PGM v The Queen (No 2)

Case [2012] NSWCCA 261

This decision has been amended. Please see the end of the decision for a list of the amendments.

Court of Criminal Appeal

New South Wales
Case Title: PGM (No 2) v R
Medium Neutral Citation: [2012] NSWCCA 261
Hearing Date(s): 4 September 2012
Decision Date: 10 December 2012
Before: McClellan CJ at CL at [1]
Garling J at [100]
McCallum J at [101]
Decision:

1. Grant leave to appeal to raise the first ground of appeal.
2. Appeal dismissed.
Catchwords: CRIMINAL LAW - appeal - conviction - whether verdict unreasonable or unsupported by the evidence - where evidence of complainant about witnessing sexual assault of another child demonstrated to be false - directions - whether trial judge properly directed jury regarding "lies" of complainant - whether trial judge's directions regarding absence of complainant at trial were in error - where trial judge did not warn jury about dangers of convicting on evidence of absent complainant - where trial judge referred to forensic disadvantage suffered by Crown due to absent complainant - where trial judge suggested absence of complainant solely due to procedural legislation.
Legislation Cited: Crimes Act 1900
Criminal Appeal Rules
Criminal Procedure Act 1986
Cases Cited: Healey v R [2006] NSWCCA 235
Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297
PGM v R [2006] NSWCCA 310; (2006) 164 A Crim R 426
R v PGM [2008] NSWCCA 172; (2008) 187 A Crim R 152
RR v R [2011] NSWCCA 235
SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
Category: Principal judgment
Parties: PGM (Applicant)
Crown
Representation
- Counsel: Counsel:
S Buchen (Applicant)
F Veltro (Crown)
- Solicitors: Solicitors:
Legal Aid of NSW (Applicant)
Solicitor for Public Prosecutions (Crown)
File Number(s): 2006/15199
Decision Under Appeal
- Before: Graham DCJ
- Date of Decision:  22 February 2008

JUDGMENT

  1. McCLELLAN CJ at CL: On 16 June 2005 the applicant was found guilty of 3 counts contrary to s 66A, Crimes Act 1900 (sexual intercourse with a person under 10 years) and 3 counts contrary to s 61M(2), Crimes Act 1900 (indecent assault of a person under 10 years). The applicant was sentenced to an aggregate sentence comprising a non-parole period of 16 years with a balance of term of 6 years.

  2. The applicant successfully appealed against his conviction: PGM v R [2006] NSWCCA 310; (2006) 164 A Crim R 426. This court found that there had been a miscarriage of justice by reason of the admission into evidence of a collection of pornographic photographs found on the applicant's computer. For that reason the court ordered that there be a new trial.

  3. The retrial occurred in 2007 and on 5 June a jury again returned verdicts of guilty in respect of three counts contrary to s 66A and three counts contrary to s 61M(2).

  4. The applicant was subsequently sentenced to an effective aggregate sentence comprising a non-parole period of 4 years and 6 months with a balance of term of 2 years…

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AGLC
PGM v The Queen (No 2) [2012] NSWCCA 261
Case
[2012] NSWCCA 261
Decision Date

CaseChat Overview and Summary

In the matter of PGM v The Queen (No 2), the High Court of Australia was called upon to review the conviction of the appellant, PGM, on several charges of sexual assault against children. The primary legal issues in this appeal revolved around the reliability and credibility of the complainant's evidence, as well as the adequacy of the trial judge's directions to the jury regarding the complainant's testimony. The central question was whether the jury's verdict was reasonable and supported by the evidence, particularly given the complainant's admissions of fabricating parts of her testimony.

The complainant, who was a child at the time of the alleged offences, was the sole witness for the prosecution. The trial judge extensively directed the jury to carefully scrutinise the complainant's evidence due to her young age and admissions of fabricating parts of her story. The trial judge highlighted the necessity for the jury to assess the reliability and credibility of the complainant's testimony, especially in light of her admissions of making up certain details. However, the trial judge did not explicitly warn the jury of the dangers of convicting based solely on the complainant's evidence. Additionally, the trial judge referenced the procedural disadvantage faced by the prosecution due to the complainant's absence from the trial, suggesting that her absence was procedurally mandated.

The High Court found that the trial judge's directions to the jury were generally adequate in emphasising the need for careful scrutiny of the complainant's evidence. However, the Court also noted that the trial judge did not sufficiently warn the jury about the inherent risks of convicting on the uncorroborated evidence of a child complainant, particularly when there was no independent evidence to support her account of the events. Furthermore, the Court held that the trial judge's comments on the procedural disadvantage did not adequately address the unique risks associated with relying on the testimony of an absent complainant. The Court concluded that while the directions were not fatally flawed, the omission of a clear warning about the dangers of relying on the complainant's evidence alone was a significant oversight.

The High Court determined that the jury's verdict was not unreasonable or unsupported by the evidence. The Court held that the trial judge's directions, despite the noted deficiencies, were sufficient for the jury to properly consider the complainant's evidence and determine its reliability. The Court found that the jury had been adequately guided to exercise caution in assessing the complainant's testimony and that the conviction was based on a rational assessment of the evidence presented. Consequently, the appeal was dismissed, and the conviction was upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The transcript of the trial confirms that these matters were emphasised by both defence counsel and by the trial judge in the course of giving directions to the jury. The jury was directed by the judge to scrutinise the complainant's evidence very carefully. That instruction was repeated on a number of occasions during the summing up. It is necessary to both Ground 1 and Ground 2 of the appeal to consider the directions which the trial judge gave to the jury including his discussion of the asserted lack of credibility of the complainant by reason of her concession that some of her evidence was not correct. I have set out relevant portions of the directions below:"An important part of your responsibility as judges of the facts is the assessment of the reliability of the evidence given in the trial. There is, if you like, a central or crucial witness in the case and that is the complainant. The complainant is the only person, the Crown says, who was a witness to these alleged sexual assaults and so the Crown case rests very, very heavily indeed on the evidence of the complainant and, thus, her reliability as a witness is a central feature of this case and of your consideration of the evidence in the case. That is not only because she was the only witness to these alleged assaults, but also because the obligation is on the prosecution to prove the charge and to prove it beyond reasonable doubt, there being no onus on the accused to prove anything. He is not obliged to prove anything. So both of those are very powerful considerations for why you would need to give very careful scrutiny to the evidence of the complainant.But what I want to say is not only referable to the complainant, these are observations which are relevant to your consideration of all of the evidence in the case. As I said, you have to decide whether the evidence is reliable evidence, whether you can safely act upon it and, before you could do that, you need to be satisfied that a piece of evidence you are considering is both honest and accurate. I say a piece of evidence because there is no rule that says you have to accept all of a witness' evidence or reject all of it. You are entitled to accept parts of a witness' evidence but to reject other parts of it. Equally you are also entitled to accept the whole of the witness' evidence or reject the whole of the witness' evidence.But, in this case for example, the Crown submits that you would accept the evidence of the complainant, even though, on her own admission in the cross-examination in the previous trial, she admitted making up the material in the video taped interview about the accused moving from number 5 to number 7 in the course of his living in the street in which she was living. You know from other evidence that that move did not take place and that is not challenged. The Crown accepts, as I understand it, that that assertion was not correct and the complainant, ultimately, in her cross-examination conceded that she had made up that assertion and also, and perhaps more significantly, that she had made up the description of an incident involving a boy, initially or at least in part described as the accused's son and I will not go into the detail of it, but you might think, when you heard the description, she was giving quite a detailed description of an event which she claimed to have observed. Initially, in cross-examination she maintained that she had seen these things and then, ultimately, conceded that she had made up the story about the boy and that she did not know why she had made it up.That issue of course raises, you might think, a very important, perhaps even crucial, point about the reliability of the complainant's evidence. After all, if she had made up that description, you have to very seriously consider whether she had made up other descriptions of events, including, most importantly, descriptions of events which are the foundation of the charges before you. If her evidence in relation to the incident with the boy is unreliable because it was made up, then, as I have said, obviously that is an important consideration for you as the judges of the facts in weighing up the reliability of the complainant's evidence generally.But there is no rule that says, if a witness is unreliable in one respect, even dishonestly unreliable in one respect, that that witness' evidence cannot be accepted in other respects, but common sense obviously dictates, that when that situation arises, you are more careful and more likely to give much greater scrutiny to that witness' evidence to see whether it is reliable evidence in other respects and, particularly, in those respects which bear directly on the allegations which lie at the heart of each of the charges before you and where that witness is the only witness to those events.So the first question you have to consider with a piece of evidence is whether it is honestly given, whether the person who is giving that evidence is doing his or her best to tell the truth about that issue or is trying to deceive you or mislead you or conceal from you the real truth of the matter.The second question you have to ask is, even if that witness is doing his or her best to tell the truth about that matter, is this witness accurately giving an account of an event or accurately recalling an event at all. In that respect, you have to ask yourselves whether that witness is a person who has given inconsistent accounts of events, whether that witness' evidence seems to hold together and be a logical and coherent version of events, are there aspects of it that do not make sense, are not compatible with other evidence that has been given by that witness, and then you go through a similar exercise comparing that witness' evidence with other evidence in the case. Those tests are, I suppose, rules of thumb and they are not in any way precise or accurate measurements of a person's accuracy.Similar considerations also apply to weighing up the honesty of a witness' evidence. You ask, does what this person say make sense, does it seem to fit into the overall scheme of things in the case, is it consistent, does the witness give the same account each time or is it changed on occasions, things added to it or taken from that account as the case progresses through various stages, is the witness saying one thing in evidence in chief and another thing in cross-examination? So you look for those questions, consistency and inconsistency, and as I said, there is an overlap between the considerations which you look at when you are considering honesty and when you are considering accuracy. Although they are different concepts, the same considerations and same rules of thumb often assist you from one to the other.In the end, of course, it is a matter for you as the sole judges of the facts what facts you find. What I have said to you is simply intended to give you a few ideas that might help you in weighing up that evidence but what you make of the evidence, of its reliability, of the honesty and accuracy of a piece of evidence in the case, is a matter for you and entirely a matter for you as the sole judges of the facts in this case.It is, of course, as I said, open to you to accept the whole of a witness' evidence or reject the whole of a witness' evidence or choose parts of it to accept and not accept other parts of it. Provided, whichever one of those things you do, you do so rationally and carefully and after a logical and careful examination of the evidence, then they are options which you, as the jury, have.It is also, of course, important to bear in mind when you are considering the reliability of evidence, that witnesses can be quite honest but mistaken about matters and that is why it is necessary to look at both aspects of reliability. If a witness is being dishonest then that will, no doubt, raise quite a serious question mark, not only about the point on which they have given evidence which you think is dishonest, but also in relation to other aspects of their evidence. Similarly, if a witness is mistaken about some aspects or not accurate, then that may cause you to want to look very much more carefully at other aspects of their evidence to see just how accurate and, therefore, reliable that evidence is. These are all matters which are entrusted to you as the sole judges of the facts in this case.As I have indicated to you, in this case, there is one witness who is essential to the proof of the Crown case in respect of each of the charges and that is the complainant CW. You should examine and scrutinise her evidence with great care before you decide whether you accept the evidence of that witness.Since it is for the Crown to prove its case beyond reasonable doubt and the evidence given by that witness is the only evidence relating to an essential matter which the Crown must prove on these charges, then it follows that you must be satisfied beyond reasonable doubt that you should accept the evidence of that witness, CW, otherwise the accused must be found not guilty.As I have already indicated to you, you will be concerned to assess not only what that witness says, but also her honesty and reliability as a witness. I will deal in due course with the evidence and submissions which are said to bear upon that issue.On the other hand, the case for the accused is that you would not accept the evidence of CW as being that of an honest and reliable witness and, therefore, that you would have at least a reasonable doubt about acting on her evidence. Again I must emphasise that it is for the prosecution to establish that this witness, CW, is honest and reliable in giving evidence which is supportive of the Crown case. It is not for the accused to show that she was either dishonest or unreliable. By that I mean there is no obligation on the accused to show that she was either dishonest or that she was unreliable.I want to say something at this stage about the evidence of the complainant. As you know, at the time these alleged offences took place, she was six or seven years of age. She turned seven in late March, just a few weeks before the discussion with her parents and the involvement of the police, leading to the interview on 12 May 2004. So, at the time she was interviewed, the age was within six or seven months or so of the beginning of the period of time it is alleged these incidents took place.You had the opportunity, as I have said a moment ago, of observing her as she was being interviewed and making some assessment of her age and maturity at that time. You are also aware, as I have mentioned to you during the trial, that the evidence in the previous hearing was given in early June 2005, so it is two years ago but, at that stage, she was only just a couple of months over turning eight.I need to direct you, therefore, that the evidence of the complainant may be unreliable due to her age. He age at the time of the alleged incidents but also at the time when she was recounting those events, when she was talking about them to the police and to the earlier court hearing.I further warn you of the need for caution in determining whether to accept the evidence of the complainant and the weight to be given to it. That direction is a direction which I must give you but I stress that it is for you to weigh up that direction and to consider its applicability in relation to your assessment of the reliability of the complainant in this case. You must take account of that direction and give it due weight but, in the end, it is a matter for you to assess for yourself whether you are satisfied that, irrespective of her age or despite her age, the complainant is reliable. That choice, that decision, is ultimately one that you must make in the responsible exercise of your functions as the sole judges of the facts.Similarly, as you are aware, in relation to each of the charges the only witness the Crown has brought in relation to the specific charge, the specific incident, giving rise to a charge in each instance, is the complainant herself. I must direct you that, in a case such as this, where one witness alone is asserting the commission of a crime, evidence of that witness must be scrutinised with great care. You give very careful consideration to the evidence of the complainant because, in the end, proof of the Crown case beyond reasonable doubt depends upon the reliability of the complainant's evidence and a satisfaction on your part that, in relation to a particular charge, you are able to reach a state of being satisfied beyond reasonable doubt that the complainant's assertions about that particular incident, in relation to the elements of the offence, constitute a reliable account of those events.By that I mean it may be that you conclude that the complainant has given accounts of events which are very difficult to explain, such as her somewhat detailed description of events concerning the boy or the son of the accused which she conceded, ultimately in her cross-examination in June 2005, to have been made up. Also, for example, her concession, at the same time, that the assertion that the accused had, initially lived in [one place] and then had moved to [another place in the same street] was also something which she had made up. Those, you may think, are quite substantial matters particularly the lengthy description of events relating to the boy. Those are matter which you would in any event, as common sense would suggest, very carefully consider when weighing up the reliability of the complainant. Notwithstanding those matters, you are nonetheless entitled, as the sole judges of the facts, to conclude that the complainant is not a reliable or trustworthy witness on those matters but you accept the central allegations that she makes about each of the alleged offences. It is a matter for you whether you reach that conclusion or whether you conclude that those are matters so fundamental to her reliability that you could not accept her reliability on other issues. These are important tasks for you to perform in this case because the complainant's account of these events is crucial to the Crown case. If you cannot accept her on the central events relating to a charge, that is the allegation of an indecent assault or the sexual intercourse or an attempt, if you cannot accept her in relation to those central issues about each incident, then the Crown case has no other means by which you could be satisfied beyond reasonable doubt of the guilt of the accused on that charge. For those reasons you must scrutinise the evidence of the complainant with very great care.Even leaving aside those two matters that I have identified (as to which the complainant conceded that she'd made them up) there are a whole host of other matters which have been raised in relation to the accounts given by the complainant, some of which I will deal with later. The Crown submits in essence, that all of these are really peripheral matters, they are not matters that should detract, ultimately, in the final analysis, from acceptance of the complainant as being a reliable witness.The accused, on the other hand, submits that these matters, even if they appear in some respects to be peripheral and not central to the main issue in the trial, are none the less important indicators of what the accused submits is a significant range of areas of unreliability in the complainant's account of these events. A measure of unreliability so substantial that it undermines the whole reliability of the complainant's evidence. Now it is a matter for you how you weigh up those competing submission about the evidence of the complainant. My task is to direct you to scrutinise the evidence of the complainant with great care to ensure that it is reliable and to ensure that you are satisfied beyond reasonable doubt as to her reliability on the elements of these offences before you could find the accused guilty. If, after carrying out that very careful scrutiny of her evidence, you conclude that you can set aside those criticisms, that either they are not made out or they are not ultimately material to your consideration of the complainant's reliability, then you are entitled to find the complainant is a reliable witness and one whose account you can rely on in respect of the particular charge you are considering. It is a matter for you, ultimately, what conclusion you reach. My direction is that you must scrutinise the complainant's evidence with great care because it is crucial to the Crown case.I direct you that it would be dangerous to find the accused guilty on the complainant's evidence alone. Nevertheless I direct you that, if you are satisfied as to its truth and accuracy, you are nevertheless entitled to act upon that evidence alone and reach a conclusion that you accept the complainant's evidence as being reliable, both true and accurate, and thus a foundation upon which to find the accused guilty.As I have already indicated, I direct you that you cannot be so satisfied, without having first scrutinised the evidence with great care. I direct you that the carrying out of that scrutiny must take into account, carefully, any circumstances which are peculiar to this case which have a logical bearing upon the truth and accuracy of the complainant's evidence.In particular, you are entitled to take into account, as part of the mix of circumstances, both the age and maturity of the complainant. You are also entitled to take into account, must take into account, the areas in which she conceded that she had made up evidence, or allegations, concerning the conduct of the accused or whereabouts he had lived. Also, the various matters which I will come to relating to the alleged inaccuracy or unreliability of the complainant as a witness.I direct you that, at every stage of carrying out that scrutiny of the complainant's evidence, you must take serious account of the warning that I have given you that it is dangerous to act upon the evidence of the child alone to find the accused guilty.This is the case where there is no evidence tending to confirm the complainant's account as to central element of any of these offences. There is some material upon which the Crown relies, for example, the image found on a search of the accused's computer equipment, which provides some support for the description of the event given by the complainant but there is no evidence which directly tends to confirm her account as to the essential ingredients of any of these charges.As I have emphasised, this is a case where the sole witness in support of the Crown case is the complainant and so have directed you to consider her evidence with great care.As I have already reminded you, there is a need for careful consideration in relation to that account about the boy and the cream. It is obviously a matter which is very important in terms of your assessment of the complainant. It is a matter which you have to consider very carefully, but I remind you that there is no rule that a witness, even a child witness, who has admitted making up a story on one occasion - or on this occasion, two occasions - must, as a consequence, be held unreliable when giving evidence about another matter. You are entitled to use the impression you received of the complainant from all her evidence in weighing up this particular piece of the evidence, not only what she has said on those previous occasions but, to the extent that you can, the way in which she said it, and her appearance as she said it, at least in relation to the videotape

Decision

Reasons for decision

CLELLAN CJ

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Ratio Decidendi

Legal Principle Established

Established by: CLELLAN CJ

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