Dawson v The Queen
[2001] WASCA 2
•19 JANUARY 2001
DAWSON -v- THE QUEEN [2001] WASCA 2
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 2 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:65/2000 | 10 NOVEMBER 2000 | |
| Coram: | MALCOLM CJ IPP J WALLWORK J | 19/01/01 | |
| 27 | Judgment Part: | 1 of 1 | |
| Result: | Appeal against convictions dismissed Appeal against sentence allowed | ||
| PDF Version |
| Parties: | GEOFFREY MICHAEL DAWSON THE QUEEN |
Catchwords: | Criminal law Sexual penetration without consent Evidence concerning uncharged sexual acts Whether directions to jury correct Whether sentences correct Lengthy rehabilitation after earlier punishment Long delay before trial |
Legislation: | Nil |
Case References: | Bell v R (1981) 5 A Crim R 347 Cook v The Queen (2000) 110 A Crim R 117 Duncan v R (1983) 47 ALR 746 Kailis v The Queen [1999] WASCA 29; (1999) 21 WAR 100 Longman v The Queen (1989) 168 CLR 79 R v Murray (1987) 11 NSWLR 12 R v Preval (1984) 3 NSWLR 647 Wagenaar v The Queen [2000] WASCA 325 Beserick (1993) 30 NSWLR 510 Crofts v The Queen (1996) 186 CLR 427 "D" v The Queen [2000] WASCA 137 Eastough v The Queen, unreported; CCA SCt of WA; Library No 980108; 12 March 1998 Gipp v The Queen (1998) 94 CLR 106 House v The King (1936) 55 CLR 499 Jago v District Court of New South Wales (1989) 168 CLR 23 Jones v The Queen (1997) 143 ALR 52 Kilby v The Queen (1973) 129 CLR 460 M v R (1994) 181 CLR 487 Miletic (1997) 1 VR 593 Mraz v The Queen (1955) 93 CLR 493 Papakosmas v The Queen (1999) 196 CLR 297 Petty v The Queen (1994) 13 WAR 372 Podirsky v The Queen (1994) 14 WAR 341 R v Austin (1995) 14 WAR 484 R v Davies (1985) 3 NSWLR 276 R v Lillyman [1896] 2 QB 167 R v Osenkowski (1982) 30 SASR 212 R v Podirsky (1989) 43 A Crim R 404 R v Saunders [1965] Qd R 409 R v Storey (1978) 140 CLR 364 R v Tait (1976) 46 FLR 366 Reppas v The Queen (1994) 179 CLR 1 Smith v The Queen (1992) 7 WAR 527 Steuart v The Queen, unreported; CCA SCt of WA; Library No 950486; 15 September 1995 Suresh v The Queen (1998) 153 ALR 145 Wilde v The Queen (1988) 164 CLR 365 Wong v The Queen, unreported; CCA SCt of WA; Library No 980218; 2 April 1997 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : DAWSON -v- THE QUEEN [2001] WASCA 2 CORAM : MALCOLM CJ
- IPP J
WALLWORK J
- CCA 117 of 2000
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Sexual penetration without consent - Evidence concerning uncharged sexual acts - Whether directions to jury correct - Whether sentences correct - Lengthy rehabilitation after earlier punishment - Long delay before trial
Legislation:
Nil
(Page 2)
Result:
Appeal against convictions dismissed
Appeal against sentence allowed
Representation:
Counsel:
Applicant : Mr A O Karstaedt
Respondent : Mr R E Cock QC
Solicitors:
Applicant : Max Crispe
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Bell v R (1981) 5 A Crim R 347
Cook v The Queen (2000) 110 A Crim R 117
Duncan v R (1983) 47 ALR 746
Kailis v The Queen [1999] WASCA 29; (1999) 21 WAR 100
Longman v The Queen (1989) 168 CLR 79
R v Murray (1987) 11 NSWLR 12
R v Preval (1984) 3 NSWLR 647
Wagenaar v The Queen [2000] WASCA 325
Case(s) also cited:
Beserick (1993) 30 NSWLR 510
Crofts v The Queen (1996) 186 CLR 427
"D" v The Queen [2000] WASCA 137
Eastough v The Queen, unreported; CCA SCt of WA; Library No 980108; 12 March 1998
Gipp v The Queen (1998) 94 CLR 106
House v The King (1936) 55 CLR 499
Jago v District Court of New South Wales (1989) 168 CLR 23
Jones v The Queen (1997) 143 ALR 52
(Page 3)
Kilby v The Queen (1973) 129 CLR 460
M v R (1994) 181 CLR 487
Miletic (1997) 1 VR 593
Mraz v The Queen (1955) 93 CLR 493
Papakosmas v The Queen (1999) 196 CLR 297
Petty v The Queen (1994) 13 WAR 372
Podirsky v The Queen (1994) 14 WAR 341
R v Austin (1995) 14 WAR 484
R v Davies (1985) 3 NSWLR 276
R v Lillyman [1896] 2 QB 167
R v Osenkowski (1982) 30 SASR 212
R v Podirsky (1989) 43 A Crim R 404
R v Saunders [1965] Qd R 409
R v Storey (1978) 140 CLR 364
R v Tait (1976) 46 FLR 366
Reppas v The Queen (1994) 179 CLR 1
Smith v The Queen (1992) 7 WAR 527
Steuart v The Queen, unreported; CCA SCt of WA; Library No 950486; 15 September 1995
Suresh v The Queen (1998) 153 ALR 145
Wilde v The Queen (1988) 164 CLR 365
Wong v The Queen, unreported; CCA SCt of WA; Library No 980218; 2 April 1997
(Page 4)
1 MALCOLM CJ: This is an application for an extension of time to make an application for leave to appeal by the applicant in respect of his convictions on four counts of sexually penetrating his stepdaughter, the complainant, without her consent. The applicant also seeks leave to appeal against the sentences imposed upon him with respect to the offences of which he was convicted. The relevant facts are fully set out in the reasons for judgment to be published by Wallwork J. As Wallwork J has pointed out, grounds 1 to 7 of the grounds of appeal contend that the learned trial Judge erred in two significant respects. First, the Crown was allowed to adduce evidence relating to a complaint concerning uncharged sexual acts by the applicant made by the complainant in Brisbane in or about 1980. Secondly, the applicant contends that the directions to the jury concerning the use which they could make of that evidence constituted a misdirection.
2 Counsel for the defence objected to the admission of that evidence as evidence of complaint. Initially, the learned Judge held that she would not allow the evidence to be admitted as evidence of complaint.
3 However, the learned Judge admitted the evidence on the basis that it provided an explanation why no complaints were made about subsequent alleged offences. The basis upon which such evidence was held to be admissible was on the basis of explaining the relationship between the applicant and the complainant and, in particular, the "power" relationship between them.
4 Evidence of sexual misconduct engaged in by an accused towards the complainant which is not the subject of charges is admissible to prove the true nature of the relationship between the complainant and the accused. The relationship forms the background to the allegations regarding specific offences. Such evidence is admitted because of its probative value regarding the relationship between the parties in circumstances where its probative value outweighs its prejudicial effect. The reason for the admission of such evidence is that it makes the evidence of the complainant in relation to the specific offences alleged more credible: Kailis v The Queen [1999] WASCA 29; (1999) 21 WAR 100 per Malcolm CJ at 123 - 124; and per Anderson J at 157; see also Cook v The Queen (2000) 110 A Crim R 117 per Anderson J at 129.
5 I agree with Wallwork J that the evidence of what occurred in Brisbane when the complainant made a complaint about sexual misconduct relating to her by the applicant explained why it was that when the complainant had reached 16 years of age she was allowing the
(Page 5)
- applicant to have sexual intercourse with her. The evidence was not admitted as evidence of "recent complaint" but because it explained the relationship which had been established between the complainant and the applicant at the time the alleged offences were alleged to have been committed. This matter was the basis of the first round of appeal. I agree with Wallwork J that it was not made out.
6 The second ground of appeal was that, as the learned trial Judge had ruled that the evidence was not admissible as evidence of reasonable complaint, it was not admissible as showing consistency in the complainant's behaviour or as supporting her credibility. I agree with Wallwork J that the evidence of what happened in Brisbane was clearly relevant to the credibility of the evidence of the complainant as essential to the understanding of the relationship between the applicant and the complainant.
7 Ground 3 of the grounds of appeal was dependent upon success in relation to grounds 1 and 2. That ground fails for the same reason, namely, that in this particular case it was essential for the jury to understand the history of the relationship between the applicant and the complainant who was his stepdaughter. In my opinion, grounds 4 and 5 fail for the same reason as is explained in the judgment of Wallwork J.
8 Ground 6 contended that the learned Judge erred in permitting the jury to consider the evidence of the complaint about the incident in Brisbane on the basis that the evidence was true, notwithstanding the limited basis upon which the Crown sought to have the evidence admitted, and notwithstanding that the alleged complaint could not, as a matter of law, be regarded as evidence of the truth of its contents. This evidence was relevant for the same reason as earlier expressed, namely, that it was evidence of the relationship between the parties and explained why the complainant did not resist the applicant's conduct on subsequent occasions. The fact that she had complained without success was relevant.
9 Ground 7 contended that the learned trial Judge erred in failing to adequately direct the jury concerning the use which could be made of the evidence of uncharged sexual acts. This ground fails for the reasons stated by Wallwork J.
10 Ground 8 contended that in relation to counts (1), (4) and (5) in the indictment and the uncharged sexual acts, the learned trial Judge erred in failing to give the jury appropriate and sufficient warnings in accordance
(Page 6)
- with the decision in Longman v The Queen (1989) 168 CLR 79 and in directing that there was no requirement that the complainant's evidence be corroborated. This was not a case in which the sexual conduct was denied. The applicant admitted to police that he had had a sexual relationship with the complainant. The defence at the trial was that the complainant had consented. The applicant also denied any sexual misconduct with the complainant when she was under the age of 16 years in Brisbane or elsewhere.
11 As Wallwork J has demonstrated, this is a very different case from Longman. That case was concerned with allegations of sexual misconduct made relating to a period between 26 and 22 years prior to the complainant giving her evidence. In the present case, the applicant admitted that he had had sexual intercourse with the complainant, but only after she had turned 16 and in circumstances in which she consented. Longman was concerned with absence of complaint. It was a very different case. In the present case, there was the evidence of the early complaint made in Brisbane following the earlier uncharged sexual misconduct. The fact that the complaint was not heeded at the time provided an explanation for the absence of complaint of the subsequent charged sexual misconduct.
12 Ground 9 contended that the learned trial Judge erred by directing the jury on the issue of consent that they should consider the evidence of violence, threats and intimidation and that mere acquiescence, when threatened or intimidated, did not amount in law to consent. It was contended that, at the trial, it was not the Crown case that the applicant threatened or intimidated the complainant, or was violent towards her in respect of the offences charged in the indictment and that there was no evidence to this effect.
13 There was, however, evidence given as part of the Crown case that the relationship between the applicant and the complainant and the other children in the family was such that the applicant was a stern disciplinarian who had been violent and threatening. The complainant's evidence in this respect was corroborated by her mother and her sister. This evidence demonstrated the history of the applicant's relationship with the complainant who was his stepdaughter. It explained her attitude of compliance which the applicant relied upon as consent.
14 In this respect, the learned trial Judge directed the jury that:
(Page 7)
- "Then you go on to consider the issue of consent. You take account of all the evidence you accept about the relationship between the accused and the complainant. In particular, you consider the evidence, if you accept it, of the violence and the threats and intimidation. You cannot convict the accused of count 5 unless you are satisfied that he penetrated her without her consent freely and voluntarily given. Mere acquiescence when threatened or intimidated does not amount in law to consent as defined."
- In my opinion, ground 9 fails.
15 Ground 10 of the grounds of appeal was that the direction given by the learned trial Judge was unbalanced and unduly weighted in favour of the prosecution in that it contained no reference and no appropriate comment regarding the delay between 1987 or 1988, when the alleged offending ceased, and the making of a complaint in 1997. The ground also contends that the direction of the learned trial Judge made reference to an extraneous consideration that the mother of the complainant was "working full time, and possibly not noticing things going on in the household in the same way that other people might". It was contended on behalf of the applicant that this direction was prejudicial in the sense that it was unfair to his case.
16 I agree with Wallwork J that this was no more than a passing comment on the factual position relevant to relationships within the family. In my opinion, ground 10 fails for the reasons stated by Wallwork J.
17 It follows that the appeal against conviction should be dismissed.
18 So far as the application for leave to appeal against sentence is concerned, I am of the opinion that the sentence imposed of imprisonment for eight years on each of the four counts on which the applicant was convicted to be served concurrently with eligibility for parole was manifestly excessive for the reasons to be published by Wallwork J. I agree with his Honour that leave to appeal should be granted and that the sentence imposed in respect of each of the offences should be reduced to a sentence of imprisonment for four years to be served concurrently. The order that the applicant be eligible for parole should stand.
19 IPP J: I agree with the reasons of the Hon Justice Wallwork.
(Page 8)
20 WALLWORK J: The applicant applies for an extension of time and for leave to appeal against his convictions on four counts of sexually penetrating his stepdaughter without her consent. He also applies for leave to appeal against the sentences imposed upon him with respect to those convictions.
21 The applicant was originally charged in one indictment with five alleged offences. He was found not guilty of the first count but guilty of the other four counts. Those counts alleged offences of sexual penetration without consent between 1 December 1986 and 31 March 1988. The first of those offences was alleged to have occurred about six months after the complainant had turned 16 years of age and the last when she was 17 years of age.
22 At the trial evidence was given that after the complainant's mother had married the applicant, the applicant had taken over the position of father to her five children, being three girls and two boys. The complainant was the eldest girl, but not the eldest child. Amongst other things, she said in evidence that when she was about 10 or 11 years of age, the applicant had begun to touch her sexually. He had continued to do this until he eventually had sexual intercourse with her. The sexual misconduct had occurred in Brisbane, Melbourne and in Perth.
23 The first seven grounds of appeal in essence complain that the learned trial Judge erred firstly in allowing the Crown to adduce evidence as to a complaint concerning uncharged sexual acts by the applicant which was made by the complainant in Brisbane in about 1980. Secondly the applicant complains of her Honour's directions to the jury concerning the use which they could make of that evidence.
24 Prior to the evidence being introduced at the trial the defence had objected to the admission of that evidence. At that time the learned Judge said that she would not allow the evidence as to the Brisbane matters to be adduced as evidence of complaint "and it's not being led as that….". The learned Judge said, amongst other things:
"The evidence as objected to is not admissible as complaint evidence and that certainly is true…."
25 Her Honour said however that it seemed that the evidence was clearly admissible: "… on the basis of the need for the complainant to give evidence that would be an explanation as to why no later complaints were made - in other words that a complaint was made, nothing happened, and as she grew older that - it will be a matter for the jury whether they
(Page 9)
- accept that. It also seems that the evidence is admissible on the basis of relationship and explaining the relationship and the power relationship that existed in the family at the time and between the accused man and this child."
26 In the summing up to the jury and amongst other things, the learned Judge said:
"It's for you to look at all of the evidence and to consider the explanation, and I think in this case you do know that she said that in Brisbane she did complain to her mother when it started, that the matter went to the police there, and that, as I understood the evidence, she was asked to make her allegations in the presence of the accused and she was too frightened to do it, so nothing came of that, and then when it continued, she never told anybody again…You also consider when you're looking at this issue, the relationship between her and her stepfather and whether it was one where she was frightened of him and frightened that if she made a complaint she might find herself in trouble. Now I want to direct you in relation to - the slide says 'recent complaint' and it's actually related to what she said to police in Brisbane, because there is evidence - she said that she told her mother about sexual conduct and then went to the police.
What I must warn you is that what a complainant said to someone else on another occasion is not evidence of the truth of that complaint. In other words, the mere fact that someone tells another person doesn't mean that it's necessarily true, but that evidence can be used by you when you are assessing the credibility of the complainant. In other words would you have expected her to have done that, if what she alleged happened did happen? So when you're looking at whether something happened in Brisbane in assessing whether you believe the complainant, you can take this into account when assessing her credibility, but you cannot rely on it as evidence of truth. It's only evidence of consistency in her behaviour." (AB 179-80)
27 The learned Judge also said:
Now all of these are matters which are not the subject of charges on this indictment and the reason you were allowed to hear that evidence, ladies and gentlemen, is that it is important
(Page 10)
- that you appreciate the nature of the relationship between the accused and the complainant. In other words, if the only thing you knew was that when she was 16-1/2 she came to Perth and what she told you, that the accused came in one night and had sex with her, it just comes out of the blue. But if you have a history including the accused's own admissions that he had sex with her, sexual intercourse with her, as I understood it, in Melbourne, although he denied that anything happened in Brisbane, but you hear about these others as part of the relationship between the parties, as what was going on in that relationship, because, as you would appreciate it in your own lives, sexual incidents don't happen in isolation. You have to understand them in the whole relationship between the parties. So you are going to have to decide at some point whether you accept the complainant's evidence that it started as young as when she was 10 to 12 years old, or was it 12 to 14, around 12 years old, when she was in Brisbane or, as the accused said, it did not start until she was 16 in Melbourne. Those are matters of facts for you to consider." (AB178)
28 The learned trial Judge then dealt with the various allegations and in the course of discussing the facts alleged in count 1 said:
"When considering this issue, ladies and gentlemen, and this is probably at the very heart of your deliberations, this is where you will need to consider the relationship between the accused and the complainant over the years. It's not a matter you can look at in isolation just in relation to each charge. You will need to consider whether the accused man was the father figure in the family, whether you accept the evidence he was a hard disciplinarian, whether you find that he did use violence in his discipline with the children, in particular with N. You need to consider N's evidence about that, as well as her mother's evidence and that of her sister, that … when you think of the nature of the discipline that he administered." (AB 183)
29 A little bit further on her Honour said:
"In assessing the relationship between the complainant and the accused you're entitled to take into account the alleged sexual activity in Queensland, if you find that happened and the sexual activity in Melbourne. You stop and consider: was this a balanced relationship where the complainant had a choice, did
(Page 11)
- she have the opportunity to freely and voluntarily consent to any sexual activity with him? Then you look at the particular circumstances as you find them to be in December 86. I would think you would take into account the complainant's age, and it seems to be agreed, the evidence was that she was 16 years old, probably about 16-1/2. You consider whether you accept her evidence that she never wanted to have sex with him and that she was forced to. She told you that if she didn't do what he wanted, she would have been beaten, anyway."
30 The learned Judge said:
"Now ladies and gentlemen you need to consider the evidence of the complainant and of the accused man. You cannot convict the accused of this offence unless you are satisfied that intercourse occurred without her consent freely and voluntarily given. You need to consider the nature of their relationship and all the history of their relationship…." (AB185)
31 In discussing the cross-examination concerning the unlawful sexual penetration alleged in count 2 on the indictment, the learned trial Judge said:
"The complainant denied she was having an affair with her stepfather. She said she was just a little girl and he made her have sexual intercourse with him. She never wanted it and she said that she never complied with it, except she had to do it." (AB 187)
32 When directing on the question of the alleged consent of the complainant, her Honour said:
"You take account of all the evidence you accept about the relationship between the accused and the complainant. In particular you consider the evidence, if you accept it, of the violence and the threats and intimidation."
33 Further on the learned Judge said:
"The Crown submits that the accused was well aware of his power over his stepdaughter, that he had trained her to do his sexual bidding and because of the father-stepdaughter relationship and the history of his sexual treatment of her he
(Page 12)
- could have had no honest belief that she was freely and voluntarily consenting." (AB 191)
34 Towards the end of the summing up the Judge said:
"The Crown on the other hand suggests that the complainant was a witness of truth and that you should accept her evidence and suggests the harsh discipline would have acted on the mind of a little girl very differently from the way discipline would work in the army - on an adult member of the army. The Crown suggests it would have been terrifying when the accused shouted at the children and suggests an awful lot went on that the mother didn't notice and it's not that surprising that she didn't notice any marks on the children from the belt. The Crown relies on N's evidence that she was touched and sexually penetrated in Brisbane. The Crown suggests that if N made up her complaint in Brisbane to the police, she must have been a psychic, able to foresee what was going to happen to her. The Crown suggested this was never a relationship involving mutual sexual gratification; that it was always an uneven relationship with a stepfather and a young girl. The Crown relies on the fear in the child N's mind and suggests that the accused was trying to, in his evidence, undermine N, by suggesting she didn't apply for jobs when she was older and suggests that he was always - he was always dishing out money…The Crown suggests the accused has put up a wall of words between himself and the truth and submits that although each - that each offence must be considered against the background of the relationship over the years and the accused's role as the disciplinarian;…The Crown suggests the accused didn't have to threaten or force N by the time she was 16 or 17. By then he had trained her and she was acting under his will. The Crown relies on the accused as a stepfather, head of household, the disciplinarian, that he didn't have to threaten her; that she was well trained to comply with his sexual demands."
35 In Cook v The Queen (2000) 110 A Crim R 117, this Court, differently constituted, considered the sufficiency of a direction on "relationship" evidence. In the reasons of Anderson J, which were agreed with by the other two Judges on the Court, his Honour stated at 129 :
"I use the expression 'relationship evidence' only for convenience, recognising that in sexual cases it is an incomplete
(Page 13)
- description of evidence of sexual molestation extraneous to the offences charged. As cases such as Gipp (1998) 194 CLR 106; 102 A Crim R 229 show, this kind of evidence is often called similar fact evidence, propensity evidence, guilty passion evidence, tendency evidence and background evidence: (see especially per Kirby J at 155-157; 338-339). See also S (1998) 103 A Crim R 101 at 110 per Thomas JA."
36 His Honour said that relationship evidence:
"… is regarded as actually probative of the disputed conduct. The particular way in which such evidence may be probative depends upon the facts of the particular case. Of the very general relationship evidence in Gipp, McHugh and Hayne JJ said (at 130-131; 318):
'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 the complainant described…Neither on this nor on 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 lack of surprise at being called into the bathroom to gratify the appellant's sexual desires and a 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'."
(Page 14)
- know the history of what had happened within this family in order that they might be in the best position to carry out their function.
38 The essence of the first ground of appeal is that the evidence as to the complaint by the complainant in Brisbane in about 1980 in relation to the uncharged acts should not have been admitted as it was not admissible as evidence of recent complaint and it did not have legitimate probative value - or alternatively, its potential for causing prejudice to the applicant outweighed its probative value.
39 As Anderson J said in Cook in the passage which is quoted above, the particular way in which such evidence may be probative depends upon the facts of the particular case. In this case, one of the main obstacles to the complainant objecting to the sexual conduct of her stepfather was that as a child in Brisbane in 1980, she had done that. She had then been asked to state the facts in front of the applicant in circumstances which can only be described as out of order in accord with the modern day approach to these matters. Possibly because of the way the original complaint was handled, the complainant was thereafter, over many years, subjected to brutality and sexual misconduct by her stepfather. Evidence of that conduct, in my view, was extremely probative of the events which followed and which resulted in the convictions of the applicant.
40 In my view, the learned trial Judge generally gave a most balanced and careful direction in which she was careful to continue to repeat that the evidence of the complainant with respect to each charge, had to be accepted beyond a reasonable doubt before the jury could convict the applicant of any of the charges. The jury obviously appreciated that fact as they acquitted the applicant of the first count.
41 So far as any suggestion of miscarriage of justice is concerned, it is relevant to know now, although it was not known to the jury at the time of the trial, that the applicant had confessed to also having sexual intercourse with the complainant's two younger sisters during the relevant period. It was as a result of his confession to his wife of those sexual offences with the three girls that the matter had originally come to the notice of the authorities. At that time, for some reason, the applicant was not prosecuted for his offences against the complainant in this case. However he had pleaded guilty to offences against the complainant's two younger sisters.
42 The first ground of appeal is not made out.
(Page 15)
43 The second ground of appeal is that given that as her Honour had ruled that the evidence was not admissible as evidence of recent complaint and that it did not, as a matter of law, qualify as evidence of recent complaint, "the evidence that was adduced was such that it could not properly be regarded as showing consistency in the complainant's behaviour or as supporting the complainant's credibility in relation to the alleged conduct in Brisbane and her Honour erred in her directions to the jury concerning the use that could be made of that evidence."
44 It was argued that her Honour erred in law in directing the jury that the evidence in question was evidence of recent complaint. In my view this ground is not sustained as the jury would be unlikely to know what "recent complaint" means to lawyers. In any event the significance of the evidence was adequately put to the jury by the learned Judge.
45 It is then said that the learned Judge erred in law in directing the jury that they could take the evidence into account in assessing whether they believed the complainant and in assessing the complainant's credibility.
46 That was precisely why the evidence was admitted. It went to the heart of why the jury should believe the complainant and to assessing her credibility.
47 It is further argued that the learned Judge erred in law in directing the jury that the evidence was evidence of consistency in the complainant's behaviour and erred in law in directing that the evidence could be used by them in assessing the credit of the complainant, and erred in law in not giving appropriate directions to the jury in relation to the evidence.
48 As stated above, any jury would regard what happened in 1980 in Brisbane, and thereafter in Melbourne prior to the family coming to Western Australia, as essential to understanding what was happening within this family. The second ground of appeal in my view, should not be sustained.
49 The third ground of appeal is that the matters referred to in the two earlier grounds gave rise to a miscarriage of justice in that, in the light of her Honour's directions, the evidence of the complainant is likely to have played a significant role in causing the jury to accept the complainant's evidence as to what had actually occurred in Brisbane and in turn, on the view that the complainant had been conditioned from a young age to acquiesce, to find an absence of consent, and an absence of honest and reasonable mistake of fact in relation to the issue of consent in respect of
(Page 16)
- the matters charged in the indictment and to reject the applicant's evidence.
50 In my view this ground sets out the use which the jury could make of the complainant's evidence as to what actually occurred in Brisbane and could not give rise to a miscarriage of justice for the reasons already stated. It was essential for the jury to know the history of the relationship between the stepfather and the complainant.
51 Ground 4 is that the learned trial Judge erred in directing the jury both orally and in the "powerpoint display" presentation, printed copies of part of which were provided to the jury in terms which may have led the jury to believe that they could use the evidence of complaint in assessing the complainant's consistency, behaviour and credibility, not only in relation to events which occurred in Brisbane, but generally - that is also in relation to the alleged conduct the subject of the charges.
52 In essence, that ground is a repetition of the earlier grounds and should not be sustained for the reasons already given.
53 Ground 5 is that the learned Judge's direction in relation to the evidence of the complainant not being evidence of its truth was inadequate and potentially misleading in that the jury was unlikely to have understood what was meant by her Honour saying: "What a complainant said to someone else on another occasion is not evidence of the truth of that complainant" (sic).
54 The second particular is that her Honour's explanation that "the mere fact that someone tells another person does not mean that it is necessarily true", did not accurate explain why recent complaint evidence is not evidence of the truth of its contents and the explanation given by her Honour was logically only one as to why caution should be exercised as to the weight to be attached to the evidence and was likely to have been understood in this way by the jury."
55 That ground covers the matters which have been earlier discussed and is not sustained.
56 Ground 6 is that the learned trial Judge further erred in permitting the jury in accordance with the Crown's submission to consider the evidence of complaint on the basis that the contents of the complaint were true, notwithstanding the limited basis on which the Crown had sought to have the evidence admitted, and the limited basis on which it was admitted, and not withstanding that the alleged complaint could not, as a matter of law,
(Page 17)
- properly be regarded as evidence of the truth of its contents. It is said that the learned trial Judge in summarising the Crown's submissions stated:
"The Crown suggests that if [N] made her complaints in Brisbane to the police, she must have been a psychic; able to foresee what was going to happen to her."
58 Ground 7 is that the learned trial Judge erred in failing to give the jury adequate directions concerning the use which could be made of the evidence of uncharged sexual acts.
59 That ground has already been dealt with. In my view the learned Judge's direction was fair and balanced to the applicant in all respects.
60 Ground 8 is that in relation to counts 1, 4 and 5 in the indictment and the evidence of uncharged sexual acts, the learned trial Judge erred in failing to give the jury appropriate and sufficient warnings in the terms of the decision in the High Court in Longman v The Queen (1989) 168 CLR 79 and in directing the jury that no corroboration of the complainant's evidence was required, which it is said, in the absence of any Longman direction, created an imbalance.
61 The applicant had admitted in a police record of interview, which interview was conducted within months of the last of the incidents charged in the indictment and he had admitted in evidence at the trial, that he had had a sexual relationship with the complainant. The issue at the trial was whether or not the complainant had consented to sexual activities with the applicant. Also, the applicant had denied having interfered with the complainant as a child in Brisbane and against her will anywhere.
62 Her Honour warned the jury that witnesses can be mistaken, and particularly when they are talking about alleged offences 12 or 13 years ago. The learned Judge told the jury that people's recollections can be distorted or not sound. She said, "I think that was the basis of a lot of the cross-examination, that their memory wasn't consistent and good. So you are going to have to look very carefully at the witnesses for whether you believe that their evidence is reliable. In other words, did they have a good recollection of events? Do you accept that you can - you can yourselves rely on it?" (AB 175).
(Page 18)
63 Her Honour told the jury that overall they were looking for "honesty, truthfulness in the witnesses. … You are looking at reliability: did they have a proper recollection or are they mistaken in what they are remembering?"
64 Her Honour warned the jury that they could not rely on any out of Court statement as proof of its contents unless the witness under oath adopts it as true, otherwise they could only use it in assessing the credibility or the believability of the witness.
65 Further on in her direction, the learned Judge warned the jury:
"…the mere fact that somebody tells another person does not mean that it is necessarily true but that evidence can be used by you when you are assessing the credibility of the complainant. … So when you are looking at whether something happened in Brisbane and assessing whether you believe the complainant, you can take this into account in assessing her credibility, but you cannot rely on it as evidence of truth. It is only evidence of consistency in her behaviour … There is no requirement in law that the evidence of a complainant be corroborated or supported by any other evidence. Depending on your view of the complainant, if you accept her evidence as truthful and cogent, you are entitled to convict the accused on that evidence alone so long as you are satisfied beyond reasonable doubt of guilt." (180)
66 Almost immediately thereafter her Honour said that as a matter of law, there was no requirement that there be corroboration: "If you accept her evidence as truthful and cogent you are entitled to convict the accused on that evidence alone, so long as you are satisfied of guilt beyond reasonable doubt" (181).
67 The facts in this case are nothing like those in the Longman decision where it was alleged that there had been two counts of indecent dealing with a stepdaughter when the child was said to have been six and 10 years old and the evidence was given when the complainant was aged 32. In this case, the applicant admitted at the trial that he had had intercourse with the complainant, both in Melbourne and in Perth, but he said that it had been with her consent. In Longman there was an absence of complaint by the alleged victim; that was not the case here. Also in Longman at page 91, Brennan, Dawson and Toohey JJ said:
(Page 19)
- "Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant's story or confirming the applicant's denial. After more than 20 years that opportunity was gone and the applicant's recollection of them could not be adequately tested."
68 In this case there had been an early complaint made in Brisbane. In my view this ground of appeal is not sustained.
69 Ground 9 is that the learned Judge erred in that when directing the jury in relation to the issue of consent her Honour told the jury that they were to consider the evidence of violence, threats and intimidation. Further, that her Honour erred in directing that mere acquiescence when threatened or intimidated does not amount in law to consent. It was argued that it was not the Crown case that the applicant threatened or intimidated the complainant or was violent towards her in respect of the offences charged in the indictment. Further, that there had been no evidence to this effect.
70 The Crown had adduced evidence of the relationship between the applicant and the complainant and the other children to the effect that the applicant had been a stern disciplinarian and had been violent and threatening. That evidence was corroborated by the complainant's mother and sister. The point of the evidence was to demonstrate the history of the applicant's attitude towards his stepdaughter. It was led to explain her attitude of compliance to him and why she said she had consented to the sexual activity.
71 The learned trial Judge said:
"Then you go on to consider the issue of consent. You take account of all the evidence you accept about the relationship between the accused and the complainant. In particular, you consider the evidence, if you accept it, of the violence and the threats and intimidation. You cannot convict the accused of count 5 unless you are satisfied that he penetrated her without her consent freely and voluntarily given. Mere acquiescence when threatened or intimidated does not amount in law to consent as defined." (AB 189)
72 In my view the direction complained of in ground 9 was correct. This ground is not sustained.
(Page 20)
73 Ground 10 is that the direction given by the learned Judge was unbalanced and unduly weighted in favour of the prosecution in that it contained no reference and no appropriate comment to the delay between 1987 or 1988 when the alleged offending ceased and 1997 when the complaint was made. It is further complained in ground 10 that the learned Judge's direction made reference to an extraneous consideration, namely, the complainant's mother "working full time, and possibly not noticing things going on in the household in the same way that other people might". It was said that this direction was likely to have caused prejudice to the applicant.
74 The reference to the complainant's mother working full time was only a passing comment on the situation existing in the family. It was in my opinion, a very relevant comment to make.
75 The police officers conducted their first interview with the applicant concerning the offences charged in 1988, soon after the offences had happened. The full circumstances surrounding that interview could not be put before the jury because the complainant's two sisters were involved as well. The applicant pleaded guilty to offences against the complainant's two sisters and received a term of imprisonment for the sexual offences perpetrated upon those two children. When interviewed concerning the alleged offences relevant to this trial, the applicant told the police and the jury knew, that the sexual events which the complainant had complained of had taken place. The applicant contended however that they had been with the complainant's consent. There was the background that originally in Brisbane when the complainant and one of her sisters had complained they had not apparently been believed, or in any event no action had been taken against the applicant at that time.
76 With reference to the lack of an early complaint, it should be remembered that in "M" v The Queen (1994) 181 CLR 487 at 513, Gaudron J said:
"Complaint is a matter of some significance in sexual offences. The general rule is that, save where there is a claim of recent invention, evidence is not admissible to prove prior consistent statements. However, in the case of sexual offences, evidence of early complaint is admissible to negative any affect 'the alleged victim's silence might have on her credibility'."
77 At page 514, her Honour said:
(Page 21)
- "Even so, … it was held by the Court of Criminal Appeal of the Supreme Court in New South Wales on R v Davies (1985) 3 NSWLR 276 at 278 that, notwithstanding s 405B(2), a trial Judge should, at least as a general rule, direct the jury that absence of complaint, or delay in complaining, may be taken into account in evaluating the evidence of the complainant. However, that is not a hard and fast rule and a conviction will not be set aside simply because there has not been a direction of that kind."
78 The authorities for that proposition are R v Preval (1984) 3 NSWLR 647 and R v Murray (1987) 11 NSWLR 12.
79 Concerning the question of complaint generally in this case, the comments of Malcolm CJ in Kailis v The Queen [1999] WASCA 29; (1999) 21 WAR 100 at 135 are relevant. His Honour said:
"Circumstances vary greatly and there may be different views as to what is normal and, also, as to what constitutes reasonable opportunity. So much so, in my view, that there is much to be said for the proposition that the interests of justice are better served if each case is approached in the light of its own facts with directions to the jury being fashioned, to take account of the assumption, if any, to which those facts might give rise, rather than by reference to an assumption expressed in general terms, but which, clearly, cannot hold good in all cases."
80 The Chief Justice quoted Gaudron J in "M" (supra) at 515 as saying:
"(A) child in that situation may be reluctant to complain from fear that he or she will not be believed, from fear of punishment, or, even, fear of rejection by the offender."
81 In my view this case was a case which fits within the words of both Malcolm CJ and Gaudron J. This ground of appeal is not sustained.
82 Overall, as I have already stated, in my view the situation within this family and the defence of the applicant were put very fairly by the trial Judge to the jury.
83 The appeal against the conviction should be dismissed.
84 Before sentencing the applicant, the learned trial Judge was told by the applicant's counsel that he was then 43 years of age. He had been
(Page 22)
- remarried for approximately 2-1/2 years, although he had lived with his present wife since 1995. That was close to 5 years. There was one child of the present marriage who was 15 months of age. There were also two children from his wife's previous relationship, being aged 12 years and 10 years respectively, who resided with the family.
85 The learned Judge was told that at the time he married his present wife, she was made aware of the matters which were on his record and which concerned the two other children, being the complainant's sisters. Approximately six months after his marriage he was charged with these relevant offences.
86 Counsel stated that the applicant was self-employed and had had his own consulting business for three years. He had been earning a taxable income of approximately $60,000 and had regular clients. He was the sole source of income for the family. The family's commitments included a mortgage on their house being repaid at $725 a month and a lease on a vehicle at $705 a month, together with the usual living expenses. The family's sole assets were the equity in the house and a very small share portfolio worth about $1,600. There were some debtors to the business totalling somewhere about $8,000. The applicant's wife worked part-time on a Saturday as a receptionist at a real estate agency. Essentially the applicant was the sole breadwinner.
87 The learned Judge was told that the matters the subject of this application were raised in 1988 in a record of interview. For some unknown reason they had not been taken further at that stage. The applicant had been charged with eight other counts of carnal knowledge of a girl under the age of 13 and two counts of carnal knowledge of a girl under the age of 16. These counts had concerned the other two children.
88 The learned prosecutor informed the Judge that the applicant had not been charged with any offences in relation to the complainant in 1988. That was apparently due to the fact that there had apparently been a belief at that time that the matters pertaining to the complainant were statute barred. They were not then pursued. At that time there had been a six-month time limit in regard to dealing with carnal knowledge of girls under 16 and over 13.
89 Counsel for the applicant told the learned Judge that the applicant had been sent to prison for the offences against the other children. After he had been released from prison his marriage with the complainant's mother had continued until the early 1990's. At that time the whole
(Page 23)
- family had been counselled. It was known before the prosecution involving the other two children that the applicant had been having sexual intercourse with the complainant. At that time he had told the police that he could not go on with it any further and had tried to tell his wife on a number of occasions. Counsel asked the learned Judge to take account of the fact, "that it's probably a fault of nobody that this matter wasn't dealt with back in 1988". That had perhaps been because the complainant had thought the matter had been dealt with in the courts at that time. She had only later discovered that the offences against her had not been dealt with.
90 When sentencing the applicant, the learned Judge said that evidence had been given of a lengthy period of sexual touching and sexual penetration of the complainant, commencing when she was about 12 years of age in Brisbane, followed by full sexual intercourse with her whilst the family was living in Melbourne. The offences the subject of the four relevant charges had taken place during the first 18 months the family was back in Western Australia.
91 Her Honour said that by their verdicts the jury had accepted the evidence of the complainant that the applicant had been a harsh disciplinarian who had used violence, including regular beatings with his army belt, to discipline the children. That harsh and cruel discipline had been combined with the offender's sexual abuse of his stepdaughter. The complainant had complied with the applicant's sexual requests because she knew that otherwise she would be beaten. By their verdicts the jury were satisfied that the applicant had threatened and intimidated the complainant during her childhood so that by the time the relevant offences had taken place, the applicant had trained the complainant to comply with his sexual demands without question or objection.
92 I will not recount the facts of the actual offences, but counts 2 and 3 involved sexual intercourse on the same day. Because of an incident that alerted the applicant's sister to his unusual interest in the complainant, she had been sent to Queensland for six months to live with her grandmother. Whilst she was there the applicant had telephoned her and told her that he would not offend again and that he was sorry and that she could return to Perth. The next two offences took place after the complainant had returned to Perth in about July 1987. Count 4 took place about one week after the complainant returned to Perth and had involved sexual intercourse. Count 5 took place some time later. Again, it had involved sexual intercourse. After that event the complainant had begun packing and from then on had lived with the family of her boyfriend who later
(Page 24)
- became her husband. She had stayed away from her home as much as possible in order to avoid the applicant.
93 The learned Judge referred to the earlier offences in 1988 and said that the applicant had been in prison for 15 months at that time. In 1988 at a record of interview the applicant had admitted having sexual intercourse with the complainant at least 30 times. Her Honour said that the police in 1988 seemed to have accepted that all the sexual contact between the applicant and his stepdaughter was consensual. They had not pursued the matter.
94 Her Honour took note of the applicant's expression of remorse in a letter of 15 September 1992 to the complainant and accepted that any prison term would have a devastating affect on the family. However her Honour said that the complainant had been the stepdaughter of the offender and the offences were particularly serious. The offender had exercised his powers as a harsh disciplinarian and had used that power over the complainant to force her to comply with his sexual demands. The maximum penalty in each case was 14 years' imprisonment.
95 Her Honour said that because of the severe and on-going breach of trust the offences fell towards the top end of the scale for offences of that nature. Her Honour took into account that the complainant had said that she had been undergoing counselling for a period of nearly 10 years in order to cope with the abuse she had suffered. Her Honour noted that she was only sentencing for the offences committed when the complainant had been 16-1/2 and 17 years of age and that she had no power to punish the applicant in any way for offences which had been committed in Melbourne or in Brisbane during the complainant's earlier childhood. The learned trial Judge accepted that she was required to sentence for the very end of that period of abuse; further that the offender had eventually been overcome with remorse at the damage he had done to his stepchildren.
96 The learned Judge said that apart from the confessional statement to the police and his letter written to the complainant, the applicant:
"… has shown no remorse in putting the complainant through the trauma of giving evidence before the jury and putting a defence that suggested that she was the instigator of sex on a number of occasions. Any benefit that he may have gained from his previous remorse when he, in 1988, apparently became aware of the severe damage he had done to his stepdaughters, his marriage and the whole family, that benefit has been
(Page 25)
- negatived in my view by his lack of remorse in relation to these charges. Because of the violence and because of the serious breach of trust associated with these offences I believe that sentences of 8 years' imprisonment are called for in relation to each charge."
97 Importantly, her Honour said:
"If the offender had been dealt with in 1988 for these charges along with ten carnal knowledge charges, a total of 9 years and 3 months' imprisonment would not have been considered to have been excessive. In fact, it seems a very low sentence for sexual offending of this nature against his three stepdaughters. Therefore I make no reduction based on the time he has already served in relation to his offending against [T] and [K]."
98 Having said that, the learned Judge sentenced the applicant to a total sentence of 8 years' imprisonment by ordering that each of the four 8 year sentences should be served concurrently, and ordered that the applicant be eligible for parole. The sentences were ordered to commence on 16 February 2000 when the applicant went into custody. Her Honour said that there was no reason apart from the totality principle, to order that the sentences be served concurrently; further that the offender had had every opportunity, whilst the complainant had been with her grandmother in Queensland, to have stopped his offending. That despite promising that he would not interfere with the complainant again, he nonetheless had continued his offending when she had returned to the family home.
99 In my view there was error in the way the learned Judge approached the sentencing. That was because from the remarks quoted above it is apparent that no deduction was made from the appropriate sentence arising from the 12-year time lapse between 1988 and the sentencing at 24 February 2000. This was despite the fact that the applicant had apparently revealed his conduct to his wife and the authorities and had been punished for his conduct towards the other two children. For some unknown reason he was not charged with these relevant offences.
100 In Duncan v R (1983) 47 ALR 746 the Court of Criminal Appeal of Western Australia in a Judgment of the Court, and having referred to an earlier decision of the Court of Criminal Appeal of Queensland in Bell v R (1981) 5 A Crim R 347 at 351 said:
"The case is authority for the proposition that where, prior to sentence, there has been a lengthy process of rehabilitation and
(Page 26)
- the evidence does not indicate a need to protect society from the applicant, that punitive and deterrent aspects of the sentencing process should not be allowed to prevail so as to possibly destroy the results of that rehabilitation. In our opinion the circumstances of the case are exceptional. We have been given no explanation for the long delay which occurred in bringing this man to trial, except that the Crown concedes that it was not his fault. It is not as if his whereabouts were unknown or he had left the State. In the meantime he set about re-establishing himself and incurred financial liabilities from which an innocent party will suffer if he is not released to enable disaster to be averted. The very fact of the long delay in bringing the matter to court which led the applicant to have this matter hanging over his head for nearly four years is rightly prayed in aid on his behalf. There are a number of examples where appellate courts have reduced or altered sentences where an appellant had been the victim of long delay in the bringing of proceedings against him: see R v Lavender (1971) 56 A Crim R 355 and the cases referred to in Thomas: Principles of Sentencing 2nd edition, page 220-1, as for example Rohan 23 August 1972, 1000/A/72, where a three year drug sentence was reduced and suspended as the appellant had 'completely transformed himself' in the meanwhile."
101 In Wagenaar v The Queen [2000] WASCA 325 which was a case involving sexual misconduct, Ipp J conducted an extensive review of the previously decided cases on the subject of the effect of a delay in prosecution, coupled with the rehabilitation of the offender. His Honour came to a similar conclusion to that expressed in Duncan (supra). Kennedy J and Pidgeon J agreed with Ipp J's reasons.
102 Applying those principles to this case, it is apparent that there has been error in the sentencing process. I will return to the effect of that at the conclusion of these reasons.
103 Although the applicant complained of various matters relating to the earlier uncharged sexual events to which the learned Judge referred, her Honour very clearly stated that she accepted "that I'm only required to sentence for the very end of that period of abuse, the sexual offences that happened when the family returned to Western Australia". I do not think that these complaints are valid.
(Page 27)
104 It was also complained that the learned trial Judge had erred in considering any benefit that the applicant may have gained from his earlier remorse, shown when he had spoken to the police in 1988 and written to the complainant, had been negatived by his pleas of not guilty in the conduct of his defence and by not finding that the applicant was entitled to some benefit in the sentencing by reason of the facts that it was he who had brought the matter to light in the first place and his later conduct, including his letter of remorse to the complainant.
105 In my view her Honour was correct when she said, "but he has shown no remorse in putting the complainant through the trauma of giving evidence before the jury and putting a defence that suggested that she was the instigator of sex on a number of occasions". However, in my view her Honour did err in then saying, "any benefit that he may have gained from his previous remorse when he, in 1988, apparently became aware of the severe damage he has done to his stepdaughters, his marriage and the whole family, that benefit has been negatived in my view by his lack of remorse in relation to these charges."
106 It was also complained that her Honour had taken note of the earlier violence and had said:
"Because of the violence and because of the serious breach of trust associated with these offences I believe that sentences of 8 years' imprisonment are called for in relation to each charge."
107 Her Honour was there referring to the earlier intimidation of the complainant which had resulted in her not resisting the applicant with respect to these offences. I think her Honour was entitled to have regard to those circumstances.
108 In my view the applicant has made out his ground of appeal against the severity of sentence which is based on the delay in the prosecution for nine years after 1988 and his rehabilitation in the intervening period prior to being sentenced. In the meantime the applicant had rebuilt his life, married and taken on new family and parental responsibilities. He will now have to rebuild his life again on release from prison.
109 I would reduce the sentence for each of the offences to 4 years' imprisonment to be served concurrently. The order that the applicant be eligible for parole and the date of commencement of the sentences would remain as they are.
36
1