Gee v The Queen
[2003] WASCA 178
•11 AUGUST 2003
GEE -v- THE QUEEN [2003] WASCA 178
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 178 | |
| COURT OF CRIMINAL APPEAL | 11/08/2003 | ||
| Case No: | CCA:101/2002 | 14 APRIL & 18 JULY 2003 | |
| Coram: | MURRAY ACJ TEMPLEMAN J WHEELER J | 18/07/03 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted Appeal allowed Convictions quashed Retrial ordered | ||
| B | |||
| PDF Version |
| Parties: | KEITH DOUGLAS GEE THE QUEEN |
Catchwords: | Criminal law and procedure Alleged sexual offences Probably in early 1993 Trial 9 years later Longman warning required and given Error as to terms of warning |
Legislation: | Nil |
Case References: | Crampton v The Queen (2000) 206 CLR 161 Crisafio v The Queen [2003] WASCA 104 Longman v The Queen (1989) 168 CLR 79 Stalker v The Queen [2003] WASCA 132 Allegretta v The Queen [2003] WASCA 17 Birks v The Queen (1999) 48 A Crim R 333 Christophers v The Queen (2000) 23 WAR 106 Dibb (1991) 52 A Crim R 64 Doggett v The Queen (2001) 208 CLR 343 Gee v The Queen [2002] WASCA 180 Hamilton (1993) 68 A Crim R 298 Ignjatic v The Queen (1993) 68 A Crim R 333 James v The Queen P41/2000; 14 September 2002 Punevski v The Queen [2002] WASCA 268 R v Birks (1990) NSWLR 677 R v BWT (2002) 54 NSWLR 241 Reg v Clinton [1993] 1 WLR 1181 Schuster v The Queen, unreported; CCA SCt of WA; Library No 970180; 23 April 1997 SJB NSW CCA vol 1, 129 Part 4 A Crim R 572 Suresh v The Queen (1998) 153 ALR 145 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- TEMPLEMAN J
WHEELER J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Alleged sexual offences - Probably in early 1993 - Trial 9 years later - Longman warning required and given - Error as to terms of warning
Legislation:
Nil
(Page 2)
Result:
Leave to appeal granted
Appeal allowed
Convictions quashed
Retrial ordered
Category: B
Representation:
Counsel:
Applicant : Mr D P A Moen
Respondent : Mr K P Bates
Solicitors:
Applicant : David Manera
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Crampton v The Queen (2000) 206 CLR 161
Crisafio v The Queen [2003] WASCA 104
Longman v The Queen (1989) 168 CLR 79
Stalker v The Queen [2003] WASCA 132
Case(s) also cited:
Allegretta v The Queen [2003] WASCA 17
Birks v The Queen (1999) 48 A Crim R 333
Christophers v The Queen (2000) 23 WAR 106
Dibb (1991) 52 A Crim R 64
Doggett v The Queen (2001) 208 CLR 343
Gee v The Queen [2002] WASCA 180
Hamilton (1993) 68 A Crim R 298
Ignjatic v The Queen (1993) 68 A Crim R 333
James v The Queen P41/2000; 14 September 2002
(Page 3)
Punevski v The Queen [2002] WASCA 268
R v Birks (1990) NSWLR 677
R v BWT (2002) 54 NSWLR 241
Reg v Clinton [1993] 1 WLR 1181
Schuster v The Queen, unreported; CCA SCt of WA; Library No 970180; 23 April 1997
SJB NSW CCA vol 1, 129 Part 4 A Crim R 572
Suresh v The Queen (1998) 153 ALR 145
(Page 4)
1 JUDGMENT OF THE COURT: The applicant was charged on indictment with two counts of indecent dealing with a child under the age of 13 years, by rubbing her thigh and kissing her, and with a count of sexually penetrating the child by the penile penetration of her vagina. The offences were all alleged to have occurred at the same time and place, between 1 February 1994 and 30 June 1994, but in all likelihood the allegations concerned events which could only have taken place about a year earlier.
2 That appears to be the case because the complainant's evidence was that the offences were committed at her home by the applicant, who was a caller of the game known as bingo, which was conducted at the local recreation centre and was attended by her family regularly on Saturday evenings. The complainant said that on the last night when the applicant called the numbers for the bingo game, he returned to the family home and stayed the night. It was on that occasion, she said, that the offences were committed. He did not come to the house again.
3 Although her evidence was that this was some time in 1994, the applicant gave evidence that the last night upon which he called bingo was 30 June 1993. He produced an apparently genuine letter, confirming that date. Indeed, the applicant, who was the only defence witness, also gave evidence that although he had been on a number of occasions to the home of the complainant and her family, he had not been there since 13 November 1992. He had then recently been married and on that date he and his wife moved into their new home. Thereafter, he said, there was no occasion when he did not sleep at home with his wife. The applicant's evidence was that he remembered no such night on which any events such as those described by the complainant surrounding the commission of the offences, occurred while he was at her home.
4 The complainant was born on 7 March 1982. So if the offences were committed as pleaded, she would have been about 12, and that was her evidence. On the other hand, if the offences were committed a year earlier she would have been 11. In any event, she would have been under the age of 13 years. The trial was in the District Court, before a Judge and jury, on 15 and 16 April 2002, some 8 or 9 years, depending upon the finding of the jury, after the offences were allegedly committed.
5 The evidence was in short compass. The complainant gave evidence and, of course, she was then a young woman of 20 years of age. Her evidence was that on the occasion in question she had gone to bed late. Later still, she woke to find the applicant seated on her bed. He touched
(Page 5)
- her thigh (the first indecent dealing) and asked her if she would play with his "willy". She declined, got out of bed and went to her parents' room to tell her mother that the applicant was in her room. Her stepfather went to her room and after he had been away a little while he returned. A little later she went back to her room. Nobody was there. She went to sleep.
6 She was again awakened by the applicant, who was kissing her, and so committed the second of the alleged offences. He held her so that she could not move, put his penis into her vagina and had sex with her. She could not make herself emit any noise. After the applicant finished, he left the room.
7 She told her brothers that the applicant had come to her room, but nothing else. She made no complaint to any other person until she told a friend, years later. The friend told her mother and the police were called.
8 The complainant's mother gave evidence of the last evening, a Saturday night, when, after bingo, the applicant came to their house. It was in 1994. The adults played pool and drank alcohol, retiring to bed late in the night. Later, she was awakened by the complainant, who told her that the applicant was in her room, trying to get into bed with her. Her husband went to sort it out.
9 This lady's husband gave evidence. He was the complainant's stepfather. He also recalled such a Saturday evening and he gave consistent evidence about the complainant coming to the bedroom occupied by him and his wife. He went to the complainant's bedroom and found the applicant there. The applicant said he had been to the toilet and got lost. He was looking for his bed. The witness took the applicant to where that was, and left him there.
10 The only other evidence called was a brother of the complainant, who gave evidence that the complainant had awakened him and his brother during a particular night and told him that the applicant had "made me touch his willy". The witness and his brother then went to a sofa bed, where the applicant was sleeping. They poured cool drink over him, but he did not wake up. The effect of that appears to have been seen by the mother of the children on the following morning. She said she could see something on the applicant as he slept, but she did not establish what it was. The police investigation, which included an interview with the applicant, was carried out in 2000. No evidence of admissions was led.
11 The applicant was convicted of all three offences charged in the indictment. His application for leave to appeal was made on three
(Page 6)
- grounds. The first was that the trial Judge failed adequately to direct the jury in terms of the requirements of the decision, Longman v The Queen (1989) 168 CLR 79. In particular, it was complained that the trial Judge failed to use the words "dangerous to convict" when the circumstances of the case warranted such a direction or, in any event, the circumstances warranted a "stronger direction" than was given. The second ground of appeal attacked the warning and directions of the trial Judge in relation to the question of early complaint, or the lack of such a complaint. The third ground alleged that a miscarriage of justice had been occasioned by the incompetence of defence counsel at the trial.
12 As it has transpired, the court found it unnecessary to deal with the second and third grounds. In particular, although the court received evidence in affidavit form, and orally from the applicant and his wife and from the person who had been defence counsel, all of whom were cross-examined, in support of the third ground of appeal, it was unnecessary to deal with any aspect of the argument in relation to this ground. That was because, after hearing argument, the court determined that the first ground of the application should succeed.
13 We considered that leave to appeal should be granted, the appeal allowed, the convictions quashed and that a retrial before the District Court should be ordered. None of the argument or the evidence presented in support of the third ground of appeal bore upon the question whether a retrial should be ordered. Of course, it remains a matter for the Crown to determine, finally, whether or not the applicant should be tried again.
14 There was no question at trial that, in view of the long delay in making any effective complaint against the applicant and in view of the fact that the complainant's evidence to establish the guilt of the applicant of the offences charged was, after so many years, entirely uncorroborated, as well as having regard to the circumstances that the complainant was a young child who was awakened on both occasions when offences were allegedly committed against her, a warning of the danger of conviction by relying entirely upon the evidence of the complainant was to be given by the trial Judge. In Longman it was held that in such circumstances a warning of that kind is required so as to identify for the jury a danger of which, in the view of the court, they might not otherwise be aware.
15 It is, of course, the case in such circumstances, that the jury may only be persuaded of guilt beyond reasonable doubt if they are satisfied of the truth and accuracy of the complainant's evidence. The jury are to be told that the defence may have long since lost the capacity to adequately test
(Page 7)
- the evidence of the witness by cross-examination or by leading evidence to establish facts tending to contradict the evidence of the complainant. Her evidence, although potentially unreliable, may not be able to be adequately tested by reason of the forensic disadvantage caused to the defence by the passage of time. It is not only the potential for unreliability in the evidence of the complainant, but also the forensic disadvantage which the passage of time has caused which, it was held in Longman, require the warning to be given.
16 Those matters must be referred to in giving the warning so that the jury may understand why the warning is given. The terms in which the warning is given will depend upon the particular circumstances of the case before the Court and the evidence which is led by both prosecution and defence. No particular formula is required. What is necessary is that, with the force of the judicial office, the jury are to be warned that, having regard to the passage of time and the particular circumstances of the case which may bear upon the reliability of the complainant's evidence, and having regard to the fact that the defence has been unable to test that evidence in the usual ways, the jury should not rely upon it, uncorroborated as the complainant's evidence is, without subjecting it to careful analysis and scrutiny so as to ensure that they are entirely satisfied about its reliability. The general principles are set out in two recent judgments of this Court and the cases cited in those judgments: Crisafio v The Queen [2003] WASCA 104; 20 May 2003 per Murray J, with whom Malcolm CJ and Parker J agreed, and Stalker v The Queen [2003] WASCA 132; 20 June 2003, by Scott J, with whom Templeman and Hasluck JJ agreed.
17 Having regard to the circumstances of this case, it is apposite to again bring to mind the statement of Gaudron, Gummow and Callinan JJ in Crampton v The Queen (2000) 206 CLR 161, at 181 [45]:
"An accused's defence will frequently be an outright denial of the allegations. That is not a reason for disparaging the relevance and importance of a timely opportunity to test the evidence of a complainant, to locate other witnesses and to try to recollect precisely what the accused was doing on the occasion in question. In short, the denial to an accused of the forensic weapons that reasonable contemporaneity provides constitutes a significant disadvantage which a judge must recognise and to which an unmistakeable and firm voice must be given by appropriate direction."
(Page 8)
18 An important aspect of the formulation of an appropriate direction is to ensure that the jury understand the nature of the forensic disadvantage which in part provides the occasion for the warning they are given.
19 The direction of the trial Judge was given in the following terms:
"The matter I need to warn you about, ladies and gentlemen, arises simply from the facts of this case and it is a warning in relation to the evidence of the complainant. You must scrutinise her evidence very carefully, bearing in mind that more than 8 years have now passed since the alleged incidents, or about 8 years, and that she did not report this for nearly 6 years. You should bear in mind that the incidents are alleged to have happened when she had been asleep and then she did go back to sleep. She said she slept in between the alleged events and also afterwards.
Experience has shown that human recollection, especially of events that happened during childhood, in such circumstances can be faulty and liable to error or distortion. For that reason, before you act on the evidence of the complainant, you should scrutinise it very carefully and look for supporting evidence.
In this case, of course, there is supporting evidence in the sense that if you accept her mother's evidence and her stepfather's, she went into their room and the stepfather gave evidence that he found the accused in her room; in other words, there is evidence to support at least the fact that he was in her room. As to what exactly happened, it's only her evidence on that point, but I do advise you to scrutinise her evidence very carefully because of the length of time and because she was only 12 and had woken up, in her account, to find these things happening to her."
20 We were concerned at the way in which the warning was given. The trial Judge commenced by warning the jury that they "must" scrutinise the evidence of the complainant very carefully. Then it was said that they "should" do so and look for supporting evidence. Finally, the trial Judge said, "I do advise you" to scrutinise the complainant's evidence very carefully. The warning, in our view, loses its power to an unacceptable degree as the trial Judge reiterates the need for caution.
21 Further, there is no explanation given to the jury about the forensic difficulty which has arisen. That is not referred to until, in the course of recapitulating the defence case, her Honour says:
(Page 9)
- "The defence suggests that the accused simply cannot remember after all these years and suggests that the accused is at a disadvantage when he doesn’t know the exact date that is alleged and is unable to defend himself by pointing out what he remembered did happen on the night in question. The defence suggests there must be doubt when the Crown is forced to rely on this one witness and she cannot even recall the years properly and was unable to recall so many details."
22 In our view, that was insufficient to comply with the requirements of the law. No more was said to the jury than to put in summary form the arguments of the defence. It sounds like a complaint by defence counsel rather than a problem area which the trial Judge is bringing to the notice of the jury with the force of her judicial office, to impress upon them that there are good reasons why the jury should take the utmost care before relying upon the evidence of the complainant, even though they are given to understand the danger of doing so, because the evidence may be incomplete in a way which cannot, by the time of trial, be repaired (without, of course, telling the jury that that is in fact the case).
23 It was for these reasons that on the hearing of the appeal we made the final orders to which we have referred.
15
1