R v Westropp

[1992] QCA 85

COURT OF APPEAL   [1992] QCA 085

COURT: SUPREME COURT OF QUEENSLAND  CA No 219 of 1991

McPHERSON (1), DAVIES (1) and SHEPHERDSON (2) JJA

Heard: 27 March 1992

Delivered: 29 April 1992

THE QUEEN

v

HUGH EDWARD LEONARD MASSEY WESTROPP

DATE 29:04:1992

CWDS: Criminal trial summing up. Evaluation of witnesses based on interest in outcome of case. Robinson v The Queen (No 2) (1991) 65 ALJR 644 discussed. R v Bateman (1946) 31 Cr App R 106, R v Wilson Court of Criminal Appeal 11 December, 1991 (unreported)

McPHERSON, DAVIES JJA

Hugh Westropp was presented in the District Court at Southport on an indictment containing four counts (nos 1, 2, 4, and 6) charging him with having carnal knowledge by anal intercourse with W, a child under 16 years of age; also three counts (nos 7, 8, and 9) of permitting W to have carnal knowledge of him by anal intercourse; a further count (no 3) of having indecently dealt with W; and, finally, a single additional count (no 5) of having indecently dealt with V, a child under the age of 16 years.  He was found guilty of the offence in count no 5 (indecently dealing with V); and of the offence in count 6 (anal intercourse with W).  The learned trial judge imposed a sentence of imprisonment for three months, and placed him on probation for two years.

Westropp now appeals against his conviction in respect of counts 5 and 6.  The notice of appeal formally includes an appeal against sentence; but no application for leave to appeal against sentence was made at the hearing before us; and the appeal against sentence is accordingly dismissed.  As regards conviction, Mr Barakin of counsel for the appellant was granted leave to amend the notice of appeal by omitting the grounds it contained and inserting in their place the single ground that the learned trial judge had erred in summing up in directing the jury that "interest" was a factor that could be taken into account in assessing the evidence of a witness.

The events giving rise to the alleged offences occurred between February 1989 and May 1990 at Labrador on the Gold Coast.  The appellant was then aged 57 or 58 years of age, and earned a living as a collector of aluminium cans for recycling.  There is evidence that he had psychiatric problems.  He met W, then aged 13, when the latter first came to live on the Gold Coast.  W was a truant from school and, according to the Crown case, the appellant invited him to his house.  W testified that during the period in question acts of anal intercourse (counts 1, 2, 4, 6, 7, 8 and 9) took place between them, as well as an act of masturbation that is the subject of count 3.  Later, W introduced V to the appellant, and he too visited the appellant's house, where the act of indecency (count 5) was alleged to have occurred.  It was the other of the two offences of which the appellant was found guilty.

At the trial the complainant youths gave evidence as to matters constituting the offences charged.  The appellant also gave evidence, in which he denied having done the acts alleged.  In a careful summing up, the trial judge cautioned the jury about the dangers of accepting the uncorroborated evidence of witnesses like the two youthful complainants in a case involving charges of sexual offences.  Of the eight offences alleged to have involved W, the only charge of which there was any corroborative evidence was count 6, charging anal intercourse by the appellant on 14 May 1990.  That was the day on which the two complainants were found in a dazed condition, and W was taken to hospital.  On medical examination his underpants and buttocks were found to be stained with faecal matter; his anus readily dilated; and there was a 1 cm fissure in the perianal region.  The evidence of the two complainants was that they had been drinking rum at the appellant's house that day, and that each had consumed six tranquilliser tablets given to them by the appellant.

The charge of indecently dealing with V related to an occasion when the appellant was alleged to have touched the complainant's naked bottom.  V testified that he then had his underpants down and was lying on top of a woman named Vickie attempting to have sexual intercourse with her.  She was a wretched derelict who from time to time stayed at the appellant's house.  On the occasion in question she was drugged, drunk, asleep, or unconscious.  The appellant denied he had encouraged V to have sexual intercourse with her, or that he had touched V on the buttocks; but he admitted that V was lying on top of Vickie, and it must be that, taken with other matters, the jury were persuaded that V was telling the truth about this incident.

There is no complaint about the summing up in any respect apart from the judge's comments on the matter of the interest of the appellant in the outcome of the case.  What was said on this subject appears at 298‑299 of the record, and is as follows:

"Now it is customary for judges to give advice to juries to help them in making their assessments of witnesses.  In many ways such advice is probably unnecessary because as adult members of the community you will have often, in the past, made judgments about whether or not you believed something that you were being told.  When you make your assessment of the witnesses in this case you should apply the same types of tests that you would apply in your everyday life.  You may accept everything a particular witness has told you; you may accept absolutely nothing of what a particular witness has told you; you may accept part of a witness's evidence and reject the rest.  You should bear in mind that some witnesses may be quite honest, but nonetheless mistaken in their recollection.  Some witnesses may be, you think, dishonest or untruthful in some of what they tell you, but nonetheless you may be prepared to accept and act on other parts of their evidence.  You should consider whether a witness has any particular interest in the outcome of the proceedings.  If a witness has such an interest, that does not mean, of course, that you reject their evidence.  It is simply a factor for you to bear in mind when making up your minds whether to accept any or all of that witness's evidence.  Now, obviously, the accused has great interest in the outcome of those proceedings.  It would be unthinkable if for that reason alone you rejected his evidence.  If juries did that there would be absolutely no point in any accused person ever giving evidence.  No doubt these complainants, W and V, have an interest in having their allegations justified by your returning verdicts of guilty.  Again, you would not reject their evidence simply because of that fact alone, otherwise no one is ever going to come forward to make a complaint.  It is simply a factor that you should bear in mind when assessing the witnesses you have heard.  Bear in mind, ladies and gentlemen, that not everyone has equal ability when called upon to give evidence ..."

Mr Barakin submits that these passages should be read in conjunction with what was said by the judge earlier in the summing up (at 295):

"Now, as would be perfectly obvious to all of you, the charges in this case are very serious indeed.  The consequences to any person convicted of offences of this nature are likely to be serious.  Those consequences may not only involve punishment by the Court, but a conviction could seriously affect a person's job, or career prospects, or have other impacts on a person's life.  For this reason, in our system of criminal justice, no person should ever be convicted of an offence unless the jury is satisfied to a very high standard of his guilt."

For the sake of completeness, and because of the ground of appeal relied upon, it is appropriate also to set out the following passage that appears near the end of the summing up (at 309 of the record):

"Now, what does each party say to you about this case?  I am not going to cover all the arguments that were advanced by the learned Crown prosecutor and the learned defence counsel.  They have made their submissions succinctly and they have put what they had to put far better than I could hope to do so in my summing up.  In very general terms the defence says to you you would not be prepared to find that the evidence of W and V is so cogent, so believable, that you would find yourselves satisfied beyond reasonable doubt of the accused's guilt.  Are they telling the truth? Both boys knew they would be in strife for wagging school; consuming alcohol; taking the pills.  They had to deflect the blame from themselves in some way on to someone else to save their own skins, and that is why they have come up with these allegations.  They had motive to lie, submits the defence, and indeed in the case of W, the defence suggests that there was a second motive that he had for telling lies, that he had, in fact, procured his friend V, to have some form of sexual relations with Vickie."

The question for decision on appeal is whether these passages in the summing up, and particularly the portion of the first extract beginning "You should bear in mind ...", contravene the ruling of the High Court of Australia in Robinson v The Queen (1991) 65 ALJR 644, concerning the limits of a proper direction to the jury in relation to the interest in the outcome of the case of an accused person who gives evidence at his trial. In R v Roach we had occasion to consider the reasons for judgment of their Honours in Robinson, together with the views expressed about those reasons by the Court of Criminal Appeal in two later decisions of R v Wilson and R v Allen. It was the opinion of this Court in R v Roach that the reasoning in Robinson was not to be considered as absolutely precluding any reference in summing up to the matter of the interest of witnesses in the outcome of the trial. Rather we thought that what was stigmatised by the High Court in Robinson was a direction that instructed the jury to scrutinise the testimony of the accused more closely than that of other witnesses on the ground that he or she had the greatest interest in the outcome of the case. The underlying objection to such a direction lies in its tendency to single out the testimony of the accused as in some way suspect or less reliable than that of other witnesses with a lesser or no such interest in the outcome. It results in a summing up that is unfair for the reason that deprives an accused person who gives evidence of the benefit of the presumption of innocence that the law has established in favour of an accused person in criminal proceedings.

The particular complaint made about the summing up in the present case is that the jury was likely to have connected the passage at 295 with those at 298‑299 dealing with the interest of witnesses.  The earlier passage reminded the jury that "the consequences to any person convicted of offences of this nature are likely to be serious".  The two later passages instructed them to "consider whether a witness has any particular interest in the outcome of the proceedings"; and it also drew attention to the circumstance that "obviously, the accused has a great interest in these proceedings".  We consider it unlikely that the jury would have made the suggested connection between the earlier and the two later sets of observations.  Apart from their separation in the summing up in point of place and time, the first part of a direction was concerned to emphasise "the very high standard" of satisfaction that the jury was required to feel before any person could ever be convicted of a criminal offence.  It dealt in some detail with the standard of proof, before passing on to the various other matters such as the need for unanimity in verdict, the nature of evidence and its identity; the evidentiary status of photographic and other exhibits; of counsel's addresses; and of questions put in cross‑examination.  The matter of competing inferences was discussed next, before coming to the quality of the evidence and the methods of assessing the credibility of witnesses.  It was only in the course of directions on the latter topic that his Honour made the observations complained of.

Those observations were open to criticism on two possible grounds.  The first is that they suggest there is a duty on the part of the jury to consider the interest of a witness ("You should consider whether a witness has any particular interest in the outcome ...").  The second is the emphasis placed on the fact that the accused has "a great interest" in the outcome.  Considered in isolation, they might, consistently with the decision in Robinson, readily be considered fatal to the integrity of the summing up.  But they are far from standing alone.  The first is followed by the specific instruction that, if a witness has such an interest, "that does not mean, of course, that you reject their evidence.  It is simply a factor for you to bear in mind when making up your minds whether to accept any or all of that witness's evidence".  The second observation referring to the "great interest" of the accused in the outcome would be fraught with greater potential for injustice to the accused were it not that it is immediately followed by the remark that "it would be unthinkable if for that reason alone you rejected his evidence.  If juries did that there would be absolutely no point in any accused person ever giving evidence".  His Honour then proceeded to add that the complainants W and V no doubt had an interest in having their allegations justified.

The firm impression gained from reading those passages in context is that, although the particular interest of the appellant in the outcome may perhaps have been unduly stressed, the explicit warnings that followed immediately in each instance were more than sufficient to offset any prejudice that might otherwise have been engendered in the minds of the jury about the evidentiary value of the testimony of the appellant in the trial.  Without some introductory explanation of the matter, it would not have been possible to caution the jury against misusing the element of interest to discredit the evidence of the accused.  The case was not one in which it is anywhere implied that, because of his interest, the evidence of the accused was to be singled out for unfavourable comparison with that of the complainants.  In the final extract from the summing up set out above, his Honour was careful to remind the jury of the strictures on the evidence of the complainants that were advanced by the defence, including the various possible motives they had for telling lies.

When all these matters are considered in the context of the whole summing up, we do not think it can be said that the directions of the trial judge contravened the principles laid down in Robinson.  The jury were left in no doubt about the frailties of the Crown case or of the evidence of the complainants relied on to support it.  The verdicts themselves show the extent to which they understood and gave effect to the judge's directions.  Verdicts of not guilty were returned in respect of each of the seven counts as to which the prosecution relied solely on the uncorroborated testimony of W; the verdict of guilty on count 6 was the only one where his testimony was confirmed by independent evidence that confirmed it in the material and, as it happens, cogent particulars of the condition of his person and his underclothing.  And although there was no corroboration of the comparatively minor offence found to have been committed against V, there was enough circumstantial detail in the appellant's own evidence at the trial to support the testimony of the complainants that a suitable opportunity for committing that offence had been presented to the appellant in his own house on the occasion when V was lying on top of Vickie with his underpants down.  Far from discarding the presumption of innocence, the verdicts demonstrate with singular clarity that the jury both understood and gave full effect to that fundamental presumption.

It follows in our view that the ground of appeal, which by virtue of the amendment became the only ground, ought not to succeed, and that the appeal against conviction should be dismissed.

SHEPHERDSON J

I have had the benefit of reading the judgment prepared by McPherson JA.

I accept what he has written as to the relevant evidence and the parts of the trial judge's summing up.

I differ from McPherson JA as to the outcome of the appeal against the two convictions.  My reasons for so differing are essentially the same as those set out in my judgment in R v Roach (CA No 309 of 1991).

In my view, the directions in the present case transgressed the decision in Robinson v The Queen (No 2) (1991) 65 ALJR 655 because the learned trial judge directed them to evaluate evidence on the basis of the interest of witnesses (including the appellant) in the outcome of the case. Once such a basis for evaluation is suggested to a jury in a case where an accused person has given evidence even though the accused person's interest be not mentioned at all, one can logically except any jury to readily conclude that the accused person has the greatest interest in the outcome of the case. Once that situation is reached the accused person is disadvantaged for the reasons given by the High Court in Robinson.

I would allow the appeal, set aside the convictions but not order a new trial.

ORDER:Appeal against conviction dismissed.

Application for leave to appeal against sentence refused. (MAJORITY)

1. That the appeal be allowed.

2. That the conviction be quashed.

3. Order that there be no new trial. (Shepherdson J.)

Representation:

Counsel for the appellant:     Barakin

Solicitors for the appellant:    Legal Aid Office

Counsel for the Crown:         Butler

Solicitors for the Crown:       Director of Prosecutions