Evidence (W.A.)—Criminal trial—Sexual offence—Uncorroborated evidence of complainant—Rule requiring warning of danger of conviction—Abolition—Warning not to be given unless judge satisfied that warning justified in circumstances—Evidence Act 1906 (W.A.), s. 36BE.
Decisions
BRENNAN, DAWSON AND TOOHEY JJ. An indictment was presented in the District Court of Western Australia at Perth charging the applicant, John Henry Longman, with several counts of unlawfully and indecently dealing with or assaulting each of three girls under the age of 14 years. The counts were severed and, after a trial on two counts, he was convicted on 21 October 1988 on both. The two counts were "that on a date unknown between the 22nd day of February 1962 and the 22nd day of February 1963 at Moora (he) unlawfully and indecently dealt with one (DRT) a girl under the age of 14 years" and "that on a date unknown between the 22nd day of February 1966 and the 22nd day of February 1967 at Moora (he) unlawfully and indecently dealt with" the same girl "a girl under the age of 14 years". Upon conviction, the applicant was fined $2,000 on each count and was ordered to be imprisoned until such fines were paid but so that the term of imprisonment for non- payment of each fine should not exceed three months. His appeal against conviction was dismissed by the Court of Criminal Appeal.
2. At the time of the trial, DRT was aged 32. She was but 6 years old at the time of the event alleged in the first count and 10 years old at the time of the event alleged in the second count. She was the applicant's stepdaughter. The applicant had married the complainant's mother in 1960 when the complainant was aged 4. The mother was a widow with 5 children of whom the complainant was the third. They went to live with the applicant on his farm at Koojan near Moora and they lived there until the end of 1964 when, because of a condition affecting one of the children by the first marriage, the mother and family went to live in Perth. There they were visited from time to time by the applicant and from time to time they went to the farm on holidays and once (in 1968) for a longer period. A further 7 children were born of the marriage of the applicant and the complainant's mother, all daughters. The applicant and the complainant's mother were divorced in 1976.
3. The complainant's evidence in support of the respective counts in the indictment was that she had been asleep on each occasion and was awakened by the applicant's touching of her genitalia. The first event allegedly occurred when she and two of her siblings were being driven home by the applicant from his brother's farm late at night. The complainant said she was sitting next…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Longman v The Queen [1989] HCA 60
Case
[1989] HCA 60
Decision Date
CaseChat Overview and Summary
In *Longman v The Queen*, the High Court of Australia considered an appeal from a decision of the Court of Criminal Appeal of Western Australia concerning the admissibility and presentation of evidence in a criminal trial for a sexual offence. The central dispute revolved around the requirement for a judge to give a warning to the jury regarding the uncorroborated evidence of the complainant.
The legal issues before the High Court were whether the *Evidence Act 1906* (W.A.), specifically section 36s£, which abolished the rule requiring a warning in cases of uncorroborated evidence of a complainant in sexual offence trials, was valid. The court also had to determine whether, in the absence of a mandatory warning, a judge retained a discretion to give such a warning if satisfied it was justified by the circumstances, and if so, how that discretion should be exercised.
The High Court held that section 36s£ of the *Evidence Act 1906* (W.A.) was a valid exercise of the legislative power of Western Australia. However, the Court reasoned that the abolition of the mandatory warning did not extinguish the judge's power to direct the jury on the need for caution when assessing uncorroborated evidence, particularly in sexual offence cases. The judge's discretion to give such a warning was affirmed, but it was to be exercised only when the judge was satisfied that the circumstances of the case warranted it, to avoid unfair prejudice to the accused.
The High Court allowed the appeal, setting aside the order of the Court of Criminal Appeal of Western Australia. In its place, the High Court ordered that the appeal to the Court of Criminal Appeal be allowed, the convictions be quashed, and that there be a new trial.
Orders
Orders of the court
1. Application for special leave to appeal granted.
2. Appeal allowed.
3. Set aside the order of the Court of Criminal Appeal