial judge made a comment; he did not give a direction. Moreover, he did not tell the jury to disregard anything. The trial judge told the jury not to be diverted by the complainant's intelligence from their task, which was to make an assessment of her credibility. On a reading of the transcript of the video record of interview, the complainant impresses as an intelligent, observant, articulate child. The trial judge's comment, which was within the scope of permissible comment, was in my assessment to the appellant's advantage.
Thirdly, the appellant contends the trial judge inferred that the offending had actually taken place when directing on the complainant's failure to complain to her mother on the night of the offences.
The relevant aspect of the direction in its context is as follows:
The defence says to you, 'well, if these things did happen, then why didn't she go straightaway to her mother's bedroom to tell her mother what had happened?'
The defence is suggesting, 'well, there was a delay by [the complainant] in making the complaint'. But you have to look at the whole of the circumstances. It's the middle of the night, she's a young child, mother's asleep in the next room.
She knows mother has stress fits, she's not well in that respect. She's in the household of her grandparents. Her grandfather is there and he was the perpetrator of these events. She can't tell him in the morning, because he was there, after all.
It is clear from the immediate context of the statements and the direction as a whole that the trial judge was in substance explaining the position from the complainant's perspective. He was not, in his capacity as trial judge, saying that the appellant committed the offences. When the direction is considered as a whole, the contention is unsustainable.
Fourthly, the appellant contends the trial judge rehabilitated the complainant's evidence and suggested the offending did take place, when he told the jury 'for her, it was not a dream, it was not a nightmare'.
The direction in its context is as follows:
And she gave you an explanation as to why she didn't go into her mother's room. She was scared. She didn't want to wake mother in the middle of the night. And I suggest, you can imagine or picture the situation of a 10‑year‑old in those circumstances, never having been confronted in this way before. 'What do I do?' For her, it was not a dream, it was not nightmare.
She'd had dreams and nightmares previously, but this wasn't an event such as that, when she might have gone into her mother's bed, as she had done on previous occasions when she had had a dream or a nightmare.
It is apparent that the trial judge is again doing no more than giving the complainant's explanation for why she did not wake her mother to tell her of what had occurred. She said she was sure she had not dreamed that the offences had occurred because she had seen it (ts 43) and that she did
not go to her mother because she was scared and she did not want to scare her mother in the middle of the night 'because she can get seizures' (ts 36).
Finally, the appellant complains that the trial judge unnecessarily pointed out that the appellant's video record of interview was not made on oath. After explaining that the appellant did not have to participate in the video, the trial judge continued:
But he does answer questions and you can have regard to his answers; of course that interview he was not on oath. And so you may or may not attach any more significance or weight to what he said in the course of that interview. You'll bear in mind that he made certain admissions. But consistent with his evidence in court, he denied that he offended in the way which has been alleged.
It cannot be relevantly unfair to state what in fact was the case, being that the interview was not on oath. In any event, the trial judge left open the possibility that the jury could give more significance or weight to what was said in that interview.
The appellant has no reasonable prospect of establishing that the five matters, individually or in combination, rendered the summing up unfair to the appellant. Further, trial counsel for the appellant must not have perceived any unfairness, as he sought no redirection.
Leave to appeal should be refused and the appeal dismissed.
BUSS JA: I agree with McLure P.
MAZZA J: I agree with McLure P.
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