Millar v The State of Western Australia
[2014] WASCA 2
•8 JANUARY 2014
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: MILLAR -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 2
CORAM: McLURE P
BUSS JA
MAZZA JA
HEARD: 6 NOVEMBER 2013
DELIVERED : 8 JANUARY 2014
FILE NO/S: CACR 39 of 2013
BETWEEN: ADAM DAVID MILLAR
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :BIRMINGHAM DCJ
File No :IND 597 of 2012
Catchwords:
Criminal law - Appeal against conviction - Sexual penetration of a child - Miscarriage of justice - Direction to jury concerning delay in making complaint
Legislation:
Evidence Act 1906 (WA), s 36BD
Criminal Code (WA), s 321(2)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr S B Watters
Respondent: Mr J Whalley
Solicitors:
Appellant: Barone Criminal Lawyers Pty Ltd
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427
FGC v The State of Western Australia [2008] WASCA 47; (2008) 183 A Crim R 313
McLURE P: I agree with Mazza JA.
BUSS JA: I agree with Mazza JA.
MAZZA JA: This is an appeal against conviction.
The appellant was charged on indictment and convicted by a jury after trial of two counts of sexual penetration of a child of or over the age of 13 years and under the age of 16 years, contrary to s 321(2) of the Criminal Code (WA). The appellant relies on only one ground which alleges that a miscarriage of justice occurred because his Honour failed to give an 'adequate' direction pursuant to Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427. Leave to appeal has been granted.
For the reasons that follow, the ground has not been made out and the appeal must be dismissed.
The prosecution case
The complainant, who was 14 years of age at the time of the offending, testified that on 12 February 2010, she, along with Ms ST and Ms JM, went to the appellant's duplex unit in Orelia. Later, others (including Ms TH) came to the unit. The appellant, who was at the time 34 years old, supplied his visitors with cask wine and cannabis. The complainant 'skolled' numerous cups of wine and became intoxicated. At some point in the afternoon, the complainant found herself alone in the house with the appellant. The appellant offered her some cannabis. The complainant said she had two 'cones' of the drug. Due to the combined effects of the alcohol and cannabis, the complainant became ill and ran to the toilet to vomit. Some vomit ended up on her shirt. Evidence was led from ST that the appellant at some point gave the complainant a sleeping tablet.
The complainant said she went to the laundry, where the appellant helped her to take off her shirt. She then undressed and took a shower, sitting on the floor as she did so. While she was in this position, the appellant stood outside the shower and stroked her hair. He was, at this point, dressed in only a shirt and boxer shorts.
The complainant said that she felt 'scared' and ran out of the shower and put a towel over herself. According to her, the appellant said 'don't worry about your clothes. Just go into my room - go to bed and have a lay down' (ts 80). That is what she did. Her evidence was that at
this time, she felt 'paralysed'. The State's case was that the appellant lay next to the complainant, stroking her hair. He then inserted his fingers into her vagina (count 1). After that, he inserted his penis into her vagina (count 2) (ts 81 ‑ 82). According to the complainant, the appellant stopped penetrating her when he got up to answer the telephone.
The complainant said that by the time she dressed, ST, JM, TH and others had returned to the duplex. There were some contradictions in the evidence about when they returned. Indeed, ST said she was present when the complainant was in the shower. ST testified that she went to the complainant's aid in the shower. The State alleged that the complainant spoke to TH and said either 'I think [the appellant] raped me', or 'I think [the appellant] raped me when youse were gone'. According to the complainant, later that evening she encountered the police on three separate occasions on matters unconnected with the alleged sexual offences. On none of those occasions did the complainant disclose to the police what had occurred.
The complainant did not report the matter to police until 21 October 2011, some 20 months after the alleged offences were committed. She was prompted to do so after seeing the appellant three times: once at a bus stop, once near a shopping centre and once at her place of work, a fast food restaurant.
The prosecution's case relied substantially on the credibility of the complainant's testimony, bolstered by evidence of recent complaint. However, the prosecution also relied on an alleged admission made by the appellant to JM. According to JM, she had a conversation with the appellant in his kitchen on 12 February 2010 in these terms:
[The appellant] had pulled me aside and he had said he had fucked [the complainant]. And I said '[The appellant], what are you doing? You know she's 14'. He said 'I know, she let me and then when she wanted me to stop I stopped.' And that was it (ts 123).
The State adduced evidence from the investigating police officer, Detective Sergeant Neil Barry, that the appellant voluntarily participated in a video recorded interview with police on 21 December 2011. The interview was played to the jury and tendered in evidence. In it, the appellant said that he knew the complainant and thought that she was about 14 or 15 years old (blue green AB 52). The appellant said that the complainant came to his unit on two occasions where she got drunk and 'spewed' and he had to put her in the shower. He recalled that on one occasion he washed the complainant's clothes and, while he was doing so, she lay on his bed with a towel on. He denied any sexual contact with the complainant. He maintained those denials when the precise allegations made by the complainant were put to him. At one point in the interview he put it this way:
I'm not denying the fact I put her in the shower, you know, but I did not sleep with her, touch her in any way (blue AB 80).
The defence case
The appellant did not give or adduce any evidence in his defence. He relied upon his denials in his record of interview with the police.
An examination of the trial record reveals that in general terms, the appellant sought to impugn the civilian witnesses called by the prosecution (including the complainant) on the basis that their recollection was adversely affected by the effects of their consumption of alcohol and/or cannabis.
In his cross‑examination of the complainant, defence counsel concentrated on the amount of alcohol the complainant had consumed (more than 10 cups of wine (ts 92)), her ingestion of cannabis, and that the complainant was unwell and lapsed in and out of consciousness, the clear suggestion being that, as a result of her intoxication, the complainant mistakenly believed that the appellant had sexually penetrated her.
The appellant's trial counsel did not suggest to the complainant that she had not made a complaint to TH. Rather, he emphasised that the complainant had said to TH that she thought she had been raped.
Significantly, having regard to the appellant's ground of appeal, it was never suggested to the complainant that her delay in reporting the matter to the police was because the alleged offences had not occurred.
With respect to the alleged admission made by the appellant to JM, the appellant's trial counsel, in addition to cross‑examining JM as to her intoxication, suggested that the appellant did not say 'I fucked her', rather he said 'I didn't fuck her'. JM did not agree with proposition. Nor did she agree that she was mistaken about what the appellant had said (ts 128).
Discussions in the absence of the jury
At the conclusion of the evidence but before counsel delivered their closing addresses, his Honour raised a number of legal issues in the absence of the jury. His Honour indicated that he would give directions as to recent complaint and s 36BD of the Evidence Act 1906 (WA). His Honour put it this way:
I'll give [the jury] a moulded charge covering both, I think, just explaining that there might [sic] some delay, but it won't be the full section 36BD I wouldn't have thought (ts 166).
Defence counsel did not take any exception to this course.
The closing addresses of counsel
The prosecutor submitted to the jury that despite the complainant's intoxication, her evidence was reliable. He said that her conduct was consistent with someone who had been sexually assaulted, and he emphasised the admission allegedly made by the appellant to JM. He also referred to ST's evidence that the appellant had offered the complainant a sleeping tablet. He submitted that the appellant did so because he 'had designs of a sexual nature on [the complainant]' (closing addresses ts 5).
The prosecutor referred in his closing address to the delay between the commission of the alleged offences and the complainant's report of it to the police, but did not elaborate, saying that the learned trial judge would give a legal direction concerning the delay (closing addresses ts 4).
The appellant's defence counsel submitted that the complainant's evidence was unreliable because of her intoxication and because of the inconsistencies between the various prosecution witnesses about what occurred on the day in question.
Defence counsel made it clear to the jury that he was not suggesting that the complainant had been deliberately untruthful in her testimony. He put it this way:
I'm not calling [the complainant] a liar, we're saying that her evidence, her memory, her recollection of events is unreliable … so we deconstruct [the complainant's] evidence and just look at the reliability of it (closing addresses ts 9).
Later in the closing address, defence counsel said:
We're not saying that [the complainant] is a liar. We're saying that you cannot rely on her evidence because of her state of intoxication, because of her poor recollection of the night, and because of these inconsistencies, that when she does say she remembers something and we test it against another witness's evidence, it doesn't match up (closing addresses ts 18 ‑ 19).
With respect to the question of recent complaint, the appellant's trial counsel sought to use that evidence to show that the complainant was not certain of what had happened with the appellant.
Defence counsel dealt with the alleged admission by submitting that JM was 'very drunk that night … and that her memory again was poor' (closing addresses ts 20). He submitted that JM's evidence was unreliable because of her consumption of alcohol and cannabis, and that it was, in certain respects, inconsistent with other witnesses' evidence.
Although the appellant's trial counsel was critical of the complainant because she did not complain to the police on the night the alleged offending occurred, he made no submission whatever about the delay in reporting the matter to the police. Specifically, it was not suggested to the jury that the delay indicated that the alleged offences had not occurred.
His Honour's summing up to the jury
His Honour identified the principal factual issue for the jury to decide as being whether the prosecution had satisfied the jury that the appellant had sexually penetrated the complainant as alleged.
He instructed the jury that it needed to closely examine the evidence of the complainant and be satisfied as to its reliability before the appellant could be convicted (ts 183). He told the jury to assess the complainant's evidence in light of the whole of the evidence that had been adduced. He told the jury to consider the evidence 'that everybody at this place that night had ingested considerable amounts of alcohol and drugs, particularly cannabis' (ts 185). He reminded the jury that the complainant had become 'violently ill'. He said that a picture had emerged in the course of the trial of the complainant as someone 'severely debilitated by the ingestion of alcohol and other substances' (ts 185).
His Honour directed the jury as to the evidence of recent complaint. The direction that he gave in this respect is as follows:
You've heard in this case the evidence of [TH], to which I referred, in relation to the complaint that the complainant made to [TH] that night when they returned, where she went out and said … words to the effect, 'I think the accused raped me'.
Proof that a complaint is made is never proof that an event occurred. Evidence of making a prompt complaint is not to be taken as proof that the conduct complained of did occur. It's not separate, additional or corroborative evidence that the events complained of took place.
That evidence was led by the State to show a consistency in the conduct of [the complainant]. It's something that you can take into account when considering her credibility and the truthfulness of her evidence. But you cannot treat it as separate or additional to her evidence. It was her evidence as to what happened which you saw and heard her give that you must consider. The fact that she told someone else the same thing doesn't add to the truthfulness of her evidence. If a story is not true, repetition of it doesn't make it true (ts 187).
The direction that his Honour gave with respect to the delay in bringing the matter to the attention of the police, which the appellant says has given rise to a miscarriage of justice, is as follows:
You would also recall that the complaint to the police was not made for some period of time. Indeed, it was not until, I think, October 2011, and then, according to the complainant, as a result of, I think, seeing the [appellant] at her place of work.
The fact that someone doesn't complain immediately and the delay is a relevant matter, and it's something for you to consider. It's for you to weigh up how significant it is. You'll recall that when she did complain to [TH], she didn't believe her. She didn't think that that's what they were there to do. She didn't think that that's the sort of thing that could happen.
Can I give you this direction, however, that delay in making a complaint that someone has been sexually assaulted and complaining to the police - in this case there was a complaint immediately, as I've just indicated, that you can rely on for the purpose of - as to whether it's consistent conduct; not to the fact that she said it, but that it's a consistency in her conduct. But the delay in reporting it to the police doesn't necessarily indicate that the matters complained of didn't happen.
A person such as the complainant might have good reason for not complaining to the police as she did some time later. It's for you to bear in mind what degree of significance you give to her not complaining to the police indeed that night when she was - saw the police that night, not complaining indeed to the police until some - in excess of 18 months later. Those are matters for you to judge.
But can I tell you this, that the absence of a complaint or delay in complaining to the police doesn't necessarily mean that the allegation that the offence was committed was false. There may be very good reasons for a victim of an offence that is alleged hesitating before making a complaint to the police of that offence or those offences. The mere fact that a complaint is made, however, is not to be taken as independent or separate evidence of the truth of the complaint (ts 187 ‑ 188).
Neither counsel took exception to any of his Honour's directions.
The appellant's submissions in the appeal
Mr Watters, on behalf of the appellant, submitted that the direction given by his Honour concerning the complainant's delay in reporting the matter to the police was 'inadequate' because his Honour failed to expressly tell the jury that the delay could adversely affect the jury's assessment of the complainant's credibility. It was submitted that the direction did not comply with what was said by the High Court in Crofts.
Section 36BD of the Evidence Act
Section 36BD of the Evidence Act provides:
36BD.Lack of complaint, jury warning about
Where on the trial of a person for a sexual offence or an offence under Chapter XXII of The Criminal Code (as enacted at any time) evidence is given or a question is asked of a witness which tends to suggest an absence of complaint in respect of the commission of the alleged offence by the complainant or to suggest delay by the complainant in making any such complaint, the judge shall -
(a)give a warning to the jury to the effect that absence of complaint or delay in complaining does not necessarily indicate that the allegation that the offence was committed is false; and
(b)inform the jury that there may be good reasons why a victim of an offence such as that alleged may hesitate in making or may refrain from making a complaint of that offence.
Crofts v The Queen
In Crofts, the High Court dealt with the Victorian equivalent of s 36BD of the Evidence Act. The trial judge in that case had directed the jury that in light of the statutory provision, they could not, as a matter of law, conclude that because the complainant had not made an immediate complaint of the offences after they occurred, the offences did not happen or that she had consented to them. The majority concluded that such directions are erroneous. The majority emphasised the word 'necessarily' in the statutory provision, stating:
Delay in complaining may not necessarily indicate that an allegation is false. But in the particular circumstances of a case, the delay may be so long, so inexplicable, or so unexplained, that the jury could properly take it into account in concluding that, in the particular case, the allegation was false (448). (original emphasis)
Crofts was analysed by Wheeler JA in FGC v The State of Western Australia [2008] WASCA 47; (2008) 183 A Crim R 313 [72] ‑ [95]. I agree with her Honour's analysis and the statement that:
I would understand Crofts as saying no more than that a trial judge's direction, where a case involves a delay in complaining in respect of offences of a sexual nature, must make it clear to the jury that the jury is permitted to consider whether that failure casts doubt upon the complainant's credibility. Of course, the statutory direction required by s 36BD must always be given [94].
I am unable to see how there could have been a miscarriage of justice occasioned by his Honour's direction. This was not a case where delay in complaint was a live issue. The evidence at trial was, in fact, that the alleged victim had made an immediate complaint, albeit in somewhat equivocal terms, to TH. The appellant did not suggest to the complainant that the delay in bringing the matter to the attention of the police was because the allegation was knowingly false. No such submission was made to the jury.
In any event, the direction that his Honour gave, contrary to the submission made by the appellant in this appeal, was in accordance with the principles laid down in Crofts. His Honour directed the jury that the delay in complaining to the police could be taken into account in evaluating the complainant's testimony. His Honour expressly told the jury that the delay was a relevant matter and was something for the jury to consider. In context, the jury would have understood that to mean that the delay in bringing the matter to the attention of the police might adversely impact on the complainant's credibility and reliability.
His Honour gave the balancing direction as required by s 36BD of the Evidence Act; in doing so, he made it clear that the delay did not necessarily indicate that the allegation was false. He did not fall into the error identified by the High Court in Crofts of expressly or impliedly suggesting that the complainant's delay in bringing the matter to the attention of the police could not be taken into account when considering whether the offences had actually occurred. It is material to the assessment of whether there has been a miscarriage of justice to observe that the appellant's trial counsel took no exception to his Honour's directions.
The ground of appeal has not been made out. The appeal must be dismissed.
0
2
2