The Queen v PW (No 3)
[2015] ACTSC 93
•13 April 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | The Queen v PW (No 3) |
Citation: | [2015] ACTSC 93 |
Hearing Date(s): | 7-13 April 2015 |
DecisionDate: | 13 April 2015 |
Before: | Refshauge J |
Decision: | The Court declines to give a warning to the jury under s 165 of the Evidence Act 2011 (ACT) but will give a direction under s 165B of that Act. |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – Practice and Procedure – Trial – Act of indecency on a person under the age of 10 years – Warning to the jury – Matter within the ordinary experience of the jury – Murray direction |
Legislation Cited: | Evidence Act 2011 (ACT), ss 165, 165B |
Cases Cited: | Bromley v The Queen (1986) 161 CLR 315 Fleming v The Queen (1998) 197 CLR 250 |
Texts Cited: | S J Odgers’ Uniform Evidence Law (11th ed, Thompson Reuters; Sydney, 2014) |
Parties: | The Queen (Crown) PW (Accused) |
Representation: | Counsel Mr M Fernandez (Crown) Mr J Pappas (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Ben Aulich and Associates (Accused) | |
File Number(s): | SCC 208 of 2013 |
Refshauge J:
The accused, PW, has been on trial before me and a jury on two counts of committing an act of indecency on the complainant, a girl under the age of 10 years, to which charges PW had, of course, pleaded not guilty. The trial commenced on 7 April 2015 and the evidence was completed on 10 April 2015. So as to have addresses to the jury on the same day and not separated by the weekend, I adjourned slightly early on 10 April 2015, with addresses to commence as soon as the Court reconvened on 13 April 2015.
As is my custom, I invited counsel to submit whether there were any specific directions that they wished me to include in my summing up to the jury. Mr J Pappas, who appeared for PW, requested that I give the jury a warning under s 165 of the Evidence Act 2011 (ACT). Mr M Fernandez, Crown Prosecutor, opposed the giving of such a warning.
Section 165 of the Evidence Act is in the following terms:
165 Unreliable evidence
(1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence:
(a) evidence in relation to which part 3.2 (Hearsay) or part 3.4 (Admissions) applies;
(b) identification evidence;
(c) evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like;
(d) evidence given in a criminal proceeding by a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding;
(e) evidence given in a criminal proceeding by a witness who is a prison informer;
(f) oral evidence of questioning by an investigating official of a defendant that is recorded in writing and has not been signed, or otherwise acknowledged in writing, by the defendant;
(g) in a proceeding against the estate of a deceased person— evidence presented by or on behalf of a person seeking relief in the proceeding about a matter about which the deceased person could have given evidence if the deceased person were alive.
(2) If there is a jury and a party requests, the judge must—
(a) warn the jury that the evidence may be unreliable; and
(b) tell the jury about matters that may cause it to be unreliable; and
(c) warn the jury of the need for caution in deciding whether to accept the evidence and the weight to be given to it.
(3) The judge need not comply with subsection (2) if there are good reasons for not doing so.
(4) It is not necessary that a particular form of words be used in giving the warning or information.
(5) This section does not affect any other power of the judge to give a warning to, or to inform, the jury.
(6) Subsection (2) does not permit a judge to warn or tell a jury in proceedings before it in which a child gives evidence that the reliability of the child’s evidence may be affected by the age of the child.
(7) Any warning or information in relation to that matter may be given only in accordance with section 165A (2) and (3).
Mr Pappas requested the warning, "based wholly and solely on the complainant's statement to the police officer during the course of the in-chief interview that she was unable to answer questions because her memory was bad." He relied on the following questions and answers in the interview:
Qu 270: Tell me the very next time you remember?
A: I don’t remember any of them
Qu 271: Okay, why is that?
A: Because this was last year and I’ve got a bad memory
Having carefully considered the matter, I declined to give such a warning. It has been suggested that the "good reasons", which I find under s 165(3) of the Evidence Act, for not doing so should be stated. See R v Beattie (1996) 40 NSWLR 155 at 160. It has, however, often been suggested that this is not necessary if the reasons are obvious. The reasons do not have to be elaborate. See R v Taranto [1999] NSWCCA 396 at [15]. These are my reasons.
There are three principal reasons why I consider that such a warning should not be given. In the first place, it does not seem to me that the basis for the request has been made out in the terms of the section. Section 165 of the Evidence Act refers to "evidence of a kind that may be unreliable." That is to say, it is not directed at all unreliable evidence, but evidence which is in a category where the courts have a wider experience than that of the general public in appreciating reasons why the evidence of that sort may be unreliable and so require a judicial warning. See Bromley v The Queen (1986) 161 CLR 315 at 324.
The fact that a witness asserts that her memory is not good is a matter that is within the ordinary experience of the jury and not of such a kind that requires a special warning. The position with respect to such evidence would, in my view, be readily understood and appreciated by the jury. See R v Stewart (2001) 52 NSWLR 301 at 321; [98]. Such evidence is not within any of the categories set out in s 165(1) of the Evidence Act, save that the section does make clear that the categories are not exclusive of those for which such a warning is to be given. They do, as they must, give a clear indication of the meaning, however, to be given to "evidence of a kind that may be unreliable".
I am aware that in S J Odgers’ SC Uniform Evidence Law (11th ed, Thompson Reuters; Sydney, 2014) a list of the kinds of evidence that may be subject to such a warning is set out, some of which may be thought to come close to the situation here. A list is also given of matters that do not require a warning ordinarily. In my view, this situation is closer to the matters set out in that latter list.
There is, however, a further reason that seems to me to become decisive. In this trial the memory of the complainant was a central issue. Indeed, evidence was given, over some objection, by an expert professor of psychology, Prof Donald Thomson, about matters relating to the memory of children.
By happenstance, that evidence was given first in the case for the accused and had to be interrupted and the balance of Prof Thomson's evidence was given as the last evidence in the case. It was subject to extensive cross-examination and challenge. Thus the jury would be unequivocally aware that this issue was an important one for its consideration.
The jury, cannot, in my view, be under any misapprehension about the importance of factors that are said to affect the reliability of the memory of a child and that this is highly relevant when considering the complainant's evidence. I will, of course, direct them about this in the directions I give in my summing up.
It seems to me that to give a warning of the kind requested by Mr Pappas will risk rendering the trial unfair. There is, in my view, a real risk that the jury will take any such direction of law that I would be able to give as an endorsement with the weight of judicial authority to the evidence of Prof Thomson.
While I will, of course, make it clear in the summing up that any comment I make on the facts can be disregarded by the members of the jury and should be disregarded unless it happens independently to coincide with their own views. The warning is a direction of law and is not a comment on the facts. The fine distinction that could arguably be made about this, I am confidently satisfied, is likely to be lost on the jury, who would be at risk of unfairly comprehending the direction in the improper way. This would render the trial unfair and is a good reason for not giving a warning in my view. See RELC v The Queen (2006) 167 A Crim R 484 at 501-2; [80].
It seems to me that the common and required direction that the jury have regard to all the evidence and a direction that this includes the evidence of Prof Thomson, both in-chief and in cross-examination, and how it affects their consideration of the evidence of the complainant, would be all that is required given the circumstances.
A third matter is that the warning in relation to children's evidence is subject to separate provision under s 165A of the Evidence Act and is now prescriptive, thus, although arguably the warning requested by Mr Pappas is not so much dependent on the age of the complainant but her assertion of a bad memory, it is difficult, in the context of the case, to separate out the two matters.
Section 165A of the Evidence Act is in the following terms:
165A Warnings in relation to children’s evidence
(1) A judge in a proceeding in which evidence is given by a child before a jury must not do any of the following:
(a) warn the jury, or suggest to the jury, that children as a class are unreliable witnesses;
(b) warn the jury, or suggest to the jury, that the evidence of children as a class is inherently less credible or reliable, or requires more careful scrutiny, than the evidence of adults;
(c) give a warning, or suggestion to the jury, about the unreliability of the particular child’s evidence solely on account of the child’s age;
(d) in a criminal proceeding—give a general warning to the jury of the danger of convicting on the uncorroborated evidence of a witness who is a child.
(2) Subsection (1) does not prevent the judge, at the request of a party, from—
(a) telling the jury that the evidence of the particular child may be unreliable and the reasons why it may be unreliable; and
(b) warning or telling the jury about the need for caution in deciding whether to accept the evidence of the particular child and the weight to be given to it; if the party has satisfied the court that there are circumstances (other than solely the age of the child) particular to the child that affect the reliability of the child’s evidence and that warrant the giving of the warning or information.
(3) This section does not affect any other power of a judge to give a warning to, or to inform, the jury.
That section requires great care from a trial judge not to breach the prohibition implicitly, as well as expressly. Nevertheless, it seems to me that it also gives scope for the trial judge to make appropriate comments.
Insofar as I have rejected the request by Mr Pappas to give a warning under s 165 of the Evidence Act, I can accept that request also as a request for me to exercise the power given under s 165A(2) of that Act. In this case it is entirely appropriate that I give the jury what is commonly known as a Murray direction (see R v Murray (1987) 11 NSWLR 12 at 19), as approved by the High Court in Fleming v The Queen (1998) 197 CLR 250 at 264-5; [34]-[38] and Robinson v The Queen (1999) 197 CLR 162 at 168-9.
It seems to me that, within the Murray direction, I should make specific reference to the passage of the complainant's evidence to which Mr Pappas has referred and to the evidence of Prof Thomson. As I have not heard from the Crown on that I make no final decision before giving my direction to the jury.
| I certify that the preceding nineteen [19] numbered paragraphs are a true copy of the Judgment of his Honour Justice Refshauge. Associate: Date: 28 April 2015 |
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