Bowles v The State of Western Australia
[2011] WASCA 191
•16 SEPTEMBER 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: BOWLES -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 191
CORAM: BUSS JA
MURPHY JA
HALL J
HEARD: 16 JUNE 2011
DELIVERED : 16 SEPTEMBER 2011
FILE NO/S: CACR 163 of 2010
BETWEEN: BOBBIE NEIL BOWLES
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :YEATS DCJ
File No :BRO 39 of 2008
Catchwords:
Criminal law - Appeal against conviction - Sexual offences against a child - Aboriginal child witness - Credibility and reliability central issues - Inconsistencies in evidence - Gratuitous concurrence - Trial judge's directions as to complainant's evidence - Mildren direction - Whether undue pressure on jury - Whether miscarriage of justice
Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr S B Watters
Respondent: Ms L D O'Connor
Solicitors:
Appellant: Thames Legal
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
B v The Queen [1992] HCA 68; (1992) 175 CLR 599
Hall v Police [1999] SASC 197
Morgan v The State of Western Australia [2011] WASCA 185
R v Knight [2010] QCA 372
RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620
Stack v The State of Western Australia [2004] WASCA 300; (2004) 29 WAR 526
BUSS JA: After examining the trial record and listening to the audio disc of the trial judge's summing up, I have decided, for the reasons given by Hall J, that the appeal should be dismissed.
MURPHY JA: I agree with Hall J.
HALL J: Following a trial before a judge and jury in the District Court at Broome the appellant was convicted of one count of sexual penetration of a child under 13 and one count of indecent dealing with the same child. Both offences were alleged to have occurred at the same time as part of a single incident.
The prosecution case was that on a date between 1 October and 14 November 2007 the complainant had attended at the appellant's home in company with a female friend. The complainant is an Aboriginal girl who was 12 years old at the time. The appellant was a 39‑year‑old male. It was alleged that the appellant induced the complainant to perform oral sex on him whilst he touched the complainant's breasts under her clothing. This was said to have occurred in a context where the appellant would provide cannabis to the complainant and other young females in return for sexual favours.
The issue at trial was whether the acts constituting the two charges had occurred. The prosecution case depended critically upon the complainant's evidence. There was no corroboration in regard to the two alleged acts. There was, however, evidence that was led to show that the appellant had a propensity to engage in sexual conduct with under‑aged females and to offer cannabis as an inducement.
The complainant gave two recorded interviews to the police. These occurred on 14 November 2007 and 26 November 2007. In the first interview the complainant said she had attended the appellant's home and seen others engaging in sexual activity but denied that she had been involved in any such activity. In the second interview she changed her position and referred to the acts that were the subject of the two charges. She said she did not refer to these matters in the first interview because she was scared.
The complainant's evidence at trial was pre‑recorded on 5 May 2009. The evidence‑in‑chief principally consisted of the two police interviews. The complainant gave apparently inconsistent answers in cross‑examination as to whether the acts, the subject of the charges, had occurred.
The defence case was that the jury could not be satisfied beyond reasonable doubt that the alleged incidents had occurred due to the inconsistency of the answers given by the complainant. It was argued that it would not be reasonably possible for the jury to be satisfied that what the complainant had said in the second police interview was truthful given that it was contradicted by the first interview and evidence given in cross‑examination.
In the course of her summing up, the trial judge referred to the complainant's evidence. In doing so she told the jury that they should take into account what she referred to as possible cultural differences between Aboriginal children, such as the complainant and a number of other witnesses, and other children. She then suggested that some of these differences may account for what might otherwise seem to be inconsistencies. It is to these directions that the single ground of appeal is directed.
The ground of appeal is as follows:
The trial Judge erred both in law and fact, and there was a miscarriage of justice, when she delivered a summing-up that was unbalanced and/or unfair;
Particulars:
1.1Her Honour rehabilitated the complainant's testimony;
1.2Her Honour provided her own explanations for inconsistencies in the complainant's statements;
1.3Her Honour effectively told the jury the complainant's Aboriginality may be a reason for inconsistencies in her testimony;
1.4Her Honour pressed her own personal views concerning the complainant's evidence;
1.5Her Honour gave the jury a 'Mildren direction', when such should not have been given and/or was not required.
The appropriateness of the directions given by the trial judge needs to be assessed in light of the evidence in the trial and the issues faced by the jury. For that reason it will be necessary to canvass the evidence in some detail.
Complainant's evidence - first police interview
The complainant was first interviewed by the police on 14 November 2007. When asked about the appellant the complainant said words to the effect that 'girls do stuff to him'. However, parts of these answers were indistinct and had to be repeated. She then said:
A.He's, um, after girls, like sometimes he gives them um, lots of gunga and cigarettes, about two packets.
Q.Mm hm.
A.Mm - - and then - - and he drops them off somewhere and sometimes he tells me he's recorded people on his phone. They have sex.
Q.Yeah?
A.That's all I know (ts 4).
The complainant then referred to having gone to the appellant's house two weeks earlier, on a Thursday. She said she had gone there after school with a friend called RJ. She said that the appellant had shown her a video of people having sex on his mobile telephone. She said that she had seen the appellant and RJ having sex in the house. She observed this through a window whilst she was outside. She said that the appellant then gave RJ 'gunga' and cigarettes. The word 'gunga' (or gunja) is a colloquial word for cannabis. She said that the appellant then dropped her and RJ off in his car and they went home.
The complainant said that the appellant had also tried to touch her. She was then asked:
Q.When did he try and touch you?
A.On that Thursday.
Q.On the same day that you saw this?
A.(Nods head).
Q.Yeah? And did that happen before or after he and [RJ] were muning?
A.Yeah, after.
Q.Okay, so they finished muning and then what happened?
A.And then he tried to touch me.
Q.Well, you were outside, so how did you get inside?
A.He comes outside.
Q.Okay. Yeah, so he came outside?
A.Mm.
Q.And what happened?
A.He trying to feel me - - -
Q.Where - -
A.- - and I said, 'No.'
Q.Where were you?
A.Outside.
Q.Which part?
A.Round the side and then when I saw them finish I walked out the front.
Q.Okay. So, you saw them finish?
A.Mm hm.
Q.Walked to the front. Yeah?
A.And sometimes they go there at night time.
Q.We'll just talk about this time.
A.Okay.
Q.Yeah. For now, we'll just talk about this time. So, you walked to the front?
A.Yeah.
Q.And then what happened?
A.He tried to feel me.
Q.Who else was there?
A.Only us two.
Q.Where was [RJ]?
A.At - - outside with us.
Q.Did she see what happened?
A.Yes.
Q.Okay, where did he try and feel you?
A.In my minny.
Q.How close did he get to your minny?
A.A little bit but I moved away.
Q.Sorry?
A.A little bit but I moved away.
Q.How close is 'a little bit'?
A.Say about there.
Q.Okay. Did he say anything to you?
A.Mm., yeah, but he says that 'Why don't you and [RJ] go to bed and lick each other?' I said, 'No'. (ts 11 - 13)
She was asked whether anything like this had happened to her before and she said that this was the first time.
Evidence of the complainant - second police interview
The complainant was interviewed again on 26 November 2007. On this occasion when asked about the appellant the complainant said:
A.Um, he sells - - - girls sell themselves to him for smokes and gunga.
Q.Yeah?
A.And when me and [RJ] went there - -
Q.Yep?
A.- - - and [RJ] had sex and I sucked him off.
Q.So you said [RJ] had sex - -
A.Mm.
Q.- - and you sucked him off?
A.Mm hm.
Q.When did this happen?
A.On the Thursday.
Q.Okay. On a Thursday. Now, we've previously spoken about this and you told me how you could remember that Thursday and that was a couple of weeks ago that we spoke.
A.Mm hm.
Q.And the Thursday was a couple of weeks before that, is that right?
A.(Nods head).
Q.And you told me that you watched [RJ] have sex with Bobby Bowles, but nothing happened to you.
A.Mm hm.
Q.Why didn't you tell me what had happened to you that day?
A.I was too scared to.
Q.You were too scared to tell me? Okay. And why are you not scared any more?
A.Cause if I cannot tell the truth I won't be going on the bus.
Q.Oh, okay. So, tell me about that? What's this about going on the bus?
A.To go and see my dad.
Q.Okay. Who told you that you've got to tell the truth?
A.You.
Q.Yeah? And who told you that if you don't tell me, you won't be going on the bus?
A.[K] and - - and you.
Q.Okay. Just to clarify that, I didn't tell you you can't go on the bus if you don't tell me, but I said we need to talk before you go. Now, just to clarify that, when you're talking about going on the bus, are you going to go and stay with your dad and your dad's name is - ?
A.[RH]
Q.Dad's [RH]. And Dad lives in [a town]?
A.(Nods head).
Q.And you're going to stay with him for a while.
A.Yeah.
Q.And [the town] is a long way from Broome, isn't it?
A.Mm hm.
Q.Okay, and so, that's why we need to catch up with you - -
A.We'll be there tonight. Like if we go well, I'll be there tonight.
Q.Yeah, okay. So, that's why - - because it's a long way from Broome, that's why we needed to catch up with you before you went. Okay. So, before, you said you were too scared to tell me last time we talked, how do you feel now?
A.Good (ts 4 - 6).
When taken in more detail through the events of the day in question the complainant repeated that she had engaged in fellatio with the appellant and that it had been done to get 'a smoke and gunga'. She said that the appellant had said 'Suck me off. And I'll give you gunga and smoke.' She said that she complied and that this occurred before the appellant and RJ had sex. She said that the act of fellatio occurred in the appellant's bedroom. She said that the appellant was wearing black jeans but no T‑shirt. In the first interview she had said that the appellant was wearing black jeans and a blue shirt. She gave details as to what had occurred including that the appellant had put a condom on. She was also asked the following questions, which are relevant to the second charge:
Q.- - when you sucked him off?
A.(No audio response).
Q.Did he do anything to you?
A.No, only feeling my tits.
Q.Okay. When he was - - when you were sucking him off?
A.Mm hm.
Q.What were you wearing?
A.Um, a bra and my T-shirt. I had everything on.
Q.Okay. And when he was feeling your tits - -
A.Mm.
Q.- - was it on the outside of your clothes, or underneath?
A.Underneath. And then when he - - when we had finished we went on home (ts 12).
She was asked whether there were other times that this type of thing had happened to her with the appellant. She said:
A.Mm - - I don't remember, only that day.
Q.Only that day. Okay, just the way you were talking, you were saying things like - - you said before - - you knew sperm out - - came out because he'll say he'll say he's finished. That sounds like to me that it's happened more than once.
A.Yeah, it happened more than once but I don't remember the times.
Q.Oh, okay. How many times has it happened?
A.Mm - - couple of times.
Q.How many is 'a couple'?
A.Every night on his payday.
Q.Every day on his payday?
A.(No audible response).
Q.How long have you been dong this with Bobby?
A.For a while (ts 14).
Complainant's evidence - pre‑recorded evidence 5 May 2009
The pre‑recording of the complainant's evidence on 5 May 2009 commenced with the prosecution seeking confirmation from the complainant that she had reviewed the two police interviews. She was asked whether everything she had said in the interviews was correct and she confirmed that it was. This answer was necessarily ambiguous in light of the fact that she had given different accounts in the two interviews. She was then asked whether she wished to change anything in the videos and she said that something that she said she had seen another girl do on one occasion was incorrect. She was then shown a number of photographs which she confirmed were of the appellant's house.
The most significant part of the pre‑recorded evidence was the cross‑examination. It was apparent during the course of this cross‑examination that the complainant had difficulties understanding some of the questions. For example, she was asked whether prior to giving evidence she had been shown a video tape of a conversation she had had with the police:
She showed you the videotape of a conversation you had with the police?‑‑‑Yes.
Do you remember what year that was?‑‑‑No.
Was it last year in 2008?‑‑‑I don't - I don't get you.
Good; that's good. So you don't understand my question?‑‑‑Yeah.
So I'm going to ask it in a better way. Do you know what year it is this year?‑‑‑I don't know (ts 10).
A short time later she was asked:
You know how you had two conversations?‑‑‑Yeah.
I'm going to call the first one you had the first conversation and the second one you had the second conversation?‑‑‑Yep.
Do you understand what I mean?‑‑‑Yeah.
Because there was some time in between those conversations, weren't there?‑‑‑Yeah.
It did not happen in one day?‑‑‑I don't get what you're saying.
It's just that you don't understand the question?‑‑‑Yeah.
No; so it's my fault. I'm going to ask it better. When you had those two conversations, they didn't happen on the same day, did they?‑‑‑No (ts 11).
The confusion here is quite understandable. There was insufficient clarity as to whether the questioner was asking the complainant to identify the year and day on which the alleged offences had occurred or when the two police interviews had occurred or when she had subsequently been shown those interviews prior to giving evidence.
A little later the complainant was asked about the circumstances in which she gave the second interview to the police:
When you watched the video yesterday, do you remember that you told the police lady that if you didn't tell the truth, you wouldn't be going on the bus?‑‑‑Yes.
Did the police lady talk to you before you got recorded? Did she have a chat with you about you going to visit your dad?‑‑‑Yes.
...
Do you remember what you said to her?‑‑‑I don't get you.
When you had the conversation - you know you had this conversation that you listened to and watched yesterday?‑‑‑Yes.
You know that was recorded of course?‑‑‑Yeah.
So before it was recorded you would have talked to the police lady, had a conversation with her. You don't understand what I'm asking?‑‑‑No.
...
Did she say anything about Bobby Bowles?‑‑‑I don't remember.
Did she say that Bobby Bowles was a bad man?‑‑‑Yes.
Did she say that Bobby Bowles was in big trouble?‑‑‑Yes.
Did she say to you that you could help her catch Bobby Bowles?‑‑‑Yes.
Did she say to you that you should say, when she asked you questions on the interview, that you should say bad things about Bobby Bowles?‑‑‑Yes.
Did she say that if you didn't say bad things, you couldn't go on the bus to visit your dad?‑‑‑Yeah (ts 12 - 13).
The complainant was asked why it was she had said that things had occurred to her in the second interview with the police:
Did you just tell the police lady that to make sure you could go on the bus?‑‑‑Yes.
So is it right to say this, [the complainant], that you made up the story so you could go and see your dad?‑‑‑That was for the first tape.
Yes. On the second tape, I'm talking about the second tape where you told the police lady that some bad things happened - - -?‑‑‑Yeah.
- - - you told the police lady that some bad things happened in Bobby Bowle's house. Do you remember that? Do you remember seeing that yesterday?‑‑‑Nah; no (ts 15).
There were some objections as to the form in which the questions were being asked in that the questions contained references to 'bad things' without clarifying what matters were being referred to. Counsel, who was then appearing for the appellant, then clarified that in referring to 'bad things', he was referring to the act of fellatio that was alleged to have occurred with the complainant. He then asked:
Do you agree that you made up the story about the bad things that Bobby Bowles did to you so that you could go and see your Dad in [the town]?‑‑‑Mm - - -
You don't understand?‑‑‑Yeah.
I'm going to ask the question again. Okay? [The complainant], can you hear me?‑‑‑Yep.
Did you make up a story about Bobby Bowles doing bad things to you so that you could go and see your dad in [the town]?‑‑‑No.
But you didn't tell Jane about the bad things that Bobby Bowles did to you when you spoke to her the first time, did you?‑‑‑Yep.
You agree with me?‑‑‑Yes.
That first time when you spoke to Jane, you knew that you had to tell the whole truth?‑‑‑Yes.
But are you saying now, [the complainant] that you didn't tell Jane the whole truth?‑‑‑Yes.
And that you only told the whole truth on the second occasion so you could see your dad?‑‑‑Yes.
The first time that you spoke to Jane, do you remember telling her some things that you say you saw Bobby Bowles doing with [RJ]?‑‑‑Yes.
Do you remember in that first conversation you told Jane that you saw [RJ] sucking Bobby off and Bobby sucking her cunt?‑‑‑Yes.
And then when you spoke to Jane the second time you said that [RJ] had sex with Bobby Bowles, didn't you?‑‑‑Yeah.
They're different stories, aren't they?‑‑‑Yeah.
Did you tell Jane a different story the second time about what Bobby Bowles did to [RJ] so that you could go on the bus to see your dad?‑‑‑I don't get you.
I'll ask it again. I'm sorry [the complainant]. Did you say something the second time about Bobby Bowles and [RJ] so you could go on the bus to see your dad?‑‑‑No.
No? Should I ask the question again? I'll ask it in a better way if you didn't understand it?‑‑‑Yeah.
You agree that you said two stories about what happened between Bobby Bowles and [RJ]. Do you agree with that?‑‑‑Yeah.
My question is, did you say something different the second time so that you could go and see your dad?‑‑‑Yeah.
Because at the time when you talked to Jane the second time, was the most important thing to you going to see your dad?‑‑‑Yes.
Even more important than what the police lady wanted to know about Bobby Bowles?‑‑‑Yeah.
Sorry, what was that?‑‑‑Yes (ts 17 - 19).
It is easy to see why the questioning may have been confusing for a child witness. The questions moved from things that had happened to the complainant to things that had happened to RJ. To add to the complications, the complainant was asked to accept that she had said different things about what RJ had done in separate interviews to the police nearly 18 months earlier and then to accept that the reason for that difference was a desire to see her father. The two things were not obviously factually connected. Further, a desire to see her father was not necessarily inconsistent with an intention to tell the truth. The questioner, at least at this stage, avoided asking the simple and obvious question - whether what she had said in the second interview regarding herself was true. When she was asked something approaching that; that is, had she made up the story about the appellant in order to see her father, her response was 'no'. However, much of the questioning blurred the distinction between her motivation and the truth or falsity of what she had said in the second interview.
The complainant was then asked about a written statement that she had subsequently given to the police in which there was no reference to the appellant having given her gunga (cannabis):
Is the reason that you didn't tell the police lady about the ganja because he never gave you ganja?‑‑‑Yeah.
Is that right, he didn't give you ganja?‑‑‑He did.
He did. Well, I'm going to suggest that he didn't give you ganja. What do you say about that?‑‑‑I don't know.
GROVES DCJ: Do you agree with or disagree with what Mr Halphen is saying? Mr Halphen is saying that he didn't give you ganja. Do you say that he did or that he didn't give you ganja?‑‑‑He did (ts 28 - 29).
The first question and the answer to it reveal the inherent problem with questions containing double negatives. An affirmative answer to such a question may mean that the person is agreeing to the negative proposition or is asserting the positive proposition. Fortunately, in this instance, it was clarified. However, this passage shows that some witnesses can be confused by such questions; and the complainant clearly was initially.
She was asked about her statement to the police that she had seen a video of people having sex on the appellant's mobile telephone:
So is it the case, [the complainant], that you're making it up about seeing people having sex on the phone?‑‑‑No, I seen it with my own eyes.
Yes? Well, I've got to suggest to you that you never did and you're making that up. What do you say? Do you agree or disagree?‑‑‑I disagree (ts 29).
When the cross‑examiner turned to the question of whether the day that the complainant had been speaking of when first interviewed by the police was the same day that she was speaking of when interviewed on the second occasion, there was considerable confusion. The complainant gave incorrect answers as to the order of days of the week. She was then asked to identify which day of the week it was that she was speaking of in the first interview:
You said that a bad thing happened to [RJ] and nothing happened to you. Is that right?‑‑‑I don't know.
You remember watching the video yesterday?‑‑‑Yeah.
Yes. You were talking about the same day, weren't you, in both videos?‑‑‑Yep.
And as best as you can remember, what day of the week was it that you went with [RJ]?‑‑‑I don't know.
You told the police lady that it was a Thursday?‑‑‑Yeah.
Were you guessing?‑‑‑No.
So what day was it?‑‑‑I don't remember what you're saying.
What day was it that you went to Bobby Bowles' house with [RJ] when you say Bobby Bowles did bad things to you and to [RJ]? What day of the week was it?‑‑‑On a - it was on a Thursday.
It was Thursday. Are you sure it was Thursday?‑‑‑Yeah (ts 31).
The complainant was then asked some questions regarding her observation of seeing RJ come out of the appellant's room and showing her some gunga. The complainant said that they then went home. The final part of the cross‑examination was as follows:
You went home?‑‑‑Yeah. He dropped us off.
He dropped you off?‑‑‑Yeah.
In his car?‑‑‑Yes.
So nothing bad happened to you?‑‑‑No.
And you don't know what happened to [RJ]?‑‑‑No.
This is an important question, [the complainant]. Is this the same day as the day you were talking about with Jane in the conversations?‑‑‑I don't get you.
COGIN, MR: What was the answer?
HALPHEN, MR: She doesn't get me.
Do you remember when you were watching the videos yesterday?‑‑‑Yeah.
You were talking about a day, a Thursday, when you went there with [RJ]?‑‑‑Yep.
And I'm asking you some questions today about that Thursday?‑‑‑Yeah.
Is it the same day?‑‑‑Yes.
Are you sure about that?‑‑‑Yeah.
You didn't see anything happen between Bobby and [RJ] when [RJ] was in Bobby Bowles's bedroom?‑‑‑Yep.
No? Is that what you said, no?‑‑‑Yeah.
At no stage during that day did Bobby Bowles say to you that you and [RJ] should go to bed and lick each other?‑‑‑Yep.
Are you agreeing with me?‑‑‑Yes.
You didn't suck off Bobby Bowles that day, did you?‑‑‑Yes. Yes.
I'll ask you the question again. Okay?‑‑‑Yeah.
I'll just go back a couple of steps, [the complainant]. Okay? We're nearly finished. All right?‑‑‑Yeah.
[RJ] came out of Bobby Bowles's bedroom?‑‑‑Yeah.
And she had some ganja?‑‑‑Yep.
You remember that?‑‑‑Yep.
You were sitting on the bed in the lounge room?‑‑‑Yeah.
Now after she came out with the ganja, did you leave Bobby Bowles' house?‑‑‑Yeah.
You didn't have sex with him that day, did you?‑‑‑No.
I'm sorry?‑‑‑No.
He didn't touch you that day, did he?‑‑‑Nah.
He didn't touch your breasts that day, did he?‑‑‑Nah (ts 35 - 36).
In this passage the questioner commenced by putting some negative propositions. To these the complainant gave positive answers. Again, the difficulty was knowing whether she was agreeing with what was put or positively asserting the contrary. In fact, it becomes clear that it is the latter when the blunt question is put to her that she did not perform fellatio and she then says, 'Yes, yes'. The questioner then decided to try again. The only questions that then appear to be inconsistent with the alleged acts having occurred are the last four. Even here there was an inherent ambiguity about the words 'have sex', which was not explored. Earlier in her evidence the complainant had used that phrase in describing what had happened with RJ, but had not used it in respect of herself.
Complainant's demeanour
In the first police interview the complainant appeared to be distracted. She sat with her knees raised in front of her and rocked on her chair. She constantly fidgeted and spoke in a soft voice that was sometimes difficult to understand. As the interview progressed, she sat closer to the table when asked to do so but continued to fidget and rarely made eye contact with the police officer asking the questions. She leant over onto the interview table and gave the appearance of being disinterested. As the interview progressed she resumed a position of sitting back on her chair and rocking.
In the second police interview, the complainant appeared to be more engaged. Whilst she also fidgeted in this interview, she sat upright in the chair and largely maintained eye contact with the police officer. She did lean on the interview table at one stage but maintained her attention on the interviewer. The complainant also appeared to be quite immature and unsophisticated in her responses, even taking into account she was 12 at the time.
In the pre‑recorded evidence the complainant is noticeably older. Throughout her evidence she generally maintains eye contact with the questioner. However, she turns to look at others for assistance when she does not understand questions. Her tone was flat and uniform, and there is very little expressive quality either in voice or appearance. She appears to be shy and reserved. Most of the questions in cross‑examination are in leading form, requiring only 'yes' or 'no' answers. She answers these questions quickly, often, it seems, without considering the intended meaning of the more complex questions. Towards the end of the cross‑examination she appears to be tired, yawning a number of times.
Other evidence
The prosecution led evidence from three other witnesses regarding instances of the appellant engaging in sex with under‑aged females in return for cannabis. In respect of two of these witnesses, AO and DR, it was not suggested by the prosecution that they had been present at the time the offences had been committed. In that regard, their evidence was relevant to propensity and was admitted on that basis.
The third witness in this category was the friend, RJ, who the complainant had referred to in her police interviews. RJ was about 15 years old at the relevant time. She said that she had seen the complainant performing oral sex upon the appellant, but there is some suggestion both in her evidence and that of AO that AO was also present. This is not consistent with the complainant's evidence. However, that inconsistency assumes that they were all talking about the same incident. This was far from clear.
Evidence was also led by the prosecution of a search conducted at the appellant's house. Photographs were taken that were shown to the complainant and which she confirmed in her evidence was the location at which the acts were said to have occurred. Used condoms were found near the appellant's bed. Since several weeks had passed between the alleged incidents and the search the finding of the condoms was of limited significance. The appellant's mobile phone was also seized and examined. It was not found to contain any pornographic videos. However, evidence was given that such videos could be easily removed and any such removal was hard to detect.
The appellant did not give evidence. He called one witness in his defence. That witness was a nephew who said that the appellant was in Perth from 5 October until close to the end of that month. The relevance of this was that the offences were alleged to have occurred on an unknown date between 1 October and 14 November 2007. However, there was other evidence that indicated that the appellant had returned to Broome by at least 29 October 2007.
Closing addresses
Both counsel focused on the evidence of the complainant. Counsel for the State submitted to the jury that apparent inconsistencies in the complainant's evidence needed to be understood in the context of the particular characteristics of the complainant.
In particular, counsel for the State said:
[C]onsider that at the time of the first interview she had only recently turned 12 years old.
We can see from that interview that she can't read well, we can also see from both the interviews and her evidence in court that she struggles to understand some pretty straightforward and basic concepts. You need to assess her with an understanding of her background, her level of education, and her experiences, her upbringing.
[The complainant] doesn't even know what year it is, I can't recall whether it was in the interview or the prerecording, she was asked at one stage, 'So what year is it?' She said, 'I don't know.' At one stage in cross examination, so this was in her evidence in court, when the other lawyer was asking her questions, she agreed she was 14 years old when she was actually 13. He said to her, 'So you're 14, then?' She said, 'Yes,' well, no, she's actually 13.
At other times she gets confused over the days of the week when she's asked - 'The day before - the day after Thursday. I think she says Wednesday or something like that. There's quite a few questions like that, she gets confused by these relatively straightforward questions. So what does that say to you about her ability to answer these questions? What does that say about all these things that - where she might have seemed to be tripped up, given an answer that doesn't make sense and an answer that seems inconsistent?
Well, you can see how quick she is to deal with this scenario, deal with being asked questions by lawyers. She was clearly getting confused at times, both in her evidence - in the interviews, but also perhaps more so in her evidence in court. With the greatest respect to the lawyer who cross examined [the complainant] on that occasion, you can perhaps understand why. Some of the questions were just simply too complicated for a girl of [the complainant]'s background.
On several occasions she was asked the same question repeatedly, so she was asked a question, she gave an answer, but yet she would be asked it again and again. Then that's when you start to see these slight changes, this is one example, this is at pages 35 to 36 for her Honour and my learned friends - this has been put to [the complainant] in cross examination.
You didn't suck off Bobby Bowles that day, did you?‑‑‑Yes. I'll ask you that question again, okay?‑‑‑Yes. I'll just go back......did he?‑‑‑No. He didn't touch your breasts that day, did he?‑‑‑No.
Ladies and gentlemen, that is the exact point that the cross examination of [the complainant] finished, when finally at the end of her giving evidence for well over an hour she said 'No, nothing happened that day.' So despite [the complainant] saying repeatedly in her evidence that she had performed oral sex on Mr Bowles and that he had touched her breasts, she was still asked the same question - that same question about whether or not it happened again and again until right at the end she gave those answers.
Now, that is not at all a criticism of the lawyer who was asking those questions, there was absolutely nothing improper about it, there was nothing improper with what was being asked. It's just something I ask you to keep in mind when you consider those inconsistencies, when it's being suggested to you, 'Well, [the complainant] only admitted that she made it up,' or, '[the complainant] retracted it and said nothing happened that day.'
When did she say that she had made it up, when did she say that nothing had happened that day? What questions was she being asked? How many times had she been asked that question? How long had she been giving evidence for by the time she gave those answers? That's all I ask that you consider when you look at these somewhat inconsistent answers, and especially those answers she gave at the end (ts 99 - 101).
Defence counsel submitted to the jury that they could not be satisfied beyond reasonable doubt that the appellant was guilty because the inconsistencies in the complainant's evidence meant that they could not place reliance upon it. He suggested that in the second interview the complainant had been induced to give the evidence that she did by being told that she would not be able to see her father unless she told the truth about the appellant. In regard to the second interview, defence counsel submitted that the complainant was suggestible; that is, that she was inclined to agree with whatever was put to her. In regard to the pre‑recorded evidence, defence counsel said:
Now, just to the cross examination of [the complainant] which you had played yesterday, yes, it took a long time, sometimes these things do, but the point of cross examination is to try and get to the truth, and sometimes it takes a while, but what you know is the cross examination towards the end was conducted in a very open and a very gentle fashion and a completely different account emerged then. The third version emerged then, and on the first version and on the third version, you could never conclude that Mr Bowles was guilty of anything.
...
Where there's a doubt, a reasonable doubt, Mr Bowles is entitled to the benefit of it. A prosecution case should be like a brick wall. Bricks are laid one after another and there's no light through those bricks. Here you've got a wall of straw. It's got holes in it you could drive a truck through, and no amount of special pleading on the part of the witnesses - they're young, they're Aboriginal, they get confused, is good enough because you have to be able to act on the word of [the complainant], and if you find that word unreliable, then you can't act on it, not in the way you're being asked to act by the state. As I say, in all the circumstances, the only appropriate verdicts in this case, when you've sifted through all of that, are verdicts of not guilty to both charges (ts 118).
Summing up
In her summing up the trial judge commenced by telling the jury in orthodox terms that it was their role to determine the facts based upon what the witnesses had said. Her Honour told them that the case depended upon the complainant's evidence and that they would have to look carefully at that evidence. She told them that when she spoke of the evidence that the jury was not bound by anything that she said in regard to the facts and that she was simply trying to focus their minds on what the issues were. Her Honour said:
The facts are for you alone and it's only the law that I direct you on that you are bound by. You'd also appreciate that I cannot comment and I'm not intending to comment on all the evidence (ts 122).
Her Honour also said:
It's critical in your judgment that you take account of all the evidence and you reach your conclusions on all the evidence, whether I mention it or not, whether the counsel have mentioned it or not. Don't concern yourself with any view that you think I might have about the evidence because I'm not a judge of any facts. You alone judge the facts. If I had a view about the case, it would be entirely irrelevant (ts 122).
In regards to assessing the evidence of the witnesses, her Honour said:
Now, when you judge for truthfulness, you can take account of the manner in which the evidence was given, the way the witness expressed himself or herself, their general attitude, their demeanour, and then you look for evidence of consistency between - if you accept part of the evidence, is it consistent with the other evidence? So you're looking always for some consistency.
What you're doing is considering the truthfulness of the witnesses and the value that you place on the evidence that's been given. Everything personal to a witness is involved in his or her credit, particularly in this case the age of the witnesses, when you think of the girls and of [DR], and their powers of observation, their capacity to make observations, their power of recollection, and in this case, ladies and gentlemen, there's no avoiding the fact that there may well be a cultural difference between these children and other children, if I can put it that way.
The state has referred to some of this. They referred you to the background, level of education and upbringing, but you as a jury sitting here in Broome know that you're dealing with the evidence of Aboriginal children, which I think brings another element into it, and that's going to be a matter very much for your judgment. A 12‑year‑old Aboriginal girl, that's what [the complainant] is. Now, I don't know if in your day‑to‑day life you have close contact or any contact with Aboriginal girls at the age of 12.
You're judging [the complainant], and [the complainant] is who you have to judge. Her evidence is the key point in this trial, but in making that judgment, I'm sure you're going to take into account things that may be obvious to you from the way the evidence came. I'm going to mention these things, and if you don't agree with them, this is an area where I am talking to you about my experience and about my hearing and seeing, and if it assists you, rely on it, but if you had a different impression, that's a matter for you.
You may have been impressed, as I was, that the first time the three girls - and here I'm talking about [the complainant], [AO] and - I don't want to forget her name - [RJ] - [the complainant], [RJ] and [AO]. The first time [RJ] and [AO] were interviewed, both of them said they went to his house, they saw these things happening in his bedroom but they saw it behind the curtain. They didn't go in there. Do you remember them saying that? That's exactly what [the complainant] said the first time. She went there but she didn't ...
All three of those girls said they looked through the curtain and they saw other people doing it, but no, they didn't do anything. It was only in the second interview of [the complainant] - and of course the other girls didn't have a second interview - where she said that bad things did happen, and you know what she told you there. One of the difficulties - you probably noticed the police officer cannot put propositions to the girl. She can't say, 'You went there to have sex with him, didn't you?' She can't put what can be done in cross examination.
You noticed the police officer saying, 'Tell me, step by step, everything that happened', in other words trying to get the girl to tell her and not telling her what to say. That's a matter for your judgment. Then we get to cross examination. The other thing that you might have noticed - I don't know if you could hear the first one very well but you heard most of it I think. The number of times that [the complainant] said, 'That's all I know, that's all I know' - and you just may have formed a view of a girl not wanting to be there, not wanting to say anything, wanting to get out of the police and go home. 'That's all I know.' Now, ladies and gentlemen, you think about a 12-year-old girl and whether that's a very happy thing, to be in a police station answering questions.
The other thing that is of some concern - any time Aboriginal people - and this is with no disrespect to them, but unsophisticated people, whether they be Aboriginal or not, are asked the questions that come in cross‑examination - and you've heard the questions, and all of us are just used to them. In court, this is how you cross examine, and the cross‑examination, I have to say, was quite proper and quite thorough, but you just remember the negative questions, and this was at page 28 of [the complainant's] cross examination when she was asked:
Is the reason you didn't tell the police lady about the ganja because he never gave you ganja?‑‑‑Yeah.
Is that right? He didn't give you ganja?‑‑‑He did.
He did? Well, I'm going to suggest to you that he didn't give you ganja. What do you say about that?‑‑‑I don't know.
So, ladies and gentlemen, when you - so often a question - and you've heard the questions. 'You went to his house, didn't you?' or 'You didn't go. Nothing happened, did it?' So there are double negatives coming in. It's very, very difficult, you might think, for an unsophisticated person to know quite how to answer. On the other hand, all you have are her answers, and you have to judge that and judge what she said.
We also have a problem with what's sometimes called gratuitous concurrence, and sometimes reading through the transcript where - and I have a transcript, you didn't, but where [the complainant] just constantly said, 'Yes, yes, yes,' and then every once in a while she would jack up a little bit and say no or something, but often just agreeing, and again with unsophisticated witnesses, particularly a 12-year-old Aboriginal girl you might think, there is a tendency to want to get it over with and, 'If I just agree with the person, maybe it will end.'
The other problem is repetitious questioning and it's quite proper to be done, but you can have a situation where the first time you ask the question you get an answer. The second time the witness might give that answer again but if it's a child witness beginning to think, 'I must have said the wrong thing,' and eventually after it's asked three or four times coming up with a different answer.
Now, I don't know if you saw that happening but that is something that can happen when there's a persistent questioning. Now, I'm not suggesting in any way that Mr Halphen who was the cross-examiner did anything wrong. He did what is proper to be done and he did it gently and thoroughly.
But there is a concern in our courts sometimes that there are witnesses who the whole cross‑examination procedure can be a little bit impossible for. But you have [the complainant] and you have to judge her and you have to judge whether she was truthful and in a moment I'll talk about reliability because that's a big problem in her evidence.
It's not to say if you do not accept a witness's evidence you have to reach the view that she necessarily is telling lies. Witnesses can be mistaken in their recollection or inaccurate in their recall of events or unable to properly express themselves. But in this case, as Mr Kelly has rightly said to you, on the first occasion [the complainant] gave one version of what went on and there are no allegations of any - of either of the counts on the indictment, there's no allegation.
All of her evidence that you're relying on for these two counts came in the second interview, but by the third interview, but the very end of it she denies again that anything happened after her questioning. So, ladies and gentlemen, I am not trying to be an advocate for [the complainant] but trying to alert you to the issues that you need you to think about it when you're thinking about this 12‑year‑old Aboriginal girl being questioned by police and then cross‑examined 18 months later in May of 2009 (ts 124 ‑ 127).
At the hearing of this appeal counsel for the appellant submitted that it was appropriate for this court to listen to the audio tape of her Honour's summing up. I have done so and there is nothing about the tone which the trial judge used which might suggest that she was urging the jury to reach a particular conclusion.
It is true that the issues that she raised in regards to the possible difficulties that the complainant might have had in dealing with cross‑examination might lead the jury to discount the significance of apparent inconsistencies. However, this was an issue squarely raised in the trial and commented on by counsel in their closing submissions. Neither her Honour's words nor her mode of expression could properly be described as placing undue pressure upon the jury to reach a conclusion that they should be satisfied beyond reasonable doubt that the complainant was telling the truth. Her Honour emphasised with clarity that the jury was the sole judge of the facts.
Were the directions appropriate?
It is clear that the credibility and reliability of the complainant were the central issues to be determined by the jury. In this regard, one of the factors that the defence placed considerable reliance upon was the inconsistencies in the complainant's evidence. In particular that in the first police interview she denied anything had occurred to her at the appellant's house and at the end of her cross‑examination, she apparently made similar denials.
I say 'apparently' because there was some ambiguity in the questioner using the phrase 'have sex' and in failing to clarify whether the complainant understood that phrase to also include fellatio. Nonetheless, it was clearly open to the jury to conclude that there were inconsistencies and the significance that they considered those inconsistencies to have was important in determining whether they could find that the prosecution case was proved to the requisite standard.
As I have noted, both counsel made submissions to the jury in their closing addresses in regard to this issue. In particular, counsel for the State suggested to the jury that the inconsistencies may be of less significance when account was taken of the age and background of the complainant and the manner in which the questions was asked on each occasion. In these circumstances, it was not surprising that the trial judge considered that it was necessary to provide the jury with some assistance as to how they might go about assessing the significance of the inconsistencies.
In regard to the assessment of credibility and reliability, it is usual for juries to be told that they can rely upon their commonsense and life experiences in assessing the testimony of the witnesses. This does not usually require any significant elaboration. Reference might be made to the way in which the evidence is given, including demeanour and body language as matters that the jury may wish to take into account.
The reason why this does not require much elaboration is that these are matters that are generally self‑evident. However, there may be witnesses who will require the trial judge to elaborate further in their directions. This will be because it may not be readily apparent to the jury that factors which would be otherwise useful in assessing the credibility of a witness may be less reliable for a particular witness due to some disability or significant characteristic of the witness. There may be a danger that a jury drawn from the dominant culture will unthinkingly assess a witness based upon their own unconscious assumptions in regard to levels of understanding, educational background and appropriate responses. In those circumstances, it may be necessary for a judge to suggest to a jury that they may need to use care in respect of a particular witness in applying these assumptions.
In the case of Aboriginal witnesses it has been recognised that the reliability of answers may be suspect if given in answer to leading questions: Morgan v The State of Western Australia [2011] WASCA 185. The willingness of some such witnesses to agree with a proposition put to them by a person in authority, regardless of whether they in fact agree, has been referred to as 'gratuitous concurrence'. The expression was used by K Libermann in an article titled 'Ambiguity and Gratuitous Concurrence in Inter‑Cultural Communication' (1980) 3(1) Human Studies 65. The phenomenon was also referred to in Stack v The State of Western Australia [2004] WASCA 300; (2004) 29 WAR 526 [114]. In that case, Steytler J at [59] referred to an article by Mildren J entitled 'Redressing the Imbalance Against Aboriginals in the Criminal Justice System'. It is from that article that the so‑called Mildren direction has been drawn. See also Hall v Police [1999] SASC 197 [193] ‑ [196].
The Aboriginal Benchbook refers to Mildren directions as being pro forma directions to the jury for cases involving Aboriginal witnesses to be given before the prosecution opens the case. It notes that such directions are designed to assist a jury in assessing the evidence of Aboriginal witnesses. This is said to be achieved by drawing the jury's attention to the possibility that socio‑linguistic features of an Aboriginal witness' evidence may lead to misunderstandings. The Benchbook does not give a suggested form of directions, nor does it suggest that such directions are required in every case which involves Aboriginal witnesses.
It would be wrong to assume that such directions ought to be given in every case that involves a witness or an accused who happens to be Aboriginal. It would be wrong to think that simply because a person is of a particular race they will be labouring under some disability or should not be judged by the standards that might apply to other witnesses.
In this regard, Steytler J in Stack said:
While I would not doubt that cultural and language issues might play a significant role in the giving of evidence by some Aboriginal persons (in common with persons of many other cultures) and while I accept that it might be appropriate, in a particular case, to alert the jury to the potential significance of those factors in circumstances in which the jury might otherwise not be aware of them, and even to regulate the form which cross-examination takes, in order to take account of those differences or difficulties, there is, in my respectful opinion, a need for great caution in this area. As with any group or culture, what is generally true may not be true in respect of individual members having different experiences or backgrounds (in this case all of the witnesses were suburban dwellers). I do not consider that any generalised assumption should be made in respect of particular witnesses in the absence of evidence that those factors are applicable to that witness. That is to say, it seems to me that the factors must ordinarily be apparent either from the evidence of the witness himself or herself or from the manner in which the evidence is given [117].
In Stack the trial judge had given a Mildren direction in the course of his opening remarks to the jury. The case was not decided on the issue of the appropriateness of those directions. However, some consideration was given to it by the members of the court. Steytler J said:
In my opinion the direction would not have been understood in the manner contended for by counsel for the applicant. The trial judge, in speaking of the considerations which, he said, applied in particular to Aboriginal witnesses, mentioned a whole range of considerations, including the fact that many Aboriginal people do not speak English as a first language, eye contact, silences, references to time and the "cultural responses to leading questions" to which he referred. More importantly, he specifically told the jury, very properly, that the questions whether or not those things bore upon the evidence of any particular witness and, if so, in what way and to what extent, were for them to assess. In those circumstances I am unable to accept that the jury would, as a consequence only of the directions, have regarded as suspect any answers given to leading questions in cross-examination. Nor, in the circumstances to which I have referred, was it necessary, or even appropriate, for the trial judge to identify any example of gratuitous concurrence [136].
In R v Knight [2010] QCA 372 the trial judge gave a direction to the jury that referred to the difficulties that might be faced by Indigenous witnesses. There were a number of Aboriginal witnesses in that case and McMurdo P was critical of the direction because it encouraged a stereotypical view rather than focussing on any individual witness:
The evidence of Indigenous witnesses, like the evidence of non-Indigenous witnesses, varies greatly as to honesty, reliability and credibility. Indigenous witnesses, like non-Indigenous witnesses, range from the not well educated, through the inarticulate and the dishonest, to the highly educated, the honest and the reliable, and with every combination and shade of grey in between. In this case all the Indigenous witnesses were prisoners who did not appear to be well educated. But it did not automatically follow that they were all likely to succumb to suggestions put to them by defence counsel, a recognised phenomena known as gratuitous concurrence, common amongst some Indigenous people. A broad general statement like that given by the judge was contrary to the spirit of the terms of s 632(3). More importantly, it tended to suggest that evidence of Indigenous witnesses, especially in cross-examination, may be less reliable than evidence of non-Indigenous witnesses. The judge invited the jury to consider whether his general proposition in respect of Indigenous witnesses applied to the evidence of a particular witness. But even so, the judge's general direction was not helpful to the jury and wrongly encouraged a stereotypical approach to the evidence of Indigenous witnesses, especially in cross-examination. If the judge considered the interests of justice required a warning about a particular Indigenous witness's evidence, for example, because the witness may have been disadvantaged for cultural reasons or may have given answers through gratuitous concurrence, the judge should have given that direction in respect of that individual witness's evidence. [283].
A trial judge has a broad discretion in commenting on the facts of a case. However, the comments must not overawe the jury; they must be given in a way that ensures that the jury is not deprived of an adequate opportunity of understanding and giving effect to the defence: B v The Queen [1992] HCA 68; (1992) 175 CLR 599, 605 ‑ 606 (Brennan J, with whom Mason CJ and Deane J agreed). See also RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620.
In the present case it is clear that the trial judge did not give the directions in regards to the complainant's evidence based merely upon the fact that she was Aboriginal. Her Honour referred to the age of the complainant and the manner in which questions had been answered. The evidence of the two interviews and the pre‑recorded evidence were all before the jury. There was plainly a question as to whether the jury should accept apparently inconsistent answers at face value or whether there were other factors that needed to be taken into account.
In my view, there was a proper basis for the trial judge to give directions to the jury in regard to the complainant's evidence. There was, of course, an available explanation for the inconsistent answers given at the first interview; the complainant said that she had not told the truth on this occasion because she was scared. As to the cross‑examination, a great deal of it was in leading form. There is nothing in itself unusual about this. However, with some Aboriginal witnesses and indeed child witnesses, the desire to be compliant with the questioner may reduce the reliability of answers to such questions. Indeed, as defence counsel pointed out, there were indications that the complainant was 'suggestible'. Of course, he was doing so in regard to the second interview. Nonetheless, the point was well made and the jury might not have readily appreciated the difference in the form of the questions put in the second police interview as compared to the cross‑examination.
There were a number of occasions when it was plain that the complainant did not understand questions put to her in cross‑examination. This may have been because some of the questions were complex, ambiguous or contained double negatives. The complainant was rarely given a choice of alternatives or asked open questions that would leave little doubt as to the nature of her evidence.
In these circumstances, there was a proper basis for the trial judge to suggest to the jury that answers which were apparently inconsistent might have other explanations. Whether or not those explanations should be accepted was, of course, entirely a matter for the jury.
The appellant submits that the trial judge went further than was necessary in giving her directions. In particular, it is said that her Honour 'rehabilitated' the complainant's testimony. This assumes the very fact that is in issue. Whether the complainant's testimony was damaged by the inconsistencies and to what extent depended upon whether they could be accepted at face value. There were reasons to think that they could not be. In pointing out other possibilities, the trial judge was not 'rehabilitating' the testimony, rather her Honour was seeking to ensure that it was properly assessed by the jury.
It is also submitted that the trial judge provided her own explanations for inconsistencies in the complainant's evidence. It is fair to say that her Honour did offer possible explanations for the inconsistencies. That is a necessary component of directions of this type. The vice that is suggested seems to be that her Honour was advancing the explanations as being her own. That is, that the trial judge pressed her own personal views concerning the complainant's evidence.
Her Honour did refer to her 'experience' but this was in a context where she referred also to 'my hearing and seeing'. On one reading it might be thought that the trial judge was referring to her broader experience beyond that of the trial in question. That is, that she was drawing on a greater experience than that of the jury and suggesting to them that she had some special knowledge in regard to witnesses of this type.
In my view, that interpretation is not open when one takes into account the whole of the relevant passage. In fact, when read in context (and the audio recording also bears this out) it is clear that her Honour is referring to her subjective experience at the trial and that she expressly leaves open to the jury that they may have had a different impression. Here, as elsewhere, insofar as her Honour makes comments in regards to the evidence, she makes it clear that they are personal comments and that the jury is at liberty to reject them.
As regards the complaint that the trial judge effectively told the jury that Aboriginality may be a reason for the inconsistencies, that does not fairly take into account the whole of the directions. Whilst it is true that her Honour referred to cultural differences and that Aboriginal people may be unsophisticated, it is clear that she was not making these comments in any stereotypical way. Indeed, she referred to particular parts of the complainant's evidence to illustrate the possibility that the complainant may have engaged in gratuitous concurrence, particularly when questioning became repetitious. Her Honour recognised that even if such explanations could be accepted there was a 'big problem' with reliability.
As regards the complaint that the trial judge inappropriately gave a Mildren direction, it does not seem to me to be helpful to attempt to define a category of cases where a Mildren direction will be appropriate and then to ask whether or not a case in question falls within that category. The relevant question will always be whether the directions given to the jury in a particular case appropriately addressed the issues raised in that case. Whether or not a jury will need directions to assist them in their approach to assessing the evidence of a vulnerable or disadvantaged witness will invariably depend upon the circumstances of the particular case. In this regard, a trial judge will need to consider factors such as the age, communication ability, level of sophistication, demeanour and other observable traits that it may be appropriate to point out to the jury.
In the circumstances of this case, I am unable to accept that directions as to characteristics of the complainant that might need to be taken into account in assessing her evidence were inappropriate. Nor can I accept that the directions actually given were such as to place undue pressure on the jury or deprive the appellant of a fair trial. I am satisfied that no miscarriage of justice occurred. In my view, the appeal should be dismissed.
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