R v Asplin
[1999] WASCA 148
•26 AUGUST 1999
R -v- ASPLIN [1999] WASCA 148
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASCA 148 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:207/1998 | 4 MAY 1999 | |
| Coram: | KENNEDY J WALLWORK J OWEN J | 26/08/99 | |
| 26 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal against conviction granted Appeal dismissed Crown appeal against sentences dismissed | ||
| PDF Version |
| Parties: | THE QUEEN ROBERT GEORGE ASPLIN |
Catchwords: | Criminal law and procedure Whether verdicts unsafe and unsatisfactory Whether verdicts of guilty on five counts inconsistent with verdicts of guilty on remaining four counts Criminal law and procedure Sentencing Sexual offences Five counts of unlawfully and carnally knowing a girl under the age of 17 years Breach of trust Sentence of 3 years' imprisonment suspended for 2 years Applicant convicted in 1982 of contributing to the neglect of a minor Authorities then knowing of allegations which led to the subject charges Failure to explain delay Sentences not interfered with |
Legislation: | Nil |
Case References: | Jones v The Queen (1997) 191 CLR 440 M v The Queen (1994) 181 CLR 487 MacKenzie v The Queen (1996) 190 CLR 348 R v Grein [1989] WAR 178 R v Petchell, unreported; CCA SCt of WA; Library No 930346; 16 June 1993 Eastough v The Queen, unreported; CCA SCt of WA; Library No 980108; 12 March 1998 Longman v The Queen (1989) 168 CLR 79 Marriott v The Queen, unreported; CCA SCt of WA; Library No 970470; 19 September 1997 Leucus v R (1995) 78 A Crim R 40 R v Dao, unreported; CCA SCt of WA; Library No 990015; 22 January 1999 R v Dickson, unreported; CCA SCt of WA; Library No 990203; 23 April 1999 R v Dinsdale, unreported; CCA SCt of WA; Library No 990021; 2 February 1998 R v GP (1997) 18 WAR 196 R v Kirkman (1987) 44 SASR 591 R v Liddington (1997) 18 WAR 394 R v Lippiatt, unreported; CCA SCt of WA; Library No 980065; 17 February 1998 R v Westall, unreported; CCA SCt of WA; Library No 980287; 27 May 1998 Wheeler v The Queen, unreported; CCA SCt of WA; Library No 980193; 20 April 1998 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : R -v- ASPLIN [1999] WASCA 148 CORAM : KENNEDY J
- WALLWORK J
OWEN J
- Appellant
AND
ROBERT GEORGE ASPLIN
Respondent
- Applicant
AND
THE QUEEN
- Respondent
Catchwords:
Criminal law and procedure - Whether verdicts unsafe and unsatisfactory - Whether verdicts of guilty on five counts inconsistent with verdicts of guilty on remaining four counts
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Criminal law and procedure - Sentencing - Sexual offences - Five counts of unlawfully and carnally knowing a girl under the age of 17 years - Breach of trust - Sentence of 3 years' imprisonment suspended for 2 years - Applicant convicted in 1982 of contributing to the neglect of a minor - Authorities then knowing of allegations which led to the subject charges - Failure to explain delay - Sentences not interfered with
Legislation:
Nil
Result:
Application for leave to appeal against conviction granted
Appeal dismissed
Crown appeal against sentences dismissed
Representation:
CCA 207 of 1998
Counsel:
Appellant : Mr S E Stone
Respondent : Mr L A Tsaknis
Solicitors:
Appellant : State Director of Public Prosecutions
Respondent : John Quigley & Co
CCA 208 of 1998
Counsel:
Applicant : Mr L A Tsaknis
Respondent : Mr S E Stone
Solicitors:
Applicant : John Quigley & Co
Respondent : State Director of Public Prosecutions
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Case(s) referred to in judgment(s):
Jones v The Queen (1997) 191 CLR 440
M v The Queen (1994) 181 CLR 487
MacKenzie v The Queen (1996) 190 CLR 348
R v Grein [1989] WAR 178
R v Petchell, unreported; CCA SCt of WA; Library No 930346; 16 June 1993
Case(s) also cited:
Eastough v The Queen, unreported; CCA SCt of WA; Library No 980108; 12 March 1998
Longman v The Queen (1989) 168 CLR 79
Marriott v The Queen, unreported; CCA SCt of WA; Library No 970470; 19 September 1997
Leucus v R (1995) 78 A Crim R 40
R v Dao, unreported; CCA SCt of WA; Library No 990015; 22 January 1999
R v Dickson, unreported; CCA SCt of WA; Library No 990203; 23 April 1999
R v Dinsdale, unreported; CCA SCt of WA; Library No 990021; 2 February 1998
R v GP (1997) 18 WAR 196
R v Kirkman (1987) 44 SASR 591
R v Liddington (1997) 18 WAR 394
R v Lippiatt, unreported; CCA SCt of WA; Library No 980065; 17 February 1998
R v Westall, unreported; CCA SCt of WA; Library No 980287; 27 May 1998
Wheeler v The Queen, unreported; CCA SCt of WA; Library No 980193; 20 April 1998
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1 KENNEDY J: Robert George Asplin ("the applicant") was presented in the District Court on an indictment containing eight counts alleging that he, being the guardian of the complainant, a girl under the age of 17 years, unlawfully and carnally knew her, and one count alleging that he attempted to commit a similar offence. Count 1 was alleged to have occurred on or about 25 December 1981, and the remaining counts between 25 December 1981 and 28 February 1982. After a four day trial, the jury convicted the applicant on counts 2, 4, 5, 6 and 7 and acquitted him on the remaining four counts.
2 At the material times, the applicant was a group worker attached to Mallee Cottage at the Bridgewater facility in Applecross, a child care and assessment centre for children, which was run by the Department of Community Services ("the Department"). He had been employed by the Department for some 12 years. He was born on 28 May 1947.
3 The complainant was born on 5 September 1966. When she was aged about 15, she ran away from her home, having been, it was alleged, subjected to sexual abuse by members of her family. She came to the notice of the Department and, after a period of time, she was placed in Mallee Cottage, which was a cottage for teenagers of working age. The complainant was assigned to the applicant, who became her legal guardian.
4 The applicant spent considerable time with the complainant by reason of what the applicant called the "expectations of the job". His responsibilities to those under his care included getting them refocussed, getting them back into schooling, encouraging them to take on worthwhile recreational pursuits, and helping them to obtain employment. He said in his evidence that the complainant went through bouts of severe depression while she was at Bridgewater.
5 The live issue in the trial was whether, as the complainant claimed, the applicant had carnal knowledge of her, or in the case of the ninth count, whether he had attempted to do so, it being admitted that the complainant was under 17 at the times alleged in the indictment and that the applicant was the complainant's guardian for the purposes of the Criminal Code. It was not in dispute that, if the applicant did have carnal knowledge of the complainant, or if he had attempted to do so, it was unlawful. The defence case was that the complainant's allegations of carnal knowledge and of the attempt were untrue, that she had a history of sexual abuse, that she had suicidal tendencies, and that she had invented
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- the allegations in order to achieve a reconciliation with her mother, who, it was contended, had not supported her in the past.
6 In relation to count 1, the facts alleged were that, on Christmas Day 1981, the applicant had invited the complainant to his home in Maddington, where he lived with his wife and three children. He was on duty at Bridgewater on Christmas morning and again in the evening. After completing his morning duties, the applicant drove the complainant to his home, where she spent the afternoon and early evening. At about 7.45 pm, he drove her back to Bridgewater. When they arrived at Mallee Cottage, there were some other teenagers in the central lounge area. After a time, the others went off to bed, leaving the applicant and the complainant alone in the lounge room. The complainant claimed that they ended up on the floor having sexual intercourse, and that afterwards the applicant went to the boys' end of the cottage, while she went to the girls' end of the cottage to clean herself up. The applicant was acquitted on this count.
7 In relation to count 2, the complainant's evidence was that the applicant drove her, a female group worker from Bridgewater, and a number of children from the cottage to Perth on a night excursion. The other members of the party were dropped off in the city, and the applicant and the complainant drove to the grounds of Parliament House. The complainant's evidence was that they kissed and caressed near the waterfall at the front of Parliament House and that the applicant then drove her into Kings Park, where they had sexual intercourse in a secluded place near a fountain. Following this, the applicant drove into the city with the complainant, picked up the other members of the party and drove them back to Bridgewater. The applicant was convicted on this count.
8 In respect of count 3, the complainant alleged that she and the applicant had sexual intercourse at night time in a store room in the boys' area at Mallee Cottage. The applicant was acquitted on this count.
9 In relation to counts 4 to 7, on all of which the applicant was convicted, the complainant's evidence was that the applicant told her that he would like her to come and stay at his house over the Australia Day weekend in 1982, and that she should leave Bridgewater without obtaining permission to do so from the staff. The applicant's wife and family were away for the weekend. The applicant told the complainant to catch a train to the Maddington station from where it was arranged he
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- would pick her up. She telephoned him from the station. He collected her from there and drove her back to his house.
10 The complainant claimed that she remembered watching "Star Wars" on television on the first night. After that, she said, they went into the applicant's bedroom and had sexual intercourse. She slept that night in his bed. On the following morning, the applicant drove her to Bindoon, to a property which he owned. They spent the day there before returning to his house in Maddington. They had a bath together. She said he performed oral sex on her and that he then had sexual intercourse with her in his bedroom on two occasions that night. The next morning, she claimed, he showed her a book portraying various sexual positions. Afterwards, they went back into his bedroom and had sexual intercourse once again. The applicant then proceeded to sponge off the stains which had been left on the sheets. The applicant, she claimed, later drove her to a service station on Canning Highway, near Bridgewater, where he left her.
11 In relation to count 8, on which the applicant was acquitted, the complainant claimed they had gone to the Hyde Park Festival in the evening with some of the children from the home. The other children went their own ways, while she and the applicant walked across Vincent Street and on to a small park where they had sexual intercourse near a seesaw. She said it was "pretty dark". They were not there for very long before they returned to Hyde Park and located the other children. They all left shortly afterwards, returning to Bridgewater.
12 Count 9, on which the applicant was also acquitted, was the count alleging an attempt. The complainant's evidence was that the applicant telephoned her, pretending to be her brother Greg, and arranged to meet her that evening just down the road from Bridgewater. He then drove her to Kings Park, to the same area where they had been previously. They left the vehicle and went under some bushes, where the applicant attempted to penetrate her; but he was unable to do so. They got back in the car and drove to a park near Bridgewater. The complainant said that she became upset, finding it difficult to deal with their relationship. She told him to leave. This led to the final break-up of the relationship.
13 Almost immediately afterwards, the complainant hitchhiked to her mother's house and told her about what had taken place with the applicant. At the suggestion of her mother, she telephoned Mr Andrew Marshall, a psychologist who was then the Deputy Superintendent at Bridgewater. The complainant told him she wanted to talk to him. At her request, he
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- called at her mother's house. She told him that she had had sex with the applicant. Mr Marshall could not recall a great deal of what she said to him; but he did specifically remember her description of a bath with claw feet in the applicant's house. She told him that intercourse had occurred on a number of occasions and that it had involved their being out of town somewhere, although he could not recall the exact location. She did not appear to Mr Marshall to be particularly anxious or agitated at the time of this discussion. Unfortunately, however, his case notes were not available at the time of the trial, apparently having been lost. Mr Marshall confirmed that group workers are required to act as substitute parents and, in some cases, to go beyond this and to effect treatment or to undertake a remediation programme. Their duties also extend to taking children from Bridgewater to recreational, educational or vocational programmes.
14 The Superintendent of Bridgewater at the time, Mrs A M Smith, was contacted by Mr Marshall concerning the applicant's complaint, and she later spoke to the complainant in the presence of Mr Marshall. The complainant told Mrs Smith that she had been out for a weekend at the applicant's house and that she had been having a love affair with him. Mrs Smith remembered clearly the complainant's referring to their using a double bed and giving her at least one letter written to the complainant by the applicant, whose handwriting she recognised. The letter, Mrs Smith recalled, contained some declarations of love, and a number of crosses and noughts at the bottom of the letter, indicating kisses and hugs.
15 Mrs Smith interviewed the applicant concerning the letter. She put the complainant's allegations to him, but he denied any sexual involvement with her. So far as the letter was concerned, when she showed it to him, he just shrugged his shoulders. She indicated to him that he would be suspended. The letter from the applicant, like the case notes, had been mislaid prior to the trial. However, the applicant did admit in his evidence that he had sent a letter to the complainant. In cross-examination, Mrs Smith agreed that she had been struck by the fact that the complainant had mentioned to her that sex had taken place in a double bed in the applicant's house. Mrs Smith did not remember all her conversation with the complainant, but she could recall "the sexual side". From memory, she said, she thought the complainant's mother was still very important to her.
16 Mrs Smith agreed she had sent reports to the Department concerning her conversations with the complainant and with the applicant, but she had not sighted them since that time. These reports also appear to have been mislaid.
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17 Shortly after making her complaint to Mr Marshall, the complainant met the applicant in the vicinity of Bridgewater. She gave him a letter in which she apologised for the trouble she had caused him. She said in that letter that she had felt very badly about the matter.
18 As a result of the allegations made by the complainant, the applicant was suspended from his position with the Department, and the matter became the subject of further investigation and report. In August 1982, the applicant was tried summarily on a charge of contributing to the neglect of the complainant. He pleaded not guilty; but having heard the evidence of the complainant, the applicant changed his plea to one of guilty. No evidence regarding this charge was placed before the jury on the trial the subject of the present application.
19 On 21 April 1996, the applicant was interviewed by the police regarding his relationship with the complainant and the charges presently under review were preferred against him. The applicant now seeks leave to appeal against his convictions on the five counts.
20 The proposed grounds of appeal are as follows:
"1. Any or all of the five verdicts of guilty returned by the jury are unreasonable and/or cannot be supported having regard to the evidence. Any or all of the five verdicts of guilty are unsafe or unsatisfactory having regard to the verdicts of not guilty in respect of the remaining five counts on the indictment.
2. The learned trial Judge erred and a substantial miscarriage of justice resulted when, in her summing up to the jury, she misdirected the jury to find the accused guilty of counts 4, 5, 6 and 7 of the indictment thereby depriving the accused of the chance of an acquittal that was fairly open to him.
3. The learned trial Judge erred and a substantial miscarriage of justice resulted when, in her summing up to the jury, the trial Judge failed to tell the jury that as the evidence of the complainant could not be adequately tested after the passage of nearly 17 years, it would be dangerous to convict on that evidence alone unless the jury, scrutinising the evidence with great care, considering the circumstances relevant to its evaluation
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- and paying heed to the warning, was satisfied of its truth and accuracy."
21 The argument advanced for the applicant under ground 1 was that, having acquitted the applicant on counts 1, 3, 8 and 9, the jury must have taken the view that her credibility in relation to those counts lacked sufficient cogency to convict, and having done so, it was incumbent on the jury to find that there was some explanation which would make them accept the evidence of the complainant on the other counts. As there was no further evidence to satisfy the jury, and no reasonable explanation as to why the credibility of the complainant should be accepted on the other counts, the accused should also have been acquitted on those counts.
22 In this case, putting on one side the claim of inconsistent verdicts, the verdicts of guilty on counts 2, 4, 5, 6 and 7 cannot in themselves be regarded as unsafe or unsatisfactory, notwithstanding the lapse of time since the offences were committed. The test for determining whether a verdict is unsafe or unsatisfactory is discussed in M v The Queen (1994) 181 CLR 487. At 493, Mason CJ, Deane, Dawson and Toohey JJ said:
"Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks 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."
- Their Honours went on to say, at 494 - 495:
"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
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- 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."
23 In MacKenzie v The Queen (1996) 190 CLR 348, Gaudron, Gummow and Kirby JJ, at 365 - 368, discussed further the test for determining whether a verdict is unsafe or unsatisfactory where there are inconsistent verdicts. Their Honours stated a number of general propositions, of which propositions 3, 4, 5 and 6 are presently material. They were as follows:
"3. Where, as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness. A judgment of Devlin J in R v Stone (unreported, 13 December 1954, per Devlin J) is often cited as expressing the test (See, eg R v Hunt [1968] 2 QB 433 at 438; R v Durante [1972] 1 WLR 1612 at 1617; [1972] 3 All ER 962 at 966; cf Archbold, Criminal Pleading, Evidence & Practice, 43rd ed (1995), vol 1, par 4-457):
'He must satisfy the court that the two verdicts cannot stand together, meaning that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand.'
4. Nevertheless, the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense (see Mercer v Commissioner for Road Transport and Tramways (NSW) (1936) 56 CLR 580 at 595; Ward v Roy W Sandford Ltd (1919) 19 SR (NSW) 172). Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted (R v Wilkinson [1970] Crim LR 176). If there is some
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- evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury (Hayes v The Queen (1973) 47 ALJR 603 at 604 - 605). In a criminal appeal, the view may be taken that the jury simply followed the judge's instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt (R v Andrews Weatherfoil Ltd (1971) 56 Cr App R 31 at 40). Alternatively, the appellate court may conclude that the jury took a "merciful" view of the facts upon one count : a function which has always been open to, and often exercised by, juries (R v Hunt [1968] 2 QB 433 at 436). The early history of New South Wales was affected by English juries which, in the face of clear evidence, declined to find the value of goods stolen sufficient to attract the punishment of death, thereby affording to the offender the alternative punishment of transportation (Castles, An Australian Legal History (1982), p56). Australian decisions have acknowledged that the role of the jury continues to be ameliorative in this respect. In R v Kirkman ((1987) 44 SASR 591 at 593), in the Supreme Court of South Australia, King CJ (with the concurrence of Olsson and O'Loughlin JJ) observed:
'[J]uries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them, and courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with verdicts which had been reached by the jury with respect to other charges. Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved,
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- justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty.'
- We agree with these practical and sensible remarks.
5. Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and common sense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty. More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial construction on the applicable law. It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside. It is impossible to state hard and fast rules. "It all depends upon the facts of the case".
6. The obligation to establish inconsistency of verdicts rests upon the person making the submission. But if, because of inconsistency between verdicts, the appellate court is persuaded that a verdict cannot stand, it must make consequential orders …."
- See also Jones v The Queen (1997) 191 CLR 440.
24 In the usual course, the jury were directed by her Honour as to how they should deal with the individual counts. They were told:
"Now, there are nine separate charges, as you know, and of course a separate verdict will be sought from you in relation to each of those charges. In theory there could have been nine
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- separate trials but of course, as you understand, that doesn't take place because of the close connection in relation to these matters and the persons involved. Nonetheless, it is important that you consider them separately; a separate verdict is required from you. Of course just because you find one way on one matter would not necessarily mean that you would reach the same verdict in relation to another charge. Although that is probably reasonably obvious, it is important to point that out to you."
25 There are, in this case, a number of grounds on which the jury could have distinguished the evidence on counts 2, 4, 5, 6 and 7 from the evidence on the other counts. First and foremost, in relation to counts 4, 5, 6 and 7, there was evidence of complaints made by the complainant to her mother, who had died prior to the trial, to Mr Marshall and to Mrs Smith shortly after the offences were said to have been committed. An appropriate direction was given by the learned trial Judge as to the use which they might make of recent complaints. As distinct from the position which usually appertains in cases where trials take place many years after the offences were allegedly committed, the applicant, on the evidence, was informed of the complaints made by the complainant regarding the events on the Australia Day weekend in 1982 shortly after the alleged offences were said to have occurred. There was no evidence before the jury that the applicant was advised of any complaints by the complainant regarding any of the alleged offences which gave rise to counts 1, 2, 3, 8 and 9.
26 With respect to counts 1, 3 and 8, there was the important consideration that the applicant and the complainant were alleged to have had sexual intercourse within close proximity to other persons in circumstances where discovery was likely to have been a strong possibility. This was, naturally, a matter which was stressed by counsel for the defence. The learned trial Judge directed the jury in relation to counts 1 and 3:
"Another matter that has been referred to generally in terms of the defence in this case is the suggestion that there is a general sort of incredibility about her account of what occurred in relation to the acts of sexual intercourse that were said to have taken place at Bridgewater. It has been suggested in the accused's evidence that it was unlikely that those events would have taken place irrespective of any other matters because of the proximity of other persons in that area."
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27 The offence charged in count 1 was alleged to have taken place in the lounge room in Mallee Cottage after the other children living in the cottage had gone to bed. The unchallenged evidence of the applicant was that anyone coming into the cottage or a child moving about the cottage could have seen into the lounge room. It was the practice also to make random checks on the residential cottages during the night. There was an obvious risk of discovery if the acts complained of had taken place in the lounge room. The area was quite open and one bedroom, which was occupied by Elsie Carter, was directly off the lounge room. The jury, paying attention to her Honour's directions regarding the onus and quantum of proof, might very well have found that the circumstances in which the offence were said to have been committed were such as to leave them with a reasonable doubt as to whether the offence had been committed. It is further to be noted that the applicant had consistently denied having sexual relations with the complainant in the lounge room of the cottage both in his police interview and on his trial. There was no evidence before the jury as to any recent complaint by the complainant in respect of the offence alleged in count 1.
28 The offence charged in count 3 was said to have been committed in the boys' storeroom in the cottage. Here again there was an obvious risk of detection by one of the other children or by a member of staff, a point which was stressed repeatedly by counsel for the defence in relation to both count 1 and count 3. The applicant also denied, as was alleged, his having gone to the complainant's bedroom before taking her into the storeroom. All the bedrooms, he claimed, were monitored and it was argued that it would have been incredible for him to have gone to a bedroom, which the complainant shared with another girl, to take her to the storeroom in order to have sexual relations with her. The complainant's evidence was somewhat vague on this count. She said sexual intercourse might have taken place on more than one occasion in the storeroom, but she said she "just definitely" remembered it happened once in the storeroom. It was not, she said, a frequent thing.
29 As to the offence charged in count 8, the applicant recalled going to the Hyde Park Festival. He said that they probably went with the other children from the cottage. He went on to say that, at the complainant's request, he went with her across Vincent Street from Hyde Park to see a friend of hers who lived nearby. She had herself previously lived in the area. They saw a young couple in the street. The complainant told him that she knew them, but that she did not want to talk to them. According to the applicant, she then suggested they should go to another park of
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which she knew nearby, but they did not go to that park, returning instead to Hyde Park.
30 The offence charged in count 9 was said by the complainant to have been committed in Kings Park, she having been driven there by the applicant in his own panel van. The applicant's evidence, after he had initially denied that he had ever been with the complainant in his own van, was that, on a Sunday night early in February 1982, at about 8.30pm, having been at the Metropolitan Markets, apparently delivering fruit, he returned to his van which was parked just off Wellington Street. He found the applicant waiting for him. She knew, he said, from previous conversations with him that he would be attending the market, but he said he was annoyed that she had taken it upon herself to be waiting for him. He claimed he was "feeling pretty stressed out by her attentions" and decided to resolve the issue with her. He thought he needed a bit of time to "suss this out, talk it through with her" before returning her to Bridgewater, so he determined to take her to the Festival of Perth at the University of Western Australia. He said he knew there would be a lot of people around. He said they drove to the University, where he told her that her "attentions" were "not on". Having been told she had no permission to be out of the cottage, he said he then drove her towards Bridgewater. Approaching Bridgewater, she said she wanted "a smoke" and he stopped his van at a park nearby. He claimed she blurted out that she loved him and wanted to make love. He tried to reason with her, but she became distressed, got out of the van and ran to a seat in the middle of the park. He went over to her and sat with her on the seat, and their discussion continued. Having said that all men are bastards and "you'll be sorry" (the latter statement was not put to the jury, his counsel claiming that this was due to an oversight on his part), she told him to go, and that she would go back to the cottage. He then left her. He claimed it was after this occasion that he wrote a letter to her, that being the letter which has been lost, in which, he said, he wrote that he loved her for the way she was. He said that the words used in the letter were the words in a song. He denied having attempted to have sexual intercourse with the complainant in Kings Park.
31 The complainant, in her evidence, recollected having been taken to the University by the applicant, but she was unsure as to whether this had been on the same night as that on which she had been taken to Kings Park on the second occasion. She said that, after the failed attempt by the applicant to have intercourse with her in Kings Park, they drove to a park near Bridgewater and that she became upset and "hitched back" to her mother's house. Importantly, although, on her evidence, the offence of
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attempted unlawful carnal knowledge had taken place on the night before her discussion with Mr Marshall, there was no evidence in the trial that she had made any complaint about this particular matter. The jury, in the absence of evidence of any complaint, may well have given the applicant the benefit of the doubt.
32 It was argued for the applicant that count 2 was "on all fours" with counts 8 and 9. However, significantly, in his interview with the police, when it was put to him that the complainant had said that he had driven a female group worker and a number of children from the cottage into Perth in the Bridgewater van, and had dropped off all of them apart from the complainant in the city and had then driven her to the grounds of Parliament House, he had said he did not recall this and that he did not know why he would have done so. He said he had never been to Parliament House with the complainant. He then said he did not recall having done so. He was asked whether he could recall driving to Kings Park with the complainant alone. He replied he had never been in a van alone with the complainant in Kings Park. He said it could not have happened and then added that he could not see under what circumstances it would have happened. He would, he said, have had to have had a legitimate excuse to have been with her alone and he could not recall any such trip. It was then put to him by the police that the complainant had said that after being at Parliament House, the two of them had driven to Kings Park and parked "near the pool and waterfall" and that they had then walked to a secluded grass area not far from the waterfall and that sexual intercourse had taken place between them. He denied this, saying, "I think I would have remembered something like that".
33 The evidence of the applicant in relation to count 2 differed significantly from what he had told the police in his interview. In his evidence, he said he recalled having driven a female group worker, whom he identified as Joy Groves, to the city with children from the cottage, including the complainant. He admitted that he had dropped the others off in the city. So far as the complainant was concerned, he said she had been given the option by Ms Groves to go window shopping with the rest of them, but she had said she would prefer to stay with the applicant and she had done so. He said he was at a bit of a loss as to what to do, and then he recalled that he had a message from the country from one of his siblings who had asked him to get a message to his parents in Victoria Park, as they were not on the telephone. He thought, because of the way his shifts were structured, they needed to get the message by a particular time and he needed to get it to them then, so he thought he would go for a drive to Victoria Park. They were not at home, so he left a written message. After
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- having left the message, he said they came back over the Causeway into the city and were about to park in the city block when she said she did not want to stay there. He then asked her whether she had seen the grounds around Parliament House. She said that she had not, and so they went up there and had a look at the waterfalls. He said they discussed various things. The examination then continued:
"So it was general conversation?---Yes it was.
Sexual in nature?---Not at all. Hang on, yeah, there was - yeah. She was talking about - at one stage she talked about how she had had sex in a car in Murray Street and how after she had been raped. She used to hang around the nightclubs in Murray Street …. and hadn't cared very much about whom she had slept with, and I remember her distinctly ask me at one stage, 'Do you think I would make a good prostitute?', to which I suggested there's much more to her than that and I encouraged her to return to school and her studies."
35 The applicant was cross-examined regarding the differences between his statement to the police and his evidence at his trial. His explanation was simply that he had since recalled the events, and that he now admitted having taken the complainant to Parliament House. The jury having seen and heard the applicant might not unreasonably have attached significance to the marked change between his denials to the police and the surprisingly full details which he provided to the jury, including a concession that he had taken the complainant to Parliament House, notwithstanding his earlier denials of his having done so.
36 Counts 4, 5, 6 and 7, on the evidence before the jury, were the subjects of complaints made by the complainant to Mr Marshall and to Mrs Smith as well as to her mother. This distinguishes them from each of the other counts. The applicant's evidence was that the only occasion on which the complainant had been to his home was on Christmas Day 1981, that she had not spent the Australia Day weekend with him at his home or at Bindoon where, he said, he then owned a property. He admitted having in his home a book demonstrating various sexual positions, but he suggested that the complainant must have seen this book during her admitted visit to his home on Christmas Day. In relation to the claw feet
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on the bath at his home, it was suggested that this also could have been seen on Christmas Day.
37 The applicant further suggested, in relation to the complainant's reference to a double bed in his bedroom, that the complainant might have been lying with his baby daughter on the bed on Christmas Day. In his interview with the police, the applicant, having first conceded that his wife may have gone away from home during the Australia Day weekend in 1982, added almost immediately that he could not recall. In his evidence, however, he said he did not believe that his wife had gone away on the Australia Day weekend. Although his former wife had been in the court room during part of the trial, she was not called to give evidence confirming this fact.
38 There was some argument regarding the complainant's evidence that she had seen the film "Star Wars" at the applicant's home on the Australia Day weekend. In contrast to the position with respect to the issue as to whether the applicant's wife had been away from home during that weekend, witnesses were called on behalf of the defence from Channels 7, 9 and 10 to say that the "Star Wars" film had not been broadcast prior to 31 October 1982. The jury were entitled to treat an error of this nature, if it were such, as being of minor consequence, it not relating to any material fact.
39 In my view, this was a case in which the differing verdicts can properly be reconciled, a case in which the jury have followed the trial Judge's directions to look carefully at the complainant's evidence and to scrutinise it before convicting the applicant, and also to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt. Only in relation to counts 4, 5, 6 and 7 did the jury have before them evidence of recent complaints, and only in relation to those counts and count 2 were there significant differences between the evidence of the applicant on his trial and his previous statements to the police. The verdict on count 9 might appear to be at odds with that on count 2; but the complainant's evidence on count 9 lacked the consistency and apparent certainty of that on counts 4, 5, 6 and 7, and was therefore capable of giving rise to a reasonable doubt on the part of the jury. I do not consider that the verdicts of the jury on the counts on which they acquitted the applicant should be taken to have so damaged the credibility of the complainant as to require verdicts of acquittal on the remaining counts - see MacKenzie v The Queen (supra). I would not, therefore, uphold the proposed ground 1 of the appeal.
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40 The second ground of appeal is based upon a statement by the learned trial Judge as follows:
"Therefore, what we are left with is the fact that, yes, these incidents happened in 1982. That is quite obvious. [The complainant] has told us about these. She told Mr Marshall and [Mrs] Smith in terms of what she described as what was happening with Uncle Bob [the applicant]. They have referred to it as a love affair and recall some details because they were struck by it, and it struck them at the time because of the nature of the details."
41 This passage must be placed in its context. The trial Judge was, at that stage of her address, dealing with a contention raised by defence counsel in his closing address that the complainant's allegations were a recent invention and that the number of the alleged offences had blown out by 1996. Her Honour had recently been informed by counsel for the prosecution, in the absence of the jury, that the transcript of the summary proceedings in the Children's Court in 1982 showed that the complainant had given "detailed evidence about just about all of the allegations the subject of this indictment". Counsel for the defence, who had raised this issue, had in fact been counsel for the applicant in the earlier proceedings. The learned trial Judge had already ruled that no evidence as to those earlier proceedings should be admitted in the trial. Her Honour was accordingly faced with a dilemma. Prior to the passage complained of, she had gone through all the evidence placed before the jury in relation to the complaints made to Mr Marshall and Mrs Smith and to the complainant's mother in 1982. She then said:
"There was no suggestion in the cross-examination of [the complainant] that she did not give full details in 1982. It was not suggested to her at any stage in cross-examination. It was not suggested that the allegations that were raised by her in 1996 and that were outlined to you in court were not raised in 1982. In relation to the evidence of Andrew Marshall and Mrs Smith, their evidence related, you might consider and you will recall their evidence, to what they could recall had been told to them in 1982."
- Her Honour then went through all the evidence bearing on whether the applicant had, prior to 1996, heard of the allegations in respect of the counts with which he was then charged. She said:
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"Nowhere in his evidence does he say that he had not heard of the allegations, the particular allegations in relation to these matters regarding the acts of sexual intercourse that are the subject of these charges before 1996. Where he is referring in his evidence, and also perhaps when he refers to that in his video record of interview, is that he had not had cause to consider the matter since - I think he said the eighties or since 1982. It is not the case that he said anywhere in his evidence that he had not considered the matters in 1982."
The passage complained of then followed, after which her Honour said:
"There was no other suggestion in the evidence that these allegations had blown out or changed since 1982. At the same time, of course, it is a fact that there was no more detail than has been given in this case, in this evidence, or in fact was asked of [the complainant] or the accused regarding this matter. It was simply overlooked and no questions were put to either [the complainant] or Mr Asplin as to what precisely was said by her and to him in 1982, so that's where the matter stands."
"The only issue you have to consider in relation to each of these charges is has the prosecution proved and proved beyond a reasonable doubt that these acts of sexual intercourse - or in relation to charge 9, an attempted act of sexual intercourse - taken place as alleged or described by [the complainant]."
43 I would not uphold the proposed ground 2. I would add that there has been no criticism as to the manner in which her Honour dealt with the dilemma with which she had been presented by reason of the approach adopted by the defence. It is also to be noted that, except with respect to count 2, the jury did not convict the applicant on any count in relation to which there had not been evidence before the jury of a recent complaint. As already indicated, the evidence with respect to count 2 had its own
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features which distinguished it from the counts on which the applicant was acquitted.
44 The third of the proposed grounds of appeal relates to what has come to be known as the "Longman" direction. It was contended that her Honour's direction was inadequate. Her Honour said:
"We are therefore left with the fact that the allegations relate to incidents that occurred in 1982, and of course that brings with it special difficulties, all of which are probably quite obvious. It's obviously hard for people to remember something that occurred such a long time ago, and of course it's hard for all of the witnesses, but the significance of the fact is, of course, that the accused man has no obligation to establish anything, and obviously it is hard for him to recall, when he was interviewed in 1996, details in relation to the matters that were put to him on that video record of interview, although it must be borne in mind that it is not the case that 1996 was the first time that an allegation of sexual intercourse in that period had been made against him."
- She subsequently returned to this matter, saying:
"I have already referred to the fact that there is a long period of time that has elapsed since 1982 and since the matter was raised with the accused man in 1996. He has already given evidence in relation to that and given evidence in relation to, he says, how that affected his responses on the video and what he has done since then to recall in greater detail what had occurred. But you can’t overlook or ignore the fact that there has been a long period of time that has elapsed and as a result of that - I'm sure it is quite obvious but I can counsel you - you would only convict the accused man if you are satisfied beyond reasonable doubt of the evidence of [the complainant] in relation to those acts of sexual intercourse, and only after you have looked at her evidence closely and scrutinised it, bearing in mind the matters that I have raised in relation to the amount of time that has elapsed, and all of the evidence that you have heard in relation to this matter. You can only convict the accused man if you are satisfied beyond a reasonable doubt that [the complainant's] account was a truthful account of what occurred in relation to these particular items on the indictment."
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- A little later she added:
"I would suggest that apart from the effect of the period of time which has elapsed, and I have already referred you to that as a matter that you would need to consider because of the effect it has on someone such as the accused being able to deal with the particular matters that are raised because the amount of time which has elapsed, obviously, makes it difficult and that is something that has already been explained to you by me and by him, really, in the course of his evidence and by [counsel for the applicant] but, apart from that matter, the period of time, apart from the effect on the witnesses, is something that should not concern you because it has not been the subject of any evidence or any aspect of this case, so I would urge you to look at the evidence, confine your attention to the evidence you have heard in court, leaving aside any guesswork or speculation, address the issues and address them objectively, and of course the only issue you have to decide is, have the prosecution proved to you and proved beyond reasonable doubt that these acts of sexual intercourse and attempted sexual intercourse in relation to the last matter took place."
46 No standard form has been laid down for a "Longman" direction. Such a direction must be adapted to the circumstances of the particular case. This was not the usual sort of case in which a "Longman" direction is called for. Rarely in a case where the prosecution has been brought many years after the alleged offences were committed has there been a recent complaint. In this case, there was evidence of recent complaints in relation to four of the five counts on which the applicant was convicted. The lapse of some 14 years between the time of the alleged offences (and the time when, on the evidence, at least some of the allegations were discussed by Mrs Smith and Mr Marshall with the applicant), and the applicant being interviewed by the police in 1996, called for a specific direction by the trial Judge. The direction which was given was, in my opinion, adequate for this purpose. Her Honour directed the jury's attention to the difficulties which a delay of this order posed for the defence, and she required the jury to look at the complainant's evidence closely and to scrutinise it before convicting the applicant.
47 In the circumstances, I would not uphold the third of the proposed grounds of appeal. While I would grant the applicant leave to appeal to
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the extent that this is necessary, I would dismiss his appeal against his convictions.
48 The Crown has appealed against the sentence of three years' imprisonment, suspended for two years, imposed upon the applicant on the following grounds:
"1. Her Honour erred in imposing an overall term that in the circumstances was manifestly inadequate, and then suspending that term, in that the sentence
(a) failed to adequately reflect the seriousness of the offences, and in particular the [applicant's] breach of his position of trust in relation to the complainant;
(b) failed to reflect the need for general deterrence by way of condign punishment, to protect children;
(c) failed to adequately punish the [applicant];
(d) reflected an undue regard for matters personal to the [applicant];
(e) was suspended without the circumstances disclosing sufficient reason to do so;
(f) manifests a decline in sentencing standards for sex offences.
2. Her Honour erred in that she
(a) gave undue weight in favour of the respondent for the time that had passed since the commission of the offences, and for the fact that he had been charged with an offence arising from the circumstances surrounding these offences;
(b) failed to have adequate regard to the respondent's denial and active defence of the charges, his failure to acknowledge his guilt, and his lack of contrition;
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- (c) ordered that the term imposed for count 2 be served concurrently with the terms for counts 4, 5, 6 and 7."
49 The learned trial Judge carefully considered the circumstances of the offences, noting that the complainant had a level of sexual experience as a result of prolonged sexual abuse at the hands of male members in her family. This was, of course, one of the principal reasons for her being in the care of the Department. She was at the time obviously in an extremely vulnerable position and believed that the emotional and romantic attachment which she had to the applicant was a mutual one. Her Honour referred to the missing letter from the applicant to the complainant, the contents of which were recorded in the transcript of the 1982 Children's Court proceedings. That transcript was not before this Court; but her Honour, in her sentencing remarks, indicated that the emotional and romantic attachment between the complainant and the applicant was indeed mutual.
50 I acknowledge that the applicant has failed to demonstrate any contrition and that he has actively defended the charges against him by attacking the credibility of the complainant. Nevertheless, in this case, on the material before the Court, the authorities were fully aware of the allegations against the applicant in 1982 and they chose to pursue the charge of contributing to the neglect of a minor. No reason has been advanced as to why they did not prefer the charges on which the applicant was tried 15 years later. It may well be that in 1982 it was the practice, as was suggested in argument, that the lesser offence was charged in a case of consensual sexual intercourse. The offence charged in 1982 was capable of attracting a prison sentence, although such a sentence was not in fact imposed.
51 This is, of course, a Crown appeal, with the consequences which must flow from that, as to which see R v Grein [1989] WAR 178. But this appeal might well be said to place the applicant in triple, and not merely double, jeopardy. The applicant has struggled hard to rehabilitate himself in the years since 1982 and he has entered into a steady relationship with another woman since his divorce. In the circumstances, I consider it would be quite unfair and unjust to the applicant to impose upon him an immediate sentence of imprisonment when there has been no explanation proferred either to the learned sentencing Judge or to this Court for the delay. I would dismiss the appeal against sentences.
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52 It should be unnecessary to emphasise that this decision reflects no departure from this Court's approach to sentences for offences of the nature of the present offences. They were extremely serious offences having regard in particular to the breaches of trust involved.
53 Her Honour acknowledged that this Court has indicated that sexual offences in relation to children which involve a breach of trust are to be regarded as extremely serious, usually bringing significant terms of imprisonment. She also recognised that it is necessary, as a general rule, in cases of this nature that the courts should demonstrate through their sentences the community's condemnation and sense of outrage in relation to the offender's conduct. It is also necessary to impose such a sentence as will deter other like-minded persons.
54 Her Honour also drew attention to the fact that, in 1982, as a result of the complainant's disclosures, the applicant had been dismissed from his long-standing position as a group worker. These events had also been a contributing factor to the breakdown of his marriage. Since that time, the applicant has not been able to return to any position for which his previous employment had qualified him, except for one short period of casual employment. These are not, however, to be regarded as matters for mitigation. They are the almost inevitable consequences of the criminal conduct in question.
55 Whilst the learned sentencing Judge indicated that it was not appropriate to give significant discounts for the effluxion of time since the offences had come to light, as to which see R v Petchell, unreported; CCA SCt of WA; Library No 930346; 16 June 1993, per Franklyn J at 8 - 9, she pointed out that the complaints had been referred to the police in 1982 and that, as a result, the applicant had been charged and dealt with for the offence of contributing to the neglect of a minor. The only penalty imposed by the Magistrate who heard that case was a good behaviour bond in the sum of $200 for a period of six months. The penalty was apparently imposed on the basis of the applicant's improper emotional or romantic relationship with the complainant and not on the basis of their sexual relationship. Since that time, the applicant has striven to rehabilitate himself. The eight references provided to her Honour indicate that, in the opinions of the referees, the applicant is a hard working man of good character who has, in a variety of ways described in the references, made significant contributions to the community.
56 Her Honour concluded that in this case there were unusual and exceptional circumstances by reason of the lapse of time. She considered
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that the factors of general deterrence and condemnation would be appropriately addressed by means of a suspended term of imprisonment. For each of the five offences she sentenced the respondent to a term of 3 years' imprisonment, to be served concurrently. She suspended those terms for 2 years. I am not persuaded that these sentences should be interfered with by this Court. It should be made quite plain, however, that, were it not for the most unusual circumstances of this case, sentences of immediate imprisonment would have been called for. Furthermore, the sentence in respect of count 2 should have been ordered to be served cumulatively.
57 WALLWORK & OWEN JJ: We agree with the reasons for judgment of Kennedy J and to the orders proposed by his Honour.
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