CMG v The Queen
[2011] VSCA 416
•9 December 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2011 0044
| CMG | |
| Appellant | |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | ASHLEY, WEINBERG and HARPER JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 24 October 2011 | |
DATE OF ORDERS: | 24 October 2011 | |
DATE OF PUBLICATION OF REASONS: | 9 December 2011 | |
MEDIUM NEUTRAL CITATION: | [2011] VSCA 416 | |
| JUDGMENT APPEALED FROM | DPP v [CMG] (Unreported, County Court of Victoria, Judge Sexton, 11 February 2011 (date of verdict/ conviction), 25 February 2011 (date of sentence)) | |
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CRIMINAL LAW – Conviction – Committing an indecent act with a child under 16 – Taking part in an act of sexual penetration with a child under 16 – Reliability of evidence given by child witnesses – Whether trial judge when summarising the defence closing submissions erred in referring to material not in evidence concerning the reliability of child witnesses – Status of the comments as directions of law – R v Barker [2010] EWCA Crim 4 discussed – Appeal allowed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr R F Edney | Doogue & O’Brien |
| For the Crown | Mr D A Trapnell SC | Mr C Hyland, Solicitor for Public Prosecutions |
ASHLEY JA:
I have read in draft the reasons for judgment of Harper JA. I respectfully agree with them. They explain why I joined in the orders made on 24 October 2011.
WEINBERG JA:
I joined in the decision to allow this appeal for the reasons set out by Harper JA.
HARPER JA:
On 24 October 2011, the Court announced that the present appeal must be allowed, for reasons to be published. These are my reasons for joining in that decision.
In January 2009, the appellant was 38 years of age. He was, on one day during that month, entrusted with the care of a seven year old girl, to whom he was distantly related by marriage.
A rough itinerary for the occasion was agreed with the child’s mother. When, a day or two later, the child informed her mother that the appellant had taken her to his home, the mother’s suspicions were aroused. Such a visit had not been part of the arrangements to which she had agreed. Concerned about this, the complainant’s mother questioned her daughter further. As a result, additional information was obtained. It put the appellant’s behaviour in a unfavourable light. The matter was reported to the police, and the appellant was subsequently charged with six counts of committing an indecent act with a child under the age of 16, and one count of taking part in an act of sexual penetration with a child of that age.
The appellant maintained his innocence; but, on 11 February 2011, he was found guilty by a jury of three of the six charges of committing an indecent act with a child under the age of 16, and on the single charge of taking part in an act of sexual
penetration with such a child. He was acquitted of the other three charges.
The prosecution case depended upon the jury accepting the evidence of the complainant. The appellant called no evidence. It was against this background that counsel for the appellant delivered his closing address to the jury. The credibility of the complainant as a witness was, naturally, one of his themes. Having, quite properly, told the jury that they should carefully scrutinise the complainant’s evidence, counsel turned to matters which they should ‘bear in mind’. He continued:
These matters in my submission are relevant to that particular scrutiny. The complainant is not an adult. She’s not an adult witness who brings the maturity of life experience and intellect to respond and be aware of the events of life and the court room process including the giving of necessarily accurate and responsive answers as opposed to towing the line. The line being, this just happened.
Next, the complainant was a seven year old girl at the time of these allegations and [at the time of] … her VATE interview. … She was not able to be cross-examined at that point in time, that’s just not the process we have. But she now presents as a nine, almost 10 year old girl, still a very young girl. Still a very young complainant.
Next, in my submission the complainant, the young child, may blend fantasy and reality. She’s a young child. A young child may say things to appease, to please, to placate her mother and/or family that’s upset, emotional and furious. Bring your common sense to these issues. We know … of these things in my submission from our experience of life and our observations and interaction with young children. A young child is open to suggestions.
Next, the cognitive … functioning of a child is more important to the testimony than with an adult witness because of developmental issues. In my submission, a child who has not reached her full adult intellectual capacity can – not necessarily, but can – be less reliable than an adult witness because the child does not have a full intellectual adult maturity.
Why? An example is, in my submission, the child does not … appreciate the full consequences of lies and of telling lies and giving inaccurate statements as compared to an adult does appreciate the full consequences of lies and if the full consequences of telling lies is not appreciated, with respect, it is all too easy to make an allegation that is not based in fact.
Next, a young child, in my submission, can be more easily influenced by adult questioners, questions from relatives, close relatives such as mother, father, sister; and respond more to leading-type questions.
It was proper for the trial judge to refer in her charge to the jury to this portion of counsel’s final address. As part of her summary of the defence case, it would also have been proper for her to point out that the gravamen of counsel’s submission to the jury was that ‘a child who has not reached her [or his] full adult intellectual capacity can – not necessarily, but can – be less reliable than an adult witness because the child does not have a full intellectual adult maturity [and] … does not … appreciate the full consequence of telling lies … as compared to an adult does appreciate the full consequence of telling lies.’
The learned trial judge rightly perceived that the jury would probably have read into this segment of the final address that which counsel doubtless intended that they should: the message being that the complainant would not appreciate how important it was to give accurate evidence – or, if she had some understanding of the necessity to tell the truth, her grasp of the content of that necessity would be less than that of an adult. The complainant would be ‘open to suggestions’ by adults who were ‘upset, emotional and furious’ (although whether with the appellant, or the complainant, or both, is not clear). She may, in these circumstances, have sought to placate those angry adults. In order to achieve that goal, she would have been prepared to toe the adult line. A false account of the appellant’s behaviour towards her would have been the result, because if the adults were to be placated a story had to be invented; and because a child does not have an adult’s appreciation of ‘the full consequences of lies and of telling lies and giving inaccurate statements’, a child finds ‘it all too easy to make an allegation that is not based in fact.’
Although it was within the province of a final address by counsel to make these submissions, as counsel repeatedly described them, the judge was entitled to conclude that the jury needed to be presented with a more nuanced picture. She was certainly entitled to point out to the jury that these statements by counsel were not evidence; and they were to be put to one side if the jury disagreed with them. She was, in addition, entitled to tell the jury that, as the Court of Appeal (England)
emphasised in R v Barker[1] the collective experience of the courts is that ‘the age of a witness is not determinative of his or her ability to give truthful and accurate evidence’.[2] In R v Barker, the Court of Appeal continued:
Like adults some children will provide truthful and accurate testimony, and some will not. However children are not miniature adults, but children, and to be treated and judged for what they are, not what they will, in years ahead, grow to be. Therefore, although due allowance must be made in the trial process for the fact that they are children with, for example, a shorter attention span than most adults, none of the characteristics of childhood, and none of the special measures which apply to the evidence of children, carry with them the implicit stigma that children should be deemed in advance to be somehow less reliable than adults. The purpose of the trial process is to identify the evidence which is reliable and that which is not, whether it comes from an adult or a child. … In a trial by jury, his or her credibility is to be assessed by the jury, taking into account every specific personal characteristic which may bear on the issue of credibility, along with the rest of the available evidence.
[1]R v Barker [2010] EWCA Crim 4 (Court of Appeal, Criminal Division) (Lord Judge CJ, Hallett LJ and Macur J).
[2]Ibid [40].
I do not put forward the passage quoted above from Barker as a template. At the same time, had the trial judge responded to counsel’s address by charging the jury in terms such as those used by the Court of Appeal in that passage, no complaint could have been made. Having repeated that the prosecution case ‘stands or falls on [the complainant’s] evidence’, however, her Honour said:
Children are not inherently unreliable as witnesses. [Counsel for the appellant] put to you that they can be less reliable because they do not have the full intellectual capacity of adults and because they are children they do not appreciate the full consequence of telling lies. He also said the children are more easily influenced and respond to leading-type questions, that is, questions which suggest the answers. He also said that people do lie and some children, not all, lie habitually until their lies are exposed.
While it is true to say that children do not have the intellectual capacity of adults, I need to draw to your attention that the rest of those comments are common misconceptions about children as witnesses. Indeed, the Chief Justice of the Supreme Court of New South Wales said in a case in 2006, there is a substantial body of psychological research indicating that children, even very young children, give reliable evidence. Therefore I need to caution you against making any false assumptions about children’s evidence generally or about [the complainant’s] evidence in particular. Each child witness will have strengths and vulnerabilities that may potentially bear upon his or her ability to give evidence. The same may be said of adult witnesses.
Whether the strengths and vulnerabilities have any impact at all is a matter to be considered in the circumstances of each case, and that is what you should do here. Consider the particular context of [the complainant] as a person in the circumstances of this case. While you cannot ignore that she is a child and must take that into account, you should consider how she gave her evidence and what she said in the context of all of the evidence and not on the basis of misconceptions about children as witnesses. A study as long ago as 1993 found that children, even very young children, are able to remember and retrieve from their memory large amounts of information, especially when the events are personally experienced and highly meaningful. Other studies have reached conclusions which you may find of assistance to you in evaluating the arguments put forward by each side in this case.
First, any assumption that children have a greater or less a tendency to lie than adults has not been able to be proven, and there is no evidence that indicates that honesty of children is less than adults. Next, the published research suggests that children are capable of telling deliberate lies from the age of four. Next, young children may lie when they anticipate punishment or when they are threatened by someone not to disclose the truth.
Next, as they grow older, they may gain additional reasons for lying: to obtain a reward, to protect their self-esteem, to regulate the dynamics of their relationships with others and to conform to norms and conventions. And children aged nine to 10 years are not likely to report an incident they have been asked to keep secret, but are more likely to report under direct questioning than children aged five or six.
Some other things to consider are that the published literature indicates that by the age of five, most children’s speech sounds a lot like that of adults. However, simply because a child sounds like an adult does not mean that she or he has an adult’s cognitive development or command of language. By cognitive development, I mean the development of the brain and its intellectual and emotional functions. Cognitive and language development continues throughout childhood and into adulthood. For example, studies show that children do not understand questions put in the negative until around the age of 11 or 12, and children under 12 have problems when questions ask more than one thing at a time. You need to take these things into account when devaluating the arguments on [the complainant’s] evidence.
I am not giving you this information to suggest that I think [the complainant] is a reliable and truthful witness. What I think has got absolutely nothing to do with your decision. Whether she is or is not truthful and reliable are questions for you to determine, but you should determine them taking care not to make any false assumptions about children’s evidence generally or about [the complainant’s] evidence in particular.
Counsel for the appellant took exception to this part of her Honour’s charge. Having heard argument on the point, including submissions from the prosecutor opposing the applicant’s request for a discharge of the jury, her Honour said:
I have reviewed what it was that I said to the jury, and I say at the outset that there was some discussion yesterday as to what category they could be put in. I confirm that they are directions of law, and that within those, information is contained. They are not comments, and they are not evidence.
It is not unusual for a judge to expand on directions of law, to give jury information, in order to perform the task the judge has, which is to provide assistance to the jury enabling them to properly approach their task of deciding the facts.
In further reviewing what I have said, I am satisfied that the directions were balanced. I included, for example, information about the ability of children to lie from a certain age, deliberately lie that is, and other aspects as to lying which are directly referable to the submissions that have been made in this case, such as reward, or conforming to norms or conventions, or regulating dynamics of relationships.
…
As I have said, I accept that it would have been preferable had I raised this whilst [counsel for the appellant] was still within his address, but even accepting that would have been a preferred course, I am satisfied that not having done so has not led this to be an unfair trial.
A real difficulty, however, remains. Her Honour was either giving evidence, or she was charging the jury on the law. But a judge cannot give evidence. He or she may of course comment on such evidence as is placed before the jury, but only after ensuring that the jury are aware that they must disregard those comments if they do not find them helpful.
The judge herself categorised what she had said to the jury as directions of law. If so, they were binding on the jury. The very real danger, therefore, is that the jury understood (for example) that they were bound to accept that a study as long ago as 1993 found that children, even very young children, are able to remember and retrieve from their memory large amounts of information; or that there is no evidence that indicates that the honesty of children is less than that of adults. As Latham LJ said in D:[3]
The judge is entitled to make comments as to the way evidence is to be approached particularly in areas where there is a danger of a jury coming to an unjustified conclusion without an appropriate warning. … But any comment must be uncontroversial. It is no part of the judge’s task to put before the jury [a relevant expert’s] learning without [that expert] having been called as a witness.
[3][2008] EWCA Crim 2557.
Of course, nothing in this judgment should be taken as providing guidance about the proper construction of s 37B of the Crimes Act 1958, which provides that, in interpreting and applying those sections of that Act which deal with sexual offences, courts are to have regard to the facts to which that section refers: that there is a high incidence of sexual violence in society; that sexual offences are significantly under reported; that a significant number of these offences are committed against vulnerable persons (such as children); that the offenders are commonly known to their victims; and that sexual offences often occur without physical signs of injury.
The common law refused to allow the reception into evidence of opinions about matters about which an ordinary member of the public (and therefore an ordinary member of a jury) could, from his or her own experience and knowledge of the world, form a sound judgment. This included the commonly exhibited behavioural characteristics of children.
On the other hand, there are aspects of children’s behaviour – such as that of child victims of sexual assault – that are not a matter of ordinary knowledge.[4] Opinion evidence may therefore be given about child development and child behaviour (including the impact of sexual abuse on children, and their development and behaviour during and following abuse) once the conditions prescribed by the Evidence Act 2008, and in particular s 79 of that Act, have been met. I also note that, by s 108C, the credibility rule (which is found in s 102, and provides that credibility evidence about a witness is not admissible) does not apply to evidence given by a person concerning the credibility of another witness if the first (expert) witness meets the criteria set out in s 108C, and the court gives leave to adduce the evidence.
[4]HG v The Queen (1999) 197 CLR 414, 432 (Gaudron J).
Such evidence was not called in the present case. It was not within the limits of the judicial function for the judge to attempt to fill the gap. The comments of her Honour were not properly within the scope of directions of law, and they were controversial. They took the judge into the arena. This is prohibited territory. In these circumstances, the appeal in my opinion had to be allowed.
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