RMC v The State of Western Australia
[2015] WASCA 33
•20 FEBRUARY 2015
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: RMC -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 33
CORAM: McLURE P
BUSS JA
MAZZA JA
HEARD: 2 FEBRUARY 2015
DELIVERED : 20 FEBRUARY 2015
FILE NO/S: CACR 177 of 2014
BETWEEN: RMC
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :KEEN DCJ
File No :IND 505 of 2013
Catchwords:
Application for leave to appeal against conviction of sexual offences - Complainants failed to make prompt complaints - Whether trial judge failed to direct, or inadequately directed, the jury that delay in complaint was relevant to the jury's assessment of each complainant's credibility - Whether trial judge's direction to the jury constituted a miscarriage of justice
Legislation:
Criminal Appeals Act 2004 (WA), s 27
Evidence Act 1906 (WA), s 36BD
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr S B Watters
Respondent: No appearance
Solicitors:
Appellant: Brennan & Co
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427
EPD v The State of Western Australia [2011] WASCA 264
FGC v The State of Western Australia [2008] WASCA 47; (2008) 183 A Crim R 313
Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
Narkle v The State of Western Australia [2011] WASCA 160
McLURE P: I agree with Mazza JA.
BUSS JA: I agree with Mazza JA.
MAZZA JA: This is an application for leave to appeal against conviction.
The appellant was tried in the District Court before Keen DCJ and a jury on an indictment which alleged 17 offences of a sexual nature against four children: N, S, D and E as set out in the table below:
Count
Complainant
Charge
Section of the Criminal Code Act 1913
1 to 4
N
Indecently dealing with a child who the offender knew to be his lineal relative
s 329(4)
5 and 6
S
Sexually penetrating a child who the offender knew to be his lineal relative
s 329(2)
7
D
Indecently dealing with a child over the age of 13 years and under the age of 16 years
s 321(4)
8
E
Indecently dealing with a child who the offender knew to be his de facto child
S 329(4)
9 to 17
E
Sexually penetrating a child who the offender knew to be his de facto child
S 329(2)
On 27 May 2014, the appellant was acquitted of the counts concerning S, but convicted of the remaining 15 counts in respect of N, D and E.
The State's case relied upon the credibility of the alleged victims. The appellant's case was a complete denial of the alleged conduct.
None of the alleged victims made a prompt complaint. The sole proposed ground of appeal alleges a miscarriage of justice as a result of the learned trial judge 'failing to adequately/or at all' direct the jury that the delay in complaint was a matter relevant to each complainant's credibility.
For the reasons which follow, the proposed ground of appeal has no reasonable prospect of succeeding, with the consequence that leave to appeal must be refused and the appeal is to be taken to have been dismissed: s 27 Criminal Appeals Act 2004 (WA).
The evidence at trial
In order to deal with the proposed ground of appeal, it is unnecessary to canvass all of the evidence adduced at trial. It is sufficient for present purposes to briefly outline the evidence of N, D and E and the appellant.
N was born on 22 December 1993. She is the appellant's natural daughter. S is her sister. The appellant and her mother separated in 1999. The offences in relation to N were alleged to have been committed between late 1999 and 2001, when she was aged 6 or 7 years. N testified about an occasion when she was visiting the appellant at his house. He took her into his bedroom and forced her to watch a pornographic movie. The appellant told her to 'copy' what she had seen in the movie (ts 237). N did as she was told. She touched and licked the appellant's penis (counts 1 and 2). The appellant then rubbed N's vagina with his hand (count 3).
On another visit during the same period, the appellant once again took N into his bedroom. There he removed her pants and rubbed her clitoris and vagina with his fingers (ts 238 - count 4).
N testified that these events were not the only times the appellant interfered with her, but she was unable to recall the details of these incidents (ts 238). N did not complain to the police about what had occurred until January 2013 (ts 239 ‑ 243).
D was born on 24 June 1986. The appellant was a family friend. She testified that on an occasion in 2000 when she was 13 or 14, she went to the appellant's home to do some cleaning. After dinner, she and the appellant watched television. While doing so, he massaged one or both her feet. She testified that she fell asleep and, when she awoke, the appellant's hand was down her pants, beneath her underwear, and resting on her vagina (ts 335 - count 7). D made no formal complaint about what occurred until the police contacted her in November 2013 (ts 336). She said that she did not make a complaint at the time because she thought no one would believe her (ts 336).
E was born on 19 May 1995. The appellant was her stepfather. She alleged that when she was between the ages of 8 and 14 years, during a period which spanned from 2004 to April 2011, the appellant interfered with her on a number of occasions. She was unable to remember all of these occasions. However, there were certain incidents she specifically recalled because she was able to link them to particular events of significance in her life. It was these incidents which were the subject of the charges in the indictment that related to her.
E testified that around the day that one of her brothers was born in March 2004, the appellant invited her into his bedroom where she was shown a pornographic movie by the appellant, who told her that this 'was how babies were made'. He then rubbed her vagina with his hand, following which he inserted his penis into her vagina (counts 8 and 9). In respect of each of counts 10 to 17, E described separate occasions on which the appellant inserted his penis into her vagina and engaged in sexual intercourse with her. E said that the last occasion on which this occurred was in April 2011 (ts 370 ‑ 371). E made an initial but incomplete complaint to police in December 2011. Further allegations were made by E against the appellant in 2012.
The appellant testified in his defence. In very broad terms, he denied the offences and any sexual impropriety in respect of the complainants. He, in substance, alleged that he had little or no opportunity to commit the offences. In respect of D, it was said that she had been the victim of sexual misconduct by another person and was, in effect, transposing those events onto the appellant. The appellant alleged that E's allegations were revenge for an affair that he engaged in when he was married to E's mother.
His experienced trial counsel conducted his defence, in part, on the basis that each complainant did not promptly complain about what had occurred to them, despite having the opportunity to do so, the implication being that the delay in complaining was because the allegations were false.
The summing up
The learned trial judge directed the jury that in order to convict the appellant of a charge, it had to be satisfied beyond reasonable doubt 'about the truthfulness, accuracy and reliability' of the complainant's evidence (ts 770).
His Honour further directed the jury with respect to the effect of delay in complaint. His Honour gave a very full and detailed direction in accordance with Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79, which was unchallenged both at trial and on appeal (ts 770 ‑ 773).
The Longman direction was preceded by the following instruction which is the subject of challenge in this appeal:
Now members of the jury, having now dealt with the evidence of each of the complainants, it's necessary that I now digress to give you some important directions regarding their evidence and the delay in making complaint about these matters. Now all of the complainants were examined and cross‑examined about not making immediate complaint about these matters, for example, to their mothers or others to whom you might have expected them to have complained in the circumstances.
And inferences may arise from that line of question that the events did not in truth happen because if they had, the complainants would have complained immediately or in all events, sooner than they did. And all of that questioning was proper and the answers need to be considered by you in assessing the complainants' truthfulness. Essentially what the defence suggest to you is that it's inherently unlikely that a person such as the complainant would have failed to make immediate complaint if these things, being the matters alleged in the indictment, had in fact happened.
Now delay is a relevant matter. It's something for you to consider. It's for you to weigh its significance, but I must point out to you that absence of complaint or delay in making a complaint that one is being sexually assaulted does not necessarily indicate that the matters complained of did not happen. Persons such as these complainants might have good reason for not complaining.
Bearing that in mind, it's for you to determine what degree of significance to give the delay in complaining. Now [N], [S] and [E] gave no explanation for the delay in complaining. [D] said no‑one would believe her, especially her mother. It's a matter for you to judge. As I say, absence of complaint or delay in complaining doesn't necessarily mean the allegations made about the offences are false.
As I said, there may be good reasons why a victim of an offence such as that alleged may hesitate in making or refrain from making complaint of the offence alleged. It goes further, members of the jury. Counsel for the State asks you to accept each complainant as a witness of the truth and as I mentioned to you earlier, counsel have said to you that you can still find them credible, reliable and honest after scrutinising their evidence with care and I said I'd come back to this (ts 769 ‑ 770).
No exception was taken to this direction by the appellant's trial counsel.
The ground of appeal and the submissions
The ground of appeal alleges that his Honour 'failed to adequately/or at all direct the jury that the considerable delay in complaint by all four complainants could be a matter relative to their respective credit'. The ground is supported by two particulars. The first particular alleges that while his Honour directed the jury pursuant to s 36BD of the Evidence Act 1906 (WA) - to the effect that delay in complaint does not necessarily indicate that the allegation is false and that there may be good reasons why a victim may hesitate or refrain from making a complaint - his Honour failed to give a 'balancing' direction of the kind referred to by the majority in Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427. The second particular alleges that his Honour failed to direct, or inadequately directed, the jury that delay in complaint was a factor relevant to the jury's assessment of each complainant's credibility.
The appellant submitted that the directions given by his Honour:
(a)did not comply with what was said by the High Court in Crofts v The Queen;
(b)did not 'sheet home' how delay could be relevant in a detrimental sense to the complainants' credibility; and
(c)were unbalanced in that there was undue emphasis to the requirements of s 36BD of the Evidence Act.
It was asserted that there was 'a very real risk that the jury may not have appreciated that they could take delay into account in determining the complainants' credibility'.
The relevant law
Section 36BD of the Evidence Act provides that where a person is on trial for offences of the type allegedly committed by the appellant, and when a witness is asked a question which tends to suggest an absence of or delay in complaint, the trial judge shall:
(a)give a warning to the jury to the effect that absence of complaint or delay in complaining does not necessarily indicate that the allegation that the offence was committed is false; and
(b)inform the jury that there may be good reasons why a victim of an offence such as that alleged may hesitate in making or may refrain from making a complaint of that offence.
In Crofts v The Queen, the High Court considered the Victorian analogue of s 36BD of the Evidence Act, s 61 of the Crimes Act 1958 (Vic). In that case, in the light of s 61, the trial judge had directed the jury that, as a matter of law, they could not take delay in complaint into consideration in weighing the credibility of the complainant. The majority (Toohey, Gaudron, Gummow and Kirby JJ) held that s 61 was not to this effect and that the trial judge had misdirected the jury.
Their Honours made a number of points concerning s 61 of the Crimes Act. The purpose of the section was to correct what had been the standard practice of judges based on stereotypical assumptions to instruct juries that complainants of sexual offences were specially suspect, those complained against were specially vulnerable and (of particular relevance to the present case) delay in complaining was invariably critical.
The aim of the section was to restore the balance by, inter alia, requiring trial judges to instruct juries when considering the effect of delay or absence of complaint, that delay does not necessarily indicate that the allegation is false and to inform the jury that there may be good reasons why a victim of a sexual offence may hesitate to complain about it.
However, the section was not designed to 'sterilise' complainants from critical comment or to prevent a jury from considering matters which, having regard to the facts and circumstances of the particular case, are relevant to an evaluation of a complainant's credibility (451 ‑ 452).
Crofts v The Queen was analysed by Wheeler JA in FGC v The State of Western Australia [2008] WASCA 47; (2008) 183 A Crim R 313 [72] ‑ [95]. Her Honour concluded her analysis with this statement, which, in my respectful view, encapsulates the effect of Crofts v The Queen:
I would understand Crofts as saying no more than that a trial judge's direction, where a case involves a delay in complaining in respect of offences of a sexual nature, must make it clear to the jury that the jury is permitted to consider whether that failure casts doubt upon the complainant's credibility. Of course, the statutory direction required by s 36BD must always be given [94].
See EPD v The State of Western Australia [2011] WASCA 264 [160] ‑ [163] and Narkle v The State of Western Australia [2011] WASCA 160 [54] ‑ [58].
Disposition of the appeal
There is no substance to any of the appellant's submissions.
His Honour told the jury that the defence case was that it may infer from the absence of an immediate complaint that the offences did not 'in truth happen'. He explicitly instructed the jury that this was a relevant matter to be considered in its assessment of whether the offences occurred.
When the direction is viewed as a whole, and having regard to the language employed by his Honour, the jury could not have been left in any doubt that delay in complaint was a matter relevant to its assessment of each complainant's credibility and a matter the jury was entitled to take into account.
His Honour also gave directions in accordance with s 36BD of the Evidence Act. He did so in an accurate, fair and balanced way. He did not convey to the jury that it was precluded from adopting the reasoning urged upon it on behalf of the appellant.
Contrary to the appellant's submissions:
(a)his Honour did not fail to direct the jury that delay in complaint was a matter relevant to the credit of each complainant;
(b)his Honour gave a direction which properly conveyed to the jury that delay in complaint was a matter which may be taken into account in a detrimental sense to the complainants' credibility;
(c)the direction complied with what was said in Crofts v The Queen;
(d)the direction was not unbalanced; and
(e)there was no realistic risk that the jury would not have appreciated that it could take delay into account in determining the complainant's credibility.
Although it is not determinative of the outcome of this application, it is relevant to note that the appellant's experienced trial counsel failed to take any exception to the direction in question.
The learned trial judge's directions with respect to delay were correct and have not given rise to any miscarriage of justice. The proposed ground of appeal has no reasonable prospect of succeeding.
Conclusion and orders
The orders that I would make are:
1.Leave to appeal is refused.
2.The appeal is dismissed.
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