The Queen v PDW

Case [2009] NTSCFC 38

The Queen v PDW [2009] NTSCFC 38;

PDW v The Queen [2009] NTCCA 10

PARTIES:THE QUEEN

v

PDW

TITLE OF COURT:  FULL COURT OF THE

SUPREME COURT OF THE NORTHERN TERRITORY

COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:  FULL COURT OF THE SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION

CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NOS:(20713041)

CA 3 of 2009 (20713041)

DELIVERED:  31 July 2009

HEARING DATE:  6 July 2009

JUDGMENT OF:  MARTIN (BR) CJ, RILEY and SOUTHWOOD JJ

CATCHWORDS:

REFERENCE TO THE FULL COURT – INTERPRETATION OF s 131A CRIMINAL CODE – “three or more illegal acts” – evidence of maintenance of a relationship of a sexual nature not required – autrefois convict not available – double punishment – court may intervene to avoid abuse

KBT v The Queen (1997) 191 CLR 417; KRM v The Queen (2001) 206 CLR 221, followed

GJB (2002) 129 A Crim R 479; Pearce v The Queen (1998) 194 CLR 610, considered

Connelly v DPP [1964] AC 1255; R v Kent-Newbold (1939) 62 CLR 398; Maxwell v The Queen (1996) 184 CLR 501;  Rogers v The Queen (1994) 181 CLR 251; S v The Queen (1989) 168 CLR 266; R v Stone (2005) 64 NSWLR 413, Williams v Spautz (1992) 174 CLR 509; referred to

Supreme Court Act (NT) s 21

Sentencing Act (NT) s 78BB

Criminal Code (NT) s 31, s 131A, s 339

CRIMINAL LAW – APPEAL – opinion as to the veracity of the witness should have been allowed – opinion evidence of veracity of witness should have been left to the jury – allowing prejudicial evidence given by the complainant to go to the jury may have led to impermissible reasoning by members of the jury – verdict of the jury was not unreasonable on the evidence – appeal allowed – retrial ordered

R v BDX [2009] VSCA 28; Bell v The Queen (1985) 7 FCR 555; R v Hanrahan [1967] 2 NSWR 717; R v Richardson; R v Longman [1969] 1 QB 299, referred to

Supreme Court Rules r 86.08

REPRESENTATION:

Counsel:

Applicant:I Read

Respondent:  M Stoddart

Solicitors:

Applicant:Northern Territory Legal Aid Commission

Respondent:  Office of the Director of Public Prosecutions

Judgment category classification:    A

Judgment ID Number:  Ril0911

Number of pages:  30

IN THE FULL COURT
OF THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

AND

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

The Queen v PDW [2009] NTSC 38;

PDW v The Queen [2009] NTCCA 10

Nos (20713041)
CA 3 of 2009 (20713041)

BETWEEN:

THE QUEEN

Applicant/Respondent

AND:

PDW

Respondent/Appellant

CORAM:    MARTIN (BR) CJ, RILEY and SOUTHWOOD JJ

REASONS FOR JUDGMENT

(Delivered 31 July 2009)

MARTIN (BR) CJ:

  1. I agree with the answers proposed by Riley J and with his Honour’s reasons.  For the reasons given by Riley J, I also agree that…

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AGLC
The Queen v PDW [2009] NTSCFC 38
Case
[2009] NTSCFC 38
Decision Date

CaseChat Overview and Summary

The appeal before the Supreme Court of South Australia, constituted by Martin BR CJ, Riley and Southwood JJ, concerned the conviction of the appellant, PDW, on certain counts of an indictment. The primary dispute revolved around the trial judge's exclusion of evidence intended to impeach the credibility of the complainant.

The court was required to determine two grounds of appeal: firstly, whether the verdict was unreasonable or unsupported by the evidence, and secondly, whether the trial judge erred in excluding evidence concerning the complainant's credibility and in the directions given to the jury regarding such evidence. The latter grounds, concerning credibility, were considered together.

The court's reasoning focused on the admissibility of evidence to impeach a witness's veracity. Citing established authorities, including *R v BDX* and *R v Richardson; R v Longman*, the court affirmed that a witness may be called to speak to the general reputation for veracity of another witness, and may be asked whether, from their knowledge, they would believe that witness on oath. Furthermore, an impeaching witness may express their individual opinion as to whether the impugned witness is to be believed on oath, based on personal knowledge. However, in examination-in-chief, the impeaching witness cannot provide the specific facts or incidents forming the basis of their opinion, though these may be explored in cross-examination. The trial judge's disallowance of the question to SW, the complainant's mother, asking whether she would believe the complainant under oath, was therefore considered an error.

Ultimately, the court allowed the appeal. While acknowledging that there was evidence capable of sustaining the guilty verdicts on certain counts, the court found that the exclusion of credibility evidence was a material error. Consequently, the court ordered a retrial.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

At the time of hearing argument in relation to the reference the appellant pursued various grounds of appeal. The third ground of appeal was not pressed. The first ground of appeal was that the verdict was unreasonable or could not be supported having regard to the evidence. I will first address the remaining grounds of appeal.Ground 2: The exclusion of evidence as to complainant's credibilityGround 5: The directions as to the evidence regarding the credibility of the complainant It is convenient to consider these grounds of appeal together. The second ground of appeal was that the trial Judge erred in excluding evidence sought to be called from a witness, SW, impeaching the complainant's credibility and in particular disallowing a question whether, in the opinion of the witness, the complainant was to be believed upon her oath. SW is the mother of the complainant. She was called to give evidence by the prosecution and she was cross-examined by counsel for the accused. In the course of cross examination she was asked:Would you believe what (the complainant) says under oath in this court?The question was the subject of an objection and without providing reasons the learned Judge ruled that the question should be disallowed. On the hearing of the appeal reference was made to the decision of the Victorian Court of Appeal in R v BDX[23] a decision delivered on 12 March 2009 by a bench consisting of five Justices of Appeal. In that case Vincent and Weinberg JJA [24]reviewed the relevant authorities on this issue and stated that the modern formulation of the applicable rule is to be found in Archbold, Criminal Pleading, Evidence and Practice 2009 in the following passages:Whether a witness has or has not been convicted, witnesses may be called to speak as to his general character, although not as to any particular offence of which he may be guilty .... In order to impeach the credit of a witness for veracity, witnesses may be called by the other side to prove that his general reputation is such that they would not believe him upon his oath ... In practice the question usually put is "from your knowledge of the witness would you believe him on his oath"?....The impeaching witness may not, in examination in chief, give his reasons for his belief, but he may be asked for his reasons in cross-examination, and his answers in cross-examination cannot be contradicted. (References omitted). Their Honours went on to refer to the judgment of the Court of Criminal Appeal in R v Richardson; R v Longman[25] where Edmund Davies LJ (with whom Widgery and Lyell JJ agreed) summarised the position as follows:1.A witness may be asked whether he has knowledge of the impugned witness’s general reputation for veracity and whether (from such knowledge) he would believe the impugned witness’s sworn testimony.2.The witness called to impeach the credibility of a previous witness may also express his individual opinion (based upon his personal knowledge) as to whether the latter is to be believed upon his oath and is not confined to giving evidence merely of general reputation.3.But whether his opinion as to the impugned witness’s credibility be based simply upon the latter's general reputation for veracity or upon his personal knowledge, the witness cannot be permitted to indicate during his examination in chief the particular facts, circumstances or incidents which formed the basis of his opinion, although he may be cross-examined as to them.This method of attacking a witness’s veracity, though ancient, is used with exceeding rarity. Nevertheless it was sought to be made use of in the present case... .

Decision

Reasons for decision

The verdict in relation to count 1 and the failure to reach a verdict in relation to count 3 do not, in my view, reflect an inconsistency when compared with the verdicts of guilty in relation to counts 2, 4, 5 and 6 considered in light of the evidence available to the jury.Conclusion For the reasons expressed above, the appeal should be allowed. In my opinion, there was evidence which could sustain a verdict of guilt in relation to the matters where the jury returned a verdict of guilty. Upon the whole of the evidence it was, in my view, open to the jury to be satisfied beyond reasonable doubt that the accused was guilty in relation to those matters. I would order a retrial.SOUTHWOOD J: I too agree with the answers proposed by Riley J and with his Honour’s reasons. For the reasons given by Riley J, the appeal should be allowed and a retrial ordered.

Ratio Decidendi

Legal Principle Established

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