James v The Queen
[2000] WASCA 100
•12 APRIL 2000
JAMES -v- THE QUEEN [2000] WASCA 100
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 100 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:136/1999 | 1 FEBRUARY 2000 | |
| Coram: | PIDGEON J WALLWORK J MURRAY J | 12/04/00 | |
| 21 | Judgment Part: | 1 of 1 | |
| Result: | Appeal against conviction dismissed Application for leave to appeal against sentence refused | ||
| PDF Version |
| Parties: | IAN GEORGE JAMES THE QUEEN |
Catchwords: | Criminal law and procedure Appeal against convictions Indecent dealing with young child many years before trial Content of Longman warning discussed Content of warning about delay in making complaint discussed Duty of trial Judge to comment on facts and cases of parties discussed Sentencing Multiple indecent dealings with young child by older, trusted friend of family Offender otherwise of good character No previous convictions Aggregate term of imprisonment for 7 years, upheld Sentence structure and sentencing process discussed |
Legislation: | Nil |
Case References: | Adlem v The Queen (1999) 20 WAR 419 Bromley v The Queen (1986) 161 CLR 315 Cooksley [1982] Qd R 405 Crofts v The Queen (1996) 186 CLR 427 Domican v The Queen (1992) 173 CLR 555 H (1980) 3 A Crim R 53 Jarvis v The Queen (1993) 20 WAR 201 Kailis v The Queen (1999) 21 WAR 100 Longman v The Queen (1989) 168 CLR 79 Melbourne v The Queen (1999) 164 ALR 465 Pearce v The Queen (1998) 194 CLR 610 Poole (1999) 106 A Crim R 459 R v Johnston (1998) 45 NSWLR 362 R v Pinder (1992) 8 WAR 19 RPS v The Queen (2000) 74 ALJR 449 Verschuren v The Queen (1996) 17 WAR 467 W (A Child) v The Queen [1999] WASCA 235 Britten v The Queen, unreported; CCA SCt of WA; Library No 940079; 21 February 1994 De Luce v The Queen, unreported; CCA SCt of WA; Library No 960375; 19 July 1996 Dempsey v The Queen, unreported; CCA SCt of WA; Library No 960059; 9 February 1996 Eastough v The Queen, unreported; CCA SCt of WA; Library No 980108; 12 March 1998 Fitzgerald v Penn (1995) 91 CLR 268 Hayesdale Nominees Pty Ltd v Shepherd (1997) 98 A Crim R 435 Johnston v The Queen, unreported; CCA SCt of WA; Library No 960153; 22 March 1996 Kahatapitye v The Queen, unreported; CCA SCt of WA; Library No 980232; 1 May 1998 M v The Queen, unreported; CCA SCt of WA; Library No 980452; 12 August 1999 Miller v The Queen (1995) 13 WAR 504 Nevermann v The Queen (1989) 43 A Crim R 347 Parsons v The Queen (1993) 66 A Crim R 550 Podirsky (1989) 43 A Crim R 404 R v Attfield (1961) 45 Cr App R 309 R v Badjan (1996) 50 Cr App R 141 R v Campbell [1933] QSR 123 R v Carbone (No 2) (1976) 14 SASR 280 R v Cohen and Bateman (1909) 2 Cr App R 197 R v Ireland (1970) 126 CLR 321 R v Lippiatt, unreported; CCA SCt of WA; Library No 980065; 17 February 1998 R v Schmahl [1965] VR 745 R v Veverka [1978] 1 NSWLR 478 Trescuri v The Queen [1999] WASCA 172 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : JAMES -v- THE QUEEN [2000] WASCA 100 CORAM : PIDGEON J
- WALLWORK J
MURRAY J
- CCA 137 of 1999
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Appeal against convictions - Indecent dealing with young child many years before trial - Content of Longman warning discussed - Content of warning about delay in making complaint discussed - Duty of trial Judge to comment on facts and cases of parties discussed
Sentencing - Multiple indecent dealings with young child by older, trusted friend of family - Offender otherwise of good character - No previous convictions - Aggregate term of imprisonment for 7 years, upheld - Sentence structure and sentencing process discussed
(Page 2)
Legislation:
Nil
Result:
Appeal against conviction dismissed
Application for leave to appeal against sentence refused
Representation:
Counsel:
Applicant : Mr T F Percy QC & Mr W J Chestnutt
Respondent : Mr S P Pallaras
Solicitors:
Applicant : Max Crispe
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Adlem v The Queen (1999) 20 WAR 419
Bromley v The Queen (1986) 161 CLR 315
Cooksley [1982] Qd R 405
Crofts v The Queen (1996) 186 CLR 427
Domican v The Queen (1992) 173 CLR 555
H (1980) 3 A Crim R 53
Jarvis v The Queen (1993) 20 WAR 201
Kailis v The Queen (1999) 21 WAR 100
Longman v The Queen (1989) 168 CLR 79
Melbourne v The Queen (1999) 164 ALR 465
Pearce v The Queen (1998) 194 CLR 610
Poole (1999) 106 A Crim R 459
R v Johnston (1998) 45 NSWLR 362
R v Pinder (1992) 8 WAR 19
RPS v The Queen (2000) 74 ALJR 449
Verschuren v The Queen (1996) 17 WAR 467
W (A Child) v The Queen [1999] WASCA 235
(Page 3)
Case(s) also cited:
Britten v The Queen, unreported; CCA SCt of WA; Library No 940079; 21 February 1994
De Luce v The Queen, unreported; CCA SCt of WA; Library No 960375; 19 July 1996
Dempsey v The Queen, unreported; CCA SCt of WA; Library No 960059; 9 February 1996
Eastough v The Queen, unreported; CCA SCt of WA; Library No 980108; 12 March 1998
Fitzgerald v Penn (1995) 91 CLR 268
Hayesdale Nominees Pty Ltd v Shepherd (1997) 98 A Crim R 435
Johnston v The Queen, unreported; CCA SCt of WA; Library No 960153; 22 March 1996
Kahatapitye v The Queen, unreported; CCA SCt of WA; Library No 980232; 1 May 1998
M v The Queen, unreported; CCA SCt of WA; Library No 980452; 12 August 1999
Miller v The Queen (1995) 13 WAR 504
Nevermann v The Queen (1989) 43 A Crim R 347
Parsons v The Queen (1993) 66 A Crim R 550
Podirsky (1989) 43 A Crim R 404
R v Attfield (1961) 45 Cr App R 309
R v Badjan (1996) 50 Cr App R 141
R v Campbell [1933] QSR 123
R v Carbone (No 2) (1976) 14 SASR 280
R v Cohen and Bateman (1909) 2 Cr App R 197
R v Ireland (1970) 126 CLR 321
R v Lippiatt, unreported; CCA SCt of WA; Library No 980065; 17 February 1998
R v Schmahl [1965] VR 745
R v Veverka [1978] 1 NSWLR 478
Trescuri v The Queen [1999] WASCA 172
(Page 4)
1 PIDGEON J: I agree with the reasons to be published by Murray J and with the orders he proposes.
2 WALLWORK J: I agree with the reasons for judgment of Murray J and to the orders proposed by his Honour.
3 I will only add that there was mention in this case that the charges laid were "representative" of a course of conduct. A person can only be punished for the offences of which he or she is convicted. The fact that a person may have offended in a like manner on other occasions is only relevant insofar as an offender cannot claim that the offences for which he is to be punished were isolated offences: Cooksley [1982] Qd R 405; H (1980) 3 A Crim R 53; Poole (1999) 106 A Crim R 459.
4 MURRAY J: The applicant was arraigned in the District Court upon an indictment which, as amended, contained 15 counts of indecent dealing with a child under the age of 14 years and one count of inciting the child to unlawfully and indecently deal with the applicant. He pleaded not guilty and his trial was held before Kennedy DCJ and a jury on 14 - 16 June 1999. The jury returned verdicts of guilty of all the offences charged, which were said to be representative of a course of conduct by the applicant over the period of the indictment.
5 The first and second counts were alleged to have occurred at the same time between 20 September 1980 and 25 December of that year. This occasion was said to be the first upon which the applicant had unlawfully and indecently dealt with the child, a little boy. Count 1 was an indecent dealing by handling the child's penis and count 2 was an indecent dealing by taking the child's penis into the applicant's mouth. 20 September 1980 was the applicant's 18th birthday. Unless the offences charged occurred on or after that date, the complaint of the offence originally laid would fall within the exclusive jurisdiction of the Children's Court and would not be triable upon indictment in the District Court: Children's Court of Western Australia Act 1988 (WA), s 19, unless the matter came before the District Court upon the election of the child under s 19B of that Act or, for particular reasons, was dealt with procedurally by the Children's Court in such a way that it was committed for trial before a judge and jury in a superior court under s 19D of that Act: Adlem v The Queen (1999) 20 WAR 419.
6 I have mentioned that the offences charged in counts 1 and 2 on the indictment were said to be those first committed by the applicant on the same occasion and the allegation, it has been seen, was that the offences
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- were allegedly committed by the applicant during 1980, but after he ceased to be a child upon his 18th birthday on 20 September 1980. The complainant was born on 7 July 1976 so his fourth birthday was on 7 July 1980. His evidence in chief was that this first occasion of indecent dealing occurred when he was four in 1980 "close towards Christmas". He remembered that because he said that the applicant had told him that what occurred would be their "little secret" and at Christmas time he would buy the complainant "something nice". The complainant was not cross-examined specifically about this first incident. It was not put to him that the incident of which he was speaking might have taken place before 20 September 1980.
7 That was not surprising because the applicant's defence was that despite the difference of 14 years in their ages, he and the complainant were indeed firm friends and the activities described by the complainant on occasions when he said the offences occurred, did take place. He denied, however, that any of the offences occurred. When he was referred to counts 1 and 2 and asked to comment upon these allegations, the counts were put to him upon the basis that they referred to an occasion in 1980 after his 18th birthday.
8 In directing the jury Kennedy DCJ correctly described the dates alleged in each count as particulars. Her Honour said:
"They are to allow an accused person to know when about it is said that certain things have happened, but it must be within that date. So if it's not within that date then the charge is not made out in the circumstances."
- There is no need to comment upon the correctness of that direction as a matter of law. By "within that date" in the context of what her Honour was saying, it is perfectly clear that she meant within the range of dates alleged in respect of each count and so I think it to be clear that the convictions of the offences charged in counts 1 and 2 were of offences committed by the applicant as an adult. The same would hold good for count 3, which was another later incident of indecent dealing by taking the child's penis into the applicant's mouth which was also said to have occurred between 20 September and 25 December 1980.
9 I have referred to these matters because at the hearing of the applications the applicant was given leave to amend the grounds of appeal by adding grounds 1A and 1B in the following terms:
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- "1.A Count 1, 2 and 3 were invalid not having been commenced by complaint in the Perth Children's Court. ADLEM v THE QUEEN 1999 20 WAR P419.
1.B Her Honour erred in failing to direct the jury that before convicting the applicant in any of the counts in 1, 2 or 3 of the indictments they would need to be satisfied beyond reasonable doubt that the applicant was over the age of 18 years."
11 The remaining counts in the indictment were, except for count 8, all of offences of indecently dealing with the child by taking his penis into the applicant's mouth. Count 8 was of an offence of inciting the child to indecently deal with the applicant by taking his penis into the child's mouth. I have mentioned that they were particular incidents recalled by the complainant and of which he gave evidence, the last being alleged to have occurred between 1 December 1988 and 31 January 1989, during which period the complainant had come to Perth from Newman, where he lived with his family, for his summer holiday. The offences were therefore said to have spanned a period of eight years. The last of them occurred when the applicant was 26 and the complainant was 12.
12 I have mentioned that the complainant gave evidence which was quite sufficient to support the applicant's conviction of each of the offences charged. His evidence in each case described a particular incident which, he asserted, he could recall. He was not shaken in cross-examination. He denied that he had falsely embellished innocent activities which did in fact occur from to time, by adding an account of the commission of these offences.
13 The complainant's mother gave evidence which supported generally his evidence about the friendship with the applicant, the sort of activities in which they engaged, the places where she and the family lived and matters of that kind. She gave evidence in effect that the applicant had
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- ample opportunity to commit the offences charged, but she gave no evidence to corroborate his account of any offence.
14 A police officer was called to give evidence of an interview he conducted with the applicant on 28 October 1997, nearly nine years after the last offence was alleged to have occurred. The applicant spoke freely of his association with the complainant and agreed that many of the activities, such as outings and holidays and the like of which the complainant had spoken, did occur; but he denied that any offence of a sexual nature was committed and, as I have already mentioned, that was his evidence at trial.
15 The applicant's father gave evidence. Like that of the complainant's mother, his evidence was generally of the association between his son and the complainant with no indication that anything untoward occurred. The other defence witnesses were character witnesses, some of whom not only spoke of the applicant's good character, but also mentioned having on occasions seen the applicant and the complainant together in apparently innocent circumstances.
16 The appeal against conviction is made upon the following grounds:
"1. The learned trial Judge erred in law by not giving to the jury a warning in accordance with the judgment of the High Court of Australia in Longman v The Queen (1989) 168 CLR 79, to the effect that it would be dangerous to convict the accused on the uncorroborated testimony of the complainant.
2. The learned trial Judge erred in law by failing to give to the jury a direction of the kind referred to by the High Court of Australia in Crofts v R (1996) 186 CLR 427.
3. The learned trial Judge erred in law by not directing the jury as to the relevant facts relied upon by the prosecution in support of each count in the indictment.
4. The learned trial Judge erred in law by failing to adequately put the defence case to the jury.
5. The accumulation of the errors of law set out in grounds 1-4 hereof inclusive have led to a miscarriage of justice."
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17 The first ground suggests that the learned trial Judge erred in not giving the warning to which the High Court referred in Longman v The Queen (1989) 168 CLR 79 to the effect that in the circumstances of this case, it would be dangerous to convict the applicant upon the uncorroborated testimony of the complainant. However, the parties are of the same mind that it was necessary to give a warning of that kind and the trial Judge did so. The true question argued before us, upon a generous view of the matter raised by the ground of appeal, was the adequacy of the directions given by the learned trial Judge in this regard.
18 When the trial took place in June 1999 it was between about 10-1/2 and 18-1/2 years after the alleged commission of the offences in question, the offences having been committed, so it was said, when the complainant was between the ages of 4 and 12. On any view it was a long time ago and the complainant was very young when many of the offences were allegedly committed.
19 The jury were warned about those matters and their significance in respect of the fact finding process in the following terms:
"The next matter that I'm required to warn you about is this: from something one or both counsel said, and I may have got this wrong and I don't know which one it was, but you may have got the impression that there are special rules in relation to proving sexual offences. That is not so and it's a fairly old-fashioned type of an idea. However, where the following facts exist - that is to say, firstly, the offences are alleged to have occurred against a young child many years before they are brought to the attention of the police; secondly, the complaints are not made until many years later; thirdly, there is no independent evidence corroborative of the complainant's allegations; fourthly, the accused denied the sexual abuse when interviewed by the police and gave evidence to the same effect - it is necessary, according to law, that the trial judge warn the jury about convicting on the evidence.
The fact that the complaints are made so far after the event means that the accused has lost some of those means of testing the complainant's allegations which may have been open to him had there been no delay in prosecution. Had the allegations been made soon after the alleged events, it would have been possible to explore in detail the alleged circumstances attendant upon their occurrence and perhaps to adduce evidence throwing
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- doubt upon the complainant's evidence or confirming the accused's denial.
After 10 to 17 years delay that opportunity has gone and the complainant's recollection of the events cannot be adequately tested. For that reason, there may be difficulties with the fairness of the trial. In all those circumstances, it is necessary to warn you to be extra careful before convicting on that evidence alone. However, if after scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to this warning, you are satisfied of its truth and accuracy, then certainly you can convict."
20 In Longman the High Court identified long delay in making the complaint and the lack of corroboration of the complainant's evidence as being the circumstances which demanded of the trial judge that a warning be given to the jury to assist in their evaluation of the complainant's evidence on the ground that the opportunity to adequately test the complainant's evidence had long since been lost. As to the content of the warning, Brennan, Dawson and Toohey JJ said at 91:
"The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than 20 years, it would be dangerous to convict on that evidence alone unless the jury, scrutinising 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."
21 The parallels between those observations and what Kennedy DCJ said in this case will be obvious. The applicant's complaint is that her Honour's warning was inadequate because she did not speak of the "danger" of conviction on the uncorroborated testimony of the applicant. What her Honour said was that the jury should be "extra careful" before they convicted on the complainant's evidence alone. Of course the complainant's evidence was the only evidence capable of satisfying the jury beyond reasonable doubt of the commission of the offences charged. Unless they were satisfied of the truth and accuracy of that evidence, it was not only dangerous to convict, but wrong as a matter of law, because the guilt of the applicant could not be established to the required standard of proof.
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22 The purpose of the warning of which the High Court speaks in Longman is to highlight for the jury that it is only upon the evidence of the complainant that they may convict and that the circumstances of the case are such that the fairness of the trial process has been impaired by the loss of the capacity for the defence to adequately test the evidence. The warning heightens the focus of the jury upon the need to be persuaded of the truth and accuracy of the evidence before they may place reliance upon it. In my opinion, what her Honour said satisfied that requirement of the law. It is not necessary for a trial Judge to use the word "danger" in giving the required direction provided he or she makes clear to the jury what the danger is.
23 Where a warning is required it is to aid the jury in their evaluation of the evidence and in the fact finding process upon which they are embarked: Melbourne v The Queen (1999) 164 ALR 465 per Hayne J at 503 -504, par [142] - par [144]. The warning is required because the evidence is potentially unreliable and its unreliability may not be established. No particular form of words is required. The words used should clearly convey to the jury, having regard to the circumstances of the particular case, why they should take care before relying on the potentially unreliable evidence to support a guilty verdict: Bromley v The Queen (1986) 161 CLR 315, 319 per Gibbs CJ, with whom Mason, Wilson and Dawson JJ agreed. Reference should also be made to the propositions expressed by Spigelman CJ in R v Johnston (1998) 45 NSWLR 362 at 375.
24 In Longman at 93 - 94, Deane J remarked upon the different formulations of the requisite warning in various cases. It had variously been put that the jury "should hesitate long", should "scrutinise with very special care", should "carefully weigh", should "exercise considerable caution" before relying upon the uncorroborated testimony of the complainant. McHugh J made the same point in Longman at 108 - 109 where he spoke of the case being one where the requirement of a fair trial required a "strong warning to the jury of the potential for error in the complainant's testimony." His Honour detailed the various matters which justified the warning in that case. He concluded:
"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."
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25 The warning is required in every case where the circumstances demonstrate the danger to which the authorities refer. There is no legal differentiation to be made between a "strong" warning and one which otherwise satisfies the requirements of the law. The content of the warning is always dictated by the particular circumstances of the case. The strength of the warning is similarly dictated by the degree of danger that the jury may not appreciate the difficulty posed to the fact finding process by the circumstances of the case. In this case, in my respectful opinion, her Honour's directions discharged the legal obligation which rested upon her.
26 I can see nothing in the way in which her Honour introduced the topic of the warning based on Longman which unduly weakened it or detracted from its force, and I reject the argument that the warning appears to be given "begrudgingly, as a matter of necessity and without conviction." Nor do I think there was any need to explain the statement that "there is no independent evidence corroborative of the complainant's allegations". In its context the word "corroborative" was not used in any technical sense and in their addresses to the jury both counsel and the learned trial Judge had stressed that the evidence of the complainant was the only evidence capable of supporting a conviction of any of the offences charged.
27 That fact would in any event have been blindingly obvious to the jury and I am unable to see how her Honour's warning as to the care and careful scrutiny required before relying upon the evidence of the complainant could possibly have been misunderstood, or meaningfully strengthened. Her Honour explained to the jury what the danger was and how it arose. What the law then required was that she should add the emphasis of her office to the proposition that the jury should not accept as accurate and act upon the evidence of the complainant without subjecting it to careful analysis and evaluation so as to ensure that they were entirely satisfied of its reliability.
28 I turn to the second ground of appeal. It raises the matter of the failure to complain of the offences allegedly committed until many years later. Her Honour said:
"Now, since I have given you that warning based in part on a delay in complaining to the police, I am also required to warn you that the absence of complaint or delay in complaining may indicate falseness in the complaint but it does not necessarily indicate that the allegation that the offences were committed is
(Page 12)
- false. 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 of that offence. Experience is that children don't complain and that the maturing process can lead to complaints being made. That in fact is what this complainant has said to you."
29 The complainant gave evidence that initially he had no idea that what was occurring between him and the applicant was wrong. It was not until he grew into adolescence and was exposed to talk about homosexuality that he came to realise that the person who had previously been his closest friend and mentor had, for some eight years, taken advantage of his innocence for the applicant's sexual gratification. The applicant was a very close friend, not only of the complainant, but also of his family, and that contact continued after the offending ceased. The last contact he had with the applicant was on the occasion of his 18th birthday.
30 When giving his evidence-in-chief he was not asked why he did not report the matter to the police until late in 1997, but he was cross-examined on this issue. He said he did not raise the matter with the applicant and he continued the social contact because the applicant "was a very good friend of mine". Arising out of that, in re-examination the following exchange occurred:
"Can you explain to us please why you didn't mention anything about it to him in those later years?---Well, it was just something I got brought up with all my life and I kept it inside of me and I didn’t really need to talk about it. As I got older and I realised my sexuality, you know, who I really was, going through high school thinking that you're gay, or is that the way you treat people, I realised that what Ian had done to me was wrong and I could not let that happen to anybody else for all the mental anguish that I have been through, just contemplating suicide, just thinking of all these bad things that happened to me, and as I got older it just started eating me away more, being employed, thinking about it every day, and it only sort of caught up with me when I turned 18, 19, and started realising, you know, what's been done to me shouldn't have been done and I wouldn't want it to happen to anyone else.
Mr Grogan, just one final matter: are you able to explain to the jury why you say that this man was still your friend in light of the things that he had done to you many years earlier?---He was
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- just a very good friend of the family and he did a lot of things for me, he bought me a lot of gifts, he took me to a lot of places and just general things that people do and, you know, Ian was very good to me and that's why I always kept this a secret for so many years."
31 It is apparent that in directing the jury about the significance of the lack of complaint Kennedy DCJ complied with the obligation to warn the jury that absence of complaint or delay in complaining does not necessarily indicate that the allegation that the offence was committed is false, and her Honour informed the jury that there may be good reasons why the victim of offences such as those before the court might hesitate in making or refrain from making a complaint of the offence: Evidence Act 1906 (WA), s 36BD. Her Honour did however go further and inform the jury that "the absence of complaint or delay in complaining may indicate falseness in the complaint" although it would not necessarily do so. I see nothing inappropriate in the final part of her Honour's direction. She merely tied the observation that there might be good reasons why the complainant would refrain from making a complaint to the evidence given by the complainant as I have outlined it above.
32 In Crofts v The Queen (1996) 186 CLR 427 the High Court was required to consider the effect upon the directions which should be given to a jury of the Crimes Act 1958 (Vic), s 61, a provision which effectively enacts in relation to sexual cases the terms of our Evidence Act, s 50 and s 36BD. At 451, Toohey, Gaudron, Gummow and Kirby JJ said that:
"…the purpose of such legislation, properly understood, was to reform the balance of jury instruction, not to remove the balance. The purpose was not to convert complainants in sexual misconduct cases into an especially trustworthy class of witness. It was simply to correct what had previously been standard practice by which, based on supposed 'human experience' and the 'experience of courts', judges were required to instruct juries that complainants of sexual misconduct were specially suspect, those complained against specially vulnerable and delay in complaining invariably critical. In restoring the balance, the intention of the legislature was not to 'sterilise' complainants from critical comment where the particular facts of the case, and the justice of the circumstances, suggested that the judge should put such comments before the jury for their consideration. The overriding duty of the trial judge remains to ensure that the accused secures a fair trial."
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33 There are two observations I would make relative to this case. The injustice of the previous directions based on "human experience" and the so called "experience of courts" to which their Honours refer is patent, but it would be equally inappropriate, in my respectful opinion, for trial Judges to speak at large about human experience being that genuine victims, particularly children, generally do not complain. To make such remarks is, in my view, impermissibly to raise as matters of fact circumstances which are unsupported by the evidence. In this case, however, I think her Honour's direction was immediately placed on secure ground when she referred to the evidence given by the complainant.
34 The decision in Crofts was considered by this Court in Kailis v The Queen (1999) 21 WAR 100. At 135, Malcolm CJ expressed the view that consideration of an appropriate direction could not proceed upon any formulated generalisation as to whether and when a complaint would be made. His Honour said:
"Circumstances vary greatly and there may be different views as to what is normal and, also, as to 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."
35 In this case, as I have mentioned, the learned trial Judge did tell the jury that the absence of complaint or delay in complaining may indicate that the complaint was false. Having said that, it was in my respectful opinion entirely appropriate that her Honour should advert to the evidence given by the complainant, which was the only evidence upon the issue of delay in making the complaint and which, in a credible way, explained the complainant's reluctance to complain, even after he realised that what had occurred was wrong. In my view it would have been inappropriate for her Honour to invite the jury to consider with any more force than she did that the belated complaints might have been a deliberate fabrication. I cannot accept the submission for the applicant that in this case "there was no obvious reason for the complainant not to have made an early complaint." I would not uphold ground 2.
36 Grounds 3 and 4 may be taken together. As I understand the argument with respect to ground 3, it is that the learned trial Judge was
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- obliged to identify and add her comments in respect of various matters advanced by the defence as being weaknesses in the Crown case generally and with respect to particular counts in the indictment. Ground 4 speaks for itself. In the light of my views as to grounds 1 and 2, it will be upon the merit of grounds 3 and 4 that the proposition advanced in ground 5, that overall there has been a miscarriage of justice requiring that the convictions be quashed, depends.
37 A useful starting point in considering grounds such as these is the judgment of the High Court in Domican v The Queen (1992) 173 CLR 555 at 560 - 561 where their Honours said:
"In a criminal trial, the distinction between directions on matters of law and directions on matters of fact or argument is fundamental. A trial judge is bound to direct the jury as to any principle of law or rule of practice applicable to the case, and a misdirection or non-direction on such a matter will usually mean that the trial has miscarried. But matters of fact and the arguments in relation to them are in a different category. A trial judge is not bound to discuss all the evidence or to analyse all the conflicts in the evidence, and, by itself, the failure of a trial judge to do so does not mean that there has been any miscarriage of justice. … Nevertheless, 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 that requirement does not oblige the judge to put to the jury every argument put forward by counsel for the accused. This Court has said that it 'is hardly necessary to say that as a reason for granting a new trial, after a conviction in a criminal case, it is not enough that the presiding judge has not mentioned to the jury all the matters which were set up on behalf of the accused as affecting probabilities'. Whether the trial judge is bound to refer to an evidentiary matter or argument ultimately depends upon whether a reference to that matter or argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence. Consequently, the conduct of the case necessarily bears on the extent to which the judge is bound to comment on or discuss the evidence. Discussion or comment which is justified or required in one case may be neither required nor justified when a similar case is conducted in a different way."
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- See also RPS v The Queen (2000) 74 ALJR 449 per Gaudron ACJ, Gummow, Kirby and Hayne JJ at par [41] and par [42].
38 Putting to one side then the need to give comprehensive and adequate directions about the law applicable to the case (without there being a need to deliver a learned treatise which touches upon matters not in issue), and putting to one side the need to deal clearly with procedural matters (eg, the onus and standard of proof) and matters of evidence where particular guidance, directions and warnings are required, the duty of the trial judge is to fairly and adequately ensure that the jury have the opportunity to understand the cases of both prosecution and defence. Brevity is desirable, as is clarity of expression and simplicity of language. That will aid concentration and understanding on the part of the jury of the issues to be determined. A mechanical reading of large portions of the evidence will not only be unhelpful, generally speaking, in achieving the proper aims of the summing up, but will often positively hinder the achievement of those aims.
39 When an appellate court comes to consider the resolution of grounds of appeal such as these, it will keep those matters of principle in mind and it will construe the summing-up against the ultimate test whether its quality was such as to occasion a miscarriage of justice. The appellate court will not subject the summing-up to a close and over-detailed analysis, as if it was a judgment, but will recall that the summing up is delivered orally as part of a living piece of adversarial litigation in the light of the way the evidence has been led, the case has been fought, and counsel on both sides have addressed the jury.
40 I have mentioned that this was a short trial and I have discussed what the evidence was. The jury had copies of the indictment with them throughout. The Crown opened its case by referring to the particular factual circumstances alleged to constitute the offences charged. The two principal witnesses were the complainant and the applicant. The evidence of the complainant was led and tested in cross-examination by reference to the particular charges before the court. The same course was followed by both counsel when the applicant came to give evidence in his defence. The evidence concluded by 2.30 pm on the second day of the trial. Counsel then addressed, adequately discussing the evidence and presenting their arguments to the jury. The court adjourned at about 3.50 pm.
41 Her Honour charged the jury on the following morning. She gave appropriately framed directions about general matters of procedure and relevant matters of law. She discussed particular aspects of the evidence
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- and gave particular directions in respect of such matters as the law required. Grounds 1 and 2 are concerned with two aspects of those directions.
42 Her Honour made it clear that each charge had to be considered separately and the only evidence capable of establishing guilt of any charge was that of the complainant. It was therefore imperative that he be accepted, not only as a truthful witness, but as one accurately recalling and recounting to them what occurred. She expressed the view that although in reality, if the jury accepted the complainant as an accurate and truthful witness generally they would probably not find any reason to distinguish between the charges and although, on the other hand, if they were not able to accept the complainant as a truthful and accurate witness with respect to any charge, again there may be no reason to distinguish among them, it was nonetheless possible, both as a matter of fact and law, that different verdicts would be returned in respect of different counts on the indictment.
43 Her Honour did not summarise the evidence in respect of each of the counts on the indictment. She referred to three of them in commenting upon the need to be quite satisfied that the complainant was an accurate and reliable witness. These were counts where there had been a direct conflict between the evidence of the complainant and that of the applicant, generally about the time in which the offence might have occurred having regard to the surrounding circumstances. Beyond that her Honour did not discuss the facts of the particular counts and she contented herself with a clear reminder to the jury that the applicant's defence was that none of the offences had been committed.
44 In this case, in my respectful opinion, it was neither necessary, nor would it have been helpful, to do more. The danger of course of a detailed review of the evidence in respect of the various counts on the indictment was the way in which that process may have reinforced the complainant's evidence and made it difficult to maintain the balance of the summing up. I would dismiss the appeal against conviction.
45 The application for leave to appeal against sentence is brought upon the following additional grounds.
"6. The sentences imposed by the learned sentencing Judge did not represent a proper exercise of the sentencing discretion.
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- (a) the sentencing approach adopted by her Honour did not accord with that approved by the High Court in Pearce v R (1998) 103 A Crim R 372;
(b) the learned sentencing Judge erred by dealing with all the offences by the imposition of an identical sentence and failing to differentiate between the comparative criminality involved in each specific offence;
(c) the learned sentencing Judge erred in failing to specify the appropriate starting point utilised by her and the discounts allowed in relation to the overall sentence in respect of the mitigating factors in the case; and
(d) the learned sentencing Judge erred in taking into account irrelevant factors in the formulation of her sentence, namely:
(i) that the accused had created a 'lifetime of problems' for the complainant, and'
(ii) that the complainant himself was likely to offend in the same way himself.
Particulars
The learned sentencing Judge imposed a sentence that did not adequately reflect:
(a) the Applicant's age at the time of the earliest offences;
(b) The Applicant having desisted from the commission of the offences of his own motion;
(c) the Applicant's rehabilitation since the time of the commission of the offences; and
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- (d) the favourable personal antecedents of the Applicant."
46 As ground 6 focuses attention in large part upon the structure of the sentences, it is necessary to examine her Honour's sentencing remarks as she proceeded to the point of imposing a sentence of 12 months imprisonment for each offence. The first seven sentences were ordered to be served cumulatively and the remainder concurrently. An order of eligibility for parole was made in respect of the aggregate term of 7 years.
47 Her Honour's sentencing remarks were brief, but in my respectful opinion, quite adequate. She reviewed briefly the circumstances of the offences and the circumstances surrounding the friendship between the complainant and the applicant. She noted that the offences were "simply a representative sample of your behaviour" and that the offences only stopped when the complainant was no longer sexually a little boy and he ejaculated into the applicant's mouth. Her Honour referred to the victim impact statement which was before the court. She accurately summarised its content and significance when she said:
"Because he is trained by you to this expression of sexuality before he is ready for it, it distorts his own sexuality in ways that he has described to me in the victim impact statement. It creates a lifetime of problems and, unless he has counselling, our experience, strangely enough, is that he may do the same to someone else."
- Her Honour expressed a final conclusion that the offences were very serious.
48 Her Honour summarised what she knew of the applicant's personal circumstances. She referred to the fact that he was only 18 when the offences started and her Honour considered the applicant was ignorant of the harm being done to the complainant. She spoke of his family, his parents, of his otherwise unblemished character, the high opinion in which he was held by colleagues and others in the community, and the fact that the applicant has suffered the extra-curial punishment of the loss of his career as a highly regarded art teacher in the Education Department. However, her Honour found that the seriousness of the offences required substantial punishment as a deterrent to the applicant and to others.
49 Her Honour was obliged both by the common law and by the Sentencing Act 1995 (WA), s 34 and s 35 to give her reasons for the
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- sentences imposed and to explain what she had done. This in my respectful opinion she did very adequately.
50 As to the structure of the sentences, ground 6(a) is a reference to what was said by a majority of the High Court in Pearce v The Queen (1998) 194 CLR 610 at 623 - 624, par [45] - par [48], where the court cautioned against the approach which, in effect, works backwards, where the court is dealing with a multiplicity of offences, by fixing upon the total effective sentence and then dividing it up in some fashion to arrive at the sentences to be individually imposed for each offence, rather than starting by fixing appropriate sentences for each offence and then considering questions of cumulation or concurrence, totality and any other matters which may require the structure of the sentences to be adjusted.
51 I have previously expressed my views about the importance of arriving at an appropriate sentence structure in the correct manner by the application of proper sentencing principle: W (A Child) v The Queen [1999] WASCA 235; 5 November 1999. However, there is no need to enter into that debate in this case because in my opinion there is nothing to suggest that the exercise of sentencing discretion by her Honour miscarried because she fell into the error identified in Pearce.
52 As to ground 6(c), her Honour did not, it is clear, in respect of the individual sentences she imposed, specify a starting point as a term of imprisonment of a particular length to which she applied particular deductions by way of discount for mitigatory circumstances, but she did explain what she found to be mitigatory in the applicant's personal circumstances and antecedents. In any event, this Court has held that it is open to a sentencing Judge to proceed to fix a sentence of imprisonment by the two-tiered approach or not as is found to be helpful. The court has held that it is neither an error of principle to adopt the two-tiered process, nor to decline to do so and so, without more, ground 6(c) may not be accepted as an appropriate ground of appeal: Verschuren v The Queen (1996) 17 WAR 467.
53 As to ground 6(b) I can in this case see no warrant for an endeavour to differentiate between the various offences of which the applicant was convicted. His culpability might be regarded as greater in respect of the earlier offences, but then these carried the sentences which her Honour directed should be served cumulatively.
54 As to ground 6(d), her Honour was right in my opinion to have regard to the victim impact statement as demonstrating the effect of the
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- commission of the offences upon the complainant to that point in his life and potentially for the future. These are matters directly related to a proper appreciation of the seriousness of the offences: R v Pinder (1992) 8 WAR 19 at 39 - 40 per Murray J, with whom Malcolm CJ and Pidgeon J agreed.
55 Ground 7, as amplified in argument, contends that the aggregate term of 7 years imprisonment was too great, thereby demonstrating that her Honour's exercise of the sentencing discretion has miscarried. That is a reference to what has come to be called the totality principle, explained in Jarvis v The Queen (1993) 20 WAR 201, but in my opinion the argument cannot be made out.
56 Of course it was the case, as her Honour remarked, that apart from the commission of these offences the applicant had very favourable antecedents. He was otherwise in all respects a worthwhile citizen, highly regarded in his profession, a family man with a wife and child of his own, from a good family, who had probably offended as a result of psychological problems of his own, and while the applicant was probably ignorant of the harm he was doing to the complainant.
57 But on the other hand, her Honour was undoubtedly correct to regard these offences as being very serious. The offences before the court were representative of a course of conduct. They were repeated over a period of about eight years from a time when the complainant was a very young child. The applicant, on the other hand, was then a young adult. He became a close friend of the complainant. He enjoyed the trust of the complainant's family. He imposed the secret which the complainant was willing to keep because of his high regard for his older friend. The offences stopped, according to her Honour, only after the effect of their commission commenced to involve ejaculation.
58 There was of course no evidence of remorse, but the commission of the offences was denied. There was no evidence of any attempt to achieve the applicant's rehabilitation. The impact of the commission of the offences upon the complainant was described as devastating. They had the potential to so distort the proper development of the complainant's sexuality that the harm done may only be remediable over a very long period of time. In truth it seems to me that an aggregate term of 7 years imprisonment is unexceptional. I would refuse the application for leave to appeal against sentence.
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