Tullock v The State of Western Australia
[2008] WASCA 125
•12 JUNE 2008
TULLOCK -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 125
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASCA 125 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:32/2008 | 6 JUNE 2008 | |
| Coram: | MILLER JA | 12/06/08 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused | ||
| B | |||
| PDF Version |
| Parties: | NATHAN IAN TULLOCK THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Leave to appeal Absence of recent complaint Whether direction adequate Uncorroborated testimony of complainant Extent of warning required by trial judge Video record of interview of accused Comment of police officer Whether caused miscarriage of justice |
Legislation: | Criminal Appeals Act 2004 (WA), s 27(2) Evidence Act 1906 (WA), s 36BD, s 50 |
Case References: | Azarian v The State of Western Australia [2007] WASCA 249 Crisafio v The Queen [2003] WASCA 104; (2003) 27 WAR 169 Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427 Kailis v The Queen [1999] WASCA 29; (1999) 21 WAR 100 Michael v The State of Western Australia [2008] WASCA 66 Moloney v The State of Western Australia [2006] WASCA 193 Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 White v The Queen [2006] WASCA 62 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : TULLOCK -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 125 CORAM : MILLER JA HEARD : 6 JUNE 2008 DELIVERED : 12 JUNE 2008 FILE NO/S : CACR 32 of 2008 BETWEEN : NATHAN IAN TULLOCK
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : DEANE DCJ
File No : IND POR 7 of 2006
Catchwords:
Criminal law - Leave to appeal - Absence of recent complaint - Whether direction adequate - Uncorroborated testimony of complainant - Extent of warning required by trial judge - Video record of interview of accused - Comment of police officer - Whether caused miscarriage of justice
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Legislation:
Criminal Appeals Act 2004 (WA), s 27(2)
Evidence Act 1906 (WA), s 36BD, s 50
Result:
Leave to appeal refused
Category: B
Representation:
Counsel:
Appellant : Mr M R Gunning
Respondent : No appearance
Solicitors:
Appellant : Gunning Young
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Azarian v The State of Western Australia [2007] WASCA 249
Crisafio v The Queen [2003] WASCA 104; (2003) 27 WAR 169
Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427
Kailis v The Queen [1999] WASCA 29; (1999) 21 WAR 100
Michael v The State of Western Australia [2008] WASCA 66
Moloney v The State of Western Australia [2006] WASCA 193
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
White v The Queen [2006] WASCA 62
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1 MILLER JA: The appellant was convicted in the District Court of Western Australia on 7 November 2007 of sexual penetration without consent. He was sentenced on 22 February 2008 to 3 years 4 months' imprisonment with eligibility for parole. He seeks leave to appeal against his conviction.
Grounds of appeal
2 There are three grounds of appeal in respect of which the appellant seeks leave. As amended at the hearing, they are:
1. Her Honour failed to counter balance her direction in regards to Section 36BD by failing to advise the jury that they were entitled to take the absence of a recent complaint into account when assessing her credibility thereby leading to a miscarriage of justice.
2. A miscarriage of justice occurred where Her Honour failed to exercise her discretion to warn the jury as to the uncorroborated testimony of the complainant in circumstances where
(a) there was no recent complaint,
(b) full penetration and ejaculation was alleged however due to lack of complaint no forensic evidence was available.
(c) the complainant was distressed by the revelation on the part of [TW] that he had a girlfriend.
(d) the report to the police was made only after an argument with the appellant's boyfriend.
3. The admission of evidence on the video record of interview of the accused as to the police officers belief 'I don't believe it stopped there' in all the circumstances of this trial deprived the appellant of a fair trial leading to a miscarriage of justice.
The facts
3 The following account of the facts is taken from the trial judge's summing up to the jury. No issue is taken in the grounds of appeal with the trial judge's statement of the facts.
4 The complainant gave evidence that, in February 2005, she lived and worked in South Hedland. On 11 February 2005, she drank at her mother's house during the afternoon and then went to the Pier Hotel in the evening. There, she had drinks and played pool before leaving in a taxi with TW. It was her intention to return to her house for more drinking. At her house, she had sexual intercourse with TW, but afterwards a
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- problem arose because the complainant suspected TW of speaking on his mobile phone to another female. She told him that they should leave her house and they did so.
5 The complainant and TW took a taxi and were driving towards the complainant's mother's house, close to which TW lived. Whilst travelling in Kennedy Street, the appellant was observed standing in the middle of the road. The taxi stopped and TW got out. He was speaking on his mobile phone and this annoyed the complainant. She allowed the appellant to get into the taxi, and it appears an agreement was reached that the complainant and the appellant would return to her house for drinks. The complainant said that she knew the appellant well, because she knew his family. She said that there was no romantic association between herself and the appellant.
6 The complainant and the appellant returned to the complainant's house. More drinks were consumed. The complainant felt ill and went to the upstairs toilet, where she vomited. She thought that she must have briefly passed out. When she came to, she was feeling dizzy and weak. She was on her bed. Her next memory was feeling the appellant on top of her. Her pants were down and the appellant was having sex with her. She told him that she felt sick and kept pushing him away, and telling him not to do it, but he persisted. The complainant said she then asked the appellant to put on a condom if he was going to persist with sex, but he did not do so. He kept penetrating her and she did not consent. He ejaculated and then got off the bed. She tried to cover herself, but the appellant pulled the cover off her, and laughed before leaving the room. The complainant testified that she cried herself to sleep. The next morning her mother arrived, but the complainant said nothing about what had happened.
7 It was put to the complainant in cross-examination that there had been kissing in the taxi on the way to her house and that there had been touching of her breasts, and sexual foreplay between herself and the appellant at the house. She denied this. It was suggested to her that she was prepared to have consensual sex with the appellant at her house, but changed her mind. She denied this. It was put to her that she was very drunk on that night and that her memory may have been affected. She admitted that she was drunk and that her memory of the detail of what had occurred may have been affected, but said that she was still aware of what was going on around her, and that she knew that the appellant had sexual intercourse with her without her consent.
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8 The complainant said she did not tell her mother about what had happened until a couple of weeks after the incident. She did not tell her sisters, or close friends. She said that she believed the matter would be sorted out with the appellant by his family. The complainant said that she had an argument with the appellant's brother and then decided to report the matter to the police.
9 The complainant's mother gave evidence. She said that on the morning after the alleged incident, she saw the complainant at her house on the steps, wrapped in a towel, crying and upset. She said her daughter remained quiet all of that day and did not 'cheer up' over the next couple of days. She did not go to work on the Monday after the incident (which had allegedly occurred on a Friday night).
10 The appellant did not testify at his trial. He had, however, engaged in a video record of interview with police. In that interview, he denied that he was intoxicated on the night in question. He said that he knew the complainant and had known her for a number of years. This, however, was the first occasion upon which he had gone to her house. He said that he did not have any sex with the complainant and that nothing happened at the house. He said that he had agreed to go to the complainant's house in a taxi and had gone inside the house with her. He and the complainant had got onto the bed where they were talking. The complainant was a bit drunk. He had no recollection of her being ill.
11 The appellant said that he did kiss the complainant and she responded by kissing him back. He said he played with her nipples and took off her clothes. He said the complainant told him that she had last had sex six months beforehand. He said that he intended to have sex with the complainant, but she said she did not want it, so he desisted and left. He denied having had sexual intercourse with her at all.
Grounds of appeal
Ground 1
12 This ground contends that the trial judge failed to balance her direction under s 36BD of the Evidence Act1906 (WA), by failing to advise the jury that they were entitled to take absence of recent complaint into account when assessing the credibility of the complainant.
13 The trial judge directed the jury that absence of complaint, or delay in complaining, does not necessarily indicate that an allegation made by a complainant that the offence was committed is false. She informed the
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- jury that there may be good reasons why the victim of an offence such as that alleged in this case may hesitate in making, or may refrain from making, a complaint of the offence. Such a direction is required by s 36BD of the Evidence Act. The direction given in this case was entirely in accordance with that provision. The trial judge told the jury of the complainant's explanation as to why she had not made an immediate complaint; namely, that she believed 'the situation would be sorted out with the accused by his family'.
14 The appellant's submissions contend that the trial judge's direction was unbalanced and unduly favourable to the complainant. It is contended that a 'Crofts direction' ought to have been given. That is a direction in accordance with Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427.
15 In Michael v The State of Western Australia [2008] WASCA 66, I made reference to the nature of such a direction and said:
In Crofts v The Queen, it was pointed out that the decision in Longman v The Queen (1989) 168 CLR 79 makes it clear that the purpose of legislation such as s 36BD of the Evidence Act1906 (WA) (which requires a direction about lack of complaint and/or delay in the making of a complaint) was to reform the balance of jury instruction, not to remove the balance. At 451, Toohey, Gaudron, Gummow and Kirby JJ said:
The purpose was not to convert complainants in sexual misconduct cases into an especially trustworthy class of witnesses. It was simply to correct what had previously been standard practice by which, based on supposed 'human experience' and the 'experience of courts', judges were required to instruct juries that complainants of sexual misconduct were specially suspect, those complained against specially vulnerable and delay in complaining invariably critical. In restoring the balance, the intention of the legislature was not to 'sterilise' complainants from critical comment where the particular facts of the case, and the justice of the circumstances, suggested that the judge should put such comments before the jury for their consideration.
The court also said, at 451:
Two qualifications to the duty to provide the warning suggested by Kilby may be accepted. The first is where the peculiar facts of the case and the conduct of the trial do not suggest the need for a warning to restore a balance of fairness. The second is that the warning should not be expressed in such terms as to undermine the purpose of the amending Act by suggesting a stereotyped view that complainants in sexual assault cases are unreliable or that delay in
- making a complaint about an alleged sexual offence is invariably a sign that the complainant's evidence is false.
- There is nothing in these passages to suggest that, in every case, a direction is required that the jury might take into account the fact that each of the complainants delayed in making a complaint to the police. [204] - [206]
16 I also made reference to Crisafio v The Queen [2003] WASCA 104; (2003) 27 WAR 169 and Kailis v The Queen [1999] WASCA 29; (1999) 21 WAR 100, summarising what had been said in those cases as follows:
As Murray J pointed out in Crisafio v The Queen (2003) 27 A Crim R 98, at [40], the decision in Crofts was considered in Kailis v The Queen (1999) 21 WAR 100, where, at 135, Malcolm CJ said that, in this area, 'the interests of justice were best served if each case was approached in the light of its own facts and appropriate directions formulated which took account of the arguments raised by those facts'.
17 It follows that each case must be looked at on its own facts. Only where the particular facts of the case and the justice of the circumstances require it will the trial judge be required to make critical comment about a complainant's failure to make complaint. Even then, the purpose of s 36BD of the Evidence Act must not be undermined by suggesting that complainants in sexual assault cases are unreliable, or delay in making a complaint is invariably a sign that the complainant's evidence is false.
18 In the present case, the trial judge pointed out to the jury that the complainant gave an explanation for her failure to make an immediate complaint. She told the jury that the complainant thought that the matter would be sorted out by the appellant and his family. She then had an argument with the appellant's brother and, following this, made a formal complaint. The trial judge reminded the jury of the complainant's cross-examination in which it had been put to her that she delayed in making complaint because the alleged offence had never occurred. The complainant had denied this in cross-examination.
19 The trial judge made reference to the complainant's mother seeing her distressed the following day, but gave a proper direction on the way in which evidence of distress was to be treated.
20 The trial judge gave a brief summary of the way in which the prosecutor and defence counsel had respectively summed-up their cases. In summarising the defence case, the trial judge reminded the jury that the appellant had consistently denied sexual penetration of the complainant without her consent, but had, in his video record of interview, admitted to
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- touching the complainant's nipples and kissing her. The trial judge reminded the jury of the defence submission that there was no evidence of a forensic nature, such as DNA from bedding, which supported the allegation of sexual intercourse. The jury was also reminded of the defence submission that the complainant agreed that her alcohol intake could have affected her memory and recollection.
21 As the trial judge put it to the jury, this was a case in which there was a stark conflict of evidence between the complainant on the one hand and what the appellant had said in his video record of interview on the other. The jury was reminded that, in reaching a verdict, they were required to do much more than simply decide whether they believed the prosecution witnesses, or whether they believed what the appellant said in his video record of interview. They were told that even if they rejected the appellant's evidence in his video record of interview, it did not follow that he was guilty. He could only be found guilty if it was established beyond reasonable doubt having regard to all of the evidence and, in particular, the evidence of the complainant, that the offence had been committed. The jury was reminded that the prosecution case rested solely on its assessment of the complainant's evidence and their assessment of her credibility and reliability as a witness.
22 In the circumstances of the case, I do not believe that a 'Crofts direction' was required. There was no need for the trial judge to balance the direction under s 36BD of the Evidence Act with a direction criticising the complainant's delay in making a complaint to the authorities. The trial judge complied with s 36BD and, in the circumstances of the case, I consider that is all that she was required to do.
23 I do not consider that ground 1 has reasonable prospects of success and, in my opinion, leave should be refused: s 27(2) Criminal Appeals Act 2004 (WA) and Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473.
Ground 2
24 This ground complains that the trial judge failed to give the jury a warning that it would be dangerous to convict the appellant on the uncorroborated testimony of the complainant, but that they could do so if after careful scrutiny, and having regard to the warning, they were satisfied as to the truth and accuracy of the complainant's evidence. The ground is not framed precisely in this way, but that is the essence of the submissions which accompany it.
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25 Pursuant to s 50 of the Evidence Act, the trial judge was not required by law or practice to give a corroboration warning to the jury. Indeed, the trial judge was prohibited from giving such a warning unless satisfied that a warning was justified in the circumstances.
26 In Michael, I made reference to Wheeler JA's judgment in White v The Queen [2006] WASCA 62. There, at [68], her Honour said that the appropriate question to be asked in these circumstances was as follows:
Rather, the question is, having regard to s 50 of the Evidence Act, read in the light of authority relevant to its proper construction, whether there are particular identified circumstances which not only justify, but require, a warning of a particular identified character: Chew v The Queen (1991) 4 WAR 21 at 82 per Murray J (and to similar effect, in a different statutory context, see R v Clark at [73] - [75] per Heydon JA) [214]
- I added:
Wheeler JA, at [60] et seq, set out in detail what s 50 of the Evidence Act1906 means. Her Honour concluded, at [78]:
The authorities do leave open the possibility that even where a danger is one which a jury will be able to appreciate unassisted, a warning may nevertheless be required. There may, for example, be cases in which, although the danger is apparent, it is a danger which, because of the attractive features of the particular witness, a jury may too readily overlook. However, as the warning is justified by reason of the 'superior experience' of the Courts in relation to particular types of evidence which are apparently safe to act upon (Chamberlain v The Queen (No 2) (1984) 153 CLR 521 at 604 per Brennan J), it is likely that it will only be in a very small category of cases that a danger which is apparent to a jury will nevertheless require a warning to be given. [251]
28 Although the ground of appeal speaks of 'uncorroborated testimony', use of the word 'corroboration' is discouraged: see Azarian v The State of Western Australia [2007] WASCA 249, where, at [160], I pointed out that it is preferable to avoid use of the words 'corroborative' or 'corroboration', citing Moloney v The State of Western Australia [2006] WASCA 193 per Wheeler JA at [19].
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29 In this case, the trial judge did stress to the jury that the prosecution case relied upon the evidence of the complainant and the complainant alone. The trial judge stressed to the jury that the prosecution accepted that their case rested almost solely upon 'your assessment of her evidence; that is your assessment of her credibility and reliability as a witness'.
30 It must be remembered that the appellant did, in his video record of interview, admit that he had some form of sexual foreplay with the appellant, although he firmly denied that there had been any sexual penetration. In my opinion, the jury required no warning about the dangers of acting upon the evidence of the complainant alone. It was made quite clear to them that the prosecution case rested on the complainant's testimony alone and there was no danger that the jury may have overlooked the fact that the prosecution case relied on the evidence of the complainant alone. The trial judge made it clear to the jury that the complainant was affected by alcohol at the relevant time, and they would have been in no doubt that this was an important factor in assessing her credibility.
31 In relation to the particulars annexed to this ground:
(1) the jury was well aware that there was no 'recent complaint';
(2) the jury was also aware that there was no forensic evidence to prove penetration and ejaculation;
(3) the jury would have been acutely aware that the complainant had been involved in sexual relations with another person earlier in the evening and that she was upset with that person because she believed he had a girlfriend;
(4) the jury would have known the circumstances in which the complaint came to be made.
These facts did not, in my opinion, call for any warning to be given about the dangers of convicting on uncorroborated testimony.
32 Again, I do not consider that ground 2 has any reasonable prospects of success and I would refuse leave.
Ground 3
33 This ground complains that in the video record of interview, a police officer expressed an opinion. This opinion is said to have deprived the appellant of a fair trial.
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34 The trial judge made reference to this issue. Her Honour said:
Further, any observations or comments by the police in the video, for example, I think one of the officers says at one point, 'I don't believe it stopped there,' that's not evidence at all. What the officer believes or what anybody else believes is not to the point.
35 In my opinion, the warning given by the trial judge was quite sufficient to deal with this issue. The ground of appeal has no reasonable prospects of success and I would refuse leave in relation to it.
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