"B" v The State of Western Australia
[2006] WASCA 214
•26 OCTOBER 2006
"B" -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 214
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 214 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:21/2006 | 6 OCTOBER 2006 | |
| Coram: | STEYTLER P ROBERTS-SMITH JA McLURE JA | 26/10/06 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | "B" THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against convictions Whether trial Judge erred in not giving corroboration warning Evidence Act 1906 (WA) s 50 Where "Longman" direction given Additional warning not required in circumstances Criminal law Appeal against convictions Whether trial Judge failed to adequately direct about danger of concoction or collusion between two complainants Turns on own facts |
Legislation: | Evidence Act 1906 (WA), s 50 |
Case References: | Hamilton v The Queen, unreported; CCA SCt of WA; Library No 970082; 4 March 1997 Hickey v The Queen (2002) 136 A Crim R 150 Hoch v The Queen (1988) 165 CLR 292 Longman v The Queen (1989) 168 CLR 79 R v Murray (1987) 11 NSWLR 12 White v The Queen [2006] WASCA 62 Donaldson v Western Australia (2005) 31 WAR 122 R v BWT (2002) 54 NSWLR 241 R v Folli [2000] NSWCCA 460 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : "B" -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 214 CORAM : STEYTLER P
- ROBERTS-SMITH JA
McLURE JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : WILLIAMS DCJ
File No : IND 223 of 2005
Catchwords:
Criminal law - Appeal against convictions - Whether trial Judge erred in not giving corroboration warning - Evidence Act 1906 (WA) s 50 - Where "Longman" direction given - Additional warning not required in circumstances
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Criminal law - Appeal against convictions - Whether trial Judge failed to adequately direct about danger of concoction or collusion between two complainants - Turns on own facts
Legislation:
Evidence Act 1906 (WA), s 50
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr S B Watters
Respondent : Ms L Petrusa
Solicitors:
Appellant : Thames Legal
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Hamilton v The Queen, unreported; CCA SCt of WA; Library No 970082; 4 March 1997
Hickey v The Queen (2002) 136 A Crim R 150
Hoch v The Queen (1988) 165 CLR 292
Longman v The Queen (1989) 168 CLR 79
R v Murray (1987) 11 NSWLR 12
White v The Queen [2006] WASCA 62
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Case(s) also cited:
Donaldson v Western Australia (2005) 31 WAR 122
R v BWT (2002) 54 NSWLR 241
R v Folli [2000] NSWCCA 460
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1 STEYTLER P: Following a trial by jury, the appellant was convicted on three counts of indecent dealing. Two of these related to a child, "S", who was then under the age of 13 years. The third count related to another child, "D", who was then aged between 13 and 16 years. S and D were cousins, the appellant having been their uncle.
2 The offences concerning S were respectively said to have been committed between 24 December 1996 and 4 November 1997 (when she was 8 years old) and between 14 April 2000 and 16 April 2001 (when she was 12 years old). She made no complaint to anyone about what had happened to her until much later. The State case relied exclusively upon her evidence of what had occurred.
3 The offence concerning D was said to have occurred between 5 and 12 January 2003, when she was 14 years old. She and her sister, "M", were staying at the appellant's home at the time of the alleged indecent dealing. D slept on a sofa bed in the games room and M slept nearby, on the floor. D's evidence was that the appellant came into the room, gave her a hug and then put his hand under her singlet and squeezed her breast. He asked her whether that was "okay". She said that it was not and he removed his hand and left the room. D said that she immediately told M what had happened. M confirmed D's evidence in this last respect. M also confirmed that the appellant had been with D immediately before she made the complaint, although she had not seen what the appellant did to D.
4 In her evidence, D said that, on the following day, she and S had gone shopping. She told S what had happened. She said that she did not tell any adults because she did not think that they would believe her.
5 No complaint was made to the police in respect of any of the matters the subject of counts 1, 2 and 3 until August 2004, when complaints in respect of each of those counts were made.
6 There are two grounds of appeal. At the conclusion of argument on the appeal, the Court was unanimously of the opinion that neither had been made out and that the appeal should consequently be dismissed. It made that order, saying that reasons would be published later. These are my reasons for arriving at that conclusion.
Ground 1
7 Ground 1 relates only to the counts concerning S. It is to the effect that the trial Judge failed adequately to direct the jury that, as S was the
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- only witness to the events charged, her evidence "should be scrutinized with great care". This is said to have resulted in a substantial miscarriage of justice.
8 Section 50 of the Evidence Act 1906 (WA) provides that a "corroboration warning" as defined by that section is not to be given unless the trial Judge is satisfied that the circumstances justify a warning of that kind. The section reads as follows:
"(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."
"Since grounds of appeal based upon a failure to give a 'full corroboration warning' are common in this Court … it is important to make it clear that such a ground is not a proper ground of appeal. The question for this Court is not whether a direction conforms to what has, at common law, been regarded as an appropriate direction … nor is it whether, tested against those common law requirements, the direction is 'good enough', even if not entirely conventional. Rather, the question is, having regard to s 50 of the Evidence Act, read in the light of authority relevant to its proper construction, whether there are particular identified circumstances which not only justify, but require, a warning of a particular identified character … "
10 However, counsel for the appellant contended that the circumstances of this case, so far as counts 1 and 2 are concerned (particularly the fact that S had been so young at the time of the alleged offences and the length
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- of time since they were said to have occurred) were such as to require a warning of the kind discussed in R v Murray (1987) 11 NSWLR 12, to the effect that, where there is only one witness asserting the commission of a crime, the evidence of that witness must be scrutinized with great care before relying upon it to convict the accused person.
11 In fact, the trial Judge gave the jury the following warning, being one of the kind discussed in Longman v The Queen (1989) 168 CLR 79:
"[B]ecause of the time lapse, it is important to bear in mind that you must scrutinize the evidence of each of [S] and [D] with great care and you must be satisfied as to its truth and accuracy. We all know that our recollections can be fallible and of the effects of imagination or prejudice or suggestion on our capacity to remember. The longer a period between an event and its recall, the greater the margin for error. When you come to consider the essential evidence of each of the complainants you should scrutinize it with great care and exercise considerable caution before acting upon it.
Of course, if it passes all the tests which I have put to you, it is evidence which you can accept, but before you do so you must scrutinize it with great care. As the evidence of each of the complainants could not be adequately tested after the passage of time to which I have referred, it would be dangerous to convict on that evidence alone unless you scrutinize the evidence with great care, consider the circumstances relevant to its evaluation and pay heed to my warning. If after such careful scrutiny you are satisfied as to the truth and accuracy of the evidence, then you may act upon it."
- He then went on to deal with other aspects of the so-called "Longman" warning, pointing out the difficulties that the delay might have caused the appellant in recalling what had happened at the time of the alleged offences and in producing any evidence that might support his claim of innocence.
12 There was consequently a very strong warning to the jury that they should not convict the appellant on any count without scrutinizing the evidence in respect of it (in S's case, being only her own evidence) with great care and bearing in mind that, because of the passage of time between the alleged events and the date upon which the appellant was first confronted with them, it would be dangerous to convict on that evidence alone. In that circumstance, and while it is true that the trial Judge did not
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- specifically direct the warning given by him also to the fact that the evidence of S was uncorroborated, it seems to me that it was unnecessary for him to have done so. The warning that was given made it abundantly plain to the jury that it would be dangerous to convict on S's evidence alone, without scrutinizing it with great care. The fact that that was done in the context of a "Longman" direction and not also in the context contended for by counsel for the appellant is not, in my opinion, a circumstance sufficient to justify an additional warning of the kind contended for. This is especially so when regard is had for the fact that the trial Judge also pointed out to the jury (transcript 128) that "nobody is said to have seen these alleged offences so in each case it’s a question of looking at the evidence of each of the complainants each of whom says that these things have occurred". He added (transcript 129) that, in relation to S, the prosecutor had accepted that the State had no other evidence.
13 Ground 1 consequently fails.
Ground 2
14 Ground 2 is to the effect that the trial Judge failed adequately to direct the jury about the danger of collusion between the two complainants "and the need to therefore scrutinize their evidence, merely directing them it was something they should bear in mind … ".
15 In his summing up, (transcript 124), the trial Judge mentioned D's evidence to the effect that, on the day following the alleged indecent dealing with her, she had gone shopping with S and had told S what had happened. He went on to say:
"So you have two cousins who have obviously discussed this matter. It was not put … on behalf of the accused … that they had either got together, colluded or concocted this matter but an accused person has no obligation to establish that. But the fact that they have discussed this matter together needs to be something that you bear in mind."
16 The evidence of this conversation between the two cousins is all that is relied upon by the appellant in support of the contention that a stronger direction was required. There was nothing else that could be relied upon. There was no evidence to suggest that there had, in fact, been any collusion or concoction or that either of the complainants had a motive to concoct an allegation of the kind made against the appellant. Importantly, as the trial Judge pointed out, it was never put to either of the
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- complainants that there had been any collusion or concoction. In these circumstances, and taking into account that the trial Judge asked the jury to bear in mind that the two complainants had discussed the "matter", no further direction was required: see Hamilton v The Queen, unreported; CCA SCt of WA; Library No 970082; 4 March 1997; Hickey v The Queen (2002) 136 A Crim R 150.
17 Ground 2 has consequently not been made out.
18 ROBERTS-SMITH JA: I agree with the President.
19 With respect to ground 2, counsel for the appellant initially said his argument was not that the trial Judge should have given what may be described as a "concoction direction", but was rather that, having decided to give a direction about concoction, the one he gave was inadequate in the circumstances. Pressed further about that, counsel then adopted the position that a concoction direction was required and failure to give one would have been an error of law.
20 Neither position is tenable. There was no requirement for his Honour to give such a direction in the circumstances of this case. There was no suggestion of antipathy by the girls towards the appellant (cfHoch v The Queen (1988) 165 CLR 292) nor motive nor any evidence raising a realistic possibility of concoction (Hamilton v The Queen, unreported; CCA SCt of WA; Library No 970082; 4 March 1997). Furthermore, no such suggestion was ever put to either girl in cross-examination. The direction in fact given by the trial Judge was entirely apt to the circumstances of the case and the issues as they emerged at trial.
21 McLURE JA: I agree with Steytler P.
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