Hu v Kennedy
[2016] WASC 312
•29 SEPTEMBER 2016
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: HU -v- KENNEDY [2016] WASC 312
CORAM: BANKS-SMITH J
HEARD: 20 SEPTEMBER 2016
DELIVERED : 29 SEPTEMBER 2016
FILE NO/S: SJA 1024 of 2016
BETWEEN: YUNTAO HU
Appellant
AND
JACK MICHAEL KENNEDY
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :DEPUTY CHIEF MAGISTRATE E A WOODS
File No :PE 12821 of 2015
Catchwords:
Criminal law - Single judge appeal against conviction - Whether safe to convict absent corroboration - Whether any relevant delay in reporting - Whether failure to take into account delay
Legislation:
Criminal Appeals Act 2004 (WA), s 8, s 9, s 14
Criminal Code (WA), s 323
Evidence Act 1906 (WA), s 50
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr H J R Rigby
Respondent: Ms K C Cook
Solicitors:
Appellant: HRL Legal Australia
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
LBC v The State of Western Australia [2011] WASCA 201
Longman v The Queen (1989) 168 CLR 79; (1989) 89 ALR 161
R v GG [2004] VSCA 238; (2004) 151 A Crim R 92
SPW v The State of Western Australia [2012] WASCA 41
BANKS-SMITH J:
Introduction
The appellant seeks leave to appeal against his conviction in the Magistrate's Court after trial of one count of indecent assault contrary to s 323 of the Criminal Code (WA). The appellant was fined $800.
The prosecution case
The prosecution alleged that on 12 February 2015, the complainant was at the share house where she lived with four others, including the appellant and the appellant's wife. In the early hours of the morning, she went to the toilet. The appellant came to the toilet door, forced his way in and touched the complainant on the breasts, and the touching was uninvited and unwelcome (ts 4).
Evidence relied on by the prosecution
There were three witnesses who gave evidence for the prosecution.
The complainant (who gave evidence via an interpreter) said that she went to the toilet at about 3.00 am, and that when she finished she tried to come out. It was a very small room, about one metre square (ts 5 ‑ 7). The appellant suddenly came in and tried to cover her mouth. She tried to push him out but he held her in a bear hug. He blocked her way but they ended up in the corridor outside the toilet. She struggled with him. He touched her on the breasts and buttocks (ts 7 ‑ 9).
They reached her bedroom and she had a difficult time pushing him out of the bedroom. The complainant said to him, 'If you keep on doing this I will tell your wife'. The appellant then said something like sorry and said he would move out, and left the bedroom (ts 10 ‑ 11).
The complainant said she then locked her bedroom door and wrote in her diary, some five minutes after the appellant had grabbed her (ts 11).
The complainant read her diary entry to the court without objection from the appellant's counsel (ts 12). The transcript records the entry as follows:
OMG. Just a second before I went to toilet and I heard someone want to go to toilet too so I thought was [the appellant's wife], then I said, 'Just one moment.' but when I finished, then I opened the door (indistinct) just came inside. I didn't know what happened and then I found he want to rape me. OMGWTF. I was so afraid I almost screamed out, but he put hands on my mouth. We actually fight a while from toilet to my bedroom. I don't know what's wrong with him, but finally he found he was wrong then he apologised to me and begged me to not tell [his wife]. Well, if we would have next time, then I will give him a chance not to tell anybody just see, but I have lot of work to do that's really freaking me out.
The next morning the complainant went to university and had a conversation with her friend (who I will refer to as YA) (ts 13).
Under cross‑examination, the complainant was asked about the date of the diary entry. She explained that although the date says 11 February 2015 it was 3.00 am in the morning and the date should be 12 February 2015. She was asked why the diary entry did not mention her being touched on the breasts or buttocks (ts 15). The complainant said she did not know a word to describe what happened and used the word 'rape'. She said she did not think he actually committed the crime of rape but she did not know the word to describe it so used that word (ts 17).
The complainant was asked why she did not report the matter to the police for 10 days. She said it was a complicated matter, that she was preparing for an exam the following week, that she did not want the matter to become too big and worry her parents and that she had relatives coming from China (ts 17).
The complainant's evidence was not otherwise challenged under cross‑examination.
YA gave evidence. She said she met the complainant and some other classmates when she went to university on the morning of 12 February 2015. She asked the complainant why she was at university early and the complainant told her that she was living with a guy and his wife and they harassed her sometimes. YA said the complainant seemed upset (ts 19 ‑ 20).
YA said that about a week later the complainant sent her text messages in which she referred to their conversation at university. In the text messages, the complainant said that in fact her housemate had tried to rape her and she was scared at night, had left the house and stayed with another friend. She said she could not report it to the police immediately and regretted that, but she hoped to report it to the police (ts 20).
YA said that about a week later, she saw the complainant at university and she repeated what she had said in the text messages and said she was suffering stress. When YA asked why she was stressed, she said it was because the guy had tried to rape her (ts 20).
YA read the text messages in court from a print out, translating them into English, and that evidence was consistent with what YA had said about the text messages (ts 22).
Under cross‑examination, YA was asked whether, on the morning after at university, the complainant had mentioned that the person had touched her breasts and YA said, 'yes'. She was asked if that was exactly what was said to her and she again said, 'yes' (ts 23).
The third prosecution witness was a police officer, Constable Kennedy, who gave evidence that he took a statement from the complainant on 2 March 2015. The complainant told him she had taken notes in a diary. Constable Kennedy then visited the house where the complainant and appellant resided and seized with the complainant's authority her diary and a t‑shirt she said she had been wearing at the time of the incident. He then arranged to have the t‑shirt tested and the results of that examination showed, 'that the accused's DNA was not present or at least not detected on the t-shirt worn by [the complainant] that night' (ts 26).
The appellant's defence
The appellant did not give evidence. Three matters were raised on his behalf in support of a submission that it would be dangerous to convict the appellant: there was no corroborating evidence; there were inconsistencies in the complainant's evidence about the date of the offence and use of the word, 'rape'; and the complainant delayed in reporting the matter to the police (ts 27 ‑ 28).
The magistrate's findings
The magistrate delivered ex tempore reasons. In summary, the magistrate accepted the complainant's evidence as to the conduct of the appellant.
The magistrate's assessment of the evidence included the following:
(a)her Honour set out an accurate summary of the complainant's evidence in similar terms to my summary above;
(b)the magistrate set out an accurate summary of the evidence of YA as to her conversation with the complainant the following morning at university, as to the text messages passing between her and the complainant and as to the further conversation about a week later;
(c)the complainant's evidence as to the touching of the breasts and buttocks without consent or invitation was an indecent assault (ts 29);
(d)the event took place on 12 February 2015 and the explanation for the diary bearing the date of the preceding day is a reasonable one (ts 28);
(e)the complainant's diary notes were contemporaneous and were read to the court (ts 29);
(f)the complainant gave an explanation for using the word, 'rape' in the notes. She did not indicate that the offence of rape had occurred. The complainant described the touching in her evidence and in cross examination and clearly the term was used as a generic broad term to describe the type of conduct as she knew it to be (ts 30);
(g)there was no challenge to YA's evidence as to what was set out in the text messages, nor the manner in which they were translated into English (ts 30); and
(h)the police officer gave evidence that he took samples and had tests conducted which were inconclusive (ts 31).
Because of its importance to the proposed grounds of appeal, I set out the following excerpt from the reasons (ts 31):
The accused in this matter has elected not to call any evidence. In relation to the evidence that I heard from [the complainant], [the complainant] came to the court, presented her evidence in a logical fashion. Her evidence was, in my view, consistent. She has given the same information to [YA] whilst the recent complainant [sic - complaint] witness doesn't meant that the conversation - sorry - that the events are true, it does corroborate the fact that there was some incident that occurred.
There is consistency between [the complainant] and [YA] and none of the evidence, to any great extent, was challenged of [the complainant] or [YA] in the sense of, 'This never happened. There was no touching.' She was not cross-examined to that extent and it was not put in question as to the timing, the actual detail of the touching or the incidents except in - to refer to the bear hug which was described by the court as a bear hug, when in the statement there was some reference to her being held across her or over shoulders.
In these circumstances, I'm satisfied that the evidence of [the complainant] tells the story accurately. I have no evidence to the contrary from the accused. There was nothing by way of cross-examination, in my view, to contest what she says and I accept her evidence in its entirety, along with that of [YA]. In those circumstances, it is my view that the prosecution have proved this charge beyond reasonable doubt. There was an indecent touching of [the complainant] by Mr Hu. It did consist of touching of the breasts and buttocks that was neither invited nor wanted by [the complainant].
The proposed grounds of appeal
Ground 1 of the appellant's proposed grounds alleges that the magistrate:
Erred in law in finding that the evidence of the witness [YA] corroborated the evidence of the complainant when it was not capable of being corroborating evidence since:
(a)the evidence of such witness was not, and could not at law have the character of being, independent corroboration of the commission of the alleged offence since it amounted to no more than a report of what the complainant had confided in her as the complainant's friend; and
(b)further or alternatively, the learned Magistrate found that this evidence did not corroborate the truth of the events said to have constituted the alleged offence, or even events of a similar nature described by the complainant but merely that it corroborated the fact that 'there was some incident that occurred' which is insufficient corroboration at law.
Ground 2 alleges the magistrate:
Erred in law in drawing an adverse inference against the accused from his right to elect not to give evidence in stating in her decision that she had 'no evidence to the contrary from the accused' to that of the complainant.
Ground 3 alleges the magistrate:
Erred in fact in failing to take into account in her reasons for decision the uncontested evidence of the complainant that she did not report the matter to the police until 10 days after the incident.
Ground 4 alleges the magistrate:
Erred in fact in respect of evidence of the witness Detective First Class Constable Michael Kennedy that results of the testing for the accused's DNA on the complainant's T-shirt worn at the time of the alleged incident showed that the accused's DNA was not present or at least not detected on the t-shirt, by:
(a)failing to take into account such evidence in her reasons for decision; and
(b)further or alternatively, wrongly finding in her reasons for decision that such test results were 'inconclusive', which they were not as far as negativing any implication of the accused in the offence was concerned.
Ground 5 alleges the magistrate:
Erred in law in finding that the complainant's diary notes were made contemporaneously with the event complained of when the diary was not tendered and therefore not evidence before the court.
Principles relevant to appeal
Leave of the court is required for each ground of appeal: s 9(1) Criminal Appeals Act 2004 (WA). Leave must not be given unless this court is satisfied the ground has a reasonable prospect of succeeding: s 9(2).
Even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred: s 14(2) Criminal Appeals Act.
Ground 1
The appellant's submissions commenced with the premise that there ought to have been corroborative evidence in order for a conviction to be safe. The appellant then contended that the evidence of YA was not of its nature capable of corroborating the evidence of the complainant.
The appellant cited the common law position that it is dangerous to convict an accused of a sexual offence based on the oral evidence of a victim, unless such evidence is corroborated and cases relevant to that position. Whilst acknowledging that the Evidence Act 1906 (WA) has abolished the need for corroboration, the appellant's counsel in effect sought to resuscitate it.
Section 50 of the Evidence Act provides that an accused may be convicted on the uncorroborated evidence of one witness. In short, it was not necessary for the magistrate to find that there was corroborative evidence in order to convict the appellant.
Whilst the magistrate used the word, 'corroborate' (see [21] above), viewed fairly, her Honour treated the evidence of YA as evidence of recent complaint (the reference in the transcript to 'recent complainant' (ts 31) must sensibly be read as a reference to 'recent complaint'). Her Honour's findings do not proceed upon the basis that there was evidence that corroborated the complainant's evidence as to the touching of her breasts and buttocks. Indeed, her Honour expressly notes that the evidence of YA 'does not mean that the events are true'.
The principles applicable to recent complaint evidence are set out in SPW v The State of Western Australia [2012] WASCA 41 [49] ‑ [70]. Relevantly, when evidence is admitted under the doctrine of recent complaint, it is not admissible as evidence of the facts in issue, but is admissible to buttress the complainant's credit as a witness by demonstrating consistency of conduct. The magistrate expressly comments on the consistency between the evidence of the complainant and YA. There was no objection at trial to the admissibility of the evidence of YA. In my view, the magistrate did not err in her admission or use of the evidence of YA. It was used to buttress the complainant's credit. Having had the benefit of seeing and hearing the complainant's evidence, the magistrate accepted her evidence.
The ground does not have a reasonable prospect of success and I would refuse leave on this ground.
Ground 2
Ground 2 rests solely on the statement by the magistrate that, 'I have no evidence to the contrary from the accused'. During the hearing before me, the appellant submitted that (ts 8 ‑ 9):
[A] comment like that, it would appear that the magistrate had in her own mind that there was some sort of mileage to be got from that, that the fact that the accused had not got in the witness box, had not contradicted the evidence, was basically, in her mind, something that was damning of him - that it showed some sort of evidence of - of guilt.
I do not accept that submission. If it were valid, it would deny a magistrate the ability to note whether or not an appellant has given evidence. There is no bar on a magistrate doing so. The magistrate's statement was an accurate statement. I do not identify anything in the magistrate's reasons that suggests her Honour drew any adverse inference from that fact. Rather, it seems to me that the magistrate was careful to ensure that she had taken into account any matter that might detract from the weight she would otherwise accord the complainant's uncontested evidence. The fact that there no evidence to the contrary from anyone - including the appellant - was something upon which she was entitled to comment.
The ground does not have any reasonable prospect of success and I would refuse leave on this ground.
Ground 3
Implicit in this appeal ground is that 10 days is so long a delay in reporting to the police as to make the conviction dangerous. The appellant relies upon Longman v The Queen (1989) 168 CLR 79; (1989) 89 ALR 161.
During the hearing, counsel for the appellant explained why the 10 day period was considered a long delay (ts 11):
Well, I suppose the complainant having said the effect it had on her. It's a serious matter. The reporting of these things, as I understand it - perhaps I stand to be corrected - is usually within a day or so. If that had been the case, then I suppose her Honour would have been entitled not to mention it, to disregard it, because it would have been the norm in report of reporting. But here, we are talking about not a substantial period, but still a period of 10 days delay. I would have thought it was worthy of some sort of comment, at least, that she should have turned her mind to it. And if she had said, "Well, it's not significant" et cetera, well, then there would be proof that she had turned her mind to it and decided that it was not important. But I suppose we will never know, because the learned magistrate never even mentioned the period of delay. What I'm submitting is, is that it should have at least been mentioned and dealt with as part of her overall decision, but it simply wasn't canvassed at all, and so we don't know if that might have been a factor that could have been relevant at the end of the day.
It is therefore apparent that two issues are raised by the appellant: the delay but also the lack of any reference to the delay in the magistrate's reasons.
As to the first, issue, I do not accept that there is any basis for asserting 10 days is a relevant delay in this case in the context of the principles discussed in Longman. Nor do I place any weight on counsel's assertion that there is a norm for reporting. As noted in SPW [53], [57], a trial judge must take into account all relevant facts and circumstances in deciding whether a complaint was made at the first reasonable opportunity and there is no set rules in determining when a delay is 'too long' (citing Eames JA in R v GG [2004] VSCA 238; (2004) 151 A Crim R 92 [46]).
As to the complaint that the magistrate failed to refer to the alleged delay, in my view that is hardly surprising as the time period was not such as to constitute any relevant delay. However, even if the magistrate wrongly failed to take into account the 10 day period prior to reporting, then viewing the totality of the evidence I do not consider such error impacted on the magistrate's conclusion. I do not consider there would have been any different outcome had the magistrate made a finding as to the alleged period of delay. The delay was explained by the complainant, and that explanation was credible. Accordingly, there was no error such as to give rise to a miscarriage of justice.
The ground does not have a reasonable prospect of success and I would refuse leave on this ground.
Ground 4
First, the appellant contends that the magistrate erred in fact in failing to take into account in her reasons Constable Kennedy's evidence that no DNA from the appellant was found on the t‑shirt worn by the complainant. In oral submissions at the appeal hearing, it was said that the t‑shirt 'pretty much excludes [the appellant]', because 'if he had touched the shirt then some DNA would be there' (ts 15). There was no evidence to support counsel's submissions (submissions which were not made before the magistrate) to the effect that DNA would be present if the appellant had touched the complainant as alleged and therefore the DNA testing excluded the appellant.
The second asserted error was the magistrate's description of the DNA testing as 'inconclusive'. During the hearing before the magistrate, the appellant's counsel also described the DNA report as inconclusive (ts 2). Be that as it may, the complaint seems to be the magistrate's use of the word 'inconclusive,' in light of Constable Kennedy's evidence.
There is no suggestion in her Honour's reasons that she drew any inference adverse to the appellant from the 'inconclusive' nature of the DNA test. Nor was there evidence before her which would have justified any finding consistent with the appellant's proposition that Constable Kennedy's evidence excluded the appellant or excluded a finding that the appellant touched the complainant as alleged.
I am not satisfied that there has been any error of fact such as to comprise a miscarriage of justice. The uncontested oral evidence from the complainant was that the appellant indecently assaulted the complainant and the magistrate accepted the complainant's evidence. On that basis, the magistrate was satisfied that the prosecution had proved its case beyond reasonable doubt. Constable Kennedy's evidence was not inconsistent with the magistrate's findings.
Again, the ground does not have a reasonable prospect of success and I would refuse leave on this ground.
Ground 5
The diary note was read into evidence without objection from the appellant's counsel. The complainant was cross examined as to two matters arising from that evidence, being the date of the entry and the reference to 'rape'. Those are the only matters of substance arising out of the diary note which were referred to by her Honour.
No error of law is identified. An appeal could only be allowed on the ground that there was a miscarriage of justice. The relevant principles are summarised in LBC v The State of Western Australia [2011] WASCA 201 [10] (Martin CJ):
In cases in which evidence is wrongfully admitted over objection, an appeal may be allowed on the basis that a wrong decision on a question of law was made by the trial judge (Criminal Appeals Act 2004 (WA) s 30(3)(b)) (CA Act). However, where no objection is taken to the impugned evidence, that course is not available, and an appeal can only be allowed on the ground that there was a miscarriage of justice (CA Act, s 30(3)(c)). No miscarriage of justice will have occurred in a case in which it can be inferred that a calculated forensic decision was taken to permit the receipt of inadmissible evidence because it might assist the defence case: see Oblak v The State of Western Australia [2007] WASCA 176 [6] - [9] (Buss JA); R v Soma [2003] HCA 13; (2003) 212 CLR 299 [11], [79] (Gleeson CJ, Gummow, Kirby and Hayne JJ); Carney v The State of Western Australia [2010] WASCA 90 [40] (Pullin JA, Owen JA and Jenkins J agreeing). Further, the receipt without objection of evidence which is technically inadmissible will only give rise to a miscarriage of justice if the evidence can be seen to have occasioned material prejudice to the appellant: see Oblak [64] (Miller JA, Le Miere AJA agreeing).
Although in this case it is s 8 of the Criminal Appeals Act which is relevant to the grounds of appeal, the above principles still apply. I do not consider there has been any miscarriage of justice. The appellant's counsel chose to cross examine on the diary. It can be inferred based on the cross examination that counsel considered there was a potential forensic benefit in doing so. There was no material prejudice occasioned to the appellant. Even if the magistrate placed weight on the evidence of the diary note, such evidence was consistent with the oral evidence as a whole, evidence which was accepted by the magistrate.
The ground does not have a reasonable prospect of success and I would refuse leave on this ground.
Orders
For the above reasons, the application for leave and the appeal should be dismissed.
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