"D" v The Queen
[2002] WASCA 309
•22 NOVEMBER 2002
"D" -v- THE QUEEN [2002] WASCA 309
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 309 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:136/2001 | 10 SEPTEMBER 2002 | |
| Coram: | WALLWORK J MURRAY J ANDERSON J | 22/11/02 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | "D" THE QUEEN |
Catchwords: | Criminal law Sexual offences Relationship evidence Whether directions to jury sufficient Decided on the facts |
Legislation: | Nil |
Case References: | Cook v The Queen (2000) 22 WAR 67 BRS (1997) 191 CLR 275 Dawson v The Queen [2001] WASCA 2 Hardingham, unreported; SCt of WA; Library No 940105; 3 March 1994 Jaensch v The Queen [2000] WASCA 212 Kailis v The Queen (1999) 21 WAR 100 Mateiasevici (1998) 108 A Crim R 223 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : "D" -v- THE QUEEN [2002] WASCA 309 CORAM : WALLWORK J
- MURRAY J
ANDERSON J
- Appellant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Sexual offences - Relationship evidence - Whether directions to jury sufficient - Decided on the facts
Legislation:
Nil
Result:
Appeal dismissed
(Page 2)
Category: B
Representation:
Counsel:
Appellant : Mr R D Young
Respondent : Mr K M Tavener
Solicitors:
Appellant : Gunning Young
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Cook v The Queen (2000) 22 WAR 67
Case(s) also cited:
BRS (1997) 191 CLR 275
Dawson v The Queen [2001] WASCA 2
Hardingham, unreported; SCt of WA; Library No 940105; 3 March 1994
Jaensch v The Queen [2000] WASCA 212
Kailis v The Queen (1999) 21 WAR 100
Mateiasevici (1998) 108 A Crim R 223
(Page 3)
1 WALLWORK J: These are reasons for judgment after the hearing of an appeal by the appellant against his conviction on 14 September 2001 on five counts of sexual penetration of his de facto child under the age of 16 years and three counts of indecent dealing with his de facto child under the age of 16 years . There are two grounds of appeal. They are:
1. Evidence as to the appellant's prior convictions for sexual offences against the complainant should not have been admitted, as the prejudicial effect outweighed the probative value.
2. The learned trial Judge failed to direct the jury that they could not use the evidence of the prior convictions as a basis to reason that the appellant had a propensity to commit that kind of offence.
Background
2 Earlier, in 1992, the appellant had been convicted of committing sexual offences against the complainant when she was 8 years of age. Prior to the trial which commenced on 13 September 2001 which resulted in the eight convictions against which the appellant now appeals, it had been ruled at a directions hearing that evidence was admissible of the earlier offences in 1992. As a result of that ruling and after the learned prosecutor had concluded her opening remarks, counsel for the accused made the following admissions:
"Members of the jury on behalf of [D] it is admitted that during the years 1991 to 1992 the complainant was living with her mother and the accused in a number of houses, and on occasions during that time frame the accused committed offences of a sexual nature upon her. There was an occasion when the complainant was aged about 7 and was practising gymnastics in the shed when the accused approached her, pulled down her underpants and licked her vagina with his tongue. That occurred without the complainant's consent and she kicked out at him and he stopped what he was doing. On a further two occasions when the complainant was aged 7 to 8 years of age, the accused pulled her underpants to one side and licked her vagina with his tongue. Further during that same period of time there were numerous occasions where he rubbed her vagina on the outside of her underpants with his hand. There were also occasions where he placed his fingers inside her underpants and rubbed her vagina."
(Page 4)
3 In her opening at the commencement of the trial in September 2001 the learned prosecutor gave the details of the eight alleged offences by the appellant. Count 1 concerned an occasion in a flat at Mosman Park where the appellant and the child/complainant's mother were living. The child who was then about 14 years old had earlier spent some time living on the streets after she had left her mother's home following the earlier offences against her in 1992. However, she had wanted to live with her mother and her brothers and sisters and had returned to them.
4 The facts alleged on count 1 were that the complainant was asleep at night with bedcovers over her in the flat when she was awoken by the appellant moving his fingers inside her vagina. That went on for some minutes. The child lay there with her head buried in the pillow crying quietly to herself. She did not resist the assault because she was physically and emotionally afraid of him. The Crown alleged that she had no expectation of support from her mother and had told no one about what had occurred.
5 The second, third and fourth counts on the indictment concerned a second occasion at the same flat at night after the child had gone to sleep. It was alleged that she had awakened again to find the accused moving his fingers inside her vagina. After a few minutes he put his head under the bedclothes and performed oral sex upon her. She lay there crying quietly to herself. It was alleged that following that the appellant had again put his fingers inside her vagina. One of the other children in the room had begun to stir and the appellant left the room.
6 It was alleged that on a third occasion the appellant had again entered the child's room at night. She had awakened to find him moving his fingers inside her vagina. That was count 5 on the indictment.
7 Count 6 on the indictment concerned an allegation that the child had gone to sleep in her room and again the appellant had entered and put his fingers on her vagina and rubbed her.
8 The Crown alleged that following those first six offences the family had moved to Northam. It was there that the last two offences were committed. The child awoke one night to find the appellant on her bed, touching her on the vagina and rubbing his fingers up and down. She made no resistance because she was frightened of him and lacked an ability to deal with the situation. She felt no one would believe her. Count 8 concerned another allegation which was said to have occurred a
(Page 5)
- few nights later when the appellant entered the child's room at night, touched her nipples and masturbated himself.
9 The learned prosecutor said in opening that the Crown alleged that following those events there were further occasions when the appellant did not enter the room and touch the complainant, but had stood in the doorway to her room at night and masturbated himself. The prosecutor said "That's not the subject of a charge but demonstrates, the Crown says, his obvious arousal in her presence. The Crown relies upon the admissions which will be made of sexual dealings with X when she was very young. The Crown says those earlier dealings demonstrate his arousal towards her and the true nature of his relationship with her. Because that will be the subject of a formal admission at the outset, the Crown does not need to lead evidence of those matters and you can act on those admissions as proven facts.
10 It was following the opening by the learned prosecutor that the admissions on behalf of the appellant which are referred to above, were made by counsel.
Summing up by the trial Judge
11 At the conclusion of the evidence on 14 September and in the course of his summing up to the jury, the learned trial Judge said:
"Let me talk to you about what I call relationship evidence. There is evidence of the sexual dealings by the accused of the complainant when she was 7 or 8 and as I have said to you, those are facts which as a matter of law are correct and you cannot assume that there is any doubt about those, but there are those facts, and then there are the allegations of masturbation in the doorway after count 8. That evidence is admissible to show the relationship between the accused and the complainant. If you only heard about the events the subject of the counts, it would be in isolation; it would not be in the context of what the Crown says is an ongoing passion by the accused for the complainant. As I have said earlier there is no dispute that the events when the complainant was 7 or 8 occurred. The allegations of masturbation are denied and it's for you to consider them if you are satisfied that they occurred, but you must not assume that because these other events occurred, if you find they did, that the events, the subjects of the counts in the indictment occurred. You cannot move from general
(Page 6)
- evidence of the relationship to find that the offences were in fact committed. You can only convict the accused if you are satisfied beyond reasonable doubt that the events, the subjects of each of the counts considered separately actually happened, and it's important that you be aware of that limited way in which you can use the evidence of relationship between the two of them. Let me now turn to the particular charges on the indictment …."
12 Having discussed some of the evidence which was given at the trial and the law involved, the learned trial Judge again mentioned the earlier offences. His Honour said:
"We know that the accused man is guilty of child abuse with respect to this complainant when she was younger. It's important that whilst you can use that information in the limited way in the context to which I have told you, you must be careful not start off being prejudiced against the accused man because of that."
13 Very shortly after his Honour made the above remarks, the jury retired to consider their verdict.
14 After the jury had retired, counsel for the appellant raised the question of a warning concerning evidence of propensity. The learned trial Judge said that he had not used that expression because "It often seems to me to be a bit dangerous to say they can't use it for propensity because that might suggest something they never thought of, so that to the extent that I said this is the limited way in which they can use it and that's the only way, it seems to me that's a preferable way rather than introducing some other concept which hadn't been mentioned. I think no one had suggested that he had a sort of propensity to commit this offence. The notion of an unnatural passion, I think, was quite properly an expression which was used, so I didn't use that expression deliberately."
15 His Honour did not redirect the jury after that.
On appeal
16 With respect to the proposition that the evidence of the previous offences against the complainant should not have been admitted, counsel for the appellant submitted that in the exercise of discretion that evidence ought to have been excluded because it was highly prejudicial and
(Page 7)
- because its probative value was reduced by reason of the fact that it was a more remote history than is commonly encountered in relation to such evidence. It was submitted that normally such evidence has a very high degree of probative value because of the continuity involved. However, where there is a break in the continuity the probative value is weakened accordingly.
17 It was submitted that there must be some specific issue of which the evidence is probative and if it was only faintly probative and highly prejudicial, it ought to have been excluded. It was submitted that at the trial the Crown had been putting to the jury that the evidence of the prior conduct was probative of the occurrence of the incidents the subject of the charges, and that the conduct was evidence of a guilty or unnatural passion which had manifested itself in offences against the complainant again, as soon as the opportunity arose.
18 The evidence had been relied upon by the Crown to explain why the complainant had submitted in a passive manner when the alleged offences were committed against her in 1998. She was then 14, going on 15 years of age. The earlier offences had occurred when she was approximately 8 years of age. The evidence was said to explain why the child lay passively while the offences were committed and then did not immediately complain about them to her mother.
The law
19 The question of relationship evidence, or as it has also been called similar fact evidence, propensity evidence, guilty passion evidence, tendency evidence and background evidence, was discussed in some detail by Anderson J with whom the other members of the Court agreed in Cook v The Queen (2000) 22 WAR 67 at 83. Anderson J said:
"Many cases have now laid it down, however, that if propensity or dispositional evidence has a function which goes beyond proof of mere bad disposition, it may be admitted. This is the basis on which relationship evidence is admitted. The evidence is regarded as actually probative of the disputed conduct. The particular way in which such evidence may be probative depends on the facts of the particular case. Of the very general relationship evidence in Gipp, McHugh and Hayne JJ said (at 130-131):
(Page 8)
- 'It was admissible to show the relationship which existed between the parties and to explain why the complainant so readily complied with the various demands of the appellant. Without evidence of the background and the continuing nature of the conduct of the appellant, the evidence of the complainant may have seemed 'unreal and unintelligible'. Without knowing the course of the relationship, the jury may have had great difficulty in accepting that the incidents could have occurred in the way that the complainant described … Neither on this or any other occasion did the complainant tell her mother what had happened. Knowing that this was not the first time that the complainant and the appellant had engaged in sexual activity helps to explain the complainant's apparent lack of surprise at being called into the bathroom to gratify the appellant's sexual desires and her matter-of-fact recounting of the incident. The regularity with which incidents such as this occurred also helps to explain her failure to mention the incident to her mother and the appellant's confidence – manifested by the omission of any threat or inducement – that the complainant would regard the incident as nothing unusual.'"
20 Anderson J continued:
"In this case, the generalised relationship evidence was admissible on several of these particular grounds. It revealed a continuing and strong sexual interest by the applicant in each complainant and showed the actual existence of a sexual relationship between the applicant and each complainant. Insofar as it revealed a process of seduction over a period of time, it helped to explain why there was no immediate complaint by B on the happening of any specific incident. In the case of S with respect to counts 6 and 7, the relationship evidence regarding the applicant and S helps to explain how it was that the applicant might think he would get away with acts of sexual molestation … In summary, it was evidence which would enable the jury to 'understand the context of the incidents that were the subject of the charges', if I might use the words of McHugh and Hayne JJ in Gipp (at 132-133)."
21 Justice Anderson came to the conclusion that the relationship evidence in that case was plainly admissible. His Honour said at 84:
(Page 9)
- "But because the evidence was prejudicial and admitted for a limited purpose, it was necessary that the jury be instructed how to use it. The principle is clear and has been stated many times in many cases, some of the more recent of which are … What is perhaps not quite so easy to decide in any given case is what should be the content of the direction. I think this must largely be dictated by the facts of the case, although it is possible to formulate in general terms what may be described as the minimum requirements. What emerges from the cases is a broad consensus that the directions to the jury must leave them with an understanding of at least three things: (1) the jury may have regard to the evidence of extraneous sexual conduct only if they find it reliable and believe it to be true; (2) the evidence is relevant only to show the nature of the relationship between the accused and the complainant so as to place the evidence which is the subject of the charge in a real light; and (3) the evidence is not direct evidence of the offence charged so that if the jury is not satisfied that the conduct, the subject of the charge, has been proved, they cannot use the evidence of uncharged conduct to convict the accused."
Conclusion
22 In the present case it is my opinion that the learned trial Judge complied with the law as stated by Anderson J in Cook. His Honour told the jury what the purpose of the admission of the evidence was; that it was to demonstrate an ongoing passion by the appellant for the complainant. Although the allegations of masturbation had been denied there was no dispute about the other earlier events. His Honour told the jury that it was for them to consider whether they were satisfied that the masturbation had occurred. He also warned the jury that they must not assume that because the other events occurred, if the jury found that they had occurred, that the events the subject of the counts and the indictment had occurred.
23 His Honour warned the jury that they could not move from the general evidence of the relationship to find that the offences were committed. Throughout his summing up he stressed that the appellant could only be convicted if the jury were satisfied that the charges had been proved beyond a reasonable doubt: "that the events, the subject of each of the counts considered separately, actually happened, and it's important that you be aware of that limited way in which you can use the evidence of relationship between the two of them."
(Page 10)
24 Having continued his summing up and discussed some of the evidence in the case, the learned Judge returned to the relationship evidence and again warned the jury that it could only use the evidence of the earlier offences in the limited way in which he had instructed them. He further said that the jury must be careful not to start off being prejudiced against the accused man because of that evidence.
25 In my opinion, in all the circumstances of this case the disputed evidence was properly admitted. His Honour also properly directed the jury on the way in which they could use that evidence. The grounds of appeal have not been made out.
26 I would dismiss the appeal.
27 MURRAY J: For the reasons given by Wallwork J, to which I have nothing to add, I agree that the appeal should be dismissed.
28 ANDERSON J: I have read the judgment of Wallwork J and agree with it. I, too, would dismiss the appeal.
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