CGS v The State of Western Australia
[2009] WASCA 208
•19 NOVEMBER 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: CGS -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 208
CORAM: McLURE P
PULLIN JA
BUSS JA
HEARD: 19 OCTOBER 2009
DELIVERED : 19 NOVEMBER 2009
FILE NO/S: CACR 14 of 2009
BETWEEN: CGS
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :SCOTT DCJ
File No :IND 46 of 2008
Catchwords:
Criminal law - Appeal against conviction - Cross-examination of complainant about earlier complaint of unrelated sexual assault - Relevance - Turns on own facts
Legislation:
Evidence Act 1906 (WA), s 36BC
Result:
Leave to appeal refused
Category: B
Representation:
Counsel:
Appellant: Mr P N Bevilacqua
Respondent: Ms L D O'Connor
Solicitors:
Appellant: WA Legal Pty Ltd
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Bull v The Queen (2000) 201 CLR 443
Cavill v the State of Western Australia [2008] WASCA 108
Goldsmith v Sandilands (2002) 76 ALJR 1024
Hill v The Queen [2003] WASCA 177
Kilby v The Queen (1973) 129 CLR 460
Weiss v The Queen (2005) 224 CLR 300
McLURE P: This is an application for leave to appeal against conviction. The appellant was convicted after trial of six counts of indecent dealing with a child who he knew to be his de facto child who was under the age of 16 years (the complainant), three counts of sexual penetration of the complainant and one count of procuring the complainant to do an indecent act.
The appellant was found guilty of a number of alternative (lesser) offences to those with which he was charged and was acquitted of one count of attempted sexual penetration. The counts and the verdicts are as follows:
Count
Offence
Verdict
1
Sexual penetration (penis into anus)
Not guilty
Alt to 1
Indecent dealing (rubbing groin against buttocks)
Guilty
2
Indecent dealing (toughing chest)
Guilty
3
Sexual penetration (finger into vagina)
Guilty
4
Indecent dealing (touching vagina)
Guilty
5
Sexual penetration (penis into anus)
Not guilty
Alt to 5
Indecent dealing (rubbing groin against buttocks)
Guilty
6
Attempt at sexual penetration (penis into vagina)
Not guilty
7
Sexual penetration (penis into anus)
Not guilty
Alt to 7
Indecent dealing (rubbing groin against buttocks)
Guilty
8
Indecent dealing (touching buttocks)
Guilty
9
Sexual penetration (finger into vagina)
Guilty
10
Sexual penetration (tongue into vagina)
Guilty
11
Procure indecent act (touching penis)
Guilty
The appellant does not seek to appeal against all his convictions. There is no appeal against his conviction on counts 1, 5 and 7, all of which were the subject of admissions made by the appellant in a police record of interview.
The sole ground of appeal is that the trial judge erred in failing to allow the appellant to adduce evidence from the complainant in relation to an alleged disclosure by the complainant to her mother of previous sexual abuse by her uncle.
The respondent has filed an application for leave to adduce additional evidence. The complainant's evidence (in a sworn affidavit) is to the effect that if she had been permitted to answer the question put to her by the appellant's trial counsel, she would have said she had never complained to the appellant or her mother that she or her sister had been subjected to the alleged sexual assault by her uncle. Further, the complainant's mother states in her affidavit that the appellant informed her of what the complainant's sister had allegedly said to him concerning a sexual assault on her by her uncle. The appellant raised this matter with the complainant's mother at a time when the uncle in question was suing the appellant's brother for workers' compensation. With the concurrence of the parties, the court deferred consideration of the respondent's application until such time as it had determined whether the trial judge had made an error that would enliven this court's power to intervene.
The appellant had lived in a de facto relationship with the complainant's mother. There is a child (a girl) of that relationship who is three years younger than the complainant. The appellant is not the complainant's biological father but she referred to him as her father when she was growing up. At some stage the appellant and the complainant's mother separated although they remained on very good terms after the separation. The complainant and her sister continued to live with their mother but the appellant had access rights. Both the complainant and her sister stayed with the appellant every second weekend.
Count 1 was committed approximately one month before the complainant's 10th birthday. Counts 9, 10 and 11 were committed around January 2002 when the complainant was aged 12. The complainant did not inform, or complain to, her mother about the appellant's conduct at or around the time the offences occurred.
In her evidence‑in‑chief the complainant gave a number of explanations for not saying anything to her mother:
Is there any reason why [you did not say anything to your mother]?‑‑‑Because I was quite afraid.
What were you afraid of?‑‑‑We always saw on movies and things like that if one of the parents isn't fit then they come and take the child away, and I was under the impression that they would just take myself away and leave my sister there (AB 18).
Later she was asked whether there were any reasons for her failure to complain:
Were there any reasons other than those?---That and he was quite a violent man; he lost his temper quite easily.
When you say 'violent', we need to clarify this. Was he ever physically violent towards you?---Only when we were quite young and it was an isolated incident. However, he would, like, kick things and break stuff.
So you mean more violence not towards you, but rather he was violent in terms of when he got angry, the way he would behave?‑‑‑Yes, that's correct (AB 24 ‑ 25).
The complainant gave evidence of an occasion when her younger sister asked why the appellant was touching the complainant. The complainant said she told her sister that the appellant had not been touching her and that she was dreaming. The complainant was asked to explain her response:
Why did you say that?‑‑‑Because, as I said earlier, I was frightened that they would take me away and just leave [my sister] there and I didn't want that to happen (AB 36).
The failure to complain was pursued in cross‑examination as follows:
Why didn't you tell your mum about the fact that he was touching you in the chest area if it happened?‑‑‑As I said earlier, I was frightened that it either (a) [the appellant] would get ‑ because he had been aggressive to my mum in the past. I was frightened that he would either get aggressive to either me or my mum and that they would take me away and just leave [my sister] there.
Take you away from where? From [the appellant]?‑‑‑From my family.
Well, your mum was obviously pretty protective of you, wasn't she, during the time you were living with her?‑‑‑Correct.
Didn't you feel a sense of safeness in your own house, that you could confide in your mum about things that allegedly happened to you?‑‑‑Not with that, no.
Why not?‑‑‑I think because I also felt a bit ashamed.
Right, so you felt ashamed. You haven't said that before but obviously that's something that you did feel that the time?‑‑‑Correct, yes (AB 51).
Shortly after, the cross‑examination proceeded as follows:
Do you remember a person by the name of … ?‑‑‑Yes, that's my uncle.
Yes. Do you remember when you were about five that you raised the fact that he had anally penetrated both you and your sister (AB 53)?
Unsurprisingly, that question prompted an objection which resulted in submissions being made in the absence of the jury. The State objected on the ground that the subject matter was prohibited by s 36BC of the Evidence Act 1906 (WA). The objection was properly taken.
Counsel for the appellant made a number of attempts to explain the factual propositions he wished to put to the complainant and the purpose of the evidence. It appears the appellant's final position was that when the complainant was aged 5 she told him and her mother that her uncle had anally penetrated her and her sister and that the appellant and the complainant's mother took the complaint seriously and acted appropriately by taking the girls to Princess Margaret Hospital for the purpose of being interviewed (including by police). The purpose of the evidence was identified as being to discredit the complainant's evidence that she failed to speak to her mother about the appellant's conduct because she was afraid of a possible violent response from the appellant and was ashamed to speak out.
The judge ruled against the foreshadowed line of questioning, not on the basis that it fell within s 36BC of the Evidence Act, but on the ground of relevance. He said:
I can't see how it goes to the issue of the reasonableness of her explanation for failing to complain at all. It's just another side issue and I don't think it is relevant at all, so let's not go there, Mr Moen (AB 59).
The State's position is that the evidence was irrelevant and thus inadmissible; if it was relevant, it fell within the prohibition in s 36BC of the Evidence Act and even if it did not, there was no substantial miscarriage of justice.
Applicability of s 36BC
Section 36BC of the Evidence Act provides:
(1)In proceedings for a sexual offence, evidence relating to the sexual experiences of the complainant, being sexual experiences of any kind, at any time and with any person, not being part of the res gestae of the proceedings, shall not be adduced or elicited by or on behalf of an accused unless leave of the court has first been obtained on application made in the absence of the jury (if any).
(2)The court shall not grant leave under subsection (1) unless satisfied that ‑
(a)what is sought to be adduced or elicited has substantial relevance to the facts in issue; and
(b)the probative value of the evidence that is sought to be adduced or elicited outweighs any distress, humiliation or embarrassment which the complainant might suffer as a result of its admission.
A majority of the Full Court in Hillv The Queen [2003] WASCA 177 rejected the proposition that in cases where the central issue of guilt depends on resolving a conflict in testimony, particularly in sexual matters, the difference between questions going to credit and questions going to the facts in issue reduces to vanishing point [3], [52] ‑ [56].
Section 36BC only applies to evidence that tends to prove sexual experience: Bull v The Queen (2000) 201 CLR 443 [72] ‑ [84]. The existence or non‑existence of a recent complaint of sexual assault goes only to the credit of the complainant not to a fact in issue: Kilby v The Queen (1973) 129 CLR 460, 472. Thus, evidence of a complaint of a sexual experience does not tend to prove sexual experience for the purposes of s 36BC: Cavill v the State of Western Australia [2008] WASCA 108 [25].
If counsel had been permitted to formulate his questions in a way that was consistent with the foreshadowed scope of the proposed cross‑examination, it would not have infringed s 36BC of the Evidence Act. On that basis, the central issue is whether the proposed evidence was relevant and thus prima facie admissible.
Relevance
Evidence is relevant if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings: Goldsmith v Sandilands (2002) 76 ALJR 1024 [2]. Evidence concerning collateral facts - facts that are not facts in issue or facts relevant to a fact in issue - is not generally admissible. That rule is subject to a number of exceptions, the best known of which is that a witness may be cross‑examined about facts affecting his or her credit or credibility. However, the general rule is that the answer of a witness on a collateral matter is final and cannot be contradicted: Goldsmith v Sandilands [32] ‑ [34].
The proposed line of cross‑examination on behalf of the appellant was only relevant to the complainant's credit. The appellant accepted he would be bound by the complainant's answers to the questions.
I will assume for present purposes, without deciding, that the appellant is not required in this appeal to provide an evidentiary foundation for the factual propositions which his counsel intended, but for the ruling, to put to the witness.
Whether or not the complainant told her mother when she was aged 5 that her uncle had anally penetrated her and her sister is not relevant to the credibility of the complainant's evidence as to why she did not complain to her mother about the appellant's conduct. It could not rationally affect the assessment of the probabilities of whether the appellant committed counts 2, 3, 4 and 8 ‑ 11. Any possible impact on the probabilities could only be indirect by impacting on the credibility of the complainant's evidence of why she failed to complain. However, the proposed line of questioning was not relevant to any of the explanations given by the complainant for her failure to complain. There are two significant factual distinctions. First and foremost, the conduct is said to have been committed by the complainant's de facto father who was continuing to exercise his rights over both children in that capacity and who was on very good terms with the complainant's mother. The complainant's fear that she would be taken away from her family and of possible violence from the appellant are offender specific and have no application when the alleged perpetrator is an uncle. Moreover, guilt or shame is not an emotion that is reasonably associated with what appears to be, at its highest, an isolated offence against a 5‑year‑old girl. However, shame and its close relation guilt are common features of the reactions of pubescent or pre‑pubescent children who are subjected to continuing sexual abuse by a person in loco parentis.
Proviso
If, contrary to my judgment, the evidence was relevant and admissible, the cross‑examination could only have proceeded in one of two ways. The complainant could have denied that she had made any such complaint. The appellant's counsel accepted that the finality rule would have prevented him from adducing evidence to contradict that answer. Alternatively, even if the complainant agreed that when she was aged 5 she complained to the appellant and her mother about the conduct of her uncle, she would have been given a further opportunity to restate why she failed to complain about the appellant.
The State contends that even if the trial judge made an error, it did not give rise to a substantial miscarriage of justice. I agree. The task in applying the proviso is an objective one that is not materially different from other appellate tasks and it must be undertaken by the appellate court on the whole of the record of the trial including the verdict: Weiss v The Queen (2005) 224 CLR 300 [43]. The question in this case is whether the error would, or at least should, have had no significance in determining the verdict. The objective distinguishing features between the two sets of circumstances provide a compelling explanation for the complainant's failure to complain to her mother about the appellant's conduct. Moreover, the appellant's interview with police was incriminating. His admitted sexual misconduct with the complainant went further and evidenced a sexual attraction to the complainant. Further, whilst denying he penetrated her, he said, when asked if penetration may have happened but he had forgotten it: 'Probably, but I don't know'. He also repeatedly said the complainant was not a liar. There was no unequivocal denial of sexual penetration. I am positively satisfied that the alleged error would and should have had no significance in determining the verdict. I would refuse leave to appeal.
PULLIN JA: I agree with McLure P.
BUSS JA: I agree with McLure P.
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