McColl v The Queen
[2004] WASCA 42
•15 MARCH 2004
McCOLL -v- THE QUEEN [2004] WASCA 42
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 42 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:151/2003 | 9 FEBRUARY 2004 | |
| Coram: | MALCOLM CJ STEYTLER J MCKECHNIE J | 15/03/04 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | GRANT ALEXANDER McCOLL THE QUEEN |
Catchwords: | Criminal law and procedure Indictment Amendment of indictment Whether trial Judge erred in allowing amendment to conform to evidence inconsistent with prior statement to police Whether amendment material in light of evidence at trial No prejudice to defence of consent |
Legislation: | Criminal Code, s 591 |
Case References: | Bond v The Queen (1992) 62 A Crim R 383 R v Lewis (1994) 1 Qd R 613 R v Smith & Ors [1950] 2 All ER 679 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : McCOLL -v- THE QUEEN [2004] WASCA 42 CORAM : MALCOLM CJ
- STEYTLER J
MCKECHNIE J
- Appellant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Indictment - Amendment of indictment - Whether trial Judge erred in allowing amendment to conform to evidence inconsistent with prior statement to police - Whether amendment material in light of evidence at trial - No prejudice to defence of consent
Legislation:
Criminal Code, s 591
Result:
Appeal dismissed
(Page 2)
Category: B
Representation:
Counsel:
Appellant : Ms K J Everett
Respondent : Mr R E Cock QC & Mr L M Fox
Solicitors:
Appellant : WL & KJ Everett
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Bond v The Queen (1992) 62 A Crim R 383
R v Lewis [1994] 1 Qd R 613
R v Smith & Ors [1950] 2 All ER 679
Case(s) also cited:
Nil
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1 MALCOLM CJ: This is an appeal against conviction. On 29 August 2003, the appellant was convicted in the District Court at Perth of unlawfully and indecently assaulting the female complainant by trying to put jumper leads on her nipples. The grounds of the application are that:
(a) the learned trial Judge erred in law when he amended the indictment after the jury had retired to consider their verdict and refused the applicant leave to re-open his case to respond to the amendment and cross-examine the complainant. The amendment was material to the case and that the applicant was prejudiced in his defence on the merits and the learned Judge was in breach of s 591 of the Criminal Code and the amendment should not have been allowed at that time;
(b) the learned trial Judge erred in fact when he misdirected the jury by:
(i) telling them that the witness Andrew McColl gave evidence that the jumper leads incident happened after the Yealering Hotel, when in fact he simply described the incident but did not identify when it happened;
and
(ii) failing to tell them that the witness Stephen Meikle gave evidence that the same incident occurred before Yealering.
3 The appellant was tried on an indictment which contained five counts. All of the offences were alleged to have been committed on 3 November 2001. Counts 1 and 2 were alleged to have been committed at Corrigin. Counts 1 and 2 alleged unlawful and indecent assaults on the complainant by squeezing her breasts and grabbing her buttocks respectively. Count 3 alleged that at a place between Corrigin and Yealering, the appellant unlawfully and indecently assaulted the complainant by grabbing her breasts. Count 4 alleged that on the same date at a place between Corrigin and Yealering, the appellant unlawfully and indecently assaulted the complainant by trying to put jumper leads on her nipples. Count 5 alleged that on the same date and at a place between Yealering and Wickepin, the appellant unlawfully and indecently
(Page 4)
- assaulted the complainant by grabbing her breasts. The indictment was prepared on the basis of a written statement made and signed by the complainant dated 7 November 2001; a written statement made and signed by the appellant's brother, Andrew Leon McColl, on 22 November 2001, and a written statement made by Stephen Andrew Meikle and signed by him on 14 November 2001. In each of these statements it was said that the jumper leads' incident occurred between Corrigin and Yealering. These statements formed part of the prosecution brief that was delivered to the defence.
4 The appellant was acquitted on all of the counts except count 4.
The Prosecution Case
5 The prosecution case was that on the morning of 3 November 2001, the complainant visited her brother at a friend's house in Kulin, where he was living at the time. There were several people at the house when she arrived, including a Mr Stephen Meikle, who was a friend of the complainant, and who was accompanied by two of his friends, namely, the appellant and his brother.
6 The group decided to go to the nearby town of Kondinin to get a carton of beer. The complainant had just obtained a learner's permit to drive and wanted to drive. She drove Mr Meikle's car to Kondinin. While at Kondinin, the complainant had a soft drink and the others each had a beer. They left after about 20 minutes and the complainant drove the car towards Corrigin. After a short while, the complainant handed over the driving to the appellant's brother. The complainant moved to the back seat where she sat next to the appellant.
7 After the complainant moved into the back seat next to the appellant, there was some "mucking about" between the two of them. The complainant's evidence was that the appellant made some sexual advances to her which were not welcome, but the evidence at the trial left open the possibility that there was some consent or willing participation on her part, which apparently led to the acquittal of the appellant on the counts other than count 4 relating to the jumper leads.
8 The party drove from Kulin to Corrigin and then to Yealering. At the Yealering Hotel, further alcohol was consumed when there was an incident involving the appellant and the complainant and some beer was thrown at the appellant by the complainant. There was evidence that when the party left Yealering, the complainant insisted on sitting in the front seat. The appellant tried to sit in the front seat with the complainant,
(Page 5)
- but after some encouragement from his brother, the appellant went into the back seat. There was evidence by the complainant that prior to the party arriving at Yealering, the appellant picked up a set of jumper leads which were in the back of the car. I note that for the purposes of sentencing, the learned Judge found that it was consistent with the complainant's evidence that the offence involving the jumper leads occurred after the group left Yealering and when the complainant was in the front seat. The appellant leant forward from his position in the back seat and attempted to attach the jumper leads to the complainant's nipples. The evidence was that the complainant tried to protect her chest by crossing her arms across her chest.
9 The appellant gave evidence that he was just "mucking about" and that it was not his intention to clip the jumper leads to the complainant's nipples because he was only "fooling around". There was some evidence that the jumper leads were in fact attached to other parts or another part of the complainant.
10 The indictment alleged that on the relevant date (3 November 2001), at a place between Corrigin and Yealering, the appellant unlawfully and indecently assaulted the complainant by trying to put jumper leads on her nipples.
11 The evidence in relation to the relevant offence by all of the members of the group in the car, was that they travelled to several towns to visit hotels and that the route they followed from Corrigin was to Kulin, Kondinin, Yealering and Wickepin, before returning to Corrigin. Each member of the group gave evidence of a fracas between the complainant and the appellant which took place at the Yealering Hotel in which the appellant threw beer at the complainant.
12 At the trial, the complainant and the appellant's brother gave evidence that the incident with the jumper leads occurred after the party left the Yealering Hotel. The appellant and the witness, Mr Meikle, gave evidence that the incident occurred between Corrigin and Yealering. At the same time, the appellant admitted, when he was cross-examined, that the incident with the jumper leads occurred when he was sitting in the back seat of the car and the complainant was sitting in the front seat, diagonally across from him. This admission is consistent with the relevant incident occurring after the group left Yealering as the complainant said in her evidence.
(Page 6)
13 It was suggested to the complainant that the appellant had only jokingly suggested that "they" could clip the jumper leads to the complainant's nipples and that the complainant laughed. The complainant said that she did not think it was a joke. She said that this was because the appellant did pinch her on the arm and on the leg with the jumper leads.
14 The background to the offence of which the appellant was found guilty was that he admitted he had touched the complainant on the breasts and buttocks on a number of occasions, but maintained that this was done with consent. The verdicts of acquittal on counts 1, 2, 3 and 5 reflect the likelihood that the jury was not satisfied beyond reasonable doubt that the complainant did not consent to the activities the subject of those counts.
Directions to the Jury
15 It is in this context that the learned trial Judge directed the jury as follows:
"So given that there has been acknowledged by the accused of a touching on the breasts, touching on the buttocks and of touching her breasts on numerous other occasions, you can be satisfied that there was a touching which would constitute an assault if it was done without the consent of [the complainant]. In the context of count 4 in the indictment, that is, the one of alleging trying to put jumper leads on her nipples, the relevant words of the definition are, 'Those [sic A person who] by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without his consent,' and further on the term applies, 'Force [sic applies force] includes the case of applying heat, light, electrical force, gas, odour or any other substance or thing, whatever, if applied in such a degree as to cause injury or personal discomfort.'
I think you would accept that the attachment of jumper leads to the person of another would undoubtedly cause personal discomfort. So it's in that context that that charge otherwise falls within the definition of assault if that was done without the consent of [the complainant]. Now, for a consent to be lawful it simply means a consent which is freely and voluntarily given. It doesn't necessarily mean, in the circumstances of this case, that before the event of touching the breasts the girl has to say, 'It's okay for you. I consent to you touching my breasts.'
(Page 7)
- But if in the circumstances in which these acts were committed the touching was consensual, if it was as the accused describes – they were all over each other all day, touching each other, she was initiating contact with him – then, members of the jury, whilst it's a matter for you to decide on the evidence as a whole, you might in those circumstances form the view that [the complainant's] consent is implicit in her participation in the way that the accused described.
If on the other hand you come to the view that – and you accept [the complainant] as being a truthful and credible witness, that she did complain and object in the manner in which she told you on numerous occasions and in a forceful way, and if there was contact on her part it was in the way of pushing the accused away rather than drawing him in and cuddling him, likewise if you accept her evidence, then you may come to the view that she did not consent to that which was happening on that day.
As I say, it's a matter for you to determine on the whole of the evidence, when you are considering each of the charges, as to whether or not you are satisfied beyond reasonable doubt that [the complainant] consented to or didn't consent to that which was being done to her and that which is alleged in each of the charges."
16 The jury had to resolve a substantial conflict in the evidence. As his Honour remarked to the jury in his summing up:
"I remind you that if there was no consent to the touching, then the touching was unlawful. So, members of the jury, when you consider each of the charges bear in mind what I have said in respect of those words or the elements contained in each charge. Does it amount to an assault? The touching in the manner alleged or the trying to put jumper leads on her in the manner alleged. You have to be satisfied beyond reasonable doubt that each of those things did happen.
Was it indecent? Was it unlawful? But you will always come back to the question of, 'Well, am I satisfied beyond reasonable doubt as to those matters?' If you come to the view that it was mucking around, it was playful, it was exuberance and she was consenting to what was happening, then clearly you would have to acquit the accused if you held to that view. Clearly, the
(Page 8)
- evidence of [the complainant] and that of the other witnesses is very much on conflict and defence counsel identified to you a number of areas where there is conflict in the evidence. Reference was made to the question as to whether or not [the complainant] did drink alcohol. She said she didn't. Other witnesses said she did. Conflict as to speeding. Whether she was speeding. She said in cross-examination that she may have been a little bit over the limit.
Conflict in the evidence as to she having denied that she initiated any contact or kissed or cuddled with the accused. Her evidence that she threw a glass at the accused in the hotel bar. [The complainant's] evidence as to taking her top off in the car when the others were present. [The complainant's] evidence as to asking [the appellant] and Stephen to take her home and their denials that she did ask. Her evidence that she was very upset and angry when they did get home to the home of Mrs McColl and then Mrs McColl's evidence which said that she was in a happy, jovial mood on that occasion. So clearly there is conflict insofar as the evidence of the witnesses is concerned. It's a matter for you, members of the jury, how you rationalise that conflict."
Jury Questions
17 The jury retired to consider their verdict at 11.41 am on the second day of the trial. Approximately an hour later, the jury sent a note to the trial Judge asking two questions. The questions and the answers are recorded at pp 134 – 135 of the transcript at pp 111 – 112 of the appeal book.
18 The first question was:
"At which hotel was the beer thrown at [the complainant] based on her evidence given yesterday?"
19 The second question was:
"From which town did [the complainant] sit in front of the vehicle based on her evidence yesterday?"
20 The answer to each question was "Yealering" as recorded at p 135 of the transcript; p 112 of the appeal book. That answer was transmitted to the jury shortly after 12.45 pm.
(Page 9)
21 After the luncheon adjournment, the jury sent a message to the trial Judge which is recorded at p 136 of the transcript; p 113 of the appeal book, as follows:
"We wish to hear or see a transcript of [the complainant's] testimony of the events which occurred between Yealering and Wickepin as related to the Crown prosecutor."
22 The relevant passage is at pp 38 – 39 of the transcript; pp 15 – 16 of the appeal book and is as follows:
"So what happened when they came out drunk?---Well, we were going to go back to Wickepin – or around to Wickepin, and I really wanted to get in the front seat because of what was going on in the back seat. I didn't want to be in there any more. I was pretty upset. So I got in the front seat and Andrew got in the front seat to drive, and [the appellant] was trying to get in the front seat as well and saying, 'Oh, I wasn't allowed in the back – I had to go in the back seat. I wasn't allowed in the front seat,' and Andrew was pretty – trying to look after me to a reasonable point and saying to him, 'Don't be an idiot,' and eventually he did persuade [the appellant] to get in the back and I was in the front seat and we went from there to Wickepin.
Who was driving?---Andrew McColl was.
So you said you went from Yealering to Wickepin. Is that right?---Yeah.
What sort of distance is that?---It's about 30 minutes, yeah – I think, yeah, 30, 40 minutes.
Sorry. 30 to 40 minutes, did you say?---Yeah, I think so. Yeah.
Are you able to tell us anything about what happened during that drive?---[The appellant] – yeah, well [the appellant] was trying to lean over the front seat and squeeze my breasts, and he was trying to pull my shirt up and trying to tell me to take my top off. Then he got a set of jumper leads from the back seat and was trying to put them on my nipples, and I was trying to protect myself and he kept on trying to keep going with it and grabbing me, and he pinched me on the leg with them and the arm because he couldn't get to my nipples and just carried on being an idiot.
(Page 10)
- You said you tried to protect yourself. How did you do that?---Putting my arms across me and trying to protect my breasts, where he was going for.
You also said that he tried to get you to take your shirt off. Is that right?---Yeah. He was trying to get me to pull my shirt up and - - -
How did he try to get you to do that?---Leaning over the front and trying to pull my shirt up over me and telling me to take it off and – yeah, trying to take it off himself.
So he tried to take your shirt off?---Yes.
Where did he touch you?---He touched me on my breasts and my leg and he was trying to get my nipples.
When you say that, can you just tell us in a bit more detail what you mean?---Well, he was trying to lift my shirt up and squeeze my breasts, trying to get to them with the jumper leads, and then he had the jumper leads and he was trying to put them on my breasts – like, pulling my arms across and trying to put them on my nipples – trying to pinch my with them."
23 All of the witnesses had given evidence of a fracas between the complainant and the appellant at the Yealering Hotel in which the appellant threw beer at the complainant. The complainant and the appellant's brother gave evidence at the trial that the jumper leads' incident occurred after the complainant and the appellant left the Yealering Hotel with the others: see pp 38 – 39 and pp 81 - 82 of the transcript; appeal book at pp 15-16 and pp 58-59. The appellant and the witness Meikle both gave evidence that the incident occurred between Corrigin and Yealering: transcript pp 37 and 80; appeal book pp 14 and 57.
24 The complainant's evidence-in-chief at the trial was that the incident involving the jumper leads occurred between Yealering and Wickepin. She first described an incident at the Yealering Hotel when the appellant threw a glass of beer at her. She had been wearing a shirt around her waist and then put on the shirt because her top was wet. The party then went back to the car to drive from Yealering to Wickepin. She said that the others were drunk when they came out of the hotel. Her evidence was that the incident regarding the jumper leads continued for about 10 or 15 minutes and that the incident occurred between Yealering and
(Page 11)
- Wickepin. She said that Mr Meikle was trying to settle the appellant down and telling him to stop. When they got to Wickepin, they dropped off the appellant and his brother. The complainant gave evidence that she did not consent to the activity with the jumper leads. She was aged 17 at the time.
25 The prosecutor said at p 136 of the transcript, appeal book p 113, that the evidence of the complainant was that the offence involving the jumper leads occurred between Yealering and Wickepin, rather than between Corrigin and Yealering as alleged in the indictment. Her statement to the police had alleged that the incident occurred before Yealering. That led counsel for the prosecution to apply to amend the charge in count 4 to allege that the offence occurred "in or about Yealering" rather than specifying that it occurred between two towns, saying:
"It seems that there is no doubt that the jumper lead incident occurred at about that point. Whether it occurred before they arrived in Yealering or after they arrived in Yealering would seem to be of no great import."
26 Counsel for the defence opposed the amendment. It was pointed out that in her statement to the police, the complainant had not said that the jumper lead incident occurred on the way from Yealering to Corrigin as alleged in the indictment. The learned trial Judge pointed out at p 138 of the transcript, appeal book p 138, that the appellant had admitted in his evidence that there was an incident with the jumper leads, but suggested that it was "hardly relevant" whether the incident occurred before Yealering or afterwards, saying that "… in the context of the charges as the trial has unfolded, that's hardly relevant. It's a particular rather than an element."
27 In any event, as the learned Judge pointed out, it was common ground on the evidence that the jumper leads incident occurred when the appellant was in the back seat and the complainant was in the front seat. It was also common ground that she got into the front seat at Yealering. The appellant's brother gave evidence at pp 92 – 93 of the transcript, pp 68 – 69 of the appeal book, that the complainant was upset because beer had been thrown over her by the appellant in the hotel at Yealering.
28 The appellant's brother agreed that the complainant got into the front passenger seat at Yealering. He said his brother had tried to get into the front seat and sit on top of her. The complainant did not want that. The evidence was that the appellant eventually got into the back seat at
(Page 12)
- Yealering. On this basis, the incident with the jumper leads clearly occurred after the party had left Yealering.
29 In the result, the amendment was allowed so that count 4 was amended to read:
"And further that on the same date at or near Yealering [the appellant] unlawfully and indecently assaulted [the complainant] by trying to put jumper leads on her nipples."
30 In my opinion, the learned trial Judge was clearly entitled to make the amendment to the particulars regarding the place at which the offence was alleged to have occurred. As the learned Judge pointed out at the time, the place was a particular and not an element of the offence. It was common ground at the trial that there was an incident involving the use of jumper leads.
31 Given the circumstances, this was a clear case for the application of s 591 of the Criminal Code which relevantly provides that:
"If, on the trial of a person charged with an indictable offence, there appears to be a variance between the indictment and the evidence, … the court shall unless it considers that the variance, … is material to the merits of the case, and that the accused person will be prejudiced thereby in his defence on the merits, order the indictment to be amended, so far as it is necessary, on such terms, if any, as to postponing the trial, and directing it to be had before the same jury or another jury, as the court may think reasonable.
The indictment is thereupon to be amended in accordance with the order of the court."
32 In my opinion, the amendment was not one which was "material to the merits of the case" as that expression is used in s 591: cfBond v The Queen (1992) 62 A Crim R 383 at 401 – 402 per Murray J. In such a case, the onus is on the accused, in opposing the amendment, to demonstrate that the amendment was so material. It was also not a case in which the amendment could be said to be oppressive or embarrassing in the sense referred to in R v Smith & Ors [1950] 2 All ER 679; see also R v Lewis [1994] 1 Qd R 613. Murray J also said in Bond at 404 that:
"… the question whether [the amendment] should be made and the terms upon which it should be made, is governed by the trial
(Page 13)
- Judge's assessment of the degree to which the subject matter of the amendment was material, related, or was relevant to, the merits of the case and the degree of prejudice which would be occasioned to the defence by the making of the amendment. Clearly those matters are interrelated and they must fall to be judged, in a case such as this, against the background of the evidence led at trial and the testing of that evidence by way of cross-examination to expose what are the real issues between the parties."
33 I accept the submission on behalf of the respondent that the location of the incident, the subject of count 4 was not material in the sense of whether the incident involving the jumper leads occurred before, at, or after the group had left Yealering. The primary issue at the trial was whether the complainant consented to the various things that the appellant did to her. In the case of the jumper leads event, this was quite a separate and distinct incident, different from all of the other alleged incidents involving typical sexual acts. In my opinion, the precise location was merely incidental.
34 The complainant's evidence at the trial was that the incident the subject of count 4 occurred after the group had left the Yealering Hotel. Her evidence was that the applicant reached over from the back seat, squeezed her breasts and attempted to take her top off. He then attempted to put jumper leads on her nipples, but failed to do so and ended up pinching her on her legs with the leads. The appellant himself gave evidence that he picked up the jumper leads and said, "Who wants a jump start?", although he said this occurred between Corrigin and Yealering. In this context, his earlier evidence that he had repeatedly touched the complainant's breasts was relevant, together with her allegations that this had not been consensual.
35 In this context, it does not seem to me that it matters a great deal that the complainant said in her statement to the police that the offence involving the jumper leads occurred between Corrigin and Yealering, but gave evidence at the trial that the incident occurred after they had left Yealering. As pointed out by counsel for the respondent, the appellant's counsel was in a position to cross-examine the complainant on the basis that she had made a prior inconsistent statement about the location of the offence. Counsel did not do so.
36 Mr Meikle, who was called by the appellant, gave evidence that the incident occurred on the way to Yealering. The appellant also gave
(Page 14)
- evidence to the same effect. It follows that there was a "variance between the indictment and the evidence" for the purposes of s 591. It was not only a variance between the indictment and the evidence of the complainant, but also a variance between the indictment and one of the witnesses for the appellant. In the result, it was contended on behalf of the appellant that he was prejudiced in his defence by the amendment. First, it was contended that he was denied the opportunity to cross-examine the complainant on the basis that she had a made a prior inconsistent statement. This contention is not correct. The difference between the complainant's statement to the police and her examination-in-chief became immediately apparent when she was cross-examined by the appellant's counsel.
37 When seeking leave to recall the complainant for further cross-examination after the amendment was made, counsel for the appellant said that she had no need to cross-examine the complainant prior to the amendment of the indictment. Counsel, however, was aware that there was a prior inconsistent statement, which she could have used for the purposes of cross-examination. I accept the contention on behalf of the respondent that the appellant must accept the consequences of electing not to cross-examine the complainant on that point in the context of credibility.
38 As already indicated, I do not consider that the precise location of the relevant incident in the car was material. The consequence of that is that I am unable to find any prejudice to the respondent as a result. It was contended on behalf of the appellant, however, that he was prejudiced because the circumstances described meant that he was prejudiced in relation to his defence of consent, given "the timing of the beer-throwing incident" at the Yealering Hotel. In my opinion, there was no relevant connection between that incident at the Yealering Hotel and the incident with the jumper leads, except that the circumstances of that incident made it more unlikely that there was any consent if it occurred after the earlier incident at Yealering.
39 In my opinion, in the overall context of this case, the amendment was not material and, in any event, the complainant did not consent to what was done with the jumper leads. In this respect, I agree with Steytler J that the appellant himself admitted in cross-examination that the complainant made it plain to him that she did not want him to touch her with the jumper leads. The amendment was not relevant to an element of the offence, but merely to a particular of location in a case which there was alleged to have been a series of events in the course of what is
(Page 15)
- colloquially described as a "pub crawl". The offence occurred in the course of the journey home after visits to a number of hotels in nearby towns.
40 There is, likewise, no substance in ground 2(b) which contends that the learned Judge misdirected the jury when he failed to tell the jury that Mr Meikle had given evidence that the jumper leads' incident occurred before Yealering. I am quite satisfied that on the evidence before them, the jury was entitled to find, as they must have done, that the offence occurred at or near Yealering. For these reasons, I would dismiss the appeal.
41 STEYTLER J: I have had the advantage of reading the judgment of the Chief Justice. I agree with him that the appeal should be dismissed.
42 As will be apparent from the judgment of the Chief Justice, the appellant was charged with a number of unlawful and indecent assaults which allegedly took place on 3 November 2001, but was convicted of only one of them. That conviction related to count 4 on the indictment, which had originally alleged that on 3 November 2001, at a place between Corrigin and Yealering, the appellant unlawfully and indecently assaulted the complainant by trying to put jumper leads on her nipples. That count was later amended so as to allege that the offence occurred "at or near Yealering".
43 That charge (and the others on which the appellant was acquitted) was brought partly on the strength of a written statement made and signed by the complainant on 7 November 2001. The complainant's statement referred to a series of short car journeys made by her, the appellant, the appellant's brother (Andrew McColl) and a friend, Stephen Meikle, on 3 November 2001. She said that the indecent assaults on her were committed by the appellant at Corrigin (counts 1 and 2), while the four were driving between Corrigin and Yealering (counts 3 and 4) and while they were driving between Yealering and Wickepin (count 5).
44 At the trial the complainant departed from her statement as regards the place at which the offence charged as count 4 on the indictment had been committed. She said that the events giving rise to that offence took place after the four of them had left Yealering. She was supported, as regards the timing of the "jumper lead incident" (I use that phrase as a neutral expression, given that there were different versions of what took place in the course of the incident), by the evidence of Andrew McColl, but the appellant and Meikle maintained that this incident occurred before the car had reached Yealering.
(Page 16)
45 As the Chief Justice has said, this led to the amendment of the indictment, after the jury had retired and against the opposition of counsel for the appellant, in the respect to which I have earlier referred. Counsel for the appellant sought, but was refused, leave to recall the complainant for the purpose of cross-examination arising out of the amendment. When the trial Judge informed the jury of the amendment, in the course of answering a question posed by it, he said that the purpose of the amendment was to enable the charge to cover "both before and after" Yealering. He mentioned that the complainant and McColl had said that the jumper lead incident occurred after the four people had left Yealering and that the appellant said that it had occurred between Corrigin and Yealering. He did not mention Meikle's evidence in this context.
46 There are only two grounds of appeal. The first contends that the trial Judge erred in law when amending the indictment in circumstances in which the amendment was prejudicial to the appellant's defence and in which he refused the appellant leave to reopen his case for the purpose of further cross-examining the complainant. The second is to the effect that the trial Judge erred in fact when he misdirected the jury by failing to tell them that Meikle gave evidence that the incident occurred before Yealering.
47 As to the first of those grounds, counsel for the appellant contends that the refusal of leave was prejudicial to the appellant's defence in that it made it less likely, at least in the absence of further cross-examination, that the jury would accept his defence that the complainant had consented to his actions, the appellant having, she said, raised this defence in respect of all counts on the indictment. This prejudice was said to arise because the fact of an altercation which had taken place between the appellant and the complainant at Yealering (the beer-throwing incident described in the judgment of the Chief Justice) made it less likely that the jury would accept a defence of consent by the complainant to conduct of a sexual kind directed to her by the appellant after they had left that town than if the conduct was said to have taken place before they arrived there. Counsel for the appellant also said that the appellant was prejudiced by her inability, after the amendment, to cross-examine the complainant about the disparity between her statement made prior to the trial and her evidence at the trial as regards the place at which the jumper lead incident occurred.
48 In my opinion, there is no substance to these contentions.
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49 As to the alleged prejudice to the defence of consent, it seems to me that there was in fact no defence of consent, so far as count 4 was concerned.
50 The appellant, in the course of cross-examination by the prosecutor, expressly acknowledged that the complainant had made it clear to him that she did not want him to touch her with the jumper leads. So much is obvious from the following exchange between the prosecutor and the appellant:
"You did try and grab her with the jumper leads on the breasts, didn't you?---I pointed them towards her but I didn't try and grab her with them, no.
Saying, 'Who wants a jump start?'?---Yes.
And you did in fact connect with her on her arms and legs with the jumper leads, didn't you?---No.
On the outside of her clothing?---No.
You can remember that clearly?---Yes.
You're certain you didn't do that?---I never clipped them onto her, no.
But in fact you did clip onto her, didn't you?---No.
She did tell you to piss off on a number of occasions when you tried to touch her, didn't she?---Twice.
Yes, and she did then, didn't she?---Pardon?
She did, when you tried to clip onto her, tell you to stop it?
---Yes, that's right, she told me that.
She did, didn't she?---'Fuck off,' yes.
So she made it quite clear to you she didn't want you to touch her?---With the jumper cables, yes. She went, 'Oh, fuck off. Leave me alone,' sort of thing."
51 Similar evidence was given by the appellant's brother, Andrew McColl. The following exchange occurred in the course of his cross-examination by the prosecutor:
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- "And you heard him try to - sorry, you saw him [the appellant] try to clip them onto her nipples, didn't you?---Just mucking around.
Well, the question was you saw him - - -?---Yes.
You did see him try and clip them onto her nipples, didn't you?---Yeah.
And you could tell she wasn't reacting very positively to this, couldn't you?---Yes.
And you saw him (sic) try to take them off him. Isn't that right?---Yes.
Isn't it true as well that you told him at that point to give it a break?---Yeah.
And she told him to piss off?---Yes, and then - yeah."
52 Meikle, in his evidence-in-chief, said that, when the appellant had reached over towards the complainant with the jumper leads, she had told him to "'piss off' or something like that".
53 While there are other references in the evidence to the effect that the complainant had, at or about the times of the alleged assaults, been laughing and joking, there was no suggestion that she had consented to the appellant's attempt to place the jumper leads on her nipples. Rather, the real issue, so far as count 4 was concerned, was whether the appellant had in fact intended to place the jumper leads on the appellant's nipples or had merely been pretending to have that intention, as he claimed he had been.
54 It follows, in my opinion, that it was irrelevant to the jury's decision whether the jumper lead incident occurred before or after the beer-throwing incident at Yealering. That being so, there was no question of any prejudice arising out of the making of the amendment.
55 That leaves the contention that prejudice resulted from the trial Judge's refusal to allow counsel for the appellant to recall the complainant for further cross-examination as regards the inconsistency between her pre-trial statement and her evidence at trial. This was a matter which went to the complainant's credibility generally. Counsel for the appellant (who was always aware of the inconsistency) could, if she had wished to do so, in any event have cross-examined the complainant about that inconsistency but decided not to do so. I am unable to accept that an
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- amendment to the indictment which was, for the reasons which I have given, immaterial to the merits of the case provided any justification for a re-visiting of that decision.
56 Ground 1 consequently fails.
57 As to ground 2, it necessarily follows from the fact that it was immaterial to the merits of the case concerning count 4 whether or not the jumper lead incident occurred before or after Yealering that it was also immaterial whether or not the trial Judge overlooked mentioning to the jury what had been Meikle's evidence in that regard. This ground, too, consequently fails.
58 I would accordingly dismiss the appeal.
59 MCKECHNIE J: For the reasons given by Malcolm CJ and Steytler J with which I am in agreement, I would dismiss this appeal.
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