Middleton v The Queen - [2000] WASCA 200

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: MIDDLETON -v- THE QUEEN [2000] WASCA 200

CORAM: KENNEDY ACJ
WALLWORK J
MILLER J

HEARD: 18 JULY 2000

DELIVERED : 2 AUGUST 2000

FILE NO/S: CCA 26 of 2000
CCA 35 of 2000

BETWEEN: REGINALD MICHAEL MIDDLETON
Appellant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Adequacy of directions on onus and standard of proof - Incorrect categorisation of defence case as one asserting concoction and perjury on part of Crown witnesses - Use of word "balance" through directions - Inappropriate reference to word "corroboration" - Whether new trial should be ordered or whether conviction should be quashed

Legislation:

Nil

Result:

Appeal allowed
Conviction set aside
New trial ordered

Representation:

Counsel:

Appellant: Mr R W Cannon
Respondent: Mr D Dempster

Solicitors:

Appellant: Gunnings
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Bull v The Queen [2000] HCA 24
Crofts v The Queen (1996) 186 CLR 427
David v The Queen, unreported; CCA SCt of WA; Library No 970135; 8 April 1997
Edwards v The Queen (1993) 178 CLR 193
Graham v The Queen (1998) 195 CLR 606
Latham v The Queen [2000] WASCA 57
Liberato v R (1985) 159 CLR 507
Palmer v The Queen (1998) 193 CLR 1
Parker v The Queen (1996‑7) 186 CLR 494
R v Leak [1969] SASR 172
Rabey v R [1980] WAR 84
Zoneff v The Queen (2000) 74 ALJR 895

Case(s) also cited:

Gipp v The Queen (1998) 194 CLR 106
Mickelberg v The Queen (1989) 167 CLR 259
R v Calides (1983) 34 SASR 355
R v de Lam (1999) 108 A Crim R 440
R v Morley (1999) 107 A Crim R 538
R v Murray (1999) 108 A Crim R 430

KENNEDY ACJ: At the conclusion of argument in this matter, the Court made orders allowing the appeal and quashing the conviction. A decision as to whether to order a new trial or to direct a judgment and verdict of acquittal was reserved. I have had the advantage of reading in draft the reasons to be published by Miller J. Those reasons sufficiently set out my own reasons for joining in making the orders on 18 July 2000 and for now ordering a new trial.
WALLWORK J: I agree with the reasons and conclusions of Miller J.
MILLER J: The appellant was charged on indictment that on 17 May 1997 at Scarborough he indecently dealt with a child under the age of 13 years. The indictment was later amended to delete the specific day so that the allegation was that in May 1997 the appellant committed the alleged offence. He was tried before Nisbet DCJ and a jury in the District Court at Perth on 27 January 2000 and on 31 January was convicted by the jury. The appellant appeals against his conviction on four grounds:
(1)the learned trial Judge erred when charging the jury in stating that it was the defence case that the complainant and her friend had perjured themselves, with the result that the jury was not left with the proper question, namely, whether they were satisfied beyond reasonable doubt on the whole of the evidence of the guilt of the appellant. Coupled with this ground is the contention that the learned trial Judge, whilst correctly directing the jury at the outset of his directions on burden of proof, thereafter introduced the words "it is a matter of balance", thus departing from the standing of proof beyond reasonable doubt.
(2)the verdict of the jury was unreasonable and/or cannot be supported having regard to the evidence because of the inconsistencies in the evidence of the complainant on the one hand and her friend on the other; the absence of any complaint for some seven months; and the overall delay in the matter proceeding to trial.
(3)inadequate directions were given to the jury on the effect of lies attributed to the appellant.
(4)the learned trial Judge erred in stating that evidence of what the complainant said the accused did in trying to "buy her silence" was "corroboration" of the fact that he had indecently dealt with her in May 1997.

The primary evidence against the appellant consisted of the testimony of the complainant (born 20 September 1986) and a friend (born 9 February 1984) who had been staying with the complainant. At the time of the alleged offence these young girls were respectively 10 and 13 years of age. Each of them testified at a pre‑trial hearing on video (Evidence Act 1906, s 106K); the complainant, on 14 May 1999 and her friend on 10 June 1999. This was some six months prior to the trial of the appellant and the video recorded evidence of each of the girls was the first evidence led by the Crown at the trial of the appellant on 27 January 2000.
The essence of the evidence of the complainant was that in May 1997 she had spent a weekend with her father at his unit in Brighton Road, Scarborough. On that occasion her friend [Y] had stayed with her and this, she said, was the only occasion upon which she had ever done so. The complainant's parents lived apart and the appellant was a friend of the complainant's father. He had visited the unit on the night complained of and according to the complainant, after she and her friend [Y] had retired to bed, the appellant had knocked on the bedroom door and had offered to show the two girls what he described as a "dance move". The complainant testified that the appellant had turned off the bedroom light and asked the complainant to approach him, whereupon he had grabbed her and kissed her, then lifted her and lifted up her nightdress and put his hand down her pants on the front of her genitals. According to the complainant [Y] then switched on the light and the appellant put the complainant down and left the room.
[Y] testified that she had been in the complainant's bedroom with the light off and had been jumping around on the bed with the complainant when the door opened. She called to the complainant but received no answer and got off the bed and turned on the light. She then saw the appellant cradling the complainant like a baby before he put her down and then walked out of the room.
The appellant testified in his defence. He admitted that he had been at the unit of the complainant's father in Scarborough on an evening when the complainant and her friend [Y] had been there, with [Y] staying overnight. He denied that he had ever gone into the complainant's bedroom and touched her. The Crown prosecutor cross‑examined the appellant aggressively and asked him whether he was saying the girls had "made a mistake" or were lying:
"So when [T] says that you went into her bedroom she's wrong about that? --- She's definitely wrong about that.
And so is [Y]? --- Definitely wrong.
Quite aside from anything else that happened about that, they are even wrong about that fundamental piece of evidence, are they? --- They're wrong about that for sure.
So they are both wrong about that. They have made a mistake or they are lying? --- What do you want me to say? I don't know.
Well, I'm suggesting to you that what they say is the entire truth. What do you say to that? --- If you're saying it's the truth, I'm saying it's a lie.
'It's a lie,' yes. And it's a lie also about you picking [T] up? --- Definitely a lie.
And it's a lie when [T] says those things that you did to her? --- It's definitely lies because I didn't go into the room.
And it's a lie also when she says that you put her down after the light was switched on. That's a lie too? --- Obviously a lie.
And [Y] also lies when she said she turned the light on and saw you putting [T] down? --- They're both saying different things. I don't know.
I am asking you about that. They both say the same thing about that. That's another lie, isn't it? --- It is a lie, yes."
It will be seen that when the Crown prosecutor first put the proposition that the girls were either mistaken or lying, the appellant answered that he did not know. He was driven by the Crown prosecutor to state that each of the girls had lied.
Later the Crown prosecutor reiterated the same line of cross‑examination:
"You say these two young girls have got their heads together to concoct a story, have you? --- Possible.
It's possible. Well, it's the case, isn't it, Mr Middleton, on your version of events? It's not just possible. You say it has definitely happened? --- Yes."
When the learned trial Judge directed the jury he said:
"Now, what then does the accused say about this, having elected to give evidence? His case revolves around two essential features, if you like. Firstly, his emphatic denial. He says it didn't happen. I did not go into the girl's bedroom so all the rest of it is a fabrication. In essence, what he is saying to you that these two girls have perjured themselves. They have concocted this story and perjured themselves by giving evidence on oath about the events of this evening."
The appellant's first ground of appeal goes directly to the manner in which the appellant was cross examined and the directions given by the learned trial Judge in relation to the issue of "concoction". It must first be said that the cross‑examination by the Crown prosecutor was inappropriate. In R v Leak [1969] SASR 172 the Full Court of the Supreme Court of South Australia said (at 173):
"In our view a witness ought not to be asked whether another witness is telling lies or has invented something. Any witness, of course, can be asked if what another witness has said is true …"
This passage was specifically approved by McHugh J in Palmer v The Queen (1998) 193 CLR 1 (at 25). Although McHugh J was in dissent, the majority (Brennan CJ, Gaudron and Gummow JJ) stated strongly that it is impermissible to seek to elicit from an accused person in cross‑examination a motive for a complainant to lie. Their Honours put it (at 7) as follows:
"It is one thing to permit cross‑examination of a complainant in order to elicit, if possible, a motive to lie. It is another thing to permit cross‑examination of an accused to show that an accused cannot prove any ground for imputing a motive to lie to the complainant. A complainant knows whether he or she has a motive to lie and, as a motive to lie is a fact that may be proved to impeach the complainant's credit, the complainant may be asked about it. And evidence may be given by other witnesses of events from which such a motive may be inferred. But the fact that an accused has no knowledge of any fact from which a motive of the kind imputed to a complainant in cross‑examination might be inferred is generally irrelevant. In general, an accused's lack of knowledge simply means that his evidence cannot assist in determining whether the complainant has a motive to lie, but if the facts from which an inference of motive might be drawn are facts that the accused would know if they existed, his lack of knowledge could be elicited to disprove those facts."
Although a slightly different point, it is apparent from the decision of the majority that cross‑examination of an accused person to elicit either a motive on the part of the complainant to lie or a statement that the complainant is lying is impermissible. It may be that in some cases an accused person will readily volunteer in chief that a complainant has lied or concocted a story, but that is a different thing.
Further, the learned trial Judge's categorisation of the accused's testimony as a statement that the evidence of the complainant and her friend was a fabrication, concoction and perjury constituted demonstrable error. However, that is not an end of it. Not only did this categorisation of the defence case obscure the onus of proof (a fact conceded by the Crown on the hearing of the appeal) but there was a failure on the part of the learned trial Judge to direct the jury in accordance with the approach so clearly put by Brennan J in Liberato v R (1985) 159 CLR 507 at 515:
"When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue. His Honour did not make that clear to the jury, and the omission was hardly remedied by acknowledging that the question whom to believe is 'a gross simplification'."
On the hearing of the appeal counsel for the Crown conceded that the jury were not told firstly that if they preferred the evidence of the prosecution they should not convict unless they were satisfied beyond reasonable doubt of the truth of that evidence, and secondly, that even if they did not positively believe the evidence adduced on behalf of the accused, they could not find an issue against the accused contrary to that evidence if the evidence gave rise to a reasonable doubt. It was conceded that the circumstances of the case were not unlike those in Latham v The Queen [2000] WASCA 57, where Malcolm CJ (at [13]) pointed out in allowing the appeal that the trial Judge had not appreciated that he had not told the jury that even if they positively disbelieved the accused they still could not convict him unless the Crown had satisfied them of his guilt beyond reasonable doubt.
This ground having been established, it is a sufficient basis for the conviction of the appellant to be quashed and therefore at least to be an order for a re‑trial. However, it is necessary to deal with other aspects of the appeal. Coupled with the complaint made about the learned trial Judge's directions on the question of "fabrication, concoction and perjury" is a complaint that his Honour on a number of occasions spoke to the jury in terms of "balancing" the evidence. An example was the following passage:
"As to [Y], the defence says look at the inconsistencies and differences between her testimony and that of [T]. [Y] didn't say they were dancing at all, she said they were jumping on the bed. [Y] said they screamed when the door was opened but not so loud as it could be heard in the kitchen. [Y] said she turned the light off, not the accused, and [Y] said the accused never said anything about showing this dance move. [Y] said the door was shut, it was dark and she couldn't see much.
Now, again the defence would say look at that, that coupled with the denials, the emphatic denials under oath and these consistencies all give rise to being suggestive that there should be a reasonable doubt in your minds that this case has been made out as the crown would say.
What is the counterpoint of this? You will remember I said it's a matter of balance. You have got to balance all these things out. It's a matter for you. What does the crown say about that? It says don't look at what are really immaterial inconsistencies, look at the material consistencies in the evidence of the two girls, [T] and [Y]." (Emphasis added)
Describing the case as "a matter of balance" was likely to take away from the fundamental directions in relation to burden and standard of proof and was regrettable. When coupled with the directions in relation to concoction, fabrication and perjury, there is no doubt that the first ground of appeal is made out.
The third ground of appeal contested the learned trial Judge's directions in relation to lies attributable to the appellant, but that ground of appeal was not pursued at the hearing of the appeal. The concession of counsel for the appellant in this regard was clearly correct, as the Crown did not suggest that any lie told by the appellant constituted an implied admission of guilt. The case was not one which required a direction in accordance with Edwards v The Queen (1993) 178 CLR 193. See also Zoneff v The Queen (2000) 74 ALJR 895.
The fourth ground of appeal relates to the use by the learned trial Judge of the word "corroboration" when describing evidence of the complainant to the effect that the appellant had allegedly tried to buy her silence. His Honour said:
"Secondly, he says the follow‑up event in which the crown says is brought into evidence to show that the accused had a guilty mind namely that he offered [T] money, obviously for her silence, $5 which she rejected, $50 that she rejected under the table at Indis Restaurant or Bistro, I don't know the place, I don't know what it is, I'm sorry, but it seems like a bar, bistro, restaurant arrangement from the evidence, he says that couldn't have taken place because where they were seated the tables are only 18 inches high. So he offers a sort of a comment on the crown case in that way that it was impossible that it could have happened in the way [T] described it.
Of course, the counterpoint of that is, as I've already said, that that evidence is adduced to show that afterwards, after the events, the accused knew what he had done and had a guilty mind about it and was trying to buy [T]'s silence. So it's, if you like, corroboration of the fact that he indecently dealt with her in May of 1997." (Emphasis added)
The use of the word "corroboration" was unfortunate. Although the learned trial Judge did not direct the jury as to what was meant by the word corroboration and it might therefore be said that the word was used in its everyday rather than legal meaning, the fact remains that what the complainant said about the appellant seeking to buy her silence was not "if you like corroboration" or anything like it. Indeed it was not independent evidence at all. It was evidence from the mouth of the very witness who was making the central complaint in the case. Any reference therefore to the question of "corroboration" in these circumstances was erroneous and whilst of itself it may not have constituted a sufficient basis for quashing the conviction and ordering a re‑trial, when considered in combination with the other matters, it underlines the need for the quashing of the conviction.
The second ground of appeal as framed in the notice of appeal contends that inconsistencies in the testimony of the complainant and her friend, the lack of early complaint, the delay in coming to trial: and the fact that the case relied essentially upon the evidence only of the two young girls all meant that the verdict of the jury was unreasonable and/or could not be supported, having regard to the evidence. However, at the hearing of the appeal counsel for the appellant effectively abandoned the argument that the verdict could not be supported having regard to inconsistencies in the testimony. As he properly put it, cases such as the present are bound to involve a multiplicity of inconsistencies as between young witnesses. As was said from the bench during argument, were it otherwise the position might be more worrying. Accordingly, it cannot be said because of inconsistencies in the evidence alone the jury could not have convicted. However, what counsel for the appellant really advanced under this ground was the proposition that for the various reasons enumerated, this Court ought not to order a re‑trial but should quash the conviction. Counsel added to the list of matters the Court should take into account the fact that the appellant has served approximately 6 months of his sentence.
There will be cases in which, for a combination of different reasons, the Court will exercise its discretion to direct a judgment and verdict of acquittal. In Rabey v R [1980] WAR 84, Wickham J put it this way (at 95 ‑ 96):
"All the criteria for exercising the discretion to order a new trial as distinct from simply directing a judgment and verdict of acquittal, have not yet been worked out. Where the case is strong and the error is a procedural one only, there is much to be said for the proposition that the matter should be retried in a proper manner. There are, however, other considerations. A new trial ought not to be ordered as a matter of course. Once justice has miscarried it is not always easy to maintain the scales in precise equipoise on a second occasion. The public interest in securing a fair trial of an alleged wrongdoer must be weighed against public inconvenience and expense, and against the possible oppression upon a member of the public who is placed in jeopardy twice for the same offence, has already spend some time in prison and has already been through one trial and an appeal. I think that a properly directed jury would be unlikely to convict on the issue of 'intent', and 'possession' would only have been triable summarily. Some of the criteria for exercising the discretion to order a new trial are referred to in R v Vailey [1956] SASR 153; R v Leak [1969] SASR 172 at 175 et seq; in R v Hanias (1976) 14 SASR 137 at 145, 157, and in the authorities therein mentioned. To these I would add the consideration that in this case the circumstances of the charged offence were comparatively venial.
In Peacock v R (1911) 13 CLR 619 at 675, O'Connor J said that where the facts proved at the first trial would have been sufficient to support the conviction if the jury has been properly directed, in general a new trial may be granted to enable the faulty direction to be remedied, providing that no injustice is done to the accused.
In considering the discretion to grant a new trial, that is the view which is expressed in R v Leak, supra, with the added condition 'if the jury could reasonably convict and might not improbably convict'. In considering the discretion not to grant a new trial, the view adopted was that where the case is weak and the jury properly directed 'would probably acquit' then, the court may properly incline towards refusing a new trial. In a particular case there will be various considerations, but I would respectfully adopt as a starting point the dicta of Griffiths CJ in Peacock v R, at 641, as follows: 'I do not think it was intended that a new trial should be granted as of course in every case where there has been an irregularity. I think the proper rule is that where there was evidence to go to the jury and the error was of such a nature that, if it had not been committed, the verdict would probably have been the same, a new trial may be granted. On the other hand, if, on the whole case, it is reasonably probable that, but for the error complained of, the verdict would or might have been different, a new trial should not be granted.' "

In Parker v The Queen (1996‑7) 186 CLR 494, Dawson, Toohey and McHugh JJ (at 520) considered that in the particular circumstances of that case, verdicts of acquittal should be entered:
"[If there was a re‑trial] that would require a substantial amendment to the indictment. In all the circumstances, particularly since the term of the sentence has now expired, the Crown accepted that an order for a new trial could not be justified for that purpose. The second reason is that the application of tracing principles in this context finds no support in the Code so that the proposed exercise is unjustified in any event.
There are other considerations that militate against a new trial. They were considered by the Court of Criminal Appeal though not thought sufficient to preclude a new trial. In light of the reasons in this judgment, we need place no reliance on those considerations, though the length of time that has elapsed since the events giving rise to the charges and the fact that the appellant has served the custodial part of his sentence tell against a new trial."
More recently, the High Court has shown some reluctance to enter a verdict of acquittal where in truth the matters for determination rest more with the Director of Public Prosecutions than with the court. In Crofts v The Queen (1996) 186 CLR 427, Toohey, Gaudron, Gummow and Kirby JJ directed that a new trial be held although saying (at 452):
"The appellant has already served a significant part of the custodial sentence imposed upon him. It is appropriate to repeat McHugh J's closing comment in Longman:
'In all the circumstances of the case, it is arguable that the interests of the public, the complainant, and the applicant are best served if the expense and psychological trauma of a new trial are avoided. But that is a matter for the Crown to decide.' "
In Graham v The Queen (1998) 195 CLR 606 Callinan J (with whom Gleeson CJ, Gaudron, Gummow and Hayne JJ agreed on this point) said at [47]:
"I would uphold the appeal, quash the verdicts of guilty and order a new trial. Whether such a trial should take place in view of the term of imprisonment served by the appellant will be a matter for the Director of Public Prosecutions."
In Bull v The Queen [2000] HCA 24, McHugh, Gummow and Hayne JJ declined to enter verdicts of acquittal saying (at [131]):
"The appeals must be allowed, the convictions of the appellants quashed and a new trial ordered. The Crown stated that, if the convictions were quashed, it would not seek a new trial of the appellants. However, nothing in the materials before this Court makes it an appropriate case to enter an acquittal in favour of the appellants. The ground of appeal which the appellants have made out entitles them to a new trial, not an acquittal. Whether or not they should be re‑tried is a matter for the Executive government of Western Australia, which may well take the view that the acquittal of the appellants on so many charges makes it practically, although not legally, impossible to try the appellants fairly."
In this Court, in David v The Queen, unreported; CCA SCt of WA; Library No 970135; 8 April 1997, reference was made by the Court to the difficulties of video recorded evidence being used on a re‑trial and the need for the Crown to determine whether in those circumstances a new trial should proceed. Similar considerations apply here. The video recorded testimony of the complainant and her friend may not, in its entirety, be admissible at a re‑trial without the opportunity for the appellant's counsel to cross‑examine. Whether in the circumstances of this case the Director of Public Prosecutions sees it necessary to re‑try the appellant is a matter for his decision. The appellant has, of course, served a significant proportion of his non‑parole period and the difficulties inherent in the re‑use of the video recorded evidence are problems which the Director will no doubt consider.
At the hearing of this appeal orders were made allowing the appeal and quashing the conviction. The question of whether a new trial should be ordered or whether there should be a verdict of acquittal was reserved. As it is essentially a question for the Director to decide whether there should be a re‑trial, I would order that there be a re‑trial rather than enter a verdict of acquittal.