"F" v The State of Western Australia
[2007] WASCA 74
•11 APRIL 2007
"F" -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 74
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASCA 74 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:146/2005 | 6 MARCH 2007 | |
| Coram: | ROBERTS-SMITH JA McLURE JA BUSS JA | 11/04/07 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | "F" THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against conviction Whether verdicts unreasonable Whether miscarriage of justice Turns on own facts |
Legislation: | Criminal Appeal Act 2004 (WA), s 30(a), s 30(c) |
Case References: | M v The Queen (1994) 181 CLR 487 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : "F" -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 74 CORAM : ROBERTS-SMITH JA
- McLURE JA
BUSS JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : YEATS DCJ
File No : IND BUN 24 of 2004
Catchwords:
Criminal law - Appeal against conviction - Whether verdicts unreasonable - Whether miscarriage of justice - Turns on own facts
(Page 2)
Legislation:
Criminal Appeal Act 2004 (WA), s 30(a), s 30(c)
Result:
Leave to appeal granted
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr B S Hanbury
Respondent : Mr D Dempster
Solicitors:
Appellant : Beau Hanbury
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
M v The Queen (1994) 181 CLR 487
(Page 3)
1 ROBERTS-SMITH JA: I agree with McLure JA.
2 McLURE JA: The appellant applies for leave to appeal from his convictions on two counts of indecent dealing with a complainant under the age of 13 years and one count of sexual penetration of the same complainant.
3 The appellant was the brother of the complainant's stepfather. On the prosecution case, the offences occurred in the appellant's bedroom in the house in which he resided with his elderly mother, the complainant's grandmother. The complainant was staying the night at her grandmother's house. The offences, which involved indecent touching and digital penetration, occurred at night when the appellant and the complainant were in the appellant's bedroom to watch a video. The witnesses for the prosecution were the complainant, her mother, a medical doctor and a police officer. The appellant was the only witness for the defence. He denied the offences and testified, inter alia, that the video player had never been in his bedroom.
4 The appellant's proposed grounds of appeal are that (1) having regard to the inconsistencies between the complainant's evidence at trial and her out of court statements, the convictions are unreasonable and (2) having regard to the inconsistencies, the complainant's failure to complain to her grandmother and her evidence of subsequent contact with the appellant, there has been a miscarriage of justice.
5 The Court of Appeal must allow an appeal if in its opinion a verdict of guilty, having regard to the evidence, is unreasonable or unjust (s 30(3)(a) of the Criminal Appeal Act 2004 (WA)) or if there is a miscarriage of justice (s 30(3)(c)).
6 Where a court sets aside a verdict on the ground that it is unreasonable, it frequently does so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory: M v The Queen (1994) 181 CLR 487 at 492 per Mason CJ, Deane, Dawson and Toohey JJ. A verdict may also be unsafe or unsatisfactory for other reasons. A verdict which is unsafe or unsatisfactory for any other reason constitutes a miscarriage of justice. The High Court in M v The Queen confirmed (at 493) that the ground of miscarriage of justice covers:
"[N]ot only cases where there is affirmative reason to suppose that the appellant is innocent, but also cases of quite another description. For it will set aside a conviction whenever it appears unjust or unsafe to allow the verdict to stand because
(Page 4)
- some failure has occurred in observing the conditions which, in the court's view, are essential to a satisfactory trial, or because there is some feature of the case raising a substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or misled."
7 Where the question is whether a verdict is unsafe or unsatisfactory whether because it is unreasonable or for any other reason, the question which the Court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. In answering that question the Court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the Court must pay full regard to those considerations: M v The Queen at 493.
8 The proposed grounds of appeal are interrelated and I will deal with them together. The first matter relied on relates to the timing of relevant events by reference to the video. In examination-in-chief the complainant said the appellant asked her to take her clothes off while the video was still going (T 99). That issue was pursued in cross-examination as follows (T 109 - 110):
"Did he say something to you?---He just asked me to take my clothes off.
When did he say that to you?---After the movie - when it was on the previews of the movie, the start.
The start of the movie?---Yep.
That's your recollection today, is it?---Yep
[D]o you recollect or remember that previously, before today, you have said that once the video had finished, [F] said, 'Take your clothes off'? --- No."
9 The complainant gave statements to police in June 2003 and in November 2003. In one of her statements the complainant said once the video had finished the appellant told her to take off her clothes. The complainant confirmed the correctness of her evidence.
(Page 5)
10 Secondly, the complainant gave evidence that when she got up the following morning the appellant was up going to the toilet and said to her "it's our little secret"(T 101). In her statement to police the complainant said that she got up the next morning and "left before [F] got up". The complainant confirmed the correctness of her evidence and explained that she had forgotten about that matter until a few weeks previously (T 118).
11 The third matter relied on related to the complainant's evidence as to her age when the offences were committed. The complainant was born on 6 October 1988 and was aged 15 when her evidence was pre-recorded for trial on 17 August 2004. The offences were alleged to have occurred between 1 January 2001 and 6 October 2001.
12 The complainant's evidence-in-chief was as follows (T 97):
"Why was it that you stopped seeing your uncle … in year nine or 10?---Because he did something to me.
…
This something that you say [your uncle] did to you, do you remember when that was?---Year eight sometime.
Year eight, okay, and what year were you in year eight?---2002, I think. Wait, no. I didn't understand.
You don't understand. Last year you were in year 10. Is that right?---Yep.
In 2003. Have you gone through each academic year at school in the normal progress. You haven't missed any years?---No.
No? You haven't stayed down any years?---No.
So year eight, would you agree you were in year eight in 2001?---Yep.
Okay and what age did you turn that year?---I turned 13.
That was on 6 October?---Yep.
This thing that you say [your uncle] did to you when you were in year eight, can you remember whether that was before or after your birthday that year?---Before.
Do you remember specifically when it was?---No."
(Page 6)
13 This matter was pursued in cross-examination (T 119):
"Up until November of last year, I think it was the case that you weren't sure whether you were over or under 13. Is that right?---Yep.
And then in November of last year, did you provide or tell the police, in November of last year, that you were under 13---?---Yep.
--- when this night occurred?---Yep.
Can I ask you … it could've happened you're getting confused about when it was that you say this incident occurred?---No.
Would that be right?---No.
You agree with me that initially you couldn't say - in fact up until about November of last year - you couldn't say when it was or how old you were when you say this incident occurred?---Yeah."
14 The complainant was re-examined on the question of her age as follows (T 123 - 124):
"You were also asked some questions about the fact that you made a second statement to the police in November of last year?---Yep.
Do you remember why it was that you made this second statement?---No.
Do you remember whether it was you approaching the police or they asked you to clarify something?---They asked me to come in, so I went in.
Did they ask you to clarify something?---Yep.
Okay and what was that?---Just when it was, and I can't remember what else, but just when it was.
Is there any reason why, when you made your statement in June, you weren't sure when it was and then a bit later on you were sure?---Because it - just all of a sudden I decided to tell
(Page 7)
- them what happened and I was trying to remember just from in one day what happened.
I'm a little confused there … When you say you were trying to remember in one day what happened, which day are we talking about?---The day that I made the statement.
The first statement?---Yep.
So when you made the second statement - I will just withdraw that. So why is it then that you were able to clarify things by the second statement as to when this occurred?---Because I knew it was closer to the start of year eight than it was the end."
15 Counsel for the appellant said in oral submissions that proof of age for the purpose of establishing the offences was not in question but he relied on the way the complainant gave evidence about her age as reflecting on her credit. The final two matters on which the appellant relied in written submissions are the complainant's failure to complain to her grandmother about the offences and the complainant's continued contact with the appellant after the offences, including going camping with the appellant.
16 In the course of oral submissions counsel for the appellant appeared to suggest that the impact on the jury of the matters relied on was lessened because the complainant did not give her evidence in the presence of the jury. I am not persuaded that is the case. In any event, the submission was not advanced as a ground of appeal but rather as a matter for this Court to take into account in making its assessment of whether the verdicts are unsafe or unsatisfactory.
17 The learned trial Judge carefully and comprehensively directed the jury on all relevant considerations relating to the matters relied on. No complaint is made about those directions.
18 The inconsistencies and other conduct relied on by the appellant were well within what would reasonably be expected of a witness in the complainant's position. The matters relied on by the appellant do not individually or collectively justify a conclusion that the verdicts were unreasonable or otherwise unsafe or unsatisfactory. I am not satisfied on the evidence as a whole that there is a substantial possibility the jury may have been mistaken. I would grant leave to appeal but dismiss the appeal.
19 BUSS JA: I agree with McLure JA.
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