Thorne v The State of Western Australia

[2006] WASCA 218

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   THORNE -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 218

CORAM:   WHEELER JA

McLURE JA
BUSS JA

HEARD:   22 SEPTEMBER 2006

DELIVERED          :   22 SEPTEMBER 2006

PUBLISHED           :  26 OCTOBER 2006

FILE NO/S:   CACR 213 of 2005

BETWEEN:   JAMES THOMAS THORNE

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :GROVES DCJ

File No  :IND 1830 of 2004

Catchwords:

Criminal law - Liberato direction - Failure to direct on use of recent complaint and prior inconsistent statements - Turns on own facts

Legislation:

Nil

Result:

Appeal upheld
Convictions quashed
Retrial ordered

Category:    B

Representation:

Counsel:

Appellant:     Mr P J Urquhart

Respondent:     Mr K P Bates

Solicitors:

Appellant:     Jeremy Noble

Respondent:     State Director of Public Prosecutions

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

Anderson (2001) 127 A Crim R 116

Driscoll v The Queen (1977) 137 CLR 517

Job v The State of Western Australia [2006] WASCA 186

Kilby v The Queen (1973) 129 CLR 460

Liberato v The Queen (1985) 159 CLR 507

Case(s) also cited:

Eastough v The Queen, unreported; CCA SCt of WA: Library No 980108; 12 March 1998

Edwards v The Queen (1993) 178 CLR 193

Melbourne v The Queen (1999) 198 CLR 1

R v Lillyman [1896] 2 QB 167

R v Schmahl [1965] VR 745

R v Vye [1993] 1 WLR 471

Trimboli v The Queen (1979) 21 SASR 577

1. WHEELER JA:  I have had the advantage of reading in draft the reasons to be delivered by McLure JA.  They reflect my own reasons for joining in the orders made, and I have nothing to add to them.

2. McLURE JA:  On 22 September 2006 the Court made orders that the appeal be allowed, the appellant's convictions be quashed and that there be a retrial.  These are my reasons for joining in the making of those orders.

3. The appellant was charged with four counts of unlawfully and indecently assaulting the complainant.  The indecent assaults were said to have occurred between 1970 and 1974 when the complainant, who at the relevant time was the appellant's step‑daughter, was aged between 11 and 15.  After a mistrial in May 2005, the appellant was convicted after trial in October 2005 on counts 2 and 3 and acquitted on counts 1 and 4.  On 28 October 2005 the appellant was sentenced to 32 months' imprisonment with eligibility for parole.

4. The appellant relied on four grounds of appeal being that the learned trial Judge erred in:

   1.failing to direct the jury as to the use it could make of recent complaint evidence;

   2.failing to give the jury any direction as to the way in which prior inconsistent statements were to be treated;

   3.failing to direct the jury that the appellant's prior good character had a bearing on the credibility of his evidence;

   4.directing the jury that:

   " … if you find as a fact that the accused had not told the truth, then that would be a matter for you to take into account in assessing whether or not you're satisfied beyond reasonable doubt he had committed the offence."

5. It is the case that the trial Judge failed to direct on each of the matters the subject of grounds 1, 2 and 3 and gave the direction referred to in ground 4.  Unfortunately, neither counsel at trial raised any of these matters with the trial Judge at the conclusion of his summing up. 

6. The State made a number of concessions in the appeal.  In relation to ground 4, the State conceded that it was a fundamental misdirection that

occasioned a miscarriage of justice requiring the appeal to be allowed.  The concession was correctly made.

1. It is appropriate that the direction be seen in its full context.  The trial Judge said:

   "You determine the facts.  As I have said to you there is a conflict of evidence.  You should appreciate that your decision involves more than simply deciding whether you believe the complainant on the one hand, and where she may be supported by her mother, or whether you believe the accused man on the other hand.  There are in fact three options rather than two.  If in the first place, if on all the evidence you're satisfied beyond reasonable doubt of the guilt of the accused on any one or some of the charges, then of course it's your duty to convict.

   Secondly, if you believe the accused man is telling the truth in his denials that any of these incidents happened, then of course you must acquit him; not guilty.  Thirdly, if you're left with a reasonable doubt that there is a reasonable possibility that Mr Thorne is telling the truth, then again you must acquit him.  In other words, if you can't determine where the truth lies the accused is entitled to the benefit of the doubt.  Furthermore, even if you positively disbelieved Mr Thorne, even if you positively disbelieved him, even if you thought he was lying through his back teeth, nevertheless, you still cannot convict him unless on the whole of the evidence you are satisfied beyond reasonable doubt that he committed any one or some of the offences alleged.

   Of course, if you found as a fact that the accused had not told the truth, then that would be a matter for you to take into account in assessing whether or not you're satisfied beyond reasonable doubt that he had committed the offence."

2. The first "option" identified by the trial Judge is not in truth an option.  It is an essential precondition to a finding of guilt.  Subject to my comments below, the first two paragraphs of the direction generally accord with the requirements of Liberato v The Queen (1985) 159 CLR 507. However, the third paragraph of the direction does not and is a misdirection. It is capable of conveying to the jury the plainly erroneous and highly prejudicial impression that if it concluded the appellant's evidence was untruthful (ie, he had lied), that fact was relevant to whether or not the appellant had committed the offences (ie, to the appellant's guilt). As a matter of principle, the only consequence of the jury positively disbelieving the appellant's evidence at trial is that his evidence is not taken into account when the jury goes on to consider whether, on the balance of the evidence, the State has discharged its burden of proving beyond reasonable doubt that the appellant committed the offences. Kirby J (as he then was) makes this clear in Anderson (2001) 127 A Crim R 116 at [26]. He suggested the following direction:

   " … if you do not believe the accused, then you should put his testimony to one side.  The question will remain; has the Crown, upon the basis of evidence that you do accept, proven the guilt of the accused beyond reasonable doubt?"

3. I agree with the State's submission that the third paragraph is a fundamental misdirection that gives rise to a miscarriage of justice to which the proviso can have no application.

4. The State also conceded that the trial Judge's failure to direct on recent complaint evidence occasioned a miscarriage of justice, as did the failure to direct as to prior inconsistent statements, when that omission is considered with the other misdirections. 

5. As to the recent complaint evidence, the complainant said that on the same day as the incident the subject of count 4 she told her mother that "I was sick and tired of [the appellant] abusing me and I'd had enough".  She also testified that later in the same day she told a school teacher "[the appellant] was abusing me".

6. The trial Judge indicated to counsel in the absence of the jury that it would be necessary to give "the usual warning" relating to recent complaint evidence.  He did not do so and counsel did not bring the omission to his attention.  Evidence of recent complaint is only relevant to the complainant's credit; it is not evidence of the truth of the matters the subject of the complaint:  Kilby v The Queen (1973) 129 CLR 460. Further, as the trial Judge acknowledged, again in the absence of the jury, the recent complaint evidence only applied to count 4. The trial Judge ought to have directed the jury as to the limited use they could make of the complainant's evidence of recent complaint and that it only applied to count 4. He did not give such a direction and his failure to do so results in a miscarriage of justice.

7. The trial Judge also failed to give a direction as to the use to which previous inconsistent statements can be put.  A previous inconsistent statement is usually admitted merely on the issue of credibility and is not

evidence of the truth of the matters stated:  Driscoll v The Queen (1977) 137 CLR 517 at 536 per Gibbs J. There are two elements to a full Driscoll warning.  The first element relates to what the material can be used for and the second relates to what it cannot be used for.  Ordinarily, a trial judge should direct a jury as to the use to which a prior inconsistent statement can and cannot be put, although a failure to do so will not always result in a miscarriage of justice:  see Job v The State of Western Australia [2006] WASCA 186.

1. In this case the complainant and her mother gave evidence at trial that was omitted from their out of court statements.  It is unnecessary to determine in this case whether a full Driscoll warning should have been given in relation to such omissions.  The answer to that question will (or may) depend on whether the omissions (silence), in the context of the positive out of court statements on matters relevant to the offences, were capable of conveying an implied representation that in effect contradicted the additional evidence given at trial.  However, there was an out of court statement made by the appellant that cannot be characterised as an omission.  According to the complainant, the sexual abuse commenced when her mother was in hospital.  She said she was missing her mother and the appellant said she could come and get into his bed for a cuddle.  The appellant gave evidence at trial that the complainant did not act as if she was missing her mother on that occasion.  However, the appellant said in cross‑examination at the first trial that the complainant was missing her mother.  This evidence alone required the trial Judge to give the usual warning relating to the use to which prior inconsistent statements can be put.  It follows that the State's concessions on grounds 1 and 2 were also correctly made.  In the circumstances it is unnecessary to determine whether the trial Judge erred in his good character direction.

2. BUSS JA:  I agree with McLure JA.