Kemp v The State of Western Australia
[2006] WASCA 6
•20 JANUARY 2006
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: KEMP -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 6
CORAM: MALCOLM CJ
ROBERTS-SMITH JA
MCLURE JA
HEARD: 2 DECEMBER 2005
DELIVERED : 20 JANUARY 2006
FILE NO/S: CCA 212 of 2004
BETWEEN: ROBERT ANDREW KEMP
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :DEANE DCJ
File No :IND 1451 of 2001
Catchwords:
Criminal law - Adequacy of Longman direction - Turns on own facts
Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr D P A Moen
Respondent: Mr D Dempster
Solicitors:
Appellant: Peter J Griffin & Co
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Attorney‑General's Reference No 1 of 2001 [2001] WASCA 316
Christophers v The Queen (2000) 23 WAR 106
Crampton v The Queen (2000) 206 CLR 161
Crisafio v The Queen (2003) 27 WAR 170
Doggett v The Queen (2001) 208 CLR 343
Longman v The Queen (1989) 168 CLR 79
Case(s) also cited:
Nil
MALCOLM CJ: In my opinion, this appeal against conviction should be dismissed for the reasons to be published by McLure JA with which I am in entire agreement. I also agree with the comments made by Roberts‑Smith JA. There is nothing I could usefully add.
ROBERTS-SMITH JA: As McLure JA points out, the "trigger" for a Longman warning (Longman v The Queen (1989) 168 CLR 79) is delay - almost invariably in combination with other circumstances. In Longman the delay was 20 years. In Crampton v The Queen (2000) 206 CLR 161 it was again almost 20 years. In Doggett v The Queen (2001) 208 CLR 343 it was some 18 years. As these and other authorities make clear, the problems with which a Longman warning seeks to deal are not confined to the difficulties of recollection an accused may have because of long delay, but also the denial to an accused, by such delay, of the forensic weapons that a timely complaint might allow him or her to assemble. The delay here fell well short of one in which such considerations would inevitably be manifest. Nor were any suggested. The matters set out in particular (d) to the sole ground of appeal pressed before us, wholly lacked specificity. How they were said to operate in conjunction with the delay of four to six years, to the prejudice of the appellant, was not explained, much less demonstrated by reference to the evidence counsel's addresses to the jury or her Honour's summing‑up.
It is unwise for a trial Judge to state that he or she "never" uses the words "dangerous to convict" in giving a Longman direction. There may well be cases in which such a direction should be given in those terms. But the question is always what direction is required in the particular case. In the passages quoted by McLure JA, the trial Judge made it abundantly clear to the jury that they must have regard to the considerations she adumbrated and that the issue was whether, having regard to them, they could safely act on the complainant's evidence. That was in circumstances in which there was evidence other than the complainant's testimony, supportive of her account.
I agree with the conclusions of McLure JA for the reasons given by her Honour.
MCLURE JA: On 16 December 2004 the appellant was found guilty after trial on 11 counts: one count of oral penetration of his de facto child, the complainant, two counts of vaginal penetration of the complainant, two counts of indecent dealing with the complainant, two counts of unlawful detention of the complainant, one count of assault causing bodily
harm, two counts of assault and one count of threat to kill the complainant. All of the sexual offences were committed when the complainant was under the age of 16 years. The first offence was committed in 1994 when the complainant was 11. The sexual offences were committed in the period 1994 to 1996. The last offence, being threat to kill, was committed between July and October 2000. In November 2000 the complainant informed the police of some of the appellant's conduct the subject of the counts.
Only one ground of appeal was pursued. It concerns the adequacy of the Longman direction, being a reference to Longman v The Queen (1989) 168 CLR 79. The ground is in the following terms:
"The learned trial judge failed to direct the jury adequately in terms of Longman.
PARTICULARS
(a)The learned trial judge's direction to the jury that they should scrutinise the evidence of the complainant was inadequate.
(b)The learned trial judge failed to direct the jury that it would be 'dangerous' to convict when the circumstances of the case warranted such specific words being used.
(c)The learned trial judge stated that she never used the words 'dangerous' to convict there by closing the door to any possible use of the said words when the case required same to be used.
(d)The length of delay, the absence of complaint, the nature of the relationship between the mother of the complainant and the Applicant, the nature of the relationship between the Applicant and the complainant along with the dysfunctional history of the relationships between the parties and the animosity towards the Applicant by the mother of the complainant and the complainant required a clear and unambiguous direction in line with Longman that it would be dangerous to convict the Applicant."
The appellant's written submissions went little further than restating the ground of appeal. In particular, subpar (d) of the ground of appeal is merely restated without elaboration or references to the evidence. The omission was not rectified in oral submissions.
Appellant counsel's initial submission was that the sole complaint about the adequacy of the direction was the learned trial Judge's omission to use the phrase "dangerous to convict". However, as a result of an exchange between State counsel and the Bench, the appellant's counsel in his reply contended that the trial Judge erred in directing the jury that it might be unsafe to convict because of the delay. It was also contended that the trial Judge inappropriately fettered her discretion by indicating, in the course of submissions in the absence of the jury on the matters to be the subject of direction, that she would not use the word "dangerous" and had never done so.
This is not the occasion for a detailed and comprehensive examination of the relevant authorities on the topic of the Longman warning. Counsel for the parties were obviously of the same view as they made no attempt to assist the Court in that regard. It was accepted by both parties that the law on the subject is correctly stated in the judgment of Owen J in Christophers v The Queen (2000) 23 WAR 106 at [37]. Relevantly for present purposes, Owen J noted that there was no prescribed or ritualistic formulation in which the Longman warning is to be delivered and that the adequacy of the warning in any particular case is not necessarily sensitive to whether the phrase "dangerous to convict" is uttered. The Full Court has said repeatedly that there is no formula for a Longman warning that requires the words "dangerous to convict" to be used: Crisafio v The Queen (2003) 27 WAR 170; Attorney‑General's Reference No 1 of 2001 [2001] WASCA 316.
As observed by Steytler J in Attorney‑General's Reference No 1 of 2001 at [14], it is the message to the jury that is important rather than the choice of words to be used to convey that message. Whether it is appropriate to use the word "dangerous" or a synonym, such as "unsafe", depends upon the circumstances of the case. There may be occasions when it is appropriate and trial judges should remain open to that possibility. However, there can be no miscarriage if this is not a case where it is required.
In order to assess the sufficiency of the warning, it is necessary to describe the evidence and issues in the case. The complainant was one of a number of children of the complainant's mother ("mother"). A number of the children had different fathers. In 1994 the mother and the appellant commenced a sexual relationship that continued, with periods of separation, until around 1998. The appellant cohabited with the mother and her children including the complainant, with periods apart, until the cessation of the relationship in 1998. In a video record of interview with police adduced in evidence, the appellant admitted living in a de facto relationship with the complainant sometime after she turned 16, which was in December 1998, but otherwise denied the charges against him.
The appellant commenced living with the mother and her children, including the complainant, in 1994 when the complainant was 11. Shortly after the appellant moved in, and after the first occasion on which the complainant claimed the appellant had penetrated her vagina, the complainant contracted genital herpes type 2. At the material time the appellant also suffered from genital herpes and he supplied the complainant with cream for the condition. There was expert evidence that genital herpes is considered to be a sexually transmitted infection and is not acquired from using common facilities or household items such as a toilet or towel. The appellant admitted in the record of interview that the complainant had acquired genital herpes before the commencement of their admitted sexual relationship and that at the material time he also had genital herpes. He explained the complainant's condition as arising from her use of the family toilet or towels. There was no suggestion of the possibility of her acquiring the condition from sexual contact with anyone else. The mother corroborated the complainant's evidence about the fact and time of acquisition of her condition.
The appellant and the mother ended their de facto relationship in 1998 when the family were living together in Morrison Street, Redcliffe. The mother and other siblings moved out of the house. The complainant stayed behind. The appellant lived in a de facto relationship with the complainant for about 18 months. The complainant left him in about September 2000 when she was aged 18.
The mother's evidence was that as a result of what she perceived as the complainant's attachment to the accused when she was about 13 or 14 years old, the mother did not like the complainant and was hurt by her relationship with the appellant. The mother was keen to re-establish her relationship with the appellant even after she left the Morrison Street house and, it seems, after she was aware of the de facto relationship between the appellant and complainant.
The physical abuse and deprivation of liberty the subject of the various counts were, according to the complainant, associated with the appellant's role as the disciplinarian of the family. The complainant's evidence as to the earlier counts of deprivation of liberty and assault are in part corroborated by evidence given by the complainant's brother's girlfriend.
Delay is the trigger for a Longman warning, the primary purpose of which is to draw to the attention of the jury the difficulties in an accused testing and effectively challenging the allegations by reason of the passage of time. Other factors having the potential to distort recollection, such as for example, age or suggestibility, in combination with delay should also be addressed as part of the warning.
Counts 8, 10, 11 and 12 (the accused was found not guilty of count 9), being assault, unlawful detention and threat to kill offences, were committed in the period 1998 to October 2000. I do not understand it to be said that the delay was, in the circumstances, such as to require a Longman warning for these offences. The Longman warning was given because most of the sexual offences occurred in the period from 1994 to 1996, being between four and six years prior to the complainant's complaint to police. This was not a case of "oath on oath" without more. There was other evidence that could provide independent support for the complainant's evidence, primarily her contraction of genital herpes.
The trial Judge's direction included the following:
"In assessing the truthfulness and reliability or accuracy of the evidence of [the complainant] you should bear in mind that the longer the delay between the happening of the alleged offence and the formal complaint the greater the possibility of error in the recollection of the incident which gives rise to the offence.
In saying this to you I am simply telling you what you probably already know from your own human experience, namely that the passage of time does make it more [difficult] to accurately recall a particular incident in any detail. The passage of time increases the possibility of factual errors being made when a person is describing an incident which occurred sometime in the past.
This is a matter which you should consider very carefully when you are looking at and considering the accuracy and reliability of the evidence of the complainant … You should appreciate that the longer the delay between the alleged incidents which give rise to the charges and the complaint being made by the complainant to police or authorities, the more difficult it is for evidence relating to the incidents to be fully tested.
The delay coupled with the lack of precision in some instances makes it difficult for an accused person to examine in detail the circumstances of the alleged offences although in this particular case you will appreciate that the accused denies that any of the events alleged on the indictment occurred, however the delay still places the accused at a disadvantage."
The Judge then referred to examples and continued:
"I am drawing your attention to certain circumstances which you should and must take into account when you are assessing [the complainant's] evidence. In respect of all of the counts the substantial or a good part of the evidence produced by the state as to the commission of the charge in each instance is that of the complainant herself.
It follows in effect that the state case relies very heavily and largely on the complainant's evidence and your assessment of her reliability and credibility. … The complainant is now 22 years of age and said she was about 11 years old when the first alleged offences occurred, therefore you must take into account that in her life those particular incidents about which she spoke occurred quite some time ago when she was comparatively young.
The passage of time is a factor in people's recollection of events and memory and recollection often dims with the passage of time. The passage of years between the alleged events and the matter coming to court for hearing raises the question that you must consider, which is the reliability and accuracy of [the complainant's] recollection and whether or not you can safely rely and act upon it. That is a specific issue which you must address in considering whether or not you accept her evidence because, as I have explained, the passage of time and the way the matter has unfolded and past means that the accused has to a degree lost the means of testing certain aspects of the evidence which have been made against him.
Taking into account those factors that I have been mentioning you might find that it would be unsafe, although it is entirely a matter for you, to find the accused guilty of the charges presented against him unless having carefully scrutinised the complainant's evidence and paid due regard to it and applying which I have just told you about it you are satisfied beyond a reasonable doubt both as to the truth and accuracy of her testimony. If, having evaluated her evidence with great care and mindful of the matters that I have been directing you to take into account, you are satisfied as to the truth and accuracy of her evidence on any particular matter you can make findings of fact based on that evidence.
… Whether you accept or reject [the complainant's] evidence is matter for you but you must be alert to the problems and difficulties that I have just pointed out." (Emphasis added)
I turn now to the factors relied upon by the appellant as requiring the use of the "dangerous to convict" formula. The first is the length of the delay before complaint. That is relatively short. For example, the delay in Longman was around 20 years. Second is the nature of the relationship between the mother and the appellant. We are left to guess at how that impacts on reliability and of which witness. I assume the suggestion is that the mother was hostile to the appellant and that impacted on the reliability of the mother's evidence. However, the Longman warning only relates to matters affecting the reliability of the complainant. In any event, save for confirmation of the complainant's evidence about the fact and circumstances of the complainant contracting genital herpes, which was in large measure admitted by the appellant in his video record of interview, I am not aware of any other directly prejudicial evidence from the mother. The Court's attention was not drawn to any. Further, from my review of the evidence, there was no basis for any suggestion that the relationship between the mother and the complainant was such that it could distort the complainant's recollection.
The third matter is the nature of the relationship between the appellant and the complainant. Again I am unsure as to what the appellant refers. I infer it is the admitted de facto relationship between the appellant and the complainant that ended when the complainant left the appellant when she was 18. In the absence of elaboration or reference to the evidence, I do not for myself see how the fact, or termination, of the admitted sexual relationship impairs the reliability of the complainant's evidence beyond perhaps hostility, which is relied on separately. Indeed, the appellant's admission of a sexual relationship with the complainant when she was 16 is very likely to have the contrary effect. The next matter is the alleged "dysfunctional history of the relationships between the parties". Just what parties, how it was said to be dysfunctional and with what consequences for the reliability of the complainant's evidence, beyond the matters already referred to, is not explained and I am not prepared to speculate. The final matter is said to be the animosity towards the appellant by the mother and the complainant. Assuming that the evidence establishes a basis for a suggestion of hostility, I am not persuaded that any of the matters on which the appellant relies, considered individually or collectively, required the trial Judge to use the phrase "dangerous to convict". For the reasons developed below, the jury can have been left in no doubt that they were required to scrutinise the complainant's evidence with great care by reference to the matters specified by the trial Judge before they could be satisfied beyond reasonable doubt of its truth and accuracy. That is sufficient in the circumstances of this case.
Finally, the appellant complains of the use of the phrase "you might find that it would be unsafe, although it is entirely a matter for you" in the penultimate paragraph of the direction set out above. The first sentence of that penultimate paragraph closely follows the structure of the warning formulated in the joint judgment of Brennan, Dawson and Toohey JJ in Longman (at 91) as follows:
"The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing 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."
On one view it may be thought the High Court is saying that it is dangerous to convict unless the jury are satisfied beyond reasonable doubt of the truth and accuracy of the complainant's evidence. That cannot be right in the circumstances in which a Longman warning is required. It is not merely dangerous to convict, it is not possible to do so. As I read the passage in the joint judgment it is to the effect that because of the delay, it is dangerous to convict unless the jury scrutinise the complainant's evidence with great care etc and thereafter are satisfied of its truth and accuracy. A shorter version to the same effect is that it is dangerous to convict on the complainant's evidence alone without the closest scrutiny of the complainant's evidence: Crampton v The Queen (2000) 206 CLR 161 at 181 per Gaudron, Gummow and Callinan JJ. It was not suggested in this case that the trial Judge's message to the jury was that it might be unsafe to convict unless they were satisfied of the truth and accuracy of the complainant's evidence.
Further, it is clear from the direction as a whole that the trial Judge did not suggest that close scrutiny of the evidence was an option rather than a requirement. The trial Judge stated repeatedly that the jury were required to carefully scrutinise the complainant's evidence by reference to the specified matters affecting reliability before they could be satisfied to the required standard of the truth and accuracy of the complainant's evidence. This was a direction to the jury, not a comment. The reference to "might … be unsafe" does not detract from that direction. In context, the trial Judge is saying that the jury must carefully scrutinise the complainant's evidence by reference to the specific matters to which she referred; following such scrutiny they might find it would be unsafe to convict but it was for the jury, having regard to her warnings, to determine whether or not it was unsafe. This is consistent with the message required to be conveyed by the authorities. For these reasons, I would dismiss the appeal.
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