Henry v The Queen
[2001] WASCA 33
•16 FEBRUARY 2001
| JURISDICTION | : | SUPREME COURT OF WESTERN AUSTRALIA |
| TITLE OF COURT : | COURT OF CRIMINAL APPEAL | |
| CITATION | : | HENRY -v- THE QUEEN [2001] WASCA 33 |
| CORAM | : PIDGEON J |
WALLWORK J
MURRAY J
| HEARD | : 13 DECEMBER 2000 | ||
| DELIVERED | : 16 FEBRUARY 2001 | ||
| FILE NO/S |
| ||
| BETWEEN | : OSSIE HENRY |
Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Indecent dealing - Evidence - Relationship evidence conceded to be inadmissible - Concession made at the trial that it was admissible - Whether a miscarriage of justice - Turns on own facts
Legislation:
Nil
Result:
Appeal allowed
[2001] WASCA 33
Representation:
Counsel:
| Applicant | : | Mr M R Gunning |
| Respondent | : | Mr R E Cock QC |
Solicitors:
| Applicant | : | Gunning |
| Respondent | : | State Director of Public Prosecutions |
Case(s) referred to in judgment(s):
Crofts v The Queen (1996) 186 CLR 427
Fernando v The Queen [2000] WASCA 289
HG v The Queen (1999) 160 ALR 554
Mraz v The Queen (1955) 93 CLR 493
R v Birks (1990) 19 NSWLR 677
R v Challoner (2000) 110 A Crim R 102
Case(s) also cited:
Gill v The Queen [1999] WASCA 68
Hardingham v The Queen, unreported; CCA SCt of WA; Library No 940105; 3
March 1994
Jaensch v The Queen [2000] WASCA 212
Palmer v The Queen (1998) 193 CLR 1
R v Deriz (1999) 109 A Crim R 329
Schuster v The Queen, unreported; CCA SCt of WA; Library No 970180; 23
April 1997
[2001] WASCA 33
PIDGEON J
PIDGEON J: The appellant is appealing against his conviction of indecently dealing with a girl under the age of 13 years. The principal ground of appeal is that the complainant gave inadmissible and prejudicial evidence. I shall refer to the history of the proceedings to show how the evidence claimed to be inadmissible was led at the trial.
The appellant originally appeared on an indictment alleging three offences against the same complainant. The first count was one of indecent dealing which was alleged to have occurred during 1994. The second count was one of sexual penetration which was alleged to have occurred during August 1996. The third count was an allegation that he indecently dealt with the same complainant on a date unknown between 1 August and 30 September 1996.
The complainant was born on 16 February 1986. An order was made that her evidence be taken by video tape at a pre-trial hearing and played to the trial jury. This hearing took place on 26 June 1998 before his Honour Judge H H Jackson in the presence of the appellant's counsel who cross-examined the complainant. The complainant's evidence in respect of the second count did not allege an actual penetration so this count was amended to a count of indecent dealing. The trial took place on 12 October 1998 before the same Judge. The applicant was acquitted of two counts and the jury were unable to reach a verdict on the third count. There was, accordingly, a retrial on that count which commenced in the District Court on 17 May 1999 before Mr Commissioner Reynolds. The appellant was convicted on this count at the second trial.
The appeal book does not refer to any directions hearing as to the evidence to be led at the second trial. However, it appeared to be agreed that the video tape of the evidence of the complainant made on 26 June 1998 should be the evidence to be led at the second trial, subject to there being deleted from it evidence that would no longer be admissible by reason of the acquittal on the first two counts. Counsel were not able to agree as to what should be deleted and the learned Commissioner, prior to the jury being empanelled, conducted a hearing to determine this question.
The evidence his Honour was considering was the video tape of the evidence of the complainant taken 26 June 1998. The complainant, on that tape, said that when she was 8 years old she was living in a house in Kardinya with her mother and two sisters. One sister, Amanda, was four or five years older than the complainant and the other sister, Danielle, was two years younger. Their father was separated and they seldom saw him.
[2001] WASCA 33
PIDGEON J
The appellant would call to visit the mother from time to time. The complainant said that when he called he used to touch her legs and her bottom. She was then asked to describe in detail the first time this occurred and this became the subject of the first count, being a count on which the appellant was acquitted. She then said that between the time that she was 8 years and 10 years old, the appellant would come to the house most weekends. She said that the touching occurred about once every two weeks. The complainant was then asked to describe a specific incident that occurred the day she was given a ring by her sister, Amanda, this being the incident the subject of the second trial. The complainant said it occurred when she was 8 but the evidence of her mother showed that it occurred when she was ten years old. The complainant said that her sister, Amanda, had made for her a quartz ring and she put it on her finger. There was present in the house the two sisters, the mother, a friend of the complainant and the appellant. The complainant was then asked what happened after she put the ring on. I shall now set out this evidence as it is the evidence the subject of the appeal: (AB18)
"What happened after you put the ring on? --- I punched my
little sister Danielle.You punched her. What did you do that for? --- Because Ossie was there.
Because Ossie was there. What was the relationship between Ossie being there and you punching Danielle? --- I didn't like Ossie.
Why didn't you like him? --- Because he done bad things.
What kind of bad things? --- Touched me."
The evidence then went on to describe the allegation in the indictment and this evidence was:
"So you punched Danielle - that's your younger sister. What did
she do in response? --- Cry.What did you do after you punched your sister? --- I ran into my room.
Why did you run into your room? --- Because I was scared I was going to get in trouble.
[2001] WASCA 33
PIDGEON J
After you got into your room, what do you remember happening? --- I hid behind my door and, because my house isn't all that big, I could hear everything out in the lounge room and my mum said, 'I'll go see her. I'll go talk to her.' I heard Ossie say, 'No, I'll go talk to her,' and he came into my room.
So he came into your room. What happened after he came into your room? --- He lifted up my nightie and he touched my vagina.
…
Did you say anything to him? --- Yes. 'Get out'.
Did he say anything to you? --- No."
She then gave evidence of a further touching when she was about 10. She said that the appellant touched her bottom, but was very vague as to the circumstances. This was the subject of the third count, being a count on which the appellant was acquitted.
The Crown agreed that there should be deleted from the video tape evidence of the two specific occurrences in respect of which the appellant was acquitted, but submitted that there should remain evidence of a general nature of the relationship between the complainant and the appellant. This evidence was led at the first trial and it is agreed that it was relevant at that trial.
Counsel for the defence submitted that normally he would have no objection to the relationship evidence going in, but he considered the matter was now different by reason of the appellant being acquitted of the two charges. He submitted that the trial now was totally different to the previous trial. The appellant had been acquitted of the two other allegations so that there was now was one specific act still at large and that the evidence should be restricted to the one incident. It was submitted further that his Honour in his discretion ought to exclude it.
Counsel for the Crown then referred to a particular part of the video tape it wished to lead and that was the complainant's explanation for punching her sister, namely, that she did not like the appellant because he had done bad things such as touching her. This is the evidence I first set out. When counsel for the Crown referred specifically to this evidence, counsel for the defence interposed to say that he had no objection to that particular piece of evidence going in.
[2001] WASCA 33
PIDGEON J
The following is what was said (T/S 253):
"COUNSEL FOR THE CROWN: The other matter is - the explanation problem is perhaps highlighted at pages 12 and 13 specifically where the complainant was asked:
'What was the relationship between Ossie being there and
you punching Danielle? --- I didn't like Ossie.
Why didn't you like him? --- Because he done bad things.
What kind of bad things? --- Touched me.'COUNSEL FOR THE DEFENCE: Can I just rise and say, with respect to that, as obvious from - I have got no objection to that going in. We have left that in, and that may solve a bit of the crown's problems - the compromise there.
COUNSEL FOR THE CROWN: The difficulty is, in order for that to make any sense one would have to concede that as at before the touching relevant to this charge, there had been prior touchings. There's no way around that because otherwise the explanation simply does not make sense. My learned friend is happy for it to go in but that evidence in itself indicates prior touchings. What the crown wants to do is say, 'Well, yes, there were prior touchings and here's some very brief general evidence about it.'
There is a concern obviously if the green bits go out, so to speak, that the jury, left with that explanation, are going to draw their own conclusions and not have any material properly before them, which is perhaps not a desirable situation. It is a difficult circumstance. Plainly the reason that both prosecution and defence would seek to rely on the videotape is to avoid the need for the complainant to give evidence. Once, one would have thought, would be enough.
…
COUNSEL FOR THE DEFENCE: Just briefly in what I raised a minute ago about the touching, previous touching comments or bad things, which was particularised to be touching at page 13, and allowing that to go in. One of the reasons the defence allows that to go in - because we accept that it puts in context
[2001] WASCA 33
PIDGEON J
why she was punched, but the other material - with respect, the comment you have made about the mixture of specifics and generalities is the problem."
His Honour ruled that the general evidence as to the relationship should be excluded as he considered that its admission would undermine the verdict of acquittal in the first trial of the particular allegations the subject of that evidence. He considered that the general evidence as to relationship would not make sense without reference to the other two specific allegations. This evidence was excluded from the trial, but the evidence as to the explanation for the complainant hitting her sister was admitted.
The appellant in his evidence to the jury denied any improper conduct. He said he did not remember any incident when the complainant punched her sister in the eye. He said he did not go into the bedroom and there was no touching at any time.
The first ground of appeal relates to the evidence of the reasons given by the complainant for punching her sister and reads:
"1.
The evidence that the complainant behaved aggressively towards her sister because she did not like the Appellant as a result of the Appellant having done 'bad things - touched me' should not have been admitted.
PARTICULARS
(a)
The admission of the evidence subverted the learned Commissioner's ruling that evidence of other indecent dealings could not be lead as representative conduct;
(b)
The reason advanced to justify the admission of the complainant's evidence, namely that it explained the complainant's behaviour, did not give the evidence sufficient probative value to outweigh its prejudicial effect;
(c)
No direction would have been sufficient to overcome the prejudice engendered by the admission of that evidence, and the learned Commissioner's direction was inadequate in the circumstances.
[2001] WASCA 33
PIDGEON J
(d) The prejudicial effect of this evidence was magnified by the inadvertent failure to edit from the pre-recording the sentence, 'I think I should say that the answer about the once every two weeks, was in the context of a question of when this kind of conduct occurred, not how often Mr Henry visited.' "
Before considering the merits of the ground I shall refer to his Honour's direction to the jury. His Honour said (AB 266):
"Now, you have heard evidence as to the explanation that was given by Tia for punching Danielle, and that is because she didn't like Ossie because of the bad things he did, namely, that he touched her. Now, this evidence was led to provide some explanation why Tia punched Danielle. I should warn you that you should be very careful in how you treat this evidence. As I say, it has been led for the purpose of providing some explanation on why Tia punched Danielle.
Tia's reference to touching was very general; that is, it was non-specific. You're not asked to make a finding on that, so don't speculate or conjecture about it. You may not convict the accused of this specific offence as alleged based on this particular item of evidence that I have just referred, and you can't rely on this particular item of evidence as in any way adding strength to the crown's case on this specific offence as alleged."
There could well be an argument that even though the jury was trying only the one count, evidence as to the earlier touchings would be admissible as relationship evidence. The reason why his Honour excluded it was not because relationship evidence could not be admitted generally, but because in the circumstances of this trial it would not be possible to separate general evidence of relationship from the particular counts on which the appellant was acquitted. Had the evidence as to the reason for the complainant to be punching her sister been objected to, his Honour may possibly have said that this evidence was admissible and that it would be possible to separate it from the acquittals. He was not asked to make this ruling by reason of the agreement of counsel for the defence. If the Crown considered that this was the way the trial ought to be conducted, then it would be necessary to determine whether or not the
[2001] WASCA 33
PIDGEON J
evidence was admissible. However, counsel for the respondent at this appeal was not seeking to maintain that it was relevant evidence and conceded that the evidence was inadmissible, so in these circumstances the court must proceed on the basis that the evidence was inadmissible.
The contention on behalf of the respondent is that an accused person is bound by the way the trial is conducted by counsel, even if decisions made by counsel involve an error of judgment or negligence. It is claimed further that there was no miscarriage of justice by reason of the direction given by the trial Judge.
The general rule is that an accused person is bound by the way the trial is conducted, particularly if a tactical decision is made to proceed in a certain way. R v Birks (1990) 19 NSWLR 677 at 685. As was said by the Court of Appeal in Victoria in R v Challoner (2000) 110 A Crim R 102 at 104, time and time again the court is being asked to overturn convictions and order a re-trial to enable an accused person to put a case not put, and sometimes expressly disclaimed at the first trial. The court outlined procedures to overcome this.
This was not a case of counsel for the defence by way of a tactical decision seeking to have the evidence go in or consenting to its going in. The admissibility of the evidence was on the borderline and counsel for the defence understandably took the view that it was admissible. Now that the Crown are not seeking to justify its admissibility, this Court must act on the basis that it was inadmissible and ought not to have been sought to be led by the Crown in the first instance. It is agreed that the actual punching was part of the transaction as that caused the complainant to go into her room and this in turn caused the appellant to enter the room. The Crown, however, could have given evidence of the transaction by making very limited reference to the complainant receiving the ring, the reason for this reference being to call the complainant's attention to the specific alleged incident. It would have been open to her to say that the stage developed when she punched her little sister and that she went into her room because she feared she may be in trouble. While it would be open to her to give the reason why she went into the room, I would see no need for the Crown to lead from her evidence as to why she did the punching. The question to determine in these circumstances is whether the appellant was deprived of the chance of acquittal that was fairly open (cf HG v The Queen (1999) 160 ALR 554 at 571, par 81 and Mraz v The Queen (1955) 93 CLR 493 at 514).
[2001] WASCA 33
PIDGEON J
In cases where the decision is made that evidence of relationship cannot be admitted, then I consider evidence of this nature can raise in the jury's mind the impression that there is a longstanding relationship of assaults which would be difficult to be cured by the direction given. Because of this I consider it must be said that the applicant was deprived of a chance of acquittal.
Subparagraph (d) of ground 1 refers to a portion of the cross-examination at the pre-trial hearing. She was being cross-examined about the number of times the appellant would visit her at a particular place when she was between 8 and 10 years old. Counsel then said: (AB28)
"Now, I just wanted to check with you, you said, 'He come over about two times a week' and then you told us once every 2 weeks. I'm a little bit confused what you mean about that. How often do you think he would come over?---About - nearly every weekend.
Nearly every weekend?---Yes.
COUNSEL FOR THE DEFENCE: I think I should say that the answer about the once every 2 weeks was in the context of a question of when this kind of conduct occurred, not how often Mr Henry visited."
The submission on behalf of the appellant is that if the evidence as to the reason for the complainant punching her sister was inadmissible, then this passage would aggravate the situation. I do not consider that the jury would interpret this particular passage as suggesting that there was a touching every time that the appellant visited. Counsel, by these questions, was seeking to ascertain how often the appellant visited, not how often it was claimed that there was a touching.
The second ground of appeal reads:
"2.
The evidence of a question asked by the arresting Detective to the Appellant in a written record of interview 'Why has Deb and the kids said that' should have been excluded as it reversed the onus of proof."
| 24 | Mr Gunning understandably in the circumstances of this trial, puts little weight on this ground. He said that the ground is a comment and would do no more than add to the other ground. There is much authority |
[2001] WASCA 33
PIDGEON J
WALLWORK J
MURRAY J
to show that questions of this type should not be put before the jury and if counsel had objected to it, it should have been deleted. It was not objected to at either trial and the applicant maintained his denial in the light of the question which may well have been seen by his counsel as enhancing his credibility.
I consider that the first ground has been established and the conviction should be set aside. I would not grant a retrial for the reasons of Murray J.
I would allow the appeal.
WALLWORK J: I agree with the reasons for judgment of Pidgeon J and Murray J and to the orders proposed by their Honours. There is nothing I wish to add.
MURRAY J: I have had the advantage in this case of perusing in draft the reasons for decision published by Pidgeon J with which I agree. In my view the application for leave to appeal should be granted and the appeal allowed. I have nothing to add to the observations of Pidgeon J upon ground 2 which, as his Honour remarks, was in any event but faintly mentioned at the hearing. I wish only to add a few brief observations with respect to ground 1.
Pidgeon J has explained in some detail how the matter arose. In the end, what occurred was that the applicant was tried for indecently dealing with the child by touching her in the area of her vagina. Only one such incident was alleged. The learned Commissioner, who was the trial Judge, refused to allow the Crown to lead evidence of other acts of indecent dealing, specifically or by general description, so as to illuminate, so the Crown argued, the nature of the relationship between the child and the applicant. As I understand the learned Commissioner's reasons, he took that course because at the first trial the applicant had been acquitted of two charges of offences of that kind involving allegations that the applicant touched the child on her bottom in a sexually inappropriate way. The consequence of that ruling, the correctness of which is not now in issue, was to confine the Crown at trial to evidence of the particular allegation which was the subject of the indictment.
However, as Pidgeon J has explained, that incident occurred when, after the complainant was given a ring she struck her smaller sister, using the hand upon which she wore the ring, and caused her sister to burst into tears. The reaction was such that the complainant was scared that she would get into trouble. She ran into her bedroom and hid behind the door.
[2001] WASCA 33
MURRAY J
She was followed by the applicant who then allegedly committed the offence of which the indictment complained. As Pidgeon J observes, it mattered not why the complainant struck her sister. What was important was that an incident occurred which the complainant remembered which provided the occasion for the commission of the offence of which the applicant was convicted.
However, as Pidgeon J has explained, the evidence in fact led from the complainant was not confined to this incident. It matters not, I think, how it came about that the experienced counsel acting for the applicant at this trial took the course that he did, but during argument, apparently to assist the Crown to present to the jury an explanation as to why the complainant struck her sister, defence counsel told the trial Judge that he had no objection to evidence being led that the complainant struck her sister because she did not like the applicant because he had "done bad things", by which she explained she meant that he had touched her. That cannot have been a reference to what then had not occurred by way of inappropriate and indecent touching, but must have referred to previous occasions, and that subverted the ruling made by the trial Judge, although effectively it was by consent that the evidence was led in that form. In my opinion, the learned Commissioner should have ruled that evidence to be inadmissible, consistently with the general ruling that he had made, but confronted by the agreement of counsel, he did not do so.
The potential prejudice is abundantly clear and it may have been exacerbated by the inadvertent inclusion, in playing the evidence of the complainant to the jury, of an observation by prosecuting counsel who acted when the child originally had her evidence recorded. When the evidence was being led from the child and she was cross-examined, defence counsel asked her to clarify her evidence about how often the applicant visited their house. At one time it appears that she said he came about twice a week and at another time, about once every two weeks. When asked to clarify it, she said he came nearly every weekend and the prosecutor is shown on the video to have made the observation that the answer the child had given about contact with the applicant once every two weeks "was in the context of a question of when this kind of conduct occurred, not how often Mr Henry visited." There was some debate at the trial about whether or not that might have been heard by the jury and the observation was finally deleted when, during their retirement, the jury asked again to hear the evidence of the complainant. But its potential impact and prejudice is clear and was recognised by all involved in the trial.
[2001] WASCA 33
MURRAY J
It is well accepted that in general terms in the context of the adversarial proceeding which is a criminal trial, the parties are bound by the manner in which they conduct or participate in that process and, as a general rule, a party is bound by the conduct of counsel who has a wide discretion as to such matters. That is necessarily the case and in my opinion it is important to preserve that principle intact: See my reasons, with which Parker and Heenan JJ agreed, in Fernando v The Queen [2000] WASCA 289; 11 October 2000, at par [57].
As I also said in that case, this Court has long been guided in a case such as this, where on appeal a complaint is made about a decision of counsel which results in the admission into evidence of material which is accepted to be inadmissible, by the judgment of Gleeson CJ delivering the reasons of the Court of Criminal Appeal of NSW (as his Honour then was) in R v Birks (1990) 19 NSWLR 677, 683 - 685. The enquiry for the appellate court is whether what occurred has produced a miscarriage of justice in the sense that the verdict of the jury must be regarded as unsafe or unsatisfactory for any reason and in particular, for the reason that the accused person can be seen to have lost a chance of acquittal fairly open to him or her. In that context, the question will be whether it is possible to say with assurance that, but for the admission of the inadmissible evidence, the conviction was inevitable: Crofts v The Queen (1996) 186 CLR 427, 441.
In my opinion, in the circumstances of this case it is impossible to say that the applicant did not lose a chance of acquittal fairly open to him by reason that what is conceded to have been inadmissible propensity evidence was led. The matter could not be cured by the directions of the trial Judge to the jury. I would grant leave to appeal, allow the appeal and quash the conviction.
I would not grant a retrial despite the fact that the complainant has given clear evidence which is capable, if accepted, of establishing the charge contained in the indictment. As Pidgeon J has explained, this was in fact a second trial of the charge of the offence in question, the first trial having resulted in an incapacity of the jury to agree upon their verdict. Upon the conviction of the applicant on this occasion, we were told that he was sentenced to 18 months imprisonment with eligibility for parole. In fact, we were told, the applicant declined to be released on parole and, with remissions, served the full sentence. The offence was allegedly committed in August or September of 1996, the first trial was held on 12 - 14 October 1998 inclusive, and the second trial was held on 17 - 19 May 1999 inclusive. In all the circumstances there would seem to
[2001] WASCA 33
MURRAY J
me to be little point, so far as the complainant is concerned or otherwise in the public interest, in making an order for a retrial which would permit the prosecution to be pursued before a third jury.
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