Pender v The State of Western Australia

[2006] WASCA 157

PENDER -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 157

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASCA 157
Court:	THE COURT OF APPEAL (WA)	Published:	07/08/2006
Case No:	CACR:17/2006	Heard:	28 JULY 2006
Coram:	WHEELER JA	Delivered:	28/07/06
No of pages:	6	Judgment Part:	1 of 1
Result:	Application for leave dismissed
Category:	B
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Parties:	JAMES WILLIAM PENDER THE STATE OF WESTERN AUSTRALIA
Catchwords:	Turns on own facts
Legislation:	Nil
Case References:	White v The Queen [2006] WASCA 62 Carr v The Queen (1988) 165 CLR 314 Griffiths v The Queen (1994) 69 ALJR 77 Hill v The Queen [2003] WASCA 177 Holford v Melbourne Tramway & Omnibus Co Ltd [1909] VLR 497 Longman v The Queen (1989) 168 CLR 79 Neville v The Queen (2004) 145 A Crim R 108 R v Jones (1995) 38 NSWLR 652 R v Matthews [1972] VR 3 R v Stoupas [1998] 3 VR 645 R v Zorad (1990) 19 NSWLR 91

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : PENDER -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 157 CORAM : WHEELER JA HEARD : 28 JULY 2006 DELIVERED : 28 JULY 2006 PUBLISHED : 7 AUGUST 2006 FILE NO/S : CACR 17 of 2006 BETWEEN : JAMES WILLIAM PENDER

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : FENBURY DCJ

File No : IND 556 of 2005

Catchwords:

Turns on own facts

(Page 2)

Legislation:

Nil

Result:

Application for leave dismissed

Category: B

Representation:

Counsel:

Appellant : Mr S B Watters
Respondent : No appearance

Solicitors:

Appellant : Julienne Penny & Associates
Respondent : No appearance

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

White v The Queen [2006] WASCA 62

Case(s) also cited:

Carr v The Queen (1988) 165 CLR 314
Griffiths v The Queen (1994) 69 ALJR 77
Hill v The Queen [2003] WASCA 177
Holford v Melbourne Tramway & Omnibus Co Ltd [1909] VLR 497
Longman v The Queen (1989) 168 CLR 79
Neville v The Queen (2004) 145 A Crim R 108
R v Jones (1995) 38 NSWLR 652
R v Matthews [1972] VR 3
R v Stoupas [1998] 3 VR 645
R v Zorad (1990) 19 NSWLR 91

(Page 3)

1 WHEELER JA: This is an application for leave to appeal against conviction. There are three grounds of appeal. On 28 July 2006, I refused leave in relation to all three grounds, and said that I would publish brief reasons. My reasons are as follows.

2 The appellant was convicted of two counts of indecently dealing with a child under the age of 13 years. Although the indictment alleged that the offending took place between 1 January 2004 and 2 September 2004, it appears that the offences had taken place no more than a few days before the complainant complained to her mother on 2 September 2004. The complainant was about 9½ years old at the time of the alleged offences. Her evidence was that one night she fell asleep on a couch and when she woke up "Jim" was next to her, it was dark outside and there were no lights on. She said that he had touched her vagina and had caused her to touch his penis. The appellant, whom the complainant knew as Jim, had been in a relationship with the complainant's grandmother and had, on occasions, visited the complainant and her mother at their home. The evidence at trial was that of the complainant and the complainant's mother. The appellant did not give evidence. It is convenient to take the grounds in reverse order.

Ground 3

3 This ground complains that his Honour erred in failing to inform the jury that complaint is not corroborative of what the complainant said in her evidence. This ground cannot succeed, because his Honour did so inform the jury, at least three times. On page 142 of the transcript, in his Honour's direction to the jury, appear these directions:

" ... one way of putting it is that her evidence is not supported by other evidence."

" ... it is true that only [the complainant] speaks of these things and although it is true that there is no other evidence to support or corroborate the actual allegation she makes ... "

His Honour went on to say that it was not a legal requirement that there should be more than one witness, but that the jury could obviously only convict if they were satisfied beyond reasonable doubt that that witness was truthful and accurate. His Honour also said:

" ... it is true to say that her evidence is not supported by any other evidence ... "

(Page 4)

4 Further, on page 144, his Honour explained to the jury that fresh complaint is seen as strengthening the credit of the complainant, by demonstrating consistency, but that the complaint was not evidence of the facts complained of.

Ground 2

5 This ground alleges that his Honour erred in removing the question of fact concerning the identity of the offender from the jury. It may seem curious that there was any question of identity, since this was plainly a case of recognition; that is, the complainant had reasonable familiarity with the appellant, and said that she had recognised him. Her complaint to her mother had nominated the appellant.

6 She also described certain underpants which he was wearing which matched underpants found at the appellant's house. As to this, it appears that the underpants had nothing particularly distinctive about them, being ordinary blue Bonds men's underpants.

7 It seems that the complainant was cross-examined about the description of the offender and there was apparently some discrepancy between her description of the offender's hair colour and the hair colour of the appellant. Further, the complainant apparently said that the offender had a moustache, while the appellant had a beard.

8 It is clear from his Honour's exchange with the appellant's counsel that the complainant was apparently quite tired from a lengthy cross-examination, and it is difficult to see any significance in what may well have been a mistaken description of facial hair. In his exchange with counsel, his Honour described the appellant's counsel's position as a " ... whiff of a suggestion ... that maybe it’s a mistaken identity ... " (transcript 157). In any event, the appellant's counsel conceded before me, in my view quite properly, that this was not a case which called for an identification warning.

9 His Honour directed the jury in some detail as to the way in which they should approach the complainant's evidence. In particular, quite early in what was a very brief and very clear direction, he advised the jury that first they would need to make a decision about whether a witness is honest, but that there was another issue, which was different, which was that of reliability. He told the jury they would need to be satisfied that there was both honesty and accuracy in the complainant's evidence. In relation to the specific issue of identification, his Honour said, in the passage complained of by the appellant:

(Page 5)

"It may be that when you combine [the complainant's] evidence with the evidence of her mother of the interactions that occurred between Jim, the accused, and her daughter, and the mother's evidence of the complaint made by [the complainant], that you will conclude the complainant's allegations are made against the accused, James Pender, and not some other adult male."

10 It is plain that that is no more than a comment. The opening words "It may be" clearly raise it as an issue for the jury's consideration. The tone of the passage immediately following, in which his Honour discusses the question of whether the jury might consider that the underpants were a relatively common brand, emphasises that his Honour was simply putting before the jury relevant questions. Nothing was wrongly removed by his Honour from the jury's consideration.

Ground 1

11 This ground asserts that his Honour failed "to adequately direct the jury" upon the evidence of the complainant. The particular to the ground asserts that his Honour's direction "upon the possibility of concoction and mistake on the part of the young complainant" was manifestly inadequate.

12 The first observation which should be made is that this is not a case in which it seems there was any real suggestion of concoction at all. It was not a matter raised by counsel for the appellant at trial, in the course of her quite lengthy exchange with his Honour about what direction he should have given concerning the complainant's evidence.

13 So far as mistake is concerned, it is clear from his Honour's exchange with counsel for the appellant that that was something which was extensively canvassed in the course of cross-examination, and it was adverted to during the course of the address by counsel for the appellant. His Honour, as I have mentioned, highlighted to the jury the importance of being satisfied that the complainant was not only truthful, but also accurate. He emphasised for the jury that the complainant was the only witness.

14 In his summary of the respective prosecution and defence cases, he reminded the jury that the submission put on behalf of the appellant was that it could be a case of mistaken identity, and that the complainant was unreliable about dates and that she could have "dreamt of these matters". He reminded the jury that counsel had identified certain alleged inconsistencies in the complainant's evidence. In relation to these last matters, I agree that he did not, as counsel for the appellant submitted to

(Page 6)

me, put "the weight of his judicial authority" behind those matters. There is no reason why he should have done so. These were matters of argument. The relevant issues were clearly raised for the jury.

15 Although invited to do so, counsel for the appellant was unable to identify any particular circumstances of this case which required a warning. There was no "hidden danger", and no matter peculiarly within the experience of the courts, which required the Judge to warn the jury about them: see White v The Queen [2006] WASCA 62 at [57] - [78]. This ground also has no reasonable prospect of success and I would not grant leave.