Reference of a Question of Law pursuant to the Criminal Code s 693A (Reference No 1 of 1999)

[1999] WASCA 53

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   COURT OF CRIMINAL APPEAL

CITATION: Reference of a Question of Law pursuant to the Criminal Code s 693A (Reference No 1 of 1999) [1999] WASCA 53

CORAM:   KENNEDY J

IPP J
WALLWORK J

HEARD:   13 MAY 1999

DELIVERED          :   15 JUNE 1999

FILE NO/S:   CCA 19 of 1999

MATTER                :Reference of a Question of Law pursuant to the Criminal Code s 693A

Catchwords:

Criminal law and procedure - Prosecution reliant upon uncorroborated evidence of a child - Direction that children do fantasise - Whether direction fell within prohibition in s 106D of the Evidence Act 1906

Legislation:

Evidence Act 1906, s 106D

Result:

Direction infringed s 106D of the Evidence Act 1906

Representation:

Counsel:

Acting State Director of Public Prosecutions     :      Mr R E Cock QC & Mr P D Yovich

M:      Mr J D Allanson

Solicitors:

Acting State Director of Public Prosecutions     :      Acting State Director of Public Prosecutions

M:      Cannon Bowden & Co

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

Longman v The Queen (1989) 168 CLR 79

R v FAR [1996] 2 Qd R 49

Case(s) also cited:

B v The Queen (1992) 175 CLR 599

Bromley v The Queen (1986) 161 CLR 315

BRS v The Queen (1997) 191 CLR 275

Carr v The Queen (1988) 165 CLR 314

Crofts v The Queen (1996) 186 CLR 427

Duke v The Queen (1989) 180 CLR 508

Jones v The Queen (1997) 191 CLR 439

McKinney v The Queen (1991) 171 CLR 468

Pollitt v The Queen (1992) 174 CLR 558

Question of Law No 1 of 1993 (1993) 59 SASR 214

R v MacDonald (1995) 84 A Crim R 508

R v Robinson, unreported; SCt of Qld; 20 March 1998

1. KENNEDY J: On 8 December 1998, "M" was acquitted by a jury on each of two counts in an indictment. The first count was of having sexually penetrated K, a child under the age of 13 years, and the second was of having indecently dealt with K, a child under the age of 13 years. At the request of the State Director of Public Prosecutions, a question of law which had arisen at the trial was referred to the Court of Criminal Appeal pursuant to s 693A of the Criminal Code.  The question so referred was:

   "Does s 106D of the Evidence Act 1906 prohibit the giving of a direction to a jury in the following terms:

   'Experience has shown, and you may think that this is a matter of common sense but experience has shown that the recollection of events occurring in childhood is frequently erroneous and liable to distortion for a number of reasons.  Children do fantasise.  The report to Mr Mathies followed a talk to children about the dangers of molestation and at a time when [K] was growing up.  You bear in mind these considerations but I warn you as a matter of law you must scrutinise the evidence of [K] very carefully.  While you are entitled to convict on his evidence, unsupported as it is by any independent evidence, I warn you that it would be dangerous to convict [M] on that evidence alone, on that unsupported evidence.'  "

2. Section 50 of the Evidence Act 1906 provides:

   "50(1)In this section "corroboration warning" in relation to a trial means a warning to the effect that it is unsafe to convict a person who is being tried on the uncorroborated evidence of one witness.

   (2)On the trial of a person on indictment for an offence -

   (a)the judge is not required by any rule of law or practice to give a corroboration warning to the jury in relation to any offence of which the person is liable to be convicted on the indictment; and

   (b)the judge shall not give a corroboration warning to the jury unless the judge is satisfied that such a warning is justified in the circumstances."

3. Section 50 replaced the former s 36BE of the Evidence Act.

4. By s 106D of the Evidence Act, inserted in 1992, it is provided:

   "106DIn any proceeding on indictment for an offence in which evidence is given by a child, the judge is not to warn the jury, or suggest to the jury in any way, that it is unsafe to convict on the uncorroborated evidence of that child because children are classified by the law as unreliable witnesses."

5. The purpose of s 106D was succinctly expressed by the then Attorney General, the Hon J M Berinson, in his Second Reading Speech in the Legislative Council:

   "Currently, judges may issue a warning to the jury when young children give evidence on oath. This warning is to the effect that because the witness is a child his or her evidence is less reliable than an adult's. Proposed new section 106D will prohibit warnings on that generalised basis. However, judges will retain the ability to warn juries about the reliability of the evidence of a particular child witness who has appeared in court."

6. Section 106D was inserted into the Act after the decision of the High Court in Longman v The Queen (1989) 168 CLR 79. In Longman's case, the High Court held that the former s 36BE and, it would seem necessarily to follow, the present s 50 of the Evidence Act, did not preclude the giving of a warning about the evidence of a particular witness where that warning was justified by the circumstances of the case.

7. The passage particularly complained of in the learned trial Judge's direction is:

   "Experience has shown, and you may think that this is a matter of common sense but experience has shown that the recollection of events occurring in childhood is frequently erroneous and liable to distortion for a number of reasons.  Children do fantasise."

8. In directing the jury as he did, the learned trial Judge appears to have followed in large measure a passage in the judgment of McHugh J in Longman's case at 108, in which his Honour set out a suggested form of warning which might have been given in Longman's trial.  The passage

was, however, taken out of a paragraph which essentially was directed to a particular witness. Moreover, s 106D would now seem to prohibit the use of the general words in the paragraph which were said to be based on experience. More importantly, the learned trial Judge added the statement, "Children do fantasise".

1. In my opinion, the passage in the direction set out above infringes s 106D in that it conveys to the jury the suggestion that it is unsafe to convict on the uncorroborated evidence of K because children are classified by the law as unreliable witnesses in that they do fantasise. It should be emphasised, however, that s 106D does not in any respect lessen the need for a warning to be given in relation to an individual child witness where it is necessary to avoid any perceptible risk of a miscarriage of justice arising from the particular circumstances of the case. If a long period of time has elapsed since the alleged offence, or if the credibility of the witness is affected, for example, by inconsistencies in his or her evidence, those matters should be drawn to the attention of the jury. The prohibition in the section is directed to warning juries against suggesting in any way that it is unsafe to convict on the evidence of a child because children constitute a special category of suspect witnesses - see generally Longman's case per Brennan, Dawson and Toohey JJ at 85‑86 and R v FAR [1996] 2 Qd R 49, per Fitzgerald P at 58‑59 and Davies JA at 61.

2. I would answer the question "yes".

3. IPP J:  I have read the reasons to be published by Kennedy J.  I agree with them and his Honour's conclusions.  I have nothing further to add.

4. WALLWORK J:  I agree with the reasons for judgment of Kennedy J.  There is nothing I wish to add.