R v Weston

[1994] QCA 543

THE COURT OF APPEAL [1994] QCA 543

SUPREME COURT OF QUEENSLAND

C.A. No. 223 of 1994

Brisbane

[R v. Weston]

Before Macrossan CJ
Pincus JA

Mackenzie J

THE QUEEN

v.

BARRY GEORGE WESTON

REASONS FOR JUDGMENT - THE CHIEF JUSTICE

Judgment delivered 14/12/1994

I have had the advantage of reading the reasons prepared by

Pincus J.A. and Mackenzie J. and like them I would dismiss the

appeal. The facts and the issues are sufficiently fully set out in those reasons particularly by Mackenzie J and I shall avoid

unnecessary repetition.

If evidence is to be regarded as having the capacity to confirm or support a particular witness's allegations, that is by pointing to the commission of a crime and to the accused as

its perpetrator and at the same time as possessing a character

which is independent of the story of the witness for whom support is sought, then this will have to appear in circumstances which can be expected to vary from case to case.

It is the function of the trial judge to determine whether evidence which is advanced as being potentially corroborative can properly be regarded as having the necessary capacity to provide independent support. In discharging this function the

judge makes a judgment of logic and commonsense but he will have

the advantage of his judicial experience and his awareness of that special character which the evidence must have if it is to

qualify within the test. He will be able to exclude from

consideration evidence which is no more than remotely or tenuously connected with the evidence for which support is

sought. Sometimes the judge will be called upon to identify and exclude from the corroborative category, evidence in which the challenged witness is doing no more than supporting his own account and this may occur in circumstances which because of their factual complication, do not make this immediately

apparent. When the judge's determination on the preliminary aspect is complete he may then entrust to the jury the further factual consideration of the evidence which he will identify for

them, leaving them, too, with a task to be performed in

accordance with logic and commonsense. The judge may be called upon to add necessary warnings about incautious or unsafe reliance on the material which he refers to them.

In the present case, the complainant said that the offences

took place in the bedroom of the appellant's house and that in

the course of the episode the appellant took from a bedside cupboard a selection of videotapes from which she chose one called, "Deep Throat". She said they then watched it.

The police, some considerable time later, executed a search warrant and a copy of a videotape, "Deep Throat", was among those located in the bedside cupboard. This circumstance

clearly has the capacity to provide independent support of the complainant's story in a central aspect. Its weight as independent evidence would have been affected by a number of

other circumstances mainly connected with the opportunity the complainant had to know that the videotape was in the location she described. She might have been able to observe the tape there on another occasion or learned that it was there, such as

by being told by someone. Lapse of time between the offences

and the subsequent discovery and opportunities for the complainant to have learned of the location of the video, either after or prior to the date of the alleged offences, are matters which bear upon the weight of the corroborative capacity of the evidence of the discovery. The way in which the case was conducted did not produce completely satisfying answers on these issues of weight but the evidence in the case certainly did not

destroy the capacity of the later discovery of the video to

afford corroboration of the complainant's story. Other decisions may be referred to as revealing of instances where

there was independent evidence of the discovery of facts of

which it was unlikely that a complainant would have been aware unless events had occurred as the complainant claimed. In R v. Kerim [1988] 1 Qd.R. 426 especially at 451 attention was given

to the possibility of finding corroborative support in independent observation of significant items at the scene which

conformed with the complainant's description and also in other evidence of a more general kind which tended to support her story unless some unexpected coincidence to explain away the details was assumed. R v. Mitchell (1952) 36 Cr.App.R. 79

referred to in R v. Kerim is another case of relevance in this connection, and also R v. McInness (1990) 90 Cr.App.R. 99, 104 referred to in the reasons of Mackenzie J. in the present case.

Here, the trial judge correctly ruled that the discovery of

the "Deep Throat" video in the bedside cupboard was capable of

constituting corroboration and he quite properly left that
matter to the jury's consideration on that basis.

A further fact emerged in the evidence. At some time, again well after the alleged offences occurred, the complainant was able to give some not altogether clear description of a portion of what might be seen on a viewing of the "Deep Throat"

video. This invites attention to what is really a less weighty aspect essentially no more than subsidiary to the main point just discussed. What could fairly be described as the main

corroborative issue was that the complainant was able to supply the title of the video which was later discovered in the bedside

cupboard. It is true that some description by the complainant of the contents of the tape, if independently shown to be accurate, might tend to be persuasive of her assertion that she had viewed it on the occasion in question but, once again, the

persuasive weight would be very much affected by her opportunity

on other occasions to have seen something of the video's contents or heard about them. This further evidence can be described as subsidiary because this was not a case where the

complainant had not been able to provide the title of the video subsequently discovered. If that had been so, the inquiry might then have been whether a video, whose contents she had sketchily

described, was indeed identical with the one the police found.

Her description of the contents such as she was able to give in

the present case might, subject to questions of weight, have been able to provide some confirmation that she viewed part of

it on the occasion in question, but in terms of confirmation of

her evidence generally, it added little if anything to the

significance of the subsequent discovery beside the bed of a

video bearing the title she had referred to.

The trial judge in his directions to the jury on all of
this evidence and in respect of its capacity to provide

corroboration, did not overlook possible weaknesses in the links in the persuasive thrust of the evidence but on the contrary

properly and fairly directed the jury's attention to them.

The appeal against conviction should be dismissed.

I agree for the reasons sufficiently stated by Pincus J.A.

that the application for leave to appeal against sentence should

be refused.

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 14/12/1994

This is another case in which a verdict is attacked on the ground of misdirection on the obscure subject of corroboration. As Davies J.A. has explained in Monson (C.A. 121 of 1993, 14 February 1994) the basic question is whether the evidence said to be corroborative "reduces the danger that the complainant's allegation is fabricated". Generations of eminent judges have tried to devise tests to assist in determining this, but the content of the tests and whether they work sensibly continue to be matters of serious controversy.

The reasons of Mackenzie J set out the facts. It will be noted that the complainant said that the appellant took two videos out of a cupboard which was beside his bed, one called "Deep Throat" and one which the complainant had thought was called "Trivial Pursuit". She chose to watch "Deep Throat" rather than the other video, apparently because the video "Deep Throat" had, to use the trial judge's words, "no visual representation of it being an indecent or sexual movie", whereas the other video did have such a representation.

The complainant, according to her evidence, watched part of "Deep Throat" and the other events occurred which are described in the reasons of Mackenzie J; they were the subject matter of the two charges of which the appellant was convicted: one of unlawful and indecent dealing on 22 May 1992 and the other of exposing the complainant to an indecent video tape on the same date.

Over a year later, on 18 July 1993, a complaint was made to the police and as a result the appellant's premises were searched, under a warrant to search for "Deep Throat" and "Trivial Pursuit"; it was open to the jury to infer that a statement from the complainant prompted the application for the warrant. Two video tapes, "Deep Throat" and "Sexual Pursuit", were taken from a cabinet beside the bed in the appellant's bedroom.

At the committal hearing, when asked what she recalled from seeing the video, the complainant replied "A lady sitting on a high chair in the nude and a man was down at the bottom of a chair licking her wee wee". A scene of that kind is included in the video "Deep Throat". On 15 May 1994, two days before the trial, it was arranged that the complainant would see the video "Deep Throat" and that the process of her observing it would be video taped. Presumably, the purpose of this was to determine whether, when certain scenes appeared, the complainant would show signs of having recognised them. The only positive result from the point of view of the prosecution was that, as Mackenzie J explains, the appellant mentioned, before the relevant part appeared on the screen, that she thought there was a doctor in the video; that is in fact so. It should be added that there was evidence, not as clear or comprehensive as one might expect it to have been, from which the jury might reasonably have understood that the complainant claimed to have no knowledge of the content of "Deep Throat", before being shown it as just mentioned, other than from having observed it while the offences alleged were being committed by the appellant.

The judge summed-up on the question of corroboration at some length; it
seems convenient to summarise the main points which, in my view, the jury should
have understood from that part of the summing-up:

1.That the covers of "Deep Throat" and "Sexual Pursuit" found in the search

corresponded in character with the complainant's descriptions of

them as, with one error, did the names of the videos.

2.That "Deep Throat" contains the high chair scene and the doctor scene which

accorded with what she had previously described.

3.That for evidence of this sort to be corroborative, the jury had to be satisfied that the complainant gained no knowledge of the content of "Deep Throat" in any other way.

In my respectful opinion, insofar as his Honour's directions on these points put factual matters before the jury, they were reasonably accurate. The judge did not, it appears to me, make it clear that the two scenes mentioned in point 2 had different considerations applicable to them, but that was not a particularly important omission.

The principal authority relevant to matters of this kind, so far as Queensland is concerned, is Kerim (1988) 1 Qd.R. 426. Like the present case, that involved allegations of unlawful sexual behaviour with a young girl, engaged in by a male. The complainant's evidence included some allegations of rape, one being at a Gladstone motel. She said that a condom was used and that on the morning after the rape she saw a packet of condoms on the bedside table; she described the packet, and a price tag and other material on it. The Crown proved that there were condoms for sale in a local pharmacy in packets which to a large extent accorded with the description the complainant gave of the packet she claimed to have seen in the motel room. Kerim admitted having gone to the chemist shop on the day before the alleged rape; he said he bought some aftershave lotion there. Kerim denied any sexual contact and said he never used condoms. In commenting upon the weight of the evidence, which was held to be corroborative, McPherson J (as he then was) remarked:

"It is possible, but may be thought improbable, that on 30 September [the complainant] went to Mr O'Reilly's shop and there saw and memorised the details of the condom packet which she claims to have seen on the morning of 1 October," (459)

After discussing other factual aspects, his Honour went on:

"In any event, these considerations went to weight, which was a matter for the

jury."

Macrossan J (as his Honour then was) remarked:

"In the absence of any independent sighting of condoms in the room, evidence of the availability to the appellant of condoms which to a striking degree matched the appearance of those claimed to have been seen by the girl also has the capacity to corroborate. (451)

His Honour went on to say, in substance, that although there were other possible explanations of the apparent coincidence which were "objections of some weight", his Honour thought that..."O'Reilly's evidence opened up for consideration coincidences sufficiently striking to be capable of being regarded as corroboration".

Here, the circumstances were not so strongly in favour of permitting the jury to consider the relevant evidence as possibly corroborative as they were in Kerim. There was a considerable gap in time between the alleged offences and the police search, increasing the risk that the complainant might have gained knowledge of the matters relied on otherwise than in the way she claimed to have come to know of them. On the other hand, if the complainant were of a mind to fabricate the relevant evidence, it may have required little time to do so; it is the likelihood of this child fabricating the evidence, rather than the time available, which the jury could reasonably have thought was the critical point. Further, there was nothing put to the complainant, during a thorough cross-examination, to suggest that she had opportunities to acquire the relevant knowledge by means other than those she had sworn to. There was evidence that she had been to the appellant's house on occasions other than those the subject of her complaints, but nothing was sought to have been made of that. The only specific suggestion put by the defence with respect to this subject was in cross-examination of the complainant's mother. It was suggested that at some time another person, who lived in the same area as the complainant and her mother, had borrowed from the appellant "Deep Throat" and "Sexual Pursuit"; however, no evidence to support that suggestion came out.

Although there were certainly possibilities of fabrication of the allegedly corroborative evidence here, as there were in Kerim, they may have seemed to a reasonable jury not to be very plausible. It does not appear to me, with respect, right to say that the evidence relied on as corroborative must have been rejected if there were any other means whereby the complainant could have acquired the relevant knowledge; so to hold would be inconsistent with Kerim. Further, it must be kept in mind that there is good authority for the proposition that evidence may be corroborative, although it does not point unequivocally in the direction of an inference that the accused is guilty. Familiar examples of this proposition are Berrill [1982] Qd.R. 508, holding that facial injury which could have been caused by circumstances other than those sworn to by a rape complainant may be corroborative on the issue of consent, and the cases holding that a distressed condition observed shortly after the time at which, according to a complainant, she was raped, may be corroborative. The notion that evidence giving rise to competing inferences may qualify was affirmed by Macrossan J in Stratford and McDonald [1985] 1 Qd.R. 361 at 366, cited with approval in McK [1986] 1 Qd.R. 476 at 480. The principle was discussed more elaborately in Kerim, especially at pp. 455, 456, per McPherson J. The Queensland authorities, beginning with the statement in Stratford and McDonald to which I have referred, holding that evidence is not excluded as corroboration simply because it is consistent with both the prosecution and the accused's case, were approved by the New South Wales Court of Criminal Appeal in Kalajzich (1989) 39 A.Crim.R. 415, where the Court referred to:

"...the views expressed in the cases which we have approved, especially those in Queensland, in relation to evidence which, whilst not entirely neutral, is nonetheless somewhat equivocal and is not necessarily inconsistent with evidence adduced for the accused..." (434)

Then in Zorad (1990) 19 N.S.W.L.R. 91, that Court after referring to the Queensland

cases and to Kalajzich, said that the corroborative evidence:
"...even though it may have a certain consistency with both versions... must

nevertheless be capable of being regarded as being more consistent with guilt than innocence, it must possess some independent thrust and not be intractably neutral in its effect".

Here, innocent explanations of the complainant having the knowledge she said she acquired in a certain way are available; equally, a complainant who is distressed shortly after the time when she claims to have been assaulted may in truth be distressed for some other reason than that she has sworn to. Nevertheless, it was in my opinion proper for the primary judge to put the matters listed above before the jury as potentially corroborative; their cumulative effect was sufficient to merit the jury's consideration of them. I do not think it was essential for the judge to dissect out an aspect or aspects of this collection of evidence for the purpose of excluding it or them from the jury's consideration.

It is worthy of notice that in Zorad the Court of Criminal Appeal thought it to be:

"...better...for the judge simply to tell the jury that they may consider whether the specific evidence which he identifies amounts to corroboration...without telling them of his ruling that it is capable of doing so".

There is no doubt much to be said for that practice, which has the advantage of leaving the evidence to the jury as posing a factual problem for them - as it does - without thus being made aware that the judge leaving it to them necessarily involves his or her having formed a view about its strength. The practice which under present doctrines is supposed to be adopted, under which the judge picks out for the jury, perhaps from a considerable mass of evidence, those parts which are ruled to be capable of corroborating, has obvious disadvantages which one would hope would eventually attract the legislature's attention (see English Law Commission Working Paper 115 pp. 49-50). If even on one point the judge's direction as to what is potentially corroborative is held to be erroneous, the verdict may be vitiated.

It sometimes tends not to be sufficiently stressed that ultimately the question whether evidence is corroborative, as opposed to being merely "supporting" evidence or something less, is a matter for the jury. Even if the judge would not himself regard the evidence as in fact corroborating the Crown case, it may well be proper for it to be left to the jury for them to form their opinion on the point. That process will often involve, as it does here and it did in Kerim, judgments about the likelihood of a complainant having taken steps to arrange matters so that potentially corroborative evidence was available, and other purely factual issues. What the Code obliges the judge to do is not to decide whether the evidence is corroborative, but to:

"...warn the jury of the danger of acting on [the testimony of one witness] unless they find that it is corroborated in some material particular by other evidence implicating [the accused]" (s. 210)

Under the general law the judge is not to entrust the jury with that task unless the relevant evidence is capable of being corroborative, but it is necessary to be careful not to expand the judicial role in determining that preliminary issue, so as to trespass upon that which the Code allocates to the jury; there is a risk, as has been pointed out, of judicial endorsement of evidence as corroborative making the jury think the identified evidence is especially weighty.

It must be accepted, since Kerim, that proving that a complainant has acquired special knowledge consistent with her evidence of the alleged offence, and that there is good ground for thinking she acquired it during the commission of the offence and not otherwise, may be corroborative. It will often, in such cases, be necessary to rely to some extent on the complainant's evidence, in support of the necessary element of the lack of access to the relevant knowledge by means other than those alleged. Here,

there was evidence which was capable of being corroborative, in my respectful opinion; I would not, on reading the record, have regarded it as having any considerable corroborative strength, but I agree with the course the learned trial judge took in leaving it to the jury to determine whether it was corroborative.

I would dismiss the appeal.

There was also an application for leave to appeal against sentence. The applicant's age is 42 years and he has a substantial criminal record, the most common offences being what seem to be relatively minor break and enters and the like. I note that since 1974, when the applicant was sentenced to 12 months imprisonment on four charges of burglary and stealing, he has been sentenced to prison on only one occasion, in 1979 when he received 1 month's imprisonment for handling stolen goods. In 1983 offences of dishonesty produced 3 years probation and he was ordered to undertake medical psychiatric and psychological treatment.

There was a plea of not guilty and there is nothing to suggest remorse; the applicant gave no evidence at his trial. It was said on his behalf after conviction that he had a sexual dysfunction problem involving difficulty in getting erections; it was said by his counsel, perhaps by way of excuse, that there was some evidence of his having injected himself with a hormone "on the Sunday", presumably meaning the Sunday before the offences were committed.

The applicant was described by his counsel as being a person who receives a disability pension for a personality disorder, and counsel said on his instructions that it developed because of mistreatment when he was young. Counsel said the applicant had "basically never worked".

The sentencing judge did not regard the criminal convictions as particularly relevant, but it appears to me that they have some bearing upon the applicant's general character. His Honour was influenced by what he regarded as the lack of remorse or sympathy for the child.

His Honour imposed a sentence of 2½ years imprisonment. There is now a considerable volume of authority, in this Court, from which deductions may be made as to the proper level of sentence in cases of this kind. The principal matters in the applicant's favour are that there was no suggestion that the complainant had suffered any particular harm from the incidents, that there was no previous similar offence in his record and, somewhat more doubtfully, the suggestion that his behaviour may have been influenced by a hormone which was taken. The penalty imposed appears in the circumstances to be a substantial one; nevertheless, it could not be said to be manifestly excessive and I would not alter it.

In my view the application for leave to appeal against sentence should be

dismissed.