ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram   :YEATS DCJ
File Number            :  IND 1654 of 2002

Catchwords:

Criminal law and procedure - Sexual offences - Delay in complaining until two years after alleged offences - Complainant aged seven or eight - Whether Longman direction required - Ruling that direction not required - No corroboration - No specificity in respect of dates and times of offences - Whether Judge erred in refusal of leave to crossexamine complainant's mother as to prior offences committed against the complainant - Direction required in case of delay in making complaint - Direction required in respect of allegation that complainant had a motive to falsely accuse appellant - Whether there was a miscarriage of justice

Legislation:

Criminal Code (WA), s 329(4) and s 329(10)(a)

Evidence Act 1906 (WA), s 36BC, s 36BD and s 50

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr T N Cullity
Respondent: Mr D Dempster

Solicitors:

Appellant: Jack Flanigan
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Christophers v R [2000] WASCA 308; (2000) 23 WAR 106
Cook v R [2000] WASCA 78; (2000) 22 WAR 67
Crampton v R (2001) 206 CLR 161
Crisafio v R [2003] WASCA 104; (2003) 27 WAR 169
Crofts v R (1996) 186 CLR 427
Doggett v R (2001) 208 CLR 343
Kailis v R [1999] WASCA 29; (1999) 21 WAR 100
Latham v R [2000] WASCA 57
Liberato v R (1985) 159 CLR 507
Longman v R (1989) 168 CLR 79
MWR v R [2003] WASCA 236
Palmer v R (1998) 193 CLR 1
Tanner v R [2001] WASCA 60

Case(s) also cited:

Allegretta v R [2003] WASCA 17
Christophers v R [2003] WASCA 214
James v R [2000] WASCA 100

MALCOLM CJ: This is an appeal against conviction. On 24 October 2003, the appellant was convicted in the District Court at Perth on two counts being counts 1 and 2 on an indictment which charged a total of six counts. The first was one of indecently dealing with B, a de facto child under the age of 16 years by touching her in the genital area. The second was indecently dealing with B in the same manner. Both counts alleged offences against s 329(4) of the Criminal Code.
In the end result, the appellant was found guilty of counts 1 and 2 on the indictment, but the jury were unable to agree on a verdict in respect of counts 3, 4, 5 and 6. The jury were then discharged. The two offences of which the appellant was convicted were alleged to have been committed on the…

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 RBK v The Queen

Details

AGLC: RBK v The Queen [2004] WASCA 216
Case: [2004] WASCA 216
Decision Date: 29 SEPTEMBER 2004

CaseChat Overview and Summary

In this case, the appellant, referred to as RBK, was convicted of various sexual offences against a complainant who was aged seven or eight at the time of the alleged offences. The dispute between the appellant and the Crown centred on the admissibility of certain evidence and the instructions given to the jury by the trial judge. The case was heard in the Supreme Court of Western Australia. The appellant contested the trial judge's refusal to grant leave to cross-examine the complainant's mother about a previous sexual act involving the complainant, arguing that such evidence was relevant to the complainant's credibility and had substantial relevance to the facts in issue. Additionally, the appellant argued that the trial judge should have given a Longman direction to the jury due to the delay in the complainant making the complaint and the potential for the complainant to have a motive to falsely accuse the appellant.

The court was required to decide whether the trial judge erred in refusing to grant leave to cross-examine the complainant's mother about prior sexual offences involving the complainant, as well as whether the trial judge should have given a Longman direction to the jury. The Longman direction is a special direction given to a jury in cases where there is a significant delay in the complainant making a complaint of a sexual offence, which may lead the jury to draw an adverse inference against the credibility of the accused. The court needed to consider the relevance and probative value of the evidence sought to be adduced by the defence, as well as the potential distress, humiliation or embarrassment that the complainant might suffer as a result of its admission, in accordance with section 36BC of the Evidence Act 1906 (WA).

The court found that the trial judge did not err in refusing to grant leave to cross-examine the complainant's mother about the previous sexual offence, as the evidence did not have substantial relevance to the facts in issue and the probative value of the evidence did not outweigh the potential distress, humiliation or embarrassment that the complainant might suffer. The court also found that the trial judge was not required to give a Longman direction to the jury, as the delay in the complainant making the complaint did not necessarily mean that the complainant had a motive to falsely accuse the appellant, and there was no evidence to suggest that the complainant had been influenced by external factors. The court held that there was no miscarriage of justice in the trial and the convictions were safe and satisfactory.

In conclusion, the court upheld the convictions against the appellant, finding that the trial judge did not err in refusing to grant leave to cross-examine the complainant's mother about a previous sexual offence and that a Longman direction was not required in this case. The court found that the evidence sought to be adduced did not have substantial relevance to the facts in issue and the probative value of the evidence did not outweigh the potential distress, humiliation or embarrassment that the complainant might suffer. The court held that there was no miscarriage of justice in the trial and the convictions were safe and satisfactory.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Section 36BC of the Evidence Act1906 (WA) provides that:"36BC. Sexual experience of complainant, evidence of (1)In proceedings for a sexual offence, evidence relating to the sexual experiences of the complainant, being sexual experiences of any kind, at any time and with any person, not being part of the res gestae of the proceedings, shall not be adduced or elicited by or on behalf of a defendant unless leave of the court has first been obtained on application made in the absence of the jury (if any).(2)The court shall not grant leave under subsection (1) unless satisfied that - (a)what is sought to be adduced or elicited has substantial relevance to the facts in issue; and(b)the probative value of the evidence that is sought to be adduced or elicited outweighs any distress, humiliation or embarrassment which the complainant might suffer as a result of its admission." It was contended on behalf of the appellant that the learned trial Judge should have granted counsel for the appellant at the trial leave to cross‑examine the complainant's mother pursuant to s 36BC in respect of a previous and unrelated sexual act involving the complainant. Consequently, so it was contended, the convictions were unsatisfactory because those questions had substantial relevance to the facts in issue as touching on the credibility of the complainant and the probative value of the evidence outweighed any distress, humiliation or embarrassment that the complainant might suffer. On 26 February 2003, the complainant's evidence was taken by way of a video link from a remote room. The trial itself commenced on 23 October 2003 before Yeats DCJ and a jury. After the jury had been empanelled, counsel for the appellant sought a direction from the trial Judge regarding questions he wished to put to the complainant's mother regarding the fact that the complainant had been the victim of indecent dealing by one Cook and had given evidence against him. Yeats DCJ queried the relevance of such evidence. Counsel for the appellant submitted that the fact that the complainant had previously been a victim and had received counselling for the trauma she had suffered would have made it more likely that she would know that a complaint should be made. Counsel for the prosecution opposed the application in the context of s 36BC(1) of the Evidence Act which prohibits a defendant from eliciting evidence "relating to the sexual experience of the complainant, being sexual experiences of any kind", without the leave of the Court. Section 36BC(2) provides that leave shall not be granted unless the evidence has substantial relevance to the facts in issue, and the probative value of the evidence outweighs any distress, humiliation or embarrassment which the complainant might suffer as a result of its commission. Counsel for the prosecution also submitted that defence counsel should not be permitted to obtain the evidence from the complainant's mother, having failed to raise the matter with the complainant. The circumstances in the earlier case (namely, Cook v R [2000] WASCA 78; (2000) 22 WAR 67) were said to have been very different, involving offences committed by a 58‑year‑old man who was acting as the complainant's babysitter at the time and who had no father figure relationship with the complainant.

Decision

Reasons for decision

MURRAY J

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Ratio Decidendi

Legal Principle Established

Established by: MURRAY J

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Citations

AGLC Citation

RBK v The Queen [2004] WASCA 216

Most Recent Citation

Carroll v The State of Western Australia [2004] WASCA 254

Cases citing this decision · 10 of 10 shown

EPD v The State of Western Australia
[2011] WASCA 264

…stralia [2007] WASCA 220; (2007) 177 A Crim R 69 R v Ireland (1970) 126 CLR 321 R v Williams [1999] NSWCCA 9; (1999) 104 A Crim R 260 RBK v The Queen [2004] WASCA 216 RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 Scriva v The State of Western Australia [2010] WASCA 89 SKA v The Queen [2011] HCA 13; (2011) 85 ALJ…
TJ v The Queen
[2009] NSWCCA 257

…ylor (No 2) (2008) 18 VR 613 R v Taylor [2003] NSWCCA 194 R v WRC [2002] NSWCCA 210; (2002) 130 A Crim R 89 R v WSP [2005] NSWCCA 427 RBK v The Queen [2004] WASCA 216 Robinson v R [2006] NSWCCA 192; (2006) 162 A Crim R 88 Sepulveda v The Queen [2006] NSWCCA 379; (2006) 167 A Crim R 108 Sheehan v R [2006] NSWCCA 233…
FGC v The State of Western Australia
[2008] WASCA 47

…999] 3 VR 113 R v Miletic [1997] 1 VR 593 R v Mullins (1848) 3 Cox CC 526 R v Osenkowski (1982) 30 SASR 212 R v Spencer [1987] AC 128 RBK v The Queen [2004] WASCA 216 Reference of a Question of Law (No 1 of 1999) [1999] WASCA 53; (1999) 106 A Crim R 408 Robinson (1998) 102 A Crim R 89 Robinson v The Queen [1999] HC…
Donaldson v The State of Western Australia
[2007] WASCA 216 Para 6

…In RBK v The Queen [2004] WASCA 216, a child sexual offence case, the trial judge directed the jury in accordance with s 36BD, set out the complainant's evidence as to why there was a delay of two to three years before her complaint, and then said to the jury: It's a matter for you to look at all the evidence to co…
Sheehan v Regina
[2006] NSWCCA 233

…n [2003] NSWCCA 259 R v DBG (2002) 133 A Crim R 227 Christophers v The Queen (2000) 23 WAR 106 Crisafio v The Queen (2003) 27 WAR 169 RBK v The Queen [2004] WASCA 216 Angliss v The State of Western Australia [2005] WASCA 162 R v GS [2003] NSWCCA 73 R v WRC (2002) 130 A Crim R 89 R v Stewart (2001) NSWLR 301 Festa v…
JJB v R
[2006] NSWCCA 126

…P [2005] NSWCCA 427 R v DGB (2002) 133 A Crim R 227 Christophers v The Queen (2000) 23 WAR 106 Crisafio v The Queen (2003) 27 WAR 169 RBK v The Queen [2004] WASCA 216 Angliss v The State of Western Australia [2005] WASCA 162 R v WSP [2005] NSWCCA 427 R v JBV [2002] NSWCCA 212 Dyers v The Queen (2002) 210 CLR 285 R…
R v WSP
[2005] NSWCCA 427 Para 1

…A Crim R 227 at [28]; Christophers v The Queen (2000) 23 WAR 106 at [37]; Chrisafio v The Queen (2003) 27 WAR 169 at [1], [30]-[31]; RBK v The Queen [2004] WASCA 216 at [34], [99]; Ada v Western Australia [2005] WASCA 162 at [15].) However, in view of my conclusions below, it is unnecessary to consider this furthe…
Angliss v The State of Western Australia
[2005] WASCA 162

…The Queen (2000) 206 CLR 161 Crisafio v The Queen (2003) 27 WAR 169 Longman v The Queen (1989) 168 CLR 79 R v BWT (2002) 54 NSWLR 241 RBK v The Queen [2004] WASCA 216 Nil…
A Child v The State of Western Australia
[2005] WASCA 91

…es (1983) 8 A Crim R 377 Murray v The Queen (2002) 189 ALR 40 Nevermann v The Queen (1989) 43 A Crim R 347 R v Lavell [2002] WASC 200 RBK v The Queen [2004] WASCA 216…
Carroll v The State of Western Australia
[2004] WASCA 254 Para 13

…Malcolm CJ reiterated his above remarks in RBK v R [2004] WASCA 216 at [34], noting in that case that in relation to the Longman ground, the issue was whether the trial Judge was in error in considering there was no perceptible risk of a miscarriage of justice by reason of delay in the particular circumstances of t…

View all 10 citing cases →

Cases cited in this decision · 23 of 23 shown

R v Davies
[2024] NSWSC 786 Para 4

…hat the relevant law was as follows: "107Mr Holdenson referred us to R v Omarjee (1995) 79 A Crim R 355, R v Miletic [1997] 1 VR 593 and R v Davies (1985) 3 NSWLR 276, in which it was said that such a direction - that delay was a fact which the jury could take into account in evaluating the complainant's testimony -…
Cook v R
[2010] NZCA 87 Para 6

…omplainant's mother, having failed to raise the matter with the complainant. The circumstances in the earlier case (namely, Cook v R [2000] WASCA 78; (2000) 22 WAR 67) were said to have been very different, involving offences committed by a 58‑year‑old man who was acting as the complainant's babysitter at the time…
MWR v The Queen
[2003] WASCA 236 Para 5

…t of the tailoring of a Longman direction, reference was made by counsel for the appellant to the decision of the Court of Criminal Appeal in MWR v R [2003] WASCA 236, in which it was contended that the trial Judge in that case had failed to discharge the obligation of law to give a warning of the kind envisaged by…
Christophers v The Queen
[2003] WASCA 214 Para 1

…2003, in which the relevant authorities were discussed. In addition, reference may be made to the even more recent case of Christophers v The Queen [2003] WASCA 214; 12 September 2003, where the judgment of the Court was that of Hasluck J, with whom Murray and Roberts-Smith JJ agreed. 28.The occasion to give the wa…
Crisafio v The Queen
[2003] WASCA 104 Para 1

…ed in later decisions of the High Court and in decisions of this court, culminating perhaps in the recent unreported decision, Crisafio v The Queen [2003] WASCA 104; 20 May 2003, in which the relevant authorities were discussed. In addition, reference may be made to the even more recent case of Christophers v The Q…
Allegretta v The Queen
[2003] WASCA 17 Para 8

…in Christophers v The Queen [2000] WASCA 308; (2000) 23 WAR 106 was not referred to in the recent decision of this Court in Allegretta v The Queen [2003] WASCA 17. In my opinion, the summary of the relevant law by Owen J in Christophers at [37] set out in eight propositions is an accurate statement of the law. In…
Doggett v the Queen
[2001] HCA 46 Para 3

…For present purposes I think it is useful to refer to one such decision only, the decision of the High Court in Doggett v R (2001) 208 CLR 343. In that case, a majority of the Court held that a warning of the danger of conviction was required. It was a sexual assault case involving a delay in complaint which was firs…
Tanner v The Queen
[2001] WASCA 60 Para 10

…ld the jury that they should assess the question of delay in complaining as a matter of credit generally. Such a direction was sufficient: Tanner v R [2001] WASCA 60 at paras [31] – [38] per Malcolm CJ, Anderson J and Stein AJ. As has been seen already, it was made very clear to the jury that they could not convic…
Christophers v The Queen
[2000] WASCA 308 Para 7

…In Christophers v R [2000] WASCA 308; (2000) 23 WAR 106, Owen J, with whom Pidgeon and Ipp JJ agreed, said at [37]: "In my view a number of propositions can be extracted from the judgments in Longman and the discussion about Longman in other cases: 1.The 'Longman direction' is a rule of practice that applies notwit…
Re Ruddock; Ex parte Reyes
[2000] HCA 66 Para 1

…ed with respect to each of the original ground and grounds 1, 2 and 3, there is no substance in ground 4. In this particular context, in Crampton v R (2001) 206 CLR 161 at par [45] Gaudron, Gummow and Callinan JJ (with whom Gleeson CJ agreed) said that: "The trial judge should have instructed the jury that the appell…
Gaulard v The Queen
[2000] WASCA 218 Para 7

…in Longman , the adequacy of the warning in any particular case is not necessarily sensitive to whether that phrase was uttered: Gaulard v The Queen [2000] WASCA 218 at [14]. What must be brought home to the jury is that they need to be 'persuaded of the truth and accuracy of the evidence before they may place rel…
James v The Queen
[2000] WASCA 100 Para 7

…of the testimony given by the witness. 6.There is no prescribed or ritualistic formulation in which the warning is to be delivered: James v The Queen [2000] WASCA 100 at [23]. It must be tailored to the features of the case that have dictated that it be given. This is not surprising given that it arises from the ci…
Cook v The Queen
[2000] WASCA 78 Para 6

…idence from the complainant's mother, having failed to raise the matter with the complainant. The circumstances in the earlier case (namely, Cook v R [2000] WASCA 78; (2000) 22 WAR 67) were said to have been very different, involving offences committed by a 58‑year‑old man who was acting as the complainant's babys…
Latham v The Queen
[2000] WASCA 57 Para 4

…ce or the affirmative rejection of such evidence would not necessarily strengthen the prosecution case: cf Crisafio v R ( supra ); and see Latham v R [2000] WASCA 57; Liberato v R (1985) 159 CLR 507; and Palmer v R (1998) 193 CLR 1. In Liberato ( supra ) at 520 Deane J said: "When a case turns on a conflict betwee…
RPS v The Queen
[2000] HCA 3 Para 5

…nd, the circumstances of the case may suggest that it is preferable for the trial judge to make no comment upon this factual issue: RPS v The Queen (2000) 199 CLR 620 at 637 [41] – [42]. 5. Whether or not any comment is made, the trial judge must take care to ensure that the jury is not left with any impression that…
Suresh v The Queen
[1998] HCA 23 Para 2

…to whether the evidence qualified as evidence of prompt complaint on the principles discussed in Kilby v The Queen (1973) 129 CLR 460 and Suresh v R (1998) 153 ALR 145. Mr Holdenson told us that that was not the basis upon which the evidence was admitted. He told us that the evidence was not objected to because the…
Palmer v the Queen
[1998] HCA 2 Para 4

…arily strengthen the prosecution case: cf Crisafio v R ( supra ); and see Latham v R [2000] WASCA 57; Liberato v R (1985) 159 CLR 507; and Palmer v R (1998) 193 CLR 1. In Liberato ( supra ) at 520 Deane J said: "When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defe…
Crofts v The Queen
[1996] HCA 22 Para 4

…ction and it need hardly be said that it must be given whenever necessary in order to ensure fairness (or, as Dawson J put it in Crofts v The Queen (1996) 186 CLR 427 at 435 "when fairness demanded it"). However, failure to give the direction does not necessarily mean that the trial has miscarried and the verdict mus…
M v the Queen
[1994] HCA 63 Para 4

…necessarily, a ground for rejecting the evidence of the complainant.' 110In my opinion, the law is as it was stated by Gaudron J in M v The Queen (1994) 181 CLR 487 at 514, where her Honour said: 'The presumption discussed in Hawkins' Pleas of the Crown [the presumption against a woman arising from failure to make pr…
Longman v The Queen
[1989] HCA 60 Para 3

…In Longman v R (1989) 168 CLR 79 at 86 – 87, it was made clear by Brennan, Dawson and Toohey JJ that the warning to which s 50 is directed is that it is generally unsafe to convict an accused of any sexual offence on the uncorroborated evidence of the alleged victim, or on the uncorroborated evidence of the victim o…
Liberato v The Queen
[1985] HCA 66 Para 4

…n of such evidence would not necessarily strengthen the prosecution case: cf Crisafio v R ( supra ); and see Latham v R [2000] WASCA 57; Liberato v R (1985) 159 CLR 507; and Palmer v R (1998) 193 CLR 1. In Liberato ( supra ) at 520 Deane J said: "When a case turns on a conflict between the evidence of a prosecution w…
Kilby v The Queen
[1973] HCA 30 Para 2

…re seems to have been no debate as to whether the evidence qualified as evidence of prompt complaint on the principles discussed in Kilby v The Queen (1973) 129 CLR 460 and Suresh v R (1998) 153 ALR 145. Mr Holdenson told us that that was not the basis upon which the evidence was admitted. He told us that the evidenc…
[1999] WASCA 29
[1999] WASCA 29 Para 12

…tion on the part of the defence that the appellant had suffered any forensic disadvantage as a result of the delay which had accrued: cf Kailis v R [1999] WASCA 29; (1999) 21 WAR 100 at 136 – 140 per Malcolm CJ with whom Anderson J agreed at 157.…

Legislation cited in this decision · 1

Evidence Act 1906 (WA)
36BC 2 mentions (from Para 1)