Vann v The Queen - [2001] WASCA 177

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: VANN -v- THE QUEEN [2001] WASCA 177

CORAM: WALLWORK J
SCOTT J
WHEELER J

HEARD: 18 MAY 2001

DELIVERED : 13 JUNE 2001

FILE NO/S: CCA 12 of 2001

BETWEEN: ROY EDWARD VANN
Appellant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law - Particular offences - Offences against the person - Unlawful and indecent dealing with a child - Delay in complaint - Uncorroborated evidence

Appeal and new trial - Admission of particular evidence - Relationship evidence - Complainant's credibility - Trial Judge's direction to jury - Turns on own facts

Legislation:

Nil

Result:

Appeal against conviction allowed

Representation:

Counsel:

Appellant: Mr I L K Marshall
Respondent: Mr R E Cock QC

Solicitors:

Appellant: J A Bougher
Respondent: State Director of Public Prosecutions

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

Longman v The Queen (1989) 168 CLR 79
R v S (1998) 103 A Crim R 101

Case(s) also cited:

Cook v The Queen [2000] WASCA 78
Gipp v The Queen (1998) 72 ACJR 1012
Kailis v The Queen (1999) 21 WAR 100

WALLWORK J: I have read the reasons to be published by Wheeler J and agree that the appeal should be allowed, the convictions quashed and a new trial ordered.
SCOTT J: I have had the opportunity of reading the draft reasons to be published by Wheeler J. I agree both with her Honour's reasons and the conclusion that she has reached.
In this case, in my opinion, his Honour was very careful and thorough in his address to the jury. The only matter that justifies the appeal being allowed is the passage referred to by Wheeler J at par [18]. From that passage it was open to the jury to conclude that if they were satisfied beyond reasonable doubt that what was called the "kitchen incident" occurred then that could assist them in concluding that the offences alleged by the complainant occurred. I agree with Wheeler J that no such inference was open on the facts of this case because there were many other competing inferences that were equally open. It was not permissible for the jury to draw that conclusion.
In all the circumstances of the case, including facts personal to the appellant, it will be for the Director of Public Prosecutions to determine whether a re-trial is warranted.
WHEELER J: On 17 January 2001 the appellant was convicted, by majority verdict, of six counts of unlawful and indecent dealing, on an indictment containing eight counts. On 30 January 2001 he was sentenced to 5 years' imprisonment in total with eligibility for parole, backdated to 17 January 2001. He now appeals against conviction and seeks to appeal also against sentence.
The background to the alleged offences were that the appellant lived with Mrs Oberholzer from 1973 until approximately 1978 or 1979. At that time he was aged between 45 and 51. Mrs Oberholzer is the mother of the complainant, Mrs Prior, who was born on 7 October 1965 and was aged 34 at the date of the trial. The offences were said to have occurred from 1973 to 1979 when the complainant was between 8 and 13 years of age. She first complained to the police on 30 June 1999. The complainant's evidence as to the matters the subject of the indictment was uncorroborated. Her evidence was that other incidents of a sexual nature had taken place between the appellant and herself, but that those the

subject of the indictment were the ones that she could most clearly remember.

There are a number of grounds of appeal. In my view one of them, involving the way in which his Honour invited the jury to deal with an incident involving a kitchen knife, must succeed. It is the only one of the grounds which has merit, in my view. It is not necessary to deal with the majority of the other grounds. Even if there were to be a re-trial of the appellant, the grounds generally deal with matters particular to this trial, such as the timing of amendment of the indictment in relation to the date of the trial, the length of the jury's deliberation, and the manner of taking the jury's verdicts, which are particular to this trial and which are unlikely to arise in a future trial. However, some aspects of other grounds may be relevant to any future trial of the appellant and I therefore deal briefly with them also.
So far as the kitchen knife incident is concerned, the appellant complains both about the admission of the evidence relating to that incident and about the manner in which his Honour dealt with it. It is my view that the evidence was admissible; however, to explain why it was admissible is also to explain why his Honour's direction in respect of it was likely to mislead the jury as to the way in which they could use it.
The evidence of the complainant was that a matter of months after the last of the incidents referred to in the indictment, she had been with her sister at the residence which her mother and the appellant shared when the appellant returned home from bowling, apparently affected by alcohol. She and her sister were in the kitchen drying the lunch dishes. The appellant began to approach them with his arms spread out and she, because of his previous behaviour, felt afraid and picked up a kitchen knife, threatening to stab him if he came closer. Her sister ran out of the kitchen in distress and spoke to her mother, who had just returned home. Mrs Oberholzer came into the house and as a result of what she was told by the complainant took the children and left the house, never returning to live with the appellant. The complainant's evidence of this incident was supported by evidence given by her sister and by Mrs Oberholzer.
The appellant denied that any such incident had occurred at all. His evidence as to the reason for the separation was that he had "kicked out" Mrs Oberholzer and her children when a dispute arose about whether he would go to Melbourne with them. His evidence was also that the relationship between him and Mrs Oberholzer's children was generally cordial. Although he described the complainant as something of a troublemaker, his evidence was that the children would sometimes jump on him when he returned home from work in a playful manner. His evidence was also that, because of an incident which he described and which had no sexual overtones at all, his practice was not to be alone in the house with the children as a rule in any event. His evidence was also that cordial relations continued after the separation, to the extent that he would occasionally go to see Mrs Oberholzer at houses in which she later lived and which he described for the jury.
The appellant's counsel objected to the admission of the evidence relating to the knife incident on two bases, the first being that it was irrelevant and the second that it was unduly prejudicial. It is difficult to see how it could have been unduly prejudicial, since all that the appellant was said to have done on that occasion was walk towards the complainant, with his arms outstretched, in a state of intoxication.
The striking feature of the incident was the complainant's reaction, and it was precisely this which in my view made the incident admissible. In cases in which sexual abuse within a family, extended family or other normal community network is alleged, one way of testing the evidence of a complainant may be to look at what is said against the background of the relationship as a whole. It will be the experience of members of the jury that sexual abuse of children does not normally occur within such relationships. If it does occur, members of a jury may expect that it could cause strains and dysfunctions within the relationship; in particular, perhaps, by some manifestations of hostility, dislike or suspicion, exhibited by the complainant in respect of the accused. The presence of hostility or suspicion does not of itself indicate sexual abuse; there are many reasons why family relationships may be strained at different times. However, the absence of any apparent hostility or reserve is a matter which is often, quite rightly, put before juries as a matter suggesting that the complainant's evidence should be treated with caution. Because of the vulnerable position and psychological dependence, particularly of young children, it is the experience of the courts that an absence of overt hostility or suspicion does not necessarily mean that a complainant is not telling the truth; however, it is certainly a factor which it is open to a jury to take into account in assessing all the circumstances.
In this case, then, the appellant's evidence as to the apparently cordial relationship which existed between him and the children, and between him and Mrs Oberholzer, even persisting after their separation, was rightly admitted as suggesting a relationship which may have been inconsistent with the account the complainant gave. For precisely the same reason, the evidence of the kitchen knife incident was admissible as a factor which the jury could consider in assessing whether this appeared a normal family relationship and whether the complainant's behaviour at the time appeared to be consistent or inconsistent with sexual incidents of the type she described.
Once the evidence was admitted on that basis, it also was capable of serving a further function in the trial. It was the only matter of dispute between the complainant and the appellant, in respect of which there was evidence independent of the complainant (albeit coming from members of the complainant's immediate family). A jury may have been readier to accept the evidence of the complainant in respect of this particular incident because her evidence was supported by that of two other people. It would also have been open to them to take into account, in assessing the complainant's credibility generally, that her evidence in relation to that disputed matter had other support.
In short, the kitchen knife incident formed part of the relationship between the parties and was therefore a feature which the jury, as a matter of ordinary human experience, could take into account in considering whether or not the events alleged by the complainant appeared to be inconsistent with that relationship and hence in assessing the complainant's credibility generally. Unfortunately, however, his Honour's direction to the jury in relation to this incident appears to have elevated it into something potentially more directly probative of the offences charged.
His Honour first referred to the knife incident in outlining to the jury what had been said on behalf of the appellant and on behalf of the Crown in relation to the matter. He briefly outlined the conflict in relation to the knife incident and then observed "you might find, as I think Mr Mactaggart [the prosecutor] suggested, that looking at that evidence and making your assessment of that might be a useful starting point, although it is of course entirely for you how you approach the evidence".
It is not clear from this direction what the incident is a "starting point" for. We did not have before us the addresses of counsel, and neither counsel on the appeal suggested that it would be useful to refer to what Mr Mactaggart had said. Had his Honour's direction been left at that, I would not have been prepared to quash the conviction. It seems to me in its context it is probable that his Honour was referring to the evidence of that incident as a starting point in relation to the assessment of credibility. It would have been open for the jury to use it in that way; that is, to begin by assessing whether they believed the evidence of the complainant in relation to that incident, supported as it was by the evidence of others, and, if so, asking themselves whether that assisted in forming a view as to the complainant's credibility overall. If that were the intended use, it would have been desirable for his Honour to have advised the jury at that point that the fact that they had accepted some part of the evidence of a witness did not mean that they had to accept all of the witness's evidence. However, this observation had been made to the jury by his Honour at an earlier time, and it is to be assumed that they would have borne it in mind throughout.
However, having referred to the evidence as a "starting point" his Honour then went on to expand on the appellant's explanation of the incident in some more detail and concluded his account of it with this passage:
"If you are satisfied beyond reasonable doubt that the confrontation occurred in the kitchen in the way described by them that is to say by the [complainant and her family] then you would want to think what then does that tell you as to whether or not the offences she alleged in fact occurred or not? If you are left with a reasonable doubt as to whether that incident occurred in the kitchen or not, then I suggest to you that you could not use it to come to a conclusion that necessarily lead you to accept her evidence on one or more of the other counts."
The second part of this direction tends to suggest that the use of the evidence is only an assessment of the credibility of the two principal witnesses (the complainant and the appellant). However, the first sentence in that passage can only be read as suggesting to the jury that it is possible to reason directly from the incident in the kitchen to a conclusion about the offences; that is, it would appear that the jury could have understood it as saying that it was open to them to reason that the incident with the knife would not have occurred had there not been offences of a sexual nature committed by the appellant against the complainant. As I have pointed out, reasoning of this kind would be impermissible. There may be many reasons for hostility of the kind displayed by the complainant on that occasion. His Honour was, in effect, inviting the jury to draw an inference which was simply not open to them.
I am conscious of the fact that it is not unusual for single sentences and short passages from jury directions, read out of context, to be understood as inviting a jury to take an impermissible course when, read as a whole, the direction does no such thing. The rest of his Honour's direction to the jury in this case was a clear and careful one which emphasised the difficulties and dangers inherent in complaints of this kind made many years after the event where there was no other supporting evidence. However, because this case was simply one of oath against oath, in my view his Honour's direction, suggesting as it did an impermissible way of reasoning in respect of the only aspect of the complainant's evidence which was clearly supported by the evidence of others, had such potential to deprive the accused of a fair trial, that the conviction must be quashed.
The grounds of appeal also complain about his Honour's allegedly inadequate "Longman" direction (Longman v The Queen (1989) 168 CLR 79). In my view, the direction which his Honour gave was a clear one which carefully set out precisely the matters referred to in the judgment of Brennan, Dawson and Toohey JJ in Longman's case, at page 91 of that decision. In my view, this ground of appeal must fail.
It was complained that his Honour did not explain to the jury the law relating to inferences. However, this was not an inference case. It was one of oath against oath in which there was no room for inference reasoning in the sense in which it is usually explained to juries. Indeed, as I have noted, the only error which his Honour made in the direction appears to me to have been one in which he effectively suggested to the jury that an inference might be drawn when it could not. It is suggested that his Honour did not adequately put the defence case to the jury, but in my view he dealt with the whole of the evidence in a balanced and reasonable way.
There is a complaint in relation to his Honour's permitting "relationship" evidence to be given. The only relationship evidence appears from the following passages. When asked whether she recalled anything occurring at a particular house, the complainant answered "Yes many things occurred at that house" and when asked about the first incident she could recall at that house she answered, "Well the clearest ones that I can recall occurring are one day …". Finally, the complainant was asked, "The incidents that you have described, were they the only incidents that occurred between you and the accused?" to which she answered, "No."
It is difficult to see the evidence I have described as "relationship" evidence as usually understood at all. Evidence of that kind is generally admissible where it shows "guilty passion" or helps to explain the response of a complainant who may, for example, be so conditioned by repeated abuse that she comes to accept it as normal, or for other reasons fails to complain. Evidence of other uncharged acts committed by an accused may be prejudicial and should not be admitted unless there is clear basis for its admission. However, where the evidence is no more than that the accused committed on other occasions, not precisely recalled, acts similar in kind to those alleged in the indictment and described in detail by the complainant, the apprehended prejudice would not appear to be as great as that to be expected where the uncharged acts are different in kind (particularly if more serious ) or committed against others: see R v S (1998) 103 A Crim R 101 at 111 (per Thomas J).
In this case, it seems to me that the real purpose of admitting the evidence complained of would be to account for the complainant's uncertainty in relation to some incidents. It might well be expected that if there had been only eight incidents of a sexual nature between the appellant and the complainant, she might, even though quite young at the time, have remembered them in considerable detail. The existence of an unknown number of other incidents would help to explain why she at times appeared to have difficulty in remembering precisely what had occurred on each of the occasions referred to. In such a case, it appears to me that the evidence of the occurrence of other events of that kind would be admissible in order to assist the jury in evaluating the evidence, as potentially explaining why the complainant was unable to remember with precision the sequence of events.
However, it would be necessary to warn the jury, as his Honour did, that the appellant was not charged with those other acts and that they could not use the existence of those other acts (if they found them to have occurred) to make up any deficiencies in the evidence relating to the matters with which the appellant was charged. His Honour explained that to the jury. His Honour also gave the jury the conventional "relationship evidence" warning, explaining that the evidence served only to explain the relationship between the parties and could not be used to reason that he was guilty of the offences with which he was charged. In my view, part of that direction was unnecessary, but since it could only have further confined the use which the jury might have made of that evidence, no prejudice would have been occasioned by that direction.
As I have noted, the other grounds of appeal appear to me to be peculiar to the circumstances of this trial and, since the conviction should in my view be quashed, it is unnecessary to deal with them. I would quash the conviction and order a new trial of the appellant. It is also unnecessary to deal with the appeal against sentence. I observe in that respect that there is an affidavit before us containing material about factors personal to the appellant, which was not before his Honour and which would have to be taken into account should the appellant be convicted after any further retrial.