Nguyen v The Queen

[1999] WASCA 192

NGUYEN -v- R [1999] WASCA 192

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[1999] WASCA 192
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:216/1998	Heard:	3 SEPTEMBER 1999
Coram:	MALCOLM CJ MURRAY J PARKER J	Delivered:	6/10/99
No of pages:	14	Judgment Part:	1 of 1
Result:	Appeal dismissed
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Parties:	BAY VAN NGUYEN THE QUEEN
Catchwords:	Criminal law Appeal Sexual assault Uncorroborated evidence of complainant denied by accused Verdicts of jury not unsafe or unreasonable
Legislation:	Nil
Case References:	Boyle v R, unreported; CCA SCt of WA; Library No 980125; 24 March 1998 M v R (1994) 181 CLR 487 Uhle v R, unreported; CCA SCt of WA; Library No 970149; 11 April 1997 K v R, unreported; CCA SCt of WA; Library No 980276; 22 May 1998

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : NGUYEN -v- R [1999] WASCA 192 CORAM : MALCOLM CJ

MURRAY J
PARKER J

HEARD : 3 SEPTEMBER 1999 DELIVERED : 6 OCTOBER 1999 FILE NO/S : CCA 216 of 1998 BETWEEN : BAY VAN NGUYEN

Applicant

AND

THE QUEEN
Respondent

Catchwords:

Criminal law - Appeal - Sexual assault - Uncorroborated evidence of complainant denied by accused - Verdicts of jury not unsafe or unreasonable

Legislation:

Nil

Result:

Appeal dismissed

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Representation:

Counsel:

Applicant : In person
Respondent : Mr R E Cock QC & Ms T R Watt

Solicitors:

Applicant : In person
Respondent : State Director of Public Prosecutions

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

Boyle v R, unreported; CCA SCt of WA; Library No 980125; 24 March 1998
M v R (1994) 181 CLR 487
Uhle v R, unreported; CCA SCt of WA; Library No 970149; 11 April 1997

Case(s) also cited:

K v R, unreported; CCA SCt of WA; Library No 980276; 22 May 1998

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1 MALCOLM CJ: In my opinion this appeal should be dismissed for the reasons to be published by Parker J with which I am in agreement.

2 MURRAY J: In this matter I have had the advantage of reading in draft the reasons to be published by Parker J. I agree with them and that the appeal should be dismissed.

3 As Parker J has commented, the applicant was unrepresented before the Court of Criminal Appeal. Although he was able to communicate with the court with the assistance of an interpreter he was unable to present oral argument. However, the notice of appeal and grounds of appeal had been prepared by legal practitioners for him. They focussed upon particular matters with respect to the lack of corroboration, the absence of recent complaint and prior inconsistent statements of the complainant and I have considered for myself the validity of those complaints, aided by written submissions in the form of a long letter addressed to the appellant by the solicitors who were then assisting him.

4 In addition, the court had available to it an appeal book containing the full transcript of the trial, which had been prepared for the appellant by the Criminal Registry of the Court. I have read that document in its entirety and have not restricted myself to the matters particularly raised in the grounds of appeal in considering whether, for any reason, there may in this case have been a substantial miscarriage of justice.

5 I have concluded that there are no grounds upon which these convictions should be overturned. I have nothing to add to the reasons of Parker J.

6 PARKER J: This is an appeal against the convictions of the appellant on three counts of sexual penetration of his stepdaughter when she was 11-years- old.

7 The appellant was convicted after a trial held in the District Court in December 1998. The appellant was represented by experienced counsel. He had been charged with four counts of sexual penetration but was acquitted of one of these which involved an allegation of penetration of the stepdaughter's vagina by the finger of the appellant. On the evidence it was uncertain whether the acts of contact between the appellant's finger and the girl's vagina had involved actual penetration of the vagina.

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8 The offences were committed in May 1988. The stepdaughter made no complaint at the time of the offences. She did not complain to the police until May 1997 when she was 20-years-old.

9 The case against the appellant at trial was that the stepdaughter, who was living with the appellant as part of his family, woke one night and went to the toilet. As she returned to her bedroom the appellant called to her and had her get into bed with him. As she lay next to him he put his hands inside her pyjamas and touched her on the vagina penetrating her. This was the first of the convictions. Within a week of that incident the appellant went into the stepdaughter's room at night, lay down with her, removed her pants and penetrated her vagina with his penis. This was the second of the convictions. The stepdaughter complained that he was hurting her. He stopped, applied some cream to her vagina and again penetrated her vagina with his penis. This was the third of the convictions.

10 The appellant's mother had been away from home when each of the offences was committed. On each occasion there were only two other children in the house. These were both younger than the stepdaughter.

11 The appellant was born in Vietnam where he spent his early life. He became a fisherman and a musician. Following army service he found his way as a refugee to Malaysia where he met the mother of his stepdaughter. Both the mother and the stepdaughter were also refugees from Vietnam. All three came to Australia together in 1977. The two younger children were born to the appellant and the mother of the stepdaughter after their arrival in Australia. Since coming to Australia the appellant has lived and worked in New South Wales and Western Australia. Nevertheless, it seems he has only a very limited capacity in the English language. This is significant because he was not legally represented at the hearing of this appeal. Grounds of appeal had been prepared with legal assistance and what may be described as a summary of argument had been prepared for the appellant by a legal practitioner. Regrettably, it appears that funding for legal assistance has not been available beyond that. As a consequence, rather than present full oral argument, the appellant asked that this Court to take into consideration the grounds of appeal and the summary of argument that had been prepared on his behalf and, with protestations of his innocence of these offences, he asked that the Court review the trial proceedings.

12 The trial was characterised by circumstances that are of growing familiarity. For effective purposes the evidence for the prosecution

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consisted of the evidence of the appellant's stepdaughter who is now an adult. Her evidence dealt with her recollection of the offences which, on her account, occurred when she was 11 years of age in 1988. There was no evidence which independently confirmed or corroborated her account of the material circumstances of the offences, although there was evidence which confirmed her general recollection of events at that time such as where she was living and going to school. The appellant had denied any sexual misconduct with his stepdaughter when first interviewed by the police in 1997 and he maintained those denials when he gave evidence in his own defence at the trial. Before this Court, on the hearing of this appeal, he continued to maintain his innocence of any sexual wrongdoing with his stepdaughter.

13 The difficulties of a trial involving circumstances such as these are renowned. There are obvious difficulties in the way of the prosecution satisfying a jury of the guilt of an accused beyond reasonable doubt when the prosecution case comprises in essence only one person's word and where this has been consistently denied by the accused. This difficulty is especially significant where that person's word is in respect of events which occurred many years ago when she was a child. Not so immediately obvious, but nevertheless very real, are the difficulties which face the defence in such a case. It is unlikely that an innocent accused when faced with an allegation of criminal conduct many years ago would have any particular current recollection of circumstances or events at the time alleged, especially where, as here, there is some imprecision about the alleged dates of the conduct. In addition there are likely to be significant difficulties for the defence in the way of testing the reliability of the evidence of the complainant about the alleged conduct when the need to do so first becomes apparent to the accused and his advisers many years after the alleged conduct. Further, it is inevitable in circumstances such as this that there is absent anything in the way of medical evidence which might assist to confirm or throw doubt on the account of the complainant.

14 For these reasons it is necessary for the trial Judge to take very great care in charging the jury not only to stress to them the significance of the onus of proof and the difficulty which that presents when the jury must consider essentially the evidence of one witness who was then a child, which evidence is denied, but also to bring clearly to the attention of the jury the long delay since the alleged events and the effects which that may have on the reliability of the evidence of the complainant. It is also necessary for the trial Judge to point out to the jury the difficulties for the

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preparation and presentation of an adequate defence to allegations of this nature in circumstances such as these.

15 Even where a jury adequately and properly charged is persuaded of the guilt of an accused in circumstances such as these, there is reason for very careful scrutiny on appeal to be sure that it was properly open to the jury to be satisfied beyond reasonable doubt of that guilt in the circumstances that are revealed. As was made clear in M v R (1994) 181 CLR 487 at 494 per Mason CJ, Deane, Dawson and Toohey JJ, even though there was evidence theoretically sufficient to support a conviction, on appeal the court must scrutinise the evidence on the record of the trial to assess for itself whether it "contains discrepancies, displays inadequacies, is tainted, or otherwise lacks probative force in such a way to lead the Court of Criminal Appeal to conclude that there is a significant possibility that an innocent person was convicted." If this should prove to be the case then the Court is bound to act and to set aside a verdict based upon that evidence. In this context where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the Court of Criminal Appeal is a doubt which a reasonable jury ought to have experienced.

16 The grounds of appeal do not raise any failure on the part of the learned trial Judge in the conduct of the trial or in the charge given to the jury. Instead the grounds direct their attention to the verdict itself contending it was unreasonable and was not supported having regard to the evidence in particular by virtue of:

(a) the lack of corroboration;

(b) the absence of recent complaint; and

(c) prior inconsistent statements of the complainant.

Having considered the charge given to the jury and the general conduct of the trial it can be readily appreciated why the grounds of appeal do not seek to challenge the Judge's conduct of the trial. No material deficiency is apparent. I will, however, comment on particular aspects of the charge when dealing with the three matters that were relied on in support of the contention for the appellant that the verdict was unreasonable and could not be supported having regard to the evidence.

17 As was said by Mason CJ, Deane, Dawson and Toohey JJ in M v R (supra) at 493:

"Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a Court of Criminal Appeal is

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asked to conclude that the verdict is unsafe or unsatisfactory, the question which the Court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the Court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the Court must pay full regard to those considerations."

Lack of corroboration

18 There was no evidence capable of corroborating the account of the appellant's stepdaughter. This was expressly and clearly emphasised to the jury by the learned trial Judge.

19 A trial Judge is not required by any rule of law or practice to warn a jury as to the dangers of convicting on the uncorroborated evidence of one witness and by s 50(2)(b) Evidence Act 1906 (WA) such a warning shall not be given unless the trial Judge is satisfied that such a warning is justified in the circumstances. Where a trial Judge is of the view that such a warning is necessary to avoid a perceptible risk of a miscarriage of justice arising in the particular circumstances of a case the warning given should be shaped to accommodate the particular circumstances of the case; Uhle v R, unreported; CCA SCt of WA; Library No 970149; 11 April 1997 and Boyle v R, unreported; CCA SCt of WA; Library No 980125; 24 March 1998. The decision in Longman v The Queen (1989) 168 CLR 79, although concerned with the then s 36BE, which was replaced by s 50, is nevertheless a sufficient authority for the proposition that where a warning was necessary having regard to the particular circumstances of the case, a failure to give a warning of this nature is reviewable on appeal and a conviction is liable to be quashed as unsafe and unsatisfactory if it is found that the failure to warn left a perceptible risk of a miscarriage of justice. Subject to those considerations the question whether a corroboration warning should be given remains a discretionary decision for a trial Judge having regard to the circumstances of the case.

20 In his charge in relation to this matter the learned trial Judge expressed himself in clear, straightforward and concise terms which in my respectful view would be readily understood by the jury. Having emphasised inter alia the significance of making an assessment of the

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credibility of the witnesses, and the significance in his favour of the appellant having elected to give evidence on oath before them, his Honour turned to the evidence of the stepdaughter. His Honour emphasised that her evidence was of critical importance in respect of each of the charges which the jury had to consider. The jury were expressly reminded that her evidence related to matters said to have occurred many years ago, of her age at the time, and that in assessing the truthfulness and accuracy and reliability of her evidence it was necessary to bear in mind that the longer the delay the greater the possibility of error in recollection; fallibility of recollection over a long period being a matter of common human experience. There was express direction that it was necessary for the jury to scrutinise the stepdaughter's evidence carefully and to exercise considerable caution before acting on it.

21 His Honour then expressly and with simple clarity reminded the jury that there was no independent evidence and that meant that there was no evidence which confirmed in any material particular that any of the offences alleged had been committed, or which confirmed that the appellant had committed any of the offences charged. His Honour went on to stress again the long delay between the alleged events and the matter coming to trial and his Honour then went on to explain the difficulties which that presented for the appellant to test the evidence of his stepdaughter. He pointed out that the long delay made it difficult to examine in detail the circumstances of the alleged offence and therefore put the appellant at a disadvantage. This was further emphasised by pointing out things that might have been done by way of furthering the defence case had the matter been raised only a short time after the alleged offences, including the possibility of locating and calling witnesses who might be able to support the appellant's denial of the material incidents alleged against him. This was further illustrated by a reference to more than one of the areas of factual dispute in the case, in each case making it clear that the defence was at a disadvantage in dealing effectively with each of those matters. His Honour then warned:

"… it is necessary that I warn you that because the evidence of the complainant cannot be tested in the same way that it could be immediately afterwards because of the passage of so many years and because it is uncorroborated, you should exercise considerable caution in acting upon it unless having scrutinised the complainant's evidence with great care and having regard to the warnings that I have just given you, you are satisfied that her evidence is truthful and accurate and having regard to all of the evidence, you are satisfied beyond a reasonable doubt that

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the accused person did commit the particular offence that you are then considering.

The warning I have just given you does not mean that you cannot convict the accused person. What it means is that you must, as I have just said to you, scrutinise the complainant's evidence with great care and you should not act upon it alone unless you are satisfied it is truthful and accurate in all of its essential aspects and having regard to the warnings that I have given you."

22 His Honour then went on expressly and carefully to explain to the jury that their decision in respect of each charge involved more than simply deciding whether they believed the stepdaughter or the appellant. He illustrated this by discussing various possibilities and concluded with a direction that, before the jury could find the appellant guilty of any one of the charges, the jury must be satisfied not only that the stepdaughter's evidence was truthful and accurate, that is reliable in relation to that charge, but the jury must also be satisfied that the appellant's evidence in relation to that charge was untruthful and ought to be rejected.

23 It is not contended, nor does it appear from a review of the evidence, that there were any specific or unusual features of this case which, in themselves, gave rise to a need to give a more specific corroboration warning. Subject to the matters to which I'll turn shortly, ie, the issues of recent complaint and some variation in detail in the stepdaughter's account of events, this was a rather straightforward case involving a direct and obvious conflict between the evidence of the stepdaughter and the evidence of the appellant who had denied the stepdaughter's allegations to the police and maintained that denial on oath to the jury. It was necessary for the jury to be directed to scrutinise the evidence of the stepdaughter with great care, and for the jury to be specifically directed as to the dangers, obvious and hidden, which existed in this case especially because of the long delay on her part in making any complaint. As has been indicated his Honour did specifically direct on the absence of corroboration and the significance of that in the circumstances of this case. Given the attention which the learned trial judge gave to these issues, and the emphasis and development which his Honour gave to the onus of proof because the case was essentially one person's word against another, it is not apparent that any more specific or explicit corroboration warning was necessary or would have been of value. The clear and helpful directions that were given were sufficient in my view to ensure that the jury approached the issue of guilt in respect of each of the charges

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appropriately aware that there was only the evidence of the stepdaughter against the appellant, and of the significance of that for the conduct of the trial, especially of the defence, and that it was critical that they be satisfied beyond reasonable doubt of the correctness and reliability of that evidence after careful scrutiny, despite the denials and other evidence of the accused, before they could convict.

24 While the absence of corroborative evidence heightens the need for great care about accepting the evidence of the complainant in this case, that absence of corroboration does not give rise in itself, and is not attended by such circumstances as to give rise, in my appreciation of the facts of this case, to a concern that there is a significant possibility that an innocent man has been wrongly convicted.

Absence of recent complaint

25 The appellant's stepdaughter was 11 when the alleged offences occurred. She did not complain to the police until she was 20 years old. Her mother was living with her and the appellant when the alleged offences occurred although the mother was absent from the home, perhaps on a visit to Carnarvon, when each of the alleged offences occurred. She had returned temporarily to the home in between the two episodes. The appellant's stepdaughter did not complain to her mother about either of the two episodes when her mother returned to the home. The only people in the home at the time of the alleged offences, apart from the appellant and his stepdaughter were the two younger children. The evidence does not suggest that the stepdaughter made any complaint at about the time of the alleged offences to friends or teachers or other persons with whom she would have come into contact.

26 The stepdaughter's failure to complain to her mother when her mother returned to the family home (between the two episodes and again after the second episode) was the subject of considerable attention during the trial. It was the stepdaughter's evidence that she did not tell her mother because she was afraid that the appellant would have beaten her as he had been violent to her in the past. Also she and her mother were not close. It was also her evidence that in her culture people did not talk about sexual matters. The appellant accepted that he had been violent to his stepdaughter on at least one previous occasion in Australia. It was also his evidence that it has been his practice when living in Vietnam to discipline children by smacking them, although he insisted that was so only in Vietnam, not in Australia. When questioned in cross-examination the stepdaughter explained why she had gone to the Department of Family

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Services and then the police in May 1997; this being because she was concerned for her younger sister because the appellant was then showing affection to her younger sister who had then reached 16 years of age. By way of contradiction of this it was put to her that she had gone to the police because she was jealous that her father was showing affection to her sister and not to her, a suggestion that she denied. These matters were canvassed in the evidence and in submissions as bearing on her general credit and in particular as bearing on the credibility of her explanation for her failure to complain to her mother or anyone else at about the time of the alleged offences and of her explanation for her decision to go to the authorities and the police in 1997.

27 The directions of the learned trial Judge expressly reminded the jury that the stepdaughter had not complained to her mother or anyone at about the time of the alleged offences, and that this was relevant to their consideration of the credibility of her evidence. It was further explained as required by s 36BD of the Evidence Act 1906 (WA) that the absence of complaint did not necessarily mean that her evidence was false, and that there may be good reasons why no complaint was made at the time. His Honour went on to remind the jury of the issues, which I have mentioned briefly, which went to her credibility about the matter of complaint, both with reference to 1988 and 1997. Earlier in these reasons directions which were relevant to this matter of complaint, as well as to the issue of corroboration were considered. These directions also brought clearly to the attention of the jury the effects of the absence of a complaint at about the time of the alleged offences, including and especially the disadvantage of this from the perspective of the appellant in testing and countering his stepdaughter's evidence at trial. In my respectful view the absence of recent complaint was a matter which was clearly drawn to the attention of the jury and its potential relevances in the trial were adequately identified.

28 While the absence of recent complaint may well have weighed against acceptance of the evidence of the stepdaughter, there was also evidence, which the jury may well have accepted as credible and as providing a genuine and reasonable explanation for the failure of the stepdaughter to complain, whether to her mother on her return or to other persons at about the time of the offences. The jury had the primary responsibility for weighing this evidence in forming their appreciation of the circumstances of the case and in particular of the credibility of the stepdaughter. The jury had the significant advantage of having seen and heard the stepdaughter as her evidence was given and tested concerning this issue. In my view, it was open to jury in this case, carefully directed and assisted as they were in this matter, to be satisfied as they clearly were

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of the veracity and reliability of the stepdaughter's evidence and to be so satisfied despite her failure to complain at about the time of the alleged offences. The failure to complain does not give rise, in my appreciation of the evidence, to any necessary indication of a lack of credibility on the part of the stepdaughter such as would lead me to conclude that there was a significant possibility that the appellant was wrongly convicted.

Inconsistent statements by stepdaughter

29 There were revealed in the course of evidence some inconsistencies in the evidence of the complainant between her evidence in Court in December 1998 and a statement she had made to the police in May 1997. These relate to the second of the two episodes, ie the charges other than count 1. In her evidence she could not remember if she had a blanket on when the appellant came into her room, whereas in her statement to the police she said that he had pulled the blanket off her. When this aspect of her evidence was tested in cross-examination she said she was not clear in her memory as to what she had told the police but she always slept with a blanket. It was her evidence that the applicant stood by her bed when he pulled her pants down whereas in her statement she indicated that he was lying on top of her when he did this. When tested about this the complainant indicated that her recollection was no longer clear about this matter but it had been when she made the statement to the police. Her evidence was also challenged on the basis that in evidence she said her pants were pulled down to about her ankles whereas her statement referred to them being pulled down to her knees. Her explanation for this was that she did not think there was much difference between the two. The stepdaughter gave evidence that the appellant left the bedroom to get some cream after she complained that he was hurting her whereas in her statement she said that he must have had the cream with him. She said in explanation of this that she had forgotten that he had left the room when she made her original statement but her recollection of him having done so was clear at the time of her evidence during the trial. With respect to the cream her evidence at trial was that he did not put the cream into her vagina with his finger although her statement uses the words that he put some cream up her vagina with his finger. Her explanation when challenged about this discrepancy was that when she said "up" she meant the "vagina part" and she had not known whether to be specific as to which part of the vagina, inside or out, when speaking to the police. She re-emphasised that he had put cream around her vagina. This, of course, is the issue which gave rise to the verdict of not guilty with respect to

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what was the third of the four counts in the indictment which had alleged actual sexual penetration by the appellant's finger.

30 In his charge to the jury the learned trial Judge expressly reminded the jury of the detailed submissions that had been put to them in the final address of defence counsel concerning each of these matters and of the defence submission that in light of those discrepancies the complainant's evidence ought not be regarded as reliable. His Honour also generally directed the jury that in dealing with inconsistencies between the evidence in Court and a prior statement the jury should give consideration to the nature of the inconsistency to decide whether it was material or a matter of detail and the jury should decide whether or not the inconsistency was something which affected the reliability of the evidence.

31 The matters which were identified as revealing some inconsistency between the evidence at trial of the stepdaughter and her statement some year and a half earlier to the police are either matters which the jury might very well have accepted as being of such detail that the difference might not have appeared to the stepdaughter to be material at the times she gave her evidence or made her statement, or are matters which could well be the subject of genuine variation in recollection between the time the evidence was given and when the statement was given to the police some 18 months earlier. Relevant and important as they were to the jury's assessment of the stepdaughter's credibility, no one of these matters, nor all of them in combination, appear to me to give rise to any sense of justifiable concern that the evidence of the stepdaughter was so affected by discrepancies or was so deficient as to preclude acceptance of the primary force and credibility of her evidence as given before the jury. It seems to me to be a case where it remained well open to the jury, directed as they were, to accept from the evidence of the stepdaughter that the appellant was guilty of each of the three offences of which the appellant was convicted by the jury. I am not left with the view that there is a significant possibility that the appellant was wrongly convicted in respect of any one of these three offences by virtue of these discrepancies. The variations or discrepancies which have been canvassed appear to me to be matters which the jury, having seen and heard the stepdaughter give her evidence and tested on these matters, might well regard as not materially detracting from the degree of credibility which they otherwise attached to the evidence of the stepdaughter.

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Conclusion

32 While these reasons have dealt separately with the three matters which are specifically raised in this appeal, I have also considered their potential significance and effect in combination. Even taken in combination this is not a case, in my view, where the probative value of the evidence of the stepdaughter is necessarily affected by these matters in such a way, or to such an extent, as to give rise to any adequate reason to doubt the propriety of the verdicts of guilty which were returned by the jury.

33 Accepting fully the difficulties which faced the jury in reaching its verdicts in this case, and the need for great care and caution in doing so, I am persuaded, nevertheless, in view of the careful way in which the jury were charged by the learned trial Judge, the evidence at trial, and the jury's particular advantage of having seen and heard the evidence of the stepdaughter and the appellant, that, despite the three specific issues that are raised, it was properly open to the jury to be satisfied beyond reasonable doubt of the guilt of the accused of each of the three offences of which the appellant was convicted. The verdict of acquittal on one count does not, in my view, give rise to any question of inconsistency of approach by the jury as the state of the stepdaughter's own evidence about actual penetration with respect to the one acquittal fully explains that verdict.

34 In my respectful view the circumstances revealed in this case and the nature of the issues that are raised against the probative force of the evidence in this case are materially different from those which persuaded the High Court in M v R (supra) to the view that the verdict in that case was unsafe and unsatisfactory.

35 As indicated earlier no other reason appears to call into question the propriety and soundness of the trial proceedings or of the verdicts returned by the jury.

36 In my view the appeal should be dismissed.