Bourne v Elliss
[1999] WASCA 96
•29 JULY 1999
BOURNE & ANOR -v- ELLISS [1999] WASCA 96
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASCA 96 | |
| Case No: | SJA:1033/1999 | 22 JUNE 1999 | |
| Coram: | PARKER J | 29/07/99 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Conviction of second appellant on Charge No 31017 quashedOtherwise appeals dismissed | ||
| PDF Version |
| Parties: | JENNIFER COLLEEN BOURNE RAYMOND ALBERT PAUL BOURNE JACQUELINE MARIE ELLISS |
Catchwords: | Criminal law Assault on children Allegations denied to police Defendants electing not to give evidence Whether Magistrate had due regard to denials No misapplication of onus of proof Criminal law Assault on children Only evidence accused's account to police recorded on video Whether this account could support conviction |
Legislation: | Nil |
Case References: | Barker v Charley [1961] NSWR 729 Bridge v The Queen (1964) 118 CLR 600 Jack v Smail [1905] 2 CLR 684 Smith v Blandy [1825] Ry & M 257 Weissensteiner v The Queen (1993) 178 CLR 217 Benter v Carkill [1999] WASCA 48 Greaves v Aikman (1994) 74 A Crim R 370 Harling (1997) 94 A Crim R 437 May v O'Sullivan (1955) 92 CLR 654 MH v The Queen, unreported; CCA SCt of WA; Library No 970203; 5 July 1997 Middleton (1998) 100 A Crim R 244 Wace v The Queen, unreported; CCA SCt of WA; Library No 980124; 24 March 1998 Zanetti v Hill (1962) 108 CLR 433 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : BOURNE & ANOR -v- ELLISS [1999] WASCA 96 CORAM : PARKER J HEARD : 22 JUNE 1999 DELIVERED : 29 JULY 1999 FILE NO/S : SJA 1033 of 1999 BETWEEN : JENNIFER COLLEEN BOURNE
- First Appellant (Defendant)
RAYMOND ALBERT PAUL BOURNE
Second Appellant (Defendant)
AND
JACQUELINE MARIE ELLISS
Respondent (Complainant)
Catchwords:
Criminal law - Assault on children - Allegations denied to police - Defendants electing not to give evidence - Whether Magistrate had due regard to denials - No misapplication of onus of proof
Criminal law - Assault on children - Only evidence accused's account to police recorded on video - Whether this account could support conviction
Legislation:
Nil
Result:
Conviction of second appellant on Charge No 31017 quashed
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- Otherwise appeals dismissed
Representation:
Counsel:
First Appellant (Defendant) : Mr M Trowell
Second Appellant (Defendant) : Mr M Trowell
Respondent (Complainant) : Ms C Thatcher
Solicitors:
First Appellant (Defendant) : David Charles Manera
Second Appellant (Defendant) : David Charles Manera
Respondent (Complainant) : State Crown Solicitor
Case(s) referred to in judgment(s):
Barker v Charley [1961] NSWR 729
Bridge v The Queen (1964) 118 CLR 600
Jack v Smail [1905] 2 CLR 684
Smith v Blandy [1825] Ry & M 257
Weissensteiner v The Queen (1993) 178 CLR 217
Case(s) also cited:
Benter v Carkill [1999] WASCA 48
Greaves v Aikman (1994) 74 A Crim R 370
Harling (1997) 94 A Crim R 437
May v O'Sullivan (1955) 92 CLR 654
MH v The Queen, unreported; CCA SCt of WA; Library No 970203; 5 July 1997
Middleton (1998) 100 A Crim R 244
Wace v The Queen, unreported; CCA SCt of WA; Library No 980124; 24 March 1998
Zanetti v Hill (1962) 108 CLR 433
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1 PARKER J: On 18 February 1999 the appellants were each convicted in the Court of Petty Sessions at Perth of a number of charges of assault, contrary to s 313 of the Criminal Code.
2 The appellants are husband and wife. The victims of the various offences are a two year old child of the appellants, Natalie, and three children of the first appellant who at all relevant times were the step-children of the second appellant. These children were Erin, Carmen and Adam, and they were aged 9, 8 and 6 respectively at the time of the trial before the learned Magistrate.
3 Three convictions were recorded against each of the appellants. The learned Stipendiary Magistrate placed both appellants on community based orders for 24 months and ordered that each of the appellants paid costs fixed at $119.50.
4 The appellants contend, pursuant to the amended grounds of appeal, that in convicting them of these offences the learned Stipendiary Magistrate erred in law by misdirecting herself as to the onus of proof. Further in respect of one of the convictions of the second appellant, Charge 31017, which concerned the child Natalie, it is contended that the conviction is unsafe and unsatisfactory in that:
"(i) the only evidence concerning the assault upon the child was what the second appellant had said on video to the police which was a denial of an assault or threat to assault and described by him as an act of playfulness and pretence which caused the child to "giggle"; and
(ii) on the whole of the evidence it was not open to the learned Magistrate to be satisfied beyond reasonable doubt that the appellant was guilty of that offence."
5 The trial before the learned Magistrate extended over some three days. The appellants were represented by counsel. The cases against the appellants were heard together. The prosecution case included the evidence of the three older children, whose evidence was admitted pursuant to s106C of the Evidence Act 1906, evidence of teachers of the children and of a social worker. There was also evidence as to various objects which the police found at the house of the appellants, where the offences were alleged to have occurred, which evidence in various ways was supportive of the accounts of the three children. Evidence was also led of interviews with each of the appellants by the investigating police; these interviews were recorded by video. The appellants elected not to
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- give evidence themselves, but some character evidence was led in their defence. While the video recorded interviews contained materials supportive of the prosecution case there were no direct admissions by either of the accused of any of the assaults charged, although Mrs Bourne admitted using a softball bat to hit the children (but not in their bedroom as alleged) and Mr Bourne described events relevant to Charge No 31017 to which I will turn later.
6 The first ground of appeal, which contends misdirection as to the onus of proof, relates to all convictions. In the case of the first appellant, Mrs Bourne, these convictions involved an assault with a bat (variously described as a softball or baseball bat) on each of the three oldest children. The convictions against the second appellant, Mr Bourne, relate to an assault on Carmen with a black belt, and two assaults on the youngest child, Natalie, the first being Charge No 31017 which involved an allegation of a threatened assault with a large belt and the second, Charge No 31018, involved throwing the child into her cot so that she struck her head.
7 The appellants rely on passages in the extensive oral reasons for decision of the learned Magistrate. Taken out of their contexts these passages appear in the transcript as follows:
1. "Neither defendant gave evidence. The statements given to police in the respective video records of interview cannot be tested by cross-examination."
2. "In the absence in any sworn evidence to the contrary the Court has before it only the evidence of the prosecution witnesses relating to the behaviour of the defendants towards the children, Erin, Carmen and Adam."
3. "These actions were denied by Mr Bourne in his video record of interview, but again, there is no sworn evidence before the Court to refute Carmen's evidence."
8 It is submitted that these passages indicate that the learned Magistrate disregarded entirely the statements made to the police by the appellants which were recorded by video or at least did so insofar as those statements might be seen to have been in favour of the appellants and in particular to the extent that they were or had the effect of being denials of the various allegations. It is contended that an effect of this process of reasoning was, impliedly, to place an obligation or onus on the appellants
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- to give sworn testimony to refute the evidence against them. This, it is contended, in effect amounts to a reversal of the onus of proof.
9 There can be no question, in the circumstances of this case that, once each of the video recordings of the two interviews were admitted into evidence, the whole of each recording, not merely those parts which told against the appellants, became evidence; Smith v Blandy [1825] Ry & M 257 at 259, 171 ER 1013.
10 It follows, of course, that what was said by each of the appellants during the interviews by the police especially anything in the nature of a denial of any of the particular allegations was part of the total body of evidence to be weighed by the learned Magistrate as she considered the cases, respectively, against each of the appellants; Jack v Smail [1905] 2 CLR 684 at 695; Barker v Charley [1961] NSWR 729.
11 As those decisions also confirm, it was open to the learned Magistrate to treat any such statements in the nature of denials as evidence telling in favour respectively of the appellants, although what weight should properly be attached to them in the circumstances was a matter for assessment by the learned Magistrate having regard inter alia to their self serving character.
12 While these denials form part of the cases relevant to each appellant and were properly to be taken into consideration according to the weight which the learned Magistrate concluded should properly attach to them, it may well have been seen by the learned Magistrate to be pertinent, in the circumstances of this case, that neither appellant confirmed on oath those denials. Neither appellant chose to give evidence at the trial. Of course, the onus of proof is not to be reversed, but, quite consistently with that proposition, a failure to give evidence on oath in contradiction of the evidence in particular of the children, which to the knowledge of each accused must have been true or untrue, could logically be regarded as increasing the probability of the truth of that evidence; see Windeyer J in Bridge v The Queen (1964) 118 CLR 600 at 615. As Mason CJ, Deane and Dawson JJ said in Weissensteiner v The Queen (1993) 178 CLR 217 at 227 - 229:
"… It has never really been doubted that when a party to litigation fails to accept an opportunity to place before the Court evidence of facts within his or her knowledge which, if they exist at all, would explain or contradict the evidence against that party, the Court may more readily accept that evidence. It is not
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- just because uncontradicted evidence is easy or safer to accept than contradicted evidence. That is almost a truism. It is because doubts about the reliability of witnesses or about the inferences to be drawn from the evidence may be more readily discounted in the absence of contradictory evidence from a party who might be expected to give or call it. In particular, in a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused.
…
The failure of the accused to give evidence is not of itself evidence. It is not an admission of guilt by conduct. It cannot be, because it is the exercise of a right which the accused has to put the prosecution to its proof. In some other circumstances, silence in the face of an accusation when an answer might reasonably be expected can amount to an admission by conduct. But when an accused elects to remain silent at trial, the silence cannot amount to an implied admission. The accused is entitled to take that course and it is not evidence of either guilt or innocence. That is why silence on the part of the accused at his or her trial cannot fill in any gaps in the prosecution case; it cannot be used as a make-weight. It is only when the failure of the accused to give evidence is a circumstance which may bear upon the probative value of the evidence which has been given and which the jury is required to consider, that they may take it into account, and they may take it into account only for the purpose of evaluating that evidence. The fact that the accused's failure to give evidence may have this consequence is something which, no doubt, an accused should consider in determining whether to exercise the right to silence. This was recognised in Reg v Cops. But it is not to deny the right; it is merely to recognize that the jury cannot, and cannot be required to, shut their eyes to the consequences of exercising the right."
13 Of the three passages in the reasons of the learned Magistrate which are particularly relied on by the appellants, the first can be seen to identify a characteristic relevant to an assessment of the weight properly to be accorded to the evidence of the interviews, insofar at least as that evidence favoured the appellants, viz. it couldn't be tested by cross-examination. The second is capable of revealing error as that sentence, if read in
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- isolation, could indicate that the learned Magistrate had regard only to the evidence of the prosecution witnesses and failed to have regard altogether to the evidence of what the appellants said in the police interviews as they were not sworn testimony. The third could perhaps be read as offering some confirmation of any error revealed by the second statement but against that, the third must be read in its immediate context as it is introduced by an express reference to denials by the second appellant in the course of the interview; this tends to indicate that the observation was intended by the learned Magistrate as a comment on the weight which should properly attach to this evidence rather than an expression of conclusion that there is no evidence of denial at all.
14 It is necessary to consider the reasons for decision of the learned Magistrate as a whole to determine whether there is a substance in the submissions in this regard which have been advanced for the appellants. When this is done it becomes apparent that the learned Magistrate was not only conscious of those parts of the video interviews which told directly against each appellant but was also conscious of the full content of the two interviews, including those passages which told in favour of the respective appellants. Indeed, nearly half of the reasons for decision are occupied with the task of assessing the two interviews, both to determine their content and to compare and contrast their effect with the other evidence, and also to assess what weight should properly attach to the accounts given to the police by the appellants when interviewed. A reading of the full reasons for decision makes it clear that the learned Magistrate regarded the interviews with the police as part of the evidence which had to be weighed. The reasons confirm that the learned Magistrate went about the task of assessing and weighing what was said to the police by each of the accused with some care.
15 It is also the clear effect of the reasoning of the learned Magistrate that in evaluating the evidence inter alia she was impressed by and gave weight to the circumstance that although each of the appellants were clearly in a position to confirm or contradict the evidence of the children, each of them chose not to give evidence on oath. Even though when interviewed by the police neither appellant admitted any of the allegations and directly or effectively denied the critical allegations, neither appellant confirmed that position on oath at trial.
16 Having reviewed the whole of the reasons for decision I am persuaded that the first and the third of the passages quoted earlier which are particularly relied on for the appellants were intended as comments relevant to an assessment of the weight to be attached to the self-serving
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- statements of each accused during the police interviews. I am further persuaded that in fact the learned Magistrate did not fall into error in the way contended. She admitted the whole of each interview into evidence. She clearly considered aspects of the interviews which were in favour of the appellants, as well as adverse passages in the course of her reasons, and she expressly reminded herself that in the course of the interviews allegations had been denied. While the second of the passages which were relied on might have been much better expressed it must be remembered that the reasons were delivered extempore and were relatively extensive. I am persuaded that despite the imperfection of expression no underlying error has been revealed.
17 The reasons for decision reveal that in respect of the charges, other than Charge No 31017, the learned Magistrate was persuaded in each case that she should accept the evidence which favoured conviction, even though she was aware of, and weighed, those parts of the evidence as to what was said by the appellants to the police which were or amounted to denials of particular allegations or otherwise tended against convictions.
18 On a reading of the whole of the reasons I am not persuaded that the learned Magistrate misdirected herself by failing to take into account the whole of what was said by the appellants to the police, or as to the onus of proof, in the way contended in this appeal.
Charge No 31017
19 In her reasons for decision the learned Magistrate relied on passages in the interview of the second appellant with the police to satisfy herself that Charge No 31017 had been proved to the required standard. In the course of that interview the second appellant described and in a very simplistic way re-enacted an incident in which he said he had sought to get the child Natalie back into her cot when she was refusing to settle down for the night and go to sleep. This was, for practical purposes, the only evidence on which the second appellant might have been convicted of this charge.
20 The second appellant demonstrated to the police what the learned Magistrate described as forceful downward chopping motions with both hands which he used towards Natalie. He did not say that he actually hit her in this way. As the second appellant demonstrated these movements the video recording indicates that he spoke forcefully and loudly; as the learned Magistrate described it, he shouted. The learned Magistrate was persuaded, as I understand her reasons, that this conduct constituted an
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- assault as defined by s 222 of the Criminal Code, being a threat to apply force to Natalie in circumstances where the second appellant had an actual and present ability to give effect to that threat. Having then rejected the defence raised at trial of domestic discipline, see Criminal Code s 257, on the basis that the force threatened was not reasonable in the circumstances, the learned Magistrate was thus led to convict of this charge.
21 This is a case in which the evidence relied on by the learned Magistrate consisted essentially of the video recording of the interview of the second appellant with the police. That video recording is before me. Unusually, therefore, I am in as good a position as the learned Magistrate to assess the effect of the video record. That is especially so as the second appellant did not give evidence on oath before the learned Magistrate to confirm or supplement what was said during the interview so that there is no scope for any additional assessment of credibility. The evidence of the other children did not deal with this incident.
22 I have viewed and listened to the video. My own observations may be summarised, for present purposes, briefly as:
• the second appellant said a number of somewhat inconsistent things about this allegation, such as whether the light would have enabled Natalie or the other children to see what occurred, although some of the potential relevance and force of this was diminished because, in the event, neither Natalie (because of her age) nor the other children gave evidence of this episode;
• the accused was less than convincing in his manner as he described what occurred; and
• the appellant described how he pretended that he had a belt and demonstrated with a chopping motion towards the cot or bed what he would do (it seems if Natalie didn't stay in the cot). As part of this description the second appellant insisted that the reaction of Natalie to this dramatic enactment was to giggle. He also insisted that he did not in fact hit her.
23 From a viewing of the video it is fair to say that the general tendency of the description and re-enactment given by the second appellant was on balance to suggest a session with a giggling child who would not settle down to go to sleep, which was more playful than serious, in the course of which he made what may be described as mock threats by his chopping
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- actions towards the cot mattress. On his description the reaction of the child to this was to continue giggling.
24 While I am left with significant misgivings about the credibility of this account and the conduct of the second appellant with respect to Charge 31017, in the absence of any other evidence about this episode there is no evidentiary foundation for positive factual findings which are more adverse to the accused than his actual admissions by word and re-enactments. In my respectful view these admissions fall short of being an admission of an unlawful assault. I find myself unable to accept, therefore, that it was open to the learned Magistrate to be satisfied to the required standard that an unlawful assault on the child had been admitted by the second appellant.
Conclusions
25 For this reason I am persuaded that the second appellant should succeed in respect of the appeal against his conviction on Charge No 31017. That conviction should be quashed. There is no occasion, however, to alter the penalty imposed by the learned Magistrate on the second appellant. The community based order remains entirely appropriate having regard to the conduct involved in the other two offences of which the second appellant stands convicted.
26 Otherwise, the appeals should be dismissed.
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