R v W, GC (No 2)
[2007] SASC 129
•19 April 2007
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v WILSON (No 2)
[2007] SASC 129
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Gray and The Honourable Justice White)
19 April 2007
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - BURDEN OF PROOF
CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS
Appeal against conviction - appellant convicted by jury verdict on two counts of unlawful sexual intercourse - whether the appellant should be acquitted on count one as the count alleged a statutory offence that did not exist at the relevant time - whether the Judge failed to give appropriate directions with regard to the onus of proof - whether the Judge failed to give an adequate warning about delay - whether the Judge failed to adequately assist the jury in regard to issues concerning the complainant's credit - Held: verdict on count one set aside - verdict on count two set aside - remitted for retrial - Judge's directions regarding the onus of proof were inadequate - Judge failed to point out the danger of convicting on the evidence of the complainant given the delay that had occurred - Judge failed to adequately assist the jury in regard to issues concerning the complainant's credit - appeal allowed.
Criminal Law Consolidation Act 1935 (SA) s 49, s 277, s 281 and s 354; Statutes Amendment (Sentencing of Sex Offenders) Act 2005 (SA) s 9 and s 11; Criminal Law (Sentencing) Act 1988 (SA), referred to.
Longman v The Queen (1989) 168 CLR 79; R v Standley (1996) 90 A Crim R 67; R v Wong (1990) 54 SASR 297; R v McVitie [1960] 2 QB 483; R v Bedi (1993) 61 SASR 169; R v P (1986) 41 SASR 360; R v Ayres [1984] 1 AC 447; Kahatapitiye v R (2004) 146 A Crim R 542; R v McLaughlin (1982) 76 Cr. App. R 42; R v Power (1977) 66 Cr App R 159; Maher v The Queen (1987) 163 CLR 221; Calabria v The Queen (1983) 151 CLR 670; R v B [1999] SASC 403; R v Wallwork (1958) 42 Cr App R 153; Wright v O’Sullivan [1948] SASR 307; Gigante v Hickson (2001) 3 VR 296; S v R (1989) 168 CLR 266; R v S (1992) 58 SASR 523; R v Liddy (2002) 81 SASR 22; Johnson v Miller (1937) 59 CLR 467; R v Pfitzner (1976) 15 SASR 171; R v Dossi (1918) 13 Cr App R 158; R v Frederick [2004] SASC 404; R v VHP [1997] NSW CCA (unreported, Gleeson CJ, Handey JA and Studdart J, 7 July 1997); R v Stringer (2000) 116 A Crim R 118; R v BFB (2003) 87 SASR 278; R v BWT (2002) 54 NSWLR 241, considered.
R v WILSON (No 2)
[2007] SASC 129Court of Criminal Appeal: Duggan, Gray and White JJ
DUGGAN J. I would allow the appeals against conviction on counts 1 and 2 in the information and set aside the convictions on those counts. I would order a retrial on count 2.
I agree with the reasons of Gray J.
GRAY J
This is an appeal against conviction.
Following a trial in the District Court, the defendant and appellant was convicted by jury verdict on two counts of unlawful sexual intercourse. He has appealed against both convictions.
The principal issue arising with respect to the conviction on count one is whether the defendant should have been acquitted as the count as amended alleged a statutory offence that did not exist at the time.
On count two the defendant complained that the Judge in the course of his summing up failed to give correct directions with regard to the onus of proof, failed to give an adequate Longman[1] warning considering delay and failed to adequately assist the jury in regard to issues concerning the complainant’s credit. Counsel for the defendant submitted that the misdirections and the failure to adequately address credit has led to a risk of miscarriage of justice, such that the conviction should be set aside.
[1] Longman v The Queen (1989) 168 CLR 79.
Counsel for the defendant further contended that the errors that occurred with respect to count two had a tendency to permeate the jury’s consideration of count one. If a conviction on count one was to be otherwise sustained, a retrial should be ordered because of the risk of a miscarriage of justice.
It is convenient to discuss the terms of both charges and the respective cases of the prosecution and defence before discussing the issues on appeal.
The defendant was initially charged with the following offences:
First Count
Statement of Offence
Unlawful Sexual Intercourse. (Section 49(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Gregory Colin Wilson on the 25th day of December 1988, at Highbury, had sexual intercourse with [the complainant], a child under the age of 17 years, by inserting his finger into her vagina.
Second Count
Statement of Offence
Unlawful Sexual Intercourse. (Ibid).
Gregory Colin Wilson on the 25th day of December 1990 at North Haven, had sexual intercourse with [the complainant] a child under the age of 17 years, by inserting his finger into her vagina.
On 11 September 2006, at the commencement of the trial the prosecution sought to amend the information. Counsel for the defendant consented to the application. The Court made the amendments. As a result, the amended information provided:
First Count
Statement of Offence
Unlawful Sexual Intercourse. (Section 49(1) of the Criminal Law Consolidation Act, 1935). Amended by consent 11/9/06. PAJ Herriman
Particulars of Offence
Gregory Colin Wilson on the 25th day of December 1988, at Highbury, had sexual intercourse with [the complainant], a child under the age of 14 years, by inserting his finger into her vagina. Amended by consent 11/9/06 PAJ Herriman
Second Count
Statement of Offence
Unlawful Sexual Intercourse. (
Ibid). Section 49(3) of the Criminal Law Consolidation Act, 1935. Amended by consent 11/9/06 PAJ HerrimanGregory Colin Wilson on the 25th day of December 1990 at North Haven, had sexual intercourse with [the complainant] a child under the age of 17 years, by inserting his finger into her vagina.
[emphasis to indicate amendments]
It is convenient at the outset to set out the relevant terms of section 49 of the Criminal Law Consolidation Act at the time of the alleged offences:
(1)A person who has sexual intercourse with any person under the age of twelve years shall be guilty of a felony and liable to be imprisoned for life.
(3)A person who has sexual intercourse with a person of or above the age of twelve years and under the age of seventeen years shall be guilty of a misdemeanour and liable to be imprisoned for a term not exceeding seven years.
(4) It shall be a defence to a charge under subsection (3) of this section to prove that—
(a) the person with whom the accused is alleged to have had sexual intercourse was, on the date on which the offence is alleged to have been committed, of or above the age of sixteen years;
and
(b) the accused—
(i)was, on the date on which the offence is alleged to have been committed, under the age of seventeen years;
or
(ii)believed on reasonable grounds that the person with whom he is alleged to have had sexual intercourse was of, or above, the age of seventeen years.
The Prosecution Case
The incident, the subject of count one, was alleged to have taken place at the home of the defendant on 25 December 1988. The complainant was born on 30 May 1975. She was 13 years of age at the date alleged in count one and 15 years of age at the date alleged in count two.
The complainant told the court that she had known the defendant from the time that she was a young child. He was the family doctor. The complainant had social contact with him as well when he was involved in a relationship with her aunt.
The complainant gave evidence that she went with her family to the home of the defendant when aged 13 years, on Christmas day 1988. She and others, including the defendant, changed into bathers and entered a spa. She had consumed champagne, some of which the defendant had given to her. She became aware of a foot rubbing against her thigh. After a time she realised that it was the defendant. She then felt his hand on her leg and then inside her bathers touching her vagina. He then penetrated her vagina with his finger. She then put her hand on his leg and inside his bathers touching his penis.
The incident, the subject of count two, was alleged to have taken place on 25 December 1990 on a boat that belonged to the defendant. At this time the complainant was aged 15 years. It was the complainant’s evidence that she went with her family to the Cruising Yacht Squadron on Christmas day 1990. They had been invited by the defendant and went to his boat – the Hunky Dory.
The complainant recounted how the defendant put his hand up her skirt and inside her pants, first outside of her vagina and then placing a finger in her vagina. She recalled that the incident occurred while she was in a deck chair toward the front of the boat.
There were no other sexual acts alleged other than those the subject of counts one and two.
The defendant was a friend of the complainant’s family and was also the family doctor. The complainant said that approximately three or four months after the incident, the subject of count one, she told her mother that she did not want to see the defendant as her doctor any longer.
When confronted by the complainant’s father in about 1994, the defendant admitted having sexual contact with the complainant.
At trial, the prosecution led evidence from witnesses other than the complainant. That evidence lent support to her allegations. There was evidence that the complainant had spent Christmas evenings at the home of the defendant and on his boat. There was evidence that the complainant had been in the spa at the defendant’s home on a Christmas night and had been given alcohol.
The Defence Case
At trial, the defendant admitted the acts alleged and admitted that the incident the subject of count one had taken place before the incident the subject of count two. He agreed that the acts, the subject of the two counts, were the only sexual acts that had taken place.
However, the defendant claimed that both incidents had taken place when the complainant was 16 years of age. He admitted that his conduct was intentional. He said that the incident the subject of count one occurred at a time between late 1991 and early 1992. At this time the complainant was aged 16 years. It was his case that he believed on reasonable grounds that she was of or above the age of 17 years but accepted that she was in fact 16.
In respect of count one, the defendant relied upon a claim that the prosecution could not prove that the complainant was under the age of 14 years. Proof of the complainant being under the age of 14 years at the time of count one was left to the jury as an element of the offence. The Judge directed the jury that if it was a reasonable possibility that the complainant was not under the age of 14 years at the time of count one, then the defendant was to be acquitted.
In respect of count two, the defendant relied upon the statutory defence contained in section 49(4). He accepted that the acts, the subject of count two, occurred after the acts identified in count one and again some time between late 1991 and early 1992.
The defendant denied that either incident had taken place on a “25th of December”. The defendant called his mother who supported, in general terms, his evidence about his movements on Christmas days at around the relevant time.
The defendant also called witnesses, who provided some support for the claim that the incidents occurred in late 1991 or early 1992. One witness, a school student at the time, recalled being with the complainant on the defendant’s boat. This evidence provided support for the defendant’s case as to the date of the incident, the subject of count two.
Count One
As earlier observed, the complaint with respect to count one was that the defendant had been charged with and convicted of a non-existent offence.
The Statutory Provisions - Retrospectivity
At the time of the offence alleged in count one, section 49(1) of the Criminal Law Consolidation Act made it an offence to have sexual intercourse with a person under the age of 12 years. As a result of section 11 of the Statutes Amendment (Sentencing of Sex Offenders) Act 2005 (“the amending Act”) section 49(1) was amended to change the age specified in that sub section from 12 years to 14 years. That amendment came into force on 15 May 2006.
The amending Act contained no relevant transitional provisions. However, a transitional provision was included for amendments to the Criminal Law (Sentencing) Act 1988 (SA) that were made under the same amending Act.[2]
[2] Statutes Amendment (Sentencing of Sex Offenders) Act 2005 (SA) section 9.
In the absence of a clear statement to the contrary, it is to be assumed that an Act addressing substantive law will not have retrospective operation:[3]
The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past event.
[3] Maxwell v Murphy (1957) 96 CLR 261 at 267. See also DC Pearce and KS Geddes, Statutory Interpretation in Australia (5th ed, 2001) at 250.
The amendments to section 49 impact upon the substantive rights of an defendant. They altered an element of an offence by increasing the age of an alleged victim to an age of under 14 years. The amendments also increase the maximum penalty for sexual intercourse with a child of 12 and 13 years to life imprisonment.
Counsel for the Crown conceded that the amendments to section 49 were not retrospective and that, in consequence, count one should not have been amended at the commencement of the trial.
The error in count one following the amendment of the information could have been addressed by further amendment of the information at trial.[4] However, no further application was made. There is no power to now amend the information on appeal.[5]
[4] Criminal Law Consolidation Act 1935 (SA) section 281.
[5] R vStandley (1996) 90 A Crim R 67 at 77; R vWong (1990) 54 SASR 297 at 306.
On the basis that the statutory amendments were not retrospective, counsel for the Crown conceded that there was an invalidity in count one. However, counsel submitted that notwithstanding the invalidity of the count, it was still open for the conviction to stand.
The Adequacy of the Information
Following the amendment of the information, which was not opposed, the defendant was arraigned and pleaded not guilty to the amended count one.
The requirements for what must be included in an information are set out in section 277 of the Criminal Law Consolidation Act:
(1)Every information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as are necessary for giving reasonable information as to the nature of the charge.
(2)Notwithstanding any rule of law or practice, an information shall, subject to the provisions of this Act, not be open to objection in respect of its form or contents if it is framed in accordance with the rules under this Part.
Notwithstanding these requirements, counsel for the Crown drew attention to the proviso contained in sub-section 354(2) of the Criminal Law Consolidation Act:
Where an appellant has been convicted of an offence and the jury could, on the information, have found him guilty of some other offence and, on the finding of the jury, it appears to the Full Court that the jury must have been satisfied of facts which proved him guilty of that other offence, the Court may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of that other offence and pass such sentence in substitution for the sentence passed at the trial as may be warranted in law for that other offence, not being a sentence of great severity.
Counsel for the Crown submitted that where an information was merely defective and not a nullity the proviso contained in section 354(2) could be used to affirm a conviction. That could be done, it was said, provided that the invalidity had not resulted in a miscarriage of justice. That was so, it was argued, because, to apply the words of Cox J in Wong: [6]
Where a jury trial has proceeded to conviction on an invalid information, the appeal court will generally have power to affirm the conviction, notwithstanding the invalidity, if it is satisfied that there has been no substantial miscarriage of justice.
[6] R v Wong (1990) 54 SASR 297 at 304. See also R v McVitie [1960] 2 QB 483; Power (1977) 66 Cr App R 159; R v Bedi (1993) 61 SASR 169 and R v P (1986) 41 SASR 360.
Counsel for the Crown submitted that a reading of the statement of the offence in count one, the particulars and the summing up, demonstrated that the contest at trial was directed to whether or not the defendant had unlawful sexual intercourse with a child under the age of 14 years. It followed, so the argument ran, that the contest was one that encompassed whether the elements of an offence against section 49(3) were made out.
Counsel for the Crown drew attention to the following observation of Bridge LJ in Ayres:[7]
If the statement and particulars of the offence in an indictment disclose no criminal offence whatever or charge some offence which has been abolished, in which case the indictment could fairly be described as a nullity, it is obvious that a conviction under the indictment cannot stand. But if the statement and particulars of offence can be seen fairly to relate to and to be intended to charge a known and subsisting criminal offence but plead it in terms which are inaccurate, incomplete or otherwise imperfect, then the question whether a conviction on that indictment can properly be affirmed under the proviso must depend on whether, in all the circumstances, it can be said with confidence that the particular error in the pleading cannot in anyway of [sic] prejudiced or embarrassed the defendant.
[7] R v Ayres [1984] 1 AC 447 at 460-461. Referred to with approval in R v Wong (1990) 54 SASR 297 at 305 and Kahatapitiye v R (2004) 146 A Crim R 542.
In Ayres the appellant was charged in the statement of the offence with conspiracy to defraud, a common law offence. The particulars did not allege the common law offence but the statutory offence of conspiracy to obtain money by deception. They were separate offences and not automatic alternatives. The summing up was directed to the statutory offence and not the common law offence. The conviction was affirmed.
In an earlier decision of McLaughlin[8] the particulars of the offence were accurate but the statement of offence made reference to the wrong statute. The indictment was not amended at trial. On appeal it was held that the charge was merely defective and that in the absence of prejudice or embarrassment having been caused the conviction could be affirmed by application of the proviso.[9]
[8] R v McLaughlin (1982) 76 Cr. App. R 42
[9] See also R v Power (1977) 66 Cr App R 159 where the statement of the offence referred to the wrong offence altogether, but where the particulars were correct for the offence that was intended.
Counsel for the Crown submitted that the present case was analogous to the decisions of McLaughlin and Ayres. Counsel, however, accepted that it was open for this court to regard McLaughlin and Ayres as distinguishable for at least the following reasons:
-In the present case the amendment was deliberate and made at the commencement of the trial.
-In both McLaughlin and Ayres the correct elements of an offence were left to the jury. In the present case, they were left inaccurately as the element with respect to the complainant’s age was stated incorrectly and without reference to her needing to be over 12 years old at the time of the offence.
-Given the elements of the offence as left to the jury - the verdict, of itself, only shows that the victim was under the age of 14 years. The essential element of the section 49(3) offence that the complainant be over the age of 12 years was omitted.
It was submitted by counsel for the Crown that if the statement of the offence and particulars of count one were read together the defendant could not have been misled by the defective information and was not prejudiced. The defendant knew that he was meeting an allegation that he had unlawful sexual intercourse with a child of 13 years. The defendant admitted that the act had taken place but directed his defence towards proving that the complainant was 16 years of age at the relevant time and that he believed that she was 17 years of age.
Counsel for the Crown submitted that the verdict of the jury showed that the jury found beyond a reasonable doubt that the act of sexual intercourse took place, that the complainant was then under the age of 14 years, and that the act of intercourse was unlawful. As a result, it was said that it was open to conclude that the jury were satisfied beyond a reasonable doubt of each of the elements of an offence under section 49(3). Further, it was said that a defence under section 49(4) could not have arisen as the jury verdict meant that they had accepted that the offence occurred when the complainant was aged under 14 years.
Counsel for the Crown finally submitted that in all the circumstances the proviso was available to affirm the conviction on count one. This raised for consideration the question of whether the defendant suffered any prejudice at trial. Arguably, it was said, the only prejudice suffered by the defendant as a result of the defective information was to be deprived of the jury considering his defence under section 49(4). That defence was only available if the complainant was 16 years of age at the time of count one. In light of the fact that it was common ground that count one took place before count two and given that the jury concluded that count two took place before the complainant turned 16 years of age, it was contended that no miscarriage could have arisen from that defence not being left to the jury.
Counsel for the Crown acknowledged that if this Court did not accept that the statement of the offence and the particulars of count one could be read in such a way as to apply the proviso to affirm the verdict as one under section 49(3), the proviso could not otherwise be used to substitute a conviction under section 49(3) of the Act.
The significance of a plea of not guilty has been the subject of considerable High Court discussion. In Maher,[10] the Court observed:
[10] Maher v The Queen (1987) 163 CLR 221 at 228-229, 233-234 (footnotes omitted).
The significance of a plea of not guilty is explained by Brennan J in Kingswell v The Queen:
“When an accused pleads not guilty to an indictment, the whole of the issues on which the accused's guilt of the offence charged depends are joined between the Crown and the accused and those are the issues to be tried by the jury: Chitty's Criminal Law, 2nd ed. (1826), vol. 1, pp 470-471, 532. The jury's function is to try, and to try only, the issues joined between the Crown and an accused when the accused pleads to the indictment.”
If the accused pleads other than a plea of guilty or a plea to the jurisdiction of the court, he is by such plea deemed to have demanded that the issues raised by the plea be tried by a jury and is entitled to have them tried accordingly: s 604. ...
...
The course of procedure contemplated by the Code and the Jury Act calls for the proper officer to give the accused in charge of the jury on those offences charged in the indictment which the jury have been sworn to try. The issues to be tried are raised before the jury is sworn and empanelled, not afterwards. It is generally true to say that the jury cannot try issues which they have not been sworn to try and therefore that an accused cannot be put in charge of the jury to inquire whether he is guilty or not guilty of an offence to which he has not pleaded when the jury is sworn.
...
The provisions of the Jury Act and of the Code which govern the constitution and authority of the jury as the tribunal of fact in a criminal trial are mandatory, for the entitlement to trial by jury which s 604 of the Code confirms is trial by a jury constituted in accordance with the Jury Act and authorized by law to try the issues raised by the plea of not guilty. A failure to comply with those provisions may render a trial a nullity, at least in the sense that the conviction produced cannot withstand an appeal: see Crane v Public Prosecutor.
…
The principle is clear. A jury must be sworn to try the issues joined between the Crown and the applicant on a count then appearing in an indictment. Here the jury found the applicant guilty of the offence charged in count 20, though it had not been sworn to try the issues on that count. A conviction founded on that verdict cannot stand. There was a failure to observe the requirements of the criminal process in a fundamental respect. Special leave should be granted to the applicant on that ground (it being unnecessary to determine the other grounds upon which the applicant relied) and the conviction of the applicant for the offence charged by count 20 of the indictment should be set aside.
The need for an order for a new trial of the applicant on the present indictment depends on the validity of the addition of count 20. As there was no power to order or permit count 20 to be added to the indictment, there should be no order for a new trial on that indictment. The prosecuting authorities may be advised to present a new indictment charging the offence alleged in count 20. Neither the verdict of the jury nor the order now pronounced determines any issues which would arise on a plea to an indictment framed in the same terms as count 20.
The statutory provisions in South Australia with respect to jury trials are substantively to the same effect.
In Calabria,[11] the High Court addressed the powers of the Court under section 354(2) of the Criminal Law Consolidation Act. The Court observed:[12]
The question that then arises is what is the proper course to follow in this case where the applicant has been convicted of one offence which has not been made out by the evidence, although on the evidence he could properly have been convicted of a different offence had he been charged with it. Section 354(2) of the Criminal Law Consolidation Act 1935 (S.A.), as amended, provides as follows:
Where an appellant has been convicted of an offence and the jury could on the information have found him guilty of some other offence, and on the finding of the jury it appears to the Full Court that the jury must have been satisfied of facts which proved him guilty of that other offence, the court may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of that other offence and pass such sentence in substitution for the sentence passed at the trial as may be warranted in law for that other offence, not being a sentence of greater severity.
This section gives the Court of Criminal Appeal of South Australia powers similar to those possessed by the Court of Appeal in England (see now s. 3 of the Criminal Appeal Act 1968 (U.K.)) and those possessed by the Courts of Criminal Appeal of other States. It is a condition precedent to the exercise of the power conferred by that section that the jury could on the information have found the accused guilty of some other offence, i.e., the substituted verdict must be one which the jury could have returned at the trial on the information which was in fact presented. ... In such cases a jury could on the information laid have found the accused guilty of some other offence and on appeal the Court of Criminal Appeal can exercise the power given by s. 354(2) if the other conditions of that sub-section are satisfied. ... However, in the present case we have not been referred to any provision, and there is no principle, which would have entitled the jury, on an information charging trading in Indian hemp under s. 5(2)(c), to have found the accused guilty of preparing Indian hemp under s. 5(2)(a). If an objection had been taken to the information either before the trial or at any stage of the trial the court would have had power to order such amendment of the information as the court thought necessary to meet the circumstances of the case: s. 281(2) of the Criminal Law Consolidation Act.
[11] Calabria v The Queen (1983) 151 CLR 670.
[12] Calabria v The Queen (1983) 151 CLR 670 at 675-677.
The decision in Calabria resolves the issue in the present case in favour of the defendant. It is a condition precedent to the application of the proviso that the jury could, on the information at trial, have found the defendant guilty of an offence under section 49(3). The jury could not have done so, without amendment, as count one alleged an offence against section 49(1).
The contentions of the Crown should be rejected. Count one alleged an offence against section 49(1). The jury could not have returned a verdict of guilty to an offence against section 49(3). They are separate offences.[13] In these circumstances, the proviso contained in section 354(2) cannot be used to substitute a conviction under section 49(3). The defendant was not charged with an offence against section 49(3).
[13] R v B [1999] SASC 403 at [15]-[17], [121] (Lander J).
Conclusion – Count One
It follows that the verdict on count one cannot be sustained. The complainant was not under 12 years of age.[14] The conviction in respect of count one should be set aside.
Count Two
[14] R vStandley (1996) 90 A Crim R 67 at 77; R v Wong (1990) 54 SASR 297 at 306.
The Adequacy of the Complaint
The facts relevant to Count 2 have been discussed earlier in these reasons. To understand the first complaint with respect to count two it is necessary to point out that the evidence of the complainant fell short of establishing that the incident occurred on Christmas day. The complainant acknowledged that the conduct could have occurred at a proximate time and date.
Counsel for the defendant submitted that the Judge erred in directing the jury that the commission of the act, on Christmas day 1990 did not have to be proved beyond reasonable doubt. Counsel contended that the date alleged formed an element of the offence and had to be proved beyond reasonable doubt.
Counsel for the Crown submitted that the Judge was correct to direct as he did. It was said that it was an offence to have sexual intercourse with a person in a certain age range. The offence was not that sexual intercourse took place at a particular location,[15] nor on a particular date.[16] The commission of the offence on precisely Christmas Day 1990 was not a matter that had to be proven beyond a reasonable doubt.
[15] R v Wallwork (1958) 42 Cr App R 153; Wright v O’Sullivan [1948] SASR 307 at 317; and Gigante v Hickson (2001) 3 VR 296 at 300.
[16] S v R (1989) 168 CLR 266 at 282; R v S (1992) 58 SASR 523; R v Liddy (2002) 81 SASR 22 at [256].
There are reasons for particularity - to enable a defendant to prepare and present a defence; to enable the jury to reach a decision with respect to the same incident; and to ensure that any conviction is not bad for duplicity.[17]
[17] R v Liddy (2002) 81 SASR 22 at [257].
It is generally sufficient that the prosecution identify the occasion or incident on which the offence is alleged to have taken place.[18] The general rule has been described as follows: [19]
[A] date specified in an indictment has never been a material matter unless it is actually an essential part of the alleged offence…Thus, though the date of the offence should be alleged on the indictment, it has never been necessary that it should be laid according to truth unless time is of the essence to the offence.
[18] Johnson v Miller (1937) 59 CLR 467 at 489; R v B [1999] SASC 403 at [114]; R v Pfitzner (1976) 15 SASR 171 at 185, 192; S v R (1989) 168 CLR 266 at 274-275, 285 and R v S (1992) 58 SASR 523 at 529.
[19] R v Dossi (1918) 13 Cr App R 158 at 159-160 - referred to with approval in R v Pfitzner (1976) 15 SASR 171 at 185-186; R v Liddy (2002) 81 SASR 22 at [256]; R v Frederick [2004] SASC 404 at [38]; and R v VHP [1997] NSW CCA (unreported, Gleeson CJ, Handey JA and Studdart J, 7 July 1997).
However, special circumstances can require a different approach to be taken. As Bray CJ observed in Pfitzner:[20]
Whether the date alleged in an information is vital to the charge must depend on the circumstances. So long as it is clear that the controversy turns on the events of a certain occasion, it may not matter if the date of that occasion is misstated if the occasion itself is clearly identified and both parties have directed their cases towards it; cf. Page v. Butcher. But obviously if a man is charged with committing an offence on Saturday and comes prepared with an alibi for Saturday, he cannot be convicted of committing the offence on Friday or Sunday, unless perhaps the information is amended and the trial adjourned to enable him to meet the new case. If authority is needed for so obvious a proposition, it will be found in Wright v. Nicholson. The case of R. v. Dossi, relied on by Mr. Duggan, is distinguishable and was distinguished in Wright v. Nicholson. There the charge was a charge of indecent assault on a child. The child gave evidence of various acts of indecency over a considerable period ending in March 1918, but not pinning them to any particular day. The indictment charged the offence as having been committed on 19th March, 1918. The accused produced an alibi for the 19th March. The jury found him not guilty with regard to the 19th March but guilty of the crime on other dates, and the trial Judge thereupon amended the indictment by substituting "some day in March" for the words "on March 19th". The Court of Criminal Appeal held that he was justified in doing that.
The case was certainly near the borderline. I should have thought myself that it was over it. In Wright v. Nicholson the Court thought that Dossi's case was distinguishable, because in view of the accused's own evidence, to which they referred, no real prejudice was caused to him by what had happened. I do not think that can be said here. Here, as in Wright v. Nicholson, I think that a very real prejudice would have been caused to the appellant if the jury had been left with the impression that it did not matter whether the sale took place on the Saturday or on some other day, particularly some earlier day.
[20] R v Pfitzner (1976) 15 SASR 171 at 185-186 (footnotes omitted).
Counsel for the Crown accepted that circumstances can arise in which the specification of a date may be necessary to avoid injustice,[21] but submitted this was not such a case. It was pointed out that there was no dispute that the act alleged in count two occurred, in the location alleged, and in the manner alleged by the complainant. The defendant relied upon the defence set out in section 49(4) of the Act. In this circumstance, counsel for the Crown contended that the date of the offence was not a material particular. It was said that to conclude otherwise would lead to an “absurd result”. It would allow a defendant to admit that he had had sexual intercourse with a child but to claim that he or she was not guilty solely on the basis that the child had made an error as to the date of the offence.
[21] R v Frederick [2004] SASC 404 at [37]; R v Pfitzner (1976) 15 SASR 171 at 185; R v Stringer (2000) 116 A Crim R 118 at [20].
It must be clear that the contest at trial turns on the events of a certain occasion. If that is so, it does not matter that a date may have been misstated. The occasion must be clearly identified. Both parties must have had the opportunity to direct their cases toward that occasion.[22] Particulars must be given of the conduct that is the subject of a charge to distinguish it from other similar incidents.[23] In the present case these requirements were satisfied.
[22] R v Pfitzner (1976) 15 SASR 171 at 185.
[23] Occasions can be identified by reference to time, date, place, external event or, in some circumstances, the first and last incident - see R v Liddy (2002) 81 SASR 22 at [262] - [270].
The Crown’s submission on this topic should be accepted. The present case did not give rise to circumstances that made the precise date a material particular and an element to be proved beyond a reasonable doubt.
The Construction of Section 49(3) and (4)
Section 49(3) of the Criminal Law Consolidation Act creates an offence. One element to be proved beyond a reasonable doubt is that the complainant was at the time that intercourse took place, of or above the age of 14 years and under the age of 17 years.
Section 49(4) creates a special statutory defence. The sub-section casts an onus on an accused to prove certain matters. Relevant to the present trial – that the complainant was, on the date on which the offence was alleged to have been committed, of and above the age of 16 years– and that the defendant believed on reasonable grounds that the complainant was of or above the age of 17 years.
In circumstances where there is no dispute about the date or occasion of the incident, no difficulty arises. In respect of that date or occasion, to take advantage of the special defence, an accused has the obligation to prove on the balance of probabilities that at the relevant time the complainant was within the relevant restricted age range. He must also establish his case on reasonable belief.
A possible difficulty arises in a case such as the present from the words appearing in section 49(4) “on the date on which the offence is alleged to have been committed”. This language does not fit well with an onus on an accused in circumstances when the date of the incident is alleged by the accused to be different from that advanced by the complainant. However, the purpose of the sub section is clear. An accused is to have the opportunity to advance the special statutory defence. To do so an accused must prove the specified matters.
The legislature intended all accused, if they wished, to have the opportunity to advance the statutory defence. An immediate consequence is that the words referring to an alleged date should be read as to include any alternative date advanced by an accused. However, it is to be understood that an accused, to establish the special defence, must first prove on the balance of probabilities, that at the date of the incident the complainant was of or above the age of 16 years. An accused must also prove on the balance of probabilities a belief on reasonable grounds that the complainant was of or above the age of 17 years. Providing the accused proves on the balance of probabilities that the incident took place on a date or at a time when the complainant was within that age range - between 16 and 17 years - that aspect of the statutory defence is made out. It then remains for the accused to make out his case of reasonable belief. This is a situation where the purposive approach to statutory interpretation is of particular assistance.
The Challenged Directions
The Reversal of the Onus
In the course of summing up, the Judge explained to the jury that the prosecution had to prove each of the elements of the offence beyond reasonable doubt. The Judge explained to the jury the special defence with respect to count two:
You might think, as I have said, that the accused has admitted the three elements comprising that count, that is to say, he intentionally had sexual intercourse with [the complainant], that it was in the 1991/1992 holidays, when plainly she was under 17, although she said it was at Christmas time 1990, and that his acts were not lawful in the sense that I have explained them to you. But the question of whether those acts occurred and, accordingly, what [the complainant’s] age was then becomes a very important point.
Depending on what finding you make as to when they occurred, you may have to consider a special legal defence raised by the accused and I put it to you this way: if you, on all the evidence, are satisfied beyond reasonable doubt that the incident on the boat occurred at Christmas time 1990, when [the complainant] says it did and when she was obviously 15 years of age, then you will likely find the accused guilty on the second count and that will dispose of the matter altogether on that count.
But if you are not satisfied beyond reasonable doubt that that act of sexual intercourse occurred on the boat at Christmas 1990 and instead find that it occurred in the summer holidays of 1991/1992, as the accused says, then I must instruct you as to how you will deal with that finding if you find that [the complainant] was then 16 years old. So, even on the accused’s account, as I have said, the ordinary elements of the offence are made out. But then you will come to this special defence. The law provides that it is a defence to a charge of unlawful sexual intercourse if an accused person proved, first, that he had sexual intercourse with a person who was in fact 16 years of age or more but less than 17 years of age and, secondly, that he believed on reasonable grounds that that person was then 17 years of age or more.
...
I said to you earlier that the prosecution must prove its case and each element of its case beyond reasonable doubt. That remains so, but in considering the defence that is raised by the accused, you then have to consider whether the accused has proved something to you. He faces an onus in raising that defence. He must prove to you that he believed [the complainant] was then 17 years of age and he had reasonable grounds for believing it. But having said that he must prove it to you, it is important for you to understand that he does not have to prove those matters to the same high level of proof required of the prosecution in a criminal case, that is to say, proof beyond reasonable doubt.
An accused raising that defence need only establish those matters to your satisfaction on the balance of probabilities. That is to say, he need only satisfy you that it is more likely than not that he then believed that [the complainant] was of or above the age of 17 and that he had reasonable grounds for believing it.
However, then the Judge continued:
So to repeat myself. On count 2, if you are satisfied beyond reasonable doubt that the act of sexual intercourse on the boat with [the complainant] occurred in 1990 as she says it did, then you will convict. If you are not so satisfied, you will then consider whether it happened in the 1991/92 holidays as the accused said it did. If you are satisfied beyond reasonable doubt that it did happen in the 1991/92 holidays, you will still convict the accused on that count unless he satisfies you, on the balance of probabilities, that at that time he believed [the complainant] was 17 years or older, and that he had reasonable grounds for believing it.
[emphasis added]
The Judge correctly directed the jury about the onus of proof being borne by the defendant with respect to his belief about the complainant’s age. The Judge was correct that the onus was on the balance of probabilities.
It is at this point that the difficulty arose. The Judge’s direction required a finding beyond a reasonable doubt that the incident occurred in the 1991/1992 holidays, that is, at the time the defendant said it occurred. This was a misdirection. The defendant bore an onus on the balance of probabilities. The defendant did not carry an onus to prove anything beyond a reasonable doubt.
The Judge, as conceded by counsel for the Crown on the hearing of this appeal, cast too high an onus on the defendant. Bearing in mind this was a principal issue in the trial, the jury should have received a proper direction on the issue of onus. Nowhere in the summing up was this error rectified. This was a serious misdirection.
The Delay Warning
Counsel for the defendant submitted that the Judge’s warnings with respect to delay were inadequate. It was complained that what was said was not in the form of a warning and in particular said nothing about the danger of convicting in the circumstances.
Counsel drew attention to the observations of Brennan, Dawson and Toohey JJ in Longman:[24]
The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than 20 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 and paying heed to the warning, were satisfied of its truth and accuracy. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice.
[24] Longman v The Queen (1989) 168 CLR 79 at 91.
In BFB,[25] Doyle CJ observed:[26]
Longman and Doggett established that when there has been a substantial delay between the occurrence of events the subject of a charge, and notice of a complaint about those events to the accused, and that delay has placed the accused at a forensic disadvantage, the judge must give the jury a clear warning about the danger of convicting on the evidence of the complainant. That warning must be backed by the judge’s authority, it must be sufficiently clear and firm, and it must be adequately tied to the facts of the case.
[25] R v BFB (2003) 87 SASR 278.
[26] R v BFB (2003) 87 SASR 278 at 283. See also R v BWT (2002) 54 NSWLR 241
The Judge in the course of his summing up acknowledged that there had been a long delay between the alleged incident and complaint. On the complainant’s account, the delay was between 12 and 14 years; on the defendant’s, about 10 years. As the Judge observed, on either account, the delay was substantial. In addition, there has been the further delay of 4 years since the matter came to the attention of the police. However, it is to be observed that the defendant was put on notice by a conversation with the father of the complainant in 1994.
After pointing these matters out to the jury, the Judge informed the jury that he was giving a special direction about the delay and that it was in the form of a warning. The Judge then pointed out that the defendant had been disadvantaged because of an inability to test the complaint of the complainant in every detail and, second, that the delay may itself cast some doubt on her reliability. Then the Judge drew attention to the disadvantage to the defendant in the following terms:
Thirdly, from the accused’s perspective the delay has disadvantaged him in a number of ways. If there had been a prompt complaint he would have likely been in a position to better remember back to the relevant times and what, if anything, happened at those times. If it had been prompt he might have been in a position to remember exactly where he was and at what times on or about those Christmas days. He might have been able to produce other evidence tending to disprove the reliability of the complainant and he might have had an opportunity, if the complaints were made very quickly, to have medical examinations or the like undertaken. He might have lost the opportunity to call witnesses.
So you should take those disadvantages into account in assessing the evidence and whether the prosecution has proved its case against the accused on either count. True it was that the accused was aware of [the complainant’s] complaint by 1994, but it was not until eight years later that he was forced to consider details of it and the question of defending himself in court.
For all these reasons, you should scrutinise [the complainant’s] evidence with particular care. And you must be careful not to act upon that evidence unless, bearing in mind that warning, you are completely satisfied of its truth and accuracy.
The Judge did not give the jury a clear warning about the danger of convicting the defendant on the evidence of the complainant. The Judge informed the jury that they should scrutinise the complainant’s evidence with particular care and be careful not to act upon that evidence without bearing in mind the warning that they were to be completely satisfied of the truth and accuracy of that evidence. However, the Judge failed to point out the danger of convicting on the evidence of the complainant given the delay that had occurred. To adopt the words of Doyle CJ – “the Judge must give the jury a clear warning about the danger of convicting on the evidence of the complainant” – it must be sufficiently clear and must be adequately tied to the facts of the case. This was a material misdirection.
An Item of Significant Evidence
There is a further matter of concern. The complainant gave evidence that the incident giving rise to count two occurred on a boat owned by the defendant. Importantly she said that this was the last occasion that she had been on the defendant’s boat.
As earlier observed, a witness, a student at the time, recalled meeting the complainant on the defendant’s boat. He provided specific detail of matters discussed that were factually correct and were of a nature where they could be expected to have been recalled. He placed the occasion at a time consistent with the defendant’s account of the incident occurring in the 1991/1992 holidays. This witness was called by the defendant. He was not challenged at all in cross-examination. It followed that his evidence raised a serious question with respect to the credibility of the complainant.
In the course of summing up, the Judge made a fleeting reference to this evidence. However, he did not assist the jury at all as to the serious impact that the evidence had on the complainant’s credibility and reliability. He should have done so.
The defendant advanced a number of other complaints. However, I do not consider any to be of significance. As count two is to be remitted for retrial it is not appropriate to address those matters further.
Count Two – Conclusion
The effect of the misdirections as to delay and the onus of proof and the failure to properly deal with evidence relevant to the complainant’s credit have led to a risk that a miscarriage of justice may have occurred.
This is not an appropriate case for the application of the proviso. The misdirections were serious. It could not be said that a risk of miscarriage of justice did not arise. In these circumstances the verdict of guilty on count two should be set aside and count two remitted for retrial.
Conclusion
I would allow the appeal. I would set aside the conviction on count one. It is a matter for the Director of Public Prosecutions as to whether a fresh information is to be laid in respect of the incident, the subject of count one. I would set aside the conviction on count two and direct a retrial.
WHITE J: In my opinion, the appeals against conviction on counts 1 and 2 should be allowed. The convictions on those counts should be set aside. I would order a retrial on count 2.
I agree in substance with the reasons of Gray J.
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