MWL v The Queen

Case [2016] NTCCA 6

MWL v The Queen [2016] NTCCA 6

PARTIES:  MWL

v

THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:  CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO:21354549

PRONOUNCED:  12 December 2016

DELIVERED:  22 December 2016

HEARING DATE:  15 April 2016

JUDGMENT OF:  SOUTHWOOD, BLOKLAND and HILEY JJ

APPEALED FROM:  KELLY J

CATCHWORDS:

CRIMINAL LAW – Jury directions – failure to give a direction about lies – failure to direct the jury in accordance with the principles enunciated in Edwards v The Queen and Zoneff v The Queen – real or perceptible danger that the jury may find the appellant’s denials to be lies inconsistent with his innocence – real danger that if the direction were not given, the jury would use the appellant’s lies as evidence of his guilt – direction necessary to avoid perceptible risk of miscarriage of justice – appeal allowed on this ground by Southwood and Blokland JJ, Hiley J dissenting – convictions set aside – retrial ordered

EVIDENCE – Sexual offences – admissibility of evidence about the complainant’s behaviour – failure to give a direction about the use of evidence about the complainant’s behaviour – appeal allowed – convictions set aside – retrial ordered 

CRIMINAL LAW – Jury directions – sexual offences – failure to direct the jury about forensic disadvantage due to the delay in the complaint – failure to direct the jury about the unreliability of the complainant’s evidence resulting from such delay and other factors – unreliability direction necessary in relation to count 1 – appeal not allowed on this ground by Blokland and Hiley JJ, Southwood J dissenting as to count 1 on the indictment – Evidence (National Uniform Legislation) Act 2013 (NT) s 165, s 165A, s 165B

CRIMINAL LAW – Jury directions – sexual offences – hard swearing case – complaint evidence – complaint evidence could be used for two purposes – failure to direct the jury how the evidence of complaint could be used – risk that the jury may use the hearsay contained in the complaint evidence to independently support the complainant’s evidence – direction about uses of complaint evidence necessary – appeal allowed on this ground by Southwood and Blokland JJ, Hiley J dissenting – convictions set aside – retrial ordered – Evidence Act (NT) s 26E; Evidence (National Uniform Legislation) Act 2013 (NT) s 66(2)

Evidence (National Uniform Legislation) Act 2013 (NT) s 66, s 135, s 137, s 165, s 165A, s 165B

Evidence Act (NT) s 26E

Dhanhoa v The Queen (2003) 217 CLR 1; Edwards v The Queen (1993) 178 CLR 193; R v Cassebohn (2011) 109 SASR 465; Simic v The Queen (1980) 144 CLR 319; Zoneff v The Queen (2000) 200 CLR 234, applied

Broadhurst v The Queen [1964] AC 441; Flora v The Queen [2013] VSCA 192; Hermanus (A Pseudonym) v The Queen [2015] VSCA 2; Jarrett v The Queen [2014] NSWCCA 140;

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MWL v The Queen [2016] NTCCA 6
Case
[2016] NTCCA 6
Decision Date

CaseChat Overview and Summary

The appeal concerned the convictions of the appellant, MWL, for sexual offences. The appeal was heard by the Full Court of the Supreme Court of the Northern Territory, comprising Southwood, Blokland, and Hiley JJ. The central dispute revolved around alleged failures by the trial judge to provide adequate directions to the jury on several crucial matters.

The legal issues before the Full Court included whether the trial judge erred by failing to direct the jury in accordance with the principles established in *Edwards v The Queen* and *Zoneff v The Queen* regarding the use of lies told by the appellant as evidence of guilt. Further issues concerned the adequacy of directions relating to the complainant's behaviour, the forensic disadvantage arising from delay in reporting the alleged offences, and the proper use of complaint evidence in a "hard swearing" case.

The majority of the Court, constituted by Southwood and Blokland JJ, allowed the appeal on the grounds relating to the failure to give a direction about lies, the admissibility of evidence about the complainant's behaviour, and the use of complaint evidence. They found a real or perceptible danger that the jury might have used the appellant's denials as evidence of guilt, or that the jury might have used hearsay contained within the complaint evidence to independently support the complainant's testimony. Hiley J dissented on these grounds. Southwood J also dissented from the majority regarding the direction on forensic disadvantage due to delay for count 1.

The Full Court allowed the appeal, set aside the convictions, and ordered a retrial.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

During her final address Crown counsel made the following statements to the jury.TB, well, she obviously has had quite a lot to do with [the appellant]. She was engaged to him for six or seven years and the defence would have you believe she had a strong dislike of him to the extent that she was ready to sink the boot into the [appellant]. But she was not cross-examined about any change in her evidence from the previous time. Her evidence was the same. She stuck to the story. Indeed, she was accused of toning down her evidence this time around.It is a matter for you to consider whether she was telling the truth, but if she was intent on sinking the boot in, one would assume that she would not change her tactics. The fact is that there were no tactics and she said to you that the first time she was angry, now she just had to come back and give evidence a second time. She could not articulate her feelings for the [appellant], but that is again in the context of having previously had quite a substantial relationship with him and now not being in one.She accepted she was angry the first time she gave evidence and you might think that it is normal that a person might run out of steam eventually. Her evidence – a crucial part of her evidence was that [the appellant] came into the room at 2 am, she admonished him for being out with the children and keeping them up and he shrugged and said, “I was only watching DVDs”. She could not give a cogent reason as to why she said 2 am. She said, “body clock”. I suggest to you that the time is not crucial. AH has said things happened at midnight and then she fell asleep and TB has said 2 am. Whatever it was, it was late at night or [in the] early hours of the morning.SB gave evidence last, and it may have seemed inconsequential. But, in fact, her recollection of a conversation with TB about the kids being up late, is an important piece of evidence that you can rely on to assist you in evaluating the truth of the witness.The [appellant] gave evidence in a previous trial and we played the evidence. I would suggest to you that his evidence of the night’s events was equally hit and miss. He started by saying that he had a fragmented memory of the evening and he used the term, “fragmented”, several times in his evidence. And he also used terms such as “this is an impression”.In examination-in-chief he was asked about – that is, when my learned friend was asking questions – he was asked about the sofa. And he said “No, it was definitely not there”. In cross-examination when I pressed him about the sofa, he said, “It might have been.” He could not be sure. When my learned friend asked him about sitting on the blow up mattress or beside the bed he said he did not sit on the blow up mattress or beside the bed. In cross-examination, he said, “Possibly did sit there.” He could not be sure.In examination-in-chief he was asked, “Did you watch” – he said “I did not watch DVDs with the children”. In cross-examination he said he may have watched something but he has no memory of it.An interesting aspect of his evidence was when he was describing the mattresses. Now, you have heard TB say they were single sized. You know, a normal single sized mattress, and also that the evidence came from SB, because she was the one who bought them from Target.When [the appellant] was asked to describe them he said that it was a small mattress, perhaps a metre long and 2 feet wide. It was extended out to about 1 metre 20. You could hear on the audio that he was obviously gesturing with his arm as to the length of these things and that was confirmed by counsel and her Honour as to how big they were. So we were left with I think 1 metre 20 in length, and 2 feet wide.You might think that he was trying to make them so small that it was impossible for him to sit on. But I would suggest to you that if they were that small it would have been very, very difficult for the three children to sleep on them.In his evidence he did not, of course, because he denies it, say anything about sexually interfering with AH.He did talk about changing DVDs. He said he did early on in the night. And then later in his evidence he said it was an impression that AH may have done it but he couldn’t remember, but she was fully capable of changing them. I suggest that he said that to show he was not near the children in the latter part of the night. But to what end when he later says he had a memory of the looping sound of the DVD, which one presumes he turned off, as the children were just lying there.I suggest to you that there is a pattern in his evidence. In examination-in-chief he was completely sure of many matters. But when pressed in cross-examination, he conceded he could not really remember. He says, “It was an unremarkable night.”The fact that he may have been in the end room working on computers does not preclude him from being in the lounge room with the children at any point during the night. Indeed, he seemed to be saying that at some point he was. That staying up late with his nephew on previous occasions had never been an issue, that is, with TB. But later he said he could not remember if he stayed up late or not. These comments were made in relation to the conversation he says did not happen when TB chipped him. And you might consider he was trying to cobble together an explanation of it being okay to be up late with the children. But that is a matter for you.Ultimately, the appellant’s evidence comes down to denying three key components of the Crown case. He never touched AH (the first). There was no argument between him and TB about being up late and alone with the kids, and that he did not have the opportunity, as the risk of being caught was too high. The dogs could have come in. TB could have come out. Though he did try to say she was a very heavy sleeper. She denied that. But that is a matter for you where that goes; and, of course, the possibility of the children waking up.Defence objections to the evidence

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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