Blight v The Queen
[2001] WASCA 122
•20 APRIL 2001
BLIGHT -v- THE QUEEN [2001] WASCA 122
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 122 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:164/1999 | 19 APRIL 2000 | |
| Coram: | KENNEDY J WALLWORK J MURRAY J | 20/04/01 | |
| 42 | Judgment Part: | 1 of 1 | |
| Result: | Applications for leave to appeal against convictions and sentences granted Conviction on count 11 quashed Subject thereto appeals against convictions and sentences dismissed | ||
| PDF Version |
| Parties: | RAYMOND MICHAEL BLIGHT THE QUEEN |
Catchwords: | Criminal law and procedure Sexual offences Directions regarding evidence of relationship Sufficiency of Longman direction Late amendment to one count without recalling complainant for further cross-examination Whether verdicts unsafe and unsatisfactory Criminal law and procedure Sentencing Sexual offences Effective head sentence of 8 years for 10 offences not set aside as excessive |
Legislation: | Nil |
Case References: | Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 Browne v Dunn (1894) 6 R 67 Doney v The Queen (1990) 171 CLR 20 Gill v Pace, unreported; FCt SCt of WA; Library No 2196-77; 4 November 1977 Gipp v The Queen (1998) 194 CLR 106 Jarvis v The Queen (1993) 20 WAR 201 Kailis v The Queen (1999) 21 WAR 100 KRM v The Queen [2001] HCA 11 Longman v The Queen (1989) 168 CLR 79 MacKenzie v The Queen (1996) 190 CLR 348 Mancini v Ward, unreported; SCt of WA (Scott J); Library No 970182; 28 April 1997 Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482 R v Apostilides (1984) 154 CLR 563 R v Birks (1990) 19 NSWLR 677 R v BJW (2000) 112 A Crim R 1 R v Davey (1960) 45 Cr App R 11 R v Greenfield (1973) 57 Cr App R 849 R v H (1995) 83 A Crim R 402 R v Jacobs (1993) 2 Qd R 541 R v Udechuku [1982] WAR 21 R v West [1948] 1 KB 709 Tovey v Ferre [1981] WAR 21 Walker v Walker (1937) 57 CLR 630 Forbes v The Queen, unreported; CCA SCt of WA; Library No 950226; 20 February 1995 Gill v The Queen [1999] WASCA 68 Kilby v The Queen (1973) 129 CLR 460 Kilner v The Queen [1999] WASCA 189 King v The Queen (1986) 161 CLR 423 R v Lorkin (1995) 15 WAR 499 Smedley v The Queen, unreported; CCA SCt of WA; Library No 990146; 23 March 1999 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : BLIGHT -v- THE QUEEN [2001] WASCA 122 CORAM : KENNEDY J
- WALLWORK J
MURRAY J
- CCA 189 of 1999
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Sexual offences - Directions regarding evidence of relationship - Sufficiency of Longman direction - Late amendment to one count without recalling complainant for further cross-examination - Whether verdicts unsafe and unsatisfactory
Criminal law and procedure - Sentencing - Sexual offences - Effective head sentence of 8 years for 10 offences not set aside as excessive
Legislation:
Nil
(Page 2)
Result:
Applications for leave to appeal against convictions and sentences granted
Conviction on count 11 quashed
Subject thereto appeals against convictions and sentences dismissed
Representation:
Counsel:
Applicant : Mr G A Lacerenza
Respondent : Mr R E Cock QC
Solicitors:
Applicant : G A Lacerenza & Associates
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983]
1 NSWLR 1
Browne v Dunn (1894) 6 R 67
Doney v The Queen (1990) 171 CLR 20
Gill v Pace, unreported; FCt SCt of WA; Library No 2196-77; 4 November 1977
Gipp v The Queen (1998) 194 CLR 106
Jarvis v The Queen (1993) 20 WAR 201
Kailis v The Queen (1999) 21 WAR 100
KRM v The Queen [2001] HCA 11
Longman v The Queen (1989) 168 CLR 79
MacKenzie v The Queen (1996) 190 CLR 348
Mancini v Ward, unreported; SCt of WA (Scott J); Library No 970182;
28 April 1997
Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482
R v Apostilides (1984) 154 CLR 563
R v Birks (1990) 19 NSWLR 677
R v BJW (2000) 112 A Crim R 1
R v Davey (1960) 45 Cr App R 11
R v Greenfield (1973) 57 Cr App R 849
R v H (1995) 83 A Crim R 402
R v Jacobs (1993) 2 Qd R 541
R v Udechuku [1982] WAR 21
(Page 3)
R v West [1948] 1 KB 709
Tovey v Ferre [1981] WAR 21
Walker v Walker (1937) 57 CLR 630
Case(s) also cited:
Forbes v The Queen, unreported; CCA SCt of WA; Library No 950226;
- 20 February 1995
Kilby v The Queen (1973) 129 CLR 460
Kilner v The Queen [1999] WASCA 189
King v The Queen (1986) 161 CLR 423
R v Lorkin (1995) 15 WAR 499
Smedley v The Queen, unreported; CCA SCt of WA; Library No 990146;
- 23 March 1999
(Page 4)
1 KENNEDY J: The applicant was presented in the District Court in Perth on what was described as an amended indictment containing 12 counts, comprising 10 counts of having sexually penetrated C, a child under the age of 16 years whom he then knew to be his de facto child, contrary to s 329(2) of the Criminal Code (WA), and 2 counts of having indecently dealt with C, a child under the age of 16 years whom he then knew to be his de facto child, contrary to s 329(4) of the Criminal Code (WA). The offences were alleged to have been committed between 1 May 1993 and 18 February 1994. The applicant was found not guilty on the final count of sexual penetration, but he was convicted on each of the other counts. He was sentenced to an effective head sentence of 10 years' imprisonment. He was made eligible for parole in respect of each sentence.
2 The applicant seeks leave to appeal against his convictions and against his sentences. The grounds upon which the applicant desires to appeal against his convictions are many and varied. I consider them in the order in which they appear in the notice of application for leave to appeal, using the lettering and numbering system adopted in the application.
3 The background to this trial was unusual. The complainant, C, who was born on 17 September 1985, was at all material times living with her mother, G, her younger brother, A, who was born on 24 July 1987, and the applicant. The applicant had been living in a de facto relationship with G since 1989.
4 In or about the beginning of 1994, when C was aged eight, she made certain allegations to a next door neighbour, Ms M K Rusiecki, about her having been sexually abused. She subsequently spoke to the police and made a statement concerning a number of sexual offences alleged to have been committed against her by the applicant. C had not told her mother about these matters. Ms Rusiecki informed G as to what she had been told by C and, as a result, G and her two children moved from their then home to a place in Girrawheen. The applicant did not accompany them.
5 The evidence of C was that her mother, after they had moved to Girrawheen, was upset and crying all the time because she was missing the applicant. She kept asking C whether or not her complaints were true. C had the impression that her mother was on the applicant's side; but she said that she felt bad at having upset her mother, and that, as a result, she went back to the police and told them that what she had previously said to them "was lies". The idea of her going back to the police was said by her to be that of her mother. Her mother conceded in her evidence that she
(Page 5)
- had told C that she would be asked questions by the applicant's lawyer, and that he might give her a hard time. She added that the applicant might go to prison. But she also told C that it was important that she tell the truth.
6 C agreed that she had made up reasons as to why she had told the police what was in her first statement, saying that she had seen "dirty books" at the home of Tim, one of the applicant's friends, and that she had wanted to get back at the applicant for hitting her. She claimed that her mother had told her to give these explanations to the police. The evidence was that G had gone to the police with C. C was not extensively cross-examined on her evidence and, in particular, there was no challenge to her evidence-in-chief regarding the explanation she had given the police for retracting her initial allegations.
7 In the meantime, complaints had already been made, and a preliminary hearing had been arranged for 5 July 1994. Acting on what C had now told the police, the prosecution called no evidence at the hearing, and the Magistrate purported to dismiss the complaints. A Magistrate conducting a preliminary hearing, however, has no power to dismiss a complaint. His power, if the evidence is not sufficient to put the defendant upon his trial, is to be found in the Justices Act 1902 (WA), s 106, which provides as follows:
"When, on a preliminary hearing, all the evidence offered upon the part of the prosecution against a person charged with an indictable offence, as such, has been heard, if the justices then present are of opinion that it is not sufficient to put the defendant upon his trial for any indictable offence, the justices shall forthwith order the defendant, if he is in custody, to be discharged as to the complaint then under inquiry."
- There was no evidence that the applicant was in custody at this time. He had, in fact, on the face of the complaints, been granted bail. The power to discharge a defendant as to a complaint is only exercisable when the defendant is in custody.
8 The term "justices" is defined in the Justices Act 1902 (WA), s 4, to include a Magistrate acting under s 33. The Magistrate conducting the preliminary hearing was so acting. In Tovey v Ferre [1981] WAR 21, Jones J held that the Magistrate had no power to dismiss a complaint in a preliminary hearing, and that the dismissal was a nullity. This decision was followed by Scott J in Mancini v Ward, unreported; SCt of WA (Scott J); Library No 970182; 28 April 1997 . And see also Gill v Pace,
(Page 6)
- unreported; FCt SCt of WA; Library No 2196-77; 4 November 1977. Counsel for the applicant also sought to rely upon the Justices Act 1902 (WA), s 142, claiming that the endorsement by the Magistrate of "Dismissed" on the relevant complaint amounted to a certificate of dismissal under that section. It was not capable of doing do. No certificate under s 142 was in fact given to the applicant; but, more importantly, s 142, being concerned only with the trial of simple offences, had no application in this case.
9 After a short time, the applicant moved back to live with G, while C was placed in the care of an uncle and an aunt. C subsequently spoke to the police again concerning her initial complaints against the applicant, telling them that what she had said the first time had been the truth. It appears that fresh complaints were then made, and an indictment containing 16 counts was later presented in the District Court, the applicant having elected to proceed straight to trial without a preliminary hearing.
10 The first four counts in the indictment, which was dated 13 July 1998, were as follows:
(1) On a date unknown between 31 August 1991 and 1 August 1992 at Hazelmere, Raymond Michael Blight sexually penetrated C, a person under the age of 16 years, without her consent, by introducing his penis into the mouth of C;
(2) And in the alternative to count 1, that on a date unknown between 31 July 1992 and 31 July 1993 at Hazelmere, Raymond Michael Blight sexually penetrated C, a child under the age of 16 years, whom he then well knew to be his de facto child, by introducing his penis into the mouth of C;
(3) And further, that on a date unknown between 31 August 1991 and 1 August 1992 at Hazelmere, Raymond Michael Blight unlawfully and indecently assaulted C, a person under the age of 16 years, by making her touch his penis;
(4) And in the alternative to count 3, that on a date unknown between 31 July 1992 and 31 July 1993 at Hazelmere, he indecently dealt with C, a child under the age of 16 years, whom he then well knew to be his de facto child, by making her touch his penis.
(Page 7)
11 The first and third counts were noted as being in breach of s 324E and s 324C of the Criminal Code (WA) respectively, and the second and fourth counts were noted as being in breach of s 329(2) and s 329(4) respectively.
12 The evidence of C and A was pre-recorded on a videotape on 18 December 1998. Prior to the arraignment of the applicant on 26 July 1999, the Crown prosecutor informed the learned trial Judge that the pre-recorded evidence had been carefully considered and that it was apparent that none of the first four counts on the original indictment could be established on C's evidence. The reason for this was that the Crown was unable to prove when the alleged offences had been committed, a matter which was critical to the establishing of the offences, the present s 329 of the Code having come into operation on 1 August 1992, when the former s 324E and s 324C were repealed. The Crown prosecutor then indicated that, rather than having an indictment containing four dead counts, he would seek leave to file an amended indictment which omitted the first four counts in the original indictment, together with, if thought necessary, a nolle prosequi in relation to the first four counts in the indictment. The remaining counts in the indictment were unchanged, except for count 11, which, instead of alleging that the applicant had placed his fingers in C's vagina, now alleged that he had performed cunnilingus upon her. The amended indictment bears the same date as the original indictment, although it was signed by a different Crown prosecutor.
13 Section 578 of the Criminal Code (WA) provides that, when a person charged with an indictable offence has been committed for trial, and it is intended to put him on his trial for the offence, the charge is to be reduced to writing in a document which is called an indictment. By s 585, except as stated in the section, an indictment must charge one offence only, and not two or more offences. The present charges come within one of the exceptions referred to in the section.
14 Section 581 of the Criminal Code (WA) relevantly provides that an officer appointed by the Governor to present indictments in any court of criminal jurisdiction may inform that court, by writing under his hand, that the Crown will not further proceed upon any indictment then pending in that court.
15 Counsel for the applicant told her Honour that, in principle, the Crown's proposal caused him no difficulty, but he suggested that the more appropriate measure would have been to present no evidence because,
(Page 8)
- considering the history of the matter, a nolle prosequi did not finalise the charges once and for all. Counsel then indicated, however, that he would accept a nolle prosequi unless her Honour had the power to dismiss the charges. He was invited to point to some authority justifying the making of such an order, but he was unable to do so, and her Honour, sitting as a Judge alone, correctly taking the view that she had no power herself to dismiss the four charges in question, accepted the nolle prosequi. The procedure adopted in this case appears to have been irregular.
16 There has been a debate in this State as to whether the term "indictment" in s 581 of the Criminal Code (WA) refers to the individual charges in an indictment or whether it relates to all the charges in the indictment. The view which appears to have been adopted here for some years is that the word "indictment", as used in s 581, refers to each charge recorded on the paper, and this is the basis upon which the present Criminal Procedure Rules 2000 have been drafted, as to which, see form 5. If this view should be erroneous, the nolle prosequi tendered did not indicate that the Crown would not proceed further on the indictment, but purported to relate to only four of the 16 counts, and it was therefore not authorised by s 581.
17 The Criminal Code (Qld), prior to certain amendments made in 1997, had provisions which, for the present purposes, were identical with s 578, s 581 and s 585 of the Criminal Code (WA) - see s 560, s 563 and s 567 of the Queensland Code. In Gipp v The Queen (1998) 194 CLR 106, an appeal to the High Court from the Queensland Court of Appeal, it was conceded by the Crown that it was not permissible to enter a nolle prosequi with respect to some only of the counts in the indictment. At 129, McHugh and Hayne JJ observed that neither statute nor common law principle authorised the entry of a nolle prosequi in respect of individual counts in the indictment. They held, however, that it was impossible to conclude that the entry of a nolle prosequi in respect of the two counts in the case before them unfairly prejudiced the appellant. Kirby J was also of the opinion that the irregularity did not result in an actual miscarriage of justice calling for the High Court's intervention. Gaudron and Callinan JJ did not express any concluded views as to whether or not the defect should lead to an invalidation of the trial.
18 It is to be observed that there is a significant distinction between the facts in Gipp v The Queen and those in the present case. In Gipp v The Queen, the appellant had been arraigned before the jury on all the counts in the indictment, and the nolle prosequi was presented after his arraignment and after the complainant had given her evidence. In this
(Page 9)
- case, the applicant was never arraigned on the four counts the subject of the nolle prosequi. In those circumstances, it could not, I consider, be said that the procedure unfairly prejudiced the applicant, or should otherwise lead to the quashing of the convictions.
19 I now turn to the grounds of appeal.
Ground A.1.
"The convictions be quashed and/or set aside on the ground that they are unsafe and unsatisfactory in that the learned Trial Judge's directions in regard to the uncharged acts were inadequate to ensure that the [applicant] had a fair trial."
20 This ground, which is concerned with relationship evidence, does not condescend to particulars.
21 It appears that no objection to the relationship evidence, as such, was raised by counsel for the applicant. That was also the position in Gipp v The Queen. However, during the playing of the pre-recorded evidence of C, counsel sought a direction to the jury from the learned trial Judge in connection with the complainant's evidence regarding the four counts the subject of the nolle prosequi. Her Honour agreed, and directed the jury as follows:
"The situation is this: the offending, that is, the charges with which you are concerned in this trial and about which you must reach verdicts, began in 1993 and I think the first count on the indictment alleges between 31 May 1993 - and they ended - the offences the subject of the indictment allegedly ended in 1994, February 1994, so that is the time period with which you are concerned.
However, as the Crown prosecutor also told you, you will hear other evidence in this trial and you have just heard and it will be replayed in a moment, just in case you missed it, reference by the complainant to an incident which she said occurred in 1991, I think it was, when she was in grade 1, at a caravan, and she makes reference to the fact that on an occasion - or she makes reference, you will hear, that the accused took her into a room and pulled his pants down and asked her to lick his penis, which she did, and that shortly thereafter he made her touch his penis with her hand.
(Page 10)
- Now, they are obviously matters of a sexual nature and they occurred in 1991, so I stress this to you: although you will hear about those two matters which occurred at Maida Vale in the caravan or at the caravan site, they are not the subject of this indictment and you are not required to consider them in order to reach a verdict in relation to them. You are only hearing about those two matters because it is what is sometimes referred to as relationship evidence; evidence, in other words, of the relationship which allegedly existed between the complainant, C, and the accused and so it, in a sense, just sets the scene against which the Crown says these events occurred.
It probably does not mean a great deal to you at this point in time that I am talking about these matters but I just want to alert you to those two particular pieces of evidence because they must be dealt with by you in your deliberations in a particular and somewhat limited way and I won't go into the details about that now but I want you to understand and be aware at this early point in the trial of the limited role in which those two pieces of material must be viewed."
- Counsel had also drawn her Honour's attention to the fact that the Crown prosecutor had referred to the counts before the jury relating to the period between 1991 and 1994. Having regard to the Crown not proceeding with the first four counts in the first indictment, the applicant's offending in fact was now alleged to have commenced in 1993. The learned trial Judge gave an appropriate direction to the jury as to that error on the part of the prosecutor.
22 Subsequently, in her summing up, the learned trial Judge stressed that the two previous incidents, which were the subject of the first four counts in the original indictment, if the jury found that they had occurred, were not the subject of any charge or charges against the applicant, and that it did not follow that he was guilty of any of the offences with which he had been charged in the substituted indictment. She indicated that the facts relating to those previous incidents were led in order to provide a background from the complainant of the applicant's attitude towards, and of his relationship with, the complainant. Her Honour continued:
"You must not proceed on the basis that because it is alleged that the accused did something else, then he must have done what he has been charged with. However, you may find, and it's a matter for you, the evidence of these previous incidents, if they happened, of assistance to you when considering the nature
(Page 11)
- of the relationship between the [applicant] and the complainant. Remember, however, simply because it is alleged that these previous incidents happened, it does not follow that the incidents on the indictment occurred. One event does not follow the other.
The evidence of these other alleged acts is admitted solely to establish the relationship which is alleged to have existed between the complainant and the accused as part of the context and setting in which the offences with which the accused is charged are alleged to have occurred. As I have said, even if you accept the evidence or part of it as to those other alleged acts, not the charged acts, the commission of the offences on the indictment can only be proved by the evidence in relation to them and not extraneous or other conduct. You must not reason that because the accused engaged in sexual conduct with [the complainant] if you find that to have happened on one or two earlier occasions, he is the kind of person who was or is likely to have done so on any of the occasions nominated on the indictment.
In this context I should also mention the evidence of the complainant's younger brother A. He gave evidence that on a number of occasions - I think he said it was about three times - when he was in the presence of both the accused and the complainant and whilst they were living in Redcliffe when the accused was looking after him and C, the accused asked C to put his hands down her pants or whether the accused could put his hands down C's pants. A told you he was about 7 years old at the time that these events occurred.
He went on to say that he actually saw these things happening at the unit and at the park when the accused would take the children there in his car. He told you that the accused threatened to hit him if he told anybody about what he had seen and heard. A's evidence, if you accept it, which is a matter entirely for you, can only be used by you in a limited way. You could only use it, if you were minded to do, in order to strengthen a conclusion or a finding of fact that you might reach as to whether there was a sexually inappropriate relationship between the accused and C. You cannot and you must not use A's evidence to assist you to find or conclude that any of the offences contained in the indictment occurred. A's evidence
(Page 12)
- does not corroborate the evidence of C regarding what she alleged happened in counts 1 to 12."
23 On the appeal, counsel for the applicant contended that, in her directions, her Honour had "informed the jury, incorrectly that the acts 'nollied' had occurred in 1991 and was evidence of relationship which existed" and that "[i]n so doing her Honour fell into error by informing the jury to accept acts 'alleged' to have occurred as having occurred".
24 It is quite true that her Honour did say that the earlier events as to which C had given evidence "occurred in 1991" but it is also quite clear that she was not expressing any opinion of her own, but was merely referring to the evidence which had been given. She was careful to refer to the evidence as relating to "allegations" and it is not without significance that counsel for the applicant in the course of the trial did not raise this matter with her Honour. Her Honour gave the usual comprehensive directions to the jury in her summing up, in which she indicated very clearly that the members of the jury were the sole judges of the facts in the trial and that whatever she said was mere comment. Any possible doubt in the minds of the jurors as to whether the learned trial Judge was expressing her personal opinion must have been resolved by her otherwise clear directions. I do not consider that the jury could have been misled by what her Honour said. I would not uphold ground A.1.
Ground A.2.
"In the alternative to ground 1, the convictions be quashed and/or set aside on the ground that the learned trial Judge erred in her discretion or at law allowing evidence of 'uncharged acts' or 'relationship evidence' to be admitted in evidence as they did not or could not be reasonably categorised as 'propensity' or 'relationship' type evidence in the circumstances of the case."
25 The relationship evidence was given by C and by her brother A, and, as already indicated, the applicant's counsel took no objection at the trial to the admission of that evidence which related to "uncharged acts". No criticism has been made of A's evidence. The ground of appeal, insofar as it relies upon the evidence not reasonably being categorised as propensity evidence, misconceives the position. The evidence was not led as propensity evidence, as her Honour, in warning the jury, made very clear. It was, however, led as relationship evidence, on the basis that where the acts charged occur between parties between whom such behaviour would ordinarily be regarded as abnormal or deviant, to shut the jury off from
(Page 13)
- evidence of other abnormal or deviant behaviour occurring within the relationship would be to require them to try the case in a vacuum. It went to the nature of the relationship between C and the applicant, and not merely to the applicant's propensity or disposition. As her Honour directed the jury:
"The evidence of these other alleged acts is admitted solely to establish the relationship which is alleged to have existed between the complainant and the accused as part of the context and setting in which the offences with which the accused is charged are alleged to have occurred. As I have said, even if you accept the evidence or part of it as to those other alleged acts, not the charged acts, the commission of the offences on the indictment can only be proved by the evidence in relation to them and not extraneous or other conduct. You must not reason that because the accused engaged in sexual conduct with C if you find that to have happened on one or two earlier occasions, he is the kind of person who was or is likely to have done so on any of the occasions nominated in the indictment."
27 Under this ground, counsel for the applicant also submitted that, having regard to the decision in Gipp v The Queen, her Honour erred in not instructing the jury that before they could use any of the relationship evidence they had to be satisfied of its truth beyond reasonable doubt. The criticism made in Gipp v The Queen, however, arose out of the trial Judge's direction to the jury in that case, which was in the following terms:
(Page 14)
- "There is also overall evidence of ongoing conduct by the accused over many years … That evidence of general behaviour is led to show the nature of the relationship between the complainant and the accused, rather than present a picture of isolated events from time to time. There is no need for you to be satisfied beyond reasonable doubt of those background facts because they are given generally, provided that you accept the complainant's account that it occurred."
28 At 115, Gaudron J said:
"Even if the Court of Appeal had come to the view that, no objection having been taken, no miscarriage of justice was occasioned by the evidence with respect to the first two counts being left before the jury or by the receipt of the complainant's general evidence of sexual abuse, it could not in my view have reached the same conclusion with respect to the trial judge's direction relating to the complainant's evidence that she had been abused from the age of four. The bare direction to the jury that they had only to be satisfied with respect to that evidence on the balance of probabilities was erroneous and dangerously so. It left open the possibility that the jury might reason from a finding, on the balance of probabilities, that there was a relationship involving regular sexual abuse, that the appellant was guilty of the specific offences charged."
29 At 133, McHugh and Hayne JJ, who dissented, said:
"No doubt it would also have been better if his Honour had made no mention of the standard of proof when referring to the background evidence. But his Honour's statement was not a misdirection. It is the charge, not the surrounding facts, that must be proved beyond reasonable doubt. Sometimes, a fact may be so indispensable to a finding of guilt that it is necessary to direct the jury that that finding be proved beyond reasonable doubt even though that fact is not one of the ultimate facts that constitute the offence. But, as Dawson J pointed out in Sheppard v The Queen [(1990) 170 CLR 573 at 579] where:
'the evidence consists of strands in a cable rather than links in a chain, it will not be appropriate to give such a warning. It should not be given in any event where it would be unnecessary or confusing to do so.'
(Page 15)
- That statement was made with respect to circumstantial evidence but is equally applicable to a case such as the present."
30 Kirby J, considering this matter at 145 and 160, indicated that the jury was almost certainly left in a state of confusion about the direction and that this was apparent from a question which they asked after they had been deliberating for some time.
31 At 175, Callinan J, referred to the reception of "background" evidence and the need to explain its purpose and utility, having the tendency to introduce into a trial, particularly a criminal trial, undesirable complications, and the notion that there may be various lesser grades of evidence calling for different standards of satisfaction in the minds of the jurors.
32 In the present case, the relationship evidence could not be regarded as "links in a chain", and the trial Judge having properly directed the jury as to the onus and standard of proof, I do not consider that any further special direction was called for from her Honour. Unlike the position in Gipp v The Queen, her Honour did not diminish the effect of her direction on the standard of proof being beyond reasonable doubt by suggesting that, as to the relationship evidence, the jury did not need to be satisfied beyond reasonable doubt.
Ground A.3.
"The convictions be quashed and/or set aside on the ground that the learned trial Judge erred in her discretion or at law in allowing such evidence of acts in respect to offences in which a 'Nolle Prosequi' had been given to be put in evidence as 'relationship' or 'propensity' evidence, or at all in respect to the remaining counts the subject of the indictment at trial."
33 As was indicated by the Crown prosecutor, the decision not to proceed with the prosecution of what had been the first four charges in the original indictment, two of which were in the alternative, had been made prior to the empanelling of the jury, for the technical reason that the pre-trial evidence taken from C and A was not capable of establishing the time when the alleged offences occurred, so that it could not be determined which of the provisions of the Criminal Code were applicable. It was never conceded by the Crown that the acts giving rise to these charges had not been established by C's evidence and the presentation of the nolle prosequi did not prevent the Crown from adducing this
(Page 16)
- relationship evidence - see Kailis v The Queen (1999) 21 WAR 100 at [36].
34 Before leaving the subject of relationship evidence, reference should be made to the decision of the High Court in KRM v The Queen [2001] HCA 11. As in Gipp v The Queen, the Court was divided, but at [31] McHugh J observed:
"By reason of the divided reasoning of the majority in Gipp, it cannot yet be said that evidence of uncharged acts of sexual conduct is no longer admissible to prove the relationship between the parties. Until this Court decides to the contrary, courts in this country should treat evidence of uncharged sexual conduct as admissible to explain the nature of the relationship between the complainant and the accused, just as they have done for the best part of a century. But that said, trial judges will sometimes, perhaps often, need to warn juries of the limited use that can be made of such evidence and will have to give a propensity warning concerning it."
Ground B.
"The convictions be set aside and quashed on the ground that they are unsafe and unsatisfactory in that the learned trial Judge's directions to the jury were inadequate to ensure that the appellant had a fair trial in respect to the following issues -
1. The 'Longman direction' provided to the jury.
2. The question and nature of 'recent complaint'.
3. The summing up lacked balance and did not fairly put the defendant's/appellant/s defence."
35 The Longman direction given to the jury by the learned trial Judge was in the following terms:
"In assessing the truthfulness and the reliability or accuracy of the evidence of the complainant, you should bear in mind that the longer the delay between the happening of an alleged offence or offences and the person coming forward and disclosing or making a complaint, the greater the possibility of error in recollection of the incident or incidents which give rise to the offence or offences.
(Page 17)
- Really in making that comment to you, I'm doing nothing more than telling you what you probably already know, namely that the passage of time does make it more difficult for anyone to accurately recall a particular incident in detail. I'm sure you have all had examples of that in your own lives. The passage of time perhaps increases or does increase the possibility of factual errors being made when one is describing an incident which occurred at some point in the past. This is a matter that you should consider carefully when you're looking at the accuracy and reliability of the evidence of the complainant in particular. You should appreciate, as I have said, that the passage of time, the longer the delay, can give rise to the problems that I have outlined to you and make it more difficult for evidence relating to the incidents to be tested.
A delay coupled with lack of precision, if there is lack of precision, as to exactly when a particular offence allegedly occurred can make it difficult for an accused to examine in detail the circumstances of the alleged offences and so, in that sense, place him at a certain disadvantage. You will, however, appreciate in this case that the accused says that none of these allegations are true, that none of the things C alleges occurred."
- Her Honour reiterated her earlier direction that the facts were for the jury.
After emphasising that it was the role of the jury to evaluate the evidence of C and of the other witnesses, and having stressed that before they convicted the applicant they had to be satisfied beyond reasonable doubt as to each element of the alleged offences, her Honour continued:
"The complainant is now 13 years old and she gave evidence of events that occurred, she says, some time in 1993 and 1994 when she was aged about eight or nine. So some four or five years passed before she was asked to recollect the alleged events in her evidence before you, although obviously she had spoken to police officers before that. A also gave evidence that what he saw and heard occurred when he was about seven years old. He made a statement to the police and told them about these things when he was nine and then, when he was 11, he came and gave the evidence that is before you.
So again I remind you that the passage of time is a factor which can affect, and does affect, people's recollection of events and their memory of events. You take these factors into account
(Page 18)
- and before making a finding against the accused or finding him guilty of any of the alleged offences, you would scrutinise the complainant's evidence with care and, having paid due regard to that evidence, you are satisfied beyond reasonable doubt - or if you are satisfied beyond reasonable doubt as to the truth and accuracy of that testimony, having evaluated the evidence with care, as I have said, and mindful of the matters that I have been talking to you about - if you are satisfied as to the truth and accuracy of that evidence, then of course you may make findings of fact based on that evidence.
So, members of the jury, I am giving you a direction and emphasising to you that it is a matter for you to decide whether or not you accept or reject the complainant's evidence, bearing in mind those particular features that I have recently drawn to your attention. I say that because, at the end of the day, the acceptance or rejection of any of the evidence in this trial, from any of the witnesses, is entirely a matter for you and it is your task and not the task of anybody else in this court."
36 The contention on behalf of the applicant was that her Honour's summing up failed to give an adequate or proper Longman warning and that, in the alternative, the learned trial Judge failed to give a proper or appropriate [sic] Longman warning. There is no standard form of warning required and, having regard to the whole of her summing up, in my opinion, her Honour sufficiently emphasised the need for the jury to scrutinise C's evidence with care before arriving at their verdict. I would reject this ground of appeal.
37 The question of recent complaint was raised with the Crown prosecutor in the absence of the jury by her Honour the trial Judge, having regard to the indication which he had given that he proposed to call a witness, Ms Rusiecki, who was the neighbour to whom reference has previously been made, with respect to a complaint made to her by C. Her Honour expressed her concern about the admissibility of that evidence, and pointed out that, if recent complaint evidence were to be admitted, the jury would have to be given a direction that it related only to the last charge in the indictment. A number of the charges alleged a time-frame between 31 August 1993 and 18 February 1994, a period of nearly six months. There was also a question as to whether the complaint was spontaneous and not elicited by some "fairly specific questioning". At this stage, the Crown prosecutor indicated that he would be seeking to amend counts 5 to 12, the offences charged in which were said to have
(Page 19)
- taken place in Redcliffe between 31 August 1993 to 18 February 1994, so that the period was extended to a date unknown between 1 May 1993 and 18 February 1994. Her Honour then proceeded to rule that the evidence which Ms Rusiecki could give as to any complaint was not admissible. The amendment to the indictment was allowed.
38 Notwithstanding this ruling by her Honour, counsel for the defence requested that Ms Rusiecki be called by the Crown in order that she might be made available for cross-examination by him. That was agreed to. There was no examination-in-chief. The witness confirmed to counsel for the applicant that her first statement was given to the police on or about 17 February 1994. The learned trial Judge interrupted the cross-examination of counsel, conveying her concern as to where the cross-examination of the witness by him was proceeding. She pointed out that the witness's first statement was not before the jury. Counsel apparently was seeking to establish a difference between the witness's first statement and her second statement dated 20 January 1998, claiming that the later document was the more detailed.
39 The cross-examination then continued, and in answer to a question from counsel for the applicant, Ms Rusiecki accepted that the allegations made to her by C were allegations of sexual abuse and that she had sat down privately to talk to C about them. C had not been cross-examined on what she had told Ms Rusiecki, except to extract from her her agreement that she had spoken to Ms Rusiecki about the things which the applicant had done to her. Her Honour was clearly reluctant to rule upon the admissibility of the evidence being sought from Ms Rusiecki. She invited further submissions from counsel, whilst indicating that unless the relevance of the proposed evidence could be demonstrated, she was not minded to permit it. Counsel for the applicant made no submissions and does not now seek to appeal on the subsequent ruling by her Honour to disallow this line of questioning.
40 In all the circumstances, her Honour felt obliged to say something to the jury about evidence of complaint. What she said was as follows:
"You have heard some evidence from Ms Rusiecki. When she was cross-examined, she said that in February 1994 allegations of sexual abuse were made to her by C. She discussed the allegations with C when they were alone. She gave C certain assurances.
(Page 20)
- We have no evidence from Ms Rusiecki as to what precisely the complainant said to her regarding the particular allegations or indeed how much time there was in between the alleged offences, that is the offences on the indictment, occurring and when C actually had her conversation with Ms Rusiecki so we don't know if the complaint by C to Ms Rusiecki was an early or recent complaint, that is, that it happened soon after the alleged offending.
We do, however, have some evidence that a form of complaint was made concerning alleged sexual impropriety by C to Ms Rusiecki. You must understand and I stress that you cannot and must not treat the evidence of complaint or what was said to Ms Rusiecki, if you accept it and again it's a matter for you, as evidence of the fact that any of the alleged offences occurred. This evidence, if you accept it, only goes to show some consistency of conduct on the part of C in that she did make some form of complaint or say something about these matters at some time after the alleged offences occurred to Ms Rusiecki.
Such a complaint can never be used to prove that the alleged offence or offences actually happened or occurred. C, on the evidence, did not immediately complain to anybody or shortly after each of these offences allegedly occurred. You must appreciate, however, that failure to complain, or in this case some delay in making a complaint, does not necessarily indicate that an offence or offences were committed - or a complaint that they were committed is false. There may be good reason, members of the jury, why a victim of an offence or offences of the nature alleged here may hesitate in making a complaint or saying anything to anyone about it.
C told you that the accused instructed her not to tell anyone about what was happening between them or the cops would come and get him. Fear, embarrassment or a desire not to cause problems may be equally explanatory of why nothing is said or there is a delay in coming forward and making a complaint. It's a matter for you, first of all, whether you accept this evidence; that is, of Ms Rusiecki and C, on this point and, if you do, how you would assess such evidence.
(Page 21)
- You must also consider how the instruction given to C by the accused not to tell anyone might operate on the mind of a young person in the situation that C was in at the relevant time."
- Her Honour's directions then moved on to the Longman warning: Longman v The Queen (1989) 168 CLR 79.
41 The difficulties with this direction relate to the fact that there was no evidence that the complaint was recent and there was no evidence of what was said by C to Ms Rusiecki; but the jury were told that if they accepted it, it would only go to show some consistency of conduct. There was in fact nothing for the jury to accept, other than the bare fact of some complaint having been made, and, on this basis, it could demonstrate little consistency of conduct. Importantly, however, her Honour made no reference to this evidence going to C's credibility as such. Merely to refer to consistency of conduct, without more, would not, I consider, in this case, have led the jury to place more reliance upon C's evidence. In the circumstances, I do not consider that this reference by her Honour could have resulted in the jury being misled. Nor do I consider that it has led to any unfairness to the applicant. In my opinion, it was appropriate for her Honour to direct the jury as she did regarding C's delay in complaining.
42 In relation to the alleged lack of balance in her Honour's summing up, it is to be noted that the learned trial Judge heard submissions from counsel for the applicant regarding a number of matters arising from the address of the Crown prosecutor. In her summing up, she emphasised the presumption of innocence and she summarised the applicant's evidence and that of G, together with the points made in his defence. At the request of counsel, the learned trial Judge redirected the jury with respect to C's retraction of her initial complaint. I am unable to accept that her Honour's comments with reference to why C might have hesitated to make a complaint could have resulted in a lack of balance in her Honour's direction in that respect as counsel for the applicant submitted. No other matters were adverted to by counsel. I am unable to accept that her Honour's summing up lacked balance.
Ground C.
"The convictions be quashed and/or set aside on the ground that they are unsafe and unsatisfactory in that the learned trial Judge's rulings and directions during the conduct of the hearing
(Page 22)
- failed to ensure that the appellant received a fair trial and/or was accorded procedural fairness in respect of the following issues: -
- 1. (a) Count 11 of the substituted indictment provided on the morning of the first day of the hearing was materially altered or amended from 'digital penetration' to 'cunnilingus'.
(b) The amendment was a 'material and significant' alteration and not a matter that went to 'detail' only.
(c) The learned Judge erred in her decision in not allowing the appellant the 'right to cross-examine' the complainant in respect to the amendment.
2. Failing to direct the Crown to make: -
(a) available for cross-examination the witness Glenda D'Silva as named on the back of the indictment.
(b) In the alternative, failing to make any/or sufficient inquiry to determine whether the witness Glenda D'Silva should have been made available for cross-examination by the appellant.
3. In restricting and/or impeding the appellant's cross-examination with respect to the below-named witnesses the learned trial Judge was or fell into error or an exercise of her discretion as the appellant was effectively precluded from putting its defence case properly to the jury:
(a) Witness Kearns Gangin,
(b) Witness Marrena Katarzyna Ruziecki
4. In restricting and/or impeding the appellant's examination-in-chief with respect to the below-named witnesses the learned trial Judge was or fell into error at law or in the exercise of her discretion as the appellant was effectively precluded from putting its defence case properly to the jury:
(Page 23)
- (a) Witness Glenda D'Silva
(b) Witness Lorraine Borg (nee Bride)."
43 In relation to ground C.1, the amendment to count 11 in the indictment was not sought until 26 July 1999, the evidence of C having been recorded on video on 18 December 1998. It was submitted for the Crown that the amendment related to a particular only, as the offence of sexual penetration charged under s 329(2) of the Criminal Code remained unchanged. The learned trial Judge rejected the application of defence counsel to have C recalled for further cross-examination in relation to her evidence not supporting the original count. Her Honour took the view that defence counsel had a copy of C's deposition and that this should have alerted him to the change in C's evidence. In her view, counsel had the opportunity of cross-examining C about her evidence not substantiating count 11 and that there was no reason for C to be called for further cross-examination.
44 With respect, however, there was no obligation on the defence to anticipate an application to amend the count. As the evidence stood at the completion of C's evidence, the applicant would have had to be acquitted on the count on which he had been arraigned. No doubt it was for this reason that counsel did not choose to cross-examine C on her evidence in relation to count 11. In my view, it was too late in the day for the amendment to be made without acceding to the request for C to be recalled for further cross-examination, and it has resulted in unfairness to the applicant. Notwithstanding that the amendment resulted in the substitution of a new particular, it represented a significant change in the offence alleged from an act of digital penetration to one of cunnilingus. In the circumstances, I do not consider that the conviction on count 11 can stand, and I would therefore quash that conviction. It is not appropriate, in the circumstances, to order a new trial on this count.
45 In relation to ground C.2, concerning what was suggested to be the failure of the learned trial Judge to direct the Crown to make G available for cross-examination, she having been named on the back of the indictment and, in the alternative, having failed to make any or sufficient inquiries to determine whether G should have been made available for cross-examination by the applicant, the High Court in R v Apostilides (1984) 154 CLR 563 at 575 enunciated six general propositions which, it was said, are applicable to the conduct of criminal trials in Australia. The relevant propositions are as follows:
(Page 24)
- "1. The Crown prosecutor alone bears the responsibility of deciding whether a person will be called as a witness for the Crown.
2. The trial judge may but is not obliged to question the prosecutor in order to discover the reasons which lead the prosecutor to decline to call a particular person. He is not called upon to adjudicate the sufficiency of those reasons.
3. Whilst at the close of the Crown case the trial judge may properly invite the prosecutor to reconsider such a decision and to have regard to the implications as then appear to the judge at that stage of the proceedings, he cannot direct the prosecutor to call a particular witness.
4. …
5. Save in the most exceptional circumstances, the trial judge should not himself call a person to give evidence.
6. A decision of the prosecutor not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice."
46 The Crown prosecutor declined to call G as a witness for the reason that she was not regarded as a witness of credit. There was no basis upon which the learned sentencing Judge could have directed the Crown to make her available for cross-examination. Nor was there any requirement for her to make further inquiries of the Crown prosecutor as to why he was not calling her, having regard to the reason which he had already provided. There were no exceptional circumstances such as to justify her Honour in herself calling G as a witness.
47 At the time of the trial, G was still living with the applicant. Her evidence at the trial did not indicate that she was other than willing to support his defence. Nothing placed before us indicates that there has been any miscarriage of justice or, indeed, that there has been any disadvantage to the applicant in having G examined in chief rather than having her cross-examined. Having regard to the number of leading questions asked of her by the applicant's counsel, he might just as well have been cross-examining G. This ground has not been made out.
(Page 25)
48 Ground C.3 contends that the applicant was effectively precluded from putting his case properly to the jury because he was restricted or impeded in his cross-examination of certain witnesses. Two witnesses are referred to in this ground of appeal, Detective Sergeant K Gangin and Ms M K Rusiecki.
49 Counsel for the applicant contended that, in his cross-examination of Detective Sergeant Gangin at the trial, the defence was unfairly or unnecessarily restricted by her Honour, with the result that he was precluded from examining issues relevant to the defence. Although it is far from clear, those issues appear to have related to a conversation which Detective Sergeant Gangin was said to have had with C and A in May 1994 regarding the retraction by C of allegations which formed the subject of the charges then pending against the applicant.
50 The evidence of Detective Sergeant Gangin had been that, subsequent to his initial interview with the applicant, the applicant had been arrested and a number of charges had been preferred against him. Those charges were set down for a preliminary hearing in July 1994. In May 1994, he received a telephone call from C's mother and as a result of what he was subsequently told by C and A, he sought permission to have the charges withdrawn. That permission was not forthcoming, and on the day of the preliminary hearing no evidence was offered. Counsel for the applicant then asked the detective sergeant to read a short statement regarding C's retraction of her earlier allegations, a statement which he had not taken and to which he had not been a witness. Detective Sergeant Gangin agreed, however, that, essentially, the statement contained what he had been told in May 1994. Counsel had been about to put to him what counsel described as the essence of what C had told him. The Crown prosecutor objected to the manner in which the evidence was being introduced.
51 In her evidence-in-chief, C told of her having retracted her allegations because her mother had been upset and crying all the time as she was missing the respondent. She admitted having gone back to the police and told them that she had been lying and that she had then made another statement to the police. She was also asked what sort of things she had said, and she replied, "I had seen dirty books and I wanted to get Raymond back for hitting me". She claimed that her mother had come up with these explanations. There had been no cross-examination by counsel for the applicant with respect to what C had told the police regarding her reasons for retracting her original complaint. All that was relevantly led
(Page 26)
- from C in cross-examination was that she had gone to the police and, in effect, told them that what she had said to them initially "was lies".
52 Counsel did not seek to have C recalled for further cross-examination. He was now seeking from Detective Sergeant Gangin the reason she had given for retracting her allegations, although he had not cross-examined C on this subject.
53 Counsel for the applicant on a number of occasions during the trial appears to have overlooked the rule of practice now known as the rule in Browne v Dunn (1894) 6 R 67. The rule was described by Hunt J in a well-known passage in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1. At 16, Hunt J said:
"It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross-examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn."
54 This rule applies in criminal as well as in civil proceedings - see R v Birks (1990) 19 NSWLR 677 at 688 - 690 per Gleeson CJ. As Gleeson CJ explained at 689 - 692, however, the notion of fairness, whilst it is relevant to criminal as well as to civil proceedings, may have a somewhat different practical content in a criminal trial.
55 It was a further complaint by counsel for the applicant that no mention was made in C's deposition that she had a conversation with Detective Sergeant Gangin concerning her retraction of her earlier allegations. This was not really surprising. The critical point was that she had retracted her earlier allegations, a fact which was well known to the applicant from the beginning. It was also complained that Detective Sergeant Gangin had not taken a written statement from C about their conversation. This again was hardly surprising. Having spoken to C, Detective Sergeant Gangin had referred her on to female police officers to undertake that task.
(Page 27)
56 I am unable to accept that the Court, in stopping cross-examination on matters which could have been, and were not, put to C unduly fettered the applicant's right to put his defence and denied him the opportunity of a fair trial. There is no indication that the evidence which counsel for the applicant was endeavouring to elicit might have been helpful to the applicant. On a number of occasions, counsel for the applicant said he did not know what the answer to his questions would be. Had the issues been of any significance, the proper approach would have been to seek to have C recalled for cross-examination, although it is highly probably that there would have been some reluctance on the part of the trial Judge to order that C be recalled for further cross-examination in all the circumstances of this case.
57 It was then complained that, in the cross-examination of Ms Rusiecki, the defence was also unnecessarily restricted by the Court, with the result that it was limited and/or precluded from examining fully all the issues relevant to the defence. Reference was made, in particular, to the trial Judge's refusal to allow the defence to cross-examine the witness on two separate statements made by her to the police with respect to the disclosures made to her by C. The first of these statements was made in February 1994 and the second, it would seem, in January 1998. The second of these statements had already been ruled to be inadmissible because the complaint was not a recent complaint. Ms Rusiecki's evidence in cross-examination was that there was more detail in her first statement than in her second statement. When challenged as to the admissibility of the evidence he was endeavouring to elicit, counsel maintained that the first statement was small in comparison to the second statement and he said that he was going to attack Ms Rusiecki's credibility because the first statement was small in comparison with the subsequent statement and that the two statements were very different. He then went on to suggest that he might be able to draw some inferences from this that would go to the credibility of C, although none of this had been put to C. Counsel then said that he wanted to put the first statement to Ms Rusiecki and to ask her to correct what she had said, on the basis that it may help the jury in his summing up later. He could not explain how it would be relevant, apart from correcting a mistake and he added that this was all he wanted to do - no more than this. He then said, "As to whether it makes sense or not, how it's going to change our defence, I don't think it's relevant to that". Asked again how it was relevant, he said that he could not take the matter any further, and the proposed line of cross-examination did not proceed.
(Page 28)
58 I am not persuaded that the defence was prejudiced in any way by any constraints imposed by the learned trial Judge on counsel's cross-examination of Detective Sergeant Gangin and Ms Rusiecki.
59 On a number of occasions in the course of his submissions, counsel for the applicant sought to argue matters which clearly did not fall within the grounds of appeal. One such matter arose out of his cross-examination of Dr P Winterton, the medical practitioner who had examine C. In the course of his cross-examination, the witness said that C had told him in March 1994 that another person, by the name of "Steve", had attempted sexually to abuse her. Counsel indicated that it would have been part of the defence case that this person, at or about the time when some of the offences were alleged to have taken place was residing in the same residence as C, and that C, on the evidence as given by Dr Winterton, had the maturity to stop or stall sexual advances. This part of the evidence of Dr Winterton was patently hearsay and should not have been led. Furthermore, it was not a matter upon which C had been cross-examined. In any event, the position of a boarder, on the face of it, is rather different from that of a child's mother's de facto husband. Young children in a family situation, it has been observed, can be virtually helpless against sexual attacks by the male "parent".
60 Under ground C.4 it was contended for the applicant that the Court had restricted and/or impeded the defence so that the applicant was precluded from putting the defence case properly to the jury. The first complaint was that G was restricted in giving evidence concerning the presence of an x-rated book or books in the family home and that the applicant had thereby lost the opportunity of showing that C's knowledge of sexual matters at the relevant time may have arisen from x-rated material belonging to a boarder in the house, Steve, and found by G under his pillow.
61 C had been cross-examined regarding her having seen pornographic material on one occasion in the home of a friend of the applicant, named Tim. She was not cross-examined as to there having been any pornographic material in the family home. There was nothing in the evidence of G to suggest that C had had access to any such material. Indeed, one of the points made by G was that her children were restricted from entering the bedrooms of adults. In my opinion, the learned trial Judge was correct in stopping this line of cross-examination. At its very highest the evidence could only have led the jury to speculate.
(Page 29)
62 A further contention was that her Honour should have allowed the defence to produce in evidence, and to re-examine G on, an out-of-court statement made by her which had been the subject of cross-examination by the prosecutor. The objection taken by her Honour was to the request made by counsel for the applicant to G that she read out the rest of the statement.
63 The Evidence Act 1906 (WA), s 22 provides as follows:
"A witness under cross-examination, or a witness whom the judge, under the provisions of the last preceding section [relating to cross-examination as to and proof of prior inconsistent statements], has permitted to be examined by the party who called him as to previous statements inconsistent with his present testimony, may be questioned as to -
(a) a previous statement made or supposed to have been made by him in writing or reduced into writing; or
(b) evidence given or supposed to have been given by him before any justice,
without such writing or the deposition of such witness being shown to him.
But if it is intended to contradict him by such writing or deposition, his attention must, before such contradictory proof can be given, be called to those parts of the writing or deposition which are to be used for the purpose of so contradicting him.
Provided that the judge may, at any time during the trial, require the writing or deposition to be produced for his inspection, and may thereupon make use of it for the purposes of the trial as he thinks fit."
64 The Crown prosecutor put to G in cross-examination that when she was speaking to C about the accusations made against the applicant, she had told her that she would have to go to court and might be given a hard time by the applicant's lawyer, G denied that she had done so. The Crown prosecutor then put to her a statement which she had made on 17 May 1994, in which she acknowledged having told C what had just been put to her.
(Page 30)
65 In this case, s 22 had been complied with, and G had agreed that her previous evidence had been wrong, and that her statement had been correct. There was no reason for the learned trial Judge to exercise her discretion under the proviso to s 22. There was no obligation on the Crown prosecutor to tender the document, and there was no basis upon which counsel for the applicant could tender it. There was nothing to prevent counsel for the applicant from asking questions of the witness in relation to other matters referred to in the statement insofar as they arose out of cross-examination; but he did not elect to do so. The one authority which counsel cited, Walker v Walker (1937) 57 CLR 630, was a very different case. At 636, Dixon J indicated that a document may become evidence of the facts stated in it by virtue of the common law rules concerning cross-examination on documents. If, at the trial, a party calls for and inspects a document held by that party's adversary, the party is bound to put it in evidence if required to do so. The attempt to have G read out the balance of the statement was misconceived.
66 Under this ground there was reference to the examination-in-chief of the defence witness, Ms L Borg, as having been impeded. This was not pursued in either the written or the oral submissions. A perusal of her evidence does not indicate that the applicant was prejudiced in any way. Counsel for the applicant was stopped from eliciting hearsay evidence from Ms Borg, and it had been suggested to him that the matter might be approached in a different manner. A number of leading questions followed, in answering which, Ms Borg denied having in any way influenced C to make her retraction, and also denied telling her what she should say to the police about the retractions, other than that she should tell the truth.
67 Ground C cannot be sustained.
Ground D.
"The convictions be set aside and/or quashed on the ground that they are unsafe and unsatisfactory in that the learned trial Judge fell into error at law in her ruling that the defence of 'autrefois acquit' in the Criminal Code was not available to the appellant on the indictment."
68 The Criminal Code (WA) in s 17 provides:
"It is a defence to a charge of any offence to show that the accused person has already been tried, and convicted or
(Page 31)
- acquitted upon an indictment or complaint on which he might have been convicted of the offence with which he is charged, or has already been convicted or acquitted of an offence of which he might be convicted upon the indictment or complaint on which he is charged."
69 On his trial, the applicant pleaded not guilty. He did not plead autrefois acquit. I have already referred to the outcome of the initial preliminary hearing, in which the learned Magistrate purported to dismiss the complaint. Putting that to one side, the insuperable obstacle which the applicant faces in this matter is that there was no "trial" of the offences the subject of the initial complaints, and he had not been tried and acquitted of any of the present offences. The proceedings were ministerial and not judicial - see generally R v Udechuku [1982] WAR 21.
Ground E.
"The convictions be set aside and/or quashed on the ground that they are unsafe and unsatisfactory in respect to counts 1, 2, 3 and 4 of the indictment by reason of duplicity, nullity and uncertainty of conviction and abuse of process."
Ground F.
"The convictions be set aside and/or quashed on the ground that they are unsafe and unsatisfactory in respect of all the counts on the indictment by reason of uncertainty of conviction and abuse of process."
70 The ground of appeal relating to duplicity is based upon a misconception. As is noted in Archbold, Criminal Pleading Evidence and Practice 2001 at 1-135, the rule is that the indictment must not be double, that is to say, no one count of the indictment should charge the defendant with having committed two or more separate offences - see R v Greenfield (1973) 57 Cr App R 849, R v West [1948] 1 KB 709 and R v Davey (1960) 45 Cr App R 11. Each count in the indictment in this case charges one offence only. The objection cannot therefore succeed.
71 As is observed in Carter's Criminal Law of Queensland at 4380, in the note under s 567.1 of the Criminal Code (Qld), which is the equivalent of s 585 of the Criminal Code (WA), there is no rule of law or practice which prohibits two indictments being in existence at the same time for the same offence against the same person on the same facts. However,
(Page 32)
- the court will not allow the prosecution to proceed on both indictments. They cannot in law be tried together and the court will insist that the prosecution elect the one on which the trial shall proceed - see Practice Note: Indictment: Joinder of Counts [1976] 2 All ER 326.
72 The submission on behalf of the applicant was that on counts 1, 2, 3 and 4 the evidence of C was uncertain and/or vague about the exact time-frame within which offences were committed, contending that, on the evidence given, they could have occurred in 1992 or in 1993 and that, as the law concerning sexual offences was significantly altered as from 1 August 1992, the lack of specificity in the evidence given puts counts 1 to 4 at serious risk of being subject to duplicity, nullity or uncertainty of conviction. I have already dealt with the question of duplicity. No submissions were made in connection with the claims of "nullity" and "uncertainty of conviction". Under the circumstances, there is no need to consider them.
73 The evidence of C on these counts was brief. She identified four separate acts, the applicant's rubbing his penis against her vagina, his putting his penis in her mouth, the applicant's licking her vagina and putting his tongue in between the lips of her vagina and his putting his finger into her vagina. The offences were alleged to have been committed while the family was living in Roleystone. She was asked what year she was in at school at that time and she replied, "I think I was in - halfway through year three, then we moved". She was not cross-examined on this evidence or her evidence that she was in year three in 1993. The evidence of G was that the family went to Roleystone "at the end of" 1992 or in 1993. The evidence of the applicant himself was that the family first lived at Roleystone in about the third or fourth month in 1993 and that they stayed there on a six-month lease until just before Christmas 1993. In the circumstances, the evidence is sufficient to establish that the offences took place after the coming into operation of the amendments to the provisions of the Criminal Code relating to sexual offences, 1 August 1992 - see Kailis v The Queen (1999) 21 WAR 100 at [59], citing R v Jacobs (1993) 2 Qd R 541 at 542, R v H (1995) 83 A Crim R 402 at 410 - 412.
Ground G.
"The convictions be set aside and/or quashed on the ground that they are unsafe and unsatisfactory having regard to the verdict of 'not guilty' in respect to count 11 on the indictment."
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74 The reference to count 11 in the grounds of appeal is erroneous. The verdict of not guilty was returned by the jury on count 12, the last of the counts. Counsel for the applicant himself indicated that he did not put a lot on ground G.
75 At the time of this alleged offence, the family was living in a unit in Redcliffe, having moved from Roleystone in the middle of 1993. The evidence of C was as follows:
"Can you remember a time when something happened between you and Ray when he was driving you to school?---While he was driving he made me lick his penis and it went in my mouth.
Where were you sitting?---In the front with him.
Where was A?---I think he was at the back."
76 The evidence of G initially was that the applicant did not drive C to school while they were living at Redcliffe, because C and A walked to school with twin children who lived nearby. G then said, however, that the applicant could have taken the children to school once in the car, but that she used to be in the car. She also added that, when it was a hot day, the applicant would on occasions give all the children a lift home. The evidence of the applicant himself was that he did sometimes drive the children to school, but that he used to take not only C and A, but also the twins. This probably happened, he said, half a dozen times at the most.
77 In MacKenzie v The Queen (1996) 190 CLR 348, Gaudron, Gummow and Kirby JJ discussed the problem presented by inconsistent verdicts and set out a number of general propositions. The fourth proposition at 367 - 368 was as follows:
"Nevertheless, the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense … Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted … If there is some evidence to support the verdicts said to be inconsistent, it is not the role of the appellate court upon this ground, to substitute its opinion of the facts for one which was open to the jury … In a criminal appeal,
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- the view may be taken that the jury simply followed the judge's instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt … Alternatively, the appellate court may conclude that the jury took a 'merciful' view of the facts upon one count: a function which has always been open to, and often exercised by, juries … The early history of New South Wales was affected by English juries which, in the face of clear evidence, declined to find the value of goods stolen sufficient to attract the punishment of death, thereby affording to the offender the alternative punishment of transportation … Australian decisions have acknowledged that the role of the jury continues ameliorative in this respect. In R v Kirkman [(1987) 44 SASR 591 at 593], in the Supreme Court of South Australia, King CJ (with the concurrence of Olsson and O'Loughlin JJ) observed:
'[J]uries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them, and courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges. Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a Judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty.'
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- We agree with these practical and sensible remarks."
78 If the jury were left in doubt, as they could well have been, as to whether, on the occasions on which the applicant drove the children to school, there were four children in the car, this would have led them to acquit the applicant on this count, it being highly improbable that any offence such as had been alleged would have been committed when there were four children in the car at the time. This is not a case where this Court, in terms of what was said in MacKenzie v The Queen, should readily jump to the conclusion that, because verdicts of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty in respect of one count, the jury acted unreasonably in arriving at the verdicts of guilty. There was enough in this instance, without affecting the credibility of C, for the jury to entertain a reasonable doubt as to whether the applicant was guilty as alleged on count 12. In the circumstances, I am unable to accept the applicant's submission that the convictions on the other ten counts should be quashed by reason of the jury's verdict on the final count on the indictment.
Ground H.
"The convictions be set aside and/or quashed on the ground that they are unsafe and unsatisfactory in that the learned trial Judge was in error at law or in the exercise of her discretion in not granting the appellant's motion of 'no case to answer' at the conclusion of the Crown case on the issues raised: (1) Duplicity, nullity, uncertainty of conviction and abuse of process; (2) the complainant's evidence was insufficient to establish a prima facie case and/or satisfy the requisite standard of proof; (3) the general terms and lack of precision of the evidence of the complainant made it unsafe under the circumstances to be put to the jury in light of the requisite standard of proof."
79 This ground is largely repetitive of earlier grounds. Insofar as it adds the contention that the convictions are unsafe and unsatisfactory in that the learned trial Judge erred in not acceding to the applicant's motion of no case to answer", it is misconceived.
80 In Doney v The Queen (1990) 171 CLR 20, the High Court made it clear that a Judge has no power to uphold a submission of no case to answer on the basis that a verdict would be unsafe or unsatisfactory. See also Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482.
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81 The issues of duplicity, nullity, uncertainty of conviction and abuse of process have already been dealt with. They do not add anything of substance to the appeal.
82 In my opinion, in this case, the evidence of the Crown, taken at its highest, was capable of establishing, beyond a reasonable doubt, the guilt of the accused, and it was therefore properly left to the jury to decide.
83 The applicant's written submissions go well beyond the scope of ground H; but it is desirable that they should be considered. Those submissions deal with counts 1 to 6 and 11, and it is convenient to deal with them in the order in which they are dealt with in the submissions.
84 Count 3. It was contended that C's evidence as to the act of fellatio was unreliable and too generalised. Its reliability was clearly a matter for the jury. As to its generality, it was pointed out for the applicant that C's claim was, "I think he made me lick his penis." This ignored C's positive evidence immediately afterwards that the applicant's penis went in her mouth. She was not cross-examined on this evidence and here again it was a matter for the jury to determine, the evidence being sufficient to sustain a conviction.
85 Counts 1 to 4. It was contended that C's evidence was equivocal in that she placed the time period as being when she was in grade two, which would have placed it in 1992. This answer came in response to a question as to the year or grade she was in at the Roleystone Primary School. This submission ignores the evidence of G as to the time when the family was living in Roleystone. Her evidence was that it was from the end of 1992 and, it would seem, until May 1993, at which time they moved to Redcliffe. It also misstates C's evidence in that she said that she "thought" it was in year two. It further ignores her evidence that she thought she was halfway through year three when "these things" happened. In addition, the applicant's own evidence was that they were at Roleystone between approximately May and November 1993. There was ample evidence to satisfy the jury that the family resided in Roleystone subsequent to the critical date, being 1 August 1992.
86 Counts 1 and 2. It was contended that C could not remember whether these offences occurred in Roleystone "or at the house (Redcliffe)". An examination of the transcript shows quite clearly that the question asked of C related to whether the incidents occurred in the house or in the storeroom at the house in Roleystone. There was no reference at all to Redcliffe in this context.
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87 Counts 5, 6 and 11. These counts all involved sexual acts allegedly committed while C's mother was in the shower. It was contended that there was insufficient particularity to extrapolate from C's evidence that these offences occurred on separate occasions. The evidence does not support this assertion. Counts 5 and 6 were said by C to have occurred in her bedroom and were followed by her being taken by the applicant to the place where her mother played bingo. Shortly after dropping off C's mother, C said the applicant performed fellatio on C while she was in the car. The offence charged in count 11 was clearly identified as having been committed on another occasion, when G was having a shower. The incident was not related to her mother's going out to play bingo. It involved the applicant's performing cunnilingus on C.
88 Count 11. It was contended that, in acquitting the applicant on count 11 (which was described as occurring while C's mother was in the shower), the jury, inter alia, accepted that on only one occasion did offences occur when the mother was in the shower, and not on two occasions, as the prosecution asserted. In the premises, it was argued, the convictions on counts 5 and 6 were unsafe. The logic behind this argument is not entirely clear; but, in any event, the insuperable obstacle to the success of this contention is that the applicant was not acquitted on count 11. He was acquitted on count 12, that count alleging an offence of fellatio while he was driving C to school.
89 I would not uphold ground H.
90 In the circumstances, to the extent to which it is necessary, I would grant leave to appeal, but I would allow the appeal only to the extent of quashing the conviction on count 11. As I have already indicated, I would make no order for a retrial. I would therefore direct that a judgment and verdict of acquittal be entered on that count.
91 The applicant also seeks leave to appeal against his sentences which resulted in an effective head sentence of 10 years' imprisonment. The consequence of quashing the applicant's conviction on count 11, in the absence of resentencing, has the result of reducing the effective head sentence to one of 8 years' imprisonment.
92 The applicant's proposed grounds of appeal are as follows:
1. The total sentence of 10 years is manifestly excessive and that in arriving at it her Honour failed to correctly apply the totality principle.
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- 2. The total sentence of 10 years was manifestly excessive in all the circumstances and, further, when sentencing the applicant, her Honour in imposing cumulative sentences in the manner provided failed to have any or any proper regard to the other counts and should appropriately have been concurrent with the other sentences.
93 The sentences imposed were as follows:
Count 1, sexual penetration (cunnilingus), 2 years' imprisonment.
Count 2, sexual penetration (digital penetration), 2 years' imprisonment to be served concurrently with the sentence on count 1.
Count 3, sexual penetration (fellatio), 1 year's imprisonment cumulative upon the sentences on counts 1 and 2.
Count 4, indecent dealing (rubbing penis against vagina), 1 year's imprisonment concurrent with count 1.
Count 5, sexual penetration (cunnilingus) 2 years' imprisonment cumulative upon previous sentences.
Count 6, sexual penetration (digital penetration) 2 years' imprisonment concurrent with previous sentences.
Count 7, sexual penetration (fellatio) 2 years' imprisonment cumulative upon previous sentences.
Count 8, sexual penetration (fellatio) 2 years' imprisonment concurrent with previous sentences.
Count 9, indecent dealing (requiring complainant to touch the applicant's penis) 1 year's imprisonment cumulative upon previous sentences.
Count 10, sexual penetration (fellatio) 1 year's imprisonment concurrent with count 9.
94 The sentence imposed on the applicant in relation to count 11, the conviction which I would quash, was 2 years' imprisonment cumulative upon the previous sentences. The offence was one of performing cunnilingus. It is to be noted that her Honour classified the offences of
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- cunnilingus as being in the most serious category of the offences in that she imposed sentences of 2 years' imprisonment and in each case directed those sentences to be served cumulatively.
95 The learned trial Judge gave very detailed reasons for the sentences which she imposed, and it is apparent that she gave the most careful thought to the task before her, having had the benefit of hearing all the evidence in the case.
96 The offences were committed when the complainant was aged between eight and nine years. As her Honour pointed out, the offending against C fell into two distinct groups of sexually inappropriate and criminal behaviour. Counts 1, 2, 3, 5, 6, 7, 8 and 10 were constituted by acts of sexual penetration. Counts 4 and 9 were constituted by acts of indecent dealing. The offending began when C was about halfway through grade three, when the applicant licked her vagina and then put his finger into her vagina. Those acts gave rise to counts 1 and 2. On a further occasion in a room described as a store-room, the applicant performed an act of fellatio which is the subject of count 3. Almost immediately afterwards, in the same room, he rubbed his penis against the child's vagina. This gave rise to count 4, an act of indecent dealing.
97 The incidents the subject of counts 5 and 6 in the indictment occurred in a unit at Redcliffe when C's mother was in the shower preparing to go out to play bingo. The applicant took C into her room and proceeded to lick her vagina. This gave rise to count 5. Shortly afterwards, in the same room, the applicant performed another act of sexual penetration by inserting his finger into C's vagina. This constituted count 6.
98 The applicant then drove C's mother to bingo. After leaving her mother, C sat in the front seat. Her brother sat in the back seat. The applicant made C lick his penis before inserting it into her mouth. This constituted count 7 on the indictment. On another occasion when C's mother was preparing to go to bingo and C and A were both watching a movie in the lounge room of the unit at Redcliffe, the applicant told A to leave the room. He requested her to lick his penis. C refused, and he then pushed her head down and made her lick his penis, which he then inserted into her mouth. That constituted count 8 on the indictment.
99 Counts 9 and 10 occurred when the applicant made the complainant get into the bath with him at the Redcliffe unit and made her touch his penis. This was an act of indecent dealing and was the subject of count 9.
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- Immediately afterwards, she was made to lick his penis, which he then inserted into her mouth. That act of fellatio constituted count 10.
100 Her Honour found that, as a result of family pressure exerted upon C, and as a result of the guilt she felt because her mother was extremely distressed and the fact that the applicant had to leave the family home, C retracted the allegation she had made to the police; but she made it clear subsequently that her retraction was made under duress and confirmed that the original allegations of sexual abuse were true and correct.
101 At the time of his sentencing, the applicant was 36 years of age, having been born on 4 January 1963. He was born into a family with four other siblings. His father was a violent man and it appears that, as a result of a physical attack his father made upon the applicant's mother when she was pregnant with him, he suffered some form of brain damage. A psychiatric report has indicated that the applicant suffered from a mild mental retardation related to the peri-natal injury. This was said to be the cause of his poor impulse control which eventually led to his drug abuse and criminal offending in his adolescence and early childhood. His IQ is at the lower end of the average range. Her Honour acknowledged the difficulties which the applicant had experienced during his school years. After leaving school he worked as a labourer for a number of months, but since the age of 16 he has been in receipt of a disability pension. He has attempted to obtain work and to get off the pension but he has had little success. Nevertheless, he has succeeded in obtaining a limited amount of employment on a casual basis. He began his de facto relationship with C's mother when the children were very young and when he was 25 years of age. The relationship has had a positive influence upon his previous drug taking and alcohol abuse. The applicant has refused to accept any responsibility for his offending and he has persistently denied that it occurred and, accordingly, he has exhibited no remorse.
102 Her Honour noted that the applicant presented a moderate risk of re-offending. The applicant has previous convictions for offences of dishonesty and an offence involving cannabis. He also has numerous motor vehicle offences for which he has been fined. He was subjected to adult probation supervision in 1981 and 1982 and he completed these periods successfully in addition to successfully completing community service work. Although these were his first convictions for offences of a sexual nature, his offending occurred over a period of at least 12 months and involved circumstances whereby he set up, or took advantage of, situations in which he could gain access to C and sexually abuse her, often with no great risk of detection.
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103 Her Honour emphasised the seriousness of the offences, observing that sexual penetration of a child under 16 by a de facto father carries a maximum penalty of 20 years' imprisonment and for indecent dealing by a de facto father with a child under the age of 16 years, 10 years' imprisonment.
104 Her Honour observed that this was a case which did not involve violence or cruelty, or particular threats being employed in relation to C; but she pointed out it was made perfectly clear to C and, indeed, to her brother that no-one was to be informed of what was occurring between himself and C.
105 Her Honour perhaps took a rather too favourable view of the absence of cruelty; but she did go on to emphasise that aggravating features in this case were the sexual abuse, involving instances of a particularly intimate nature, of a young child who was vulnerable, while she was under the applicant's care. He had stood in a position of trust towards her and he had abused that trust.
106 Her Honour acknowledged that the severity of a term of imprisonment increases exponentially as it increases in length, referring to Jarvis v The Queen (1993) 20 WAR 201. She indicated that the sentence she imposed was required to reflect community abhorrence of the type of behaviour in which he had engaged. She also indicated that the sentence must punish the applicant and deter him from behaving again as he did towards C. Her Honour might well have added the need for the sentence to serve as a general deterrent to others who might be tempted to act in a similar manner, as to which see R v BJW (2000) 112 A Crim R 1 at 6. There was little by way of mitigation in the circumstances. As her Honour pointed out, one of the tragedies of the case was that a family unit had been destroyed, and the indications were that it was unlikely to be repaired.
107 The applicant's contention that all the sentences should have been ordered to be served concurrently cannot be accepted. The individual sentences are at the lower end of the scale, and there is no basis for any suggestion that the offences all form part of the one "transaction" so as to justify concurrency. It is apparent that the learned sentencing Judge had regard to the principle of totality when fixing the sentence which she did. She did so by carefully directing concurrency when offences occurred close in time to one another so that they could reasonably be described as together comprising a single incident.
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108 No error in the learned sentencing Judge's approach has, in my opinion, been identified.
109 The quashing of the sentence of 2 years' imprisonment which was imposed by her Honour with respect to count 11 was directed to be served cumulatively upon the other sentences. It follows that, without more, the effective head sentence will be reduced from 10 years to 8 years' imprisonment. In imposing the sentence which she did on this count, it is clear that her Honour regarded this offence as being in the worst category of the offences of which the applicant was convicted. The question then arises as to whether the applicant should be resentenced on the other convictions. In all the circumstances, I have concluded that this task should not be undertaken. If he is acquitted on count 11, the other sentences should not be adjusted so as to restore the original head sentence.
110 In the circumstances, although I would grant leave to appeal against the sentences imposed upon the applicant, I would dismiss his appeal.
111 WALLWORK J: I agree with the reasons for judgment of Kennedy J and to the conclusions which his Honour has reached.
112 There is nothing I wish to add.
113 MURRAY J: I have had the advantage of reading in draft the comprehensive judgment of Kennedy J. I agree entirely with his Honour's conclusions and with the orders he proposes.
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