Bennie v The Queen
[1999] WASCA 238
•5 NOVEMBER 1999
BENNIE -v- R [1999] WASCA 238
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASCA 238 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:132/1999 | 1 OCTOBER 1999 | |
| Coram: | MURRAY J SCOTT J STEYTLER J | 5/11/99 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Extension of time grantedApplication for leave to appeal refused | ||
| PDF Version |
| Parties: | CHARLIE BENNIE THE QUEEN |
Catchwords: | Criminal law and procedure Trial of charge of sexual assault Complainant aged 11years at trial Evidence properly received unsworn and in form of written statement Allegation of inadequacy of cross-examination by counsel not made out. |
Legislation: | Evidence Act 1906 s 106H, s 106C |
Case References: | Attorney General's Reference No 1 of 1999 [1999] WASCA 53 Cameron v R (1990) 2 WAR 1 Revesz (1996) 88 A Crim R 253 David v R, unreported; CCA SCt of WA; Library No 970082; 4 March 1997 Gavin v R (1992) 6 WAR 195 Grindrod v R [1999] WASCA 44 Hamilton v R, unreported; CCA SCt of WA; Library No 970082; 4 March 1997 HG v R (1999) 160 ALR 554 Suresh v R (1998) 153 ALR 145 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : BENNIE -v- R [1999] WASCA 238 CORAM : MURRAY J
- SCOTT J
STEYTLER J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Trial of charge of sexual assault - Complainant aged 11years at trial - Evidence properly received unsworn and in form of written statement - Allegation of inadequacy of cross-examination by counsel not made out.
Legislation:
Evidence Act 1906 s 106H, s 106C
Result:
Extension of time granted
Application for leave to appeal refused
(Page 2)
Representation:
Counsel:
Applicant : Ms C S Amsden
Respondent : Mr B Fiannaca
Solicitors:
Applicant : Director of Legal Aid
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Attorney General's Reference No 1 of 1999 [1999] WASCA 53
Cameron v R (1990) 2 WAR 1
Revesz (1996) 88 A Crim R 253
Case(s) also cited:
David v R, unreported; CCA SCt of WA; Library No 970082; 4 March 1997
Gavin v R (1992) 6 WAR 195
Grindrod v R [1999] WASCA 44
Hamilton v R, unreported; CCA SCt of WA; Library No 970082; 4 March 1997
HG v R (1999) 160 ALR 554
Suresh v R (1998) 153 ALR 145
(Page 3)
1 MURRAY J: In this case I have had the advantage of access to the reasons to be published by Scott J with which I am in entire agreement.
2 I only wish to add that in respect of ground 1, the complaint that defence counsel at trial failed to properly cross-examine the complainant, in my opinion counsel is not established to have failed to perform his forensic duties competently so as to deprive the applicant of a chance of acquittal and give rise to a miscarriage of justice. On the contrary, it seems to me that having regard to the matters to which Scott J has referred, the course adopted by counsel at trial was, in the difficult circumstances of the case, that which was best calculated to advance the position of the applicant. The course advocated by counsel for the applicant on the appeal was in my opinion fraught with danger from a forensic point of view.
3 Counsel at trial was well advised to endeavour to persuade the jury that because the complainant had been unable to testify directly to the sexual penetration at trial, and because some crucial words in the statement in an Aboriginal language were admitted to be those of the interviewing police officer rather than the child herself, they should not rely upon that evidence to establish the fact of penetration beyond reasonable doubt. The evidence mentioned above was the only evidence capable of establishing that fact (albeit a degree of corroboration was to be found in the medical evidence) and this was the crucial issue between the prosecution and the defence at the trial.
4 Although I too would grant the applicant the necessary extension of time to enable the questions raised on the application for leave to appeal to be considered by this Court, I would refuse that leave.
5 SCOTT J: The applicant was charged on indictment that on or about 30 April 1997 at Halls Creek, he sexually penetrated the complainant in the matter, a child under the age of 13 years. He pleaded not guilty to that charge, which was tried in the District Court at Broome on Wednesday, 7 October 1998. After a short trial the applicant was convicted.
6 The complainant testified that she was born on September 25, 1987, a date of birth supported by her mother.
7 As at the date of the incident alleged in the indictment, the complainant was then aged 9 years and 7 months.
8 At the trial, counsel for the prosecution encountered difficultly in leading the complainant's evidence. She was by then aged 11 years. After
(Page 4)
some inquiry the learned trial Judge determined that the complainant was not competent to take the oath and her evidence was received unsworn.
9 The complainant was able to give some evidence about the incident the subject of the indictment. In particular, she testified that when the incident occurred she was asleep on a mattress on the floor of a lounge room when she was awoken by somebody on top of her. She said that she knew it was a man and when she woke she realised her clothing had been taken off and she screamed. She said that the man was putting his hand on her mouth and was holding her. When she was asked the specific question, "He was on you and doing what?" she answered, "Naughty things." She was asked "Naughty things, can you tell us what those naughty things were?" and it is apparent from the transcript that whilst she acknowledged that she knew what the naughty things were, she was unable to testify further in relation to that matter.
10 At that stage, the learned trial Judge said in the absence of the jury:
"Hammond CJDC: This is becoming a little sad actually, Mr O'Sullivan, and distressing.
Mr O'Sullivan: It is indeed your Honour.
Hammond CJDC: I can see it's almost beginning to distress at least some of the jury.
O'Sullivan Mr: Yes.
Hammond CJDC: I don't know whether you are going to get very far.
O'Sullivan Mr: I don't think I am, without doing more damage than one should probably endeavour to do from this position."
11 Counsel then sought to adduce the applicant's statement in evidence under s 106H of the Evidence Act 1906, which provides:
"106H(1) In any schedule 7 proceeding, a relevant statement may, at the discretion of the Judge, be admitted in evidence if -
(a) there has been given to the defendant -
(i) a copy of the statement; or
(Page 5)
- (ii) if the statement is not recorded in writing or electronically, details of the statement; and
- (b) the defendant is given the opportunity to cross-examine the affected child."
12 It is common ground that these proceedings were Sch 7 proceedings. It is also common ground that the applicant had been provided with a copy of the statement by his counsel, . The transcript reveals that counsel for the applicant was given the opportunity of cross-examining the child. All the requirements of s 106H had been met.
13 Counsel for the applicant cross-examined the complainant, who said that the words in the statement were her words, except for the words in the Aboriginal language for male and female genitalia. The complainant was not cross-examined about penetration and whether or not penetration had occurred but agreed that the statement that she made to the police was the truth.
14 Other evidence was called on behalf of the prosecution from Dr Benjamin John Alexander Burford, who examined the complainant shortly after the incident and discovered a single right inner labial abrasion near the introitus, 1.5 cms x 0.5 cms in size. The abrasion was less than one day old. The doctor said in his evidence-in-chief that such an injury was "consistent with penile penetration and the alleged assault". In cross-examination Dr Burford said that he had seen such injuries before in relation to penile penetration but he had not seen it from any other cause.
15 It was clear that if the jury accepted the doctor's evidence, there was evidence capable of corroborating the complainant's account set out in her statement.
16 The learned trial Judge was very careful in his summing up to warn the jury of the need to look at the evidence of the complainant with caution, because the complainant's evidence was not given on oath. As will be revealed later in these reasons, there is no challenge to the Judge's summing up in that respect.
17 The learned trial Judge specifically pointed to the need for "most careful scrutiny" and told the jury that they should "look at it very carefully and before you can act upon it, before you can accept it as the whole truth, you must be satisfied beyond reasonable doubt of the
(Page 6)
- essential parts of it. The essential parts of it here are the fact of penetration of the girl by the accused." See Attorney General's Reference No 1 of 1999 [1999] WASCA 53.
18 The two grounds of appeal are:
"1 A miscarriage of justice occurred in that the applicant was denied a chance of acquittal because of the failure of defence counsel to properly cross-examine the complainant after the admission of her statement pursuant to s 106H of the Evidence Act 1906.
2 The learned trial Judge erred in law in failing to properly inquire whether the complainant was able to give an intelligible account of events which she had observed or experienced pursuant to s 106C of the Evidence Act 1906."
19 In developing the submissions on the first ground of appeal, it is to be noted that there was no challenge made to the exercise of the discretion by the learned trial Judge to permit the complainant's statement to go into evidence under the provisions of s 106H of the Evidence Act. The ground of appeal is specifically directed to what was said to be the failure of defence counsel to properly cross-examine the complainant after the statement had been admitted into evidence. In that respect, it is to be noted that counsel for the applicant at trial was in a singularly difficult position. The complainant had been unable or unwilling to testify about the specific acts performed upon her and it was on that basis that the statement was admitted into evidence. Cross-examination directed to that area may have resulted in the complainant giving direct evidence as to what had happened to her. Counsel for the applicant focussed upon the way in which the statement was taken and as to whether the wording in the statement was the complainant's or the police officers'.
20 It is apparent from the way in which the trial was conducted that counsel for the applicant dealt with the cross-examination in a sensitive and responsible manner, mindful of the difficulties of the complainant and of the risk that he may have strengthened the prosecution case if he pressed the complainant on the critical area of penetration.
21 The applicant gave evidence and admitted that he was present at the house where the incident occurred but denied that he had either removed the girl's clothing or penetrated her. In cross-examination, the applicant
(Page 7)
- again denied having removed the complainant's clothing and that penetration had occurred.
22 Notwithstanding the Judge's warning, the jury convicted the applicant.
23 As the grounds of appeal were developed, counsel for the applicant submitted that at trial other matters should have been put to the complainant. In particular, there should have been cross-examination of the complainant about the discrepancy between her actual age and the age as shown in the statement. There should have been cross-examination directed towards whether penetration had occurred. Counsel submitted that there should have been cross-examination as to how certain words came to be in the statement that were not the complainant's words.
24 It was contended by the applicant's counsel that the way in which the matter was approached by counsel at trial was not the result of a tactical decision. With that submission, I respectfully disagree. In my opinion, counsel for the applicant at trial had a very difficult decision to make. As I have said, had the complainant been pressed on the vital issue of penetration, the prosecution case may have become considerably stronger. At that stage there was no direct viva voce evidence from the complainant that she had been penetrated, apart from her general affirmation of the truth of the contents of the statement admitted into evidence. In my view, counsel for the applicant made a tactical decision not to press the complainant in relation to this critical area. That was an approach properly open to him: Cameron v R (1990) 2 WAR 1 per Malcolm CJ at 6.
25 That is sufficient to deal with the first ground of appeal, which in my opinion is without substance and should be dismissed.
26 The second ground of appeal related to the decision of the learned trial Judge to receive evidence from the complainant not on oath. The transcript reveals that the learned trial Judge spent some time talking with the complainant to ascertain her level of schooling, her degree of intelligence and her understanding of the court process. The learned trial Judge went to some pains to ascertain whether the complainant understood her obligation to speak truthfully about what had happened, and came to the conclusion, which was in my view properly open to him, that the complainant was not competent to take the oath. As a consequence, the learned trial Judge decided to take the complainant's evidence unsworn. I have reviewed the questions asked by the trial Judge
(Page 8)
and the answers obtained by him to the questions that he asked in this area and I can see nothing in those questions and answers which could lead to any conclusion other than that the learned trial Judge was quite correct in his conclusion, that the complainant's evidence should be taken without her having being sworn: Revesz (1996) 88 A Crim R 253 per Owen J at 260.
27 I would emphasise that there is no ground of appeal which challenges the discretion of the learned trial Judge to admit into evidence the statement made to the investigating police by the complainant. No argument has been directed towards the exercise of that discretion and no ground of appeal reflects upon that area. In addition, there is no ground of appeal which challenges the summing up of the learned trial Judge or the warning that he gave to the jury as to how the evidence of the complainant should be utilised.
28 In my opinion, the two grounds of appeal have not been made out and as no other aspects of the trial are challenged by the grounds of appeal, none of those grounds are established.
29 I would add that there is an application to extend time for the lodging of the appeal based upon an affidavit of the applicant, sworn 21 June 1999, which explains why there was a delay in the lodging of the application for leave to appeal. It would appear that such delay as there was, occurred because of the delay in obtaining approval from the Aboriginal Legal Service in providing the applicant with a notice of application for leave to appeal and extension of time. In my opinion, the delay, has been satisfactorily explained by the affidavit of the applicant, bearing in mind the difficulties arising from the applicant's background and the fact that the trial took place in Broome.
30 I would grant an order extending time to the date upon which the notice of appeal was lodged, but would refuse leave to appeal.
31 STEYTLER J: I have had the advantage of reading the reasons for decision proposed to be published by Scott J. I agree with them and with his Honour's conclusions that an order extending time should be granted but that leave to appeal should be refused. I have nothing to add.
0
6
1