MWR v The Queen
[2003] WASCA 236
•3 OCTOBER 2003
MWR -v- THE QUEEN [2003] WASCA 236
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 236 | |
| COURT OF CRIMINAL APPEAL | 03/10/2003 | ||
| Case No: | CCA:167/2002 | 22 SEPTEMBER 2003 | |
| Coram: | MURRAY J STEYTLER J PARKER J | 22/09/03 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted Appeal allowed Convictions quashed Applicant remanded for new trial | ||
| B | |||
| PDF Version |
| Parties: | MWR THE QUEEN |
Catchwords: | Criminal law and procedure Sexual offences alleged against child under 16 Delay in making complaint Modified Longman warning Adequacy of direction No new principle involved |
Legislation: | Nil |
Case References: | Christophers v The Queen [2003] WASCA 214 Crisafio v The Queen [2003] WASCA 104 Crofts v The Queen (1996) 186 CLR 427 Kailis v The Queen (1999) 21 WAR 100 Longman v The Queen (1989) 168 CLR 79 James v The Queen [2000] WASCA 100 R v McEndoo (1980) 5 A Crim R 52 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : MWR -v- THE QUEEN [2003] WASCA 236 CORAM : MURRAY J
- STEYTLER J
PARKER J
PUBLISHED : 3 OCTOBER 2003 FILE NO/S : CCA 167 of 2002 BETWEEN : MWR
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Sexual offences alleged against child under 16 - Delay in making complaint - Modified Longman warning - Adequacy of direction - No new principle involved
Legislation:
Nil
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Result:
Leave to appeal granted
Appeal allowed
Convictions quashed
Applicant remanded for new trial
Category: B
Representation:
Counsel:
Applicant : Mr M R Gunning
Respondent : Mr D Dempster
Solicitors:
Applicant : Gunning Young
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Christophers v The Queen [2003] WASCA 214
Crisafio v The Queen [2003] WASCA 104
Crofts v The Queen (1996) 186 CLR 427
Kailis v The Queen (1999) 21 WAR 100
Longman v The Queen (1989) 168 CLR 79
Case(s) also cited:
James v The Queen [2000] WASCA 100
R v McEndoo (1980) 5 A Crim R 52
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1 JUDGMENT OF THE COURT: The applicant was charged with four sexual offences committed against his granddaughter. The offences were allegedly committed in two groups. The first two offences were charged as having been committed between 1 January 1997 and 31 December 1999, and the second group of offences were allegedly committed between 19 June 1999 and 31 December 1999. In the years 1997 to 1999, the child would have been aged 12 to 14 years.
2 The Crown case in respect of each alleged offence was as follows:
3 Count 1 – an offence of sexual penetration. The applicant was alleged to be driving in his car, alone with the complainant. He stopped the car, lowered his trousers and had the complainant take his penis into her mouth.
4 Count 2 – an offence of indecent dealing. This occurred on one evening while the child was staying at her grandparents' home. Her grandmother had retired to bed and she was watching television with her grandfather who asked her to "toss him off". She complied and masturbated him to ejaculation.
5 Count 3 – an offence of sexual penetration. This occurred in a shed in the yard of the applicant's home, where he was doing some painting work. The complainant was 13 or 14 at the time. Again, she was asked to suck the applicant's penis, and did so.
6 Count 4 – an offence of indecent dealing. This offence was allegedly committed immediately after count 3, when at the request of the applicant the complainant masturbated him, again to ejaculation.
7 The trial was held on 26 and 27 August 2002. The offences having allegedly occurred between 1997 and 1999, on unknown dates some time during that period, it appears that the child made no complaint about the commission of the offences until some time in 2000. She was apparently a troubled child who, for a time from the end of 1999 and during 2000, stayed with the family of a friend. She said she told her friend who told her mother, a woman who gave evidence at the trial. We need not discuss that evidence, but merely note that it was sufficient to assist as evidence of opportunity, but was not otherwise evidence capable of corroborating the child's evidence as to the commission of the offences.
8 This witness said that she first learned of the allegations when seeing a youth worker with the complainant. The relevant department became involved, the police were involved and an investigation was conducted
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- from about 15 August 2000, when the complainant made a statement to the police. The appellant was finally arrested and charged on 28 December 2000. There was no evidence that the applicant made any admissions.
9 The complainant gave evidence when she was aged 16 years, up to perhaps 5 years after the alleged commission of the first of the offences charged in the indictment and perhaps as soon as 2 years after the alleged commission of the last of those offences. She also gave evidence of a similar incident committed in the bedroom at her grandparents' house while her grandmother was away and while she and the applicant were at home alone. She said she would then have been 6 or 7 years old.
10 The applicant gave evidence at the trial, in which he denied that any such incident occurred. He said that when the child was 6 or 7 years old he was working 6 or 7 days a week. He said he did not have a vehicle and the complainant only commenced to visit at his house in 1998. In short, his evidence amounted to the contention that he would then have had no opportunity to commit the offences in the circumstances alleged by the complainant.
11 He called two witnesses to support this account, a painting contractor who had worked in partnership with the applicant, whose evidence does not seem to be of particular assistance, and his wife, whose evidence was that she did relatively little babysitting of grandchildren in the early 1990s. It only became a regular occurrence from about 1994 or 1995, when the complainant would have been aged 9 or 10. By 1999, this ceased to be such a regular occurrence. The evidence of this witness had some capacity to restrict the evidence of opportunity to commit the alleged uncharged acts, but again was of little assistance in negating the opportunity to commit the offences charged in the indictment in the period during which they were said to have occurred.
12 As to that, when cross-examined the complainant was really unable to recall with any precision when the incidents occurred, or in which order.
13 In giving his evidence, the applicant denied the commission of all the offences charged. He said he had never been at home alone with the complainant, that the lounge room door was never shut, and that in 1999 he could not work in the shed because his son and his girlfriend were living with them at that time and were storing their furniture in the shed. Again, he was not able to give evidence which was a complete denial of
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- the opportunity to commit the offences alleged and so far as the commission of the offences was concerned, in the end the case was one which depended upon the jury accepting the evidence of the complainant as an accurate and truthful account of what happened to her and rejecting as true the applicant's denials.
14 The applicant was convicted.
15 He sought leave to appeal against his conviction and after hearing that application we granted leave and allowed the appeal. We quashed the convictions and directed a retrial of the indictment before the District Court. For that purpose, the applicant was remanded on bail to a status conference in that Court.
16 Two contentions made by the grounds of application need to be mentioned. The first is a complaint about the nature of the direction given to the jury by the trial Judge in respect of the significance of the failure of the complainant to make a complaint about the alleged incidents until the matter came to light in 2000 in the circumstances to which we have referred. The second matter to be mentioned is a complaint about the nature of the directions given to the jury by the trial Judge about the fact that the complainant's evidence of the occurrence of the offences charged in the indictment was uncorroborated. The trial Judge said he would give what his Honour described as "a modified warning to suit the exigencies of the case", but the contention was that, having rightly determined upon that course, his Honour then failed to discharge the obligation of law to give a warning of the kind envisaged by the decision of the High Court in Longman v The Queen (1989) 168 CLR 79.
17 There were other grounds of application which seemed to us not to have sufficient merit and there is no need, for the purpose of these reasons, to refer to them further. However, the two contentions we have mentioned did seem to us to have merit and caused us to take the view that the trial process had so far miscarried as to constitute a miscarriage of justice.
18 Turning to the first matter, the question of the absence of recent complaint, the trial Judge directed the jury in the terms required by s 36BD of the Evidence Act 1906 (WA), that the absence of complaint or delay in complaining does not necessarily indicate that the allegation that the offence was committed is false and his Honour told the jury that there might be good reasons why a victim of offences such as those alleged in
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- the indictment might hesitate to make, or refrain from making, a complaint of such offences.
19 In giving her evidence-in-chief, the complainant said that her grandfather had told her not to tell anyone because she would not be believed. She did not say that it was for that reason that she made no immediate complaint of the commission of the alleged offences. When cross-examined, it was led from the complainant that because the mother of her friend with whom she was staying had told the complainant that her daughter had been sexually interfered with, the complainant told her friend that she had been sexually interfered with by the applicant. She said that she did not want her friend to tell anyone else, but her friend told her mother, and her friend's mother told the welfare officer, as a result of which the investigation was commenced.
20 In Crofts v The Queen (1996) 186 CLR 427, the High Court considered the effect of a provision of the Victorian Crimes Act equivalent to s 36BD of the Evidence Act (WA). The majority noted that the section was concerned to overturn the previous standard practice of the courts, whereby judges were required to instruct juries that the evidence of complainants in sexual cases should be approached with particular care because persons accused of such crimes were inevitably in a vulnerable position. Their Honours held that, while it was necessary to give effect to the section, the trial judge remains subject to the duty to ensure a fair trial and at 451, Toohey, Gaudron, Gummow and Kirby JJ said:
"In restoring the balance, the intention of the legislature was not to 'sterilise' complainants from critical comment where the particular facts of the case, and the justice of the circumstances, suggested that the judge should put such comments before the jury for their consideration."
21 The point is, of course, that just as the making of a complaint of a sexual offence shortly after its commission may show the consistency of the conduct of the complainant and bolster his or her credibility, so, depending upon the circumstances, may the failure to complain or delay in making the complaint reflect adversely upon the credibility of the complainant.
22 In Kailis v The Queen (1999) 21 WAR 100, it was held that as a general rule such a direction should be given to counter-balance the direction required to be given in terms of the statute. It was pointed out in that case that the terms in which the direction would be given ought to be
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- those which the particular circumstances of the case dictated that justice required. As Malcolm CJ, with whom Anderson J agreed, put it, at 135 [125]:
"Circumstances vary greatly and there may be different views as to what is normal and, also, as to what constitutes reasonable opportunity. So much so, in my view, that there is much to be said for the proposition that the interests of justice are better served if each case is approached in the light of its own facts, with directions to the jury being fashioned to take account of the assumption, if any, to which those facts might give rise, rather than by reference to an assumption expressed in general terms, but which, clearly, cannot hold good in all cases."
"Now, it doesn't take a great deal of scrutiny, ladies and gentlemen, to see what some of those circumstances might be, and again, first and foremost among them are the relationship between the parties and the age differences between them. These may well explain the absence of complaint. Ultimately, of course, a complaint was made to the police, they were informed of the happening of these matters and the complainant gave a deposition. You will recall she was cross-examined about that, which led, in turn, to this indictment being presented against this accused man, but there was no complaint made at the time. I remind you again, that absence of complaint does not necessarily mean that they are false and there may be good reasons why a complainant would refrain from making complaints in a situation like this."
24 In our view, that was not a direction adequate to guide the jury in relation to the relevance of what they might regard as a failure to complain within a reasonable time of the alleged offences, indeed, a failure to complain at any time other than by an apparently reluctant confirmation that what she had told her friend was true. The terms in which his Honour's direction was given were, we think, calculated to cause the jury to pay little or no regard to the failure to complain when assessing the credibility of the complainant as a witness despite the fact that, as we understand it, that was a matter upon which defence counsel had placed some reliance in addressing the jury. (The addresses of counsel were not transcribed and included in the appeal book).
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25 Particularly having regard to the fact that this was a case where the prosecution depended entirely upon the jury's acceptance of the complainant as a reliable and truthful witness and because of the way in which she gave her evidence about the absence of complaint and the way in which the matter came to be investigated by the police, we think this was a case where it was necessary for the trial Judge, as well as giving the direction required by s 36BD of the Evidence Act, to explain to the jury the relevance of the matter of recent complaint upon their assessment of the credibility of the complainant.
26 There might have been reference to such matters as the age of the complainant when the offences charged were allegedly committed, her living circumstances at the time so far as they were known, and whether there was then any reasonable opportunity to complain, the nature of her relationship with her grandfather, what she said he told her about keeping silent and what impact they thought that had upon her, together with any other matters in the evidence which might bear upon the jury's decision whether or not to accept the complainant as a truthful and reliable witness.
27 As to the other matter raised by the application, the question of the danger of conviction upon the uncorroborated testimony of the complainant, there was apparently no question at the trial that a warning of the kind required by Longman should be given, suitably adapted to the requirements of the particular case. As to the content of the warning the law is, we think, clear. The principles derived from Longman have been amplified and refined in later decisions of the High Court and in decisions of this court, culminating perhaps in the recent unreported decision, Crisafio v The Queen [2003] WASCA 104; 20 May 2003, in which the relevant authorities were discussed. In addition, reference may be made to the even more recent case of Christophers v The Queen [2003] WASCA 214; 12 September 2003, where the judgment of the Court was that of Hasluck J, with whom Murray and Roberts-Smith JJ agreed.
28 The occasion to give the warning is where, if they are to convict, the jury must rely entirely upon the substantially uncorroborated testimony of the complainant when the passage of time or other circumstances establish the need to inform the jury of the special care needed in evaluating the reliability of the complainant's testimony having regard to the forensic disadvantage in which the accused is placed when, although the evidence of the complainant is potentially unreliable, the capacity to establish its unreliability by cross-examination or calling witnesses has long since been lost. It is because the dangers inherent in the circumstances of the case may not be appreciated by the jury that the direction is required.
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29 The terms in which the direction is to be given are to be tailored to the circumstances of the case. The essential point is that a warning is to be given, highlighting the dangers inherent in the circumstances of the particular case so that a fair trial may be secured by having the jury approach their decision about the credibility of the complainant with a proper understanding of the difficulties involved in the case. The absence of the capacity to appropriately test the veracity and accuracy of the complainant's evidence requires, among other things, not only reference to the circumstances which make that so, but also the direction that the jury should not rely upon the evidence of the complainant without subjecting that evidence to careful analysis and scrutiny so as to ensure that they are entirely satisfied about its reliability.
30 In this case the trial Judge, having spoken to the jury about the matter of the absence of a complaint, told the jury that it was very important that they also consider the position of the applicant when faced with allegations of sexual misconduct that are some years old. His Honour spoke at length about the difficulty confronting an accused person in such a situation. His Honour said that although it was unnecessary as a matter of law for the accused to give evidence to disprove allegations of this kind, nonetheless it was a natural reaction to attempt to do so and the jury might think that it was impossible some time after the offences were allegedly committed for an accused person to "answer chapter and verse these allegations by attempting to find evidence that would suggest to the contrary; that he did not have the contact that is complained of, and the like."
31 His Honour concluded these remarks by saying:
"Then before you could – and otherwise I would urge you to be very cautious in these circumstances before proceeding to convict the accused. Just be cautious about it, ladies and gentlemen, because of those difficulties that I have explained to you. Weigh them up in your deliberations and be cautious."
32 His Honour then commenced to discuss the evidence of the complainant and reminded the jury that although she had given evidence which the jury might accept "was a clear recitation of these four events" she could not remember the order in which the incidents were said to have occurred or when they occurred. His Honour asked the jury to consider:
" … does that have a tendency to make the accused's job more difficult having regard to the period of time, her uncertainty as
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- to the order of the events in which they took place – make it more difficult for him to come to court and answer a case that has those uncertainties in it. It is a matter entirely for you, ladies and gentlemen, and you will make your decision having regard to the principles that I have explained to you."
33 In our respectful opinion, his Honour did not in fact explain the principles involved in the sense required by a Longman warning. His Honour focused entirely upon a forensic difficulty confronting an accused person who wished to give or adduce evidence to contradict that of a complainant. He did not explain to the jury why he was telling them about that difficulty. He did not highlight the need to carefully scrutinise the evidence of the complainant and to be entirely satisfied of its truth and accuracy before relying upon it. We are left unsure what use the jury may have made of these directions, but we are entirely satisfied that they did not meet the requirements of the law.
34 In our opinion, the combined effect of these misdirections was sufficient to demonstrate the danger of a miscarriage of justice in the failure of the trial process to deal adequately with two matters of considerable importance in the jury's evaluation of the credibility of the complainant. It was for those reasons that we made the orders to which we have previously referred.
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