On appeal from the Supreme Court of South Australia
Representation:
P J L Rofe QC with S C Ey for the appellant (instructed by Mangan Ey and Associates)
P F Muscat for the respondent (instructed by Director of Public Prosecutions (South Australia))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
MWJ v The Queen
Criminal law – Practice and procedure – Trial by judge without a jury – Appellant convicted of three sexual offences against a child – Supposed inconsistencies between the evidence of the complainant and her mother concerning complaints that the complainant made to her mother – Whether the manner in which the trial judge dealt with the supposed inconsistencies involved error.
Criminal law – Practice and procedure – Rule in Browne v Dunn – Application of the rule to an accused in a criminal trial – Supposed inconsistencies between the evidence of the complainant and her mother not put to the complainant in cross-examination – Whether the complainant should have been re-called – Consequences for trial judge's decision-making.
GLEESON CJ AND HEYDON J. Following a trial before a judge, sitting without a jury, in the District Court of South Australia, the appellant was convicted of three sexual offences against the complainant, who was a child at the time. The three offences allegedly occurred at 10 Jeffries Street, Whyalla Playford, in 1990 or 1991, where the appellant was living with the complainant's mother. There was an alleged earlier offence of a similar nature, said to have occurred at 5 Sutcliffe Street, Whyalla Stuart, between 1986 and 1987. The appellant was acquitted of this charge. The three offences of which the appellant was convicted arose out of a single incident at Jeffries Street. However, evidence was given of other uncharged offences committed earlier at Jeffries Street. The alleged incident at Sutcliffe Street, and the incident at Jeffries Street, which were the subject of the charges, were, according to the complainant, the first and last occasions of sexual abuse to which she was subjected. Where there is alleged to be a history of sexual abuse, it may be that a complainant will find it easiest to remember, and give detailed evidence about, the first and the last occasions on which it occurred.
Only three people gave evidence at the trial: the complainant, the complainant's mother and the appellant. The mother gave evidence of complaints made to her. The admissibility of that evidence is not in question in this appeal. The argument in the appeal relates to certain supposed inconsistencies between that evidence and the evidence of the complainant, and to the way those inconsistencies were dealt with at trial.
The sequence of complaints was as follows. In 1991, the complainant told her mother…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
MWJ v The Queen [2005] HCA 74
Case
[2005] HCA 74
Decision Date
CaseChat Overview and Summary
The appellant, MWJ, was convicted by a judge alone of three sexual offences against a child. The appeal concerned alleged inconsistencies between the evidence of the complainant and her mother regarding complaints made by the complainant. The High Court of Australia was required to determine whether the trial judge's handling of these supposed inconsistencies constituted an error.
The legal issues before the High Court included whether the trial judge erred in his consideration of the alleged inconsistencies between the complainant's evidence and her mother's evidence, and whether the rule in *Browne v Dunn* was correctly applied to the accused in a criminal trial. Specifically, the court considered whether the failure to put these supposed inconsistencies to the complainant during cross-examination, and the consequences for the trial judge's decision-making process, amounted to a miscarriage of justice.
The High Court found that while the trial judge may not have referred to every aspect of the alleged inconsistencies, he had sufficiently considered the substance of the defence case on this issue. The court held that the omissions in the trial judge's reasons were not of such significance as to create a real risk of his ultimate conclusion being flawed, nor would they have led to an erroneous direction to a jury. The court also clarified that the rule in *Browne v Dunn* was not intended to require an accused to anticipate and cross-examine a witness on potential inconsistencies in the evidence of another prosecution witness, nor for a judge to depart from the rules of evidence to avoid perceived unfairness to a witness.
The appeal was dismissed.
Orders
Orders of the court
Appeal dismissed.
Background
Background to the litigation
The appellant was charged with several offences of sexual misconduct: on one count, of unlawful sexual intercourse between 7 July 1986 and 31 December 1987 at Sutcliffe Street at Whyalla Stuart, and, on three others, of unlawful sexual intercourse, indecent assault and attempted unlawful sexual intercourse between 1 January 1990 and 31 December 1991 at Jeffries Street, Whyalla Playford. As will appear, the specification of the address in each instance is of particular relevance to the issues raised by the appeal.Facts and previous proceedings The complainant was born on 6 July 1978, and at the time of the trial was 25 years old. In 1986 her mother, and the man whom she had married in 1981, separated. They were then living at Sutcliffe Street, Whyalla Stuart. In 1987 the appellant met the complainant's mother and moved into the house at that address. In May 1989, the appellant, the complainant and two of her siblings and her mother moved into a house at Jeffries Street, Whyalla Playford. Although the offences constituting three of the counts were alleged to have occurred on the same day at 10 Jeffries Street, the last occasion of the appellant's alleged offending, numerous other allegations were made by the complainant of sexual abuse, not the subject of any of the charges, at that address. Because the complainant's mother worked as a cook at a restaurant, sometimes during the day and sometimes at night, the complainant was often left in the care of the appellant. The appellant elected to be tried by a judge (Smith DCJ) sitting alone pursuant to s 7(1) of the Juries Act 1927 (SA)[12]. The prosecutor, in opening the case on the first of the counts said that the complainant, "thinks that this is the only occasion when the accused touched her in this way at Sutcliffe Street". When she came to give her evidence on this count the complainant confined her complaint fairly clearly to one event:[12]Section 7(1) provides: "Q.At Sutcliffe Street, did anything unusual occur between you and [the appellant]?A.Yes.Q.Whereabouts were you when that occurred?A.I was in bed at the time.Q.Do you recall whether anybody else was in the bedroom?A.I think K, but no-one else. [K was a sister of the complainant.]Q.At what time of the day or night did something unusual occur?A.I don't know the time I was awoken. It was night-time. It was definitely night-time.Q.Are you able to say whether it was light or dark outside?A.It was dark.Q.Do you know whether K was awake or asleep?A.She was asleep.Q.What about you; do you remember what you had done that night before you went to bed?A.No,Q.How old were you?A.Around eight.Q.Can you tell us what happened?A.I woke up and somebody was laying in my bed. I was facing the wall and I rolled over – because I had been awoken, I thought my mum must have got home from work, so I said her name. It was [the appellant] there. I felt him remove his finger from inside me and he told me that mum would be home soon and he left.Q.Had anything like this happened before?A.No, not that I know of." (Emphasis added)
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
GLEESON CJ
HEYDON J
GUMMOW, KIRBY AND CALLINAN JJ
Doyle CJ concluded as follows[22]:[22]R v M,WJ [2004] SASC 345 at [84]-[88]."The ultimate question is whether the failure of the Judge to consider all aspects of what I will call the inconsistency argument has given rise to a miscarriage of justice. The matter can be put in three different ways. First, has it resulted in the Judge failing to consider a significant aspect of the defence case? Second, is there a real risk of the Judge having been led into error in his ultimate conclusion by his failure to consider the relevant matters? Third, if the Judge had summed up to the jury along the lines of his reasons, raising only the matters that he identified in his reasons, would the Court conclude that the jury had been misdirected?I agree that the inconsistencies were a significant aspect of the defence case. But I am satisfied, in the end, that the Judge has considered the substance of the defence case on this issue. [Counsel for the appellant] rightly identified aspects of the argument to which the Judge has not referred, but assessing the Judge's reasons as a whole I consider that he has sufficiently dealt with this aspect of the defence case.As to the second question, I do not agree that the matters that the Judge failed to deal with are of such significance that there is a real risk of the Judge's ultimate conclusion being flawed. Once again, reviewing the Judge's reasons as a whole I am satisfied that his conclusion could not have been affected by the aspects of the argument to which he did not refer.As to the third question, bearing in mind that it is not necessary for a judge to spell out to the jury all aspects of the factual issues that they have to decide, I am not persuaded that a direction to the jury that brought to the jury's attention the matters that the Judge dealt with, and did not refer to the aspects of the submissions that he overlooked, would be an erroneous direction on the facts.ConclusionFor all those reasons I consider that the omissions in the Judge's reasons are not sufficient to lead to the conclusion that the verdict should be set aside. The appeal should be dismissed." The appeal to this Court The appellant's grounds of appeal to this Court are variants of two propositions: that the Court of Criminal Appeal erred in the application of the principle established in Browne v Dunn[23], and that the inconsistency to which reference has been made, invalidated the convictions. The former proposition is correct, the latter is not. [23](1893) 6 R 67. Something should first be said of the trial judge's criticism of the appellant's failure, in effect, to give the complainant an opportunity of explaining away the inconsistency arising out of her mother's evidence. The criticism is ill-founded for these reasons. The complainant had already given her evidence when the mother gave her evidence. It was not for the appellant to know and anticipate, by cross-examining the complainant, what the mother would say about the complainant's assertions of complaints of multiple offences at Sutcliffe Street. It was not for the appellant to iron out inconsistencies in the case for the prosecution. Secondly, his Honour erred in holding that if there were competition between the avoidance of unfairness to the complainant and a "technical view of the rules of evidence"[24] (whatever that in the circumstances means), the former must prevail. It is not for a judge to depart from the rules of evidence on such a basis. The rules are designed to ensure fairness to all, certainly not least, to an accused in a criminal trial. [24]R v WJM [2004] SADC 75 at [86].
Ratio Decidendi
Legal Principle Established
Established by:
GLEESON CJ,
HEYDON J,
GUMMOW, KIRBY AND CALLINAN JJ