GBT v The State of Western Australia
[2009] WASCA 19
•22 JANUARY 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: GBT -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 19
CORAM: MARTIN CJ
PULLIN JA
LE MIERE AJA
HEARD: 22 OCTOBER 2008
DELIVERED : 22 JANUARY 2009
FILE NO/S: CACR 162 of 2007
BETWEEN: GBT
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :EATON DCJ
File No :IND 1416 of 2004
Catchwords:
Appeal - Conviction - Sexual offences against a child - Directions to the jury - Longman warning - Corroboration - Whether direction regarding 'uncharged acts' was correct - Whether directions regarding surrounding circumstances were correct
Legislation:
Criminal Appeals Act 2004 (WA), s 30(4)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr S W O'Sullivan
Respondent: Mr D Dempster
Solicitors:
Appellant: Ian R Farquhar & Co
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
AM v The State of Western Australia [2008] WASCA 196
Collard v The State of Western Australia [2008] WASCA 47
Cornelius & Briggs (1988) 34 A Crim R 49
Crisafio v The Queen [2003] WASCA 104; (2003) 27 WAR 169
Doggett v The Queen [2001] HCA 46; (2001) 208 CLR 343
Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555
Doney v The Queen (1990) 171 CLR 207
Hill v The Queen [2003] WASCA 177
HML v The Queen [2008] HCA 16; (2008) 82 ALJR 723
Kelleher v The Queen (1974) 131 CLR 534
Longman v The Queen (1989) 168 CLR 79
R v Berrill [1982] Qd R 508
R v Best [1998] VR 603
R v Grech [1997] 2 VR 609
R v Rayner [1998] 9 VR 818
R v Sadler [2008] VSCA 198
R v Taylor [2004] VSCA 98; (2004) 8 VR 213
RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620
WKD v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122
MARTIN CJ: I agree with Pullin JA.
PULLIN JA: The appellant was convicted before Judge Eaton and a jury of 28 counts involving sexual offences against a child. The appellant appeals against his convictions. The offences occurred over a 10 year period between January 1991 and January 2001 on seven children aged between 6 and 15 years. One of the complainants was his daughter L and the others were her friends.
The offending occurred whilst the appellant lived with his ex‑wife. The appellant's wife was a shift‑worker who worked weekdays from the afternoon until late at night and who would often be absent from the family home from just before or after the children finished school until after the children went to bed at night. During the time his wife was absent, the appellant's two daughters were under his care. Friends would come to play or to sleep over. During these periods the appellant engaged the children in games which involved close physical contact. Many of the incidents involved a form of 'chasey' with rules set by the appellant where the children would run from the appellant and when a child was caught, the appellant would deal with the child in a particular way.
Counts 1, 3, 4, 10, 12, 14, 18 and 25 involving the appellant's daughter L (indecent dealing offences)
L was born in June 1984. The first incident occurred when the complainant, L, was 6 years old and the final count when she was 15 years old. In relation to count 1 the appellant was playing the game mentioned above with L and her friend B. The indecent dealing involved pulling the complainant's knickers down and smacking her on the bottom repeatedly. The complainant said she could feel the appellant's erect penis on her vagina as this occurred. In relation to count 3, the complainant was told to lie on her stomach on a bed. The appellant lay on top of her and slid up and down so that his erect penis came into contact with the bottom of her vagina. The appellant called this 'the squash'. Count 4 involved the same behaviour. Count 10 involved an incident where L and her friend B had been playing chasey with the appellant and had been hiding in a cubby house outside. According to the rules of the game set by the appellant, this was out of bounds. When the appellant found the girls, he took L to his bedroom and performed 'the squash', rubbing his penis on the outside of her vagina. Count 12 involved L and her friend N. L and her friend had been playing with dolls. Her father entered the room and began tickling the girls; then a game of chasey began. When her father
caught L he pulled her pants down and smacked her on the bottom. As he did so he touched her on the bottom of her vagina.
Count 14 involved L and her friend LF. They had been playing chasey with the appellant and as 'punishment' when he caught the girls he administered what he called a 'typewriter', during which he sat astride L with his penis in close proximity to her face and tapped with his fingers on her chest. L was 14 at the time of this incident. Count 18 involved L and her friend K. They were in L's bedroom when the appellant entered the room and began tickling L. He then lay on top of her and rubbed his penis on her vaginal area. L was 15 at the time. Count 25 involved exposing his penis to L when she was sitting in the family lounge room. L was 15 at the time.
Counts 2, 5, 6, 7, 8, 9 and 11 involving B (indecent dealing offences)
B was born in June 1985. The first time these incidents occurred, B was 6 years old. Count 2 followed a game of chasey with the appellant and L. The indecent dealing involved seating B on his lap and smacking her on the bottom repeatedly. The complainant said she could feel the appellant's penis make contact with her vagina on the outside of her underpants as he smacked her bottom. Counts 5, 6, 7, 8 and 9 involved the appellant administering the 'squash' to B, rubbing his erect penis on her back. The appellant ejaculated on B's back in the case of count 7 and 9. Count 11 occurred on the same day and about the same time as count 10 in relation to L. Count 11 involved the appellant taking B to his room, rolling her onto her stomach on the bed and rubbing his erect penis on her lower back. This occurred when B was 7 years old and was the final incident involving B.
Count 13 involving R (indecent dealing)
Count 13 involved L's friend R. R was born in February 1984. She was 10 years of age at the time of the incident. After a game of chasey, the offence involved smacking R on the bottom. The appellant positioned her over his lap, bringing his penis in contact with her genital area as he smacked her.
Count 15 involving LF (indecent dealing)
LF was born in December 1984. Count 15 involved L and her friend LF as described in count 14. The girls had been playing chasey with the appellant and as 'punishment' he administered a 'typewriter', during which he sat astride LF with his penis in close proximity to her face and tapped with his fingers on her chest. LF was 14 years of age.
Count 16 involving RA (indecent dealing)
Count 16 involved RA, another friend of L. RA was born in July 1983. She had stayed at the appellant's home overnight for a sleepover. He indecently dealt with her by kissing her on the lips in the laundry. She was 16 years old at the time and under his care, supervision or authority.
Count 17 involving N (indecent dealing)
Count 17 involved L's friend N. N was born in September 1985. She was the twin sister of another complainant, K, but was not a close a friend of L. She had stayed overnight on a sleepover. She was caught whilst playing the chasey game. The appellant indecently dealt with N by pushing her onto his daughter D's bed, on her back, lying on top of her and rubbing his penis on her vagina. N was then 14 years old and under his care, supervision or authority.
Counts 19, 20, 21, 22, 23, 24, 26, 28 and 29 involving K
Counts 19, 20, 21, 22, 23, 24, 26, 28 and 29 involved K. K was born in September 1985. Six of these offences (counts 19, 21, 24, 26, 28 and 29) involved sexual penetration of the complainant's vagina with the appellant's penis. K became a close friend of L when she was in year 9, and would often sleep over and play at the appellant's home. The offences occurred when K was 14 or 15 years of age. K was under the appellant's care, supervision or authority. Count 19 occurred when the appellant's wife and L went to Hungry Jack's to get a takeaway for the evening meal. The appellant and K were alone in the house. The appellant took K to his bedroom, removed his clothes and pulled her pants down. She asked him to stop and described feeling scared. He penetrated her vagina with his penis until he ejaculated. She described the penetration being painful and bleeding from the vagina afterwards.
On the occasion of count 20, K was staying at the appellant's home overnight. The appellant walked into the bathroom whilst K and L were showering together. The appellant indecently dealt with K by opening the shower curtain and squeezing K's vagina. Count 21 occurred when K got out of the shower, whilst L was still showering. She went to L's bedroom to get changed. While she was there naked, the appellant walked in, pushed her back onto L's bed, removed his shorts and penetrated her vagina with his penis. She asked him to stop. He desisted when L turned off the shower.
Count 22 was a count of intentionally showing offensive material to a child under the age of 16 years. The appellant took K and L to a video store to select a video. He told them to pick a pornographic video, which they did. They returned to the house where the appellant and the two girls watched the video. Count 23, another count of indecent dealing, occurred after the video was played. The appellant began the chasey game with K. When he caught her he rubbed his penis with her hand on the outside of his pants. Count 24 occurred later that evening. The appellant entered the room where K and L were sleeping and proceeded to have sexual intercourse with K by penetrating her vagina with his penis. Again, she said she asked him to stop and felt scared.
Count 26 occurred when L was in hospital. The appellant collected K from her home with the intention of taking her to visit her friend. On the way, the appellant stopped at his home on the pretext of having a shower. K was watching television, waiting for him. He emerged from the shower naked and pushed her onto the lounge room floor. He penetrated her vagina with his penis. He ejaculated on that occasion. The penetration, she said, hurt and made her bleed. She was screaming and asking him to stop and he ignored her.
Count 28 occurred on an occasion when K was in the shower alone at the appellant's home. The appellant walked into the bathroom and inserted his fingers into her vagina.
Count 29, the final count, occurred when K was in L's bedroom getting changed. The appellant came into the bedroom and asked her to lie on the bed. She refused. The appellant forced her onto the bed and penetrated her vagina with his penis until he ejaculated. She was 15 years old at the time. Again, she said that the penetration hurt. She said that she did not return to the house following that event.
Count 27
Count 27 also involved K. It was alleged that the appellant entered the room where K and L were sleeping and sexually penetrated her by placing his penis in her mouth. The appellant was acquitted of this charge.
Grounds of appeal
There are five grounds of appeal. The grounds in abbreviated form are as follows:
(a)the Longman warning given by the trial judge was not in strong enough terms (ground 1);
(b)directions given by the trial judge about corroborative evidence were in error (ground 2);
(c)the trial judge erred in failing to identify what evidence was 'available for consideration upon each count' (ground 3);
(d)the trial judge 'failed to identify for the jury what use they could make of evidence concerning any one count in the indictment upon the consideration of any other count' (ground 4);
(e)in the circumstances, the appellant was denied a trial according to law (ground 5).
Longman warning - ground 1
The first of the offences was said to have taken place in January 1991 when L was 6 years old and the last of the offences was said to have occurred in January 2001. All of the complainants were, as mentioned above, aged between 6 and 15 years of age. The trial was in 2007, although the complainants gave their evidence in 2006. This is because the complainants gave their evidence in a 2006 trial which was aborted for reasons which are irrelevant. At the 2007 trial, it was agreed that the evidence of the complainants given in 2006 could be received as the evidence in the 2007 trial.
The trial judge considered that the long period of time which elapsed between the commission of the offences and the complainants giving evidence required a Longman warning to be given (Longman v The Queen (1989) 168 CLR 79). The warning was given twice by his Honour. The warning was repeated because of submissions which were made by counsel in the absence of the jury. The first Longman warning (ts 1572 ‑ 1576) was preceded by a direction about corroboration and because it is the subject of the second ground those parts of the trial judge's directions containing the corroboration direction and the Longman warning are set out in full. They read as follows:
You may be assisted in your fact finding, by finding evidence that corroborates other evidence.
Corroboration is a legal term. Evidence which corroborates is generally speaking evidence said to be independent, which tends to confirm or support evidence given by a witness, so evidence independent of the witness which tends to confirm or support the witness's testimony. You don't need to find corroboration in order to convict [GBT] on any count in this indictment, corroboration is not required as a matter of law.
You can rely upon the truthfulness and accuracy of any one of these complainants if you find them to be truthful and accurate, but corroboration may assist you, because it may serve to support or confirm evidence that another witness has given. The state says that you may find that there's corroboration with respect to several counts. Take the case of count 11, for example. In that count, [B] recalls that there was an event when she and [L] were in the backyard of the [GBT's] house and were hiding in the cubbyhouse.
Count 10 is an allegation that arises from that circumstance. [GBT], himself, said that there was an occasion when he found them in the cubbyhouse. He had been looking for them and was angry when he found them there because they weren't supposed to be in the backyard. [B] said of that event, that it was at the beginning of 1992, when she was six years old. They were hiding outside because they didn't want to play chasey again. She said that [GBT] looked really angry and she was scared.
[GBT] says that he gave [L] a lecture about bringing dirt into the house and that [B] went home. [B] said that he took [L] into his bedroom. [L] said that he was annoyed at her and looked at her in an angry way. She told him that she was sorry. She said that he took her into his bedroom, and having closed the door, told her to lie on her stomach. She said that he came from behind and that he did the squashes. She could feel his hard penis against the back of her vagina and that he did it in two lots of 10.
After that, she said the she went to the lounge room and [B] went into the room with her father. She waited until [B] came out. [B] said that in the bedroom he did the typewriter on her quite roughly and quickly and that he then rolled her over onto her stomach, pulled her knickers down and rubbed his erect penis on her lower back. She looked and saw him with his hankie, she said, over his penis. Afterwards, she went home next door, crying.
Her mother noticed her distress and asked her what was wrong. [B] said that she told her mother [L] had been mean to her and had pinched her and that she didn't want to be there any more. [G], [B]'s mother, recalled a time when [B] came home crying and complained that [L] had pinched her. She said that [B] was six years old at the time and in year one at school. I would imagine, having regard to that evidence, that there can be little doubt that there was an occasion when [B] and [L] were hiding in the cubby house, and when [GBT] was angry at them for doing so, and when [B] came home distressed.
The evidence of both [B] and [L] would therefore appear to be reliable in that regard. Both tend to support the proposition that each was individually taken into [GBT]'s bedroom. [GBT] denied that he did so, and denies the allegations in counts 10 and 11. In each count, proof of what happened in the privacy of the bedroom, rests upon the evidence of [L] and [B], respectively, not together, but on each of them as to what they said happened in that bedroom.
If you're not satisfied beyond reasonable doubt as to their respective truthfulness or reliability in that regard, then I expect that you would return verdicts of not guilty on each. Each, however, does tend to confirm or support that the other was taken into the bedroom, so there may be corroboration to that extent. Of course, the defence contention is that the coincidence of their evidence in this regard is either the result of collaboration or suggestion by the detective in the course of her investigation.
If you were to reject that contention, you may find that the corroborated evidence leads you to conclude that each was taken into the bedroom. [GBT] said that he gave [L] a lecture about being outside and that [B] went home. Clearly, there is there a matter of fact for you to resolve. Mr Huggins suggested to you that there were other events where you might find there was corroboration.
You need to be quite clear about the extent to which one piece of evidence corroborates another, if at all, because of course in that example that I have just given you, you might find that there's corroboration by [B]'s mother as to her distressed state when she came home and complained that she had been pinched. You might, by inference, conclude that we're talking about the same day where they were discovered hiding in the cubbyhouse. There can be no doubt, I would have thought, on the evidence, that they were hiding in the cubbyhouse and that [GBT] found that they were, that they were in the backyard, and he was angry about it, and each says that the other was taken into the bedroom. Each wasn't in the bedroom, and so ultimately, the act complained of in the indictment, relies upon the evidence of each complainant.
So the corroboration only gets you so far. It gets you to the door of the bedroom, perhaps, depending upon what you make of it, but it doesn't get you inside the bedroom. As I say, if you were to reject the defence contention that there was some degree of collaboration or concoction or suggestion (indistinct) then you might find that the evidence which I have outlined tends to corroborate what each of [L] and [B] have said in a material way in the sense that it tends to lend support or confirmation to it.
But come back to definition which I spoke of earlier. I spoke of independent evidence. Now, it is the case that in talking about [B]'s mother, [G], she is the mother, true. That doesn't mean to say that her evidence isn't independent in this regard. Everyone has taken an oath or made an affirmation to tell you the truth, the whole truth and nothing but the truth, and that question of independence has to be looked at.
The defence says, 'Well, hang on, this might be an area where there has been concoction or suggestion'. So be wary of all those aspects. But there does, having regard to the evidence of [GBT] himself, tend to be some support for the proposition that an event which had its genesis in hiding in the cubbyhouse did occur, but it only gets you so far.
When you are considering other areas of suggested corroboration, you need to be acutely aware of just what it proves and what it doesn't prove. The state asks you to accept each of the complainants as witnesses of truth. You must be satisfied beyond reasonable doubt as to the truthfulness of the complainant concerned and, I would have thought, the accuracy of the complainant concerned, before you could convict [GBT] on any count.
You should scrutinise their evidence carefully before you do so, if you do so. Please bear in mind that some of the matters complained of in the indictment are said to have occurred quite a number of years ago. For example, count 1 is said to have occurred between 29 January 1991 and 7 June that year. The most recent allegation is limited to the period in the latter half of 2000 and the early part of 2001, so we're talking about the most recent events which occurred some six and a half years ago and, at the longest, probably some 16 or 17 years ago.
Some complainants did not, as we have heard, tell anyone about these matters until years later. You might infer in this case that these matters were not brought to the attention of police until [K] made contact with police at the beginning of 2004 at the earliest. Her doing so, it seems, set the ball rolling, so to speak, and Detective Foxton, following her investigation, then spoke with all seven complainants and others as the investigation widened.
The passage of time since these alleged events are said to have occurred may have affected the recollection of events, as sometimes happens. An honest witness can be wrong in his or her recollection. Because complaint of these events was made several years later, the passage of time may have affected people's recollections of the events and the surrounding circumstances.
[GBT] has, to some degree, lost the benefit of more precise recollection. which would perhaps have been available to him had complaint been made at the time. It appears that both prosecution and defence may have been hampered in that regard. For example, the records of the Video Ezy store at South Lake were destroyed when they changed their computer system.
The diaries and exercise books and the letter written by [K] to [FE] have all disappeared in that they have been thrown out or lost. You can't guess or speculate as to whether or not, had they been here, they might have supported one side or the other. The fact of the matter is they're not here and they're not here by reason of the effluxion of time by reason of complaint having been made late in the piece, and that has to a degree hampered, as I say, in this case both the prosecution and the defence, but the prosecution, as I said earlier, has vast resources available to it.
[GBT], by comparison, does not, so you might think that the impact upon him is considerably greater. As mentioned earlier, there may be good reason why a child might refrain from making complaint about such matters for many years. Because of the effluxion of time, you should take particular care when considering the evidence of the complainants before arriving at a conclusion of guilt on any count, if you indeed do so.
I'm not suggesting that you can't convict on the evidence of any one of the complainants alone. Clearly you can if you are satisfied as to her truthfulness and reliability to the required standard. You should, however, when considering their evidence, have regard to the matters that I have just mentioned, and scrutinise their evidence with great care.
After submissions from counsel, and on the next day, his Honour said at ts 1644 to1647:
Now, yesterday I spoke to you about corroboration and I said to you that corroboration is independent evidence which tends to support or confirm evidence given by a witness. I wanted to revisit that today briefly. Now, I gave you the example I think when dealing with corroboration of the event involving the cubbyhouse. Corroboration is or has to be independent evidence but it must be evidence which connects or tends to connect the accused with the offence charged. It must be evidence which implicates him, that is which confirms in some material particular not only the evidence that the offence has been committed but that the accused committed it.
Corroboration need not be direct evidence of the participation of the accused. Nor must it confirm the whole of the particular event that is the subject of testimony at any particular time, provided that it makes the material aspect of the testimony more likely than not to be true in some, as I say, material way to the charge. In the case of the example that I gave you yesterday, I suppose where the evidence becomes corroborative in the commission of the offence, if it does at all and it's a matter for you whether it does, is where there's a divergence in the evidence between what [GBT] says and what the two girls said about what happened.
Clearly there's a convergence in the evidence, there seems to be confirmation about the event involving the cubbyhouse and the event in - the fact that [GBT] was not happy, angry in fact. He said so himself. He referred to those aspects of the matter. Where the divergence occurs is where he says, 'After they were admonished or after I admonished one of them, I think it might have been my daughter [L], that was the end of the matter.' He might have said that one went home, he thought perhaps went home. They say of course, no, one went into the bedroom and the other one says then the other one went into the bedroom. So there's a tendency there to corroborate the entry with [GBT] of the two children into the bedroom.
That, depending on what you make of it, might well serve to indicate [GBT] in the commission of the offence. Although it doesn't actually prove the offence because proof of the offence depends upon what happened in the bedroom and there were only two people in the bedroom, the complainant and the accused, if they were there at all. That's a matter of fact for you. You may not even accept that they even went into the bedroom but you need to be aware of what can and can't amount to corroboration. You need to be careful when looking at evidence that might be corroboration. Does it, you should ask yourself, tend to connect the accused with the offence charged? Does it do that in some material way, material to the actual commission of the offence? Does it tend to confirm not only the evidence of the commission of the offence but also that it was the accused who committed it?
Now, I gave you a warning also yesterday which related to the effect of the effluxion of time upon the - upon this matter and this trial. This trial is dealing, as I said yesterday, with events that occurred in some cases many years ago, the first events complained of in the indictment are in the very early 1990s. The more recent events are in the early part of this decade.
But it is the case, as I said to you yesterday, that the passage of time can have two effects. (1) quite obviously it can have an effect on a person's ability to recall events, depending on how long that passage of time is and secondly it can have an effect on the availability of evidence which might tend to prove or disprove an allegation that has been made.
In this case we are talking about the recollections of people as adults about things that happened when they were children and we are also talking about, as you've heard, information which has disappeared which might in fact hamper both sides of the divide in this case. The nonexistence of video records, the non‑appearance of exercise books and diaries and so on might well be a problem or might hamper, as I say, both the prosecution and the defence but it's certainly something of a difficulty for someone who is defending themselves. [GBT] is.
As I say, the state by comparison has enormous resources available to it. I said to you in the course of talking about these matters that you can undoubtedly convict on the uncorroborated evidence of any one of the complainants in this case. Corroboration is not required as a matter of law at all but having regard to what I said about the effluxion of time and its impact upon a person's ability to defend themselves I did say to you that you need to take particular care when considering the evidence of any one of the complainants before arriving a conclusion of guilt on any count.
As I say, that's not to say that you can't convict, clearly you can on the evidence of any one of the complainants alone. It may be, talking about corroboration, that you might look for corroboration in relation to offences that occurred many years ago. You might do simply because of that effluxion of time that I spoke about to see whether there is evidence which tends to confirm or support in a material way which tends to implicate the accused in the commission of the offence.
It's not necessary as a matter of law that you do so but it might be sensible in the context of this case if you didn't carefully scrutinise the evidence of the complainants in particular then it might be unsafe to convict. You need to be very careful in going about your task. Corroboration may assist, that may be in the form of the evidence of another witness, bear in mind that corroboration needs to be independent evidence so of course you have got to exclude, as Mr O'Sullivan has put to you, the possibility that there might have been concoction or collaboration because that would destroy the independent quality of evidence if there was.
Equally, if there was infection in the form of suggestion, repeatedly by a detective to a series of potential witnesses which produced a similarity of evidence then that would tend to mitigate against the independence of anything that might otherwise be corroboration. So please be wary of those factors, you don't need to look to corroborate the evidence of any particular complainant but it might be sensible to do so with - particularly with respect to the earlier charges simply because they involve the recollections of children who were, I think at the time, around about five or six years of age.
This is not a case like Doggett v The Queen [2001] HCA 46; (2001) 208 CLR 343, where no Longman warning was given and the majority held that one should have been given. This case is about the quality of the warning which was given. The short point made by the appellant in oral submission was that the Longman warning was not a 'strong' enough, not 'emphatic' enough and too 'weak'.
The reference to a Longman warning is a reference to what was said by Brennan, Dawson and Toohey JJ in Longman v The Queen (1989) 168 CLR 79, 91. The High Court in that case was dealing with s 36BE(1) of the Evidence Act 1906 (WA) which dispensed with the requirement to warn of the general danger of acting on the uncorroborated evidence of alleged victims of sexual offences as a class. The court said that this did not in any way affect the requirement to give a warning whenever necessary to avoid a perceptible risk of miscarriage of justice arising from the particular circumstances of the case. Brennan, Dawson and Toohey JJ, after referring to the fact that in that case more than 20 years had passed since the offences were committed; that had the allegations been made soon after the event it would have been possible to explore in detail the alleged circumstances attended upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant's story or confirming the accused's denial. Their Honours said:
The fairness of the trial had necessarily been impaired by the long delay (see Jago v District Court (NSW) [(1989) 168 CLR 23, pp 31 ‑ 32, 42 ‑ 49, 50 ‑ 57, 71 ‑ 72]) and it was imperative that a warning be given to the jury. The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice. The jury were told simply to consider the relative credibility of the complainant and the appellant without either a warning or a mention of the factors relevant to the evaluation of the evidence. That was not sufficient. (91)
Deane J referred to the need in that case for a specific warning 'about the need to scrutinise the complainant's evidence with great care and caution before convicting the applicant on the basis of it alone' (102). McHugh J referred to the need for a 'warning' (albeit a 'strong' warning) in the particular circumstances of that case and that the jury should have been warned that 'in evaluating her evidence, they had to bear in mind that it was uncorroborated' (108). McHugh J listed the factors which should have been drawn to the attention of the jury in that case. His Honour then said to what extent these matters needed elaboration or a consequential warning that it would be unsafe to convict on such uncorroborated evidence was 'very much a matter for the trial judge' (109). McHugh J saw the failure to give 'any' warning as meaning that the conviction must be regarded as unsatisfactory.
In this case, the trial judge considered that the primary factor requiring warning was the long effluxion of time between the commission of the offences and the complainants giving their evidence. His Honour also said that the jury should be wary because the recollections were of persons who were children at the time of the offences (1646). As to the latter point, Wheeler JA in Collard v The State of Western Australia [2008] WASCA 47 referred to authorities, including High Court authority, and warned against stereotypical assumptions about the ability of children to recall events and that a warning may be required only if there is something in the facts of the case (some factor in addition to the complainant's age) which suggests that a complainant's age at the time of the offences has impaired his or her ability to recall relevant matters accurately. See [68]. In this case there is the additional factor, namely the effluxion of time.
In the passages set out above, his Honour said that he was giving the jury a 'warning' (1646). He referred to 'the effect of the effluxion of time' (1646); that this would 'have an effect on a person's ability to recall events'; that it would have an effect on the availability of evidence to disprove an allegation and that 'if you didn't carefully scrutinise the evidence of the complainants in particular then it might be unsafe to convict' (1646). In the earlier part of the direction he referred to the fact that the events occurred between 'six and a half years ago' and '16 or 17 years ago' (1575); that some complainants did not tell anyone about these matters 'until years later'; that the passage of time can have the effect that 'an honest witness can be wrong in his or her recollection' (1576); that the appellant had to some degree lost the benefit of precise recollection which would have been available to him if complaint had been made at the time of the offence (1576); that evidence for example of certain relevant diaries and exercise books and a letter written and referred to in the evidence had disappeared and hampered the parties but that the impact upon the appellant was considerably greater than the impact on the prosecution with its 'vast resources' (1576). He said that the complainants' evidence should be scrutinised 'with great care' (1576) and that although the jury could convict without corroborative evidence 'it might be sensible in the context of this case' and that 'if you didn't carefully scrutinise the evidence of the complainants it might be unsafe to convict' (1646).
In my opinion, these directions described by the judge as a warning, did identify the matters which the jury had to be warned about. It is true, as counsel for the appellant said, that many more examples of lost evidence could have been given. Thus, the trial judge could have said that evidence had been lost about whether or not there was blood on a bed or on the floor after two of the penetration cases. However, as McHugh J said in the Longman case, precisely what particulars were given by the trial judge in the course of the warning, were matters for the trial judge. There is no particular formula or prescribed set of words which have to be used and nor does the word 'dangerous' have to be used. See AM v The State of Western Australia [2008] WASCA 196 [128] (Miller JA); Crisafio v The Queen [2003] WASCA 104; (2003) 27 WAR 169 [27] (Murray J, Malcolm CJ & Parker J agreeing). What is necessary is that the jury understands by a warning appropriate to the particular case the difficulty the accused faces and the risk of a miscarriage of justice if uncorroborated testimony forms the only basis of conviction.
The appellant complained that the use of the word 'might' in the phrases 'might be sensible' to look for corroborative evidence and 'might be unsafe to convict' made the warning too 'weak'. In my opinion, the combined effect of the warning and its repetition were sufficient to make the jury fully conscious of the disadvantage the appellant was under, of the risk of a miscarriage and of the strong desirability (but not the requirement) of looking for corroborative evidence.
This ground should therefore be dismissed.
However, before moving on to the next ground, I should mention one aspect of the trial judge's direction which is not the subject of any ground of appeal but which was undesirable. His Honour said that the effluxion of time had 'to a degree hampered … both the prosecution and the defence'. His Honour then went on to say that the impact upon the appellant was 'considerably greater' than the impact on the prosecution. In my opinion a trial judge should not refer to the impact of delay on the prosecution case. Such a direction may encourage the jury to think that perhaps the case would have been much stronger if there had not been such delay. The onus is on the prosecution to prove its case whatever the difficulties it might face. The accused is presumed to be innocent. The only warning to be given is a warning about the impact on the accused. The jury should not be distracted by irrelevant references to practical difficulties that the prosecution might have. In this case, having mentioned the point, the trial judge then stressed the particular disadvantage which the appellant faced and so there was no miscarriage of justice.
Ground 2: corroboration
In the course of his Honour's summing up, his Honour said (ts 1644):
Corroboration is or has to be independent evidence but it must be evidence which connects or tends to connect the accused with the offence charged. It must be evidence which implicates him, that is which confirms in some material particular not only the evidence that the offence has been committed but that the accused committed it.
His Honour also said (ts 1572) that 'Corroboration is a legal term'. With respect, it is not in the context of a Longman warning, a legal term, but a word of ordinary meaning. However, the fact that the judge said that it was a legal term led to no miscarriage (and there is no ground of appeal suggesting this was so). It is true that there was at one time a rule of practice that in relation to sexual offences, a person could not be convicted unless the evidence of the complainant was corroborated: Kelleher v The Queen (1974) 131 CLR 534. A body of law built up about what evidence amounted to corroboration. Thus in 1982 in R v Berrill [1982] Qd R 508, McPherson J said:
As far as this court is concerned, the requirement that there should be corroborative evidence going to each element of the offence of rape, and, in particular that of absence of consent, is concluded by the decisions of the Privy Council in Chiu Nang Hong v Public Prosecutor [1964] 1 WLR 1382 and James v R (1970) 55 Cr App R 299. (522)
The requirement for corroboration in sexual cases has been negatived by legislation. The word 'corroboration' when now used by a judge giving a Longman warning about the dangers or risks of injustice if the jury convicts in the absence of corroboration is not using the word in some technical legal sense, but in its ordinary meaning. In its ordinary meaning, the word means 'to make more certain' or to 'confirm' (The Macquarie Dictionary, 2nd ed, 1981). His Honour gave an example of 'corroborative' evidence by referring to counts 10 and 11. In that case, two of the complainants had been in the cubby house and the prosecution case was that the appellant took the complainants, one at a time, into the bedroom and committed indecent acts on them. The evidence of both girls was that L was taken in first and when she was let out of the bedroom, B was taken in. The appellant denied that they were taken into the bedroom. Thus it was a material issue about whether the girls were taken into the bedroom and the evidence of B corroborated L's evidence in that regard in relation to count 10 and L corroborated B's evidence in that regard in relation to count 11.
The appellant's main point on this ground using this incident as an example was that the evidence that the complainant was taken to the bedroom by the appellant was not 'corroborative' evidence but was 'supportive' evidence only. The appellant submitted that corroborative evidence had to be 'material' and by this the appellant seemed to submit that evidence was not corroborative unless it proved or tended to prove one of the elements of the offence in question. This is similar to the submission made in R v Taylor [2004] VSCA 98; (2004) 8 VR 213 where an accused was charged with three counts of committing indecent acts with a child under the age of 16. The complainant was a daughter of a friend of the accused's wife and regarded the accused as a friend and a person to be trusted. In the period between the events the subject of the first two counts, and the events the subject of the third count, the accused made regular and frequent telephone calls to the complainant and visited her at her home in the absence of her parents. The judge in Taylor's case directed the jury that the evidence of the telephone calls and the visits by the accused to the complainant's house was in effect corroborative evidence of the complainant in relation to count 3. The accused was convicted and then appealed to the Victorian Court of Appeal contending that the trial judge erred in this direction because the evidence was not corroborative. Winneke P said that corroborative evidence did not have to be evidence or material which replicates the evidence to be corroborated [12]. The President referred with approval to a comment of Brooking JA in R v Rayner [1998] 9 VR 818, 851 that '[corroboration does] not require the corroborator to be a "fly on the wall": what is needed is "independent testimony" which affects the accused by connecting or tending to connect him with the crime'. See also Doney v The Queen (1990) 171 CLR 207, 211.
The evidence which was held to be corroborative in Taylor's case, is similar in quality to the evidence mentioned as corroborative by the trial judge in this case in the sense that in neither case did the evidence directly prove an element of the offence. His Honour made it plain that the evidence of the two complainants in relation to counts 10 and 11, did not confirm that sexual acts occurred within the bedroom but it did corroborate the evidence of the other complainant in each incident that they were taken to the bedroom by the appellant. The trial judge explained that this did not corroborate the other girl's evidence that a sexual act occurred in the bedroom.
In my opinion his Honour did not err in explaining that the jury could take into account evidence corroborative of a complainant's evidence in relation to relevant events. It was relevant that the complainants were taken from the cubby house to the bedroom. That evidence was corroborated, ie 'confirmed' by evidence of one of the other girls and it was appropriate for the trial judge to give that example. His warning in effect that the jury should look for corroborative evidence before convicting still kept its full force.
In my opinion, ground 2 should be dismissed.
Grounds 3 and 4
Ground 3 reads:
The learned trial judge erred in law in that he failed in the circumstances of the trial to identify for the jury the evidence available for consideration upon each count in the indictment.
Ground 4 reads:
The learned trial judge erred in law in that in a trial in which evidence was led pursuant to s 31A of the Evidence Act 1906 he failed to identify for the jury what use they could make of evidence concerning any one count in the indictment upon the consideration of any other count.
Counsel for the appellant said that 'ground 3 … overlaps with ground 4'. He also said that what he had to say could 'reasonably be put together on them'.
The trial judge summarised in detail the evidence given by each complainant (with the exception of the evidence of complainant K), in relation to each of the counts in the indictment (with the exception of counts concerning K). The trial judge also summarised the evidence of the appellant. In the case of K, who had been the last to give evidence, and therefore whose evidence was likely to have been freshest in the mind of the jury, the foreman of the jury informed the trial judge that it would not be necessary to provide such a summary in relation to K's evidence. The trial judge explained that evidence of 'uncharged acts' was given, but he did not describe that evidence.
Counsel for the appellant explained that by these grounds the appellant complained that the trial judge erred in failing to describe in relation to any one count how the evidence of uncharged acts and evidence of other counts could be used by the jury.
The law is clear. A trial judge has a duty to put the respective cases of the prosecution and the accused to the jury in a fair and balanced way: Cornelius & Briggs (1988) 34 A Crim R 49, 65; Hill v The Queen [2003] WASCA 177 [85]. 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 the trial judge is not bound to discuss all of the evidence or even to analyse all of the conflicts in the evidence: Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555, 560 ‑ 561 and Hill v The Queen [85]. See also RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 [41] ‑ [42].
In his written submissions, the appellant said it was 'particularly vital for the trial judge to identify for the jury what evidence was available on what charge and indeed, the standard of persuasion to be reached before evidence on any one count could be used against the appellant in any other count. This was not done', and further that 'A propensity warning, which was given, only serves to confuse the issue'.
Uncharged acts
It is true that not only was there evidence given by the individual complainants about the conduct which became the subject of the individual counts, but there was also evidence of other sexual conduct which was not the subject of any count and which was referred to by his Honour as 'uncharged acts'. (As to the undesirability of using that phrase before a jury see HML v The Queen [2008] HCA 16; (2008) 82 ALJR 723 [492]). In relation to the uncharged acts, his Honour gave the warnings required concerning such evidence, that is, directed them not to substitute that evidence for evidence of the offences charged and to warn them against reasoning that because the accused engaged in other misconduct, he was the kind of person who is likely to have committed those offences. See R v Grech [1997] 2 VR 609 referred to in R v Best [1998] VR 603, 615 which was in turn cited with approval in WKD v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122 [129]. In view of the fact that there were uncharged acts, it was appropriate to warn the jury that it should not reason that because the accused engaged in other misconduct, he was the kind of person who was likely to have committed those offences.
Speaking about uncharged acts in relation to the complainant N the trial judge said (ts 1569 ‑ 1570):
It is the prosecution case that the acts complained of in the indictment were not isolated incidents and that the evidence led of other matters was led by the state to establish that the events complained of in the indictment were more of a pattern of behaviour which involved sexual molestation of [L] and some of her school friends by [the appellant].
It was said that the evidence would tend - that is the evidence of uncharged acts, would tend to confirm the true nature of [the appellant's] intentions in playing the game with the complainants. It is the case, for example, that [N] gave evidence of an event that occurred at [GBT's house] … not long after her fourteenth birthday.
… It along with evidence of other uncharged acts, and there are others, is led to establish the general inappropriateness of [the appellant's] treatment of the children who came to the house and to demonstrate that the events complained of in the indictment were not the only events. They weren't isolated - there weren't just 29 - but, rather, they were part of, as I said earlier I think, an established pattern of behaviour.
However, the trial judge then said:
Now, whether they do or not is a matter for you to judge. If you were to be satisfied that that event in the case of [N] did in fact occur, you could not thereby conclude that the other acts which are charged in the indictment did also occur. It's not evidence which lends itself to proving the charged acts in the indictment.
What proves those acts is the evidence of [N] in relation to those acts. If you accept, though, her truthfulness as to [GBT's] treatment of her on that occasion of the uncharged act, and that he behaved that way for a sexual motive, and you conclude that the allegations were not the product of concoction in concert with other complainants or collaboration or suggestion by the detective, then you may more readily accept [N's] evidence as to similar activity, which are the subject of charges in the indictment.
The same applies with respect to any other complainant who has given evidence of other uncharged acts of sexual interference or molestation. But again each count relies essentially upon the truthfulness and accuracy of the complainant concerned, so you must first be satisfied in that regard. If so, you may use the evidence of other uncharged acts, as I have mentioned. Whether you do so or not is ultimately a matter for you to decide.
This is not a model direction. However, the highlighted portions in effect, directed the jury that they must decide each count by reference to the evidence of the complainant concerned and that evidence of uncharged acts was not evidence which would go to prove the counts in the indictment.
That was an error which advantaged the appellant. It is an error similar to one made by the trial judge in the HML case. Because the error advantaged the appellant there was no miscarriage of justice. See HML [216] ‑ [219] (Hayne J).
The evidence concerning other counts
Counsel for the appellant at trial apparently anticipated that the trial judge would give directions about the fact that an offence committed in relation to one count might be used as circumstantial evidence to prove another count. However, the trial judge never gave any such direction. Although his Honour did say that the 'chasey game is relevant', he did not go on to say that the sexual offence committed immediately after the game of chasey in relation to one offence was circumstantial evidence relevant to another offence. The overall effect of the judge's summing up was to tell the jury that they had to consider each charge separately and to decide whether the appellant was guilty or not guilty in relation to each by reference to the evidence of the particular complainant who was the victim in relation to each such offence.
The trial judge directed the jury by saying:
We are, of course, dealing with 29 counts involving, I think, seven complaints, which are all being dealt with in the one trial. That carries with it a degree of prejudice, by reason of the fact that all these counts are brought together, and you might think at first blush, 'Well, gosh, all these counts, he must have done something, but that's not the way you should approach it. In fact, that's quite inappropriate reasoning.
You see, each of these counts could in theory be tried separately. They could in theory be the subject of separate trials, each one lasting probably a day. We are hearing them all together as a matter of practicality. A number of the witnesses are common to various counts, and of course there are common issues running through the various counts. The criminal law does provide for, in certain circumstances, counts, various counts, to be joined in the one indictment and to be tried together in the one trial and that's what has happened here.
It involves, as you might expect, a saving of time and money and having people come back to court on more than one occasion, but there is, and the law recognises a degree of prejudice involved in all of these charges being dealt with together and you must be aware of that. As I say, it would be inappropriate reasoning were you to say, 'There's such a lot of charges and seven complainants, so he must have done something.' You need to look at each charge. Look at the elements of it. Look to the evidence and decide for yourself whether on the evidence which pertains to that particular charge, you are satisfied beyond reasonable doubt.
This is not a job lot. It's not the case that if you find [GBT] guilty or not guilty of any particular charge that you will find him guilty or not guilty as the case may be of some other charge. There's no situation where if you find him guilty of one you will find him guilty of another. It's not the case that if you find him guilty of a charge with respect to a particular complainant that you will necessarily find him guilty of any charge relating to another complainant. The point that I'm making is that each of these 29 counts needs to be looked at separately as though it were the subject of a separate trial.
You need to look at the evidence which pertains to it and decide whether or not you are satisfied beyond reasonable doubt. As I say, I just want to confirm that. If you find in the course of your deliberations that [GBT] has committed a particular offence, don't reason that he has therefore committed other offences or another offence. If you conclude that he is the sort of person who behaves in a particular way, don't assume that he has done so on any particular occasion. Have regard to the evidence that relates to each count.
…
The state says that it was part of a pattern of conduct adopted by the accused as precursor to his molesting of the children involved. If you find that he did commit a particular offence, you must not conclude from that alone that he is likely to have committed any other offence charged. If you find that he did commit an offence against a particular complaint, you must not conclude from that alone that he's likely to have committed an offence against another complainant in the same way, or in a different way.
You must not reason that he is guilty of any particular offence because he's the sort of person who might commit such offences. As I said earlier, a finding of guilt with respect to one count will not automatically lead you to a conclusion of guilt on another. Each must be considered having regard to the evidence given with respect to it. (ts 1525 ‑ 1527, 1559)
Later in the summing up when the trial judge referred to what had been said by counsel for the appellant to the jury, the trial judge said:
Some evidence, said Mr O'Sullivan, may be relevant to more than one charge. Of course the chasey game is relevant. It's connected with 13 of the alleged events. [GBT] agrees that there was a chasey game. The state has a theory the chasey game was a grooming exercise allowing him to sift out those who were noncompliant as he worked towards the ultimate sexual act but, said Mr O'Sullivan, he's not charged with playing chasey. First you must accept that the complainant is telling you the truth in each count. (ts 1659)
A little later the trial judge said:
Don't reason that because he interfered with a particular complainant that he therefore interfered with another. (ts 1659)
Strictly speaking, his Honour could have given a direction that in relation to a particular count, the evidence in relation to other counts involving that particular complainant could be taken into account as circumstantial evidence which could be used as a step in the proof of commission of the charge under consideration in the same way as evidence of 'uncharged acts' could be used. Therefore, as an example (not an example used by counsel for the appellant), count 14 involved L and occurred after a game of chasey. The events in relation to counts 1, 3, 4, 10 and 12 were also committed on L and also began with a game of chasey. They might have been used as circumstantial evidence in support of count 14. However, by giving a direction to the jury that they could not use evidence about what happened in relation to other counts advantaged the appellant and this occasioned no miscarriage of justice. When a trial judge gives a direction that admissible evidence probative of the offence may not be used by the jury to reason towards a verdict of guilty, then
such an error does not occasion a miscarriage of justice: See HML v The Queen[216] ‑ [219].
On that basis, grounds 3 and 4 should be dismissed.
I should add that only towards the end of the appellant's oral submissions in support of the appeal did he refer to HML which he said was a 'quite lengthy case' and which he had 'pulled … out of the library this morning'. He then submitted that the point that the case made was:
That in order to use something to actually fill in the gap when you are considering - if you are going to use a premise or a theory that - this is the sort of thing that Mr Huggins the prosecutor was talking about there that I was just talking about. If you're going to use those to bolster the credibility of these witnesses who are the only people who see things, then you have to prove the premise of that theory beyond reasonable doubt.
The ratio in HML is difficult to determine (see the analysis in R v Sadler [2008] VSCA 198) and there is a question as to whether HML would have application in this State for the reasons given by the Victorian Court of Appeal in Sadler's case. HML concerned the relevance and admissibility of evidence in relation to uncharged acts in a common law jurisdiction and the directions the jury must be given about them. However, Hayne J did say that if there is evidence of 'uncharged' acts which the prosecution wishes to rely on as circumstantial evidence to support a charge, then the jury must be directed that it must not use that evidence as circumstantial evidence unless the uncharged acts have been proved beyond reasonable doubt. See HML [196] (Hayne J). That is of no relevance in this case because the trial judge directed the jury not to use evidence of uncharged acts as evidence to prove any one count.
Grounds 3 and 4 must be dismissed.
Ground 5
This ground adds nothing to grounds 1, 2, 3 and 4.
As a result, the appeal should be dismissed.
LE MIERE AJA: I agree with Pullin JA.
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