R v M, WJ

Case [2004] SASC 345

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v M, WJ

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice Besanko and The Honourable Justice White)

3 November 2004

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE

Appeal against conviction - trial by Judge without jury - appellant convicted of unlawful sexual intercourse with a person under the age of 17, indecent assault and attempted unlawful sexual intercourse with a person under the age of 17 - inconsistency between victim's and mother's evidence concerning content of complaints made by victim to mother- whether the trial Judge erred in finding that the inconcistency could not be received as evidence going to victim's credibility - whether failure to properly address the inconsistencies resulted in a miscarriage of justice - whether the verdict is unsafe and unsatisfactory - appeal dismissed.

Criminal Law Consolidation Act 1935 (SA), s 353, referred to.
R v ADW (2002) 84 SASR 178, discussed.
R v Foley [2000] 1 Qd R 290; Driscoll v The Queen (1977) 137 CLR 517, considered.

R v M, WJ
[2004] SASC 345

Court of Criminal Appeal:          Doyle CJ, Besanko and White JJ

  1. DOYLE CJ:          WJM was tried by a Judge of the District Court, sitting without a jury, on four of the counts in an Information.  The Judge found him not guilty on count three, and guilty on counts four, five and six.

  2. WJM was later tried by another Judge on counts one and two, and was found not guilty.

  3. WJM appeals against the convictions by leave.

  4. Count three was a charge of unlawful sexual intercourse with a person under the age of 12.  Counts four, five and six related to a single incident, and were respectively charges of unlawful sexual intercourse with a person under the age of 17, indecent assault and attempted unlawful sexual intercourse with a person under 17 years of age.  The victim in each case was M, the daughter of D, with whom WJM was living for a time.  M was born on 6 July 1978.

  5. The grounds of appeal relate to the manner in which the Judge dealt with evidence from M’s mother D about what M said to D about WJM’s conduct, on two separate occasions, about ten years apart.  On each of these occasions D confronted WJM about the statements made by M.  The complaint is that the Judge dealt with this evidence incorrectly, and that the error is of sufficient significance to lead to a conclusion that there has been a miscarriage of justice.

    Evidence

  6. M was 25 years of age at trial.

  7. M is one of four children of D.  In 1987 they were living in a country town, on Sutcliffe Street.  During 1986 D…

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R v M, WJ [2004] SASC 345
Case
[2004] SASC 345
Decision Date

CaseChat Overview and Summary

In the case of R v M, WJ, the appellant, WJ, appealed against his conviction of unlawful sexual intercourse with a person under the age of 17, indecent assault, and attempted unlawful sexual intercourse with a person under the age of 17. The conviction arose from a trial by a judge sitting without a jury. The central issue in this appeal was whether the trial judge erred in his handling of inconsistencies between the victim's testimony and her mother's account of complaints made by the victim. Specifically, the court examined whether the trial judge's failure to properly address these inconsistencies led to a miscarriage of justice and whether the verdict was unsafe and unsatisfactory.

The court found that the defence was indeed entitled to rely on the inconsistencies between the victim's trial testimony and her mother's account of the complaints to challenge the victim's credibility. However, the failure to put the inconsistency to the victim did not mean that it should be ignored. Instead, it was a factor to consider when assessing the weight of the inconsistencies. The trial judge erred in concluding that the mother's evidence could not be used as evidence of statements by the victim inconsistent with her trial testimony. Nevertheless, the court concluded that this error did not necessarily require the appeal to be allowed, as a miscarriage of justice must be demonstrated. The court further found that the inconsistency did not hold significant weight, as it was reasonable for the victim to focus on a single incident and for her mother to interpret it as such without further elaboration.

The appeal was ultimately dismissed. The reasoning was that while the trial judge made an error in his approach to assessing the credibility of the complainant, this error alone did not warrant a reversal of the verdict. The court held that the inconsistency, even if properly addressed, did not undermine the overall reliability of the victim's testimony and did not render the verdict unsafe and unsatisfactory. Consequently, the verdict remained secure, and the appeal was rejected.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The grounds of appeal relate to the manner in which the Judge dealt with evidence from M’s mother D about what M said to D about WJM’s conduct, on two separate occasions, about ten years apart. On each of these occasions D confronted WJM about the statements made by M. The complaint is that the Judge dealt with this evidence incorrectly, and that the error is of sufficient significance to lead to a conclusion that there has been a miscarriage of justice.Evidence M was 25 years of age at trial. M is one of four children of D. In 1987 they were living in a country town, on Sutcliffe Street. During 1986 D separated from the man with whom she was then living. D was working as a cook and often worked of an evening. In about June or July of 1987 D met WJM. WJM moved into the house at Sutcliffe Street in 1987, but prior to moving in, as I understand the evidence, there were occasions when he stayed the night at the house. There were also occasions when he was at the house of an evening when D was at work. At this time M was aged about eight years. She was asked whether, at Sutcliffe Street “anything unusual occur[red] between you and [WJM]”. She said “yes”. She said that she was asleep in bed, in a bedroom shared with her younger sister. She woke up and was aware of somebody lying in her bed. At first she thought it was her mother, after returning from work, but then realised that it was WJM. She said that she felt WJM remove his finger from inside her vagina, WJM told her that her mother would be home soon, and then he left the room. M was somewhat uncertain about when this happened, and was not able to say “for sure” whether it was in 1986 or 1987. This incident was the subject of count three. The particulars allege that the offence occurred between 7 July 1986 and 31 December 1987, and it was common ground that this offence was alleged to have occurred at Sutcliffe Street. M did not say anything to her mother, or to anyone else, the following morning. Her explanation was that it was an “uncomfortable situation”. The effect of the evidence was that there was a single incident. But when asked whether “anything like this happened before”, M replied “No, not that I know of”. In May of 1989 D, WJM and the other children moved into a house in Jeffries Street, in the same town. M turned 11 years of age in the middle of 1989. M said that when they were living at Jeffries Street “on a regular basis” WJM would “mainly touch my breasts, put his finger inside me, put my hand on his penis and make me masturbate him”. She said that these incidents occurred in her bedroom, always at night-time and when she was asleep. Her younger sister was in the room when it happened. These incidents occurred at least twice a week, after starting off “less regularly”. M did not say anything to WJM about what he was doing, and out of fear did not let him know that she had woken up during the incidents. M was asked about the “last occasion”, when she was 11 or 12 years of age, and thought she was in grade 7. On this occasion her younger sister was sleeping in another room, and her mother was away for the night.

Decision

Reasons for decision

As to the third question, bearing in mind that it is not necessary for a judge to spell out to the jury all aspects of the factual issues that they have to decide, I am not persuaded that a direction to the jury that brought to the jury’s attention the matters that the Judge dealt with, and did not refer to the aspects of the submissions that he overlooked, would be an erroneous direction on the facts.Conclusion For all those reasons I consider that the omissions in the Judge’s reasons are not sufficient to lead to the conclusion that the verdict should be set aside. The appeal should be dismissed. BESANKO J: I agree that this appeal should be dismissed. I agree with the reasons of the Chief Justice. WHITE J: I agree with the order by the Chief Justice and with his reasons. There is nothing which I wish to add.

Ratio Decidendi

Legal Principle Established

In relation to counts four, five and six, the Judge said at [105] that the evidence of M and D had “a cohesive consistency about it”. He said that the evidence of WJM’s admissions was “important”. He referred in particular to the “aborted” separation by D from WJM, which he said fitted the prosecution evidence better than WJM’s evidence that this departure was simply due to a problem in the relationship. He also regarded the evidence about D ringing WJM after the second complaint, and demanding that he come home, as fitting the prosecution case better than WJM’s evidence.Consideration of the criticisms I agree with Ms Powell’s submission that the defence was entitled to rely on the inconsistency between M’s evidence about WJM’s conduct and her complaints, and D’s evidence about the complaints. The fact that the evidence of the complaints was led from M merely to explain D’s response does not mean that the evidence of D cannot be used to weaken M’s evidence, or D’s evidence. The evidence by D about M’s complaints is evidence of statements by M inconsistent with her evidence about WJM’s conduct. The defence was entitled to rely on those inconsistencies to attack M’s credit. The fact that the inconsistencies were not put to M was something to be taken into account in assessing the weight to be given to the inconsistencies. It was open to Ms Powell to have M recalled for further cross-examination. She did not do that. The consequence is not that the inconsistency should be ignored, it is that the failure to put the inconsistency to M that has to be taken into account: R v Foley [2000] 1 Qd R 290 at [20]. I consider that the Judge erred in deciding that D’s evidence could not be used as evidence of statements by M inconsistent with her evidence at trial. It does not follow that the appeal should be allowed. A miscarriage of justice must be shown. An error in approaching the assessment of the complainant’s credit is not of itself a reason to reverse the verdict. It was appropriate for the Judge to consider, as he did, the significance of any inconsistency between M’s evidence at trial and evidence of what she said to D about WJM’s conduct. To my mind that is the correct starting point. The first issue is whether there is an inconsistency, the next issue is whether there is an explanation that makes the inconsistency innocuous, the final issue is the significance of the inconsistency: see Driscoll v The Queen (1977) 137 CLR 517 at 536-537 Gibbs J. The second and third issues will often present as a single issue. As to the apparent significance of any inconsistency, I agree with the Judge that it would not be at all surprising if M’s first complaint to D had been in terms of a single incident. It would not be surprising if she focussed on the attempt at intercourse, and said nothing about the long course of conduct that led up to it. Neither M nor D were cross-examined in a manner that tends to exclude that fairly obvious explanation for M putting her complaint that way, and for D thinking that there had been a single incident at Jeffries Street. There was no suggestion in D’s evidence that she asked M to elaborate on or to explain the first complaint.