CJF v The State of Western Australia
[2012] WASCA 14
•25 JANUARY 2012
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: CJF -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 14
CORAM: McLURE P
BUSS JA
MAZZA JA
HEARD: 2 DECEMBER 2011
DELIVERED : 25 JANUARY 2012
FILE NO/S: CACR 105 of 2011
BETWEEN: CJF
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :O'NEAL DCJ
File No :IND 1111 of 2010
Catchwords:
Criminal law - Leave to appeal against conviction - Indecent dealing with and sexual penetration of de facto child under the age of 16 years - Good character evidence - Delay in complaint
Legislation:
Nil
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr S B Watters
Respondent: No appearance
Solicitors:
Appellant: Thames Legal
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Kilby v The Queen [1973] HCA 30; (1973) 129 CLR 460
Steel v The State of Western Australia [2010] WASCA 118
McLURE P: I agree with Mazza JA.
BUSS JA: Generally for the reasons given by Mazza JA, leave to appeal should be refused and the appeal dismissed.
MAZZA JA: This is an application for leave to appeal against conviction.
The appellant was convicted, on 1 April 2011, after a trial before O'Neal DCJ and a jury, of two counts of indecent dealing with a de facto child under the age of 16 years and four counts of sexual penetration of a de facto child under the age of 16 years.
The victim in each case was the appellant's stepdaughter, BC, who was born in June 1996.
The State's case was as follows. The appellant, the complainant's mother and the complainant moved from New South Wales to Western Australia in 2005. While driving to this State, the family vehicle broke down at the Nullarbor Roadhouse in South Australia. There, it was said, the appellant sexually penetrated the complainant for the first time. The State alleged that, almost as soon as the family arrived in Western Australia, the appellant groomed the complainant for more sexual abuse. That abuse began to occur on a regular basis within months of arriving in Western Australia, and occurred up until November 2009.
It was said that the appellant used a combination of threats, violence, intimidation and providing the complainant with significant rewards over and above those given to other family members to secure the complainant's compliance with his sexual demands and her silence. The charges which the State brought against the appellant were representative of the appellant's conduct and related to the period of 2008 to 2009, when it was said that her memories of what occurred were clearer.
Counts 1, 2 and 3 were alleged to have occurred on an occasion when the complainant slept overnight in a tent in the backyard of the then family home. At some stage during the night, the appellant entered the tent and woke the complainant up. He touched her breasts on the outside of her clothing (count 1) and then rubbed her vagina beneath her underwear (count 2). He left the tent, but returned some time later, visibly intoxicated, and penetrated the complainant's vagina with his penis (count 3). The following day, the appellant told her not to say anything, otherwise her younger brother, with whom she was very close, 'was dead'.
The State's case with respect to count 4 was that this occurred when the complainant was cleaning her bedroom. He grabbed her ankles and flipped her over so that she was lying on her back. The appellant started hitting her with his fists. He then pulled down her pants and forcibly pushed his penis into her vagina, causing her physical pain.
Counts 5 and 6 were alleged to have occurred in approximately November 2009. The complainant was asleep in the lower bunk in her room. Her younger brother was asleep in the top bunk. The appellant came into the room and got into bed with her. He penetrated the complainant's vagina with his finger, apparently in an effort to sexually stimulate her (count 5). The appellant then tried to penetrate the appellant's vagina with his penis. She squirmed and told him to stop. However, she detected that the appellant was getting angry, and so she acquiesced to his demands. The appellant sexually penetrated her vagina with his penis in a forcible manner, causing her pain (count 6).
The appellant's defence was that at no time had he sexually abused the complainant.
He denied threatening the complainant or being violent towards her. He accepted that he had given the complainant gifts, but said he did so because she had a strained relationship with her mother. He said that he did not favour the complainant over the other children in the family. He, in effect, portrayed himself as a loving stepfather. It was suggested that the complainant had emotional difficulties which might explain the allegedly fabricated allegations she made against him.
Evidence of complaint
BC made no prompt complaint of the appellant's sexual conduct towards her. However, in November 2009, Ms Wright, a senior child protection worker for the Department for Child Protection, spoke to the complainant. The complainant, although given the opportunity to make disclosures about the appellant, made no complaint about him and did not disclose that anything untoward was happening in the household.
Then, on Christmas Eve 2009, the complainant had a conversation with a babysitter, RW. In that conversation, the complainant disclosed, in general terms, the sexual abuse. The complainant's mother was then called from work and informed of what the complainant had said.
The complainant was interviewed by the police on 5 January 2010. She did not disclose the full extent of the abuse in that interview. She told the police about the incident at the Nullarbor Roadhouse and about the most recent incident, which occurred in approximately November 2009, in her bedroom. At a later interview, the complainant made further disclosures.
The defence case was that the failure by the complainant to make a prompt complaint and the inconsistency of the complaints she made, from November 2009 onwards, reflected adversely upon her credibility and were indicative that the allegations were false.
The State's case on this issue was that the appellant, by his use of a combination of threats, violence, intimidation and gifts, secured the complainant's secrecy and instilled fear in her, which explained not only the failure to make an immediate complaint, but the inconsistent nature of the complaints after November 2009.
Evidence of good character
The appellant adduced good character evidence, including evidence from the appellant's current partner, MM. She testified that she met the appellant over the internet and first saw him, face to face, in June 2010, approximately 9 months before the trial.
She described him, based on her knowledge, as 'an honest man' and that she had seen him interact with two of his children. She described him as being 'very sensitive to his kids' needs': ts 614 ‑ 615.
MM's evidence was objected to by the prosecutor on the basis, in part, that it was not evidence of good character. His Honour, after discussion with counsel, in effect ruled that the evidence was good character evidence: ts 604 ‑ 614.
The State's case was that MM's knowledge of the appellant was limited and that her evidence should be either ignored or given little weight.
The proposed grounds of appeal
The proposed grounds of appeal are as follows:
Ground 1
1.The learned trial Judge erred in law and fact when he left to the jury, as a threshold question, whether there was testimony capable of amounting to evidence of good character, thereby leading to a miscarriage of justice (t-s 675).
Ground 2
2.The learned trial Judge erred both in law and fact, and there was a miscarriage of justice, when he failed to adequately direct the jury about hearsay evidence of complaint made by the complainant ('the complaint evidence');
Particulars:
1.1His Honour failed to adequately direct the jury the complaint evidence was relevant only as to the credibility of the complainant;
1.2His Honour failed to adequately direct the jury the complaint evidence did not constitute corroboration in support of the testimony concerning the particular charge they were examining;
1.3His Honour failed to adequately direct the jury the complaint evidence was vague and/or generic and did not relate to any particular count on the Indictment.
Merit of ground 1
His Honour's direction to the jury concerning MM's character evidence was as follows:
[The prosecutor] does not suggest that [the appellant] has any prior convictions and you can accept that he's never been convicted of any criminal offence. If you're satisfied that an acquaintance of the kind that [MM] has described, and the circumstances in which it has arisen, makes her an appropriate judge, you can take into account [the appellant's] good character in deciding whether you can draw an inference of guilt in this particular case: ts 675.
The appellant submitted that the effect of this direction was that his Honour left to the jury to decide, as a matter of law, whether MM's evidence was capable of amounting to evidence of good character.
The impugned direction cannot be read in isolation. It must be read in the context of the summing up as a whole. At the outset of the summing up, his Honour instructed the jury in the clearest terms that it was his responsibility to inform the jury of the law that applied to the case and that it was the jury's responsibility to decide the facts: ts 651, 652. He further instructed the jury that it was for them to determine the significance of evidence and the reliability of a witness's testimony: ts 654 ‑ 655.
Of course, it is for a trial judge to determine, as a matter of law, the admissibility of evidence. It is then for the jury, as the triers of fact, to assess the credibility of the admissible evidence. Thus, in the present case, with respect to evidence of good character, it was for his Honour to decide whether MM's testimony was capable, as a matter of law, of being evidence of good character. This his Honour did when the State objected to MM's evidence. It was then for the jury to decide whether, as a matter of fact, it had that effect.
It is impossible to see how his Honour's direction could reasonably be interpreted in the way the appellant contends, especially when it is viewed in the context of his Honour's directions as to the jury's fact‑finding responsibilities. The language used by his Honour in the direction concerning MM does no more than inform the jury that if they thought that MM's knowledge of the appellant was sufficient to make her an appropriate (meaning reliable) judge of the appellant's character, the jury could act on the evidence if it saw fit to do so. His Honour was plainly speaking of the jury's fact finding responsibilities and was not leaving to the jury the question of whether MM's testimony was capable, as a matter of law, of amounting to evidence of good character.
The appellant's counsel placed some reliance upon this court's decision in Steel v The State of Western Australia [2010] WASCA 118. However, that case is of no assistance. The issue in Steel concerned the trial judge's directions to the jury as to self‑defence; in particular, whether statements made that the appellant was required to lay down the factual foundation for the defence, were capable of confusing the jury as to the nature of the onus of proof. It is at once clear that the issue in Steel is different to the issue in this case. The present case does not involve the consideration of matters such as self‑defence and his Honour made no reference in his summing up to the appellant bearing an evidential onus of proof.
Ground 1 has no reasonable prospect of success.
Merit of ground 2
This ground complains that his Honour 'failed to adequately direct the jury' with respect to the complaint made by BC to the babysitter RW.
The appellant's complaint is with respect to the following direction which his Honour gave to the jury in the course of his summing up, on the issue of delay in making a complaint:
There may be good reasons why a victim of an offence such as these alleged may hesitate in making or may refrain from making a complaint of the offence alleged. And, of course, I repeat that the fact that a complaint is made here, and was made to [RW], is not to be taken as independent or separate evidence of the truth of the complaint: ts 678. (emphasis added)
The appellant alleges that this was the only direction that his Honour gave to the jury on the subject of complaint: par 38, appellant's written submissions. The appellant also alleges that the phrase, 'I repeat that the fact', was 'difficult to fathom' because his Honour had not 'previously said anything on point': par 39, appellant's written submissions.
Both of these allegations are incorrect. The appellant appears to have overlooked the fact that after the complainant's pre‑recorded evidence was shown to the jury, his Honour gave the jury the following direction:
[Y]ou'll recall that in the pre‑recorded evidence of [BC] you heard her refer to a discussion that she'd had with the babysitter in which she said that she told the babysitter something of what had previously occurred to her - or what she said had previously occurred to her.
I want you to understand this. Proof that a complaint is made to a third party is never proof that the event that's described in fact occurred. Evidence of complaint is not to be taken as proof that the conduct complained of did occur. It's not separate or additional or corroborative evidence that the crime that is alleged was committed. …
It's something that you can take into account in considering her credibility and the truthfulness of her evidence. But you don't treat the fact that she's said something to a third party as separate or additional to that evidence. It is the complainant's evidence as to what occurred that you had to consider. The fact that she told someone else the same thing doesn't add to the truthfulness of her evidence. If the story wasn't true, repetition of it wouldn't make it true: ts 270.
The phrase used in the impugned direction, 'I repeat the fact', was plainly intended by his Honour, and would have been understood by the jury, as referring to this earlier direction. Accordingly, the adequacy of his Honour's direction in the summing up must be considered in the context of this earlier direction.
It is settled law that evidence of complaint is only relevant to a complainant's credibility. It is not evidence of the truth of the matters complained of: Kilby v The Queen [1973] HCA 30; (1973) 129 CLR 460.
Where evidence of complaint is given, a trial judge should give the jury such directions as are appropriate to the case as to the use that can be made of the evidence. This is exactly what his Honour did.
Both at the time that the evidence was given and in his summing up, his Honour instructed the jury that the evidence was not evidence of the truth of the complaint. On both occasions, his Honour told the jury that the evidence as not separate evidence of the matters complained of.
Contrary to the appellant's submissions, there was no risk that the jury would have regarded the complaint evidence as evidence which was independent of or corroborated the complainant's testimony.
The appellant also submitted that his Honour was obliged to inform the jury that the complaint evidence was not specific to any particular count on the indictment. Such a direction was unnecessary because it would have been obvious to the jury that the complainant's evidence to the babysitter was general in nature and did not refer to any particular count on the indictment.
Ground 2 has no reasonable prospect of success.
Orders
Neither of the two proposed grounds of appeal have reasonable prospects of success. Leave to appeal should be refused and the appeal should be dismissed.
0
2
1