PB v The Queen
[2003] WASCA 183
•15 AUGUST 2003
PB -v- THE QUEEN [2003] WASCA 183
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 183 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:177/2002 | 19 MAY 2003 | |
| Coram: | MURRAY J PARKER J MCLURE J | 15/08/03 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | PB THE QUEEN |
Catchwords: | Criminal law Verdicts of jury Whether unreasonable Prior inconsistent statements by complainant Whether significant possibility innocent person convicted Whether verdicts inconsistent with failure to reach verdict on some counts |
Legislation: | Criminal Code (WA), s 689(1) Evidence Act 1906 (WA), s 106R, s 106T(2) |
Case References: | Hoy & Ors v The Queen [2002] WASCA 275 KBT v The Queen (1997) 191 CLR 417 M v The Queen (1994) 181 CLR 487 McComish v The Queen, unreported; CCA SCt of WA; Library No 980529; 16 September 1998 MFA v The Queen (2002) 77 ALJR 139 Narkle v The Queen (2001) 23 WAR 468 Polidano v The Queen [2003] WASCA 93 Jones v The Queen (1997) 191 CLR 439 Salmon v The Queen [2001] WASCA 270 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : PB -v- THE QUEEN [2003] WASCA 183 CORAM : MURRAY J
- PARKER J
MCLURE J
- Appellant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Verdicts of jury - Whether unreasonable - Prior inconsistent statements by complainant - Whether significant possibility innocent person convicted - Whether verdicts inconsistent with failure to reach verdict on some counts
Legislation:
Criminal Code (WA), s 689(1)
Evidence Act 1906 (WA), s 106R, s 106T(2)
(Page 2)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr S A Walker
Respondent : Mr S E Stone
Solicitors:
Appellant : Maughan & Leach
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Hoy & Ors v The Queen [2002] WASCA 275
KBT v The Queen (1997) 191 CLR 417
M v The Queen (1994) 181 CLR 487
McComish v The Queen, unreported; CCA SCt of WA; Library No 980529; 16 September 1998
MFA v The Queen (2002) 77 ALJR 139
Narkle v The Queen (2001) 23 WAR 468
Polidano v The Queen [2003] WASCA 93
Case(s) also cited:
Jones v The Queen (1997) 191 CLR 439
Salmon v The Queen [2001] WASCA 270
(Page 3)
1 MURRAY J: I have had access, in draft, to the reasons now published by McLure J. They express my views and there is little that I wish to add.
2 It is clear that the ground of appeal relies upon that part of the Criminal Code, s 689(1), which provides that the Court of Criminal Appeal is to allow an appeal against conviction "if they think that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, … ." The High Court has laid down the approach to be taken by an appellate court in applying such a provision: M v The Queen (1994) 181 CLR 487, 494 – 495, as applied in MFA v The Queen (2002) 77 ALJR 139.
3 The cases often put a gloss upon the provision by posing the question whether the verdict is unsafe or unsatisfactory. The appellate court will so hold unless it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the accused. The application of that test involves the appellate court in making an independent review of all the material evidence, but at the same time it recognises that it is upon the jury that our system of law places responsibility to determine the guilt of the accused and respect is to be paid to that fact and the unique advantage enjoyed by the jury of presence at the trial to see and hear the witnesses give their evidence. Nonetheless, it will generally be the case that if the Court of Criminal Appeal has a doubt as to the guilt of the accused, that is a doubt which a reasonable jury ought to have experienced and the conviction will be quashed.
4 Counsel for the respondent submitted that this Court ought to place itself more closely into the position of the jury by replaying the video recording of the complainant's evidence. We were advised that the appellant had no objection to the Court taking that course and, for my part, I would not foreclose absolutely the propriety and utility of the Court of Criminal Appeal taking that course. But I think that if that was to be done on the basis that it would enable the Court to view the demeanour of a witness and consider the manner in which evidence was given, in a case like this where there was a conflict of evidence the Court would ordinarily need to receive in audiovisual form the competing body of evidence from other witnesses. In this case, however, I found it unnecessary to grapple further with the issue, substantially for the reasons expressed by McLure J.
5 I agree with her Honour that the particulars of the ground of appeal concerned with entries in the complainant's journal during a time of her hospitalisation do not, properly understood, reflect confusion about
(Page 4)
- whether the incidents which were the counts in the indictment occurred. It seems to me, on the contrary, that the tenor of the entry relied upon and her answers in cross-examination reinforced her certainty in her own mind that what she said in evidence the appellant had done to her did indeed happen.
6 As to what was said in evidence by the nurse, Ms Baer, to the extent that there was conflict with the evidence of the complainant, the jury were not obliged, of course, to take the view that the nurse had noted what was said with complete accuracy or that the exchanges about which she spoke in evidence were such as to cause the jury to doubt the accuracy and reliability of the evidence of the complainant generally.
7 So far as the ground of appeal relies upon inconsistencies between the evidence of the complainant and the evidence of siblings, it seems to me that the matters in issue were strictly collateral and the evidence led to contradict the complainant's answers when she was cross-examined on these matters was inadmissible: Narkle v The Queen (2001) 23 WAR 468 and Hoy & Ors v The Queen [2002] WASCA 275, per Miller J at [116] – [124], with whom Anderson J, and Wheeler J in separate reasons at [7] – [16], agreed.
8 The admissibility of that evidence is not, of course, the point now at issue. I refer to it because it does not seem to me that to demonstrate that the complainant may have been mistaken about, or had a view in conflict with others concerning, incidents which were not those represented by the counts in the indictment, would not sufficiently, if at all, impact upon the accuracy and reliability of the complainant's evidence in relation to the offences charged. In respect of those matters, I should add that the complainant's honesty and truthfulness as a witness does not appear to have been in doubt.
9 As to the matters charged, I would simply express my agreement with McLure J upon the counts in respect of which the jury were unable to reach verdicts. Count 1 happened at least 3 years before count 2, and when the complainant was 5. The nature of the incident was such that the jury may not have accepted that the complainant's recollection was accurate or, if it was, that there had been a willed act of vaginal penetration. Count 3 was alleged to have occurred on the day of the complainant's 10th birthday party while other family members and friends were present in the house and might have come upon the complainant and her father during the course of the alleged act. Again, the jury may not have been satisfied that the complainant's evidence about that was not the
(Page 5)
- product of imagination, or that the act occurred, if at all, in the circumstances alleged. Finally, as to count 7, similar observations might be made, having regard to the fact that on this occasion the vaginal penetration was said to have been by a fork.
10 The short point is, however, that whatever may be the explanation for the jury's incapacity to reach verdicts upon those counts, nothing is demonstrated which to my mind precludes the jury from accepting the complainant's evidence in relation to the other matters and being satisfied thereby beyond reasonable doubt of the appellant's guilt.
11 I agree therefore that the appeal should be dismissed.
12 PARKER J: I have read in draft the reasons for decision of McLure J with which I agree.
13 I agree that the appeal should be dismissed.
MCLURE J:
Introduction
14 This is an appeal against the conviction of the appellant on eight counts of sexual misconduct following a trial in the District Court at Perth before O'Sullivan DCJ and a jury between 13 and 16 August 2002. On 16 January 2003 Roberts-Smith J granted leave to appeal out of time.
15 The appellant was charged with eleven counts, each alleging sexual misconduct by him against his daughter the complainant. The complainant was born on 7 October 1982.
16 At a previous trial in respect of the same matters, the jury had been unable to reach a verdict in respect to any count. During the first trial, the complainant gave evidence by way of video link as a consequence of a declaration that she was a special witness, and of directions made under s 106R of the Evidence Act 1906 (WA) ("Evidence Act").
17 By reason of s 106T(2) of the Evidence Act and a direction made on 17 July 2002, the videotape of the evidence of the complainant was played to the jury at the second trial as her evidence.
18 The Crown's case was that from a date between 17 October 1987 and 16 October 1988 (count 1) until a date between 1 May 2000 and 31 July 2000 (counts 10 and 11), the appellant engaged in various forms of sexual
(Page 6)
- misconduct towards the complainant. The 11 counts in the indictment related to eight separate occasions. Convictions were entered on counts 2, 4, 5, 6, 8, 9, 10 and 11. The appellant was convicted of counts 4, 5, 6, 9, 10 and 11 by unanimous verdicts and counts 2 and 8 by majority verdicts. The jury were unable to reach verdicts on counts 1, 3 and 7. The relevant details are as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
19 During the early part of the relevant period, the complainant lived in the family home with the appellant, her mother GB, her older sisters PB and JB and her older brother PB and younger brother TB. Subsequently the complainant's mother left the appellant and the family home. Later again, the complainant's older sisters, PB and JB, and the complainant moved on different dates to live with their mother. TB remained living with the appellant. The complainant's older brother PB variously lived with each of his parents and independently. There is no dispute that at all times whilst the complainant was living with the appellant, so was TB.
Ground of Appeal
20 The ground of appeal as particularised is as follows:
"The verdicts of the jury were unreasonable or cannot be supported having regard to the evidence because, due to discrepancies, inadequacies and lack of probative force of the
(Page 7)
- evidence of the complainant, it is dangerous to allow the verdicts of guilty to stand.
Particulars
(a) The prosecution case was wholly dependent upon an acceptance, beyond reasonable doubt, of the uncorroborated evidence of the complainant.
(b) The complainant wrote in her journal in April 2000: 'Daddy said he loved me. That he didn't do anything wrong. I must be confused. Maybe that's it. Maybe I'm just confused.'
(c) The complainant said in evidence that she had felt confused from time to time about whether or not the appellant had sexually abused her.
(d) The complainant had alleged out of court that she had been abused by her elder brother [PB], and in evidence that he had kissed her passionately on the lips, all of which was denied in evidence by him.
(e) The complainant had alleged out of court that the appellant and [her elder brother PB] 'took turns' and this was denied in evidence by [her elder brother PB].
(f) The complainant had alleged out of court and in evidence that her sister [JB] had told the complainant that she ([JB]) had been sexually abused by the appellant, but [JB] who gave evidence did not say either that she had been sexually abused by the appellant or that she had reported such abuse to the complainant.
(g) The complainant had alleged out of court that she had watched her father have sex with her sister, referring to [JB], but [JB], who gave evidence for the prosecution, did not give evidence of any act that could be construed as her father having sex with her.
(h) The complainant had alleged out of court that her father had taken her into the bathroom and put his penis in her mouth, but the complainant in her evidence said that she did not recall any such event having occurred.
(Page 8)
- (i) The complainant had alleged out of court that the appellant had put her in bed with her brother [TB] and another boy named Tyson and made them do things, but in her evidence said that the appellant had not made them do things, and [TB] in evidence denied that any such thing had occurred."
Legal Principles
21 By s 689(1) of the Criminal Code (WA), the court shall, subject to the proviso, allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence. The New South Wales statutory equivalent was considered in M v The Queen (1994) 181 CLR 487. The scope of this ground and its limitation are described in the joint judgment of Mason CJ, Deane, Dawson and Toohey JJ in M v The Queen (supra) at p 494-495 in the following terms:
"… If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court 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."
22 M v The Queen (supra) involved an appeal against conviction on two counts of indecent assault and three counts of sexual intercourse with the appellant's daughter. The appellant denied the offences in his evidence at trial. It was accepted by the Court that the jury had believed the daughter and disbelieved the appellant. However, in the absence of corroboration, the discrepancies and deficiencies in the complainant's evidence, aspects of her conduct including previous unsustained allegations of sexual misconduct against other persons, medical evidence that there was no physical evidence of penetration, and the improbability of the appellant acting as she alleged in the circumstances prevailing in the house, namely on a squeaky bed in an unlocked room of a fully occupied small house within hearing distance of a room occupied by the
(Page 9)
- appellant's wife, persuaded the High Court that the convictions were unsafe and unsatisfactory.
23 Notwithstanding that there is evidence to sustain a verdict of guilty, it is necessary for this Court to determine whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt: Polidano v The Queen [2003] WASCA 93 per Parker J at [44]. Thus, it is the duty of the Court to undertake an independent review of the evidence.
The Crown Case
24 The Crown called the complainant, her mother, JB and two psychiatrists, Dr Alexander Tait and Dr Amelia Hill. It is only necessary to refer to the evidence of the complainant and JB for the disposal of this appeal.
25 In broad outline, the complainant's evidence on each count is to the following effect:
26 Count 1: The appellant entered the complainant's bedroom (which she shared with her sister) as the complainant was getting ready for a dance cabaret, took her over to her sister's bed, pulled her fishnet stockings down and penetrated her vagina with his finger. This occurred when the complainant was in year 1 at school.
27 Count 2: Some three or four years after count 1 and shortly after the appellant and his wife had separated the appellant entered the complainant's bedroom while she was asleep. He got into bed with her, took off her underpants and inserted his penis into her anus.
28 Count 3: The complainant left her tenth birthday party and went to her room. The appellant entered her room, lifted her onto her desk, pulled down her underpants, pulled her onto him and inserted his penis into her vagina. At the time family members and friends were in another room in the house.
29 Counts 4, 5, 6 occurred in the bathroom of the family home: The complainant got out of the shower and stood in front of the appellant who sat on the edge of the bathtub. The appellant squeezed the complainant's nipples, wiped the complainant down with a towel and wiped Vaseline over her. He penetrated her vagina with his finger and then inserted a toothbrush into her vagina twice. In cross-examination the complainant
(Page 10)
- said that after she left the bathroom, TB went in and she heard him screaming and he ran out of the bathroom.
30 Count 7: At a time when the complainant was in high school, the appellant entered the complainant's bedroom and inserted a fork in her vagina.
31 Count 8: During the same period as count 7, the appellant entered his own bedroom and approached the complainant who was sitting at the bureau doing homework. Whilst the complainant was sitting on the bed the appellant inserted a banana into her vagina.
32 Count 9: The appellant entered the complainant's bedroom while she was asleep and whispered "Suck daddy's dick". The complainant got out of bed, knelt down and sucked his penis until he ejaculated. This occurred after the complainant was living with her mother and when she was on a weekend visit with the appellant.
33 Counts 10 and 11: The complainant was lying on a couch without underpants with the appellant on top of her. The appellant engaged in cunnilingus and then penetrated her vagina with his penis.
34 JB gave evidence concerning her residence arrangements after her parents' separation and dance cabarets attended by family members. She also gave evidence that when she was 13 she and the appellant were arguing and yelling at each other and he pinned her up against the wall with his arms on her chest and kneed her in the groin.
The Appellant's Case
35 The appellant gave evidence. He denied having committed any of the acts alleged by the Crown. The defence also called Peta Bauer and the appellant's two sons TB and PB.
36 The complainant was an in-patient at the Bentley Adolescent Unit, a hospital for the treatment of adolescents with mental illness, from late August 1999 until May 2000. Peta Bauer was a nurse at the Unit during that period. Nurse Bauer gave evidence that the complainant whilst an in-patient at the Unit said the following things to her:
(a) she had been abused by her eldest brother and that he and the appellant "took turns" (which the witness understood as being a reference to sexual abuse);
(Page 11)
- (b) she had watched the appellant have sex with her sister (without identifying which sister);
(c) the appellant had taken her into the bathroom and put his penis in her mouth;
(d) the appellant had put her in bed with TB and "Tyson" (sic) and made them "do things".
37 The complainant was cross-examined on these matters. She admitted having made some, but not all of the statements. She said the following as to the truth or falsity of each of those statements:
(a) her eldest brother (PB) had kissed her passionately on the lips;
(b) she thought she had seen the appellant try to have sex with her sister (JB) by forcing her up against the wall and kicking her in the vagina area;
(c) she could not recall the appellant having taken her into the bedroom and having put his penis in her mouth;
(d) the appellant had put her, TB and Tyron in a room, but had not come in and watched or made them do things.
38 The complainant also said in cross-examination that she had told Elizabeth Davidson, a social worker, that her sister JB had told her that she (JB) had been sexually abused by the appellant. JB did not give evidence that she had ever had sex with the appellant or that she had told the complainant that she had.
39 TB gave evidence that he had never screamed in the bathroom. He also said that the appellant had never put him in bed with the complainant and Tyron at all and had never put him in bed with them and made them do things with each other.
40 The appellant's older son PB also gave evidence. He denied having sexually abused the complainant or having kissed her passionately on the lips.
41 In cross-examination, the complainant accepted that during an admission to the Bentley Adolescent Unit she wrote a note in her journal which states, inter alia:
"Talked to Dad and Nanna yesterday. Daddy said he loved me. That he didn't do anything wrong. I must be confused. Maybe thats it (sic). Maybe I'm just confused. I told Nanna. She said
(Page 12)
- it was just his way of showing he loved me … Daddy wants to come and see me. He says I've got problems coz we're apart. If we were together I wouldn't be like this. I didnt (sic) tell him I wanted to die. He seems to think if we're together everything will be okay … My Dad's tough and he never cries. He was crying about me. He said he prayed for me every night. I told him he was in my dreams. He said I was in his. See he's still got this power, this control over me. I know it's destiny, he's drawing him closer to me. Soon he will be me. Does that make sense."
42 She was cross-examined about her reference to confusion. The exchange is as follows:
"… So when you wrote that note in your journal, you thought then that you were confused about the idea that your father had sexually abused you?---No. I was confused about a lot of things at that time - - -
I see, yes?--- - - - about life in general, about where I was at that point in time emotionally.
I see?---I was very upset and confused and there were just lots of emotions that I was very confused about.
…
And isn't the plain meaning of that that maybe you were just confused about your claim that your father had sexually abused you?---You could infer that but that's not what I meant by writing that.
…
Haven't you in fact felt confused from time to time about whether or not your father has sexually abused you?---Yes.
At times you haven't been sure whether it's true?---Wanted to believe it - not wanting to believe it, yes.
And at times you didn't believe it?---Wouldn't accept it.
…
(Page 13)
- Were there times in the Bentley adolescent unit when you didn't believe that your father had sexually abused you?---I'm not sure. I was really upset and unwell when I was in that adolescent unit. It may be the case but I'm not sure."
43 She was also cross-examined about what she meant by the final sentences of the note in her journal. She said:
"You probably won't understand this but I was so afraid of what had happened, that I didn't want to become like him. I didn't want to do what he did and I was scared of ever doing something like that to anyone else. That's what I meant by that. And I still am scared, especially now."
Analysis
44 It is not disputed that the prosecution case was wholly dependent upon an acceptance, beyond reasonable doubt, of the uncorroborated evidence of the complainant.
45 All of the matters relied on by the appellant in support of his appeal concern communications made by the complainant or her state of mind in the period in which she was an in-patient at the Bentley Adolescent Unit.
46 Particulars (b) and (c) of the ground of appeal relate to the complainant's entry in her journal and her state of mind concerning the allegations against the appellant. On one view, the opening sentences of the journal entry reflect confusion as to whether or not the conduct was wrongful not whether it occurred. Further, the tenor of the journal entry as a whole conveys the complainant's distress at the appellant's emotional control over her and her fear of becoming like him. That is not inconsistent with the complainant's evidence that the appellant had sexually abused her.
47 In any event, it is to be expected that a person in the complainant's position faced with the denial of the allegations and the continuing support of the appellant and his mother (her grandmother) may experience moments of confusion without adversely reflecting on the credibility or reliability of the complainant's evidence at trial. The matters in particular (b) and (c) do not, in my assessment, adversely affect the probative force of the complainant's evidence.
48 Particulars (d), (e), (g), (h) and (i) concern inconsistencies between the complainant's evidence at trial and the out of court statements
(Page 14)
- allegedly made by her to Nurse Bauer. Of those out of court statements, three ((d), (e) and (i)) concern allegations of sexual abuse of the complainant by her brothers, both of whom gave evidence denying the allegations. Prior inconsistent statements are usually tendered only as evidence of inconsistency with the testimony of the witness at trial and not as evidence of the truth of the out of court statement. However, in this case the appellant was permitted to adduce evidence of the falsity of the out of court statements.
49 Nurse Bauer's evidence of what the complainant told her was based on her contemporaneous notes summarising aspects of prolonged consultations with the complainant on two occasions at the Unit involving disjointed, piecemeal conversations at a time when the complainant was distressed and unwell. Having regard to the circumstances in which the out of court statements by Nurse Bauer were recorded, I am not persuaded that any inconsistencies render the jury's verdicts unreasonable.
50 The only other out of court statement on which the appellant relies (particular (f)) was confirmed by the complainant in evidence and was to the effect that her sister JB had told her that she (JB) had been sexually abused by the appellant. Neither the Crown nor the defence questioned JB on this subject. There is nothing in the material to suggest that evidence to contradict the fact of what JB had said or its truth was relevant to the facts in issue as distinct from credit. If, as would appear to be the case, it was relevant only to the complainant's credit, the Crown could not have adduced the evidence. In any event, as matters stand there is no relevant conflict of evidence.
51 The complainant's evidence concerning her older brother PB was contradicted by him. That of itself does not advance the matter. In any event, the conflict of evidence concerns matters that do not go to the central issues in the trial.
52 Finally, the appellant also relies on the fact that the jury was unable to reach verdicts on counts 1, 3 and 7 for which, it is said, there was no obvious or reasonable explanation. This matter was only raised in submissions and is seemingly advanced as an adjunct to the pleaded ground of appeal. The onus is on the appellant to demonstrate that the trial was an "all or nothing contest" in which there was no rational basis upon which different members of the jury might have doubted some aspects of the complainant's evidence: KBT v The Queen (1997) 191 CLR 417; McComish v The Queen, unreported; CCA SCt of WA; Library No 980529; 16 September 1998.
(Page 15)
53 I see no reason why that principle should be confined to inconsistent verdicts as appears to be suggested by the Crown. However, it is unnecessary to decide that point because in my assessment age, risk and choice of implement in relation to counts 1, 3 and 7 respectively provide a rational basis for the jury's failure to reach a verdict.
54 I am satisfied that the particularised matters in the ground of appeal do not individually or collectively reflect unreliability on the part of the complainant such that there is a significant possibility that an innocent person has been convicted. I have reached that conclusion based on the transcript of the trial. The respondent invited the Court to view the video of the complainant's evidence if required. That course was not opposed by the appellant. However, in the circumstances it was unnecessary for the disposal of the appeal. I would dismiss the appeal.
16
9
2