Criminal law - Sexual offences - Propensity evidence - Evidence of uncharged acts - Basis of admissibility - Distinction between propensity evidence and similar fact evidence - Directions to jury as to use of the evidence - Whether directions sufficient - Longman warning - Whether required - Evidence Act s 50, s106D
Criminal procedure - Trial - Severance of indictment - Separate but similar offences - Different victims - Whether evidence of one admissible in respect of the trial of the other - Evidentiary overlap - Whether separate trials should have been ordered - Whether Judge's direction to jury sufficient to overcome prejudice occasioned by joint trial involving two complainants
Criminal procedure - Delay in making complaint - Possibility of concoction - Jury - Direction regarding delay - When necessary to give directions that jury should consider delay in evaluating complainant's testimony - Evidence Act s 36BD
Criminal procedure - Determination of child's competency to give evidence - Whether jury should hear Judge's finding
Sentence - Appeal against - Aggregate sentence of 11 years for multiple acts of sexual penetration of two young girls not excessive - Criminal Code - s 320
Legislation:
Criminal Code s320
Evidence Act s 36BD, s 50, s106B, s 106D
Result:
Leave to appeal against conviction granted Appeal against conviction dismissed Application for leave to appeal against sentence refused
[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.
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AGLC
Cook v The Queen [2000] WASCA 78
Case
[2000] WASCA 78
Decision Date
CaseChat Overview and Summary
The appellant, Cook, was convicted of multiple acts of sexual penetration of two young girls and was sentenced to an aggregate of 11 years imprisonment. He appealed against the decision, raising several grounds, including the admissibility of evidence of uncharged acts, the sufficiency of jury directions, and the appropriateness of the sentence. The Court of Appeal considered these issues in the context of relevant sections of the Evidence Act and Criminal Code. The court noted that there was no legal requirement for the judge to give a corroboration warning, but the appellant argued that a Longman direction was warranted given the circumstances. The appellant contended that the jury should have been warned about the dangers inherent in uncorroborated evidence of the complainants and the need for supporting or confirmatory material. The court found that the judge's directions to the jury were sufficient and that the evidence of the complainants was properly evaluated in light of the circumstances. The court concluded that the evidence was properly admitted and that the judge's directions adequately addressed the risks associated with uncorroborated evidence.
The court also considered whether evidence of uncharged acts should have been admitted and whether the trial should have been severed. It was determined that the evidence was properly admitted as propensity evidence and that there was no need for severance as the judge's directions to the jury were sufficient to overcome any potential prejudice. The court found that the evidence was relevant to the issues in the case and that its probative value outweighed any prejudicial effect. The court also held that the judge's direction to the jury regarding the delay in making the complaint was appropriate and that there was no need for a Longman warning. The court found that the delay did not render the evidence inadmissible or unreliable and that the jury was properly directed to consider the delay in evaluating the complainants' testimony. Finally, the court considered the sentence imposed on the appellant and found that it was not excessive in the circumstances. The court held that the sentence reflected the seriousness of the offences and the need to protect the community. The court found that the sentence was proportionate to the appellant's offending and that there were no grounds to interfere with the sentence imposed by the trial judge.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
These grounds of appeal must be seen in the light of s 50 and s 106D of the Evidence Act. Those sections provide:50.No requirement for warning as to conviction on uncorroborated evidence of one witness (1)In this section "corroboration warning" in relation to a trial means a warning to the effect that it is unsafe to convict the person who is being tried on the uncorroborated evidence of one witness.(2)On the trial of a person on indictment for an offence -(a)the judge is not required by any rule of law or practice to give a corroboration warning to the jury in relation to any offence of which the person is liable to be convicted on the indictment; and(b)the judge shall not give a corroboration warning to the jury unless the judge is satisfied that such a warning is justified in the circumstances.""106D. Particular form of corroboration warning not to be given 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 this case, the Judge did not give a corroboration warning. He did not direct the jury that it was unsafe to convict the applicant on the uncorroborated evidence of B with respect to counts 1 to 5 and he did not direct the jury that it was unsafe to convict the applicant on the uncorroborated evidence of S with respect to counts 6 and 7. In essence, these grounds of appeal plead that he should have done so and that, in doing so, he should have referred to each matter relevant to the assessment of the evidence of each of the complainants. Mr Holdenson submitted that the jury's attention should have been drawn to what he described as "the dangers inherent in such evidence and the need for the search for supporting or confirmatory material". The long and the short of the submissions was that there should have been a full "Longman" direction (Longman v The Queen (1989) 168 CLR 79). That case laid down that, notwithstanding that there is no legal requirement to give a corroboration warning, it is proper to give a warning where the particular circumstances provide justification to do so. And it was held that the circumstances may provide justification for a very strong warning indeed. In Longman, there was a delay of some 20 years before complaint was made. The fairness of the trial had necessarily been impaired by the long delay. There were no means left to the applicant to test the complainant's allegations. The alleged events had so long passed into history that there was really nothing left for the accused to do than offer a bare denial. In those circumstances, the High Court held (per Brennan, Dawson and Toohey JJ at 91) that the jury:"… should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy."