Stevenson v The Queen
[2000] WASCA 222
•23 AUGUST 2000
STEVENSON -v- THE QUEEN [2000] WASCA 222
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 222 | |
| Case No: | CCA:194/1999 | 14 MARCH 2000 | |
| Coram: | KENNEDY J PIDGEON J WALLWORK J | 23/08/00 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| PDF Version |
| Parties: | JOSEPH GEORGE STEVENSON THE QUEEN |
Catchwords: | Criminal law and procedure Jury Verdict Unanimous verdicts taken from jury on two counts Subsequent taking of majority verdict Whether requirement for all verdicts to be taken at same time Whether verdicts properly taken Criminal law and procedure Evidence Sexual offences Relationship evidence Admissibility |
Legislation: | Nil |
Case References: | Hardingham v The Queen, unreported; CCA SCt of WA; Library No 940105C; 3 March 1994 R v Glennon (1992) 173 CLR 592 R v J W Thornton (1989) 89 Cr App R 54 R v Witham (1962) Qd R 49 B v The Queen (1992) 175 CLR 599 Biggs v DPP (1997) 95 A Crim R 349 Black v The Queen (1993) 179 CLR 44 BRS v The Queen (1997) 191 CLR 275 Crofts v The Queen (1996) 186 CLR 427 Cunningham v Ryan (1919) 27 CLR 294 Gipp v The Queen (1998) 194 CLR 106 Griffiths v The Queen (1977) 137 CLR 293 Harriman v The Queen (1989) 167 CLR 590 Kailis v The Queen (1999) 21 WAR 100 Nanan v The State [1986] AC 860 Pearmine v The Queen [1988] WAR 315 Peers v The Queen [1999] WASCA 295 Pfennig v The Queen (1995) 182 CLR 461 R v AH (1997) 98 A Crim R 71 R v Cefia (1979) 21 SASR 171 R v Eyers (1978) 19 SASR 244 R v F (1994) Crim LR 377 R v Fordham (1997) 98 A Crim R 359 R v Tektonopoulos (1999) 106 A Crim R 111 Rusovan v The Queen (1994) 62 SASR 86 Scaffidi v The Queen, unreported; CCA SCt of WA; Library No 970166; 18 April 1997 Varney v The Queen, unreported; CCA SCt of WA; Library No 960463; 23 August 1996 Wilson v The Queen (1970) 123 CLR 334 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : STEVENSON -v- THE QUEEN [2000] WASCA 222 CORAM : KENNEDY J
- PIDGEON J
WALLWORK J
- Appellant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Jury - Verdict - Unanimous verdicts taken from jury on two counts - Subsequent taking of majority verdict - Whether requirement for all verdicts to be taken at same time - Whether verdicts properly taken
Criminal law and procedure - Evidence - Sexual offences - Relationship evidence - Admissibility
Legislation:
Nil
Result:
Appeal dismissed
(Page 2)
Representation:
Counsel:
Appellant : Mr R E Lindsay & Ms B J O'Sullivan
Respondent : Mr K P Bates & Mr A S Derrick
Solicitors:
Appellant : Halperin Fleming Meertens
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Hardingham v The Queen, unreported; CCA SCt of WA; Library No 940105C; 3 March 1994
R v Glennon (1992) 173 CLR 592
R v J W Thornton (1989) 89 Cr App R 54
R v Witham (1962) Qd R 49
Case(s) also cited:
B v The Queen (1992) 175 CLR 599
Biggs v DPP (1997) 95 A Crim R 349
Black v The Queen (1993) 179 CLR 44
BRS v The Queen (1997) 191 CLR 275
Crofts v The Queen (1996) 186 CLR 427
Cunningham v Ryan (1919) 27 CLR 294
Gipp v The Queen (1998) 194 CLR 106
Griffiths v The Queen (1977) 137 CLR 293
Harriman v The Queen (1989) 167 CLR 590
Kailis v The Queen (1999) 21 WAR 100
Nanan v The State [1986] AC 860
Pearmine v The Queen [1988] WAR 315
Peers v The Queen [1999] WASCA 295
Pfennig v The Queen (1995) 182 CLR 461
R v AH (1997) 98 A Crim R 71
R v Cefia (1979) 21 SASR 171
R v Eyers (1978) 19 SASR 244
(Page 3)
R v F (1994) Crim LR 377
R v Fordham (1997) 98 A Crim R 359
R v Tektonopoulos (1999) 106 A Crim R 111
Rusovan v The Queen (1994) 62 SASR 86
Scaffidi v The Queen, unreported; CCA SCt of WA; Library No 970166; 18 April 1997
Varney v The Queen, unreported; CCA SCt of WA; Library No 960463; 23 August 1996
Wilson v The Queen (1970) 123 CLR 334
(Page 4)
1 KENNEDY J: I have had the advantage of reading in draft the reasons to be published by Pidgeon J, with which I am in general agreement. I desire however to make some brief comments of my own.
2 It was not contested that the complaint of the complainant in relation to the offence alleged in the third count was admissible, although it was made some two weeks after the alleged offence which was said to have taken place on 26 or 27 December 1997. On the evidence, the initial complaint was made to the complainant's half-sister. On the following day, the complainant's mother took her to the Nollamara Pregnancy House. The complainant's period had been two weeks late and she said she was concerned that she could possibly be pregnant. The test came back negative, and the following day she visited the Sexual Assault Referral Centre, where another pregnancy test was undertaken. As soon as she had finished at the Centre, the complainant said she had gone to the Warwick Police Station and given her statement. Her explanation as to the delay in making any complaint was that she did not know whether her mother would believe her, because her mother was "going out" with the appellant. She also said she did not want to ruin her mother's relationship with the appellant.
3 The evidence regarding the pregnancy tests should not, in my opinion, have been admitted, the evidence of the complainant providing insufficient basis for the appellant having caused the complainant to become pregnant and the Crown not having proceeded with the initial charge of sexual penetration. There is, however, in my opinion, no reason to doubt that the prejudice which it might have engendered was overcome by the trial Judge's directions, which are set out in the reasons of Pidgeon J and, in particular, the trial Judge's direction that it was no part of the Crown's case that the appellant had sexually penetrated or had sexual intercourse with the complainant, and that the members of the jury needed to put that out of their minds for the purposes of the trial - see R v Glennon (1992) 173 CLR 592, at 604.
4 The Crown Prosecutor asked the complainant's mother whether the complainant had any other complaints at the time, and she responded that the complainant "was worried that she might have caught something from [the appellant] and this was when it all sort of came out". The complainant's evidence was that five days before this time, after an argument between the complainant and her mother, the complainant had gone to stay with a friend of both herself and her mother. At that time she "took an overdose" in an attempted suicide. If it be the case that this was not sufficiently covered by his Honour's instruction to the jury, I do not
(Page 5)
- consider that it would have led to any miscarriage of justice. There was no evidence that she had "caught something" from the appellant.
5 In relation to the second ground of appeal, which related to the viewing of pornographic videos, the evidence was that this had occurred on two occasions. On the first occasion, the complainant's mother was present, and on the second occasion, the complainant's friend Yvonne was present. Yvonne was not called to give evidence. There were some discrepancies between the evidence of the complainant and her mother which rather suggest some confusion as to which incident occurred first. The probability is that the second incident described by the complainant took place first, on an occasion when her mother was present. Be this as it may, the evidence is that, on both occasions, the appellant was present and permitted, if he did not encourage, the presence of the complainant. As Pidgeon J has indicated, his Honour gave a sufficiently clear direction as to the limited use to which this evidence could be put.
6 In relation to the fourth ground of appeal, relating to the taking of the verdicts, in my opinion, the factual situation is far removed from those in the authorities cited by counsel for the appellant. The foreman of the jury clearly indicated that the jury had reached unanimous verdicts on counts 1 and 2 before the verdicts were taken by his Honour, and the foreman confirmed in open court that the verdicts were the verdicts of all of the jury. There was no dissent by any juror. In my opinion, these verdicts cannot now be challenged. In relation to the verdict on the third count, the obvious explanation for the question regarding the meaning of "unanimous" is that the jury were aware of the possibility of bringing in a majority verdict. This is supported by the statement in the question asked of the Judge that the jury were divided 10/2 in favour of their verdict. I agree with Pidgeon J that this ground should not be upheld and that the appeal should be dismissed.
7 PIDGEON J: The appellant, on 1 and 2 September 1999, stood trial before his Honour Judge Williams and a jury on three counts of sexual assault which were alleged to have occurred during 1997. The jury, by a unanimous verdict, found him guilty of the first two counts and by a majority verdict found him guilty of the third count. He is appealing against each of these convictions.
Facts relating to the offences.
8 The appellant was born in 1957. In 1997 he lived on his farm at Kulin and he was having a relationship with the complainant's mother.
(Page 6)
- The complainant was born in 1982. The complainant's mother and the complainant would visit the appellant's farm from time to time over weekends. The complainant said about the third time she went to the farm the appellant touched her around the breasts and squeezed them and then moved his hands back down her ribs. She said this occurred some time between 1 May 1997 and 30 June 1997 and was the subject of the first count. The second count was alleged to have occurred between 1 October 1997 and 30 November 1997. She was at the appellant's farm and he said that he was going to give her a "nipple cripple". He then grabbed her by the nipple, twisted it really hard. She complained and cried. The complainant's mother was a witness to this. She later remonstrated with the appellant about it. She said that he told her he could not help it but he had no evil intent behind it. She also complained to him about his smacking her bottom and touching clothing near the breasts and she asked him to stop it.
9 The third count was alleged to have occurred on 27 December 1997. On that night the appellant took the complainant and her mother to a hotel at Corrigin and then back to the farm. The complainant's mother went to bed. The appellant then gave the complainant large amounts of whisky. She became ill and went to bed. It was claimed that he came into the bedroom, put his hand in her vaginal area and rubbed her vaginal area on the outside of her clothes.
10 The appellant's defence was that he had never touched the complainant in an indecent manner. He said in respect of the first count it never happened at all. He said in respect of the second count that he did give her a "nipple cripple" and described the touching in a way that he claimed was not indecent. They were each having a playful fight. He said the third offence did not occur at all.
The taking of the verdicts (Fourth ground)
11 The fourth ground of appeal was the first ground that was argued It was that his Honour erred in law in taking verdicts on counts 1 and 2 before the jury had finished their deliberation on the third count.
12 The circumstances in which this arose were that the jury had been deliberating in excess of three hours in respect of each of the counts. His Honour called the jury in for the purpose of giving a direction on a majority verdict. His Honour said to the foreman, "I will just ask you to answer yes or no to the following questions." His Honour then said, "Are you able to reach a unanimous verdict on any of the counts?" The
(Page 7)
- foreman replied that they were and that they had reached a unanimous verdict on counts 1 and 2. His Honour then said the he would take those verdicts and they were taken in the proper manner and were verdicts of guilty. On receiving verdicts of guilty the clerk of arraigns asked, "Is that the verdict of you all?" and received an affirmative answer. His Honour then said that he would enter judgment of conviction on those two counts. His Honour then said:
"Well, Mr Foreman, again I will just ask you answer yes or no to that question. Can I take it from the fact that you have reached a unanimous verdict on counts 1 and 2 but you are still working your way through count 3."
14 About 45 minutes later his Honour received the following question from the jury which he read out in the following way(AB 233):
"Please define 'unanimous', and under that, 'We have 10/2 in favour of, ' and it's then stated, the verdict, but I won't state that now, 'on the third count,' so I propose to have the jury back and say to the foreman, 'I'm a position where I'm able to take a verdict in relation to count 3 in which at least 10 of you agree.' I will put it on the basis that 'I understand that you are able to let me have a verdict in which at least 10 of you agree,' and I will have the foreman answer yes or no to that question. If he says yes, then I propose to take the verdict."
15 His Honour asked counsel to comment on the proposition. Counsel for the defence said that he thought the question showed a lack of understanding of the meaning of the word 'unanimous' and called into the question the earlier verdict. Counsel said he did not know if the clerk of arraigns asked the question, "Is that the verdict of you all?" He was told that that question was asked and the transcript shows this.
16 His Honour arranged for the jury to return and said to them: (AB234)
"HIS HONOUR:Yes. Mr Foreman, I have received a note from you that reads as follows: 'Please define 'unanimous'' and under that the words, 'We have 10/2 in favour of a' and then you stated a verdict on count 3. Is there any chance of you reaching
(Page 8)
- a verdict in relation to count 3 in which at least 10 of you agree? Yes to no to that question please.
THE FOREMAN:Yes.
HIS HONOUR: All right. The position has been reached that I'm in a position to take a verdict in relation to that count in which at least 10 of you agree, so that verdict will now be taken by Madam Clerk of Arraigns. Thank you, Madam Clerk of Arraigns."
17 The ground of appeal reads:
"4. The Learned Trial Judge erred in law in taking a verdict from the jury on counts one and two separately from count three (AB232-232).
That the Learned Trial Judge ought to have received the verdict in respect of the three counts at the same stage."
18 The procedure laid down in Ch 64 of the Code does not specify how the verdict is taken. It must be taken in accordance with established practice. It is a matter of discretion in the trial Judge as to whether he or she takes the verdict when the jury have indicated that they have reached it, or whether those verdicts are taken when deliberations are complete. A reported instance of where verdicts were taken in the way his Honour took them is the case of R v JW Thornton (1989) 89 Cr App R 54. Although this was not the matter in question in that case, the procedure followed at the trial is set out at p 57 of the report. In that case the trial Judge took the verdicts on the matters on which the jury had agreed and requested them to continue their discussions in respect of the remaining matters. Neither the grounds of the appeal in that case nor the Court suggested that the matter could not proceed on that basis.
19 It was open to his Honour to follow either the procedure he did or to ask the jury to bring in their verdict with the final count if they were able to agree on that count. This Court would intervene only if it is shown that the procedure followed, on the facts of the particular case, would lead to a miscarriage of justice. Nothing has been put forward where that could have arisen in this case. If the appellant had been acquitted on the third count it was suggested that the jury may have had doubt on her evidence in respect of all the counts. Such a possibility, if it is one, could not arise where there is a conviction on the third count.
(Page 9)
20 The submissions in support of this ground referred to the possibility that in the circumstances of this case, having regard to the question asked by the jury, the verdicts initially taken were not unanimous. This is not a ground of appeal and understandably so as I would see no merit in the proposition. His Honour in his charge said, "The verdict that you are asked to return must be unanimous, that is, it must be the verdict of all twelve of you." It would be inconceivable that a jury would not know the meaning of this term. I consider the jury by their question, "Please define unanimous, we have 10/2 in favour" was to ascertain whether the word "unanimous" had at law an extended meaning as is generally known to jurors that at some stage of the trial a 10/2 verdict can be taken. I would dismiss ground 4.
Pregnancy Test (Grounds 1 and 3)
21 Grounds 1 and 3 relate to the admission as evidence of the complainant and of the complainant's mother that when the complainant made a complaint she was taken to a Pregnancy Centre and to the Sexual Assault Referral Centre where, in each case, there was a negative test.
22 The complainant's deposition read:
"About two weeks ago today my period was late and I thought I might have been pregnant. That's also why I think (the appellant) might have done something to me so I told Nicole about it and she told my mum."
23 His Honour ruled that the words "that's also why I think that (the appellant) might have done something to me" could not be admitted. He admitted the remainder of the evidence.
24 The complainant's evidence relating to the third offence was that she was then 14 years of age and the appellant was persuading her to drink whisky. This resulted in her having many drinks of whisky to the extent that she vomited and went to bed feeling sick. When in bed she said the following happened: (AB79)
" ----Joe came in to see if I was okay and then he was sitting on the edge of the bed and I didn't, like, realise at first what he was doing because I can't remember if it was the first or the second time that he did it but I remember him - he had his hands on the inside of my leg in the vagina area and he was rubbing it and everything. I didn't, like - I felt like that he was touching me
(Page 10)
- but I didn’t, like, click where until, like, sort of later and everything, and once I realised what was happening I rolled over and, like, ignored him, and then I said to him that I couldn't sleep with someone in the room and, like, he said, 'Why?' and I said I just couldn't. Then he put his hand on my leg and then rubbed his hand up my leg past my breasts and then got up and left, and I remember him coming in two or three times during the night."
25 She said that the following day when she went to the toilet it was like a sort of stinging sensation. She said it probably lasted a day or two and she had first thought it was the start of her period, but it was not. However two weeks later her period was late. It would appear that she became worried that she might have been pregnant by reason of the fact that she thought something more may have happened that night of which she had no recollection by reason of the state of her sobriety. This caused her to go to her mother and it was then she made the complaint.
26 Ground 1(a) claims that his Honour erred in considering the evidence was admissible as being "relationship evidence". I do not consider his Honour admitted it on that basis. When the evidence was first objected to his Honour, at that early stage, asked some questions as to why it was not relationship evidence. He repeated that question during discussions with counsel. The Crown submitted it was relevant as to her state of mind and why she took time to complain and why she actually complained. His Honour, at the end of the discussion, allowed the evidence to be admitted but did not say on what basis. His Honour, in his charge to the jury gave a direction as to how relationship should be used and he referred to that evidence, but he did not, in that context refer to this particular piece of evidence. (AB220) The evidence could not be relationship evidence and his Honour in his charge to the jury did not treat it as such.
27 The question is whether the evidence was admissible as part of the evidence of complaint. The complaint was made two weeks after the final offence and it is not suggested in the grounds that the complaint evidence was wrongly admitted. His Honour was mindful of the fact that as the complainant was inebriated she did not fully appreciate what happened to her on 27 December and raised this with counsel. I consider it is implicit that her worry was about what happened on 27 December. She was not fully conscious of what occurred. This was because the appellant persuaded her, a 15 year old girl, to become inebriated. She became alarmed when her period was late and she recalled the itching sensation
(Page 11)
- she noticed the day after the incident. In these circumstances she went to her mother and it was decided to have a pregnancy test. The two tests actually conducted were negative which showed that her alarm was groundless. They confirmed that what occurred went no further than what she was able to recall. I find it difficult to see why this evidence, in this context, was not admissible as to the circumstances in which the complaint was made. There is no argument that there was admissible evidence of complaint in respect of the last count. However Mr Bates, on behalf of the respondent, conceded on appeal that this evidence was not admissible. He said it did not form part of the relationship.
28 Counsel in each case considered it was relationship evidence and Mr Lindsay said that while it had some probative value when one is considering propensity or relationship evidence, then the fact that the probative value is low is a factor to base the determination that the evidence should not be admitted as relationship evidence, and it would seem on this basis that Mr Bates conceded the evidence ought not to be admitted. However, once it is realised that the evidence was admitted as being evidence as to the circumstances in which the complaint was made, then the fact that its probative value is low would still make it admissible evidence as such, but would be a factor under which his Honour would exercise his discretion to exclude it. It is on that basis that an argument could well be mounted that it be excluded. I consider I should act on the basis that the evidence ought not to have been admitted by reason of the concession made by Mr Bates and by reason of Mr Lindsay not arguing to the contrary. The respondent relies on the fact that the directions given by his Honour would result in no miscarriage of justice.
29 The directions were given in the following circumstances. When the mother gave evidence she said that the complainant was two weeks late with her period and she thought she might be pregnant, so she took her for a pregnancy test. The mother then said, "She was worried that she might have caught something from (the appellant) and this was when it all sort of came out." This was the evidence which his Honour had earlier ruled should not be adduced. There was an application to discharge the jury. His Honour was of the view that the prejudice could be overcome by an appropriate direction and his Honour gave the following ruling: (AB47)
"HIS HONOUR :Well, Mr Meertens, I'm of the view that the evidence does go some way to the fact that the complainant did not know what happened to her on that particular night that she had been drinking. There is certainly prejudice in this witness's last answer; words to the effect that the complainant told her she
(Page 12)
- thought she might have caught something from him, but in my view the prejudice can be overcome by directing the jury immediately on that matter and the application to discharge the jury is refused. I'm happy to hear you on what I should say to them. At the present time I would say to them that they have heard evidence that the complainant was taken for a pregnancy test. It is no part of the crown's case that the accused has sexually penetrated the complainant. Is there anything more than that that you want said?"
30 When the jury returned his Honour gave them the following direction. (AB150)
"HIS HONOUR : Yes. Well, members of the jury, you have heard evidence that the complainant, that is Louise Walker in this case, was taken for a pregnancy test. I want to say to you that it's no part of the crown's case that the accused has sexually penetrated the complainant, that is Louise Waslker, so it's no part of the crown's case that this accused has had sexual intercourse or sexually penetrated, as the law refers to it, this complainant. Yes, Mr van Zalm?"
31 His Honour in his summing up said: (AB221)
"I want to say something to you about complaint evidence, but before I say that I need to again repeat the direction that I gave to you earlier and that is that you have heard evidence that the complainant was taken for a pregnancy test - I think taken by her mother. You realise of course that it's no part of the crown's case at all that the accused has sexually penetrated or had sexual intercourse with the complainant, so you need to put that out of your mind for the purposes of this trial."
32 Ground 1 claims that the evidence is inadmissible and I am proceeding on the basis that is conceded. Ground 3 claims that his Honour erred in his decision not to discharge the jury. By this time evidence which his Honour saw as inadmissible was before the jury, but his Honour considered the matter could be cured by a warning. In my view the warning his Honour gave was sufficient to overcome the situation and I consider it also overcame the inadmissible evidence referred to in ground 1.
33 I have reached this view for the following reasons. As the complainant was specific in her evidence that there was no sexual
(Page 13)
- intercourse and that it amounted to no more than a touching, it would, I consider be unlikely that the jury would in any event consider that a fear of pregnancy arose from an active intercourse not referred to in the evidence. It was apparent that the complainant was unclear as to what happened on the night of 27 December by reason of her inebriation and the fear in her mind was that it may have gone further on that evening. It would have been apparent to the jury, both by what the complainant said and the result of the test, that it did not go further. Against that background there was a firm direction of his Honour that it was no part of the Crown case and that the jury must put that evidence out of their mind. This amounted to a direction that the jury were not to use it and I consider that there would be no danger of there being any prejudice to the appellant by reason of this evidence being admitted.
34 Ground 2 claims that his Honour erred in admitting evidence about the viewing of a pornographic video by the appellant and complainant. His Honour admitted this as relationship evidence. The complainant gave evidence that shortly after she commenced visiting the farm the appellant made remarks one would not expect between a person in the appellant's position and the complainant. She said, "He used to tease me about not being developed and he used to say that I had a nice arse, excuse my language, just stuff like that." The complainant in her evidence said she remembered two occasions being shown pornographic videos. She said the first one was some time before November 1997 and it occurred when she was 14. She said the second time it occurred was on 9 January 1998, which was after the second offence. She said in respect of the video: (AB86)
"I remember on one time there was a lady giving a male a head job and on the other one there was a man and woman having sex. I can't remember which time was which …"
35 She said that the first occasion she was shown such a video was when she was 14 and she said I can't really remember much about that one". She turned 15 on 11 October 1997. She said that the second time occurred was during the weekend starting 9 January 1998. Her evidence then was(AB86):
"Can you remember who was in the room?---There was Joe - there's a sliding door between the lounge and the kitchen. In the lounge room where the video was there was Joe and I
(Page 14)
- can't remember his name but he's a lady called Louise's husband. He was in there as well. Them two were watching a movie and I came in and he asked me to, like, make him a cup of tea. He shouted out for me to make him a cup of tea so I brought his tea into him and he pressed pause on the movie and as I was bringing his tea in he told me to close the sliding door because of everyone that was out there, the people that were out there. So I closed it and I sat down and I was with Yvonne and we were talking for a while. I looked up and I realised what was on and then a few minutes later we got up and left. Louise's husband left early, like halfway between when we were in there.
Can you remember when the video was on whether anybody said anything? Can you remember anything being said?---Not that I remember.
When you left can you remember anything being said?---Just normal conversation between me and Yvonne and that was it. He just - Joe just made sure that I closed the sliding door when I left. That was all that was said.
Right. Can you remember on each occasion that you watched the pornographic video how long they went, how long you were sitting there watching it for?---Probably about 5 - the first time was only a few minutes really because I knew what was on and I didn't want to watch it. The second time I was in conversation with Yvonne and I didn't realise at first. I was in the lounge room for about 10 minutes but I wasn't watching it for that long. I was just talking to Yvonne. I only watched it for a few minutes. Once I realised what it was I got up and left.
Was your mother there when you watched it on the second occasion, the second pornographic video?---No. My mum didn't come up that weekend. It was just me and Yvonne."
36 The appellant's mother gave evidence of her seeing the complainant looking at a video in the presence of the appellant. The mother's evidence was in the context of her complaining to the appellant about his touching the complainant in the sense of smacking her bottom and acts that might be interpreted as being improper. She said at one stage her discussions with him got to the point of whether she and the appellant would have more children. She said that the appellant said, "We could get (the
(Page 15)
- complainant) to have one for us." The mother said she was completely shocked and she told the appellant that if he ever touched the complainant like that she would kill him. The mother was asked if anything else occurred and she said, "Apart from the sort you know - the touching and things like that." (AB139) She then referred to "a blue movie" and she said it occurred in these circumstances.
"Can you comment on how you became aware of that?---Louise and Joe were actually sitting in the living room watching the movie and I was probably in the kitchen or out the back or something and I walked in and they both sat there watching the movie. Joe was at one side on the couch and Louise was on the other and on the movie there was a man and a woman and the woman was performing oral sex on the man.
When you saw that what did you do?---I told him to turn it off and he basically told me then, 'Look, Louise might as well watch this because she needs to get an education at some point,' and he would rather have Louise watch the movie than actually go out and do it. Again Louise wasn't too happy about that and we had an argument about that as well.
When you say 'we had an argument' who - - -?---Me and Joe."
38 The questions to consider in respect of relationship evidence have recently been considered by this Court in a number of decisions. These include Hardingham v The Queen, unreported; CCA SCt of WA; Library No 940105C; 3 March 1994. There is no need to set out these principles again. I consider in this case that the evidence was admissible to reveal unnatural carnal attraction or abnormal lust in the accused for the complainant which could be regarded by the jury as tending to prove the particular offence charged. (R v Witham (1962) Qd R 49).
39 The ground of appeal alleges that his Honour erred in admitting evidence about the viewing of a pornographic video by the appellant and complainant and holding that such evidence was admissible as relationship evidence. I consider the evidence outlined was admissible under this head for the reasons I have stated. It was submitted in argument that the video was not purposely shown to the complainant, but
(Page 16)
- that the complainant came into the room by chance when the video was playing. This could be argued in respect of the second occasion but would not be applicable to the occasion witnessed by the mother. The ground before us does not raise the question that the evidence comes out of the range of relationship evidence by reason of the showing being accidental and not deliberate. His Honour gave a full direction as to the limited way in which the evidence was to be used.
40 I would dismiss the appeal.
41 WALLWORK J: I agree with the reasons for judgment of Kennedy ACJ and Pidgeon J and to the order proposed by their Honours.
20
1