Nikolic v The Queen - [2003] WASCA 232

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: NIKOLIC -v- THE QUEEN [2003] WASCA 232

CORAM: MURRAY J
PARKER J
MILLER J

HEARD: 12 SEPTEMBER 2003

DELIVERED : 10 OCTOBER 2003

FILE NO/S: CCA 194 of 2002

BETWEEN: TONY ANTHONY NIKOLIC
Appellant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Question of admissibility of evidence - Comment by trial judge adverse to defence - Whether miscarriage of justice - Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr P J Urquhart & Mr S F Rafferty

Solicitors:

Appellant: In person
Respondent: State Director of Public Prosecutions

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

Nil

Case(s) also cited:

Nil

JUDGMENT OF THE COURT: On 10 and 11 October 2002, the appellant was tried in the District Court at Bunbury for offences, both allegedly committed on 23 February 2001, that he indecently dealt with and sexually penetrated a child aged between 13 and 16. He was convicted of both offences and he now appeals against those convictions.
The offences allegedly occurred after a barbecue at the home of a friend of the appellant. He was one of a number of people present, including the young complainant and her friend. It was a fairly regular social event and one which the complainant had attended on other occasions. The host was her uncle. She would sleep over on some occasions after the barbecue concluded and this was one such night. She fell asleep on a couch in the lounge room after watching a video on the television. Her cousin was also asleep on the couch.
She was awakened by somebody lifting her cousin off the couch. That person then sat down, put his hands underneath her top and began to touch her on the breasts. That action constituted the indecent dealing with the complainant. The person then removed one hand and placed a finger in her vagina. This was the act of sexual penetration.
The person then commenced to move about as if making himself or herself more comfortable on the couch. The complainant seized the moment, got off the couch and ran out into the hall to the toilet, where she locked herself in and wiped herself, in a considerably distressed state.
After a short time, when it seemed to her that the coast was clear, she came out of the toilet and ran to a bedroom where she knew her friend was sleeping. She woke the other girl. She was still in a very distressed state. She complained to her friend of the offences which had been committed upon her.
The evidence of the identity of the offender was merely that of the complainant, who said that as she ran from the lounge room to the toilet the offender called out, "Don't go. Come back." It was a male voice. She recognised it as that of the appellant, whom she knew.
The appellant denied that he was the offender and this was the issue at the trial. But the defence did not suggest that the true offender was one of the other males present at the barbecue. The challenge made was to the veracity of the complainant. Other males at the party were called; a workmate and friend of the owner of the house and the owner himself, the complainant's uncle. He confirmed her evidence that earlier in the evening the appellant had remarked upon the fact that she had nice hair and he had been touching her hair. He had, in other words, been displaying an interest in the child although she was only 15.
The final witness for the Crown was another guest at the barbecue, a Mr Bluett, who is a teetotaller. The trial Judge described his evidence:
"It's Mr Bluett's evidence that during the evening the accused started to show signs of intoxication, and the most significant part of his evidence is that at one stage while the accused and the men were out the back and the two girls were at the patio table – it's Mr Bluett's evidence that the accused said, "There is nothing like a bit of young pussy," and he said that at the time the girls were there and he was directing that comment to one or more of the two girls who were sitting close together.
If you accept that the accused said that, that's significant evidence because if you accept it was said it can only have sexual connotations and if it was directed at the complainant, or Lisa, then it's a reference to a particular piece of anatomy and it's that particular piece of the anatomy, the vagina, which [the complainant] says was penetrated by the accused later that night. So if you accept that was said it's very significant evidence which would tend to connect the accused with the alleged offence and would tend to identify him as the person who committed it, but there are a lot of factors to be considered there and I will come to that shortly."
The first ground of appeal is that the trial Judge erred in law in admitting the evidence by Bluett of the remark he heard the appellant make, apparently concerning the complainant, her friend or both. It is described as hearsay evidence, the probative value of which, the ground asserts, was outweighed by the prejudice its admission caused to the appellant.
The evidence is, of course, hearsay evidence of what the appellant said, but it is also, in the context of the case, a declaration against the appellant's interest in that it showed a sexual interest in the young girls, of whom the complainant was one. The evidence of the remark was therefore admissible against him because it tended to prove that the appellant was the offender although, of course, by itself it would be weak evidence to prove that fact.
Nor does it appear to us that it can be said that the trial Judge erred in the exercise of his discretion in failing to exclude the evidence upon the ground asserted, that its prejudicial effect substantially outweighed its probative value. It was a piece of evidence of a kind where the prejudicial effect generally matches the probative value. If the jury thought, as the trial Judge appears to have done, that this was significant evidence having a distinct probative value to identify the appellant as the offender then its prejudicial effect would be increased. On the other hand, if they passed it off as merely an unwise remark by an intoxicated man, they would presumably accord it little prejudicial weight.
The balance of the directions of the trial Judge encouraged the jury to concentrate their attention upon the voice identification by the complainant and his Honour spoke of the weaknesses of such a process of identification and the dangers of relying upon evidence of that kind. No complaint is made about his Honour's directions in that regard.
We have mentioned that the attention of the defence was focused upon a challenge to the credibility of the complainant. The second ground of appeal is that the trial Judge erred in commenting adversely upon the presentation of the defence case during the cross‑examination of the complainant. The comment in question was made during that part of the cross‑examination which seized upon things said by the complainant in evidence and put to her that she had not said any such thing to the police when giving her statement to them.
On one such occasion prosecuting counsel suggested that in fairness to the witness she should have put to her what was in the statement, "because my friend is just, with respect, nitpicking here. I mean, how much detail is a witness supposed to go to in a statement?" At this point the trial Judge interjected, "The statement doesn't say how many sausages she had at the barbecue either, does it?" This is the comment which, it is said, denigrated the defence case because, as defence counsel said at the trial, in her view the omissions were significant.
In our view, a comment of that kind by a trial judge, which may seem to put an adverse view of the way in which a defence case is being conducted and of its merits, is unwise, although, of course, in a clear case it is perfectly proper to make rulings which have the effect of limiting cross‑examination where that may properly be done; for example, in a case such as this if it appeared that what was being suggested was not in truth a prior inconsistency of any substance. However, as can be seen, the prosecutor was not here objecting to the questions asked but, rather than deal with the matter himself in re-examination, was proposing that cross‑examining counsel should follow a different procedure. It seems to us that the brief exchange to which we have referred was generally unhelpful, but whether it can be said to have occasioned a miscarriage of justice is quite another matter.
The trial Judge returned to this exchange in his comments upon the evidence during the course of his directions to the jury. His Honour said:
"The fact that a witness has said something previously which contradicts what he or she has said in court can and, indeed, should be used by you in deciding whether you can accept as truthful and correct what has been said here in court. In making those assessments where there are inconsistencies between what was said to the police initially and what is said here in court, but where it's merely a matter of the witness not having said something to the police which has been said in the course of the cross‑examination here in court then it's a matter for you as to whether or not that's a matter of significance.
During the course of the trial I did say that the complainant didn't say how many sausages she had at the barbecue in her statement to the police. By that comment I am simply making the point that it's not the function of a police statement to cover every possible detail about the events in question.
You would expect in circumstances such as these that a police statement will contain any matter of significance to the allegation so if there's a failure to mention something which you consider to be significant and something which should have been mentioned to the police, then it is something to be taken into account, but if it's a matter of mere detail which you wouldn't expect to be referred to in the course of reporting an offence to the police, then obviously it's not something which can have any impact on a witness's credibility.
Ms Parks has outlined a number of alleged inconsistencies between what was said to the police and what was said here in court. It's a matter for you. I'm not going to repeat them. It's a matter for you to evaluate those alleged inconsistencies and see whether or not they have any impact on the credibility of the evidence here in court."
In our opinion, those directions were entirely appropriate and calculated to cause the jury to approach the process of testing the complainant's credibility adopted by defence counsel in a proper manner, well calculated to cause the jury to make an appropriate determination upon the important question of the complainant's credit. In all the circumstances there has, we think, been no possibility that the trial miscarried and the appeal must be dismissed.