R v WB - [2009] VSCA 173

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 955 of 2008
No 596 of 2009

THE QUEEN

---

JUDGES:	BUCHANAN and NEAVE JJA and HANSEN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 July 2009
DATE OF JUDGMENT:	31 July 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 173
JUDGMENT APPEALED FROM:	R v WB (Unreported, County Court of Victoria, Judge Murphy, 19 December 2008)

---

Criminal law – Sexual Offences – Evidence of complaint – Complaint related to sexual misconduct – Complaint made two years and seven months after events the subject matter of the charges not capable of amounting to recent complaint – Forensic disadvantage to accused not removed by a complaint not brought to the attention of the accused – Memory recovered by hypnotherapy – Trial judge failed to warn the jury of the dangers inherent in testimony based upon memory recovered by hypnotherapy – Verdicts unsafe and unsatisfactory.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C J Ryan SC	Mr C Hyland, Solicitor for Public Prosecutions
For the Appellant	Mr M J Croucher	Slades & Parsons

BUCHANAN JA:

After two consecutive trials in the County Court, the applicant was found guilty of a number of sexual offences against his daughter and another young girl.

The first trial was concerned with offences alleged to have been committed against the applicant’s daughter. There were six counts of indecent assault of a girl under the age of 16 years, two counts of gross indecency with a girl under the age of 16 years and one count of incest. The offences were said to have taken place between December 1971 and December 1975, when the complainant was aged between nine and 13 years and the applicant was between 32 and 35 years’ old.

The principal witness was the complainant. She gave evidence that on a summer afternoon she was in a swimming pool with the applicant at their house in Burwood. The applicant encouraged the complainant to straddle him while he had an erect penis (count 1). The applicant then told the complainant to hold his penis in her hand while he lifted her up and down, for a period of some ten minutes (count 2). The applicant told her that she was his favourite child, that this was an act of love and he pulled her swimsuit aside and proceeded to touch her vaginal area (count 3). At the same time, the applicant was tongue kissing the complainant (count 5). The applicant then proceeded to digitally penetrate the complainant’s vagina to the extent of the first knuckle of his finger (count 4).

The complainant said that a year later, after the family had moved to a house in Wonga Park, while the applicant’s wife was out working, she felt unwell one Saturday evening and went into the applicant’s bedroom. The applicant invited the complainant to join him in bed. The applicant was naked and forced his daughter to take off her pyjamas. He then made her hold his…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v WB

Details

AGLC: R v WB [2009] VSCA 173
Case: [2009] VSCA 173
Decision Date: 3 August 2009

CaseChat Overview and Summary

In the case of R v WB, the accused faced charges of sexual offences against the complainant, who was a child at the time of the alleged events. The case was heard in the Supreme Court of South Australia, where the primary issue was whether the evidence presented by the complainant, who had only come forward two years and seven months after the alleged incidents, was reliable and admissible. Furthermore, the court had to consider the implications of the complainant’s testimony, which was based on memories recovered through hypnotherapy, and whether the trial judge had adequately cautioned the jury about the inherent dangers in such testimony.

The legal issues centred on the admissibility of a delayed complaint and the reliability of memory recovered by hypnotherapy. The court was required to determine if the delayed complaint could be considered a recent complaint, which is crucial for such evidence to be admissible in criminal proceedings. Additionally, the court examined whether the trial judge had correctly instructed the jury regarding the potential unreliability of hypnotherapy-recovered memories.

The Supreme Court found that the complainant's delayed report could not be deemed a recent complaint, as the length of time between the alleged events and the complaint created a significant forensic disadvantage to the accused. Moreover, the court held that the judge had failed to warn the jury about the dangers of accepting testimony based on hypnotherapy-recovered memories. Consequently, these errors led to the conclusion that the verdicts were unsafe and unsatisfactory. The court ordered a retrial, emphasising the necessity for proper judicial direction on these specific points to ensure a fair trial.

Orders