The State of Western Australia v GJW
[2018] WADC 101
•15 AUGUST 2018
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- GJW [2018] WADC 101
CORAM: O'NEAL DCJ
HEARD: 13-14 AUGUST 2018
DELIVERED : 15 AUGUST 2018
FILE NO/S: IND 620 of 2017
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
GJW
Catchwords:
Criminal law - Age of accused at time of alleged offence - Plea of no jurisdiction - Trial of issue of jurisdiction of District Court of Western Australia
Legislation:
Criminal Procedure Act 2004, s 126(1)(a), s 126(4), s 127, s 128
Result:
Finding that the District Court of Western Australia does not have jurisdiction to deal with the accused
Representation:
Counsel:
| The State of Western Australia | : | Mr J Newton-Palmer |
| Accused | : | Ms M R Barone |
Solicitors:
| The State of Western Australia | : | State Director of Public Prosecutions |
| Accused | : | Barone Criminal Lawyers |
Case(s) referred to in decision(s):
Jasmin v The Queen [2017] WASCA 122
Lustre Hosiery Ltd v York (1935) 54 CLR 134
O'NEAL DCJ:
The accused is charged on indictment that on 30 October 1987 he sexually penetrated the complainant, without the complainant's consent.
The matter first came on for trial before her Honour, Judge Glancy and a jury, on 9 April 2018. The trial was effectively abandoned and the jury discharged after two days when a question arose with respect to the jurisdiction of this court to try the accused on this charge. The reason for that has to do with the age of the accused at the time of the alleged offence. There is a question as to whether he was 18 years old at the time of the alleged offence.
When the accused was arraigned at the first trial he simply pleaded not guilty. No issue of jurisdiction was then taken as was open pursuant to s 126(1)(a) and s 126(4) of the Criminal Procedure Act 2004. The matter has now come before me on a trial of the single question of the jurisdiction of the court to try the accused. I will pass over matters that have resulted in the wasting of both the time of the jury that was empanelled and this court. Nor need I refer to what I have been told the consequences of my decision will be.
For the purposes of resolving this issue the accused was arraigned before me and he entered a plea pursuant to s 126(1)(a), to the effect that this court lacked jurisdiction.
The evidence before me included the recorded evidence of the complainant from the first trial, and that recording was marked for identification. The transcript of the evidence of a police witness, tendering certain records that I will refer to, and referring to others, was marked as an exhibit. A number of documents were tendered as exhibits by consent, including copies of the birth certificates of the accused and the complainant.
It is common ground between the parties that it is for the State to satisfy the court, on the balance of probabilities, that the accused was of or over the age of 18 years at the time of the alleged offence: Jasmin v The Queen [2017] WASCA 122.
The following facts are not in issue. For the purpose of this account I have changed the names of the accused and complainant. I will refer to the accused as 'Garry'.
The accused was born on 24 September 1969. Accordingly, he had his 18th birthday on 24 September 1987, one month and six days before the date of the offence alleged in the indictment.
The accused and the complainant 'Peter' met in school and became friends. While it was suggested in cross-examination that this occurred partway through Year 10, according to the complainant it was half way through Year 9.
After both young men completed Year 10 they both took apprenticeships. They remained in contact and their friendship continued.
On 10 October 1986, while he was still 17 years old, the accused moved into Withnell House, a lodge or hostel operated by the Salvation Army.
On 22 December 1986 the complainant obtained a probationary driver's licence. He owned and drove a 1974 LH Torana.
On 30 July 1987 the Withnell House lodge closed. On 1 August 1987 the accused moved into Mirrabooka House, another lodge or hostel operated by the Salvation Army. He continued to live there until 1 November 1987.
Evidence about the alleged offence
The complainant has said that on an occasion that he was invited by the accused to stay overnight at Mirrabooka House, he became heavily intoxicated after playing a drinking game. After losing consciousness he awoke to find himself half naked on the floor of the room occupied by the accused, being sexually penetrated by the accused. The complainant said the sexual penetration occurred without his consent.
The State relies on a combination of the evidence of the complainant, including his recollection of spending a night at Mirrabooka House with the accused where alcohol was consumed, and records of Mirrabooka House for 30 and 31 October 1987 that correspond in some respects with the complainant's evidence about the occasion of the alleged sexual assault.
The complainant described how, on becoming conscious and aware of what was happening to him, he became violently ill. He said that he then 'spewed up everywhere and went and passed out again' (ts 283). The complainant said that when he woke up in the early morning he left the hostel as soon as he could, without waking the accused up. The complainant said that he got back in his car and drove home.
No complaint was made at the time. In fact the complainant and the accused continued to be friends for a year or two after the event, neither speaking of the matter, according to the complainant. The complainant eventually stopped seeing and communicating with the accused.
The following passage of evidence is relied upon by the State to prove the age of the accused at the time of this incident:
Now, what did you do that night? - - - We played some gargling games with alcohol.
What alcohol was it? - - - Black Douglas.
What kind of alcohol is Black Douglas? - - - Scotch.
Right; and where – where did you get the alcohol from? - - - We went up the shop and Garry bought it.
Ok. Why did Garry buy it? - - - Because he was older than me.
How old was Garry? - - - 18.
How old were you? - - - 17.
No objection was taken to any of this passage of evidence when it was adduced at the first trial. No objection was taken when I was shown the evidence for the purposes of this trial.
The other critical piece of evidence relied on by the State is an excerpt from a logbook maintained at the Mirrabooka House hostel for 30 and 31 October 1987.
Logbooks were kept at both Withnell House and Mirrabooka House. Excerpts from both were tendered at the trial before me. The documents are handwritten and it is evident that more than one manager was employed at the hostels and that they worked shifts. The transcript of the evidence of the police witness includes a number of references to notes in the logbook for both Withnell House and Mirrabooka House, for which no document was tendered. I have had regard to that evidence.
The logbook for Mirabooka House for 30 October 1987 records at 2330 hours 'Garry and Peter who is staying the night have gone to bed'. The next morning, 31 October 1987, an entry at 0800 (in handwriting that appears to be the same as that of the prior evening) notes, 'Peter leaving'. At 0810 there is a note to the effect that 'Garry taking (another hostel resident) to the bus stop'.
The handwriting of the person making the notes appears to change at midday. I infer that there was more than one manager at the hostel, and there was a shift change. At 1315 there is this entry: 'Peter here (the blonde one) to help Garry pack his gear?'. At 1330, 'Garry + Peter have decided to have a chat with me, something to postpone the work I suppose'. At 1350: 'Peter is now leaving, not feeling too well – I wonder why? It was him who spent half the night in the toilet, Steve!'. 'Steve' I infer is another or the other manager of the hostel.
I was also provided with copies of excerpts from the log at Mirrabooka House for 16 August 1987, for the evening of 16 October 1987, and earlier on the day of 30 October 1987.
There were three logbooks provided to the police that recorded events for the two hostels in the period between October 1986 and November 1987. In the very first book that covers the time that the accused was resident at Withnell House police found what was described as a 'sticky note' upon which was the name 'Peter' and the correct address of the complainant. Notes made on 29 November 1986 at Withnell House show Garry asking at 1800 whether 'a friend' could stay for the night, at 2110 - 'Garry and Peter going to shop', then at 2310 'Garry and Peter off to bed'. At 0815 on 30 November there is this note: 'Garry and Peter are up and making breakfast'. Entries in December show what appear to be visits by Peter, 'Garry and Peter home', and Peter and Garry 'off out shopping'. There are records of phone calls from Peter for Garry and other notes that show that Garry has 'gone to Peter's for the night'.
From the evidence of the police witness it appears that a logbook covering a period from late January through until 2 April 1987 could not be located. The logbook that commences on 3 April 1987 records an afternoon visit by Peter to Garry. On 2 May 1987 however an entry at 1600 hours records 'Peter is here to spend the night. I hope I have a very quiet night'. Later, at 1650, 'Garry and Peter stirring up Jane. I have told them if they insist on stirring tonight, I will be sending Peter home'. At 2145, the logbook records, among other things 'Garry and Peter listening to music in Garry's room'. At 0050 hours, the person keeping this record writes 'good night'. On the morning of Sunday, 3 May 1987 an entry at 0800 says 'I am awake' and also records, 'Garry and Peter are up and moving about'. Later in the day at 1750, the logbook records 'Peter's going home. I will review his behaviour before I will allow him to come again'.
Later entries show Garry going out to see Peter and Peter visiting the hostel to see Garry. There is an afternoon visit on 18 June 1987 but on the evening of 19 June the logbook records, from 1830, 'Garry going out with Peter. Back by 12 pm'. Then at 2355 'Garry home with Peter, they're off to bed. Me too'. The next morning at 0800 it records those present at the hostel, who include 'Garry (plus Peter) … and Jane'. The writer also records 'Jane is in her room asleep and I didn't hear her come in'. Later at 0900, Peter is recorded as leaving, with Garry and another hostel resident going 'collecting'.
After the move to Mirrabooka House, the log for the afternoon of Saturday, 15 August 1987 records the fact that the last writer is then leaving and that 'Garry may have his friend Peter call around this arvo, a little later perhaps. Peter is no problem, basically a good kid?'. At 0900 on Sunday, 16 August the log notes those present at the hostel including Garry and Peter (visiting) with 'everyone breakfasting'. At 1100 the note is 'Garry and Peter both leaving'.
An entry in the logbook for Mirrabooka House on the afternoon of 16 October 1987 refers to 'Garry' being picked up for a game of squash by 'another Peter' in a 'flash Ford Falcon'.
Based on all the excerpts that were put into evidence before me these conclusions can be safely drawn. First, the accused had more than one friend named 'Peter' who visited him at the hostels, and who he socialised with outside the hostels. Second, on all of the evidence, a 'Peter' stayed overnight at both Withnell House (three times) and Mirrabooka House (twice), with 'Garry'. For all but the last of these the accused had to be less than 18 years of age when 'Peter' stayed overnight.
Next, the logbook for the last recorded 'sleepover' at Mirrabooka House on the evening of 30 October and 31 October 1987, records events that appear consistent with the event described by the complainant where the alleged offence took place. That is, 'Peter' is recorded as staying overnight and leaving early, by himself.
After the apparent shift change at midday, the same handwriting, recording the arrival at 1315 of 'Peter', described as 'the blonde one', to help the accused pack. These notes hint very strongly that 'Peter' was hungover. The log entry at 1350 hours records this, 'Peter is now leaving, not feeling too well – I wonder why? It was him who spent half the night in the toilet, Steve?'.
There is no evidence as to the hair colour of the complainant at the time of the alleged incident.
The notes for 31 October also include references that are inconsistent with the evidence of the complainant. In the course of his evidence the complainant said that after he left the hostel by himself, early in the morning, he 'definitely' did not return to the hostel that day. He had no recollection of going to a bathroom. A question obviously arises about either the reliability of the complainant's memory on that subject, or the identity of Peter, 'the blonde one', who is recorded as coming to help the accused 'pack his gear'.
Evidentiary issues
I have referred to the passage of the complainant's evidence where he describes the purchase of the bottle of scotch. In the course of that passage the State prosecutor asked the complainant how old the accused was and how old the complainant was at the time of the events described. The complainant provided the answers '18' and '17'. I will assume that the age of the complainant himself was not a matter in issue. No explanation has been offered however as to why the State prosecutor thought that a question that would inevitably illicit hearsay (if a responsive answer was given) could appropriately be asked.
No objection having been taken to the question or the answer about the accused's age, the vexing question of the use that can be made of that evidence arises: See Cross on Evidence 11th Ed at par 1665. No such argument was developed before me. The suggestion of counsel for the State was that this evidence could be received on the basis that the complainant's assertion about the accused's age was an inference drawn by the complainant based on all of the information he had available to him at the time. I do not propose to do that. The submission on behalf of the accused is that the evidence should be given little weight.
While no challenge was made as to the admissibility of this evidence, in my view it would be dangerous to attribute much weight to the oral testimony of the complainant on this particular subject given that it is at best the result of things that the complainant was told and conclusions that he has drawn from the facts and circumstances he has observed.
The complainant was unable to provide much detail that could assist in fixing the time or place of many of the events he was asked about, understandably, given the passage of time. The complainant believed that the accused was a year older than him, until he was disabused of this by police and told that the accused was just a couple of months older. He was unable to attribute any date to the alleged offence, beyond his insistence that it had occurred at Mirrabooka House.
A question then arises as to what use can be made of the assertion implied by the conduct of the accused (as described by the complainant) in presenting himself at licensed premises and purchasing alcohol. That conduct by the accused can properly be regarded as an assertion by the accused with respect to his age. It is not apparent that it could be evidence of the fact of the age of the accused. There is nothing in that conduct that in my view rises, for example, to the level of an admission. All the accused was doing, on the evidence of the complainant, was buying a bottle of whisky.
Even if the accused's conduct in purchasing a bottle of whisky could somehow be characterised as an admission it would still be necessary to assess its probative force by reference to the circumstances in which it was made: Lustre Hosiery Ltd v York (1935) 54 CLR 134. Here, an assertion of being of legal age by one of two young men interested in buying a bottle of whisky is not particularly compelling as proof of the fact that the young man is of legal age.
Consideration
The question for me to determine is whether, on the balance of probabilities, I am satisfied that the accused was at least 18 years old at the date of the offence that is alleged. It might theoretically be open to reach a conclusion that the event described by the complainant occurred at a time other than that suggested by the logbooks for 30 and 31 October 1987, and yet at a time after the accused's 18th birthday. As a practical matter that would seem to be pointless, namely because the State has pointedly tied the proof of its case to the events described in the logbooks for 30 and 31 October 1987. That is understandable in the circumstances here. Unless a jury were satisfied beyond reasonable doubt that the logbooks for those dates in fact record the events described by the complainant, there is little else that would allow a date to be put to the matters the subject of the complaint.
These events occurred more than 30 years ago. The complainant was just 17 years old at the time. On the occasion that is the subject of the complaint here he was so heavily affected by alcohol as to be vomiting and losing consciousness.
Complicating his recollection of all of these events is the fact that the assault that he described did not bring about the end of his relationship with the accused. No complaint was made and it is not possible to date the event that he complained of by reference, for example, to the end of his relationship with the accused. Rather, he continued to have a relationship with the accused for another year or two.
The complainant was only certain about one overnight stay with the accused. That was what he described as the night of the offence which he said occurred at Mirrabooka House. The complainant thought it possible, but was not certain that he had also spent the night at Withnell House. The records that are available show that there were five occasions when 'Peter' stayed overnight. On only one of those five recorded occasions was the accused over the age of 18 years. In my view it is probable that the complainant stayed overnight on several occasions, and perhaps as many as five.
While I accept that an assault of the kind described by the complainant would be memorable, to say the least, there is a real risk that he has conflated facts as to surrounding circumstances.
Nor is it possible to have much confidence in the records in the logbooks or to place much reliance on them in determining the issue here. There are several reasons for that.
First, there is no evidence before me as to the manner or system by which the logbooks were kept, either at Withnell House or Mirrabooka House. More than a month of records are simply missing. Even though the records are available, it is not possible to say who kept the records, how they were kept and in particular, what sort of rigour was used to ensure that they were complete. It is not possible to say what the probability is of matters occurring, such as someone coming into the hostel to spend the night, without that fact being recorded. There is one instance where the fact that one of the residents of the hostel has come home at night without being heard is recorded. From the records available it is obvious that no records were kept from the time that the night manager went to sleep until the time that that manager woke up again in the morning.
Where a fact is positively recorded it is reasonable to assume that that is the fact, but it is not possible to be confident that relevant matters have not occurred simply because they were not recorded. A further difficulty here however is the lack of detail in the records and the degree of ambiguity that arises because of that. For example, with respect to the critical entries of 30 and 31 October 1987 a question arises as to which 'Peter' is being referred to.
There is no direct evidence that would allow me to reach a conclusion about the age of the accused at the time of the assault alleged by the complainant. Before I could conclude that the accused was 18 years old at the time of the alleged assault I would have to be satisfied that that was the most probable inference available. Having had regard to all of the evidence, including the testimony of the complainant and, the evidence of the police witness and the documents that were tendered, I am not satisfied on the balance of probabilities that the accused was 18 years of age at the time of the assault described by the complainant.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
JH
ASSOCIATE TO JUDGE O'NEAL15 AUGUST 2018
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