FARDIG v The State of Western Australia
[2007] WASCA 269
•12 DECEMBER 2007
FARDIG -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 269
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASCA 269 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:27/2005 | 1 NOVEMBER 2007 | |
| Coram: | WHEELER JA PULLIN JA BUSS JA | 11/12/07 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused | ||
| B | |||
| PDF Version |
| Parties: | KELVIN LINLEY FARDIG THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Whether errors in summing up Whether necessary to refer to every inconsistency in complainant's evidence and out of court statement Whether sufficient reference to the evidence in relation to each count |
Legislation: | Nil |
Case References: | Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555 R v H [1997] 1 Qd R 527 Tully v The Queen [2006] HCA 56; (2007) 81 ALJR 391 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : FARDIG -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 269 CORAM : WHEELER JA
- PULLIN JA
BUSS JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : MULLER DCJ
File No : IND BUN 107 of 2004
Catchwords:
Criminal law - Whether errors in summing up - Whether necessary to refer to every inconsistency in complainant's evidence and out of court statement - Whether sufficient reference to the evidence in relation to each count
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Legislation:
Nil
Result:
Leave to appeal refused
Category: B
Representation:
Counsel:
Appellant : Mr J C Curthoys
Respondent : Mr D Dempster
Solicitors:
Appellant : In person
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555
R v H [1997] 1 Qd R 527
Tully v The Queen [2006] HCA 56; (2007) 81 ALJR 391
(Page 3)
1 WHEELER JA: I agree with Pullin JA.
2 PULLIN JA: This is an application for leave to appeal against conviction.
3 The appellant was convicted before Judge Muller and a jury in the District Court, on three counts of sexual penetration of a child under the age of 13 years and one count of indecent dealing with a child under the age of 13 years. The convictions concerned one complainant. The indictment read:
1. On a date unknown between 1 October 2001 and 10 July 2002 at Boyanup KELVIN LINLEY FARDIG sexually penetrated [the complainant], a child under the age of 13 years, by performing cunnilingus on her.
2. AND FURTHER THAT on the same unknown date and at the same place KELVIN LINLEY FARDIG indecently dealt with [the complainant], a child under the age of 13 years, by touching her vagina.
3. AND FURTHER THAT on another unknown date between 1 October 2001 and 10 July 2002 at Boyanup KELVIN LINLEY FARDIG sexually penetrated [the complainant], a child under the age of 13 years, by performing cunnilingus on her.
4. AND FURTHER THAT on the same unknown date and the same place as in Count (3) KELVIN LINLEY FARDIG again sexually penetrated [the complainant], a child under the age of 13 years, by having her perform fellatio upon him.
5. AND FURTHER THAT on another unknown date between 1 October 2001 and 10 July 2002 and at the same place as in Count (1) KELVIN LINLEY FARDIG sexually penetrated [the complainant], a child under the age of 13 years, by performing cunnilingus on her.
6. AND FURTHER THAT on another unknown date between 1 October 2001 and 10 July 2002 at Collie KELVIN LINLEY FARDIG sexually penetrated [the complainant], a child under the age of 13 years, by performing cunnilingus on her.
7. AND FURTHER THAT on another unknown date between 1 October 2001 and 10 July 2002 at Bunbury KELVIN LINLEY FARDIG sexually penetrated [the complainant], a child under the age of 13 years, by performing cunnilingus on her.
8. AND FURTHER THAT on another unknown date between 1 October 2001 and 10 July 2002 at Bunbury KELVIN LINLEY
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- FARDIG again sexually penetrated [the complainant], a child under the age of 13 years, by performing cunnilingus on her.
- 9. AND FURTHER THAT on the same unknown date and at the same place as in Count (8) KELVIN LINLEY FARDIG indecently dealt with [the complainant], a child under the age of 13 years, by rubbing his penis on the outside of her vagina.
4 The appellant was convicted on counts 1, 4, 5 and 9. He was found not guilty on the remaining counts.
Background facts
5 The appellant was the brother of the complainant's de facto stepfather. He had known the complainant for some time, and was regarded as an uncle by the complainant and her siblings. The appellant lived with his elderly mother.
6 The prosecution alleged that the acts involved in counts 1 and 2 occurred in a bus owned by the appellant when he stayed overnight with the complainant, her eldest sister and her brother at an archery competition at Boyanup. The bus had been converted into a kind of campervan and had inside it a double bed and a table. The acts alleged in counts 3 and 4 were said to have also occurred in the bus on a similar archery trip to Boyanup.
7 The act alleged in count 5 was said to have occurred in a four-wheel drive vehicle owned by the appellant when he stayed overnight with a friend of his and the complainant at another archery competition at Boyanup. The vehicle had seats which folded flat so that a mattress could be placed there. The offence was said to have occurred when the appellant slept with the complainant on this mattress.
8 Count 6 was said to have occurred when the appellant took the complainant and her elder sister marroning at Wellington Dam at Collie. They shared a tent. The complainant and her sister shared a mattress but after a disagreement with her sister, the complainant moved to sleep on the same mattress as the appellant where the offence was alleged to have occurred.
9 The act alleged in count 7 was said to have occurred on an occasion when the complainant was inside the bus, when it was parked on the front lawn of the appellant's mother's home. The complainant was said to have been playing inside the bus before the incident occurred.
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10 The acts alleged in counts 8 and 9 were said to have occurred in a shed at the rear of the appellant's mother's premises. The shed was said by the complainant to contain some furniture including a television and seating. The appellant said that it was used for storage.
The complainant's evidence
11 At the trial, the complainant gave evidence via a pre-recorded video. She was 12 years old at the time the recording was made. The events in question had occurred when the complainant was 9 or 10 years old. The complainant was subjected to extensive questioning and cross-examination about the events which formed the subject of the charges. The complainant had made complaint to her elder sister about the incidents some time after they had occurred and subsequently the complainant gave a statement to the police. She was questioned about the making of her complaint and why she had not told anyone earlier about what the appellant was doing. She was also questioned about inconsistencies between her statement to police and her evidence at trial. The complainant's evidence took up the best part of a day. On a number of occasions she became tired and was given breaks.
Counsel for the appellant's approach at trial
12 Counsel for the appellant at trial conceded that this was not a case where the opportunity to commit the offences was in question. The appellant gave evidence at trial acknowledging that the complainant had been to his house, that he had taken her to archery and marroning with him. As counsel for the appellant stated in his closing address:
Yes, he had the opportunity. There's no doubt that there was contact between the two of them - he admits that - and there would have been the opportunity for these things to have happened, but all he can say is that these things didn't happen.
13 The approach of counsel for the appellant at trial was to attack the complainant's credibility and point out inconsistencies between the complainant's evidence in examination and cross-examination, and between her statement to the police and her evidence at trial.
14 The evidence at the trial was heard over three days between 21 to 23 February 2005, during which the complainant's video evidence was played and seven other witnesses were called by the prosecutor. None of the seven other witnesses gave any direct evidence of the acts the subject of the charges. The appellant and his mother also gave evidence. The
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- judge summed up on 24 February which was the same day as counsels' closing addresses.
Grounds of appeal in respect of which the appellant seeks leave to appeal
15 The appellant's amended grounds of appeal are as follows:
1. The learned trial judge erred in law in that he failed to sum up adequately, or at all, in that:
a) he did not correctly identify the inconsistencies and lapses of memory and analyse any possible explanation for those inconsistencies in his summing up;
b) he failed to identify succinctly those pieces of evidence which were in conflict so that the jury's attention was focused on those factual issues which they had to resolve;
c) he failed to analyse the individual counts.
2. The learned trial judge erred in law in that when directing the jury as to the effect of inconsistencies in the complainant's evidence, his Honour emphasised that it was not a personal criticism and described the inconsistencies as 'so-called blemishes', which had the effect of detracting from the force of the direction.
3. The learned trial judge erred in fact in that his explanation for the inconsistencies in her evidence and lapses in memory, in cross examination, was attributed to the complainant's tiredness, when the inconsistencies and lapses in memory were primarily between an out of court statement and her evidence in chief.
Decision on grounds 2 and 3
16 I will deal with these two grounds first because they involve very short points. Ground 2 complains about the use of the word 'blemish' which the judge used in summing up when addressing the issue about inconsistencies and lapses of memory in the complainant's evidence which defence counsel had pointed out in his address to the jury. The appellant criticises this word as being too soft and diminishing the significance of the inconsistencies and lapses. That submission cannot be accepted. The word 'blemish' means to 'destroy the perfection of' or 'a defect': see Macquarie Dictionary. It is apt as a word to refer to inconsistencies or lapses which make a witness' evidence defective or imperfect. Similarly, his Honour's statement that he was not making a personal criticism of the complainant did not constitute an error of law or cause a miscarriage of justice. His Honour had instructed the jury, shortly before making that statement, that they would have to examine the
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- complainant's evidence carefully, and decide whether they were satisfied beyond reasonable doubt that she was honest and truthful, and reliable in her evidence. Ground 2 has no reasonable prospect of success.
17 Ground 3 alleges that the judge incorrectly said to the jury that tiredness explained inconsistencies and lapses in evidence-in-chief and cross-examination when in fact, counsel for the appellant was pointing out to the jury inconsistencies between out-of-court statements and evidence in court. This ground must be dismissed because the judge did not do what the ground alleges. His Honour first referred to the video-recorded testimony of the complainant and directed the jury that it could make its own assessment of whether or not the complainant became tired (particularly towards the closing stages of her evidence), this being a factor in the assessment of the complainant's testimony. Then his Honour later said:
You will recall that counsel who appeared for the accused at the pre-recording of the child's evidence referred to a statement the child had made to the police, and cross-examined the child on alleged differences between what she had said in the statement and what she said in evidence. You cannot act on the out of court statement made to the police as being the truth, not because it is necessarily unreliable, but because it was not sworn to in this court, and it's therefore not evidence of the truth of what was asserted.
The passages in the out of court statement were introduced into evidence for one purpose only. You, the jury, are entitled to compare what the child said in her statement made to the police out of court with the evidence that she gave on oath in court, and if you find them to be inconsistent, and materially so, for no good reason, you can judge her credibility accordingly.
18 Ground 3 has no reasonable prospect of success.
Ground 1
19 Most of the time at the hearing of the application was spent on this ground. The appellant sought to make two points. The first was to show that his Honour did not 'correctly' or 'succinctly' identify the inconsistencies and lapses of memory and analyse possible explanations for those inconsistencies in the summing up. On hearing the appellant's oral submissions it became clear that this was in truth an allegation that his Honour had not identified every inconsistency or lapse of memory which could be identified in the complainant's evidence. The second point was that his Honour failed to instruct the jury about the facts in relation to each count.
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20 I will deal first with the point alleging a failure to identify every inconsistency and lapse of memory which could be shown in the complainant's evidence. Judges have been accorded a wide discretion as to the extent to which direction should be put before a criminal jury with respect to the strengths and weaknesses of the parties' respective cases: R v H [1997] 1 Qd R 527 at 529.
21 However, there is an overriding requirement that the summing up be fair. In Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555, the High Court in a joint judgment said, at 560:
In a criminal trial, the distinction between directions on matters of law and directions on matters of fact or argument is fundamental. A trial judge is bound to direct the jury as to any principle of law or rule of practice applicable to the case, and a misdirection or non-direction on such a matter will usually mean that the trial has miscarried. But matters of fact and the arguments in relation to them are in a different category. A trial judge is not bound to discuss all the evidence or to analyze all the conflicts in the evidence and, by itself, [Reg v Ali Ali (1981) 6 A Crim R 161 at p 164] the failure of a trial judge to do so does not mean that there has been any miscarriage of justice.
22 In the joint judgment there was then a reference to a provision in the New South Wales Crimes Act 1900 which expressly stated that a Supreme Court or District Court judge need not summarise 'the evidence given in the trial' if it is not necessary, and it continued (at 561):
Nevertheless, the requirement of fairness means that ordinarily the respective cases for the prosecution and the accused must be accurately and fairly put to the jury. But that requirement does not oblige the judge to put to the jury every argument put forward by counsel for the accused [Reg v Lowery [No 3] [1972] VR 939 at p 948]. This Court has said that it 'is hardly necessary to say that as a reason for granting a new trial, after a conviction in a criminal case, it is not enough that the presiding judge has not mentioned to the jury all the matters which were set up on behalf of the accused as affecting probabilities' [Basto v The Queen (1954) 91 CLR 628 at p 637]. Whether the trial judge is bound to refer to an evidentiary matter or argument ultimately depends upon whether a reference to that matter or argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence [Reg v Matthews and Ford [1972] VR 3 at pp 15-16]. Consequently, the conduct of the case necessarily bears on the extent to which the judge is bound to comment on or discuss the evidence [R v Davies and Cody [No 2] [1937] VLR 226 at pp 236-237; Reg v Melville (1956) 73 WN (NSW) 579]. Discussion or comment which is justified or required in one case may be neither required nor justified when a similar case is conducted in a different way.
(Page 9)
- The foregoing statements are applicable to all criminal cases.
23 In Tully v The Queen [2006] HCA 56; (2007) 81 ALJR 391 at [46], Kirby J said:
The content of the instruction in a particular trial is ultimately determined by the judicial obligation to ensure that the accused secures a fair trial in accordance with law. This obligation requires the trial judge to put fairly before the jury the case which the accused has made or is entitled to rely upon in the evidence that has been adduced.
24 This was a short trial. There was no issue about the identity of the accused person and there was no dispute that the appellant had the opportunity to commit the offences. The appellant denied that he committed any of the offences and his case consisted of his testimony to that effect and the attack on the complainant's evidence, in an endeavour to persuade the jury that the complainant's evidence should not be accepted, or that the jury should be left in reasonable doubt about whether or not the offences had been committed.
25 When addressing the jury, counsel for the appellant carefully identified and pointed out inconsistencies or lapses in the memory of the complainant. While this was fresh in the jury's mind, and on the same day, the trial judge had the following to say in his summing up:
The state, of course, has relied upon the evidence of a single witness. That is the 12 or 13-year-old complainant as she now is …
When you carry out that examination of her evidence, you must of course take into account any blemishes which, in your view, exist in her testimony. When you come to consider what have been described as blemishes in her testimony, you should take into account the cross-examination of the complainant and the various criticisms of her evidence which have been made by counsel for the accused.
I will mention some of those alleged blemishes, but in doing so, I want to impress upon you that I am not personally criticising the child in any way. I am simply repeating, for your benefit, some of the criticisms that have been levelled at her which, in my view, you ought to consider in the performance of your ordinary task as jurors in this trial.
You will recall that counsel who appeared for the accused at the prerecording of the child's evidence referred to a statement the child had made to the police, and cross-examined the child on alleged differences between what she said in the statement and what she said in evidence. You cannot act on the out of court statement made to the police as being the truth, not because it is necessarily unreliable, but because it was not sworn
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- to in this court, and it's therefore not evidence of the truth of what was asserted.
The passages in the out of court statement were introduced into evidence for one purpose only. You, the jury, are entitled to compare what the child said in her statement made to the police out of court with the evidence that she gave on oath in court, and if you find them to be inconsistent, and materially so, for no good reason, you can judge her credibility accordingly.
Having said that, let me remind you of some of the passages in her evidence which it is said are inconsistent with the testimony she gave in court. Mr Young has carried out a detailed analysis of this particular aspect of the case, as indeed he had to do as defence counsel, and I will not carry out the analysis in such a detailed way. I simply want to remind you of some of the so-called blemishes in her testimony which you, as a jury, must consider.
- His Honour then went through all of the counts except count 1 mentioning by way of example some of the inconsistencies or blemishes in the complainant's evidence. It is quite true that his Honour did not identify and relate every instance where the complainant either could not remember something which she may have referred to in her witness statement made out of court and did not pick out every inconsistency which, in relation to the charges on which the appellant was convicted, were in the main, inconsistencies relating to peripheral matters rather than in relation to the evidence of the event constituting the offence.
26 The appellant has filed a schedule identifying evidence in relation to each count on which the appellant was convicted which is said to reveal defects in the complainant's evidence. For example, in relation to count 1, there were questions asked by counsel for the appellant at trial which produced answers to the effect that the appellant was either in the bus and the complainant then came in or, the complainant was in the bus and the appellant came in after her. There was some uncertainty in the complainant's evidence about whether or not the complainant's sisters and brother were inside or outside the bus at different stages. Counsel for the appellant at trial did not contend there were any inconsistencies in relation to the acts alleged to constitute count 1. Counsel in addressing the jury, did refer to the evidence regarding count 1 but all he referred to in relation to the evidence about the act itself were answers where the complainant said she could not remember how it 'came about' that cunnilingus was performed, how it 'came about' that the appellant stopped performing that act and what she did after the act was performed.
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27 It was not necessary for the trial judge to discuss in summing up, every inconsistency or lapse of memory listed by the appellant. The jury, having heard the evidence over just three days and the judge having made it clear to the jury that they could take into account the fact that there were inconsistencies in the complainant's evidence for the purpose of judging her credibility, would have been under no misunderstanding about what it should do. It is quite clear that the jury carefully examined the evidence in relation to each count. There were verdicts of guilty on some and verdicts of not guilty on others. For example, in relation to counts 1 and 2 which were alleged to have occurred at the same time, a verdict of guilty was returned on count 1 but not guilty on count 2. In relation to count 2, the complainant did not mention the acts constituting that offence until cross-examination and this was pointed out by counsel for the appellant at trial. The judge by giving his own examples and referring to the inconsistencies identified by counsel for the appellant, gave judicial indorsement to the submissions which had been made by counsel.
28 It is then necessary to consider the contention that the trial judge failed to analyse the evidence in relation to each count.
29 The appellant in this respect, points to the fact that his Honour in summing up, identified the existence of blemishes in the complainant's testimony and then analysed each of the counts from count 2 through to count 9, but said nothing in relation to count 1. It is true that count 1 was not mentioned when giving examples of blemishes in the complainant's evidence. However, as already mentioned, even counsel for the appellant had not identified significant blemishes in relation to count 1. Furthermore, count 1 was not ignored, even though it was not analysed at that point. Later, in summing up his Honour said when discussing the defence case:
He admitted taking the child on three individual trips to the archery centre in Boyanup. On the first occasion, he said that [the complainant's brother and sister] came, and that they went in the bus. He said both children slept inside the bus on that occasion.
30 His Honour therefore directed the jury to consider the 'first occasion' which related to the first two counts. His Honour then referred to the other counts and added that the appellant:
[D]enied emphatically the allegations of molestation … His defence in short is that while he had the opportunity to commit some or all these offences, he never took advantage of that opportunity, and never touched the child.
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31 His Honour directed the jury that they must bring in a separate verdict in respect to each count, that in doing so they were required to consider the evidence in relation to each count separately and that they must not reason that because they found the accused guilty or not guilty on one or more counts, he must necessarily be guilty or not guilty on the remaining counts. In the context of this short trial, taking into account the correct directions as to the law which were given and the fact that each of the members of the jury had a copy of the indictment, there was no error by the judge in failing to analyse every count in any more detail than he did.
32 Ground 1 therefore has no reasonable prospect of success.
33 As none of the grounds has any reasonable prospect of success, the application for leave to appeal must be dismissed.
34 BUSS JA: I agree with Pullin JA.
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