R v DF

Case [2010] ACTSC 31

THE QUEEN v DF [2010] ACTSC 31 (15 April 2010)

CRIMINAL LAW – trial by judge alone – offence of act of indecency upon person above the age of 10 but under the age of 16 – accused found guilty.

CRIMINAL LAW – trial by judge alone – offence of act of indecency without consent – reasonable doubt whether offence committed within dates specified in indictment – accused found not guilty.

CRIMINAL LAW – two charges depending on uncorroborated evidence of complainant – finding that elements of first charge made out beyond reasonable doubt  – finding that second charge cannot be made out as to dates specified in indictment – application by counsel to review finding on first count having regard to finding on second count – finding on second count relates to reliability of evidence about dates, not complainant’s veracity or honesty – no requirement to find reasonable doubt about first charge as a result of doubt about second charge.  

EVIDENCE – requirement that complainant in sexual offence proceeding not be identified – accused’s granddaughter a complainant in another sexual offence proceeding – granddaughter’s complaint relevant to defence in this proceeding – difficulty of dealing with defence arguments properly without indirectly identifying granddaughter – names of all family members, including accused, suppressed – Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 40.

EVIDENCE – complainant’s evidence of earlier complaints to mother admitted – evidence remained admissible despite exclusion of mother’s evidence of complaint – Evidence Act 1995 (Cth), s 108(3).

EVIDENCE – prior consistent statements by complainant – defence case included claims that complainant’s evidence had been fabricated or reconstructed or was the result of suggestion – evidence of earlier complaints by complainant admitted – Evidence Act 1995 (Cth), s 108(3).

EVIDENCE – operation of Evidence Act 1995 (Cth) in judge-alone trials in ACT – requirement that judge take into account a warning that a Territory law would require to be given to a jury – whether “warning” includes directions or comments – effect of Evidence Act provisions expressed to apply where there is a jury – meaning of “Territory law” – Evidence Act not a “Territory law” under Legislation Act 2001 (ACT) – provisions of Evidence Act expressed to apply in jury trials may not be applicable to judge-alone trials in ACT.

EVIDENCE – possible unreliability of evidence of complainant and other prosecution witnesses – complainant’s cousin’s role in instigation of complaints – whether complaints reflected “false” or “recovered” memory – complainant’s faulty recall of incidental details – implausibility of allegation about second incident – “improvement” in evidence of prosecution witnesses.

EVIDENCE – possible unreliability of complainant’s evidence – whether complainant or another prosecution witness had a motive to lie – whether another witness’s motive to lie could affect reliability of complainant’s evidence – whether complainant’s inherently central role in the possible conviction of the accused renders her evidence unreliable.

EVIDENCE – complainant encouraged to make formal complaints by cousin – no necessary implications for truth of complaints –…

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Details
AGLC
R v DF [2010] ACTSC 31
Case
[2010] ACTSC 31
Decision Date

CaseChat Overview and Summary

The case of R v DF was heard by a judge of the Supreme Court of the Australian Capital Territory. The accused, DF, was found guilty of committing an act of indecency on a person over the age of 10 but under the age of 16, but was found not guilty of an act of indecency without consent due to reasonable doubt about the dates specified in the indictment. The legal issues before the court included whether the accused was guilty of the charges, the admissibility of evidence, and the effect of the Evidence Act on judge-alone trials in the ACT.

The court found that the evidence of the complainant, C, was convincing and that she was not motivated by anything other than a belief that the accused should be held accountable for his actions. The court also found that the evidence of the complainant’s friend, Ms Husking, was not as convincing, but that it was not unlikely that C would have confided in her about the incidents. The court held that the provisions of the Evidence Act, which were expressed to apply in jury trials, may not be applicable to judge-alone trials in the ACT. The court also found that the complainant’s evidence was not necessarily unreliable due to the encouragement of her cousin to make formal complaints, and that the implausibility of matters in evidence did not render the evidence unreliable.

The court found DF guilty of the first charge and not guilty of the second charge. The court held that the accused’s conviction on the first charge was not affected by the finding of not guilty on the second charge, as the finding on the second charge related to the reliability of evidence about dates, not the complainant’s veracity or honesty. The court also held that the evidence of the complainant was not unreliable due to the possible unreliability of other prosecution witnesses, and that the complainant’s inherently central role in the possible conviction of the accused did not render her evidence unreliable. The court further held that the complainant’s evidence was not unreliable due to the Longman warning, as the significance of the delay in making complaints was not significant in the absence of a sworn denial by the accused. Finally, the court held that the evidence taken by video link from Victoria on voir dire was excluded, as Victoria was not a participating State under the Evidence (Miscellaneous Provisions) Act 1991 (ACT).

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Some evidence (the primary evidence) related directly to whether events had taken place as alleged by the prosecution, including: This evidence is set out at [41] to [85] (first count) and [86] to [114] (second count). A large amount of other evidence was adduced, mainly relevant to the reliability of the primary evidence, or more generally to whether the events alleged were likely to have taken place. The secondary evidence is discussed in the context of various directions sought in the trial. The complainant, whom I shall refer to as C, was a convincing witness. She gave her evidence carefully and calmly and provided clear and apparently unembroidered descriptions of the two incidents. She was not shaken in cross-examination on any important aspect of her evidence, but she did not hesitate to admit that there were details about the broader circumstances that she could not remember or was not sure about. Counsel for the defence challenged two aspects of her evidence by reference to answers given by her at the committal hearing; these challenges are dealt with at [94], [95] and [304] below, and in my view did not undermine her credibility. C gave no hint through her demeanour or the content of her evidence that her complaint was motivated by anything other than a belief that the accused should be held to account for what she said he had done to her. She did not seem to be taking any pleasure in her role in the trial, merely doing a difficult job which she felt needed to be done. There was no suggestion of antipathy or vindictiveness towards the accused or any member of his family; rather, she demonstrated a strongly-held conviction about the importance of family bonds (see, for instance, her evidence about her grandmother’s funeral at [205] below), and implied that the possible effect on her grandmother (the accused’s mother) was one of the reasons why it had taken her so long to make a complaint (see [199] below). Bobbie Husking, C’s friend since 1986, was not as convincing a witness as C. I accept her evidence that C had told her in 1987 about incidents involving C’s uncle, the accused. Despite the implication of some of C’s cross-examination by defence counsel, I do not find it unlikely that a 15- or 16-year-old girl might have confided embarrassing and disturbing information to another teenage girl she had met only recently, especially if she felt unable to discuss that information with family members. Ms Husking did, however, give the impression of a person who was keen to ensure that the details of her evidence were helpful to the prosecution. This was particularly noticeable when she took more than 30 seconds to answer a relatively straight-forward but potentially important question: Defence counsel submitted that Ms Husking was during that time trying to work out what would be the most helpful answer for the prosecution; whether or not this was the case, her approach did not engender any particular confidence in the accuracy of the evidence concerned.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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