Lane v The Queen

[1996] FCA 385

CATCHWORDS

CRIMINAL LAW - sexual offence - necessity to warn jury - whether evidence uncorroborated - observations in respect of operation of the Evidence Act 1995 (Cth) ss 164 and 165

CRIMINAL LAW - whether verdict unsafe or unsatisfactory - relevance of delay in complaint - whether a doubt must or ought to have been experienced by the jury

Evidence Act 1995 (Cth) ss 4(1), 164, 165
Evidence (Transitional Provisions and Consequential Amendments) Act 1995 s 4(1)

M v The Queen (1994) 181 CLR 487 Cons
R v Pearson (NSW Court of Appeal unreported 5 March 1996) Refd
Longman v The Queen (1989) 168 CLR 79 Refd

PAUL GREGORY LANE v THE QUEEN
No ACT G 60 of 1995

Coram:    Gallop, Davies, Kiefel JJ.
Date:      16 May 1996
Place:      Canberra

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY
DISTRICT REGISTRY
GENERAL DIVISION  No. ACT G 60 of 1995

On appeal from a Judge of the Supreme Court of the Australian Capital Territory

BETWEEN:PAUL GREGORY LANE

Appellant

AND:  THE QUEEN

Respondent

CORAM:Gallop, Davies, Kiefel JJ.

PLACE:  Canberra

DATE:16 May 1996

MINUTES OF ORDERS

THE COURT ORDERS THAT:

1. The appeal be dismissed.

NOTE:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY
DISTRICT REGISTRY
GENERAL DIVISION  No. ACT G 60 of 1995

On appeal from a Judge of the Supreme Court of the Australian Capital Territory

BETWEEN:PAUL GREGORY LANE

Appellant

AND:  THE QUEEN

Respondent

CORAM:Gallop, Davies, Kiefel JJ.

PLACE:  Canberra

DATE:16 May 1996

REASONS FOR JUDGMENT

(THE COURT)

The appellant was convicted of the charge that, between the 1st day of July 1985 and the 27th day of November 1985 at Canberra in the Australian Capital Territory, he did indecently assault a male.  The complainant was at the time of the alleged offence 11 years of age.  A feature of the evidence at trial was an admission made to the police by the appellant in October 1993, following a complaint made that he had undertaken oral sex upon the person of the complainant in 1985, but which admission, so far as it related to that time, was shortly afterwards resiled from.  A fact also disputed was as to where the incident had occurred.

This appeal raises the question whether the evidence was such that the verdict cannot stand (M v The Queen(1994) 181 CLR 487) and whether warnings or directions
ought to have been given either because the complaint's evidence was uncorroborated or because it could not be relied upon.  The latter point is also relevant to the first question, whether the verdict was unsafe and unsatisfactory.  It is convenient to deal firstly with the obligations, if any, imposed by statute and the general law as to the giving of warnings and directions in a case of this kind and having regard to the evidence as given.

On 18 April 1995 the provisions of the Evidence Act 1995 (Commonwealth) which had not already come into effect commenced. They included, relevantly, sections 164 and 165 relating respectively to corroboration requirements and warnings concerning unreliable evidence. By s 4(1) the Act applied in relation to all proceedings in a Court of the Australian Capital Territory, although the transitional provisions (see s 4(1) of the Evidence (Transitional Provisions and Consequential Amendments) Act 1995) had the effect that the Act was not to apply in relation to proceedings "the hearing of which began before the commencement of the provision".  It has been held in R v Pearson (NSW Court of Appeal, unreported decision 5 March 1996), and we respectfully concur, that in the case of a criminal trial upon indictment the hearing of the proceedings begins at the time of arraignment.  The appellant was arraigned on 18 September 1995, after the commencement of the provisions in question.

Section 164 provides:

"164.Corroboration requirements abolished (1) It is not necessary that evidence on which a party relies be corroborated.

(2)Subsection (1) does not affect the operation of a rule of law that requires corroboration with respect to the offence of perjury or a similar or related offence.

(3)Despite any rule, whether of law or practice, to the contrary, but subject to the other provisions of this Act, if there is a jury, it is not necessary that the judge:

(a)warn the jury that it is dangerous to act on uncorroborated evidence or give a warning to the same or similar effect, or

(b)give a direction relating to the absence of corroboration."

Subsection 165(1) provides that that section "applies to evidence of a kind that may be unreliable, including the following kinds of evidence".  What then follows is a list of types of evidence such as hearsay evidence, identification evidence, evidence by a prison informer or by a person criminally concerned and by paragraph (c) "evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like".  Subsections (2) to (5) then provide:

"(2)If there is a jury and a party so requests, the judge is to:

(a)warn the jury that the evidence may be unreliable;  and

(b)inform the jury of matters that may cause it to be unreliable;  and

(c)warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.

(3)The judge need not comply with subsection (2) if there are good reasons for not doing so.

(4)It is not necessary that a particular form of words be used in giving the warning or information.

(5)This section does not affect any other power of the judge to give a warning to, or to inform, the jury."

It may be observed that although subs (1) of s 165 is couched in terms which would not exclude other kinds of evidence qualifying as unreliable, there is no mention of "evidence
of the victims of sexual offences".  And it ought also be borne in mind that the section speaks only of evidence of a "kind", which is to say a class, and this would require a generalised assessment and not one based upon a particular witness' account in proceedings.

Save for the offences referred to in subs 164(2), perjury and the like, corroboration of evidence on which a party relies is not "necessary" (subs(11)). In the sphere of criminal law this provision has wider application than evidence in cases involving sexual offences and will apply regardless of the offence, the nature of the evidence and the witness in question. One may have thought that there was then no warrant for a warning or direction to be given as to the absence of corroboration, although subs 164(3) was no doubt intended to make clear that previous rules applied to evidence were no longer intended to have operation. With respect to the evidence of alleged victims of sexual offences there was a rule, at least of practice, which placed them in a special category of witnesses, persons who might have a tendency to fabricate stories. The rule was explained in Longman v The Queen (1989) 168 CLR 79, 85, 86, 91-3, 106.  There a section of the Evidence Act 1906 (WA) (and having counterparts elsewhere) which provided that a judge was "not required" by any rule of law or practice to give a general warning that it was unsafe in such cases to convict on the uncorroborated evidence of the complainant was considered.  It was held (86-7) that it dispensed with the requirement to warn about the danger of acting on uncorroborated evidence for the reason that there was a presumption that such evidence was liable to fabrication, but that it did not overcome the requirement to warn or direct as may be required by the circumstances
of the case, to avoid a perceptible risk of miscarriage of justice.  And, whilst the provision removed alleged victims from a class of especially suspect witnesses, their evidence could be the subject of comment by a Judge as to its credibility in the same way as the evidence of other alleged victims (87).  What was then seen to be removed was any reference to any assumed unreliability or suspicion attaching to uncorroborated evidence, but not to the fact that it was uncorroborated and it remained the case that a warning might be necessary on that ground.

Subsection 164(3) Evidence Act 1995 removes any obligation upon a Judge to give a warning or direction regarding any uncorroborated evidence. But the words "is not necessary" leave it open to a Judge to do so in a particular case. Given the onus upon the prosecution one may think some direction will often be necessary, although subs 164(1) and (3) would render it inappropriate to ascribe any reason based upon any prior presumption relating to alleged victims of sexual offences or any requirement of the law that any evidence need be corroborated.

In the present case there was then no obligation cast by any rule of practice or statutory provision to give a warning as to any alleged lack of corroboration.  The appellant's submissions assumed, in any event, that the complainant's evidence was absent confirmation of any material particular.  To the contrary however it was the subject of an express admission. 

In his evidence the complainant referred to only one act of oral sex having taken place.  The complainant said that it occurred on a date after 27 August 1985 and before 9 October 1995 and as having taken place in a bedroom at his parents' home in Canberra.  The complainant in his evidence, alleged that he awoke to find the appellant sucking his penis.

At the commencement of a police interview on 1 October 1993 the appellant was told:

"Paul as I've briefly explained to you, I'm making enquiries in relation to an allegation which was made [by the complainant] ..that at approximately some time at the end of 1985, you performed oral sex on him while he was in his bed.  Do you understand the nature of my enquiries?

The appellant answered that he understood that was the allegation under investigation.  After some formal enquiries the allegation was again put to him for response, which he made:

Q.24"Paul in relation to the allegation that I, I explained to you earlier in the interview, in that [by the complainant] ... made the allegation that you performed oral sex on him towards the end of nineteen eighty five, can you tell me anything in relation to that?

A:Well that is, that's correct officer."

The appellant went on to recount the circumstances, to explain that he was drunk and had not driven home, circumstances which accorded with the complainant's evidence that the offence had occurred at his home in Canberra.  

Shortly afterwards, when asked to recall how old the complainant was at the time the appellant began putting a different version of events.  He said:

"He would've, I would've thought, when you say eighty five I'm just think I would've thought he would, he would've been fifteen, fourteen, fifteen ... that doesn't quite oh I, but what I'm saying that doesn't quite correlate with eighty-five.  I would've thought he was he was fifteen at the time."

And just prior to that he said the event took place in a lounge room. 

Later in the interview the appellant said that the incident had occurred at a holiday home at Tomakin, in New South Wales and further that the complainant had never seriously complained or indicated upset until "years down the track".  The appellant immediately went on "and  this was within the last well, two could of been Christmas.  Right within ... the last two years ...".  He later reiterated the reference to "years down the track" in the context of the complaint having been made.

At trial, the appellant gave evidence that the incident had taken place in June 1991, when the complainant was nearly 17, which was of course at a time closer to the record of interview than were the times mentioned during interview.  The appellant said he was able, in part, to fix this time in his mind because he had on this occasion driven to the house at Tomakin with the complainant who by then had a learner's permit, although this was not adverted to in the interview.  The Tomakin version did not however accord with the appellant's admission earlier in the interview, that he had stayed the night because he had been drinking. 

There were explanations given in evidence by the appellant as to mistakes made by him in his earlier admissions and that when he was asked about the act alleged and the date he did not initially focus on the year referred to.  No attack was, on appeal, made to the admissibility of the evidence of what was said during the interview.  It was met with an explanation by the appellant that he had taken anti-depressant tablets and alcohol shortly beforehand.  And the appellant recounted in detail his version of the events. 

This evidence would not require a warning that the complainant's evidence stood unconfirmed in any respect. It was for the jury to assess the earlier admissions in light of the withdrawal of what became pertinent parts of it and given the explanations offered. But that is not to say that no direction or guidance was otherwise necessary as to what ought be borne in mind in evaluating the versions, a matter to which we will later return, after reference to s 165.

The absence of reference to the evidence of alleged victims as evidence "of a kind that may be unreliable" in the Evidence Act is both obvious and understandable, given changes in social attitudes. It was included as a category in the report (No 38 of 1987) of the Law Reform Commission, but the later Explanatory Memorandum contained no reference to it. It is, though, not a case of ambiguity in the provision which might be resolved by reference to external materials but one of a clear omission, in a section which suggests that the categories listed are not closed. It may be that the matter is resolved by s 164(3) having the effect of removing the taint of suspicion from evidence of this kind,
such that it could no longer consistently then be held to be of a kind that may be unreliable for the purposes of s 165.

The appellant also referred to the category of evidence, which is listed as potentially unreliable, namely that which may be affected by age (s 165(1)(c)).  Evidence which might be generally considered as unreliable, as the subsection requires, might include evidence of children of very tender years.  The trial judge considered that the evidence of the complainant, given when he was aged 19, albeit in relation to events which occurred when he was 11, was not evidence of such a kind.  We see no reason to disagree with this view.

In any event the operative provision, subs (2), clearly requires a request by a party for such a warning.  Here there was nothing resembling a request.  All that was said by Counsel for the appellant, before the jury retired, was that, by reason of some other earlier statutory provision, a warning "might" be required and the matter was taken no further. The failure to make such a request does not however mean that no reference need be made to any unsatisfactory aspects of the evidence, whether by warning or direction, and s 165(5) confirms that the judge's power to do so is unaffected by the section.

Apart from the version of events ultimately contended for by the appellant differing from that of the complainant, as to time and place, there were other features of the evidence relied upon by the appellant as showing discrepancies or inconsistencies in the complainant's evidence or such as to require specific direction by his Honour.

It was submitted that the complainant's evidence showed that his recollection of dates was imperfect and in particular because he had changed the day of the week of the alleged offence in the course of different versions of the events at different times.  The complainant acknowledged in evidence that his memory of dates was not good.  But in saying that he was saying little more than most people would say and, far from necessarily counting against him, since little turned upon the date save what it showed about recollection, the jury may have considered his reply was to his credit.  His Honour was careful to remind the jury that the offence charged concerned only a limited period.  So far as the complainant's recollection was concerned, this was the subject of specific comment amounting to a warning by his Honour who reminded the jury of the difficulties of an 11 year old to perceive, put in context and then later recall events with clarity.  To this he added that if, as the complainant had said, he had tried to put the occasion out of his mind, this was also a factor that needed to be taken into account.  But further, as his Honour noted from the evidence, the jury would also need to take account of the accused's ability to recall events since, on his version, he was then affected by alcohol and had been in the habit of "binge drinking".

It may be thought that the area for most concern in cases of this kind is the delay which had occurred between the time it was alleged the offence had taken place and first complaint.  The circumstances were not however in the same category as those in Longman v The Queen (108) where a strong warning was considered by McHugh J (see also Deane J, 100) necessary because the defence was, after a gap of some 20 years, unable to examine the circumstances of the alleged offences, which however were several
in number and lacking specificity.  Putting aside the initial admission, the defence here acknowledged an event such as that alleged but placed it at a different time and locale.

The fact that the complainant had not referred to any incident occurring at Tomakin until giving his evidence at trial was also relied upon as disclosing some aspect of unreliability of his evidence.  The point was addressed by his Honour who also correctly pointed out that his failure to do so need not necessarily be viewed as in conflict with his earlier statement.  In this respect the complainant had remained adamant that no sexual act such as that with which the accused was charged had ever occurred at Tomakin.  It should also be observed that his Honour reminded the jury that on the accused's later account in the record of interview, the incident at Tomakin was to an extent instigated by the complainant.  The likelihood of this was clearly a matter for them to take into account.

The lack of complaint at an earlier time was also the subject of comment by his Honour.  What was however necessary to be balanced against such an observation was that the accused was a good friend of the complainant's family and his parents, and that he continued his relationship with them over the following years.  If the event had occurred, as alleged, when the complainant was only 11 years of age, it was understandable that he might be reluctant to raise the matter with his parents.  On the other hand he gave evidence, which the jury might accept or reject, of conversations with the accused when he threatened to tell his parents but said that the accused asked him not to do so.

As we have said the complainant's account did not stand uncorroborated in the event that the jury failed to accept the accused's explanation of the early admissions.  The jury were nevertheless directed more than once as to the burden of proof which lay upon the prosecution.  In reliance upon several features of the facts present in M v The Queen counsel for the appellant also referred to the inherent improbability of such an act taking place in a house when the complainant's parents and siblings were asleep close by.  It is not necessary to discuss the facts of M's case in greater detail and is sufficient to observe that it involved sexual acts of a different nature  on furniture which would have produced noise if the acts had taken place as alleged.  It bears no useful analogy to the facts of this case.

We are unable to conclude that further strong direction or warning was necessary in any relevant respect nor that upon the whole of the evidence a doubt must or ought to have been experienced by the jury (M v The Queen, 494-5 but also 502-3, 525).  The approach required by the majority in that case would require that it be shown that evidence or the record discloses that it lacks probative force.  Not only were there admissions which the jury may have held to be more reliable, there were features of the accused's own evidence which might have been taken as supporting the complainant's version, that the events occurred many years ago and not in the manner said by the accused.  In this they would have had a distinct benefit of observing the accused offer his explanations as to the admissions in evidence.

The appeal should be dismissed.

I certify that this and the preceding twelve pages are a true copy of the reasons for judgment of the Court.

Associate

Date:16 May 1996

Counsel and Solicitors for

the appellant:  Mr J Purnell SC instructed by Snedden Hall & Gallop

Counsel and Solicitors

for the respondents:  Mr T Buddin instructed by ACT Director of Public Prosecutions

Date of Hearing:  10 April 1996         

Place of Hearing  Canberra

Date of Judgment:  16 May 1996

Place of Judgment:  Canberra