Douglass v The Queen

Case [2012] HCA 34

HIGH COURT OF AUSTRALIA

FRENCH CJ,
HAYNE, CRENNAN, KIEFEL AND BELL JJ

RAYMOND HOWARD LYLE DOUGLASS  APPELLANT

AND

THE QUEEN  RESPONDENT

Douglass v The Queen

[2012] HCA 34

Date of Order:  16 August 2012
Date of Publication of Reasons:  11 September 2012

A17/2012

ORDER

1.Appeal allowed.

2.Set aside the order of the Court of Criminal Appeal of the Supreme Court of South Australia made on 3 December 2010 and in its place order:

(a)appeal allowed;

(b)conviction and sentence quashed; and

(c)direct the entry of a verdict of acquittal.

On appeal from the Supreme Court of South Australia

Representation

M E Shaw QC with B J Doyle for the appellant (instructed by Patsouris & Associates)

M G Hinton QC, Solicitor-General for the State of South Australia with A F Cairney and J Litster for the respondent (instructed by Director of Public Prosecutions (SA))

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Douglass v The Queen

Criminal law – Evidence – Trial by judge alone – Appellant convicted of aggravated indecent assault of granddaughter ("CD") – CD aged three years at time of alleged offence – Appellant gave sworn evidence denying offence – CD's unsworn statement only evidence of offence – Trial judge did not record any finding respecting appellant's evidence – Whether reasons sufficient to make clear appellant's evidence rejected beyond reasonable doubt – Whether CD's evidence reliable – Whether evidence sufficient to prove offence beyond reasonable doubt.

  1. FRENCH CJ, HAYNE, CRENNAN, KIEFEL AND BELL JJ.   After a trial before a judge alone in the District Court of South Australia (Barrett DCJ) the appellant was convicted of the aggravated indecent assault[1] of his granddaughter, CD, a child aged three years.  He was alleged to have persuaded CD to hold his penis on an occasion when the two were alone in a shed. 

    [1]Criminal Law Consolidation Act 1935 (SA), s 56(1).

  2. The only evidence of the offence came from CD.  It comprised statements made by her in an interview with a psychologist employed by the Child Protection Agency ("the interview") and her unsworn answers in cross-examination at the trial.  The offence was alleged to have occurred on or about 23 October 2008, one week before CD's fourth birthday.  The interview took place five weeks later on 26 November 2008.  The trial was held in August 2010.  CD was then aged five years and nine months.  Her evidence was confined to her answers to questions on four topics for which the Court had given permission for cross-examination[2].

    [2]Evidence Act 1929 (SA), s 34CA.

  3. The appellant gave evidence of his contact with CD on the day of the alleged offence.  He denied that they had been inside a shed or that she had touched his penis.  The trial judge did not in terms reject the appellant's evidence.  Nonetheless, his Honour was satisfied beyond reasonable doubt that on or about 23 October the…

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Douglass v The Queen [2012] HCA 34
Case
[2012] HCA 34
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CaseChat Overview and Summary

The High Court of Australia heard an appeal from the Court of Criminal Appeal of the Supreme Court of South Australia concerning the conviction of the appellant for aggravated indecent assault of his granddaughter, who was three years old at the time of the alleged offence. The appellant had given sworn evidence denying the allegations, and the only evidence of the offence was the unsworn statement of the child. The appeal raised questions regarding the sufficiency of the trial judge's reasons, the reliability of the child's evidence, and whether the evidence was sufficient to prove the offence beyond a reasonable doubt.

The legal issues before the High Court were whether the trial judge's reasons were sufficient to demonstrate that the appellant's evidence was rejected beyond reasonable doubt, whether the child's evidence was sufficiently reliable to establish the commission of the offence to the criminal standard, and consequently, whether the evidence, taken as a whole, was sufficient to prove the offence beyond reasonable doubt. The Court also considered the admissibility and weight of evidence from young children under the *Evidence Act 1929* (SA), particularly the provisions relating to protected witnesses and out-of-court statements.

The High Court allowed the appeal, quashing the conviction and sentence, and directing the entry of a verdict of acquittal. The Court reasoned that the trial judge's reasons were insufficient because they failed to adequately address the reliability of the child's evidence in establishing the offence to the criminal standard, and did not sufficiently demonstrate that the appellant's evidence was rejected beyond reasonable doubt. The Court emphasised that a criminal conviction requires proof of the elements of the offence beyond reasonable doubt, not merely a preference for one witness's evidence over another. The Court found that the verdict could not be supported by the evidence, as the trial judge's reasons did not exclude the possibility that the conviction was based on a standard less than proof beyond reasonable doubt.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside the order of the Court of Criminal Appeal of the Supreme Court of South Australia made on 3 December 2010 and in its place order:

(a) appeal allowed;

(b) conviction and sentence quashed; and

(c) direct the entry of a verdict of acquittal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In its discussion of the appellant's challenge to the sufficiency of the trial judge's reasons, the Court of Criminal Appeal said that the judge had adequately explained why he found CD "to be credible and reliable."[17] The judge's finding was of satisfaction "beyond reasonable doubt of the truthfulness of CD's evidence" (emphasis added). Nowhere did the judge address the distinct question of the reliability of CD's evidence in the sense of its capacity to establish the commission of the offence to the criminal standard. That question is the subject of the appellant's second ground, which contends that the verdict cannot be supported by the evidence[18]. Success on this ground requires that the appellant's conviction be quashed and a verdict of acquittal be entered[19]. [17]R v Douglass [2010] SASCFC 66 at [64]. [18]Criminal Law Consolidation Act 1935 (SA), s 353(1). [19]M v The Queen (1994) 181 CLR 487; [1994] HCA 63; MFA v The Queen (2002) 213 CLR 606 at 618 [38] per McHugh, Gummow and Kirby JJ; [2002] HCA 53. The evidence of young children Before referring to the evidence it is convenient to say something about the reception of the evidence of young children under the Evidence Act 1929 (SA) ("the Evidence Act"). A "young child" is a child of or under the age of 12 years[20]. A young child is a "protected witness" for the purposes of s 34CA of the Evidence Act. That section permits the court to admit evidence of the nature and contents of a statement made outside the court by a "protected witness" to prove the truth of the facts asserted in the statement[21]. Reception of an out‑of‑court statement under s 34CA is subject to the court's satisfaction that the statement has sufficient probative value to justify its admission and the availability of the protected witness to be called as a witness in the proceeding[22]. [20]Evidence Act, s 4, definition of "young child". [21]Section 34CA relevantly provides: "(1)A court may admit evidence of the nature and contents of a statement made outside the court by a protected witness from the person to whom the statement was made if –(a)the court, having regard to the circumstances in which the statement was made and any other relevant factors, is satisfied that the statement has sufficient probative value to justify its admission; and (b)– (i)the protected witness has been called, or is available to be called, as a witness in the proceedings; and (ii)the court gives permission for the protected witness to be cross-examined on matters arising from the evidence. (2)A court may only give permission to allow a protected witness to be cross-examined on such matters if satisfied that the cross-examination is likely to elicit material of substantial probative value or material that would substantially reduce the credibility of the evidence. (3)Evidence that is admitted in a trial under this section of the nature and contents of a statement made outside the court by a protected witness may be used to prove the truth of the facts asserted in the statement. (4)In a criminal trial, the judge must, if evidence of the nature and contents of a statement made outside the court by a protected witness has been admitted but the protected person has not, for some reason, been cross-examined on matters arising from the evidence, warn the jury that the evidence should be scrutinised with particular care because it has not been tested in the usual way."[22]Evidence Act, s 34CA(1).

Decision

Reasons for decision

FRENCH CJ, HAYNE, CRENNAN, KIEFEL AND BELL JJ

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: FRENCH CJ, HAYNE, CRENNAN, KIEFEL AND BELL JJ

And[13]: "Having considered the evidence as a whole, and being satisfied of the truth and reliability of [CD's] evidence, the Judge necessarily rejected the denials by [the appellant]."[13]R v Douglass [2010] SASCFC 66 at [64]. The first ground – consideration The Court of Criminal Appeal's reliance on McHugh JA's statements in Soulemezis was misplaced. Soulemezis concerned the sufficiency of the reasons of a judge of the Compensation Court of New South Wales in a proceeding in which the right of appeal was confined to a question of law or in relation to the admission or rejection of evidence. It was an error to view the appellant's trial as reducing to a case of "word against word". It is a characterisation which fails to recognise that the resolution of a criminal case does not depend on whether the evidence of one witness is preferred to that of another. The resolution of a criminal trial depends upon whether the evidence taken as a whole proves the elements of the offence beyond reasonable doubt. The point is made by Gummow and Hayne JJ in Murray v The Queen[14]: "The choice for the jury was not to prefer one version of events over another. The question was whether the prosecution had proved the relevant elements of the offence beyond reasonable doubt. This required no comparison between alternatives other than being persuaded and not being persuaded beyond reasonable doubt of the guilt of the appellant."[14](2002) 211 CLR 193 at 213 [57]; [2002] HCA 26. To dismiss the appellant's complaint respecting the sufficiency of the reasons on the footing that the judge's acceptance of CD's evidence necessarily carried with it rejection of his evidence was to overlook that the judge's acceptance of CD as truthful was not inconsistent with the existence of a reasonable doubt as to guilt. Even if the judge was not persuaded by the appellant's evidence, he could not convict unless satisfied that it was not reasonably possibly true[15].[15]Liberato v The Queen (1985) 159 CLR 507 at 515 per Brennan J; [1985] HCA 66. In R v Keyte, Doyle CJ explained why a judge is required to give reasons for the judge's verdict following a trial under s 7 of the Juries Act 1927 (SA)[16]. These included that in the absence of reasons, the appellate court is unable to determine whether the judge has correctly applied the relevant rules of law. In this case, the failure to record any finding respecting the appellant's evidence left as one possibility that the judge simply preferred CD's evidence and proceeded to convict upon it applying a standard less than proof beyond reasonable doubt. The absence of reasons sufficient to exclude that possibility constituted legal error. It is unnecessary to address the consequence of that error in circumstances in which, as will appear, the appellant's second ground must succeed. [16](2000) 78 SASR 68 at 76. The second ground – the sufficiency of the evidence In its discussion of the appellant's challenge to the sufficiency of the trial judge's reasons, the Court of Criminal Appeal said that the judge had adequately explained why he found CD "to be credible and reliable."[17] The judge's finding was of satisfaction "beyond reasonable doubt of the truthfulness of CD's evidence" (emphasis added). Nowhere did the judge address the distinct question of the reliability of CD's evidence in the sense of its capacity to establish the commission of the offence to the criminal standard. That question is the subject of the appellant's second ground, which contends that the verdict cannot be supported by the evidence[18]. Success on this ground requires that the appellant's conviction be quashed and a verdict of acquittal be entered[19]. [17]R v Douglass [2010] SASCFC 66 at [64]. [18]Criminal Law Consolidation Act 1935 (SA), s 353(1). [19]M v The Queen (1994) 181 CLR 487; [1994] HCA 63; MFA v The Queen (2002) 213 CLR 606 at 618 [38] per McHugh, Gummow and Kirby JJ; [2002] HCA 53. The evidence of young children