DS v The State of Western Australia - [2008] WASCA 182

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: DS -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 182

CORAM: WHEELER JA
MILLER JA
MURRAY AJA

HEARD: 13 AUGUST 2008

DELIVERED : 2 SEPTEMBER 2008

FILE NO/S: CACR 151 of 2007

BETWEEN: DS
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :O'SULLIVAN DCJ
File No  :BUN IND 77 of 2007

Catchwords:

Criminal law and procedure - Evidence - Sexual offence - Recent complaint - Whether spontaneous - Whether in reply to questions of a leading or suggestive character - Whether admissible

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Ms R M Parks
Respondent: Mr J A Scholz

Solicitors:

Appellant: Edward John Myers
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Azarian v The State of Western Australia [2007] WASCA 249
Kilby v The Queen (1973) 129 CLR 460
R v Freeman [1980] VR 1
R v Gallagher (1986) 41 SASR 43
R v Osborne (1905) 1 KB 551
Roberts v The Queen [2001] WASCA 191

WHEELER JA: I agree with Miller JA.
MILLER JA: The appellant was tried on indictment in the District Court at Bunbury on four counts of indecent dealing alleged to have occurred between the years 2002 and 2007, and involving three of his stepdaughters.
By verdict of the jury, the appellant was acquitted on the second and third counts, but convicted on the fourth. The jury was unable to agree in relation to the first count.
Count 4 on the indictment was in the following terms:
(4)On 26 February 2007 at Bunbury [the appellant] indecently dealt with [the complainant], a child who he then knew to be his de facto child, by touching her vagina with his finger.

The appeal

The appellant has been granted leave to appeal against his conviction on a single ground. It is in the following terms:
1.The learned Judge erred in law by permitting the evidence of the complainant relating to recent complaint, to be admitted.
PARTICULARS
(a)The complaint made by the complainant to her mother was not spontaneous and was elicited by way of leading and suggestive questions by her mother at a time when the complainant was awaking from sleep;
(b)The evidence ought not to have been allowed into evidence as recent complaint tending to bolster the complainant's credibility.

The evidence

The evidence of the complainant was pre‑recorded on 15 March 2007. It was recorded on videotape and that videotape was played to the jury on 5 November 2007.
The complainant said that she was born in January 1996 and was 11 years at the time she gave evidence on 15 March 2007. That was her age at the date of the alleged offence.

In her pre‑recorded evidence, the complainant said that she was testifying because 'my dad did something very bad at home to me'. When asked to detail what that was, she said:
A. Um, it's basically sexually assault and, um, he put his hands in my pants and started rubbing, um, and I tried to pull my pants up but he just kept pulling it down and he was very drunk.
…
I was in bed at the time, it was very late at night and I - - I couldn't get any sleep, um, so I, um, I just sat up in my bed for a little while and read a book and then I fell asleep for a little while and I can't remember him coming in, all I remember is him sitting down on my bed and rubbing.
By way of further elaboration, the complainant said:
A. Um, I just woke up because I felt something funny^?and then I saw him, he was on my bed and he said, 'I love you so much,' and he was very, very drunk. I don't know how many beers he had that night. And Mum told him to - - um, Mum come in and asked me - - when he went back in the bedroom she come in my room and asked me if he touched me anywhere and I didn't answer, um, she asked again and I nodded and she - - and then she went in their room and said, 'Get out,'
There were various other passages in the evidence of the complainant where she described the incident. At one point, she said:
Q. Now, you said before that you were wearing pyjamas and you had some shorts on and some underwear on. Was he rubbing on top of the shorts or underneath?
A. Underneath.
Q. Okay. What about your underwear?
A. Underneath them.
Q. Okay. What part of this part was he rubbing? We talked about a bit that have babies ‑ ‑
A. Yeah.
Q. ‑ ‑ from that part and you do wees, which part was he rubbing?
A. Oh, just the, um - - in the middle of it, that's it.
Q. Okay. How long was he rubbing it for?
A. For about 5 minutes.
Q. Did he say anything?
A. He said, 'I love you so much,' and if I could touch his before he leaves.
Q. Okay. If you could touch his before he leaves, what do you think he meant by that?
A. Um, his willy^?.
Q. Yep. How do you know that's what he meant?
A. Um, he said that. He said it.
Q. Can you remember the exact words he used?
A. Um, he said, 'Could you touch my kitty^? before I leave?'
Q. My kitty?
A. Yeah, that's all he said.
Q. Okay. Have you heard him use that word before?
A. Um, yes, I have.
Q. What - - what's he mean when he says kitty?
A. I'm not really sure but, um - - I don't know.
Q. Oh, okay. Um, did you say anything to him?
A. (shakes head).
The complainant gave evidence of what she told her mother when she came into the room. She said:
A. Um, Mum just asked, 'Where have you been?' He said, 'The garage,' and Mum said, 'Not just then you weren't,' and then she come in and asked me where he touched me and then I nodded and then - - and then she just went back in and said, 'Get out, get out,' and, um, he was asking for the keys to the ute ‑ ‑
The complainant was cross‑examined about what she told her mother and she said:
Okay then. Now, you say that - well, when mum came into the room - because I think your evidence is that she came in soon after?‑‑‑Yes.
What exactly did she say to you?‑‑‑She said, 'Did he touch you anywhere?'
Yes, and what did you say?‑‑‑I didn't say anything then.
Yes?‑‑‑Then she asked me again and I nodded and she ‑ ‑ ‑
Right. Did she actually say to you, 'Did he touch your wee'?‑‑‑Yes.
Right. So is this what happened: that she said, 'Did he touch you anywhere?' and you didn't answer?‑‑‑Yes.
She asked you again if he touched you anywhere and you didn't answer?‑‑‑Yes.
And then she said, 'Did he touch your wee'?‑‑‑Yes.
And what, you nodded?‑‑‑Yes.
There was also re‑examination on the issue. The relevant passage is as follows:
… I don't have many questions, but I just want to ask you about the point when your mum came into the room that night. You said that - I think you said she asked you what had happened. First of all you didn't reply, is that right, the first time?---Yes.
And then what happened after that?‑‑‑Then she asked me again and I didn't reply.
When you say you didn't reply, did you do anything at all at that point?‑‑‑No.
Did you make any sign to her at that point or give any indication to her?‑‑‑No, not on the second time.
All right. What about - what happened after that? Did she ask again?‑‑‑Yes.
And then what did you say or do?‑‑‑I said, 'Yes.'
All right; and you were asked if you nodded at some point. Do you remember that?‑‑‑Yes, I nodded.
When did you nod?---When she asked me, I didn't use words, I nodded.
All right. I just want to go back over that one more time. She asked you the first time. Did you do or say anything the first time she asked you?‑‑‑No.
What about the second time?‑‑‑I didn't reply.
You didn't reply. All right; and the third time?‑‑‑I nodded.
The complainant's mother, KS, testified that, on the night in question, she had gone to bed and her two sons had come into the bed, one lying on each side of her. She said that she did not 'go back to sleep fully', and then stated:
I was just dozing and I could hear some stumbling around in the kitchen and out the back of the house and I must have dozed for a few minutes and I saw - I woke to see [the appellant] coming out of [the complainant's] room which was opposite where I was sleeping. I could see her doorway from where I was and I thought - and the light was off and I thought, 'What's he coming out of there for in the middle of the night?' He was drunk, stumbling around. He hit the doorframe and just sort of collapsed on the end of the bed and I ‑ ‑ ‑
Which bed?---My bed where I was sleeping and I pushed him with my foot and said, 'What are you doing? Why were you in [the complainant's]'s room?' and he just grunted and I got up. I took the boys back to their room and I just said, 'Wait in there for a minute,' and I went and saw [the complainant]. [The complainant] was crying and I said, 'Was dad in here?' and she said, 'Yes,' and I said - I said, 'Did he touch you?' She didn't answer me. She just cried and I said, 'Did he touch you on the wee?' which is what she used to call it and she just burst into tears and nodded yes.
KS was cross‑examined about whether she could see the door to the complainant's bedroom, and she was asked whether she was definite about the appellant having come out of that bedroom. She said she was. She was asked again to say what occurred when she went into the complainant's bedroom and she stated:
So then you went into [the complainant's] room; and what do you say you said to her?‑‑‑What did I say to her?
To [the complainant]?‑‑‑I asked her if he'd been in the room.
Right?---And she nodded yes or said yes and I said - I said, 'Did he touch you?' because she was crying.
Yes?---She didn't answer ‑ ‑ ‑
What did she say?‑‑‑She didn't answer me initially and I said, 'Did he touch you on the wee?' and she said, 'Yes,' and just burst into tears.
She burst into tears, did she?---Yes, she did.

Trial judge's ruling

The admissibility of the complaint evidence was raised with the trial judge prior to the commencement of the trial. Counsel for the appellant objected to the evidence on the basis that KS had asked the complainant a leading question, and the complainant had responded with an answer as a result of the suggestive nature of the question.
The trial judge took time to consider the matter and said:
[I]n my view in all the circumstances the evidence proposed to be led from the mother of the complainants at page 10 of the papers is not objectionable. Put in context the question that the mother asked was of her daughter only just after she, the mother, had walked into the bedroom and found her daughter wearing a nightie and no underwear. It was a spontaneous question and there is no reason, I think, to consider that the reply elicited should be kept from the jury.
No voir dire was conducted before the ruling was given. It was not a case in which the trial judge first saw and heard the complainant before determining the admissibility of the evidence: cfR v Freeman [1980] VR 1, 7 (Starke, McInerney and Murphy JJ). Nevertheless, the question of the admissibility of the evidence was very much an issue for the decision of the trial judge: R v Osborne (1905) 1 KB 551, 556 (Ridley J).

Ground of appeal

The challenge to the trial judge's ruling is based upon an assertion that the complaint made by the complainant to her mother was not spontaneous and was elicited by way of leading and suggestive questions by the mother at a time when the complainant was awaking from sleep.
It can be said at once that there is no evidence that the complaint was made at a time when the complainant was awaking from sleep. Her evidence makes it clear that she had been asleep, but was awoken by the appellant. She had been awake before her mother came in because she said that the appellant had been rubbing her for 'about 5 minutes'.
The question, then, is whether it can be said that the complaint was not spontaneous and was elicited by way of leading and suggestive questions.
In Roberts v The Queen [2001] WASCA 191 and in Azarian v The State of Western Australia [2007] WASCA 249 I reviewed the relevant authorities on the issue. I pointed out in Roberts at [25] that in Osborne Ridley J at 556 had suggested that questions 'of a suggestive or leading character' would have the effect and would render inadmissible evidence of a complaint. Ridley J said, however, that in every case the decision on the character of the question or questions put, as well as other circumstances, such as the relationship of the questioner to the complainant, must be left to the discretion of the presiding judge. The well‑known passage from Osborne at 556, is as follows:
It appears to us that the mere fact that the statement is made in answer to a question in such cases is not of itself sufficient to make it inadmissible as a complaint. Questions of a suggestive or leading character will, indeed, have that effect and will render it inadmissible … In each case the decision on the character of the question put, as well as other circumstances, such as the relationship of the questioner to the complaint, must be left to the discretion of the presiding Judge. If the circumstances indicate that, but for the questioning, there probably would have been no voluntary complaint the answer is inadmissible. If the question merely anticipates a statement which the complainant was about to make, it is not rendered inadmissible by the fact that the questioner happens to speak first.
…
It applies only where there is a complaint not elicited by questions of a leading and inducing or intimidating character, and only when it is made at the first opportunity after the offence which reasonably offers itself.
In Freeman, Starke, McInerney and Murphy JJ at 4 ‑ 5 reviewed a number of cases and concluded that any attempt to formulate an exhaustive rule was bound to fail. Their Honours pointed out that the decision in Osborne did not 'cover the field' by enumerating the circumstances in which a complaint is properly admissible to prove consistency. Their Honours also pointed out that Osborne was open to criticism and 'indeed has not escaped criticism'. I would refer also to the discussion in Roberts of R v Gallagher (1986) 41 SASR 43 at [28].
In Azarian, at [123] I made reference to a number of relevant questions posed in Freeman. I said:
In R v Freeman, 5, the court considered that on the facts of the case the relevant questions were inter alia:
(1)how proximate was the complaint when first made to the event;
(2)what happened in the interval between the events complained of and the making of the complaint;
(3)what likelihood there was that the 'complaint' was not the spontaneous and unvarnished narrative of the prosecutrix either because the statement had been put into the prosecutrix's mind and mouth by questions of such a character as to have suggested to the prosecutrix the answer she in fact gave, or that the questioner desired the answer given rather than another, or that the circumstances indicated that the answer given was the product of a suggestive question to a suggestible mind;
(4)whether the complaint could have been induced as a consequence of the relationship existing between the prosecutrix and the person to whom the complaint was made (cf R v Adams and Ross [1965] Qd R 255) so that it was not spontaneous but contrived or induced;
In Freeman, it was held that, in the circumstances of that case, it was open to the trial judge to have formed the view that the questions put to the complainant by an acquaintance had merely accelerated the making of a complaint and what the complainant said was the product of her own mind, and not the acceptance of a suggestion implanted in her mind. The court also considered that questions asked of the complainant 'did no more than dissolve the barrier which had hitherto prevented her from telling her story' (7).
In the circumstances of the present case, it is apparent that the complaint made by the complainant to her mother was (a) proximate in time to the event complained of; (b) made at the first possible opportunity after the incident complained of had occurred; and (c) a spontaneous consequence of the complainant first having been asked whether she had been touched and then, when she did not answer, being asked whether she had been touched 'on the wee'.
The complainant's 'complaint' was, in fact, only a nod. No words were used. Nevertheless, it was the complainant's nod to her mother's question which constituted the complaint.
I do not consider that the complainant's mother put anything into the complainant's mind. Nor do I consider that the nod of the complainant in response to her mother's question was the product of a 'suggestive question to a suggestible mind' (Freeman at (5)). I do not consider, either, that the complainant was induced to nod in response to her mother's question in consequence of the relationship between her mother and herself (Freeman at (5)). Rather, I consider that all of the evidence points to the complainant's response as being spontaneous and in no way contrived or induced.
The facts of every case are different, but the circumstances in which complaints were made in each of the cases of Roberts and Azarian make it quite clear that, very often, questions asked of a complainant merely accelerate the making of a complaint that would otherwise be made. In many cases, the questions dissolve the barrier that might otherwise exist between the questioner and the complainant.

There is no general rule in relation to the matter, but provided (a) the complaint was proximate to the event complained of; (b) there is no question of statements having been put into the mouth of the complainant; (c) there is no question of a suggestible mind reacting to a suggestive question; and (d) there is no possibility of the complaint being induced by reason of the relationship between the complainant and her questioner, evidence of complaint is generally admissible.
In the present case, events happened quickly. The complainant's mother observed her husband leave the complainant's room. She got out of bed, took her boys back to their room and then went in to see the complainant. She observed the complainant to be crying. She asked her whether her father had been in the room and having received an affirmative answer, then asked the question, 'Did he touch you?' When she got no answer, she said, 'Did he touch you on the wee?', and she received a nod in response. In my view, the evidence met the test of admissibility and was properly admitted by the trial judge. Once admitted, it was evidence which constituted a buttress to the credit of the complainant: Kilby v The Queen (1973) 129 CLR 460, 472 (Barwick CJ). That was the direction given to the jury by the trial judge and there is no complaint made about that direction.
In these circumstances, I would dismiss the appeal.
MURRAY AJA: I have had the advantage of reading in draft the judgment published by Miller JA. I agree with those reasons and I agree that the appeal should be dismissed.