Criminal law - Sexual offences - Complaint - Not made at earliest opportunity - Led in evidence - Admissibility - Conduct of defence rendering evidence admissible - Propensity evidence - Evidence of uncharged acts - Adequacy of warnings to jury in relation to such evidence - Longman warnings - Adequacy of

Legislation:

Evidence Act, s 36BD, s 50

Result:

Appeals dismissed

Representation:

Counsel:

Applicant: Mr J L R Marshall
Respondent: Mr R E Cock QC

Solicitors:

Applicant: J A Bougher
Respondent: State Director of Public Prosecutions

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

Cook v The Queen [2000] WASCA 78
Gipp v The Queen (1998) 72 ALJR 1012
Kailis v R (1999) 21 WAR 100
Kilby v The Queen (1973) 129 CLR 460
Longman v The Queen (1989) 168 CLR 79
M v R (1994) 181 CLR 487
R v Beserick (1993) 30 NSWLR 510
R v Osborne [1905] 1 KB 551

Case(s) also cited:

Gavin v R (1992) 6 WAR 195
HG v R (1999) 160 ALR 554
Johnston v R, unreported; CCA SCt of WA; Library No 960153; 22 March 1996
Lowndes v R (1999) 195 CLR 665
Podirsky (1989) 43 A Crim R 404
R v Birks (1990) 19 NSWLR 677
Schuster v R, unreported; CCA SCt of WA; Library No 970180; 23 April 1997
Trescuri v R [1999] WASCA 172
R v Wright [1999] VSCA 145

PIDGEON J: I agree with the reasons of Miller J and the orders he proposes.
WALLWORK J: I agree with the reasons and conclusions of Miller J. There is nothing I wish to add.
MILLER J: The applicant was charged on an indictment dated 6 April 1998 with 11 counts alleging sexual offences. On 29 January 1999 in the District Court at Kalgoorlie he was convicted of one count of unlawfully and indecently dealing with a child under the age of 13 years and two counts of indecently dealing with a child aged between 13 and 16 years who was then under his care, supervision or authority. In relation to other counts on the indictment, there were three verdicts of not guilty, three counts in relation to which the jury was unable to reach agreement, and one in which there was a verdict of acquittal by direction. A fresh indictment was presented on 20 September 1999 in which the applicant was charged with two counts of sexually penetrating a child between the ages of 13 and 16 years who was then under his care, supervision or authority and one of sexually penetrating a child between the ages of 16 and 18 years who was then under his…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading T v The Queen

Details

AGLC: T v The Queen [2000] WASCA 153
Case: [2000] WASCA 153
Decision Date: 2 JUNE 2000

CaseChat Overview and Summary

The case involved a defendant, T, charged with sexual offences against a complainant. The complainant did not report the alleged offences at the earliest opportunity. The issue before the court was whether evidence of the complainant's complaint to a third party could be admitted, given that it was led by the defence, and whether the trial judge adequately warned the jury about the dangers of using such evidence for propensity purposes. The case was heard in the High Court of Australia.

The court needed to determine whether the defence's conduct in leading the evidence of the complainant's complaint rendered it admissible, despite the delay in reporting, and whether the trial judge's warnings to the jury about the dangers of using such evidence for propensity purposes were adequate. Specifically, the court examined whether the trial judge's warnings, based on the principles established in Longman, were sufficient to ensure the jury did not use the evidence for an impermissible purpose.

The court found that the defence's conduct did not render the evidence of the complaint inadmissible, as the evidence was relevant to the case and the delay in reporting did not necessarily indicate fabrication. However, the court held that the trial judge's warnings to the jury about the dangers of using the evidence for propensity purposes were inadequate. The court emphasised the importance of clear and comprehensive warnings to prevent the jury from using such evidence to infer the complainant's credibility or propensity to fabricate allegations of sexual assault. The High Court quashed the conviction and ordered a new trial.

The High Court's decision underscores the critical role of timely and comprehensive warnings in ensuring that juries do not misuse evidence of uncharged acts for impermissible purposes. The court's ruling highlights the need for trial judges to carefully consider the adequacy of their warnings when propensity evidence is led, particularly in cases involving sexual offences. The outcome of this case serves as a reminder of the importance of adhering to established principles in the admission and use of evidence in criminal trials.

Orders