Hinkley v The Queen
[2000] WASCA 91
•12 APRIL 2000
HINKLEY -v- THE QUEEN [2000] WASCA 91
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 91 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:201/1999 | 1 FEBRUARY 2000 | |
| Coram: | PIDGEON J WALLWORK J MURRAY J | 12/04/00 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Leave granted Appeal dismissed | ||
| PDF Version |
| Parties: | DOUGLAS JOHN HINKLEY THE QUEEN |
Catchwords: | Criminal law and procedure Sexual offences against a child Warning as to absence of complaint Whether Judge should refer to possible reasons for the warning |
Legislation: | Evidence Act 1906 (WA) s 36BD |
Case References: | Crofts v The Queen (1996) 186 CLR 427 Kailis v The Queen (1999) 21 WAR 100 B v The Queen (1992) 175 CLR 599 Cunningham v Ryan (1919) 27 CLR 294 Jones v The Queen (1997) 149 ALR 598 M v The Queen (1994) 76 A Crim R 213 Mackenzie v The Queen (1996) 141 ALR 70 McComish v The Queen, unreported; CCA SCt of WA; Library No 980529; 16 September 1998 R v Kirby (1972) 56 Cr App R 758 R v Kirkman (1987) 44 SASR 591 Reynolds v The Queen, unreported; CCA SCt of WA; Library No 980488; 17 August 1998 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : HINKLEY -v- THE QUEEN [2000] WASCA 91 CORAM : PIDGEON J
- WALLWORK J
MURRAY J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Sexual offences against a child - Warning as to absence of complaint - Whether Judge should refer to possible reasons for the warning
Legislation:
Evidence Act 1906 (WA) s 36BD
Result:
Leave granted
Appeal dismissed
(Page 2)
Representation:
Counsel:
Applicant : Mr D McKenna
Respondent : Mr S P Pallaras
Solicitors:
Applicant : Legal Aid Commission
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Crofts v The Queen (1996) 186 CLR 427
Kailis v The Queen (1999) 21 WAR 100
Case(s) also cited:
B v The Queen (1992) 175 CLR 599
Cunningham v Ryan (1919) 27 CLR 294
Jones v The Queen (1997) 149 ALR 598
M v The Queen (1994) 76 A Crim R 213
Mackenzie v The Queen (1996) 141 ALR 70
McComish v The Queen, unreported; CCA SCt of WA; Library No 980529; 16 September 1998
R v Kirby (1972) 56 Cr App R 758
R v Kirkman (1987) 44 SASR 591
Reynolds v The Queen, unreported; CCA SCt of WA; Library No 980488; 17 August 1998
(Page 3)
1 PIDGEON J: The applicant, who was convicted of four offences against children, is appealing on the one ground, namely that the trial Judge, in instructing the jury as to the issue of delay in making a complaint, erred by telling the jury, "It is a very common phenomenon in cases of this type that the children subjected to sexual abuse very often do delay before they make any complaint." It is claimed that this is not substantiated by law or fact and led to a perceptible risk of a miscarriage of justice.
2 The applicant stood trial on 4 March 1999 on an indictment containing 10 counts. It alleged six counts of sexual offences against his wife's elder granddaughter, who was born on 30 September 1983. He was found guilty of the first two of these offences and not guilty of the remainder. The offences on which he was convicted were offences of indecent dealing which were alleged to have occurred during 1995. The remaining four counts alleged offences against the younger sister of that granddaughter, who was born on 1 May 1987. The applicant was found guilty of two of these offences and not guilty of the other two. The offences involving this complainant on which he was convicted were offences of sexual penetration by an act of cunnilingus and were alleged to have occurred between 31 December 1994 and 11 June 1997.
3 The first complainant gave evidence that to all intents and purposes she regarded the applicant as her grandfather. She would visit her grandparents from time to time and would stay over weekends. She remembered one visit at Waikiki when she was sitting on a bar stool eating an apple pie. The applicant came up and put his hands underneath her top and started touching her breasts. She thought this occurred around 1995 or 1996 when she was in year 7. She described a similar incident on another occasion when she was watching television. She then described further incidents of which the applicant was acquitted. She first mentioned the matter to a female friend sometime in 1996. The friend was a couple of years older than she was. She told her that her grandfather had been touching her breasts and private areas. The matter came to the notice of the authorities in 1997 after she had spoken to the school chaplain. She said in cross-examination that the reason why she did not speak about the matter earlier was because she did not think anyone would believe her.
4 The second complainant described in evidence the first incident against her which she said occurred in 1995. She said that the applicant washed her under the shower, then when he was drying her, he pulled her legs apart and licked her private parts. She described the remaining incidents. She said the first person she spoke to was her stepbrother and
(Page 4)
- she did that a few months ago. The step brother told her to tell her mother, which she did, and the matter then came to the notice of the authorities. She, too, was cross-examined as to why she did not earlier complain to her mother. She said she did not know how her mother would react.
5 The applicant gave evidence and denied that there was any inappropriate behaviour with either complainant.
6 The full direction that his Honour gave relating to delay in complaining and the use that could be made of it was: (AB193)
"So that's the background you have got there and the point has been made on behalf of the defence that suggests that the delay in complaining generally, the fact that there were no complaints made earlier than June 1997 and also with regard to Kylie the fact that she initially denied before making a complaint, that these are matters which affect the credibility of each of the two girls.
I need to warn you that the mere fact that a young child has delayed in making a complaint about a sexual matter does not necessarily mean that the complaint that is made is false. Often there are very good reasons why a child that has been subject to sexual abuse might delay in making a complaint and there are all sorts of reasons that can occur. There can be embarrassment or fear of what might happen if the complaint is made within the family, fear that the child might not be believed, and it's a very common phenomenon in cases of this type that the children subjected to sexual abuse very often do delay before they make any complaint."
7 A Judge is required by s 36BD of the Evidence Act 1906, when the specified circumstances arise, to give a warning to the effect that the absence of complaint or delay in complaining does not necessarily indicate that the allegation that the offence was committed is false, and that there may be good reasons why a victim of an offence such as that alleged may hesitate in making, or may refrain from making a complaint. If the circumstances of the trial warrant it, a Judge must be free to comment further, but care is needed in doing so. If much is made by the defence of absence of complaint, then it may be appropriate to refer the jury to possible reasons why a complainant might not complain. In the present case much was made in cross-examination as to why there was no
(Page 5)
- complaint and properly so. The final addresses of counsel are not in the appeal book but it would have been open and proper for counsel to ask the jury to weigh this up in judging the credibility of the complainant. In these circumstances I consider a Judge may refer to possible reasons why he or she is required to give the warning. An appropriate way to do it is to say to the jury that they may consider that a purpose for this is an embarrassment or fear of what might happen if the complaint is made within the family, or fear that the child might not be believed. It would be open to invite the jury to act on their common experiences, and it would be important not to suggest that this conclusion flows from principles of law. The fact that it is a very common experience that children, particularly of the age of the complainants in this case, very often do delay before making a complaint, is well known to the courts. I consider further that it would be known generally and, that if it was not said, jurors would know that this would be a reason for his Honour having to give the direction he did. I consider, however, that at the present time it should not be said in this way by reason of the statute not going as far as that.
8 I consider his Honour was putting it too high when he said that it was a very common phenomenon in cases of this type that children subject to sexual abuse very often do delay before they make a complaint. That suggests that this is established at law, or that there is evidence which proves it. I am satisfied, however, that having regard to the whole of his Honour's address, this did not affect the trial. The first part of his Honour's comment that there can be embarrassment or fear of what might happen goes very closely to the inevitable reason why Parliament must have made the enactment, and that any juror would see it that way. I do not consider it would have made any material difference had his Honour introduced the remarks by using words to the effect, "you may consider", as it would be inevitable that the jury would consider this to be the reason.
9 For these reasons, whilst I would grant leave to appeal, I would dismiss the appeal.
10 WALLWORK J: I agree with the reasons for judgment of Pidgeon J and Murray J. There is nothing I wish to add.
11 MURRAY J: I have read the reasons for decision published by Pidgeon J. I respectfully agree with them and with his Honour's conclusion that although leave to appeal against conviction should be granted, in this case the appeal should be dismissed.
(Page 6)
12 The first complainant, the older of the two children, gave evidence that she delayed making any complaint against the applicant, a person standing in the position of her grandfather, because she feared that her complaint would not be believed. That was a readily understandable and credible explanation. The evidence of the second complainant, the younger child, was to the same effect. She explained that she did not complain at an early stage because she was uncertain how her mother would react, again a readily understandable and credible observation given the position in the family occupied by the applicant and the nature of the relationship between him and the two children.
13 The direction given to the jury by the learned trial Judge about the impact of delay in complaint upon the credibility of the complainants repeated the substance of the relevant provision of the Evidence Act 1906 (WA), s 36BD. There is difficulty in the language of the section when it talks of the jury being told that the victims of offences in sexual cases may have good reasons why they may hesitate in making, or why they may refrain from making, a complaint of the offence, and the fact that they take that course is not to be taken as necessarily indicating that the allegation is false. That tends to invite a trial judge to elaborate, at least in general terms, upon what those reasons might be.
14 It is clear, however, that care needs to be taken not to make observations to the jury which suggest that a reason not canvassed in the evidence may be taken as proven fact. Generalisations expressed in those terms do carry with them the danger that a miscarriage of justice may occur. Such a direction may effectively shield the complainant from criticism upon the basis of the delay in complaint if it appears that the trial judge is making an observation supportive of the credibility of the complainant without reference to the evidence actually led in the case: cf Crofts v The Queen (1996) 186 CLR 427, 451 where Toohey, Gaudron, Gummow and Kirby JJ made the point that sections such as s 36BD were not intended to "sterilise complainants from critical comment where the particular facts of the case, and the justice of the circumstances, suggest that the judge should put such comments before the jury for their consideration."
15 The matter was recently touched upon by this Court in Kailis v The Queen (1999) 21 WAR 100 at 135 where Malcolm CJ said that an appropriate direction should not proceed upon any formulated
(Page 7)
- generalisation as to whether and when a complaint might be expected to be made. His Honour said:
"Circumstances vary greatly and there may be different views as to what is normal and, also, what constitutes reasonable opportunity. So much so, in my view, that there is much to be said for the proposition that the interests of justice are better served if each case is approached in the light of its own facts, with directions to the jury being fashioned to take account of the assumption, if any, to which those facts might give rise, rather than by reference to an assumption expressed in general terms, but which, clearly, cannot hold good in all cases."
In other words, the direction required by s 36BD must always be given where the circumstances require. The extent to which it is tied to the facts of the particular case will, however, depend upon the evidence which might be mentioned to the jury so that they may consider whether the circumstances of the case are such as to raise a concern about the credibility of the complainant, or whether that is not the case, having regard to the failure to complain or the delay in complaining and the opportunities available to the complainant to do so.
16 In this case I think it was regrettable that in directing the jury the learned trial Judge said:
"There can be embarrassment or fear of what might happen if the complaint is made within the family, fear that the child might not be believed, and it's a very common phenomenon in cases of this type that the children subjected to sexual abuse very often do delay before they make any complaint."
- The last part of the sentence was not the subject of any evidence in the case and it was unfortunate because it suggested that perfectly genuine complaints of offences actually committed are very often made after a delay. However, of itself, in my opinion, that was not an observation which was capable of having such an impact upon the jury's consideration of the credibility of the complainants that this Court should interfere to quash the convictions.
17 I am the more confident that that is the case having regard to the fact that the first part of the sentence quoted above was clearly a reference to the evidence given and the explanations proffered by the two complainants. It was clear that both complainants had ample opportunity to make an early complaint and each gave her reason for not doing so.
(Page 8)
- The jury would, in my view, have considered the credibility of the complainants against the background of those circumstances.
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