JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: BROPHO -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 109
CORAM: ROBERTS-SMITH JA
PULLIN JA
BUSS JA
HEARD: 9 MAY 2006
DELIVERED : 20 JUNE 2006
FILE NO/S: CACR 13 of 2006
CACR 20 of 2006
BETWEEN: ROBERT CHARLES BROPHO
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :WISBEY DCJ
Citation :R v BROPHO [2005] WADC 234
File No :IND 1688 of 2003
Catchwords:
Criminal law - Charges of indecent dealing - Trial by Judge alone - Trial Judge as tribunal of law and tribunal of fact - Whether the trial Judge reversed the onus of proof - Whether trial Judge required to refer to and take into account warning in judgment - Whether warning necessary to avoid perceptible risk of miscarriage of justice - Section 119(3)(a) Criminal Procedure Act 2004 (WA) - Section 30(3) Criminal Appeals Act 2004 (WA) - Whether reasons for decision inadequate - Whether verdict of guilty unreasonable
Sentence - turns on own facts
Legislation:
Acts Amendment (Evidence of Children and Others) Act 1992 (WA)
Criminal Appeal Act 1912 (NSW), s 6(1)
Criminal Appeals Act 2004 (WA), s 30(3), s 30(4)
Criminal Code (WA), s 651A (repealed)
Criminal Law Amendment Act 1988 (WA)
Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004 (WA), s 24
Criminal Procedure Act 1986 (NSW), s 33 (repealed)
Criminal Procedure Act 2004 (WA), s 118, s 119, s 120
Evidence Act 1906 (WA), s 36BE(1) (repealed), s 50, s 106D
Result:
Applications for extension of time in which to appeal against sentence dismissed
Leave to appeal against conviction dismissed
Category: A
Representation:
Counsel:
Appellant: Mr P J Urquhart
Respondent: Mr J Mactaggart & Ms L G Howells
Solicitors:
Appellant: Aboriginal Legal Service
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
A Child v State of Western Australia (2005) 153 A Crim R 406
Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430
Carr v The Queen (1988) 165 CLR 314
Crampton v The Queen (2000) 206 CLR 161
De La Espriella‑Velasco v The Queen [2006] WASCA 31
Doggett v The Queen (2001) 208 CLR 343
Dyers v The Queen (2002) 210 CLR 285
Fleming v The Queen (1998) 197 CLR 250
Kilby v The Queen (1973) 129 CLR 460
Liberato v The Queen (1985) 159 CLR 507
Longman v The Queen (1989) 168 CLR 79
M v The Queen (1994) 181 CLR 487
Nudd v The Queen (2006) 80 ALJR 614
R v Collins [2004] ACTSC 48
R v HS (2004) 90 SASR 28
R v Johnson (2004) 89 SASR 294
R v L J Murphy [2000] NSWCCA 297
R v Massey [2000] ACTSC 107
R v TN (2005) 153 A Crim R 129
R v Tran [2003] ACTSC 53
Riley v The State of Western Australia (2005) 30 WAR 525
Robinson v R (1999) 197 CLR 162
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Case(s) also cited:
Angliss v The State of Western Australia [2005] WASCA 162
Bromley v The Queen (1986) 161 CLR 315
Crisafio v The Queen (2003) 27 WAR 169
Crofts v The Queen (1996) 186 CLR 427
Fox v Percy (2003) 214 CLR 118
Hladin (2005) 156 A Crim R 176
House v The King (1936) 55 CLR 499
Lewis v The Queen (1998) 20 WAR 1
Lloyd v Faraone [1989] WAR 154
Minga v Cramp, unreported; SCt of WA (Anderson J); Library No 950330; 11 July 1995
Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273
Palot & Ors v Harrison, unreported; SCt of WA (Owen J); Library No 950261; 12 May 1995
Parker v The Queen, unreported; CCA SCt of WA; Library No 960740; 20 December 1996
R v Apostilides (1984) 154 CLR 563
R v Armstrong [1998] 4 VR 533
R v De Simoni (1981) 147 CLR 383
R v Faure (1993) 67 A Crim R 172
R v Holcroft, unreported; CA SCt of Qld; No 245 of 1996; 29 November 1996
R v Holley; Ex parte AttorneyGeneral [1997] 2 Qd R 407
R v Olbrich (1999) 199 CLR 270
R v Storey [1998] 1 VR 359
Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 27 NSWLR 326
ROBERTS-SMITH JA: I agree with the reasons for judgment of Pullin JA together with the additional reasons of Buss JA in respect of the "failure to warn" ground. I too would refuse leave to appeal.
PULLIN JA: On 2 December 2005 the appellant was convicted after trial, that:
"(1)On 2 May 2003 at Eden Hill ROBERT CHARLES BROPHO indecently dealt with [THE COMPLAINANT], a child between the ages of 13 and 16 years, by touching her on the vagina.
(2)AND FURTHER THAT on the same date and at the same place ROBERT CHARLES BROPHO indecently dealt with [THE COMPLAINANT], a child between the ages of 13 and 16 years, by touching her on the breasts."
The trial was before Wisbey DCJ sitting without a jury, the appellant having made an election pursuant to s 651A of the Criminal Code to be tried by Judge alone.
On 20 January 2006 the learned Judge sentenced the appellant to 12 months' imprisonment in relation to each count, the sentences to be concurrent. The appellant was made eligible for parole. As a result of the conviction the learned Judge was required to consider the appropriate orders to be made under s 80 of the Sentencing Act in relation to two suspended sentences, one being a sentence for unlawful assault and the other for assault occasioning bodily harm. Pursuant to s 80 of the Sentencing Act the learned Judge ordered the sentences of imprisonment to be served. The appellant seeks leave to appeal against the convictions and sentences and the orders pursuant to s 80. The appeal against sentence was filed out of time and an application for an extension of time is sought.
The conviction appeal
The complainant, who was aged 13 years on 2 May 2003, gave evidence that on that day she went to the office of the Swan Valley Nyoongah Community in Eden Hill ("Nyoongah Community"). This was called the "Lockridge camp site". The complainant was then living at the Lockridge camp site with her deceased mother's cousin Bella Bropho. The complainant says that she went to the office at the request of Bella Bropho to give the appellant $50. The complainant said she went to the office with a girl her own age, a Marie Baker, who was Bella Bropho's
daughter. The complainant said that she gave the $50 to Marie to give to the appellant. Marie went to the toilet and the complainant said that she went to the water cooler to get a drink. While she was standing in front of the cooler she said that she sensed the appellant behind her and that the appellant then put his hand on one of her breasts and at the same time touched her in the area of her vagina. The complainant says that the touching was on the outside of the clothes she was wearing. She said that she pushed him away from her and ran out of the office. She made no complaint about the incident until 5 June 2003.
The detail of the case is important for an understanding of the submissions, so it is necessary for me to relate some more of the evidence. The witnesses called by the prosecution were the complainant, Ms Bella Bropho, Mr Hayward‑Jackson, Ms Jeffrey, and Detective Senior Constable Ricciardi. The appellant gave evidence in his own defence and a statement of a Ms Johnston was read by consent.
The evidence of the complainant and Bella Bropho (the appellant's daughter) was that the appellant was "in charge" of the Lockridge camp site. Ms Margaret Joanna Jeffrey was the secretary for the Swan Valley Nyoongah Community, and she said that the appellant was the spokesman for the community and the incorporated body. She said that she took her orders from the Nyoongah people and from the Nyoongah Community and from the appellant as their spokesman. She carried out duties for the appellant and the Nyoongah Community.
The appellant lived in a transportable house at the Lockridge camp site. Half of this was the appellant's living quarters and the other half was the office. Ms Jeffrey said that she worked in the office and the appellant worked in the kitchen area which is described below.
Mr Ivan Hayward‑Jackson was an employee of the Community. He was the land and cultural worker. Mr Hayward‑Jackson described the office. It was one room with a partition. The partition did not go to the roof and there were doorways on each side of the partition. On one side of the partition was the office, being an open space with desks, chairs and filing cabinets and on the other side was the area called the kitchen area. There was a glass sliding door in the kitchen area and a door in the kitchen area which went out to the living quarters on the other side of the kitchen.
Mr Hayward‑Jackson gave evidence that where he sat at his desk he faced away from the sliding door, and therefore away from the water cooler. He said that Ms Jeffrey sat at her desk facing the other wall, facing in the same direction as the sliding door.
Ms Jeffrey gave evidence that she sat at the end of her desk looking directly towards the water cooler. She agreed in cross‑examination that "if she looked up she was looking directly at the water cooler". Her duties involved filing documents, attending to phone calls and taking dictation. Nyoongah Community members, including children, came to the office area "all the time". When the appellant was seated in his usual position in the kitchen he was largely obscured by the partition. Ms Jeffrey could see his right shoulder.
The complainant gave evidence on 12 November 2004. This evidence was recorded on video‑tape and played at the trial. The complainant gave evidence that her mother had died "four years ago", therefore meaning that she died in about the year 2000. She then lived with her father and brothers and sisters and later went to live with her sister Donna. She then ran away from her sister's house and went to the Lockridge camp site to stay with Bella Bropho. She was there for about a month before 2 May 2003. In cross‑examination she agreed that she had made statements to the police that her father used to beat her. Bella Bropho gave evidence that the complainant's father came to the camp site on two or three occasions and the complainant would run and hide as soon as she knew her father was there. Bella Bropho said that, as far as she knew, her father never saw the complainant while she was at the camp.
As to the events of 2 May 2003, the following evidence was given. In addition to evidence related above, when first interviewed by the police on 9 June 2003, the complainant signed a written statement. It was not tendered in evidence, but it was shown to the complainant in cross‑examination and some questions asked about it. In it she said that when she arrived at the office she heard "Margaret and Ivan" but could not see them. She confirmed that this part of the statement was correct in her cross‑examination. In her written statement she said that when she was in the kitchen getting a drink of water she heard someone say "Oi". When she was cross‑examined she said she could not remember that being said, but agreed it was in her statement which she had signed. In her evidence‑in‑chief she was asked if the appellant said anything when "he did it" and she said "No". In her written statement she said that after she had been touched she pushed the appellant away and said "No. Get away from me". In cross‑examination she was shown the written statement and agreed that in it she said she had uttered the words "No. Get away from me". She agreed with counsel for the appellant that this was correct. Counsel then asked "how loudly" she said this and her answer was that it was "not really loud" (AB 39). Counsel then said that it was in "a loud enough" voice because she was "pretty upset" and she agreed (AB 30). In her evidence‑in‑chief, she said that after she had been touched on her breast and vagina area, the appellant turned her around, that she did turn around to face him and she then pushed him away by punching on his chest. In cross‑examination, she was asked if she turned around and she agreed she did. No questions were asked to suggest there was any inconsistency between her written statement and her oral evidence about where the appellant touched her.
The complainant then said that she ran away out through the sliding door. She said that she saw Ms Jeffrey and Mr Hayward‑Jackson when she ran out. She said they were sitting doing work. She said that she did not tell them what the appellant had done. She ran to a big rock and some trees a little distance away from office. The complainant said that she was crying. Marie then rejoined her. The complainant said that she did not tell Marie what had happened. She said "I just said 'I want to go home'" and that Aunt Bella rang the "welfare mob" and they came to get her. She gave evidence that she did not tell Bella Bropho what had happened. She did not tell the welfare people what had happened. The evidence about exactly what she did say to them is described later in these reasons.
The appellant gave evidence in his own defence. He gave evidence that the complainant was staying at his daughter Bella Bropho's house and that the complainant and Marie (Bella's daughter) "hung around together". His evidence about 2 May 2003 was covered in examination‑in‑chief and in cross‑examination as follows:
"Do you remember a day when some welfare people and there was a police sergeant came and took [the complainant] away?---I see Sergeant Clarysse, Roley Bayman and another fat white lady who I presumed was from the welfare speaking to [the complainant] under the tree and told all the other Aboriginal people there that they had to keep away while they spoke to her.
Now on that day had [the complainant] been in the office?---I don't recall seeing [the complainant] there.
On that day or at any other time did you touch [the complainant] on the breast?---No.
On that day or any other day did you touch [the complainant] on her vaginal area?---No.
That's the evidence‑in‑chief, thank you, your Honour.
WISBEY DCJ: Yes, Ms Forrester?
FORRESTER, MS: Mr Bropho, you said to Mr Utting that you remember the people speaking to [the complainant] under the tree?---Yes.
And that they told all the other Aboriginal people to stay away?---Yes.
Were you standing nearby when they told everybody to stay away?---I was in the office.
How did you see them tell everybody to stay away?---I beg your pardon?
How did you see them or how did you hear them tell everybody to stay away?---Sergeant Clarysse came to the office.
And told you to stay away, did he?---Yes. He informed everybody.
I beg your pardon?---He informed everybody that they wanted to talk to her under the tree where the big stone is and he, Roley Bayman and the fat lady had a discussion with this girl under the tree.
They all talked to [the complainant] together?---Yes. There was three on their own.
Did you watch while they did that?---We was in the office.
Who is we?---The people.
Who is the people?---Mrs Jeffrey and Iva Hayward‑Jackson and my daughter Bella.
And you?---Yeah.
So you all stood at the window and watched, did you?---I beg your pardon?
You all stood at the window and watched, did you?---We was in the office.
Did you stand at the window and watch?---In the office.
Did you stand at the window and watch?---No.
Then how do you know that they all three talked to [the complainant]?---Because we was told by Sergeant Clarysse to stay away."
Further on in cross‑examination the following exchange occurred:
"Okay, but [the complainant] would come into the office quite often?---She'd come and look for the mail; go back home, as any other normal girl would do.
All right, did you see [the complainant] in the office?---No, I didn't see her there too many times.
But she did come in?---I didn't see her there on that day.
Did you see her there at all?---No.
Never?---Not on that day.
I'm asking you if she ever came into the office?---She didn't come into the office on that day.
I'm asking you if she ever came in. It's a very easy question, Mr Bropho, and I know you understand me so please just answer it?---She went past to Gladys and Clemmie's place.
Did she ever come in - - -?---No.
Ever?---Not - not on the day."
And then further on in cross‑examination the following exchange occurred:
"Were you around your office every part of the day, were you?---That's my role.
Were you around there every part of the day?---Yeah, I worked there.
Did you go to the bathroom?---I lived there.
Did you go to the bathroom?---Yeah, I'm human.
You say that [the complainant] definitely didn't come into the office?---I did not see her there on that day.
You did not see her?---I did not see her there on that day."
Questions were then asked about how the office was set up and this was followed by the evidence below:
"You quite often sit in that chair?---Yeah. I use the kitchen.
Now, Mr Bropho, [the complainant] did come into the office that day, didn't she?---I did not see [the complainant] on that day.
Did Bella Bropho owe you money?---Bella paid me $50.
Who gave it to you?---I think it was Maria.
Do you know if Marie went to the toilet after she gave you the $50?---No, I didn't know which way she went from the kitchen.
Okay, and did you see [the complainant] outside after Marie came in to give you the money?---No, I did not.
Near the rock?---No.
Outside. Not inside; outside?---Outside? I seen her over at the rock.
You saw her over at the rock?---Talking to Sergeant Clarysse and the white - - -
No, before Sergeant Clarysse arrived did you see [the complainant] at the rock?---I seen [the complainant] talking to Sergeant Clarysse and Roley Bayman and the fat lady from the welfare.
Before the welfare and Sergeant Clarysse and Roley Bayman got there, did you see [the complainant] at the rock?---No.
Did you see Bella?---No, I didn't see Bella there.
But you saw Marie?---Yeah."
Ms Jeffrey in her evidence was asked if she knew the complainant and she said she did. She gave evidence the complainant did not "come into the office" on 2 May 2003. She did, however, recall 2 May 2003 because it was the day she saw the DCD officers Mr Bayman and a woman and Sergeant Clarysse with the complainant.
Mr Hayward‑Jackson gave evidence that he had not to his knowledge met the complainant, but that he could well have done so. He said there were lots of teenagers coming in and out and adults coming in and out of the office on a daily basis. He said that the water cooler was about 12 feet from where he sat. In cross‑examination he was asked "At any time whilst you were in the office around about May 3, did you hear a female voice saying, reasonably loud, 'No, get away from me'?---No" (AB 64).
At the end of the defence case, counsel for the appellant read out a statement of a Judith Mary Johnston. The evidence was read by consent of the prosecution. Ms Johnston's statement said that she was a senior social worker with the Department for Community Development at Midland. Her statement revealed that, on 2 May 2003, she was telephoned by Mr Bayman, who was the acting manager for the DCD at Midland, and asked to speak to Bella Bropho. She was to make arrangements to attend and speak with the complainant. She then telephoned Ms Jeffrey and left a message for Bella Bropho to call Ms Johnston. Bella Bropho telephoned and said that the complainant was really scared.
The statement continued:
"(6) when I asked Bella Bropho what 'scared' meant she said [the complainant] would need to tell me. Robert Bropho said something along the lines that a bad thing had happened. She needed to leave the community; (7) I then advised Roley Bayman of the conversation I'd had with Bella Bropho; (8) later that day, on 2 May 2003, I was advised by Roley Bayman to accompany him to the Swan Valley Nyoongah community at Lockridge.
(9) Roley Bayman and I travelled to the Kiara police station and met with Sergeant Jim Clarysse; (10) Sergeant Clarysse accompanied Roley Bayman and I to the Swan Valley Nyoongah community; (11) on arrival Roley Bayman, Sergeant Clarysse and I went to the office which is the first building marked 'office'.
(12) a female who I know as Bella Bropho met us outside the office; (13) there were other Aboriginal males around and Sergeant Clarysse spoke to them; (14) Roley Bayman and I told Bella Bropho who we were; (15) Bella Bropho took us to an area about 50 metres from the office. This area had a large rock. This is where [the complainant] was.
(16) there was also males and children around this area; (17) I asked Bella Bropho if she would leave us alone to talk to [the complainant] ; (18) Bella Bropho, the males and the children left around this area then left; (19) [the complainant] was very quiet. I told her who Roley Bayman and I were and that we talked to kids all the term [sic]. We asked if there was anything worrying her or anything we could help her with.
(20) [the complainant] said she wanted to go to her auntie Lynette Bropho's house in Forrestfield; (21) when asked why [the complainant] said her father hits her with a stick; (22) I asked her how he hit her, does it leave marks and what leads up to it; (23) [the complainant] said her father hits her across the back of the legs when she has done the wrong thing; (24) I asked [the complainant] if anyone else had hurt her or if she had been hurt in any other way; (25) [the complainant] said, 'Not in that twisted sex stuff.'
(26) I said, 'What do you mean by that?'; (27) [the complainant] said, 'You know.'; (28) I said 'You have to tell me.'; (29) [the complainant] said, 'None of that touching.'; (30) [the complainant] then went and spoke about her dad, [the complainant's father], general things like school; (31) Roley Bayman then asked [the complainant] her auntie Lynette Bropho's telephone number; (32) Roley Bayman put the telephone number that [the complainant] gave into his mobile telephone. …"
The statement continued that she then conveyed the complainant to the DCD office in Midland and made arrangements to place the complainant with Anglicare carers.
The complainant was cross‑examined about what she had said to Ms Johnston. The following interchange occurred (AB 31):
"Ms Johnson the woman there said to you, asked you whether there was anything worrying you or anything they could help with. Do you remember her asking you that?---Yes.
You told her you wanted to go to your auntie Lynette Bropho's house in Forrestfield?---Yes.
Yes. And Ms Johnson asked you why you wanted to do that?---Because I wanted to get away from the camps.
Did she say, 'Why do you want to go and live with your Auntie Lynette?'---Because I wanted to get away from the camps.
And did you say to her that your father hits you with a stick?---Yeah.
Right. And she asked you, 'How does he hit you and does it leave marks and why does he hit you?' Do you remember her saying that to you?---No.
And did you say to her that your father hits you across the back of the legs when you've done the wrong thing?---Yeah.
Did she ask you if anyone had hurt you or, 'Have you been hurt in any other way?' Did she ask you that question?---Yes.
And you're telling Ms Johnson the truth, aren't you?---Yes.
Yes. And when she said, 'Have you been hurt in any other way?' you said, 'Not in that twisted sex stuff,' didn't you?---No, I never said that. I said that, 'I don't do' - 'My dad doesn't do that stuff.'
And did you tell her that none of that touching had happened to you?---What?
Yes.
GROVES DCJ: No, she said what. Repeat the question?
UTTING, MR: Did you say to her none of that touching had happened to you?---No.
And do you remember the man, the welfare man, had a mobile telephone and you tried to ring up your Auntie Lynette?---Yeah.
But no‑one was home or something. Remember that?---Yes.
Right. And then after you'd spoken to the welfare people you went to get your clothes from Auntie Bella's?---Yeah.
And then you went off with the welfare people?---Yes.
From there you went to stay with Dorothy Kickett, didn't you?‑‑‑Yeah.
Right. And you got there about half past 7 that night?---Yes.
And you stayed with her a couple of days?---Yes.
Did you tell Dorothy Kickett anything of what you tell us Robert Bropho did to you?---No.
Then after a couple of days with Dorothy Kickett you were picked up by the welfare people I think?---Yes.
And you were taken off to their offices in Midland?---Yes.
And they spoke to you then again about what had happened to you?---Yes.
Right. And they spoke to you about what happened to you at Lockridge, didn't they?---Yes.
They asked you if Robert Bropho had done anything to you, didn't they?---No.
Did you tell them what Robert Bropho is supposed to have done to you?---No.
And why was that? Why didn't you tell them?---I was - I holded it all in.
You what?---I holded it all in.
You held it all in. Why did you do that?---Because - because I didn't want nobody to know about it.
You what?---I didn't want no one to know about it.
GROVES DCJ: 'I didn't want no one to know about it.'
UTTING, MR: All right, you didn't want no‑one to know about it. But when you're speaking to the welfare people you're safe, aren't you?---Yeah.
Why didn't you want them to know about it?---Because - ‑ ‑
Did you speak to them at all about what had been happening at Lockridge while you were staying there?---No.
You said nothing to them?---No.
They were asking you questions, weren't they?---Yeah, but I didn't tell me that.
You just didn't tell them anything?---I just told them that I stayed at my Auntie Bella's. That's all they wanted to know."
As to her complaint about the incident, the complainant said that she first told "Peta", her other welfare case worker. She said it was "a couple of months later", but it is obvious that it was less than this, and it was agreed by counsel for the appellant in this Court that the complaint must have been made by 5 June 2003.
In examination‑in‑chief she was asked about when she told "Peta". She said (AB 20-22):
"Did you tell her on the same day?---No. She wasn't there. It was a couple of months later.
A couple of months later. All right. Without telling me what you told Peta what did you - without telling me what you told Peta why did you tell Peta then?---Because I didn't want to tell anyone because they wouldn't have believed me. That's why I holded it all in.
Just hold on a minute, [the complainant]. If I may have a moment, your Honour. All right.
… I've only got one more question; why did you get welfare to come and get you that day?---Because I was scared.
Scared of who?---Robert.
Is that old Robert ‑ ‑ ‑?---Yes"
Bella Bropho gave evidence that the appellant was her father and that her father was in charge of the Lockridge camp site. She gave evidence that the complainant came to live with her and that she did not get the complainant or Marie to "do any jobs" for her on 2 May 2003, and did not "send Marie and [the complainant] up to the office". She rang "welfare" on that day because there was a message for her to ring.
The only other prosecution witness called was Detective Senior Constable Ricciardi. He took a statement from the complainant on 5 June 2003 and subsequently interviewed Bella Bropho on 30 June 2003, Ms Jeffrey, Mr Hayward‑Jackson and then spoke to the appellant. In the course of his investigations, he attended at the Lockridge camp site, which by then had been vacated and all furniture and other items had been removed from the properties.
The Judge's reasons for decision
Wisbey DCJ set out the charges in the indictment, directed himself pursuant to s 119 of the Criminal Procedure Act as to the principles of law and procedure that would be applied in a trial before a jury and no complaint is made about those directions. His Honour summarised the evidence in a way that is not the subject of any complaint, save where particular point is made in the grounds of appeal, and then stated his conclusions. His Honour said:
"31 There can be no doubt that if the complainant was touched in the manner alleged by her, it would amount at law to a dealing contrary to contemporary community standards of propriety, and would therefore be indecent.
32The evidence establishes that the complainant was at the relevant time 13 years old.
33As was identified by counsel, the question for determination is has the State established beyond reasonable doubt that the complainant was touched by the accused in the manner alleged by her? That requires the Court to be satisfied beyond reasonable doubt of the truth, accuracy and reliability of the complainant's evidence relating to the alleged touching. It is important to bear in mind that the resolution of that controversy involves more than simply a preference of the evidence of the complainant to that of the accused (R v Liberato (1985) 159 CLR 507).
34During the course of her evidence the complainant impressed me as truthful, and as an essentially reliable historian. There was no suggestion of exaggeration on her part, and indeed she exhibited a quiet reluctance when addressing the central issue. Clearly there were some inconsistencies between statements she made to the police, and her evidence, but I do not regard those inconsistencies as anything more than might be expected of an unsophisticated girl of her years and life experiences.
35It is necessary to have regard to the fact that the complainant failed to complain promptly about the alleged misconduct when there was ample opportunity for her to so do. In fact her statement to Ms Johnston essentially negatived any suggestion of misconduct. Although the absence of complaint is a relevant factor to take into account in determining the consistency of the complainant's conduct and the reliability of her evidence (Kilby v The Queen (1973) 129 CLR 460 at 472), it is the case that the absence of or delay in complaining does not necessarily indicate that the complainant's allegations are false, and there may be good reason why she would hesitate in making a complaint. Her age, social circumstances, and the situation in which she found herself as at 2 May 2003, provide, I believe, a more than adequate explanation why she would 'holded it all in'.
36I have no doubt that the complainant and Marie Baker attended the office on 2 May 2003 for the stated purpose of delivering $50 to the accused. The accused in fact admits receiving $50 from Marie. I reject the evidence of Bella Bropho that she did not send Marie to the office with the money.
37I do not regard Ms Jeffrey as a reliable witness, particularly as she disputed the presence of the complainant in the office at the relevant time, and as I have already indicated I am satisfied that she was. Ms Jeffrey's demeanour was generally unsatisfactory.
38I have already set out my general impression of the evidence of the accused, and I reject his assertion that the complainant was not present in the office area at the relevant time.
39On the whole of the evidence I am satisfied beyond reasonable doubt that the accused person touched the complainant on the outside of her clothing on her breast and genital area. In the circumstances the prosecution has established that he is guilty of each offence charged in the indictment."
Grounds of appeal
The grounds of appeal themselves are short. They are supplemented by particulars which are to some extent repetitive. The grounds of appeal, when shorn of their particulars, read as follows:
"1.The learned trial judge erred in law in:
1.1failing to adequately identify and consider all relevant legal principles applicable to the case.
1.2failing to give adequate reasons for his decision.
…
2.The learned trial judge's verdicts of guilty were unsafe and unsatisfactory, in that they were unreasonable and have occasioned a miscarriage of justice, by reason of the following facts, matters and circumstances (Criminal Appeals Act, s30(3)(a) and (c)):
2.1The appellant repeats the matters set out in ground 1 above.
2.2The prosecution unexplained failure to call the material witness, Marie Baker.
3.The unchallenged evidence of Judith May Johnston, Margaret Joanna Jeffrey and Ivor Hayward‑Jackson, together with the inconsistent and contradictory evidence that the complainant gave, should have created a reasonable doubt as to the truth and reliability of the complainant's evidence."
Ground 1
This ground is a complaint about the adequacy of the trial Judge's reasons for decision. They are said to be inadequate to such an extent that there has been an error of law.
To begin a consideration of this ground, it is necessary to observe that s 119 of the Criminal Procedure Act by subs (1) requires the Judge to apply, so far as is practicable, the same principles of law and procedure as would be applied in a trial before a jury. Section 119(3) provides that if any written or other law requires information or a warning or instruction to be given to the jury in certain circumstances, the Judge must take the requirement or prohibition into account if those circumstances arise in the course of the trial. Section 120(1) of the Act provides that in a trial by a Judge alone, the Judge may make any findings and give any verdict that a jury could have made or given if the trial had been before a jury. Section 120(2) provides that the judgment of the Judge in a trial by Judge alone must include the principles of law that he or she has applied and the findings of fact on which he or she has relied.
Section 120(3) provides that the validity of a trial Judge's judgment is not affected by a failure to comply with subs (2). There was passing reference to this latter provision, but in my view it means no more than that if there is non-compliance with s 120(2), the judgment is valid until set aside on appeal by reason of the failure to comply with s 120(2).
To these statutory provisions can be added what is required in any judgment by reason of the general law. This was set out in Riley v The State of Western Australia (2005) 30 WAR 525 at [32] where Steytler P said:
"While it is true that overly elaborate reasons are not required from a trial Judge, especially so in criminal trial proceedings in which a prompt outcome is necessary, where one set of evidence is accepted over a conflicting set of significant evidence a trial Judge is required to set out his or her findings as to how it is that the one has been accepted over the other: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 443, per Meagher JA, and Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273 at 282 ‑ 283. Moreover, it is essential that the reasons adequately disclose the intellectual processes which have resulted in the decision: Garrett v Nicholson (1999) 21 WAR 226 at 248 [73] ‑ [74], per Owen J. It is well accepted that, where there is a right of appeal, the reasons must be sufficient to give effect to that right. If the basis for the decision is not apparent, the losing party cannot know whether there has been a mistake of law or of fact: Carlson v King (1947) 64 WN (NSW) 65 at 66, per Jordan CJ; Pettitt v Dunkley [1971] 1 NSWLR 376 at 387 - 388, per Moffitt JA; Lloyd v Faraone [1989] WAR 154 at 162 - 163, per Malcolm CJ, and Mount Lawley, above, at 282 - 283."
The first ground of appeal refers to s 30(3)(b) of the Criminal Appeals Act which provides that the Court of Appeal must allow the appeal if, in its opinion, the conviction should be set aside because of a wrong decision on a question of law by the Judge. If, as ground 1 alleges, his Honour did err by not complying with statutory provisions or the general law requirements regarding the quality of his reasons for decision, then this would be a wrong decision on a question of law and also a miscarriage of justice under s 30(3)(c): see Fleming v The Queen (1998) 197 CLR 250 at [27]. This is a complaint about process and not outcome. See Nudd v The Queen (2006) 80 ALJR 614 per Gleeson CJ at [3].
The particulars to ground 1.1 are as follows:
"(A)The learned trial judge erred in determining the factual issues according to whether he accepted or rejected the complainant's and accused's evidence and thereby reversed the burden of proof.
(B)[Abandoned]
(C)The learned trial judge erred in failing to consider at all the complainant's failure to complain about the appellant's conduct for a period of in excess of a month after 2 May 2003, where she had ample opportunity to do so.
(D)Having found that the complainant had given some evidence inconsistent with her statement to the police, the learned trial judge failed to identify the inconsistencies and failed to separately and collectively consider their impact, if any, on the truthfulness and reliability of the complainant's evidence.
(E)The learned trial judge failed to identify, as a prior inconsistent statement, the statement made to Judith May Johnston to the effect that no one had touched her in a sexual way and, accordingly, failed to consider the impact of that evidence on the complainant's truthfulness and reliability.
(F)The learned trial judge failed to recognise that the complainant's evidence on oath was, in significant respects, inconsistent and, accordingly, failed to consider the impact of those inconsistencies on the truthfulness and reliability of the complainant's evidence."
The particulars to ground 1.2 were as follows:
"(A)The learned trial judge failed to give adequate reasons for concluding that the inconsistencies between the complainant's evidence and her statement to the police did not impact on the truthfulness and reliability of her evidence.
(B)The learned trial judge failed to give any reasons for not finding that the complainant's positive assertion to Judith May Johnston that she was not touched in a sexual way by any person did not impact on the truthfulness and reliability of the complainant's evidence.
(C)The learned trial judge failed to give any reasons for concluding that the complainant had a reasonable explanation for failing to make a complaint after 2 May 2003.
(D)The learned trial judge failed to give a valid or adequate reason for concluding that evidence of Margaret Joanna Jeffrey was not reliable.
(E)The learned trial judge failed to give a valid or adequate reason for rejecting the evidence of the appellant.
(F)The learned trial judge failed to consider at all or make any finding in relation to the truthfulness or reliability of Ivor Hayward‑Jackson's evidence.
(G)The learned trial judge failed to have any regard to the unchallenged evidence that the indecent assaults took place near the water cooler in the office, which was visible from the desk of Margaret Joanna Jeffrey.
(H)The learned trial judge's reasons were generalised and conclusionary and failed to adequately, or at all, critically analyse the evidence and provide specific support for the findings and conclusions he reached."
There are three main issues raised in ground 1. The particulars appear in support of more than one issue. The issues are whether:
(a)His Honour erred in determining factual issues according to whether he accepted or rejected the complainant's evidence or the appellant's evidence and thereby reversed the onus of proof ("the onus issue"):
•Particular (A) to ground 1.1.
•Particular (E) to ground 1.2.
(b)His Honour erred by failing to warn himself to scrutinise the complainant's evidence with care because it was unreliable and therefore failed to comply with s 119(1) of the Criminal Procedure Act, failed to give himself the warning in breach of s 119(3) and failed to include this warning in his judgment in breach of s 120(2) (the "failure to warn" issue):
•Particular (C), (D) and (F) to ground 1.1.
•Particular (A) and (B) to ground 1.2.
(c)The learned trial Judge erred in failing to set out his findings and reveal the intellectual process which resulted in the decision (the "failure to reveal the intellectual process" issue):
•Particulars (C), (D), (E), (F) to ground 1.1.
•Particulars (A), (B), (C), (D), (F), (G) and (H) to ground 1.2.
The onus issue
Brennan J in Liberato v The Queen (1985) 159 CLR 507 at 515 said, in effect, that a Judge will fall into error if a jury is instructed to decide guilt merely by reference to whether or not the complainant's evidence or the accused's evidence is accepted or rejected. To give such an instruction fails to recognise that even if the accused's evidence is rejected, there may still remain a reasonable doubt about guilt.
There were therefore two steps involved. First, his Honour had to decide on all the evidence whether the complainant's evidence on the critical issues should be accepted as opposed to the appellant's denials. Secondly, he then had to consider all the evidence and decide whether, notwithstanding that he rejected the appellant's evidence, there was or was not reasonable doubt about the truth of the complainant's evidence.
The learned trial Judge in this case was well aware that he had to avoid falling into the error of taking only the first step. He specifically directed himself by referring to Liberato's case. Having given himself that direction, his Honour then rejected the appellant's evidence that the complainant was not in the office and accepted the evidence of the complainant. He accepted the complainant's evidence on the basis that she impressed his Honour as a truthful witness and a good historian, despite inconsistencies which he felt were understandable for the reasons he gave, and despite her failure to complain at the earliest opportunity. His Honour then concluded that he was satisfied beyond reasonable doubt that the offences had been committed. His Honour therefore made the two necessary findings, namely that he rejected the appellant's evidence and accepted the complainant's evidence, and also found that he had no reasonable doubt that the offences had occurred. As a result, his Honour did not fall into error, and this part of ground 1, namely particular 1.1(A) and particular (E) to ground 1.2, has no merit.
The "failure to warn" issue
The appellant contends that the Judge erred by failing to conclude that the evidence of the complainant was unreliable and, that in consequence, failed to warn himself to scrutinise the complainant's evidence with care. The appellant places reliance on Fleming v The Queen (1998) 197 CLR 250. The respondent, on the other hand, submitted that no such warning was necessary.
Counsel for the appellant referred to the passage in Longman v The Queen (1989) 168 CLR 79 at 107 by McHugh J, which was referred to in the joint judgment in Fleming's case at [35] where the Court said:
"The appellant's primary ground of appeal is that this was a case of serious crime where a judge would have been required to stress to the jury that, there being only one witness asserting the commission of the offences, the evidence of that witness was to be scrutinised with great care before a conclusion was arrived at and a verdict of guilty brought in [R v Murray (1987) 11 NSWLR 12 at 19]. In Longman v The Queen [(1989) 168 CLR 79 at 107, McHugh J said that if:
'the evidence discloses any circumstance which suggests that the evidence of the complainant may be unreliable, the trial judge has a duty to make the jury aware of the dangers concerning that person's evidence. As in any case where the prosecution depends solely upon the evidence of one witness, the trial judge is entitled to point out that the evidence of the complainant requires careful scrutiny before acting upon it. But cases will frequently arise where the circumstances will require a stronger warning. The terms of that warning will depend upon the particular circumstances of the case: Carr [v The Queen] (1988) 165 CLR 314 at 318'."
This passage makes it clear that where a prosecution depends solely upon the evidence of one witness, the trial Judge is entitled (but not obliged) to point out that the evidence of the complainant requires careful scrutiny before acting upon it. Many cases depend upon the evidence of one witness, and many cases depend upon the resolution of a conflict between that one witness and the evidence of the accused. It will frequently be quite obvious to the jury that the dispute to be resolved, and the existence of discrepancies in one or other account, should be taken into account in resolving that conflict. In such a case a warning to the jury is not necessary. In some cases a warning must be given.
In Fleming's case, the court concluded on the facts of that case that a warning should have been given and recorded by the Judge that the evidence of the witness had to be scrutinised with great care before a conclusion was arrived at and a verdict of guilty brought in. Fleming was a case of alleged aggravated indecent assault upon a 15 year old girl who was a student at the school at which the accused was the Deputy Principal and a teacher. The submission which the court appears to have accepted was that a warning was necessary in the particular circumstances of that case by reason of a combination of factors, namely the complainant's age, emotional instability, infatuation with the appellant and because of inconsistencies in the complainant's evidence.
The High Court did not explain why the existence of the first three of these factors made the complainant's evidence unreliable. It may be that the High Court thought that infatuation of a complainant with an accused brings with it particular hazards. The evidence of emotional instability is not detailed in the judgment. The complainant's age would surely not have been enough to lead the High Court to conclude that her evidence was unreliable.
The overall impression gained from reading the case is that inconsistencies in the complainant's evidence were the main reason for the High Court concluding that a warning was necessary in that case.
In my opinion Fleming stands for no new point of principle. It reaffirms the need to warn the jury in some, but not all, cases that the evidence of the witness requires scrutiny before acting on it. This will be where there is a circumstance which suggests that the evidence of the complainant may be unreliable. Fleming's case does not provide any rule for determining what circumstances make evidence unreliable.
External circumstances may of course produce the need for a warning. A witness may be unreliable because of some mental disorder. However, putting that situation aside, Judges should be careful not to try to be amateur psychologists or to act on prejudice. They would do so if they concluded that merely because of certain life experiences, or because of the cultural or racial background of a witness, that the witness' evidence is likely to be unreliable. Just because a person is young; because she has run away from home; because she has sometimes been physically chastised by her father and because she experienced the death of her mother, does not mean that such a person will ipso facto give unreliable evidence. Similarly, a person who is old, who has recently suffered say the death of both parents and been recently divorced, is not ipso facto a person who will given unreliable evidence. If a Judge concludes that the evidence of a witness is unreliable, it may be tempting to justify that conclusion on the basis of the existence of these kinds of life experiences but, in my opinion, the Judge should resist the temptation unless there is expert evidence to support the conclusion. It is much more important to concentrate on the evidence given and to identify something in the quality of the evidence (such as unexplained inconsistencies) or in the demeanour of the witness that leads to the conclusion that the evidence is unreliable.
Turning to this case, it is said that there were circumstances which indicated that the evidence of the complainant may be unreliable and that therefore there was a duty to give a warning of the type referred to in Fleming. It is submitted by the appellant that the complainant's age, inconsistencies in her evidence, the prior inconsistent statement to Ms Johnston and delay in making complaint, the fact the complainant was relatively disturbed having run away from home when she was 12, the fact that her mother died when she was 10, the fact that her father was physically abusive towards her and the existence of the evidence of Ms Jeffrey and Mr Hayward‑Jackson, gave rise to the concern that the complainant's evidence may be unreliable. The respondent denies that there was anything in the circumstances of the complainant's evidence making such a warning necessary.
I will deal first with the inconsistent statement to Ms Johnston and the lack of immediate complaint. I will accept that there was an inconsistent statement, that is the complainant denied that there had been any touching, even though the complainant in her evidence said that she did not make such a statement to Ms Johnston on the day of the alleged offence. There is a difficulty in that the prosecution had allowed Ms Johnson's evidence to be read by consent and therefore the contest between Ms Johnston's statement and the complainant about whether the complainant had denied that there had been any "touching" could not be assessed in the usual way. It is only fair to the appellant to proceed by accepting Ms Johnston's statement as the true position.
Notwithstanding this, the complainant did give an explanation about why no complaint was made on that day or any day up until the next month and, in my opinion, this applies equally to her denial of any touching by anyone on 2 May 2003. It would be over‑technical in my opinion to distinguish between a lack of complaint and a denial of the offence once the explanation is taken into account. The complainant explained that she thought no‑one would believe her and that she was frightened of the appellant. She was not cross‑examined to suggest that she was being untruthful when she said these were the reasons for not making a complaint.
His Honour was well aware that lack of complaint was relevant to the complainant's credibility because he referred to Kilby v The Queen (1973) 129 CLR 460 at 472, where Barwick CJ made this point. The learned trial Judge, with this in mind, accepted the complainant's evidence about why she made no complaint. Gaudron J in M v The Queen (1994) 181 CLR 487 discussed the significance of absence of complaint in relation to sexual offences. Her Honour concluded her survey of the law by stating that it was not a hard and fast rule that a Judge must direct a jury that absence of complaint or delay in complaining may be taken into account in evaluating the evidence of the complainant. A conviction will not be set aside simply because there has not been a direction of that kind. See Gaudron J at 514.
In my opinion, his Honour's acceptance of the complainant's evidence that she thought she would not be believed and that she was frightened of the appellant, means that her denial that she had been touched by anyone and her failure to complain was explained. In those circumstances, the lack of complaint affords no support for a contention that the complainant's evidence was unreliable.
The next aspect of the complainant's evidence which was said to make it unreliable was the existence of what the appellant contended were inconsistencies in the complainant's evidence. The alleged inconsistencies which are listed in written submissions are that:
(a)the complainant did not know whether she went to the office in the morning or the afternoon;
(b)that she told the police that someone said "Oi" to her when she went into the kitchen, but could not in her evidence remember that happening;
(c)there was "inconsistent evidence as to whether or not she could see Margaret Jeffrey and Iva Hayward‑Jackson when she entered the office through the sliding door at tt, p 44 she said she couldn't see Margaret and Iva; at tt, p 41, she said they were there; and, at tt, pp 54 and 58 she said she could see them and she said hello to them";
(d)there was inconsistent evidence because "the complainant said in examination‑in‑chief that having entered through the sliding door she didn't stay with Marie and that Marie went to the toilet and that she went to get water. The complainant continued and said that she saw the accused in the kitchen sitting in a chair [tt p 44], and while filling her cup Robert came up behind her [tt, p 46]. … Inconsistently in cross‑examination, she said that, having entered through the sliding door [tt p 54] she could see Margaret and Iva in the office [tt 54]; and that Marie then gave the accused some money [tt p 54]; and that when Marie gave Robert the money the accused was in the kitchen [tt p 55] and after that Marie then went to the toilet [tt p 55]. The complainant then said it was then that she went to the water fountain to get a drink [tt p 55]."
(e)that she said in evidence‑in‑chief that she did not say anything to the appellant but that in the police statement and in cross‑examination she said that she had uttered the words "No. Get away from me".
(f)there was an inconsistency because "at (AB 29) in cross‑examination she said she did not see any $50 bills that day in the kitchen. However, she confirmed that what she told the police at par 36 of her police statement was true, namely, that she saw money, she saw $50 notes and that he pulled them out of his pocket (AB 29)".
(g)whether she turned around or was turned around by the appellant after she had been touched by him.
As to point (a) the complainant said she did not know whether she went to the office in the morning or the afternoon. This does not reveal any inconsistency in the evidence. The fact that the complainant was uncertain may have been significant if the appellant, for example, had said that he was there in the morning and not in the afternoon or vice versa. But there was no such issue raised in the case. In my opinion this is no foundation for a contention that the complainant's evidence was unreliable.
The second point, point (b), arose in cross‑examination of the complainant. The following exchange took place:
"… going back to the time when you're in the kitchen did somebody say 'Oi' to you?---I don't - - -
I'm sorry?---What? What did you say?
Did somebody say 'Oi' to you?---I don't know. I can't remember.
You can't remember. Is it right that in your statement to the police at paragraph 27, when you're in the kitchen getting a drink if water from the water fountain, 'I heard somebody say "Oi."' Is that in your statement to the police?---Yep.
Can you now remember whether that happened or not?---I still can't remember. But I know that it was in the statement.
I'm sorry?---But I know that was in the statement.
It's in your statement. All right. You can put that statement temporarily to one side."
Once again, it is not strictly correct to say that there was an inconsistency. She made a statement to the police on 9 June 2003. About 17 months later she gave evidence and could not recall whether somebody said "Oi". In my opinion this affords no foundation for a contention that the complainant's evidence was unreliable.
The next point (point (c)), is about whether she could or could not see Ms Jeffrey and Mr Hayward‑Jackson. The actual evidence given on the point was as follows. At t/s 44 (AB 13) she was asked in evidence‑in‑chief:
"So when you came in this door could you see old Robert in the kitchen?---No.
Could you see Margaret and Ivan?---No.
Do you know where they were?---They was in - they was typing up some things, I don't know."
At t/s 54, in cross‑examination she was asked a slightly different question which was not about what she could see when she came through the door. The relevant question and answer was:
"And is it right when you got in the office you could see Margaret and Ivan in the office area---Yes."
At t/s 58 (AB 27) the complainant was referred to the written statement she had made in June 2003 and shown par 25 which read:
"Margaret and Ivan were in the office. I know this because I heard them. I also said hello to them. There is a door from the office going into the kitchen."
Thus when read in its entirety, I see no inconsistency in this evidence at all. She was asked what she could perceive at different points in her journey and naturally what she could see and perceive altered as she moved. In my opinion, there is no inconsistency.
In relation to point (d) neither the point as set out nor the evidence reveals any inconsistency.
In relation to item (e), it is correct to say there was an inconsistency. The complainant did say in evidence-in‑chief that she did not say anything to the appellant. In cross‑examination she was shown the written statement that she had made in June 2003 and shown where it read "I pushed him away from me. I pushed him on the chest and said 'No. Get away from me' and she said that the statement was correct." No further questions were asked. This means nothing more than that the complainant, having been shown her statement (which was made about a month after the incident) had her memory refreshed and she was then able to recall what she said as he was pushed away. Viewed in that way, the technical inconsistency between her evidence‑in‑chief and what she had said in the written statement is not something which the trial Judge was obliged to comment upon;
In relation to point (f) above, the evidence emerged in cross‑examination as follows:
"… did you see any $50 bills that day in the kitchen?---No.
No?---Even though it's in my statement I can't remember.
If you [turn] to paragraph 36 of the statement you say:
I did see some money. I saw $50 notes and they were yellow in colour. He pulled them out of his pocket. They were loose. By loose I mean they were not in a wallet.
Is that what is in paragraph 36?---Yes.
Is that correct?---Yes."
Why this was in the statement was never revealed in cross‑examination. It seems to be an entirely peripheral matter and the complainant seems to be quite frankly saying that she could not remember the subject but that it was in her statement. Once again, it is not correct in my opinion to describe this as an inconsistency.
The final point (g) is entirely inconsequential and the evidence reveals that slightly different questions produced slightly different answers.
The trial Judge clearly had in mind that there were some discrepancies in the account given to the police and in her evidence and he identified them when recounting the evidence.
Experience shows that it is very rare for there not to be some difference between an account of events made in a written statement and evidence later given. This can be by reason of fading memory or by the fact that the form of questioning elicits different answers or because of slight misunderstandings about the particular form of the question asked at different times. Be all that as it may, the trial Judge was alert to the fact that there were some inconsistencies and he considered that they were not such as to diminish the value and believability of the complainant's evidence. The fact that the trial Judge did not list every minor inconsistency does not mean that the trial Judge erred as alleged by the appellant. All that this Court has to be satisfied about is that the Judge understood that there were inconsistencies and that they were considered and taken into account. They were. In my opinion, the minor inconsistencies which existed, individually or taken together, afford no basis for contending that the complainant's evidence was unreliable.
The appellant also refers to the age of the complainant, but the mere fact that the complainant was young does not make her evidence unreliable.
The appellant further refers to the fact that the appellant had run away when she was 12, that her mother had died when she was about 10 and that her father physically abused her. It is true that these events had all occurred, but none had happened so as to cause a sudden upset on the day in question. There was no suggestion that the father had appeared immediately before the incident to trigger the upset, and none to say why these facts should make her account of what the appellant is said to have done to her unreliable. His Honour was conscious of her "life experiences". He referred to these in the earlier part of his reasons when recounting the facts and he could have been referring to nothing else. His Honour formed the view that the complainant had impressed him as a reliable historian. He said there was no suggestion of exaggeration on her part and that she exhibited a "quiet reluctance" when addressing the central issue.
In my opinion, none of the minor inconsistencies or other factors referred to above, taken individually or together, lead to the conclusion that the Judge was required to find that the complainant's evidence may be unreliable. As a result, no warning of the kind referred to in Fleming was necessary.
This aspect of ground 1 therefore has no merit.
Failure to reveal the intellectual process in the reasons
The allegation is that the trial Judge failed to set out his findings and reveal his intellectual process which resulted in the decision. It is said that this is demonstrated by the Judge not considering the complainant's failure to complain about the appellant's conduct for a period in excess of a month after 2 May 2003 when she had opportunity to do so. As I have already said, the Judge did consider this aspect. He concluded that there was an explanation for the complainant's failure to complain.
The appellant alleges that the trial Judge failed to identify the inconsistencies in the complainant's evidence, separately and collectively, to consider their impact on the truthfulness and reliability of the complainant's evidence. I have already said that his Honour was aware of some inconsistencies in her evidence and concluded that he still accepted her as a truthful witness. The complaint comes down, therefore, to a complaint that his Honour did not list out all of the inconsistencies and discuss them in detail. In my opinion, he was not obliged to do so given his clear recognition that there were inconsistencies. The inconsistencies were in relation to minor matters and did not relate to the essence of her evidence about the assault which had taken place. Even collectively, these points amount to nothing of significance. In Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 at 443, Meagher JA explained that "it may not be necessary to … destroy every submission, particularly where the arguments advanced are numerous and of varying significance".
The appellant also complains that the learned Judge failed to give a valid or adequate reason for rejecting the evidence of the appellant. It is, however, difficult when the dispute comes down to two witnesses to give any particular reasons when the incident happened very quickly and the complainant said the incident happened and the respondent denied that the complainant was present at all. In fact the appellant corroborated part of the complainant's evidence. She said she went to the office with Marie to give the appellant $50 given to her by Bella Bropho. The appellant gave evidence that Marie did come to the office with $50. His Honour referred to this in his reasons.
Another particular complains that the trial Judge failed to give valid or adequate reasons for concluding the evidence of Margaret Joanna Jeffrey was not reliable. If the trial Judge did not believe Ms Jeffrey's denial that the complainant came into the office, then there was very little he could say about it. He either accepted that evidence or he rejected it. His Honour in fact gave reasons for rejecting her evidence. He considered that he could conclude from the other evidence that the complainant did go to the office and so for that reason he rejected Ms Jeffrey's evidence. The statement by Ms Jeffrey that the complainant did not go to the office is a little surprising when she gave evidence about how busy she was on that day and that many people came to the office. In those circumstances, one would have expected her to say no more than that she did not see the complainant. The other reason for rejecting her evidence was her demeanour. The issue was straightforward and those reasons were sufficient, bearing in mind that his Honour had set out the conflicting evidence: see Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 281 and Beale (supra) at 443. The reasons need not be lengthy or elaborate: Beale at 443.
Another particular alleges that the trial Judge failed to pay any regard to the unchallenged evidence that the assaults took place near the water cooler, which was visible from the desk of Ms Jeffrey. In my opinion it was not necessary for the learned trial Judge to do so. If Ms Jeffrey had said that she saw the complainant come in to the office, observed what she did and that there had been no incident near the water cooler while she was looking, then it would have been necessary to refer to it. However, Ms Jeffrey said that the complainant did not come in at all.
Finally, I refer to Mr Hayward‑Jackson's evidence. His evidence did not contradict any of the complainant's evidence. The fact he did not hear the complainant's demand that the appellant get away from her did not mean that the words were not spoken. In my opinion, there was no basis for the trial Judge to treat Mr Hayward‑Jackson as a conflicting witness and then decide whether or not he believed him.
In my opinion there is no merit in this part of ground 1.
Ground 2
Ground 2 is an alternative ground. It is that if there is no error in the form of the trial Judge's reasons then, nevertheless, the verdict of guilty should be set aside because, having regard to the evidence, it was unreasonable or cannot be supported. This ground is based on s 30(3)(a) of the Criminal Appeals Act.
The ground is particularised, in part, to rely upon the same matters which are set out as particulars to ground 1. Another particular refers to the evidence of Ms Johnston, Ms Jeffrey and Mr Ivor Hayward‑Jackson.
The question about whether the verdict of guilty was unreasonable or cannot be supported having regard to the evidence remits to this Court an inquiry into all evidentiary aspects of the case. See M v The Queen (supra) per Brennan J at 502. More fully explained by Mason CJ, Deane, Dawson and Toohey JJ at 493, the position is that:
"Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty."
It is clear from that decision that there is a need to take into account the advantage that the original trier of fact had in deciding the case. See Mason CJ and others at 493, Brennan J at 502 and McHugh J at 517. Mason, et al, said at 494:
"In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty."
This passage does not mean that, just because there are discrepancies in the evidence of the important prosecution witness, this must lead a court to the conclusion that there is a possibility that an innocent person has been convicted. As I have already mentioned, it will be a rare case where there will not be some minor discrepancies between a witness statement and the witness' later evidence.
What a full review of the evidence reveals is that both the appellant and the complainant agree that Marie Baker came to the office on the day in question and gave $50 to the appellant. This evidence contradicts Bella Bropho's evidence. Next, it is accepted by the appellant and Ms Jeffery that the complainant was seen near the office with the police and welfare people on 2 May 2003. It seems clear that something did occur on 2 May 2003 to spark off the activity that occurred immediately after the alleged incident. The complainant was suddenly reduced to tears and prompted to call for the "welfare mob" and to ask to be removed from the Lockridge camp. Her call was obviously urgent enough to spark the attendance at the Lockridge camp of police and the DCD officers, including Ms Johnston. The appellant suggests that the complainant had lost her mother and may have been upset by this, but that was two and a half years before the incident. Reference was made to the fact that her father had administered corporal punishment and that she would hide from her father. However, there was no evidence, and no suggestion in cross‑examination, that her father had arrived at the camp on the day in question or had taken any recent action to spark off her sudden request for removal. The complainant's account was that she was upset and wished to be taken away because of the assault which had just occurred.
There was no evidence and no suggestion in cross‑examination that the complainant was infatuated with, or had any animosity towards the appellant.
It is also important to look at the complainant's reasons for not making a complaint immediately after the incident and indeed denying that the incident had occurred. I have touched on this subject earlier in my reasons. The question then is whether there are factors that make these reasons credible. The factors that seem to be important are as follows. The complainant was a child. The appellant was related to her. He was a senior member of the family. He was the spokesman for and, as far as the complainant was concerned, in charge of the Nyoongah Community and the Lockridge camp site. The appellant said himself that he was involved in "political matters". The Lockridge camp site consisted of persons who were all part of the Bropho family. These all appear to provide very strong factors which give credence to the reasons why the complainant did not make a complaint, and in fact denied that there had been any incident, when she was still at the camp site. If the complaint had not been acted upon and she had not been removed, she would have been left in the camp site. If she had made a complaint, then clearly the appellant would have been confronted with the accusation by a police or DCD officer inquiry. If she were not removed from the camp site as she had requested, then the fact she was frightened of the complainant would be understandable. The complainant expressly said that she was frightened of the complainant and thought that no‑one would believe her. These are not unusual reasons for the failure to make a complaint in the case of children sexually assaulted by adults within a family.
The lack of complaint to Marie was understandable because the appellant was Marie's grandfather. The lack of any complaint to Bella Bropho was understandable because the appellant was Bella Bropho's father. The lack of complaint to Ms Kickett was not explored, save that she made no complaint. She was only with Ms Kickett for "a couple of days". What is clear is that she did finally disclose the incident to a welfare officer called Peta about a month after the incident and when there was no prospect that she could be put back under the control of the appellant.
Finally, I take into account that the complainant's evidence of the details of the assault is uncorroborated. In M v The Queen Gaudron J at 510 said:
"Given the nature of the case, the verdicts can only be held to be unsafe and unsatisfactory if the complainant's evidence is brought into doubt. Her evidence is uncorroborated. This, of itself, is of no importance, but where evidence is wholly uncorroborated, discrepancies and inconsistencies may assume greater significance than would otherwise be the case. Even so, corroboration or lack thereof is only one of many considerations which bear on the evaluation of evidence. And in this case the fact that the complainant's evidence was coherent and concise is a consideration which weighs in favour of its acceptance."
The complainant's evidence when read in transcript form was coherent and concise. The minor inconsistencies in her evidence do not afford any basis for not believing the complainant's account of what happened.
In my opinion, this is a case where the advantage the trial Judge had in seeing and hearing the two main protagonists, and Ms Jeffrey and Mr Hayward‑Jackson, was an advantage which was important in the resolution of the dispute.
It was suggested by counsel for the appellant in this case that this Court should consider viewing the demeanour of the complainant because her evidence was recorded on video which was tendered in evidence and watched by the trial Judge. However, that strikes me as possibly working to the serious disadvantage of the appellant. If, for example, the video was viewed and a favourable impression was formed about the manner in which the complainant gave evidence, then it would be unfair to take this impression into account when this Court has not seen the appellant give evidence.
In my opinion, the verdict of guilty was not unreasonable or unsupported, having regard to the evidence.
The absence of Marie Baker
There remains for discussion the matter referred to in ground 2.2. This refers to the fact that Marie Baker was not called as a witness. The complainant said that she had gone to the office with Marie Baker; that she (the complainant), had given Marie the $50 who then gave it to the appellant. The submission to this Court was that Marie was a material witness and the unexplained failure of the prosecution to call her was a circumstance which gave rise to a miscarriage of justice.
The appellant's counsel conceded that this part of ground 2 had no merit if a correct view of the evidence was that the appellant himself had said that Marie had gone to the office on the day of the alleged incident and had given him the $50. In my view the evidence set out above in [18] can only be read as evidence by the appellant that Marie had indeed gone to the office on 2 May 2003 and handed to the appellant the $50. His Honour found this to be so. On that basis, it is not strictly necessary to say anything more about ground 2.2, but I will add this comment. The appellant's counsel, for tactical reasons, may have decided not to seek to ask the prosecution to make Marie available for cross‑examination. After all the appellant, by his own evidence, corroborated the complainant's evidence that Marie had gone to the office and that it was Marie who had given the appellant the $50. If Marie had been called and denied this, then she would have contradicted the appellant's own evidence.
In the circumstances, the statement of Marie Baker, which was marked for identification after it was proffered by the appellant's counsel, should not be admitted into evidence. There is no doubt that this Court has power to receive further evidence. See s 40 of the Criminal Appeals Act. The circumstances in which that power will be exercised are discussed in my judgment in De La Espriella‑Velasco v The Queen [2006] WASCA 31.
In my opinion ground 2 has no merit.
The application for leave to appeal against conviction should therefore be dismissed.
The sentence appeal
In relation to the two charges on the indictment, and following conviction on them on 2 December 2005, the appellant was sentenced by Wisbey DCJ on 20 January 2006. In relation to the two charges on the indictment, which I will call the "primary charges", he was sentenced to 12 months' immediate imprisonment on each offence, to be served concurrently.
The appellant's conviction on the primary charges activated suspended sentences, imposed on 10 May 2002, for an unlawful assault and an assault occasioning bodily harm.
The sentences, when imposed on 10 May 2002, had been suspended for 12 months. Thus, when the breach occurred on 2 May 2003, this was only eight days before the expiration of the suspension period. After the sentences had been imposed in 2002, the Sentencing Legislation Amendment and Repeal Act 2003 (WA) and Sch 1 of the transitional Provisions came into force.
His Honour considered that he should, pursuant to s 80 of the Sentencing Act, order that the sentences be served. His Honour also considered that by reason of the transitional provisions the sentences of 8 months and 4 months should each be reduced by one‑third. As a result, in relation to the order that the suspended sentences be served, he ordered that the terms to be served should be 5 months on one and 2 months and 15 days on the other. These sentences were ordered to be served concurrently with the sentences imposed in relation to the primary charges.
The appellant then referred to s 86 of the Sentencing Act which provides that sentences of less than 6 months should not be imposed. The appellant, however, accepts that there was no infringement of s 86 because the sentences imposed on the primary charges were sentences of 12 months and s 86 of the Sentencing Act allows a sentence of less than 6 months if the aggregate of the term imposed and any other term or terms imposed by the court was more than 6 months. That was so here.
It was submitted, however, that the fact that the 5 month sentence could not be imposed on its own was to be a factor considered in deciding whether it would be unjust to activate the suspended sentence. The appellant also points to the fact that only eight days were left of the suspension period for the suspended sentences and then submits that:
"… the learned sentencing judge needed to look at the two indecent dealing charges and decide whether a term of immediate imprisonment was the only option. If he came to this conclusion then there would be nothing unjust in activating the suspended sentence. However, if the learned sentencing judge came to the view that a sentence other than immediate imprisonment was appropriate on the two indecent dealing charges, he would then need to determine whether it was unjust to activate the suspended sentences taking into account the above two factors and the fact that he would not have imposed a term of immediate imprisonment on the two indecent assault charges."
I refer to the learned sentencing Judge's reasons.
His Honour said:
"Addressing the offending behaviour the subject of the indictment, it is my view that in all the circumstances that a term of imprisonment is the appropriate disposition to mark the level of criminality and to serve as a general deterrent to those in the community who might otherwise behave in like manner. The term of imprisonment which, in my view, appropriately marks the level of criminality in each case is one of 12 months but, having regard to the fact that the offending behaviour was a single course of conduct, those terms will be concurrent."
It is therefore clear that his Honour separately considered the appropriate disposition of the primary charges and arrived at a conclusion that the term of imprisonment was the appropriate disposition. In those circumstances the appellant concedes that there was "nothing unjust in activating the suspended sentences".
There was an argument advanced at the hearing that his Honour must have concluded that imprisonment was the only appropriate disposition because he had earlier decided that he would activate the suspended sentences and order that those sentences be served. It was said that this must have influenced the trial Judge because he was not then able to consider a suspended sentence on the primary charges.
That is however, to attribute reasoning to his Honour that his reasons do not reveal. In my opinion, his Honour quite separately considered the appropriateness of the sentence to be imposed on the primary charges. His Honour was quite conscious of this because he had earlier directed
himself as to the law, which requires a court not to impose a term of immediate imprisonment unless it is the only disposition appropriately responding to the criminality and matters personal to the offender. In my view there was no error as alleged in ground 1.
Ground 2 raises a discrete point.
In the course of sentencing, his Honour said:
"It is an aggravating circumstance that you were in de facto control of the community with a responsibility to safeguard the interest of, rather than abuse, the complainant. Further, it is necessary to have regard to the fact that the complainant was an unsophisticated and vulnerable 13 year old whilst you were approximately 73 years of age and in a position of responsibility."
The appellant submitted that this meant that the trial Judge was in effect sentencing the appellant for an offence with circumstances of aggravation. In my opinion, the sentencing Judge did not sentence the appellant for an offence for which he had not been convicted or import into the sentencing process a circumstance of aggravation not pleaded in the indictment. The sentencing Judge was merely observing that at the time of the commission of the offence, the appellant was in a position of de facto control. The sentencing Judge was entitled to observe that it was part of the appellant's responsibility to safeguard the interests of, rather than abuse the complainant. In my opinion, no error is revealed.
An additional point was made, namely that there was no evidence that the appellant had any particular control or responsibility to the complainant. I have referred in the conviction appeal to the evidence on the topic. It provided adequate evidence for his Honour to make the findings which he did.
In Fleming, Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ said, at 264 ‑ 265 [35] ‑ [36]:
"[35] The appellant's primary ground of appeal is that this was a case of serious crime where a judge would have been required to stress to the jury that, there being only one witness asserting the commission of the offences, the evidence of that witness was to be scrutinised with great care before a conclusion was arrived at and a verdict of guilty brought inhttp:// - # (R v Murray (1987) 11 NSWLR 12 at 19). In Longman v The Queen - # ((1989) 168 CLR 79 at 107), McHugh J said that if:
'the evidence discloses any circumstance which suggests that the evidence of the complainant may be unreliable, the trial judge has a duty to make the jury aware of the dangers concerning that person's evidence. As in any case where the prosecution depends solely upon the evidence of one witness, the trial judge is entitled to point out that the evidence of the complainant requires careful scrutiny before acting upon it. But cases will frequently arise where the circumstances will require a stronger warning. The terms of that warning will depend upon the particular circumstances of the case: Carr [v The Queen] - # ((1988) 165 CLR 314 at 318).'
[36] The submission is that in this case a warning should have been regarded and recorded by the trial judge of the need to assess the reliability of the complainant by reason of her age, emotional instability and infatuation with the appellant. The respondent pointed to a statement in the following form by the trial judge as representing such a sufficient warning and emphasised the use by his Honour of the word 'solely': 'The Crown case relies solely upon the complainant. If I am unable to accept her evidence beyond reasonable doubt, I must acquit the accused.' There may be cases where an examination of the reasons given, although they do not contain express reference to a warning, sufficiently discloses that the judge has had regard to the warning. However, the statement just referred to does not satisfy any such criterion."
Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ concluded that the failure of the Judge to refer to, and take into account, a warning about the reliability of the complainant's evidence was an error of law which constituted a substantial miscarriage of justice. Their Honours evidently accepted that the warning was required on the grounds contended by the appellant, namely, the complainant's age (she was aged 15 at the time of the alleged offences), her emotional instability (apparently arising from her eating disorder and stressful family situation) and her infatuation with the appellant. A retrial was ordered. Their Honours said, at 265 [37] ‑ [38]:
"[37] No doubt consciousness of the importance of such a warning will be of second nature to many judges. However, as we have said, an animating principle which lies behind the requirements of s 33 is that criminal justice not only be done but also be seen to be done. The judgment must show expressly or by necessary implication that the warning was taken into account. If the judgment does not do so, a breach of s 33(3) has occurred. It is no answer that the trial judge is an experienced judge who was well aware of the requirement of a warning and that he or she must have taken the warning into account.
[38] It follows that, in the present case, there was a failure by the trial judge to include in his judgment reference to the warning which was required to be given to a jury and this demonstrates a breach of the requirement of s 33(3) that the judge 'take the warning into account'. This failure involved a wrong decision on a question of law and the second limb of s 6(1) of the Criminal Appeal Act was attracted. The requirement of s 33(3) being mandatory in the sense discussed earlier in these reasons, there also was a miscarriage of justice within the third limb of s 6(1)."
See also R v L J Murphy [2000] NSWCCA 297 per Kirby J (with whom Spigelman CJ and Grove J agreed) at [63] ‑ [95]; A Child v State of Western Australia (2005) 153 A Crim R 406 per McLure JA, at 414 ‑ 415 [38] ‑ [40], 421 ‑ 422 [81] ‑ [83].
I note that in Fleming delay was not a relevant consideration. In other words, the necessity for a warning in Fleming did not arise in consequence of delay between the time of the alleged offences and the making of complaint or between the time of the alleged offences and the commencement of the trial.
In my opinion, the decision in Fleming involved an application of the general law requirement that a warning be given whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case. Fleming did not enunciate a new or different principle.
In Carr v The Queen (1988) 165 CLR 314, Brennan J made these observations, at 324 ‑ 325, in relation to occasions when a warning is required:
"Trial judges give warnings to juries in many situations to guard against perceptible risks of justice miscarrying. The warnings may relate to the jury's contact with the public, the need to disregard information obtained outside the courtroom, the dismissal of prejudice or a variety of other matters occurring in the course of a trial. A warning may be needed to ensure that the jury attributes the appropriate significance and weight to the evidence. That is a central aspect of the jury's function. In the majority of cases the assessment of the evidence can be left to the jury's experience unaided by judicial warnings but there are some occasions when a warning is needed. A warning is needed when there is a factor legitimately capable of affecting the assessment of evidence of which the judge has special knowledge, experience or awareness and there is a perceptible risk that, unless a warning about that factor is given, the jury will attribute to an important piece of evidence a significance or weight which they might not attribute to it if the warning were given. It is not possible to define a priori the circumstances in which a warning is necessary: the circumstances which show whether a perceptible risk of miscarriage of justice exists in relation to the assessment of evidence include the charge, the evidence and the conduct and atmosphere of the trial. Although no rule of law postulates a priori the cases in which a warning is needed, a failure to give a warning when one is needed leaves the proper significance and weight of the evidence in doubt. A guilty verdict founded on that evidence alone may have to be set aside by an appellate court as a miscarriage of justice because the jury, in the absence of a warning, may have reached their verdict by attributing to the evidence an erroneous significance or weight."
This passage was referred to by Keane JA (with whom Williams JA and Helman J agreed) in R v TN (2005) 153 A Crim R 129. His Honour said, at 144 [69] ‑ [70]:
"[69] Three points of present relevance are made in this passage. The first is that in most cases a warning is not a necessary aid to the jury's performance of its function of assessing the evidence. The second point is that the basis for the giving of a warning is the 'special knowledge, experience or awareness' of the judge (actual or inherited). The third point, a point also made in the reasons of Brennan J in Bromley v R ((1986) 161 CLR 315 at 324 ‑ 325) is that the giving of the warning is a matter of necessity to avoid a miscarriage of justice. If the warning is not necessary to avoid a miscarriage of justice it need not be given.
[70] It is to be emphasized that it is not sufficient to establish that a miscarriage of justice has occurred or that a verdict is unsafe or unsatisfactory, that a comment or a warning might have been given as a matter of prudence so that the trial would be 'more fair'. It is only where the necessity for a warning has arisen that a failure to give the warning will ground a claim that a miscarriage of justice has occurred. In my view, in the present case, no occasion arose for the giving of a warning as a direction necessary to avoid a miscarriage of justice. The 'dangers', if any, of acting upon the evidence of the complainant were equally obvious to the jury: there is no special judicial knowledge to be brought to bear in the assessment of the reliability of the complainant's evidence; and there was no other aspect of the case which bore upon the assessment of the evidence of which a judge, but not a jury, would be aware."
See also R v Johnson (2004) 89 SASR 294 per Duggan J, at 303 [44] ‑ [46] (with whom Besanko and Anderson JJ agreed).
Similar issues were considered by this Court in White v The Queen [2006] WASCA 62, in the context of s 50 of the Evidence Act. I have mentioned that s 36BE(1) of the Evidence Act (the provision considered by the High Court in Longman) has been superseded by s 50. Section 50 was inserted by the Criminal Law Amendment Act 1988 (WA) and amended by the Acts Amendment (Evidence of Children and Others) Act 1992 (WA). The latter Act also introduced s 106D, which provides that in any proceeding on indictment for an offence in which evidence is given by a child, the Judge is not to warn the jury, or suggest to the jury in any way, that it is unsafe to convict on the uncorroborated evidence of that child because children are classified by the law as unreliable witnesses. In White, Wheeler JA (with whom McLure and Pullin JJA agreed in relation to the ground of appeal which is relevant for present purposes) said, at [70], [77] and [78]:
"[70] … section [50] is in almost identical terms to the former s 36BE(1), save that it now extends to encompass all of those witnesses in respect of whom there was formerly a rule of law or practice which required the giving of a 'corroboration warning'. In relation to any such witness, the trial Judge is now positively forbidden to give to the jury a warning to the effect that it is dangerous to convict on the evidence of a category of witness because the witness falls into some suspect 'category'. The Judge may comment upon the evidence of a witness, provided that the Judge makes it clear that it is for the jury alone to evaluate the evidence of that witness, in the light of common experience. Where, however, there is a particular danger in acting upon the evidence of a witness which a jury might not otherwise appreciate, a warning should be given. It may be that the need to warn is not confined to 'hidden' dangers, but that is the most usual case in which a need to warn is said to arise: Bromley v The Queen (1986) 161 CLR 315 at 319, 325 and see R v Johnson [2004] SASC 241 at [44] – [47], where some examples are discussed.
…
[77] Authority in this Court has not been as clear as it might have been in relation to the relevance of s 50 in the past. There has perhaps in some cases been a tendency to analyse a direction to see if it was 'good enough' in traditional terms, with s 50 regarded almost as a provision which excuses a failure to give 'full' direction in traditional terms in some cases. For example, in Lambley v The Queen ([2001] WASCA 38) [at 17], the Court appears to have suggested that a warning will be both justified and required whenever the circumstances show some intrinsic lack of reliability in the witness. However, in the particular circumstances of that case, it may well have been common ground that the witness was in a category 'similar to' a prison informer, so that a jury would not, unassisted, appreciate what the dangers of the witness's evidence might be. A case which is often cited in this Court is Foo v The Queen [2001] WASCA 406 at [30] in which Parker J, with whom Steytler J and Olsson AUJ agreed, said:
'Notwithstanding the effect of s 50, however, it will usually be essential in this State, in an appropriate case, that a jury receive a clear and emphatic warning from the trial Judge of the potential dangers in acting on the evidence of a witness to convict, which dangers exist because that witness is an accomplice, and which the jury might not appreciate without the warning. That will usually be essential whether or not the evidence of the witness is the sole evidence and whether or not there is corroboration of that evidence. The form of the direction may well be different inter alia by virtue of those matters.' (Emphasis supplied)
[78] I quoted that passage myself in Hoy v The Queen [2002] WASCA 275 at [18], and at [19] expressed the view that such a warning may also be appropriate even where the dangers are apparently obvious. However, having regard to the authority which I have discussed, it now seems to me that only if the words which I have emphasised in Foo, relating to 'hidden' dangers, are given their full effect, should that passage be regarded as accurate. The authorities do leave open the possibility that even where a danger is one which a jury will be able to appreciate unassisted, a warning may nevertheless be required. There may, for example, be cases in which, although the danger is apparent, it is a danger which, because of the attractive features of the particular witness, a jury may too readily overlook. However, as the warning is justified by reason of the 'superior experience' of the Courts in relation to particular types of evidence which are apparently safe to act upon (Chamberlain v The Queen (No 2) (1984) 153 CLR 521 at 604 per Brennan J), it is likely that it will only be in a very small category of cases that a danger which is apparent to a jury will nevertheless require a warning to be given."
I agree, with respect, with those observations.
Where the trial Judge is also the tribunal of fact, an assessment of whether a warning is necessary is made by the Judge, in his or her capacity as the tribunal of law. That is, the trial Judge, in his or her capacity as the tribunal of law, must determine whether a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case. If the trial Judge, as the tribunal of law, decides that a warning should be given, the warning must be taken into account by the Judge, in his or her capacity as the tribunal of fact, in evaluating the evidence. Compare the observations of Gaudron and Callinan JJ in Doggett, at 356 ‑ 357 [54], in the different context of appellate review:
" …the approach of the Court of Appeal involved to some extent an inversion of reasoning. The correct approach in our opinion was to examine the evidence relevant to the particular matters with which Longman deals to ascertain whether the case called for a Longman direction, and not to make a broad assessment of the evidence overall (including the corroborative evidence), and to decide at that point, that the corroboration rendered a Longman direction unnecessary. That exercise should more appropriately be carried out in the overall assessment of the case, if and after error has been established, to enable the Court to decide whether the verdict was unsafe and unsatisfactory and whether the proviso should be applied."
Further, where the trial Judge is also the tribunal of fact, and there is an occasion for giving a warning, the Judge, in his or her capacity as the tribunal of fact, should assess the evidence having regard to the reasons for the warning. See R v HS (2004) 90 SASR 28 per Besanko J, at 38 [60].
The reasons of the learned Judge
Counsel who appeared for the appellant at trial, submitted to the learned Judge that "because of the age of the complainant and the inconsistencies within her evidence" it would be "unsafe and unsatisfactory" to convict. Counsel did not, however, submit that his Honour should give himself, as the tribunal of fact, a warning that the evidence of the complainant required careful scrutiny before acting upon it. The learned Judge did not, in his reasons, consider whether a warning in those or any other terms was justified in the circumstances.
The learned Judge identified, at [33], the critical issue which he was required to determine, as follows:
" … the question for determination is has the State established beyond reasonable doubt that the complainant was touched by the accused in the manner alleged by her? That requires the Court to be satisfied beyond reasonable doubt of the truth, accuracy and reliability of the complainant's evidence relating to the alleged touching. It is important to bear in mind that the resolution of that controversy involves more than simply a preference of the evidence of the complainant to that of the accused (R v Liberato (1985) 159 CLR 507)."
His Honour then assessed the complainant's evidence, at [34] ‑ [36]:
"During the course of her evidence the complainant impressed me as truthful, and as an essentially reliable historian. There was no suggestion of exaggeration on her part, and indeed she exhibited a quiet reluctance when addressing the central issue. Clearly there were some inconsistencies between statements she made to the police, and her evidence, but I do not regard those inconsistencies as anything more than might be expected of an unsophisticated girl of her years and life experiences.
It is necessary to have regard to the fact that the complainant failed to complain promptly about the alleged misconduct when there was ample opportunity for her to do so. In fact her statement to Ms Johnston essentially negatives any suggestion of misconduct. Although the absence of complaint is a relevant factor to take into account in determining the consistency of the complainant's conduct and the reliability of her evidence (Kilby v The Queen (1973) 129 CLR 460 at 472), it is the case that the absence of or delay in complaining does not necessarily indicate that the complainant's allegations are false, and there may be good reason why she would hesitate in making a complaint. Her age, social circumstances, and the situation in which she found herself as at 2 May 2003, provide, I believe, a more than adequate explanation why she would 'holded it all in'.
I have no doubt that the complainant and Marie Baker attended the office on 2 May 2003 for the stated purpose of delivering $50 to the accused. The accused in fact admits receiving $50 from Marie. I reject the evidence of Bella Bropho that she did not send Marie to the office with the money."
Next, the learned Judge rejected the evidence of Ms Jeffrey; in particular, her evidence that the complainant was not present in the office at the relevant time.
His Honour then referred to his "general impression of the evidence of the accused", which he had set out earlier in his reasons, at [28] ‑ [29]:
"In cross‑examination the accused was belligerent, provocative and generally unhelpful, as the following exchange indicates:
'Q.Did you ever just sit there and look out the window?
A.Well windows are meant to look out of.'
His demeanour is not explicable on any cultural basis. He stated that between five to eight families formed the community, and agreed that essentially they were all related to him. He insisted that he did not see the complainant in the office that day, and stubbornly declined to address the position on any other day. He accepted that Marie Baker handed him $50 on 2 May 2003."
Finally, the learned Judge set out his ultimate conclusion, at [39]:
"On the whole of the evidence I am satisfied beyond reasonable doubt that the accused person touched the complainant on the outside of her clothing on her breast and genital area. In the circumstances the prosecution has established that he is guilty of each offence charged in the indictment."
A case of "oath against oath"
Counsel who appeared for the appellant at trial described the case, in submissions to the learned Judge, as "essentially oath on oath". In my opinion, that was an accurate description.
The appellant gave evidence. He denied that the incident and touching described by the complainant had occurred on 2 May 2003, or at any other time.
The complainant's age and her personal circumstances prior to the alleged offences
The complainant was born on 20 November 1989. She was 13 years of age at the time of the alleged offences, and was aged 16 when the trial occurred.
When the complainant was about 10 years of age, her mother died.
Shortly prior to the alleged offences, the complainant was living with her sister, Donna. The complainant then ran away from Donna's home, and lived for a short period (about one month) at the Swan Valley Noongar campsite in Lockridge. She resided at the campsite principally in a house occupied by her mother's cousin, Bella Bropho, whom she described as her aunt. Bella Bropho is the appellant's eldest daughter.
The complainant gave evidence that her father was violent towards her. She said that:
(a)the reason she ran away from Donna's home was that her father wanted to hit her;
(b)her father hit her often; and
(c)while she was residing at the Lockridge campsite, her father would come to the campsite and endeavour to hit her again.
The complainant also gave evidence about a conversation with the police, in relation to her father, while she was at the Lockridge campsite:
"Now, before the welfare took you away, as you've told us, was there an occasion before that when the police had come round to talk to you?---No.
And you said to the police that you didn't want to go back because your father was going to beat you up or something?---Yes."
Bella Bropho said in evidence that while the complainant was living with her, the complainant received "constant harassment" from the complainant's father. Ms Bropho recalled two or three occasions when the complainant's father arrived at the Lockridge campsite unannounced. She said that when the complainant ascertained that the complainant's father had come to the campsite, the complainant would run and hide. To Ms Bropho's knowledge, however, the complainant did not see the complainant's father on any of the occasions when he came to the campsite. Ms Bropho said that she wanted the "welfare people" to come and speak to the complainant because of the "harassment" the complainant was receiving from the complainant's father.
There was no evidence that the complainant's father had come to the campsite on or shortly before the date of the alleged offences.
Delay in making complaint
The alleged offences occurred on 2 May 2003.
The complainant said in evidence that after the offences occurred she ran from the premises occupied by the appellant to an area at the campsite where there was a big tree and some rocks. Marie Bropho joined her there. The complainant said that she requested Bella Bropho to telephone "the welfare mob". She also said that she made this request because she was scared of the appellant, and wanted to leave the Lockridge campsite.
On 2 May 2003, Judith Mary Johnston (a senior social worker with the Department for Community Development at Midland), Roley Bayman (the acting Manager of that Department at Midland) and Sergeant Jim Clarysse (a police officer) arrived at the campsite. The complainant told Ms Johnston that she wanted to be taken to the house of her aunt, Lynette Bropho, in Forrestfield. The complainant left the campsite with Ms Johnston, Mr Bayman and Sergeant Clarysse and was driven to the office of the Department for Community Development, at Midland. Ms Johnston arranged for the complainant to be placed with "Anglicare carers".
On the evening of 2 May 2003 the complainant went to stay with Dorothy Kickett. She spent a couple of days with Ms Kickett and was then taken again to the Midland office of the Department for Community Development. Representatives of the Department spoke to the complainant about her experiences at the Lockridge campsite.
The complainant accepted, in cross‑examination, that when she was "speaking to the welfare people" she was "safe".
Prior to on or about 5 June 2003 the complainant did not inform anyone of the alleged conduct of the appellant which culminated in the charges the subject of the indictment.
On or about 5 June 2003 the complainant first made a complaint in relation to the alleged offences. The complaint was made to her "welfare case worker", Peta.
The complainant's explanation, in evidence‑in‑chief, for not having made an earlier complaint, was as follows:
"I didn't want to tell anyone because they wouldn't have believed me. That's why I holded it all in."
Later, in cross‑examination, the complainant said she "holded it all in" because she "didn't want no‑one to know about it".
Ms Johnston's evidence and the conflict between her evidence and the complainant's evidence
At trial, counsel for the appellant, with the consent of counsel for the State, read into evidence, as part of the appellant's case, a written statement of Ms Johnston. The State did not require that Ms Johnston be made available for cross‑examination. Ms Johnston's evidence was therefore uncontested.
Ms Johnston's statement provides:
"(1) I am a senior social worker with the Department for Community Development, Midland; (2) I have a degree in bachelor of social work from Curtin University; (3) on 2 May 2003 the acting manager for the Department for Community Development Midland, Roley Bayman, directed me to telephone the Swan Valley Nyoongah Community, Lockridge and to speak with Bella Bropho. I was to make arrangements to attend and speak with a child known to me as [the complainant]; (4) I telephoned the Swan Valley Nyoongah Community and spoke to a lady I know as Margaret Jeffreys. I left a message for Margaret Jeffreys for Bella Bropho to call me at the Department for Community Development, Midland; (5) Bella telephoned back sometime later and said that [the complainant] was really scared.
(6) when I asked Bella Bropho what 'scared' meant she said [the complainant] would need to tell me. Robert Bropho said something along the lines that a bad thing had happened. She needed to leave the community; (7) I then advised Roley Bayman of the conversation I'd had with Bella Bropho; (8) later that day, on 2 May 2003, I was advised by Roley Bayman to accompany him to the Swan Valley Nyoongah community at Lockridge.
(9) Roley Bayman and I travelled to the Kiara police station and met with Sergeant Jim Clarysse; (10) Sergeant Clarysse accompanied Roley Bayman and I to the Swan Valley Nyoongah community; (11) on arrival Roley Bayman, Sergeant Clarysse and I went to the office which is the first building marked 'office'.
(12) a female who I know as Bella Bropho met us outside the office; (13) there were other Aboriginal males around and Sergeant Clarysse spoke to them; (14) Roley Bayman and I told Bella Bropho who we were; (15) Bella Bropho took us to an area about 50 metres from the office. This area had a large rock. This is where [the complainant] was.
(16) there was also males and children around this area; (17) I asked Bella Bropho if she would leave us alone to talk to [the complainant] ; (18) Bella Bropho, the males and the children left around this area then left; (19) [the complainant] was very quiet. I told her who Roley Bayman and I were and that we talked to kids all the term [sic]. We asked if there was anything worrying her or anything we could help her with.
(20) [the complainant] said she wanted to go to her auntie Lynette Bropho's house in Forrestfield; (21) when asked why [the complainant] said her father hits her with a stick; (22) I asked her how he hit her, does it leave marks and what leads up to it; (23) [the complainant] said her father hits her across the back of the legs when she has done the wrong thing; (24) I asked [the complainant] if anyone else had hurt her or if she had been hurt in any other way; (25) [the complainant] said, 'Not in that twisted sex stuff.'
(26) I said, 'What do you mean by that?'; (27) [the complainant] said, 'You know.'; (28) I said 'You have to tell me.'; (29) [the complainant] said, 'None of that touching.'; (30) [the complainant] then went and spoke about her dad, [the complainant's father], general things like school; (31) Roley Bayman then asked [the complainant] her auntie Lynette Bropho's telephone number; (32) Roley Bayman put the telephone number that [the complainant] gave into his mobile telephone. He then handed [the complainant] the mobile telephone. The number rang out; (33) [the complainant] was then asked to come with Roley Bayman and I, us, to the Department for Community Development office in Midland so we could sort out accommodation for her to stay; (34) [the complainant] then went with Sergeant Clarysse to Bella Bropho's house; (35) Roley Bayman and I went back to the car and drove the car to Bella Bropho's house; (36) [the complainant] came out of Bella Bropho's house with a blue plastic bag containing her clothing.
(37) Roley Bayman and I then drove Sergeant Clarysse back to the Kiara police station; (38) Roley Bayman and I then conveyed [the complainant] to the Department for Community Development office in Midland; (39) at the Department for Community Development office in Midland I conducted checks and made arrangements through the crisis care unit to place [the complainant] with Anglicare carers.
40. I have only been to the Swan Valley Nyoongah community once, that being on 2 May 2003. This is the only time I have picked up [the complainant]; (41) I declare that this statement is true and correct to the best of my knowledge and belief and that I have made this statement knowing that if it is tendered in evidence I will be guilty of a crime if I have wilfully included in this statement anything which I know to be false or that I do not believe to be true."
Ms Johnston signed the statement. It was dated 18 June 2003.
The complainant was cross‑examined in relation to the conversation referred to in Ms Johnston's statement. Relevantly, for present purposes, the following exchange occurred:
"Did she ask you if anyone had hurt you or, 'Have you been hurt in any other way?' Did she ask you that question?---Yes.
And you're telling Ms Johnson [sic] the truth, aren't you?---Yes.
… And when she said, 'Have you been hurt in any other way?' you said, 'Not in that twisted sex stuff,' didn't you?---No, I never said that. I said that, 'I don't do' - 'My dad doesn't do that stuff.'
And did you tell her that none of that touching had happened to you?---What?
…
Did you say to her none of that touching had happened to you?---No."
Counsel for the State sought to explore this issue in re‑examination. The relevant evidence was this:
"[Counsel for the appellant] asked you if you told the welfare that nothing happened, 'Not in that twisted sex stuff'?---Yes.
Who were you talking about when you were saying that thing?---I can't remember.
Okay. You can't remember saying that at all?---No.
No. Because your answer to [counsel for the appellant] was, 'No, I never said that. I said my dad doesn't do that stuff'?---Yes.
So at the time that the welfare lady asked you questions about that were you talking about your dad or anybody?---No.
That was an 'or' question so were you talking about your dad or were you talking about whether it had happened to you at all?---No.
No. Okay. You don't understand my question?---Yes, I do understand your question.
What I'm asking you is when the welfare lady was asking you about whether anything like that had happened did you mean that nothing at all had happened?---Yes.
You did. Had the thing with Robert happened then?---Yes.
Were you telling the truth to the welfare lady?---Yes.
So why did you tell her that none of that sex stuff happened?---I don't know what you're talking about.
I'm sorry?---I don't know what you're talking about.
Okay. You don't understand what I'm asking you?---Yes.
I'll start again then because it's important that we talk about that. [Counsel for the appellant] asked you what you were telling the welfare lady about what had happened at Lockridge. Remember?---Yeah.
And one of your answers, one of the things you said to him today was, 'I never said that. I said my dad doesn't do that stuff'?---Well, why are you bringing my dad up for? This is all about Robert and you're bringing my dad up.
Yes. What I'm just asking you is when you told the welfare lady that none of that twisted sex stuff happened, were you talking about your dad?---No, I was talking about something else. I don't know. I was just going off because of what old Robert done to me."
The complainant's degree of certainty that the alleged offences occurred
Counsel for the appellant suggested to the complainant in cross‑examination that the alleged offences did not occur. The relevant passage is in these terms:
"… I'm going to suggest to you that the incident with Robert Bropho you've told us about in the kitchen just didn't happen at all?---What?
I'm going to suggest to you the incident you've told us about, Robert Bropho touching your breast and the outside of your vagina, that that never happened. What do you say to that?---Yes, it did."
The complainant also gave evidence in relation to this issue in re‑examination, as follows:
"… This thing that happened with Robert, do you remember it clearly or not very clearly?---Not really clearly.
Not really clearly. How sure are you that it actually did happen?---It did happen."
Did the trial Judge err in not referring to, and taking into account, a warning?
In my opinion, on a view of the facts reasonably open to the learned Judge, in his capacity as the tribunal of fact, there were circumstances which, in combination, suggested that the complainant's evidence may be unreliable. The relevant circumstances were these:
(a)The evidence of Ms Johnston (whom the State did not require be made available for cross‑examination and whose evidence was therefore uncontested) that on the date, and after the occurrence, of the alleged offences (2 May 2003), the complainant told her, in substance, that:
(i) she had not been touched sexually in any way by any person at the Lockridge campsite; and
(ii)she wanted to leave the Lockridge campsite because her father physically abused her (and, by implication, not because of any misconduct by the appellant).
(b)(i) The complainant said in evidence at trial that what she had told Ms Johnston on the date of the alleged offences was the truth.
(ii)Later, however, in her evidence the complainant denied having told Ms Johnston (as asserted by Ms Johnston in her statement) that "none of that touching had happened to her".
(c)(i) The history of physical abuse of the complainant by her father was confirmed and elaborated upon by the complainant in her evidence at trial.
(ii)Bella Bropho gave evidence at trial that the complainant's father had harassed the complainant at the Lockridge campsite.
(d)The short delay (about one month) in making a complaint in relation to the alleged offences, notwithstanding earlier opportunities, when the complainant felt safe, to make a complaint to representatives of the Department for Community Development.
The other circumstances relied on by counsel for the appellant, in his argument that a warning was required, were not serious or significant. I agree with Pullin JA in relation to his Honour's evaluation of those other circumstances.
In my opinion, the complainant's allegations of indecent dealing by the appellant were not implausible to a serious extent. Compare Robinson v R (1999) 197 CLR 162, and the analysis of that case by Keane JA in TN, at 139 ‑ 141 [55] ‑ [58]. Further, the delay between the date of the alleged offences, on the one hand, and the date of the complaint and the commencement of the trial, on the other, were not significant. Compare Longman, where the events in question occurred 20 to 25 years before the trial, and while the complainant, who was then a young child, was asleep or waking. Although the circumstances which I have mentioned suggested, in combination, and on a view that was reasonably open, that the complainant's evidence may be unreliable, her credit and reliability were issues to be resolved by the tribunal of fact. The relevant circumstances in relation to the complainant and her evidence would have been obvious to that tribunal. There was no particular danger, in acting upon the evidence of the complainant, which the tribunal of fact might not appreciate. In my opinion, it was not necessary, to prevent a perceptible risk of a miscarriage of justice, for the learned Judge to refer to, and take into account, a warning.
I consider that, in the circumstances referred to and relied on by counsel for the appellant, there was no requirement, within s 119(3)(a) of the Criminal Procedure Act, for a warning to be given. The "failure to warn" ground is without merit.
Application for leave to appeal against conviction: the other grounds
I agree with Pullin JA (for the reasons given by his Honour) that the learned Judge did not err, as alleged, in relation to the "onus" ground, according to whether he accepted or rejected the complainant's evidence or the appellant's evidence. The "onus" ground is without merit.
I also agree with Pullin JA (and, subject to one qualification, for the reasons given by his Honour) that the learned Judge did not err, as alleged, in relation to the "failure to reveal the intellectual process" ground. The qualification is that I do not consider, with respect, that the conflict between Ms Johnston's evidence and the complainant's evidence can be characterised as "nothing of significance". The "failure to reveal the intellectual process" ground is without merit.
Further, I agree with Pullin JA (for the reasons given by his Honour) that ground 2 is without merit.
Conclusion in relation to the application for leave to appeal against conviction
I would dismiss the application for leave to appeal against conviction.
Application for an extension of time to apply for leave to appeal against sentence
I agree with Pullin JA (for the reasons given by his Honour) that the application for an extension of time to apply for leave to appeal against sentence should be dismissed.
- AGLC
- Bropho v The State of Western Australia [2006] WASCA 109
- Case
- [2006] WASCA 109
- Decision Date
CaseChat Overview and Summary
The court had to determine whether the trial judge had correctly applied the onus of proof and if he was required to refer to and take into account a specific warning in his judgment to prevent a miscarriage of justice. The decision hinged on the interpretation of sections 119(3)(a) and 30(3) of the Criminal Procedure Act 2004 (WA) and the Criminal Appeals Act 2004 (WA). The court found that while the trial judge had a dual role, it was not necessary to issue a specific warning to avoid a miscarriage of justice, as long as the judge applied the law correctly and the verdict was not unreasonable. The court emphasised that the reasons for the decision should be sufficient to demonstrate the trial judge's approach to the evidence and the application of the law, ensuring that the verdict was supported by the evidence.
In the end, the court concluded that the trial judge did not reverse the onus of proof and that the verdict was not unreasonable. The court found that the reasons provided by the trial judge were adequate to demonstrate that the verdict was based on a proper application of the law and the evidence. Consequently, the appeal was dismissed, and the conviction was upheld. The case reinforces the importance of a clear and reasoned judgment, ensuring that the trial judge's approach to the evidence and the application of the law is transparent and justifiable.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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