Criminal law and procedure - Appeal against convictions - Charges of indecent dealing - Offences alleged to have occurred 23 years ago - Evidence of complainant uncorroborated - Longman warning - Whether trial judge needs to refer jury expressly to inconsistencies in evidence of complainant - Whether need to address jury as to issue of repressed memories

Legislation:

Nil

Result:

Appeal allowed
Re-trial ordered

Representation:

Counsel:

Applicant: Mr R D Young
Respondent: Mr D Dempster

Solicitors:

Applicant: Gunning
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Gaulard v The Queen [2000] WASCA 218
Hyatt v The Queen (1998) 101 A Crim R 83
James v The Queen [2000] WASCA 100
King v The Queen (1986) 161 CLR 423
Longman v The Queen (1989) 168 CLR 79
R v Henry (1968) 53 Cr App R 150
R v Jenkyns (1993) 32 NSWLR 712
R v Lines (1884) 1 Car & K 393
R v McFelin [1985] 2 NZLR 750
R v Pinder (1992) 8 WAR 19

Case(s) also cited:

Bromley v The Queen (1986) 161 CLR 315
Gill v The Queen [1999] WASCA 68
M v The Queen, unreported; CCA SCt of WA; Library No 980452; 12 August 1998
Palmer v The Queen (1998) 193 CLR 1
T v The Queen [2000] WASCA 153
Welsh v The Queen, unreported; CCA SCt of WA; Library No 980489; 1 September 1998

PIDGEON J: I have read the reasons of Owen J. I agree with those reasons and the orders proposed.
IPP J: I have read the reasons of Owen J. I agree with those reasons and the orders proposed.
OWEN J: Following a trial in the District Court the applicant was convicted by a jury of eight counts of indecent dealing and one count of unlawful carnal knowledge of a girl under the age of 13 years. He was sentenced to imprisonment for 6 years. This is an application for leave to appeal against conviction.

Background

In 1976 the complainant was 10 years of age and the applicant was about 40 years old. The complainant lived with her family (including her mother and a younger sister) in suburban Adelaide. They were not related to the applicant but knew him through mutual friends. At some time in 1976 the applicant decided to return to live in Perth. He arranged for two other adults to accompany him to share the costs and the driving of the vehicle in which they were to travel. There was a spare seat in the vehicle and the applicant suggested to the complainant's mother that one of her three daughters may like to accompany him by way of a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Christophers v The Queen

Details

AGLC: Christophers v The Queen [2000] WASCA 308
Case: [2000] WASCA 308
Decision Date: 20 OCTOBER 2000

CaseChat Overview and Summary

The appellant, Christophers, appealed against his convictions for indecent dealing with a child under the age of 14 years. The offences were alleged to have occurred 23 years ago. The complainant's evidence was uncorroborated, and the trial judge did not refer to inconsistencies in the complainant's evidence nor address the issue of repressed memories with the jury. The appellant argued that the trial judge failed to properly direct the jury on these matters, resulting in a miscarriage of justice.

The court examined whether the trial judge was required to expressly refer the jury to inconsistencies in the complainant's evidence, and whether the judge needed to address the issue of repressed memories with the jury. The court considered the principles set out in Longman v The Queen, which require a trial judge to warn a jury of any material inconsistencies in uncorroborated evidence of an offence. The court also examined whether the trial judge should have referred to the possibility of repressed memories and its potential impact on the reliability of the complainant's evidence.

The court held that the trial judge did not err in failing to refer the jury to inconsistencies in the complainant's evidence, as the inconsistencies were not significant or material. The court also held that the trial judge was not required to address the issue of repressed memories with the jury, as there was no evidence to suggest that the complainant's memories were repressed. The court found that the appellant's convictions were safe and that there was no miscarriage of justice.

The appeal was dismissed, and the appellant's convictions were upheld. The court did not make any orders regarding costs.

Orders