RPM v The Queen

Case [2004] WASCA 174

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   COURT OF CRIMINAL APPEAL

CITATION:   "RPM" -v- THE QUEEN [2004] WASCA 174

CORAM:   MALCOLM CJ

WHEELER J
MCKECHNIE J

HEARD:   10 FEBRUARY 2004

DELIVERED          :   23 JULY 2004

PUBLISHED           :  13 AUGUST 2004

FILE NO/S:   CCA 173 of 2003

CCA 174 of 2003

BETWEEN:   "RPM"

Appellant

AND

THE QUEEN
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram   :FENBURY DCJ

File Number            :  BRO 25 of 2001

Catchwords:

Criminal law and procedure - Sexual offences - Evidence - Trial of alleged sex offences on the complainants one of whom deceased - Whether evidence of silicone oil in anus of deceased admissible at trial - Corroboration - Admissibility of statements by complainant SR pursuant to s 106H of the Evidence Act 1904 - Warning that statement not to be on oath or that it would be dangerous to convict or complainant's evidence not required

Criminal law and procedure - Written statement of complainant pursuant to s 106H Evidence Act 1904 - Whether any warning required

Legislation:

Criminal Code (WA), s 320(2)

Evidence Act 1906 (WA), s 106C, s 106D, s 106H

Result:

Appeal against conviction allowed
New trial ordered

Category:    A

Representation:

Counsel:

Appellant:     Ms B J Lonsdale

Respondent:     Mr P J Urquhart

Solicitors:

Appellant:     Legal Aid of Western Australia

Respondent:     State Director of Public Prosecutions

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

Butera v DPP (Vic) (1987) 164 CLR 180

Carr v The Queen (1988) 165 CLR 314

Chamberlain v The Queen [No 2] (1983) 153 CLR 521

Driscoll v The Queen (1977) 137 CLR 517

Jones v The Queen (1997) 191 CLR 439

Longman v The Queen (1989) 168 CLR 79

M v The Queen (1994) 181 CLR 487

Markby v The Queen (1978) 140 CLR 108

Maxwell v Murphy (1956) 96 CLR 261

Morris v The Queen (1987) 163 CLR 454

Murphy v The Queen (1988) 167 CLR 94

Pfennig v The Queen (1994) 182 CLR 461

Plomp v The Queen (1963) 110 CLR 234

R v Baskerville (1916) 2 KB 658

R v Corkin (1989) 50 SASR 580

R v Freeman (1980) VR 1

R v Knigge (2003) 6 VR 181

R v Lillyman [1896] 2 QB 167

R v NRC [1999] 3 VR 537

R v Robinson [1994] 3 All ER 346

R v Turner [1975] QB 834

Reference of a Question of Law pursuant to the Criminal Code, s 693A (Reference No 1 of 1999) [1999] WASCA 53; (1999) 106 A Crim R 408

Sparks v The Queen [1964] AC 964

Case(s) also cited:

Azzopardi v The Queen (2001) 205 CLR 50

Bromley v The Queen (1986) 161 CLR 315

Doggett v The Queen (2001) 208 CLR 343

KRM v The Queen (2001) 206 CLR 221

R v Miletic [1997] 1 VR 593

  1. MALCOLM CJ: This is an appeal against conviction. There is also an application for leave to appeal against sentence. On 29 July 2003 the appellant was convicted…

Continue reading RPM v The Queen

Sign in free to access the full text

Details
AGLC
RPM v The Queen [2004] WASCA 174
Case
[2004] WASCA 174
Decision Date

CaseChat Overview and Summary

The matter before the court was an appeal against conviction brought by the appellant, RPM, against a decision of the Supreme Court of Western Australia. The appellant was convicted of multiple counts of sexual offences against two children, one of whom had since deceased. The central issues before the court were the admissibility of certain evidence, including the presence of silicone oil in the deceased child's anus, and the manner in which statements made by one of the complainants were presented at trial. The court was required to determine whether the evidence of silicone oil was relevant and admissible, and whether the trial judge erred in not warning the jury that the unsworn statement of the complainant was of lesser quality.

The court began by addressing the admissibility of the silicone oil evidence, acknowledging the Crown's concession that the presence of silicone oil suggested an offence had occurred but did not prove any of the offences charged. The court held that while the silicone oil evidence might establish the commission of an offence shortly before the child's death, it did not directly link the appellant to the offences in question. Therefore, the court determined that this evidence was not admissible to prove the appellant's guilt. Regarding the unsworn statement of the complainant, the court considered the provisions of the Evidence Act 1904, which allow for children under 12 to give unsworn evidence if they can provide an intelligible account of events. The court found that the trial judge was correct in not warning the jury that the unsworn evidence was of lesser quality, as such a warning is expressly prohibited by statute.

In conclusion, the court found that the trial judge did not err in admitting the silicone oil evidence or in the manner in which the unsworn statement of the complainant was presented. The appeal was dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The Judge then referred to s 106C and s 106D of the Evidence Act 1906 (WA) which provide that:"106CChildren under 12 may give unsworn evidenceA child under the age of 12 years who is not competent to give evidence under section 106B may give evidence without taking any oath or making a solemn affirmation if the Court or person acting judicially forms the opinion, before the evidence is given, that the child is able to give an intelligible account of events which he or she has observed or experienced.106DCorroboration warning on evidence of child not to be givenIn 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." His Honour then ruled as follows:"I think the absence of any reference to that issue, Mr Hogan, in section 106A and following in the Evidence Act, really should mean that you shouldn't say that, shouldn't put to them that the evidence is of lesser quality than sworn evidence, given the age of the child. The procedure is there because of the age of the child and the particular circumstances. A statement can be read. Perhaps I will start again. Normally evidence from a child who is competent is given on oath but in cases of this kind, where the allegation is against a defendant who is a member of the household, in other words is living in the house from time to time relevantly, and who is a close family member - uncles are within the definition - this child's statement can be handed up; obviously in circumstances such as here where the child fails to give evidence.It doesn't sound right to my ear that parliament would set that up and then say, 'But when that occurs the evidence is of less worth.' The fact remains that it is unsworn evidence from a child who's only 9, and that has aspects about it about which the jury, as a matter of commonsense as parents might have a view but I'm not going to give it a judicial - I don't think I should say anything about it and I don't think you should and if you do - subject to what you might say afterwards, if you do I will stop you." His Honour qualified his conclusion, saying:"But that's a tentative view. I will have a think about it, and if I feel different we will mention it again." The appellant obtained leave at the hearing of the appeal to delete ground 1 and substitute the following ground:"The learned Judge erred in law in allowing the Crown to lead expert evidence of the presence of silicone oil in the anus of [TR] at his autopsy. The Crown Prosecutor conceded that counts 2 and 4 on the indictment were more likely to have occurred "some time in 1997" and that the presence of silicone oil suggested that an offence had been committed on TR approximately three days before TR died. Counsel for the Crown also conceded that this could not prove any of the offences charged in the indictment. Although silicone oil was detected in TR's anus at his autopsy, which tended to establish the commission of an offence shortly prior to his death, it was contended by counsel for the appellant that the evidence was irrelevant to the question whether the appellant had committed the offences the subject of the indictment.

Decision

Reasons for decision

WHEELER J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: WHEELER J

Full text does not contain this section.