Sweeney v Wallace
[2002] WASCA 248
•9 SEPTEMBER 2002
SWEENEY -v- WALLACE [2002] WASCA 248
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 248 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:10/2002 | 20 JUNE 2002 | |
| Coram: | MURRAY J STEYTLER J TEMPLEMAN J | 9/09/02 | |
| 29 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | SEAN LEONARD SWEENEY STEPHEN MICHAEL WALLACE |
Catchwords: | Appeal Appeal against conviction in the Children's Court of WA Whether trial miscarried because of the extent to which the trial Judge intervened in the trial process |
Legislation: | Nil |
Case References: | Fleming v The Queen (1998) 197 CLR 250 Galea v Galea (1990) 19 NSWLR 263 Gipp v The Queen (1998) 194 CLR 106 Jones v National Coal Board [1957] 2 QB 55 M v The Queen (1994) 181 CLR 487 R v Thompson [2002] NSWCCA 149 S v The Queen (1989) 168 CLR 266 Yuill v Yuill [1945] 1 All ER 183 Banks v Properjohn, unreported; FCt SCt of WA; Library No 92033; 17 February 1992 Calvetti v Warner, unreported; SCt of WA; Library No 8960; 4 July 1991 Jones v The Queen (1997) 191 CLR 439 Osland v The Queen (1998) 197 CLR 316 Pezzino v The Queen [2001] WASCA 256 Watt v Thomas [1947] AC 484 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : SWEENEY -v- WALLACE [2002] WASCA 248 CORAM : MURRAY J
- STEYTLER J
TEMPLEMAN J
- Appellant
AND
STEPHEN MICHAEL WALLACE
Respondent
Catchwords:
Appeal - Appeal against conviction in the Children's Court of WA - Whether trial miscarried because of the extent to which the trial Judge intervened in the trial process
Legislation:
Nil
Result:
Appeal dismissed
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Category: B
Representation:
Counsel:
Appellant : Mr I Weldon
Respondent : Mr K P Bates
Solicitors:
Appellant : Altorfer & Stow
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Fleming v The Queen (1998) 197 CLR 250
Galea v Galea (1990) 19 NSWLR 263
Gipp v The Queen (1998) 194 CLR 106
Jones v National Coal Board [1957] 2 QB 55
M v The Queen (1994) 181 CLR 487
R v Thompson [2002] NSWCCA 149
S v The Queen (1989) 168 CLR 266
Yuill v Yuill [1945] 1 All ER 183
Case(s) also cited:
Banks v Properjohn, unreported; FCt SCt of WA; Library No 92033; 17 February 1992
Calvetti v Warner, unreported; SCt of WA; Library No 8960; 4 July 1991
Jones v The Queen (1997) 191 CLR 439
Osland v The Queen (1998) 197 CLR 316
Pezzino v The Queen [2001] WASCA 256
Watt v Thomas [1947] AC 484
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1 MURRAY J: In respect of this appeal against conviction I have had the advantage of reading in draft the reasons to be published by Templeman J with which I am in general agreement. I wish to add some observations of my own.
2 The case comes before this Court on appeal from convictions recorded after a trial before French DCJ sitting as the President of the Children's Court in Geraldton. The Children's Court was exercising its exclusive jurisdiction under the Children's Court of Western Australia Act 1988 (WA), s 19(1) and (2) because the offences allegedly committed by the appellant were said to have occurred on 3 June 2001, at which time the appellant was aged 17, although by the time of the trial in December 2001 the appellant had attained the age of 18 years.
3 There were originally nine charges joined in the one complaint. Counts 1, 3 and 9 charged offences of indecent dealing with a child over the age of 13 and under 16, contrary to s 321(4) of the Criminal Code (WA). She was in fact aged 14 years at the time. The other six counts were of alleged sexual penetration, in each case, it would seem, digital penetration, contrary to s 321(2) of the Criminal Code. Neither of those offences is capable of being dealt with summarily and so the charges were being tried in the Children's Court under s 19B of the Children's Court Act because the appellant did not elect to be dealt with in the District Court.
4 It appears from the record of the proceedings that the procedure in s 19B(4) had been followed and statements of proposed prosecution witnesses had been served on the defence. Although in this case the prosecution was conducted by a police officer, it seems that that was at the behest of the State Director of Public Prosecutions who would have assumed the conduct of the prosecution in the place of the complainant. Under s 19B, the trial which took place before the Judge was to be conducted as if it were a trial on indictment, but by a judge sitting alone and not with a jury.
5 Any convictions in such a case are deemed to be convictions on indictment and so the rights of appeal are those conferred by the Criminal Code and hence the matter comes before this Court. By the Code, s 689(1), the appeal is to be allowed if this Court thinks that the verdict of guilty, "… is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before whom the appellant was convicted should be set aside on the ground of a wrong
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- decision of any question of law or that on any ground there was a miscarriage of justice".
6 That provision is in terms identical with the equivalent provision of the NSW Criminal Appeal Act 1912, s 6(1) which was considered by the High Court in Fleming v The Queen (1998) 197 CLR 250. That case is authority for the propositions that in a case where the trial is by Judge alone, the verdict will be regarded as unreasonable or unable to be supported having regard to the evidence where the appellate court considers, on a thorough review of the evidence, that the verdict is unsafe and unsatisfactory in the same sense as that term is used in the context of jury trials, ie, that the tribunal of fact, properly instructed, ought to have entertained a reasonable doubt as to the appellant's guilt: see M v The Queen (1994) 181 CLR 487, 492 – 495; Gipp v The Queen (1998) 194 CLR 106, 114. As it was held in Fleming, that is a basis for allowing the appeal which is quite independent of those cases where there has been an error of law of a kind which makes it necessary to quash the conviction or where, because of procedural or other error, a miscarriage of justice in the trial process can be discerned.
7 The grounds of appeal argued in this case contain assertions that the verdicts are unreasonable and cannot be supported having regard to the evidence, as well as assertions of error on the part of the trial Judge in the manner in which the trial was conducted. Before turning briefly to the contentions raised, it is necessary to understand of which offences the appellant was ultimately convicted.
8 Templeman J has discussed in detail the factual circumstances, the evidence and the way in which it was elicited. I do not repeat that comprehensive review of the evidence and the trial process. The first three charges were said to be of two acts of indecent dealing and one of digital penetration which allegedly occurred in the bedroom of the house in question, to which the complainant had gone to change for the party. As Templeman J has noted, at the conclusion of the prosecution case a no case submission was made in respect of all the charges. At that point French J dismissed the two charges of indecent dealing in the bedroom upon the ground that there was indeed no evidence capable of supporting those charges. That left one charge of sexual penetration in the bedroom, count 2, and that was an offence of which her Honour ultimately convicted the appellant.
9 The remaining charges, counts 4 to 9 inclusive, were of offences all allegedly committed in the bathroom while the complainant was in the
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- bath. Counts 4 to 8 inclusive were of offences of digital penetration, although not particularised as such, being merely charges of sexual penetration. In other words, the allegation was that on five separate occasions while the complainant was in the bath she was digitally penetrated. As can be seen from the review of the evidence by Templeman J, she did ultimately give evidence of a number of such occasions but, as has also been seen, her evidence was confused and internally inconsistent in relation to the number of those offences. Ultimately the trial Judge was unable to reach a conclusion beyond reasonable doubt as to how many such offences there were, but she expressed herself to be satisfied to the required standard that the complainant was digitally penetrated at least once.
10 As Templeman J has observed, her Honour felt that it was "most likely" upon the complainant's evidence, which her Honour generally accepted, "that there was not one isolated count of digital penetration in the bathroom, but on the basis that there is some doubt as to precisely how many times that occurred, the [appellant] has to be given the benefit of the doubt". Her Honour in fact convicted the appellant of one such offence, count 7 on the complaint. She had already acquitted the appellant of count 8 in the course of the no case submission and she dismissed counts 4, 5 and 6 at the conclusion of the trial. There seems to be no particular reason why her Honour decided to record the conviction against count 7, but it is abundantly clear that her Honour acquitted the appellant of all other allegations of digital penetration in the bathroom, beyond that one.
11 Finally, count 9 on the complaint was a charge of indecent dealing, not particularised, but by biting the complainant on the pubic area while she was in the bath. The appellant was convicted of this offence also.
12 I turn first to the contention made by the second ground of appeal that these verdicts of conviction were unreasonable and cannot be supported having regard to the evidence. There is little in this respect that I would wish to add to the reasons of Templeman J. Certainly the complainant's evidence was in a number of respects both internally inconsistent and inconsistent with what she had originally said to the police. Her evidence was contradicted by that given by the appellant and in some respects by the complainant's aunt, at whose house the incidents occurred. There was a lack of independent evidence corroborative of the complainant's story. The examining medical practitioner did not see the reddened area where the bite allegedly occurred. There was, however, evidence from a female police constable which supported the evidence of
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- the complainant in that regard. The complainant had made a complaint that she had been raped and that was the subject of submissions concerning her credibility.
13 But all of the difficulties were debated before French J and her Honour thoroughly reviewed the evidence and gave reasons for her conclusions of fact which seem to me, with respect, to have been well open to her. Her Honour might have come to a different conclusion, but she was the trial Judge who had the advantage of observing the witnesses and hearing the evidence as it came out. Indeed, to some extent it was elicited by her. I can see no reason to suppose that the conclusions of fact to which the trial Judge came were not open to her. It is not the case, in my opinion, that her Honour must have had a reasonable doubt about the guilt of the appellant, having regard to the proper way she approached the fact-finding process. I agree that ground 2 is not made out.
14 The first ground of appeal raises three distinctly different matters of complaint concerned with the trial process and the convictions which were ultimately recorded. The first is that so far as the bathroom was concerned, the trial Judge did not identify the particular act of sexual penetration of which the appellant was convicted. The ground is therefore one of uncertainty of conviction.
15 Reliance is placed upon the decision of the High Court in S v The Queen (1989) 168 CLR 266, but that case was not at all like this. There, each count on the indictment charged an act of carnal knowledge or sexual penetration on a date unknown in a nominated calendar year. The complainant's evidence was of a number of specific acts of intercourse which were capable of being, but would not necessarily fall, within each nominated period. The conviction of one such charge in each year was quashed for the reason that there could be no certainty of which particular offence the jury had been satisfied beyond reasonable doubt.
16 In this case, after one charge was dismissed on the submission of no case, it was left to her Honour to consider whether guilt had been established beyond reasonable doubt of all or any of the remaining four specific charges which were related to the events in the bathroom. When her Honour found herself satisfied beyond reasonable doubt that the complainant had been sexually penetrated only once, it mattered not, in my opinion, of which count of such a specific offence the appellant was convicted.
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17 The next complaint made in this ground of appeal is concerned with the intervention by the trial Judge in the proceedings, particularly her Honour's intervention which had the effect of adducing evidence from the complainant. The detail of the course of events has been narrated by Templeman J. I agree with his Honour that this ground of appeal is not made out. As has been observed, the prosecutor was a police officer apparently untrained in the arts of advocacy. It is evident from the transcript that he had great difficulty in leading the complainant's evidence. When one reads the transcript, one is left with the distinct impression that at the conclusion of the efforts of this officer, unskilled as they were, the complainant had not been assisted to overcome her shyness and reticence and to tell her story to the best of her recollection.
18 Although the intervention of the trial Judge to further question the witness prior to her cross-examination was extensive, reading the transcript one does not get the impression that the trial Judge descended into the arena and adopted the role of prosecuting counsel. Nor is it apparent that her Honour created any unfairness to the prosecution by the manner in which she intervened. So far as the position of the appellant is concerned, it is perfectly clear that under questioning by French J, the complainant gave evidence against the appellant which she had not previously given, but to my mind, that of itself cannot be said to have made the trial process unfair.
19 The trial Judge was properly concerned to see that the complainant had every opportunity to tell her story with whatever strengths and weaknesses (and as told there were many of the latter) the story might possess. It is clear from the way in which the trial Judge evaluated the evidence that she did so dispassionately and objectively. Her Honour did not identify herself with the complainant, although in the end her Honour's view was that the child was a compelling witness, within the limitations which her evidence possessed. Again, I agree with the conclusion of Templeman J in respect of this ground.
20 Finally, the ground suggests that a miscarriage of justice occurred because French J "relied on collateral material", the complainant's statement made out of court to investigating police officers, which it is said was not in evidence. Certainly it was not tendered, but then that is very often the case when a prior inconsistent statement is put to a witness in the course of cross-examination, as occurred here. The procedure followed was that provided in the Evidence Act 1906 (WA), ss 21 and 22. There was no need to tender the document in evidence. The inconsistencies were put and the witness's response elicited. The trial
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Judge adverted to the arguments made by defence counsel about inconsistency between the complainant's evidence and the out-of-court statement in giving her reasons for the convictions she entered. I can see nothing in this process which may give rise to a miscarriage of justice.
21 For the reasons given by Templeman J and these additional reasons, I also would dismiss the appeal.
22 STEYTLER J: I have had the advantage of reading the reasons for decision of Templeman J and also the additional reasons of Murray J. I agree with what each of them has said and consequently with the conclusion that the appeal should be dismissed. There is nothing I wish to add.
23 TEMPLEMAN J: The appellant appeals against his conviction in the Children's Court of Western Australia on two counts of sexual penetration of a child between the ages of 13 and 16 years, contrary to s 321(2) of the Criminal Code and on one count of indecent dealing with that child, contrary to s 321(4). The complainant was a 14-year-old girl.
24 The appellant, who was 17 years of age at the material time, was convicted after a trial before her Honour Judge French, sitting alone.
25 Although the grounds of appeal raise a number of issues, the appellant's primary contention is that the trial miscarried because of the extent to which the learned trial Judge intervened in the trial process, by conducting a substantial part of the examination-in-chief of the complainant.
26 There were nine charges against the appellant. Three charges alleged indecent dealing with the complainant at Rangeway on 3 June 2001. The other six charges alleged that the appellant had sexually penetrated the complainant at Rangeway on the same date. The charges were not particularised: and no particulars were sought.
27 Before turning to the grounds of appeal, it will be convenient to summarise the course which the trial took.
The trial commences
28 The trial commenced at 10 am on 13 December 2001. The prosecution was conducted by a police sergeant. The appellant was
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represented by counsel (not counsel who appeared on the hearing of this appeal).
29 The prosecutor did not open the case to the trial Judge. This is unsatisfactory, particularly where there are several charges and the defence has not been given particulars.
30 The first prosecution witness was the doctor who had examined the complainant a few hours after the offences were alleged to have been committed. The doctor was called first, as a convenience to him and without objection. I shall refer to the doctor's evidence later in these reasons.
The complainant's evidence
31 The complainant gave her evidence by video link, having regard to her age.
32 The prosecutor commenced his examination-in-chief by informing the complainant that they were in court to find out what had occurred on Sunday 3 June 2001, when the complainant went to a party at her Aunt's house. The complainant was asked whether she remembered that. She said she did.
33 The complainant said she had arrived at her Aunt's house at about 11.45 am and that the appellant and two other people were there.
34 The complainant said that they did not start drinking until about 4.00 pm: and that she was then drinking red beer, vodka "the cans" and a glass of what she thought was rum and coke; but she could not remember. She said she started getting "really sick", and that she finished drinking about 6.00 or 7.00 pm.
35 It was then put to the complainant that at about 7.00 pm she had gone to the bedroom of her cousin, Robyn, to get ready for the party.
36 Counsel for the appellant then requested the prosecutor not to lead the witness. The Judge told the prosecutor it was important not to lead at that stage of the evidence. The prosecutor then asked the complainant to tell the Court what happened from that point onwards.
37 The complainant gave the following evidence:
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- "By that time I went into the room to get changed, and then (the appellant) came after me and he pushed me against the bed, and he held my arms tight, which left a bruise, and then I told him to go away. I can't remember what happened afterwards. I'm sorry, I can't remember."
38 The complainant was then asked whether there was anybody in the room when she entered. She said there was not. She was then asked what she had been doing in the room. She answered "getting changed".
39 The prosecutor then asked if the complainant could remember what happened while she was getting changed. The complainant answered:
"Not really. I just remember being pushed onto the bed, (the appellant) started fingering me, you know, I told him no, so he left. And that's all I remember."
40 The prosecutor asked some further questions. These did not result in any further evidence being elicited but they prompted the Judge to remind the prosecutor that it was very important not to lead. Following that interjection by the Judge, the prosecutor asked the complainant what had happened after she "fell onto the bed". The complainant said she did not remember.
41 The prosecutor then asked the complainant whether she remembered anything that happened after that. The complainant said:
"We went outside. We danced. And then I started feeling seedy."
42 When asked what she had then done, the complainant said she told her cousin that she was going to have a bath: and that the appellant said he would take her to the bathroom.
43 The complainant described the location of the bathroom. She was then asked what happened when she went into the bathroom. She said:
"(the appellant) was in there, I told him to leave, so I could get changed. He left as I was undressing myself, he returned, I told him to leave again, and when I was in the bath … and because (the) water had been cut off, that somebody had to bring in hot water, and (the appellant) was the one bringing in hot water."
44 The prosecutor then invited the complainant to "keep going". The complainant said:
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- "And then … your Honour, I can't remember that bit."
45 The complainant was then asked who was bringing the water into the bathroom. She answered that it was the appellant and no one else. When asked if she remembered what happened, the complainant said "bits and pieces".
46 The prosecutor then invited the complainant to tell the Court what she could remember. The complainant said:
"A while after he started bringing in the water, he started molestering (sic) me, and I told him to leave. I was scared. I didn't know what to do. But he just kept on coming back."
47 The complainant said the appellant brought water to the bathroom four or five times and that she had stayed in the bathroom for "a fair while": she said that the bathroom door could not be closed.
48 The prosecutor then asked the complainant what happened after she had finished in the bathroom. She said:
"I jumped out of the bathroom, and I got dressed and I went and told my Aunty, but she didn't believe me. I went outside, went to a desk, and hit myself on the head which I didn't realise I did, I blanked out. I woke back up. My cousin was going psycho at me. My Aunty took me to a place in Gertrude Street … where my sister was staying. I then tried to kill myself. And then I wouldn't let anyone touch me, I only wanted one person, and that was my sister … and my sister … rang up to get her to pick me up. They picked me up and took me home, and that’s when Mum found out, and then the cops became involved."
49 The prosecutor then asked how many times the appellant had come into the bathroom. The complainant said it was five times; and then immediately, afterwards that it was four or five times. When asked what happened when the appellant came into the bathroom, the complainant said he had molested her. The prosecutor then told the complainant she would have to tell the Judge what the appellant had done. The complainant answered:
"He inserted his fingers into my vagina and started … he bit me on my … outskirt (?) of my vagina."
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50 The complainant said she did not know on which occasion when the appellant had come into the bathroom, he had committed that act.
51 The complainant then said that the appellant had told her to "shh" when he came into the bathroom, because she was crying: that she had said "no, get out". When asked what volume of voice she had used the complainant said:
"I was that scared that I hardly said a word."
52 That was the extent of the evidence against the appellant elicited by the prosecutor in his examination-in-chief. After a few further questions, the prosecutor told the Judge he did not think he could take the matter any further.
53 At that point, the only evidence against the appellant was that he had committed some assault against the complainant in the bedroom, a matter with which he had not been charged. There was then evidence that the appellant had "started fingering" the complainant. That was a vague allegation which may well not have warranted cross-examination. And there was evidence that in the bathroom, the appellant had inserted his fingers into the complainant's vagina and bitten her in that region. Again, the evidence was somewhat vague.
54 The Judge clearly reached the same conclusion. She said to the appellant's counsel:
" … There are just a couple of questions that perhaps at this stage allow you to cross-examine. Its just that unless there are a couple of things that are clarified, there's a couple of things that I want to ask (the complainant), and I'm just foreshadowing that to you. I can either do it now, or I can allow you to cross-examine further after I do that … (indistinct) …"
55 Counsel then said he preferred the Judge to ask the questions at that point. Counsel said he had a concern, apparently arising from the fact that there were nine counts and (as I interpret counsel's comments), because it was unclear to him which counts had been addressed by the complainant's evidence. The Judge asked counsel whether he had asked for particulars of the charges.
56 Although counsel's answer appears to have been incomplete, the sense of it was that he had not; but that he had "sort of" worked that out from the complainant's statement.
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57 Following that exchange, the Judge said she proposed to ask the complainant "a few questions" and that she thought it better that she did it then.
58 The Judge then told the complainant there were "just a couple of questions I wanted to ask you". The Judge then proceeded to conduct a further examination-in-chief of the complainant. Although the Judge asked some leading questions, she did not do so in relation to the crucial evidence. It is not necessary to recite the whole of the further evidence-in-chief. It is sufficient to record that the Judge elicited the following evidence:
• In the bedroom, when the appellant "started fingering" the complainant, he inserted his fingers into her vagina while she was lying down on the bed, with her legs hanging over the bed but not touching the ground, and while the appellant was standing in front of her.
• The appellant slowly pulled the complainant's pants down. She said "No". The appellant put his hand over her mouth, then inserted his fingers and then walked out.
• The complainant thought the appellant had inserted two fingers half way into her vagina but she was unable to say how long they remained there.
• In the bathroom, the complainant got into the bath which had water in it to the depth of "about my hand length": the complainant could not say what that amounted to in centimetres.
• The water covered her "private area down below".
• The appellant came into the bathroom, bringing water in a kettle which he handed to the complainant who poured the water into the bath.
• The appellant went and got more water.
• The appellant then brought more hot water in the kettle. He told the complainant that she was too drunk to pour the water herself and so appellant did it. Having done so, he inserted his fingers into her vagina. The complainant could not say which hand the appellant had used but that
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- he had inserted two fingers "all the way in, because it hurt". At the time, the appellant was bending over the bath.
- • The complainant pushed the appellant's hand out. He put it back in. The complainant said something but the appellant went "shh" and put his hand over her mouth and then took it off.
• The appellant kept coming back and on the second, third or fourth time he returned to the bathroom he bit the complainant on the outskirts of her vagina.
• The appellant inserted his fingers into her vagina five times.
59 At the end of that further examination-in-chief, the Judge said to the prosecutor:
"I'm sorry for interfering to that extent, but I thought it was appropriate. It is not an easy thing to ask questions in relation to this, its particularly difficult when its remote television."
- Then, addressing the appellant's counsel, the Judge said:
"I thought it was important to raise those matters now rather than leaving it to the end of your cross-examination … it was I think fragmented too much."
61 Although the Judge said she regarded it to be preferable to raise the matters as she did, rather than at the end of cross-examination, there may well have been very little cross-examination of the complainant had matters remained as they were at the conclusion of the examination-in-chief by the prosecutor.
62 In the course of cross-examination, the complainant was asked some detailed questions about the events which had occurred in the bathroom. Her evidence contained a number of inconsistencies. She said initially that she did not remember whether she had been sitting or lying in the bath. Later she said she had been sitting up in the bath. The complainant
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- then said she had covered her "private parts" with her hand. Later, the complainant said her legs were covering "the lower half".
63 The complainant also seemed to be unsure about the allegations of digital penetration.
64 Later in her cross-examination, it was put to the complainant that nothing had happened to her in the bedroom or the bathroom. The complainant said that was not correct.
65 It was then put to the complainant that the first kettle of hot water had been brought into the bathroom by her Aunt. The complainant denied that. She said her Aunt had not come into the bathroom. It was also put to the complainant that although the appellant had brought kettles of water to the bathroom, on each occasion he had passed the kettle through the door but had not come into the bathroom himself. The complainant said:
"The first time he opened the door, and he asked me, 'Here's the hot water.' I don't hardly remember. I was drunk. It's hopeless."
66 After a short adjournment at the complainant's request, the complainant was asked about the allegation that she had been bitten in her genital area. She said the injury left a red mark. She said she did not remember whether the red mark was visible but that the doctor "had a look". When asked whether the complainant had shown the mark to the doctor, she said "it took me forever" but that she showed it to him "eventually".
67 The cross-examination also highlighted some apparent inconsistencies between the complainant's evidence and her statement to the police and the statements she had made to other witnesses. It was put to the complainant that she had told her aunt and her sister on the evening in question that the appellant had raped her. The complainant said she thought she had said "molested": although "back then, when it happened, I didn't know what rape and molested both mean, until I got told".
68 There was no re-examination. However, the Judge asked the complainant when she had first noticed the red mark. The complainant said she remembered that the appellant had bitten her and she had told the doctor. The complainant said she had had to look for the mark and had then been taken to show it to the doctor.
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69 The next witness was the complainant's brother, who had been at the party on the day in question. He gave evidence about the complainant telling him during the afternoon that she had been feeling sick. He had seen the complainant going to the house: and he had seen the appellant go in an out of the house "a couple of times" and that later, the complainant had come out of the house crying and asking for her sister.
70 In cross-examination, the complainant's brother gave evidence about his Aunt videoing the party.
71 It was put to the complainant's brother that the appellant had been dry and that he was not "soaking wet or anything else like that". The witness said he had not noticed.
72 One of the complainant's sisters was then called to give evidence. She had not been at the party but had spoken to the complainant between 9.30 and 10.00 pm on the night in question. The complainant had been brought to her house by her Aunt and had complained about the appellant molesting her.
73 The remaining prosecution witnesses were police officers who had been involved on the night in question or in the course of subsequent investigations.
74 One officer, a female constable, had accompanied the complainant and her mother to the Geraldton Hospital in order that the complainant might be examined by a doctor. The Constable said that the complainant had been crying, was very upset and was shaking at times. She said the complainant was very timid and very hard to understand at times.
75 The Constable said that during the medical examination, at which she had been present, the complainant told the doctor that the appellant had bitten her. The constable said that she had been sitting on the other side of a curtain at that stage but that she spoke to the complainant and said it was important that she view the bite. The Constable said that the complainant then showed her "that the bite was on the outside of her vagina; more so on the pubic bone in the front area". The Constable said it was a red mark, but that it was hard to say whether it was a bite or not.
76 I pause to note that in the cross-examination of the doctor (who had been the first witness) he said that he made notes of everything he had observed and that he had examined the complainant's genital area. The doctor said there was no evidence of redness or tenderness in that region and that there was no red mark on her vagina or any medical evidence that
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- could establish that her vagina had been bitten. I assume the questions were asked, and answered, on the basis that the intention was to refer to the complainant's vulva.
77 Another police officer gave evidence that he had visited the house where the offences were alleged to have taken place. He had inspected the bathroom which was a small room containing "an old style bath". The police officer had not taken any measurements of the bath: nor had he undertaken any tests to see whether it would have been physically possible for the appellant to have leaned over the bath and bitten the complainant as she alleged he had done.
A submission of no case to answer
78 At the conclusion of the prosecution case, counsel for the appellant made a submission of no case to answer.
79 In the course of the submission, counsel told the Judge that it was his understanding that the complainant's evidence at its highest disclosed five offences of digital penetration and one of indecent assault (the biting).
80 At that point, the Judge asked if counsel was querying how nine charges could arise from those six allegations. This led to considerable debate between counsel for the defence, the prosecutor and the Judge in an attempt to link the bare allegations in the charges to the evidence which had been given. There was considerable confusion. In the end, the charges were not linked to the evidence but the Judge upheld the no case submission in relation to complaints 1, 3 and 8. That was a ruling given during the course of argument: the Judge did not give a formal judgment.
81 Three points emerged from the submissions. First, the prosecutor conceded that there was no indecent dealing in the bedroom. Secondly: when the Judge noted that the appellant had not known the case he had had to meet, his counsel said, "It wasn't a difficulty at all". That is consistent with counsel's earlier statement to the effect that he had "sort of" been able to work out the particulars of the charges from the complainant's statement.
82 In my view, that concession disposes of the complaint on the appeal about the lack of particularity in the charges.
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83 Thirdly, the Judge conceded that "on a closer examination" at least one of the other charges relating to digital penetration may not be made out due to the lack of specificity in the complainant's evidence. The Judge pointed out that she did not have a transcript and that her notes did not include all of the responses the complainant had made to her own questions. The Judge said she would have to listen to the tape.
The defence case
84 The appellant gave evidence on his own behalf. He denied that any digital penetration had occurred in the bedroom. As to the bathroom, the appellant said that the complainant's Aunt had brought the first kettle to the complainant and he had brought three more. He said on each occasion he passed the kettle through the doorway but did not enter the bathroom. He said he had not touched or bitten the complainant while she was in the bathroom.
85 Cross-examined, the appellant said he had taken the complainant to the door of the bedroom but that he had not entered it: he had returned to the kitchen.
86 At that point, counsel for the appellant interjected. He said it was not alleged by the prosecution that the appellant had gone into the bedroom. The Judge said "not at that stage": and the prosecutor agreed.
87 As I understand counsel's point, it was that the complainant had not alleged that the appellant had accompanied her into the bedroom but that he had entered the bedroom some time after she did.
88 However, the prosecutor asked no further questions directed to the complainant's evidence about the appellant's conduct in the bedroom. Indeed, the prosecutor put to the appellant:
"At no time did you sexually assault her?"
- The appellant said he did not.
89 Neither did the prosecutor put to the appellant the complainant's evidence about the digital penetration or biting in the bathroom. The prosecutor merely asked the appellant about taking the kettles to the bathroom. The prosecutor asked the following questions:
"Q. … and your evidence is that at no time did you go in the bathroom?
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- A. No. Not one time whatsoever I did.
Q. At no time did you sexually assault her?
A. No. I didn't …
Q. So at no time did you put your fingers in her vagina?
A. No.
Q. At no time did you bite her on the vagina?
A. No."
90 At the end of the cross-examination by the prosecutor (AB108), the Judge intervened and asked a series of questions which occupy two pages of transcript. The questions in the transcript (AB 109-110) are wrongly attributed to the prosecutor, they were in fact, asked by the Judge.
91 Counsel for the appellant said nothing did arise. There was no re-examination.
92 On the second day of the trial, counsel for the appellant called the complainant's Aunt. She explained that because her water supply had been restricted, through non-payment of rates, her hot water system had not been working and that it was therefore necessary to take kettles of hot water to the bathroom.
93 The witness said she took the first kettle of hot water to the bathroom and that she poured the first kettle into the bath. She said she told the complainant to move up to the end of the bath so that the hot water would not burn her. The witness said that there were at least three more kettles of hot water which she passed to her younger daughters who took them to the bathroom.
94 The witness gave evidence about the complaint made to her by the complainant who said "I think I've just been raped".
95 The witness then gave evidence that she had noticed the appellant dancing at the party and that he was dry. The witness said she had videotaped part of the party. The videotape, which ran for about 10 minutes, was then played to the Court and tendered in evidence.
96 In cross-examination, the prosecutor did not challenge the witness' evidence that she had taken the first kettle into the bathroom.
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The judgment
97 The closing submissions occupied the Court until the luncheon adjournment. Upon resumption, the Judge said it had taken her a little longer than she expected to reach a decision because she had listened to some of the tapes, there being no transcript.
98 The Judge then delivered a lengthy extempore judgment in which she summarised the evidence given by each of the witnesses.
99 The Judge then referred to submissions made by counsel for the appellant about the inconsistencies in the complainant's evidence in court and other inconsistencies between her evidence in court and the contents of the statement she had given previously to police officers. The Judge accepted that there was some inconsistency or even confusion in the complainant's evidence. The Judge accepted also that there was no medical evidence to confirm any of the complainant's allegations. The Judge went on:
"However, after having seen and heard the complainant's evidence, and after having considered it in the light of all the evidence in this case, and also having considered it from a perspective of the matters raised in the defendant's submissions, I find the complainant to have been an extremely credible witness in this case."
100 Dealing with the allegations about digital penetration in the bathroom, the Judge said:
"I am not satisfied beyond reasonable doubt that as (the complainant's) evidence stands, that that happened on more than one occasion in the bathroom … . However, I am satisfied on the basis of the complainant's evidence which I find to be not only credible, but quite compelling, that the (appellant) digitally penetrated her in the bedroom, as she described … once in the bathroom and that in addition that he bit her in the vaginal or genital area in the manner that she described."
101 As to the biting, the Judge referred specifically to the lack of independent evidence:
"The biting was certainly not seen by the doctor, but I am satisfied on the basis of the complainant's evidence that she observed a red mark, it was observed by the constable. The …
(Page 21)
- (indistinct) … as to it wasn't observed by the doctor I simply don't know. Either he didn't note it down, … that seems unlikely, it is more likely that he simply didn't see it. The complainant herself said it was very hard to see. There was never any allegation it was anything in the nature of a real injury, and I am satisfied on the basis of her evidence that that incident did occur."
102 The Judge then dealt with the submission made by counsel for the appellant that it would have been physically impossible for the appellant to have bitten the complainant while she was in the bath, as she had alleged. The Judge said:
"In relation to the allegations that the actions were impossible, I have had due regard to the photographs. There is a milk crate sitting next to the bath, the bath is, in my opinion, not so high as to render it impossible, or even that difficult, for the complainant (sic appellant) to have committed the offences in the manner described by the complainant. Although the complainant talks about the water covering her genital area, and of keeping her legs together, taking into account all of the evidence in this case I do not find there is a great deal of significance in, particularly when one takes into account that this was a young girl who was drunk, who was sitting in a bath with a bit of cold water around and someone pouring some water from a kettle around her in the manner that she described.
If one is looking at the photograph and said in any event the bath was not that high, would not have been a difficult thing to do. There is no evidence that puts her … the actual genital area at any particular level when these incidents occurred with any degree of precision that would make any finding that this was physically impossible, a matter of any significance in this case, in the light of the complainant's evidence."
103 Towards the end of her reasons, the Judge again referred to her finding that the complainant was "a most compelling witness". The Judge said she based that finding not only on the "substantive content" of the complainant's evidence but on the fact that she did not appear to have been exaggerating or to have been providing answers when she did not remember the things about which she was asked. However, the Judge said although the complainant could not remember the chronological
(Page 22)
- order of events, she had been adamant and was an extremely compelling witness:
"At all times during her evidence-in-chief and cross-examination, she was certain that the incidents of digital penetration occurred, in the bedroom and in the bathroom."
The Appeal
105 There are two grounds of appeal: a third was abandoned at the hearing. The first ground was as follows:
"1. The trial judge erred in fact or in law in that she:-
(a) having found the appellant guilty of 1 count of 5 counts of sexual penetration in the bathroom did not identify which act of sexual penetration he was guilty of;
(b) intervened in the conduct of and exceeded her role to obtain clarification of the complainant's evidence by conducting an examination in chief of the complainant;
(c) relied on collateral material namely the complainant's statement which was not evidence."
(Page 23)
107 I turn to ground 1(b) upon which the appellant placed greatest reliance. I shall deal with ground 1(c) under the same head.
The Judge's interventions
108 At the conclusion of the prosecutor's examination-in-chief of the complainant, the Judge was clearly placed in an invidious position. By intervening, the Judge ran the risk that she would be subjected to the kind of criticisms which have been raised in this appeal if she convicted the appellant. On the other hand, to do nothing, might have resulted in an injustice if, through the prosecutor's inability to adduce evidence from the complainant, an accused who was in fact guilty avoided a conviction.
109 In my view, it should be stated in the strongest terms that those responsible for prosecuting sensitive cases of this kind should take steps to ensure that they are conducted by appropriately qualified and experienced persons. In the present case, had the Judge not intervened, a submission of no case to answer at the close of the prosecution case might well have been successful, on the basis that the complainant's evidence was too vague as to justify any findings of guilty beyond a reasonable doubt. And yet, as it has now emerged, that would have been an unjust result.
110 The extent to which a Judge may properly intervene in the examination of witnesses was considered very recently by the New South Wales Court of Criminal Appeal in R v Thompson [2002] NSWCCA 149. In that case, the Court was concerned with the conduct of a County Court Judge who was presiding over a jury trial. The Judge had held a voir dire in the absence of the jury and had also intervened many times in the examination of witnesses. The Judge's conduct prompted the submission that the trial had miscarried because of the departure from the adversarial system. It was submitted that the trial had become inquisitorial in character.
111 Ipp AJA, with whom the other members of the Court agreed, rejected this submission. He held that despite the nature and extent of the Judge's interventions, the essential nature of the trial was adversarial. However, as Ipp AJA said, that conclusion had no bearing on the argument that the interventions had denied the accused person a fair trial.
112 As to that, Ipp AJA applied the principles enunciated by Kirby ACJ in Galea v Galea (1990) 19 NSWLR 263 at 281 – 282. It will be
(Page 24)
- convenient to adopt Ipp AJA's summary of those principles. They are as follows:
"1. The test to be applied is whether the excessive judicial questioning … [has] created a real danger that the trial was unfair. If so, the judgment must be set aside …
2. [G]reater latitude in questioning and comment will be accepted where a judge is sitting alone …
3. … the appellate court must consider whether … the judge has … moved into counsel's shoes and 'into the perils of self-persuasion' …
4. The decision on whether the point of unfairness has been reached must be made in the context of the whole trial and in the light of the number, length, terms and circumstances of the interventions …
5. It is also relevant to consider the point at which the judicial interventions complained of occur. …
6. The general rules for conduct of a trial and the general expression of the respective functions of judge and advocate do not change … The conduct of criminal trials, particularly with a jury, remains subject to different and more stringent requirements …"
114 The Judge made some comments during the course of the cross-examination of the complainant, which, on one reading, suggested that the Judge may already have formed a favourable view about the complainant's credibility. At one stage, when the complainant asked for a break, the Judge said:
" … It's Judge French speaking. Now, we are getting through this. (Counsel for the appellant) has got a few more questions to ask, and, as I said to you before, he has to ask you these
(Page 25)
- questions. I know it sometimes seems hard to understand, because sometimes you have to go over these things again. That's just the way it has to be done. OK? So take a deep breath. (Counsel) is moving through what's happened and he's just going to ask you a few more questions. Alright? OK."
115 The reference to having to "go over these things again", and "moving through what's happened" might suggest, as it did to me in the course of submissions, that the Judge had formed a view, that "these things" had in fact happened. However, having now studied the transcript of the trial in its entirety, I do not think it right to draw that inference. We are here concerned with a very experienced Judge who was quite properly concerned to see that a child witness was not overborne by the circumstances in which she found herself. In my view, it is clear from the way in which the Judge ultimately reviewed the evidence, that she did not prejudge the issue, nor did she fall into the perils of self persuasion.
116 I appreciate that in forming the view that the complainant was a credible and compelling witness, the Judge no doubt took into account the answers to the questions which she had asked. But it does not follow that the Judge accepted the evidence, merely because she had elicited the answers. Indeed, the Judge did not, in the end, accept that there had been as many instances of digital penetration as the complainant had said there were in answer to the Judge's questions.
117 In these circumstances, and having regard to the principles summarised in par 1, par 3 and par 4 above, I do not think it can be said that, substantial though the Judge's interventions were, they resulted in unfairness to the appellant or a departure from the adversarial system. I accept that but for the Judge's intervention, the appellant might have been acquitted of some or all of the charges. But that does not mean his conviction was unfair.
118 I accept the general proposition stated by Denning LJ in Jones v National Coal Board [1957] 2 QB 55 at 64 that it is for counsel to examine the witnesses "and not for the Judge to take it on himself lest by so doing he appeared to favour one side or the other". Denning LJ went on to say that:
"The Judge's part in all this is to hearken to the evidence, only himself asking questions of witnesses when it is necessary to clear up any point that has been overlooked or left obscure; to see that the advocates behave themselves seemly and keep to
(Page 26)
- the rules laid down by law; to exclude irrelevancies and discourage repetition; to make sure by wise intervention that he follows the points that the advocates are making and can assess their worth; and at the end to make up his mind where the truth lies. If he goes beyond this, he drops the mantle of a judge and assumes the robe of an advocate; and the change does not become him well."
119 To a certain extent that principle begs the question: how is the Judge to know whether a point has been overlooked or left obscure? In the present case, there was much which had been left obscure in the complainant's examination-in-chief. And it was clear from the complainant's statement, which the Judge (following the usual practice) had been given, that several matters had been overlooked. Although, as I have said, that was a most unsatisfactory state of affairs, nevertheless I consider that the Judge, sitting alone, as he was, was entitled to ask the questions she did, given that the questions were asked in a neutral way without any apparent bias in favour of the complainant.
120 This, I think, disposes of ground 1(c). The Judge used the complainant's statement as a basis upon which to assess the effectiveness of the prosecutor's examination-in-chief of the complainant. The system permits a judge to do so: the judge in a criminal trial is always provided with a copy of the prosecution brief. I do not accept, however, that the Judge relied on the statement in the sense complained of. That is to say, I am not persuaded that the Judge made findings based on the statement. In my view, it is clear from her reasons that she made her findings from the evidence presented at the trial.
121 The question of judicial intervention was considered in Yuill v Yuill [1945] 1 All ER 183, which was followed in Jones v National Coal Board (supra).
122 In Yuill, Lord Greene MR said (at 185):
"The other argument was to the effect that the trial was unsatisfactory owing to the fact that the judge took an undue part in the examination of witnesses. It was said that the judge put many more questions to witnesses than all the counsel in the case put together and that he in effect took the case out of counsel's hands to the embarrassment of counsel and the prejudice of his case. The part which a judge ought to take while witnesses are giving their evidence must, of course, rest
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- with his discretion. But with the utmost respect to the judge it was, I think, unfortunate that he took so large a part as he did. I wish to say at once that having read the many pages of the transcript over which the judge's questions extend to the exclusion of counsel, often at the most critical points of the examination or cross-examination, I can find no trace whatever of any tendency to take sides or to press a witness in any way which could be considered undesirable. It is quite plain to me that the judge was endeavouring to ascertain the truth in the manner which at the moment seemed to him most convenient. But he must, I think, have lost sight of the inconveniences which, are apt to flow from an undue participation by the judge in the examination of witnesses. It is, of course, always proper for a judge – and it is his duty – to put questions with a view to elucidating an obscure answer or when he thinks that the witness has misunderstood a question put to him by counsel. If there are matters which the judge considers have not been sufficiently cleared up or questions which he himself thinks ought to have been put, he can, of course, take steps to see that the deficiency is made good."
123 Although that was a civil trial, the quotation is equally apt in the present case. Lord Greene MR went on to say that despite all the criticisms which he had made, he was quite unable to accept the argument that anything that took place would have justified the court in ordering a new trial.
124 In the end, despite my reservations about the conduct of the Judge in the present case, I have reached the same conclusion. I accept that justice must not only be done but must also appear to be done. In this Court, counsel for the appellant submitted, in effect, that was not a perception which his client was likely to have had at the trial. While I see the force of that submission, I think it right to say that despite the shortcomings of the trial process, a review of the case as a whole, shows that justice was done.
Ground 2
125 The second ground is as follows:
"2. The verdicts are against the evidence or the weight of the evidence or are unreasonable and cannot be supported having regard to the evidence in that:-
(Page 28)
- (a) as to charge numbers GN 327-33/01 the complainant's evidence in chief and evidence given in cross-examination was inconsistent both as to the circumstances of and the number of occasions she alleged she was sexually penetrated'
(b) such inconsistencies were not as Her Honour found a matter of minor detail;
(c) nor could the inconsistencies be explained by the complainant being drunk it being the evidence of two police officers who questioned her shortly afterwards that they did not observe her to be drunk;
(d) the medical evidence of Dr M J James-Wallace who examined the complainant found no evidence of sexual penetration nor evidence that the complainant had been bitten on the vagina;
(e) the evidence of recent complaint was that the complainant had been raped whereas the complainant's allegations were of digital penetration and of having been molested by the appellant."
126 In my view, it is a complete answer to these grounds to say that there was evidence which the Judge was entitled to accept and which justified the findings of guilt beyond a reasonable doubt.
127 I accept that there were inconsistencies as summarised above. However, the Judge had the advantage, which we, in this Court, have not, of seeing the witnesses and forming a view of their credibility in a way which is impossible from reading the transcript.
128 In particular, it was open to the Judge to accept the complainant's evidence that she had been drunk, even though police officers had not observed the complainant to be in that state. Equally, it was open to the Judge to accept the complainant's evidence about the appellant biting her in the genital region. The doctor who had examined the complainant agreed with the proposition that there was no medical evidence that could establish "that her vagina had been bitten". However, that was not the allegation. The allegation was "he bit me on the outskirt of my vagina": that is, in the genital region. Despite the doctor's evidence that there was
(Page 29)
- no evidence of redness or tenderness in the genital region, the Judge was entitled to accept the complainant's evidence that she had been bitten, and the police constable's evidence that she had seen the red mark. Clearly, the bite was of no great severity: the complainant said only that it "left a red mark". There was no evidence that the skin had been punctured. It was, however, an indecent dealing.
Conclusion
129 For all these reasons, I am not persuaded that there has been a miscarriage of justice. I would therefore dismiss the appeal.
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