McCarrol v The Queen
[2004] WASCA 131
•21 JUNE 2004
McCARROL -v- THE QUEEN [2004] WASCA 131
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 131 | |
| COURT OF CRIMINAL APPEAL | 21/06/2004 | ||
| Case No: | CCA:144/2003 | 12 MAY 2004 | |
| Coram: | MALCOLM CJ MURRAY J MCLURE J | 12/05/04 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Leave granted, Appeal allowed, Convictions quashed, Remanded to District Court for new trial | ||
| B | |||
| PDF Version |
| Parties: | WAYNE RAMON McCARROL THE QUEEN |
Catchwords: | Criminal law and procedure Sexual offences Admission into evidence of accused's possession of child pornography Possession years after commission of alleged offences Evidence inadmissible having regard to circumstances of case Turns on own facts |
Legislation: | Nil |
Case References: | Edwards v The Queen (1993) 178 CLR 193 Hill v The Queen [2003] WASCA 177 Mule v The Queen [2004] WASCA 7 Narkle v The Queen (2001) 23 WAR 468 Palmer v The Queen (1998) 193 CLR 1 R v Aziz [1996] AC 41 R v Beck [1990] 1 Qd R 30 R v Soma (2003) 212 CLR 299 B v The Queen (1992) 175 CLR 599 BRS v The Queen (1997) 191 CLR 275 Gipp v The Queen (1998) 194 CLR 106 Harriman v The Queen (1989) 167 CLR 590 Hoch v The Queen (1988) 165 CLR 292 R v KRM (2001) 118 A Crim R 262 M v The Queen (1994) 181 CLR 487 Noor Mohamed v The Queen [1949] AC 182 R v Anderson, unreported; SCt of WA; Library No 940378; 10 June 1994 R v Sampson [1989] 2 NZLR 288 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : McCARROL -v- THE QUEEN [2004] WASCA 131 CORAM : MALCOLM CJ
- MURRAY J
MCLURE J
- Appellant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : KENNEDY DCJ
File Number : IND 675 of 2002
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Catchwords:
Criminal law and procedure - Sexual offences - Admission into evidence of accused's possession of child pornography - Possession years after commission of alleged offences - Evidence inadmissible having regard to circumstances of case - Turns on own facts
Legislation:
Nil
Result:
Leave granted
Appeal allowed
Convictions quashed
Remanded to District Court for new trial
Category: B
Representation:
Counsel:
Appellant : Mr D P A Moen
Respondent : Mr R E Cock QC
Solicitors:
Appellant : Ian Hope
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Edwards v The Queen (1993) 178 CLR 193
Hill v The Queen [2003] WASCA 177
Mule v The Queen [2004] WASCA 7
Narkle v The Queen (2001) 23 WAR 468
Palmer v The Queen (1998) 193 CLR 1
R v Aziz [1996] AC 41
R v Beck [1990] 1 Qd R 30
R v Soma (2003) 212 CLR 299
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Case(s) also cited:
B v The Queen (1992) 175 CLR 599
BRS v The Queen (1997) 191 CLR 275
Gipp v The Queen (1998) 194 CLR 106
Harriman v The Queen (1989) 167 CLR 590
Hoch v The Queen (1988) 165 CLR 292
R v KRM (2001) 118 A Crim R 262
M v The Queen (1994) 181 CLR 487
Noor Mohamed v The Queen [1949] AC 182
R v Anderson, unreported; SCt of WA; Library No 940378; 10 June 1994
R v Sampson [1989] 2 NZLR 288
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1 MALCOLM CJ & MURRAY J: On 20 August 2003, the applicant was convicted by a jury of four sexual offences after a trial in the District Court. He applied for leave to appeal against those convictions.
2 The offences charged were all allegedly committed between 30 April 1988 and 1 August 1988 in relation to the one complainant, a 13-year-old boy. There were two offences of performing an indecent act by masturbating and two offences committed on one occasion when it was alleged that the applicant procured the child to indecently deal with him by masturbating the applicant and when it was further alleged that the applicant indecently dealt with the child by masturbating him.
3 The applicant was charged with three other offences, each one an offence of sexual penetration of the child by performing an act of oral sex upon him. The jury were unable to reach verdicts upon those counts and the applicant was remanded on bail for a new trial of those charges. We were told that the trial has been listed for 17 to 19 November 2004 in the District Court. As we understand it, the applicant has not been sentenced for the offences of which he was convicted, but is remanded also in relation to those matters, on bail.
4 Upon the hearing of the application for leave to appeal, the Court granted leave and allowed the appeal. We quashed the convictions and remanded the applicant, again on bail, for a new trial of those charges, in the District Court. These are our reasons for those orders.
5 The trial was held in August 2003, over 15 years after the offences were allegedly committed. The principal Crown witness was the complainant, by then a 28-year-old man. He said that when he turned 13 he got a job as a runner with the applicant, who then operated a milk delivery round. It is the runner's job to take milk from the delivery truck and place it where it can be received by customers. It was a job he worked at in the afternoons, after school.
6 Shortly after he commenced work he saw the applicant, who wore shorts, apparently without underwear, masturbating himself in the cab of the truck. He described two such occasions, in some detail. These were the first two counts in the indictment. The complainant said there were other occasions and he became used to seeing this.
7 After a while, the applicant commenced to show the complainant pornographic magazines which he carried in the vehicle. The complainant said that matters developed until there was an occasion when the applicant said he had an erection, took the complainant's hands, placed them on his
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- penis, and commenced to use them to masturbate himself. After a short time, he leant over, took the complainant's penis in his hands and masturbated the complainant for a short time. This incident resulted in the charges of indecent dealing of which the applicant was convicted. We need not refer to the facts alleged in relation to further incidents on the last-mentioned occasion when the applicant gave evidence of acts of sexual penetration, to which we have referred, but in respect of which the jury were unable to reach verdicts.
8 No complaint was made until June 2001. The police commenced their inquiries then and, at their invitation, on 24 August 2001 the applicant came to the child abuse investigation unit of the Police Force and participated in a videotaped interview. The videotape was played to the jury. It was of a mixed character, containing some declarations against interest, to which we need not refer, and some self-serving statements, to one of which it will be necessary to refer later in these reasons.
9 The videotape was tendered by a Detective Wellstead. She gave evidence that after the interview, the applicant was charged. He was taken to the East Perth lockup. As part of the induction procedure a backpack that he was wearing was searched. In a plastic bag in the backpack, nine compact disks and two zip drives were found. The applicant said they had "work stuff" on them. By then he was employed as a career guidance adviser.
10 An expert witness from the computer crime investigation unit of the Police Force, a Constable Waghorn, gave evidence that he examined the material on the floppy disks and the disk drives and discovered on one disk material which had been downloaded from the Internet on 5 April 2001 and which had been last accessed on 6 April 2001. The material was not shown to the jury, but was described in evidence as "child pornography". The applicant, through counsel, admitted that he had downloaded this material from the Internet onto the floppy disk. He admitted that it contained child pornography in the form of a story "concerning a female".
11 That evidence in relation to the applicant's possession of child pornography was admitted over the applicant's objection. The question was debated at length at trial. There was a reference in argument to the evidence about the applicant's production to the complainant of pornographic magazines, but there was no suggestion that they were magazines devoted to child pornography.
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12 The principal basis upon which the trial Judge admitted the evidence that the applicant had in his possession child pornography material on 24 August 2001, material which he had created on 5 April 2001, nearly 13 years after the events the subject of the indictment, arose out of what he had said during the videoed interview. When the interviewing detective said she was puzzled that a person the applicant described as a shy boy who got on well with him, would come forward to give detailed and explicit information in relation to sexual abuse, the applicant said:
"Look, I agree it's really strange. It came as a real shock to me when you rang me. It came as a bigger shock today when you told me what you'd rung me about, but I would encourage you to contact my wife, try and find out who the other runners were and speak to them, because I have never ever touched any of my runners. I'm not interested in children. They don't – they don't do anything whatsoever for me sexually. Um, contact my – speak to my own children. Speak to my step-children. I've never touched any of them."
13 During the argument, defence counsel said that his understanding was that it had been agreed between the prosecution and defence that that material would not be led. It would be excised from the video to be played to the jury. In that it appears he was mistaken. The prosecution wished to lead that evidence and to lead evidence of the possession of pornographic material to show that what the applicant said when interviewed by the police was a lie, that he had made a self-serving statement about his lack of sexual interest in children that was demonstrably false when one considered the nature of the pornographic material in his possession at the time.
14 Defence counsel at trial appears in argument to have accepted that the Crown had what was effectively "an unfettered discretion" as to the portions of the video it sought to adduce in evidence. Her Honour the trial Judge was not asked to rule upon an application by the defence that the material quoted above was inadmissible, or that it ought to be excluded in the exercise of discretion. The question before her Honour was whether the Crown ought to be permitted to lead the evidence concerning the nature of the material found in the applicant's possession against the background of the statement made by the applicant when interviewed, for the purpose of showing that that statement was a deliberate lie. The purpose of all that does not seem to have been clearly articulated by the prosecution, but her Honour admitted the material because it was relevant
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- to show that it may be the case, "that the accused, despite his denials, does have a sexual interest in children."
15 The prosecution did not suggest that the evidence was admissible as an implied confession, as a deliberate lie revealing a consciousness of guilt. No direction in terms of Edwards v The Queen (1993) 178 CLR 193 was sought or given. Her Honour told the jury that if they were satisfied that the applicant had knowingly downloaded the material because it contained child pornography, and if they were satisfied that he did that because he had a sexual interest of an inappropriate kind in children, then they might consider that the applicant told a deliberate lie when he was interviewed by the police.
16 In that event, her Honour said, the jury could consider the applicant's denial of the commission of the offences with which he was charged, both when interviewed by the police and in his evidence at trial, bearing in mind that those denials were made by a person they would consider was not credible in relation to his lack of sexual interest in children. Her Honour went on to give the jury careful directions that they must not reason that the accused was guilty of the offences with which he was charged, or any of them, because they considered that he did knowingly have child pornography in his possession in 2001.
17 Of course, this evidence was not admitted and could not have been admitted upon any basis as propensity evidence, relevant not only to the credibility of the accused as a witness, but also to prove the commission of the offences charged, and the ground of appeal that the trial Judge erred, "in not adequately warning the jury of the risks of relying on the evidence of possession of child pornography as the basis of convicting of the charged offences", could not, in our opinion, be made out.
18 However, the main thrust of the application for leave was the grounds complaining of the wrongful admission in evidence of the applicant's possession of child pornography material and it was upon the basis of that complaint that we granted leave and allowed the appeal.
19 The law as to the reception in evidence of a "mixed" statement, one containing admissions or declarations against interest by an accused person and one containing exculpatory statements, is clear: Mule v The Queen [2004] WASCA 7 per Templeman J at [13] – [15] and McLure J at [27] – [30]. Where the prosecution is permitted to tender such a statement, relying upon its confessional qualities, then it is obliged to accept in evidence the exculpatory material which may in turn be relied
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upon by the accused. All of the statement becomes evidence available to the jury for their consideration, but the admissions and the exculpatory material need not, and indeed probably should not in the generality of cases, be accorded equal weight.
20 The trial Judge may explain to the jury that if they find the confessional aspects of the statement to be well-proved, voluntarily provided and reliable, then they may place considerable weight upon them. On the other hand, the trial Judge may tell the jury that the exculpatory material may not carry the same weight, because of its self-serving character. In addition, where appropriate, the trial Judge may add the observation when an accused elects not to give evidence, that the jury should bear in mind that the self-serving material has not been able to be tested by cross-examination.
21 The law has been settled in that regard in England and Wales since at least the decision in the House of Lords in R v Aziz [1996] AC 41, 48-50, and in Australia it seems that the law was settled some years before that: see, for example, R v Beck [1990] 1 Qd R 30, 33. But there is no principle of law which compels an accused person to accept the introduction into evidence of self-serving material in a statement simply because the prosecution wishes to rely upon the confessional elements of the statement.
22 The applicant in this case clearly did not wish to have the out of court statement identified above introduced in evidence. He wanted that material to be excised from the video played to the jury. In those circumstances, in our opinion, it was not open to the prosecution to adduce that statement in evidence for the sole purpose of seeking to have admitted, evidence that at the time the statement was made, many years after the events complained of, the applicant had in his possession recently acquired child pornography in circumstances which the prosecution contended may cause the jury to conclude that the statement made on the video that the applicant was not sexually interested in children was a deliberate lie.
23 No other ground for the admissibility of the evidence was relied upon and if, as we consider to be the case, the statement made on the video was inadmissible, no ground can be identified for admitting in evidence the applicant's possession of the child pornography. A miscarriage of justice has occurred because, in our view, it was not open to the prosecution to lead evidence of the applicant's self-serving out of court statement, upon which neither party relied, for the sole purpose of
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attacking the credibility of the applicant as a witness, if he should choose to give evidence, by seeking to prove that part of the statement made on the video was untrue and may have been a deliberate lie.
24 The applicant's case, as put on the video and in his evidence at trial, was that the incidents complained of did not occur. The introduction of the evidence of his possession of child pornography on the computer disk forced the applicant to explain in evidence that he had an innocent purpose for downloading the material on 5 April 2001 and that he had not accessed the material between that time and when he was interviewed on 24 August. The issue was a false one which may well have had an adverse impact upon the applicant's presentation of his defence.
25 The convictions had to be quashed, in our view. Nonetheless, upon the admissible evidence led at trial, it was open to the jury to be satisfied of guilt beyond reasonable doubt and the Court therefore ordered a retrial.
26 MCLURE J: I have had the advantage of reading in draft the reasons to be published by Murray J with which I am in general agreement. However, I propose to state my reasons for quashing the convictions and ordering a retrial. I refer to the facts only to the extent necessary for an understanding of my reasons.
27 On 20 August 2003 the appellant was convicted after trial in the District Court of two counts of committing an indecent act in a public place and two counts of indecent dealing with a child under the age of 14 years. The offences of which the appellant was convicted occurred in the period between 30 April 1988 and 1 December 1988. In relation to the indecent dealing offences, the complainant was a 13-year-old boy who worked as a runner for the appellant in his milk delivery round. He was the principal Crown witness for all offences.
28 On 24 August 2001 the appellant was interviewed by police concerning the matters on which he was convicted. In the course of the interview, the appellant made admissions against interest and the self-serving or exculpatory statement that "I have never touched any of my runners. I'm not interested in children. They don't---they don't do anything whatsoever for me sexually."
29 Following the police interview, the police conducted a search of the appellant and located in a bag in his possession a number of computer discs one of which contained pornographic material, a part of which was described in evidence as child pornography. The material on the disc had been downloaded from the internet on 5 April 2001. Material on that disc
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was last accessed on 6 April 2001, some 13 years after the conduct the subject of his convictions.
30 The State sought from the trial Judge a pre-trial ruling on the admissibility of evidence that the appellant had in his possession on 24 April 2001 material containing, inter alia, child pornography. The trial Judge understood counsel for the appellant to advocate that the appropriate course was for the State to excise the self-serving statement from the video record of interview and not adduce evidence of the appellant's possession of child pornography in 2001. At this stage, the State's submission was that the evidence of possession of child pornography was relevant to a fact in issue and to credibility and ought to be admitted. The trial Judge appeared to accept the State's contentions and ruled the evidence admissible.
31 The trial Judge's ruling shaped the appellant's defence to the charges. The disc containing the child pornography was not adduced in evidence. Rather, the appellant made an admission that a floppy disc was found in his keeping and part of the disc was in the form of a text of a story containing child pornography involving a female. The appellant gave evidence and, on this subject, said he believed he was downloading adult pornography and had not seen and did not know there was child pornography in the material on the computer disc.
32 In her summing up the trial Judge identified the use which could be made of the child pornography evidence. She said:
"If you are satisfied that he knew [the child pornography was on his computer disc], then are you satisfied he was untruthful to the police when he said to the police, 'I'm not interested in children. They don't do anything for me sexually'? And are you satisfied he was untruthful when he told the police that he had the pornography only because of difficulties in his then marriage?
The Crown says you should be satisfied that he knew that that child pornography was there and you should be satisfied that he lied to the police and when you are considering the accused's denials of these offences you will bear in mind that those denials come from a person you have decided is not credible on that issue. So it goes to matters of credibility where he said. 'I'm not interested in children and I had the pornography at that time for a specific reason.'
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- If of course you think, 'No, I'm satisfied that he was untruthful,' then that is a matter that you bear in mind when you're deciding whether he's credible in his denials of these offences. However, you must use the pornography evidence, if you accept it, only in the limited way I have described. Except in that way you must not use that evidence in determining whether the accused is guilty of the offences with which he stands charged. ...
So you must not say he knowingly had child pornography, therefore he's guilty. Nor must you conclude that it shows he had a disposition to engage in improper sexual conduct with young boys and it is therefore likely that he gave effect to that disposition by doing the things alleged nor that it makes it likely that he did them. You can only use the evidence in the way I have said, for the limited purposes of his credibility as I have said."
33 The State did not suggest in the appeal that the child pornography evidence was admissible as similar fact evidence or as a lie revealing a consciousness of guilt (no Edwards direction was sought or given) or was otherwise relevant to a fact in issue. The State case in the appeal was that the child pornography evidence was relevant solely to the appellant's credit.
34 The evidence falls within the similar fact evidence exclusionary rule which prevents the prosecution adducing evidence of the conduct of an accused on other occasions, including the possession of discreditable material, if that evidence shows that the accused had a propensity to commit a crime, or a crime of a particular kind, or was the sort of person likely to have committed the crime charged, unless the evidence is sufficiently highly probative of a fact in issue to outweigh the prejudice it may cause. Evidence of bad character or possession of discreditable materials is propensity evidence that falls within the exclusionary rule if the discreditable conduct in question has some common feature with the offences charged. The common feature in the case under consideration is an interest in sexual conduct with children. For the evidence to be admissible it must firstly be relevant to a fact in issue beyond mere propensity itself and secondly be highly probative. Propensity evidence does not satisfy the requirements for admissibility if it is only relevant to credit.
35 In its written outline of submissions, the State relied on the dissenting judgment of McHugh J in Palmer v The Queen (1998) 193
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- CLR 1 at 21 - 24 in which he criticises the distinction between evidence relevant to credit and evidence relevant to a fact in issue. However, the distinction remains alive and well in this jurisdiction, including in sexual cases: Hill v The Queen [2003] WASCA 177 per Murray J at [3]; Narkle v The Queen (2001) 23 WAR 468. However, I am of the opinion that the State erred in its classification of the evidence as relevant solely to the appellant's credit. An accused's line of defence can contract or expand the ambit of relevance of bad disposition. If regard is had to the police record of interview, the appellant's defence to the charges included his stated lack of sexual interest in children. That is, the appellant is contending that his disposition or propensity is probative of his denial of the commission of sexual misconduct involving the complainant. In such circumstances, the State can lead similar fact evidence not for the purpose of relying on the inadmissible chain of reasoning (bad disposition therefore likely to have engaged in the alleged sexual misconduct) but for the purpose of disproving the appellant's claimed innocent disposition. In this case the appellant's assertion of lack of sexual interest in children is sought to be disproved by evidence which is relied on by the State as tending to prove the opposite, namely he did have a sexual interest in children. However, the State correctly conceded that the rebuttal evidence of bad disposition could not be used positively as evidence probative of guilt.
36 If the rebuttal evidence did not have the tendency to prove what it was tendered to prove (ie, that in 1988 the appellant did have a sexual interest in children) it would be irrelevant and inadmissible. The evidence is, in my view, relevant but is not by any measure strongly probative when regard is had of the 13 year interval between the offences and when the discreditable material was found in his physical possession and the fact that the child pornography formed part of other pornographic material. Further, there appears to be no direct evidence that the appellant had accessed the child pornography portion of the material on the disc. The rebuttal evidence was also highly prejudicial. In deciding whether the evidence is admissible, it is also relevant to have regard to the evidential value of self-serving out-of-court statements.
37 As a general rule, self-serving out-of-court statements made by an accused are inadmissible as evidence of the truth of the facts stated. However, an out-of-court admission against interest is received as evidence of the truth of the statement as an exception to the rule against hearsay. Where a mixed statement is under consideration, that is one which contains both admissions against interest and clearly severable self-serving statements, the self-serving statements are admitted as evidence of the facts stated: Mule v The Queen [2004] (sic). However, a
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Judge has an entitlement in most circumstances to comment adversely on the quality of the self-serving parts of a mixed statement.
38 As the rebuttal evidence was highly prejudicial and weakly probative on an issue raised by a self-serving out-of-court statement, it ought to have been excluded. This appeal also raises the question whether an accused's self-serving statement in a police record of interview irrevocably dictates an accused's defence to be run at trial. In this case the appellant had agreed to the excision of the self-serving statement from the record of interview and, I infer, did not propose to run a defence of innocent propensity at trial. If that path had been followed, the State would have achieved the objective of negativing any defence of innocent disposition. However, it would have lost the opportunity to discredit the appellant in relation to the self-serving statement and the evidence of bad disposition would not have been before the jury. The propensity evidence was inadmissible on credit alone and its prejudicial effect required warnings from the trial Judge. In my view the State should not in these circumstances be permitted to adduce an accused's self-serving statement in a police record of interview for the purpose of achieving an objective which consensual excision of the self-serving statement would prevent.
39 I do not regard this conclusion as inconsistent with the decision of the High Court in R v Soma (2003) 212 CLR 299 in which the majority (Gleeson CJ, Gummow, Kirby and Hayne JJ) stated (at [31]) that the State has an obligation to put before the jury all of what an accused tells police when interviewed about the accusations that have been made against him. The majority identified the obligation as an aspect of the prosecution's duty to act fairly to an accused. In essence, the State wanted to adduce in evidence the appellant's self-serving statement in the police interview that he had no sexual interest in children solely for the purpose of adducing the rebuttal evidence. In the circumstances of this case, that was inconsistent with the State's duty of fairness.
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