Supreme Court of Western Australia

[2001] WASCA 316

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION : ATTORNEY-GENERAL'S REFERENCE NO 1 OF
2001 [2001] WASCA 316

CORAM : MURRAY J

STEYTLER J EINFELD AJ

HEARD	: 8 OCTOBER 2001
DELIVERED	: 8 OCTOBER 2001
FILE NO/S	:  CCA 72 of 2001
BETWEEN	:  ATTORNEY-GENERAL'S REFERENCE NO 1 OF 2001
Catchwords:

Attorney-General's reference - Whether questions raised are of questions of law which require opinion of Court

Legislation:

Nil

Result:

Questions answered

[2001] WASCA 316

Category: B

Representation:

Counsel:

Applicant	:	Mr D Dempster
Respondent	:	Mr D A P Moen

Solicitors:

Applicant	:	State Director of Public Prosecutions
Respondent	:	Andrew Lynn & Associates

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

Christophers v The Queen (2000) 23 WAR 106
Crampton v R 176 ALR 369
Dawe v The Queen [2001] WASCA 306
Doggett v R [2001] HCA 46
James v The Queen [2000] WASCA 100

Longman v R (1989) 168 CLR 79

Case(s) also cited:

Crofts v The Queen (1996) 186 CLR 427
Gaulard v The Queen [2000] WASCA 218
Hickey (1995) 89 A Crim R 554
Jones v The Queen (1997) 191 CLR 439

[2001] WASCA 316

MURRAY J

1. MURRAY J: This is a reference at the request of the Attorney-General under the Criminal Code, s 693A. That provision empowers the Attorney to request the Judge, a request which the Judge must obey subject to it otherwise falling within the parameters of the section, to refer to the Court of Criminal Appeal any question of law which arises at a trial. The Court of Criminal Appeal is then obliged to provide its determination of those questions of law by giving its opinion upon those questions but the Court is not otherwise fettered in its capacity to respond appropriately to a reference of that character.

2. The matter now before the Court in fact arises out of a trial which was conducted in April of this year in the District Court upon an indictment alleging eight sexual offences committed against a child between the ages of 13 and 16 years. The particulars of those charges do not matter. All that need be noted is that the indictment in fact alleged two groups of offences committed respectively upon 27 March and 3 April 1998.

3. The complainant gave evidence at the trial in April 2001 that she had made no complaint, as I have understood it, following the events that arose on 27 March until the events which occurred on 3 April. She did not then complain on the weekend which immediately followed the events which occurred on 3 April, which appears to have been a Friday, but beyond that the evidence provided no information to the Court as to when she did first complain, or when an investigation was commenced, or when the accused first became involved in any such investigation. Indeed, no police officer was called to give evidence.

4. It is said that the accused was able to call witnesses to provide evidence about the events of the occasions in question, and that was no doubt a relevant consideration when one was considering what direction, commentary or warning the trial Judge was required to give the jury, but the fact was it remained unknown as at the date of trial what period of time had elapsed potentially between March of 1998 and the trial, which was conducted on 3 to 5 April 2001, before the matter came to light, an investigation commenced and the accused became involved in it.

5. In that context the learned trial Judge, after long debate by counsel before his Honour, determined that it was appropriate to give a warning of the kind dealt with by the High Court in the leading case of Longman v R (1989) 168 CLR 79, and to do so, as his Honour ruled, in terms which would make it clear to the jury that it was dangerous that they should consider convicting upon the evidence of the complainant without careful

[2001] WASCA 316

MURRAY J

consideration of the veracity and reliability of that evidence and the circumstances which might affect adversely the capacity of the accused person to test that evidence and to test the circumstances upon which the complainant's evidence relied in support of the alleged offences. His Honour proceeded to give a warning in those terms.

1. The questions raised by the reference are two in number. The first is, is it appropriate for a trial Judge to give a direction in accordance with Longman on the basis of a delay between the alleged offence and the date of trial when the evidence shows a delay in complaining of one weekend and there is no evidence as to the date of first complaint?

2. As has been made clear, in my view, by the exchange which has passed between bench and bar in developing argument upon that question, that is, in my opinion, an incomplete way of dealing with the circumstances which in this case might bear upon the question whether a warning was to be given. In any event, it seems to me that to recount the question in the way it is formulated exposes the real difficulty, and that is that it is not a question which poses a question of law which this Court may usefully answer. The law is clear. It has been laid down in Longman and in later decisions both of the High Court and of this Court, among many others in the country. I do not pause to recount the cases or to deal with them in any detail.

3. A warning, rather than merely a comment, on the evidence is required in any circumstance where the jury's evaluation of the testimony upon which the prosecution depends may be adversely affected by factors centrally concerned with delay which has or may have occurred when the jury may not themselves appreciate the significance of such factors and may require the dangers which they pose to be made abundantly clear if they are to make a proper evaluation of the evidence upon which the prosecution depends.

4. So those are circumstances which will call for the warning, and the only answer which the Court might give to question 1 would be so qualified, if it is a question of law, as to be entirely lacking in utility. The only answer which can be given is, "Perhaps," and that is not an answer to a question of law, but it is the only answer which admits of the continuing relevance of all the multitudinous factors which may in any given case affect the need to give a warning of the kind to which reference has been made.

[2001] WASCA 316

MURRAY J
STEYTLER J

1. The second question is, as counsel concedes, now rendered otiose. It is: is Crampton v R 176 ALR 369 authority for the proposition that a direction given by a trial Judge in accordance with Longman must include the phrase, "dangerous to convict"? The answer is clearly, "No." The obligation of a Judge in circumstances where a warning of this kind is to be given is, however, to make it clear by way of warning, rather than by way simply of commentary, what are the dangers of conviction which the circumstances of the case present.

2. The matter has been examined in a number of cases. Crampton is one, perhaps, of the more recently reported of the High Court decisions, and there have been a number in this Court. Reference may be made to such decisions of this Court as James v The Queen [2000] WASCA 100, Christophers v The Queen (2000) 23 WAR 106, and perhaps most recently the case of Dawe v The Queen [2001] WASCA 306 where the matter was extensively discussed, including reference to the recent decision of the High Court, as yet unreported, in the case of Doggett v R [2001] HCA 46.

3. The message from all these authorities is, in my opinion, consistent and abundantly clear. The short answer to question 2 is, "No," but that of course is not the end of the story; nor would it be, without further elaboration, an answer which it would be useful to give. The further elaboration has been provided by the cases to which I referred. I refer particularly to the judgment of the Chief Justice in Dawe at par 4 and to the judgment of Steytler J at par 47, but there is no need, I think, in the present context to elaborate in any way in providing an answer to question 2. I would leave the matter at that point.

4. STEYTLER J: I agree with what has been said by Murray J. It seems to me as regards the first question posed that the answer must depend upon the facts and circumstances of each individual case and that it is neither practicable nor helpful to answer that question in a vacuum, if indeed it is a question of the kind contemplated by s 693A of the Criminal Code.

5. So far as the second question is concerned, this has previously been answered by this Court, most recently in the case of Dawe v R [2001] WASCA 306. While it may often be convenient and appropriate to use the word "dangerous" depending upon the circumstances of the case in question, it is the message to the jury that it is important rather than the individual choice of words to be used to convey that message.

[2001] WASCA 316

EINFELD AJ

1. EINFELD AJ: I too agree that there is no point in attempting to answer these questions for the reasons that have been given by the other members of the bench.