VOT v The State of Western Australia
[2008] WASCA 102
•9 MAY 2008
'VOT' -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 102
| (2008) 37 WAR 129 | |||
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASCA 102 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:56/2007 | 1 FEBRUARY 2007 | |
| Coram: | STEYTLER P MILLER JA EM HEENAN AJA | 9/05/08 | |
| 26 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| A | |||
| PDF Version |
| Parties: | 'VOT' THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal Evidence Leave to cross-examine complainant concerning sexual matters Evidence Act 1906 s 36BC No miscarriage of justice |
Legislation: | Criminal Appeals Act 2004 (WA), s 30(4)(a) Evidence Act 1906 (WA), s 36B, s 36BA, 36BC, |
Case References: | Bannister v The Queen (1993) 10 WAR 484 Bolton v The State of Western Australia [2007] WASCA 277 Bull v The Queen [2000] HCA 24; (2000) 201 CLR 443 Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024 Hill v The Queen [2003] WASCA 177 Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166 Libke v The Queen [2007] HCA 30; (2007) 81 ALJR 1309; (2007) 235 ALR 517 Papakosmas v R [1999] HCA 37; (1999) 196 CLR 297 Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303 R v Osborne [1905] 1 KB 551 R v Stergiou [2004] WASC 172 Suresh v R [1998] HCA 23; (1998) 53 ALR 145 Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : 'VOT' -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 102 CORAM : STEYTLER P
- MILLER JA
EM HEENAN AJA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : YEATS DCJ
File No : IND 1763 of 2004
Catchwords:
Criminal law - Appeal - Evidence - Leave to cross-examine complainant concerning sexual matters - Evidence Act 1906 s 36BC - No miscarriage of justice
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Legislation:
Criminal Appeals Act 2004 (WA), s 30(4)(a)
Evidence Act 1906 (WA), s 36B, s 36BA, 36BC,
Result:
Appeal dismissed
Category: A
Representation:
Counsel:
Appellant : Ms F R Veltman
Respondent : Mr S Vandongen
Solicitors:
Appellant : Legal Aid (WA)
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Bannister v The Queen (1993) 10 WAR 484
Bolton v The State of Western Australia [2007] WASCA 277
Bull v The Queen [2000] HCA 24; (2000) 201 CLR 443
Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024
Hill v The Queen [2003] WASCA 177
Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166
Libke v The Queen [2007] HCA 30; (2007) 81 ALJR 1309; (2007) 235 ALR 517
Papakosmas v R [1999] HCA 37; (1999) 196 CLR 297
Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303
R v Osborne [1905] 1 KB 551
R v Stergiou [2004] WASC 172
Suresh v R [1998] HCA 23; (1998) 53 ALR 145
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
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1 STEYTLER P: I have had the advantage of reading the judgments of EM Heenan AJA and Miller JA. I am consequently able to be brief in stating the facts and issues and my conclusions in respect of them.
2 The appellant was convicted by a jury on four counts of sexual penetration and two counts of indecent dealing in respect of a child aged between the ages of 13 and 16. He was also convicted of three counts of sexual penetration of the same child at a time when she was over the age of 16 but under the care, supervision or authority of the appellant. He appeals against his conviction on those counts.
3 There is only one ground of appeal. It is that the trial judge erred in failing to allow the appellant's then counsel to adduce evidence from the complainant and her general practitioner (Dr 'A') in relation to the disclosure by the complainant to Dr A of previous sexual abuse suffered by the complainant.
4 As appears more fully from the other judgments, the appellant was the complainant's step-father. The prosecution case was that the offending behaviour occurred between 1 September 2000 and 1 October 2003. During that time the complainant usually lived with her natural father. However, she visited her mother periodically. She stayed at the home of her mother and the appellant during holidays, some weekends and on other occasions. It was during these visits that the offending behaviour was said to have taken place.
5 The appellant denied that there had been any sexual misconduct. His evidence was that none of the events referred to by the complainant had taken place.
6 Counsel for the appellant obtained, for the purposes of the trial, a set of clinical notes maintained by Dr A. These recorded consultations that she had had with the complainant over the period 15 February 2001 to 24 September 2003. A note that was made by Dr A in respect of a consultation with the complainant on 26 October 2002 has been reproduced in the judgment of Miller JA. It records that, between the ages of 8 and 11, the complainant had been sexually abused by her step-father. The complaint related to a previous husband of the complainant's mother and not to the appellant. The note also records that the complainant had gone to PMH (a reference to Princess Margaret Hospital) but that there was 'no evidence'. Amongst other notes written on that day in respect of this consultation is one to the effect that the complainant had been 'threatened by step-father' and that she had 'nightmares about it'. Finally,
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- these notes record that Dr A recommended that the complainant should obtain counselling.
7 Dr A's notes in respect of a later consultation with the complainant on 24 September 2003 reveal that she was then told by the complainant (at that time aged 16 years and 10 months) that she had been forced to have intercourse with her current step-father (the appellant) for two years.
8 At the commencement of the trial the then counsel for the appellant applied to the trial judge, in the absence of the jury, for leave to cross-examine the complainant with respect to those notes. The application was made upon the assumption (by both counsel) that s 36BC of the Evidence Act 1906 (WA) (Act) was applicable. That section reads as follows:
(1) In proceedings for a sexual offence, evidence relating to the sexual experiences of the complainant, being sexual experiences of any kind, at any time and with any person, not being part of the res gestae of the proceedings, shall not be adduced or elicited by or on behalf of an accused unless leave of the court has first been obtained on application made in the absence of the jury (if any).
(2) The court shall not grant leave under subsection (1) unless satisfied that -
(a) what is sought to be adduced or elicited has substantial relevance to the facts in issue; and
(b) the probative value of the evidence that is sought to be adduced or elicited outweighs any distress, humiliation or embarrassment which the complainant might suffer as a result of its admission.
10 The prosecutor submitted that the issue was one for the trial judge's discretion, but that, subject to two reservations, he considered that it was permissible, under s 36BC, for the appellant's counsel to cross-examine
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- the complainant in the manner foreshadowed. His first reservation was that the note concerning the absence of evidence being found at PMH should not be permitted. His second was that, if leave was granted, the prosecution should be permitted to adduce, in re-examination, evidence of the complaint made during the later consultation on 24 September 2003.
11 The trial judge declined to grant leave. Her reasons for doing so are set out in the judgment of EM Heenan AJA. Essentially they were that the failure to make a complaint went to credit rather than to a fact in issue and that it had no substantial relevance to the facts in issue.
12 There is no doubt that the evidence was relevant, and therefore admissible at common law. It was evidence that could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding: Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024 [2] (Gleeson CJ); Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303 [50]. It was capable of rationally affecting the assessment of the probability of the complainant having been subjected to sexual abuse by her then step-father both before and at the time of the complaint made in respect of earlier sexual abuse. However, it seems to me that, applying what was said by the majority in Bull v The Queen [2000] HCA 24; (2000) 201 CLR 443, the evidence fell outside the ambit of s 36BC of the Act.
13 To be caught by s 36BC(1), the evidence must be evidence 'relating to' the sexual experiences of the complainant. In Bull, the majority (McHugh, Gummow & Hayne JJ) considered the meaning of the words 'evidence relating to' in each of s 36B, s 36BA and s 36BC of the Act. They said [72] that evidence of a fact or matter is 'testimony that tends to prove that fact or matter' (see also [103] - [106]). In this case, the evidence, if allowed, would have been elicited in order to prove two things. The first was that the complainant had made a complaint of prior sexual abuse. The second was that she had made no complaint in respect of the alleged then current sexual abuse. It is only the first of those propositions that might be said to bear upon the sexual experiences of the complainant.
14 However, that evidence was not to be adduced for the truth of its contents and, because the evidence sought to be elicited was to be strictly limited to evidence from the complainant of what she had said (and not said) to the doctor, it would have been inadmissible as evidence of the truth of its contents. Whether the complainant had in fact been abused by her first step-father was irrelevant. What mattered was that she had made
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- a complaint of abuse but had not, at the same time, made any complaint of abuse by the appellant. Consequently, while the evidence tended to prove a fact relevant to a fact in issue, it did not (to use the words of the majority in Bull [126]) 'prove it by asserting the contents of the conversation'. That being so, on the reasoning of the majority in Bull [126], the evidence did not tend to prove the sexual experiences of the complainant: see, in this respect, Bolton v The State of Western Australia [2007] WASCA 277 [52] - [55], [63], [64]. The trial judge was accordingly in error, in my respectful opinion, in applying s 36BC. I should stress, in this respect, that it was at no time suggested to her by either party that that section was not applicable.
15 In case I am wrong in my conclusion concerning the inapplicability of s 36BC, I should add that I agree with Miller JA that the evidence sought to be adduced had no substantial relevance to the facts in issue.
16 As EM Heenan AJA has pointed out, that phrase is not defined by the Act and we have not been referred to any authority (and nor have I been able to find any) dealing with the meaning of that phrase in s 36BC. While it is difficult, and not particularly helpful, to give any precise meaning to the words 'substantial relevance' in this context, it seems to me that the evidence, if it is to satisfy s 36BC(2)(a), must be evidence that carries substantial weight in tending to prove or disprove facts in issue.
17 It is unnecessary to decide whether the evidence in question in this case was relevant to a fact in issue (although I am inclined to doubt that it was relevant to anything other than the credit of the complainant: see, in this respect, Hill v The Queen [2003] WASCA 177 [3] (Murray J), [16] (Wheeler J) and cp [52] - [57] (McLure J); and see also R v Stergiou [2004] WASC 172). That is because it seems to me that, whatever may be the answer to that question, the evidence was not, in the circumstances of this case, 'substantially' relevant to any fact in issue. The evidence could only have been relevant to a fact in issue because it might be thought to be likely that someone who was currently being subjected to sexual abuse, and who was making a complaint concerning different, earlier, sexual abuse, would complain also of the current abuse. It could accordingly be argued that the absence of any complaint concerning later abuse made it improbable that there was, in truth, any later abuse. However, the failure to complain must be evaluated in the light of the circumstances in which it occurred.
18 As Miller JA has pointed out, there is no evidence to suggest that the complainant went to Dr A for the purpose of complaining about sexual
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- abuse. That seems to be highly unlikely, given that the sexual abuse complained of was said to have occurred some four to seven years earlier. I have said that the complaint was one of abuse between the ages of 8 to 11 years. On 26 October 2002 the complainant was almost 16 years old. That said, it seems that the consultation may well have been for the purpose (perhaps amongst others) of addressing ongoing problems brought about by the earlier abuse. If that turned out to be so, it was open to the appellant to argue that, in that circumstance, it might be expected that, if the complainant was currently being abused, she would complain also about that abuse. However, any such contention must be evaluated in context.
19 The complainant's evidence was that, by the time of this consultation, the sexual relationship with her current step-father had been continuing for more than two years. This may have been a source of considerable embarrassment to her. Also, she said in her evidence that at some time her step-father had taken her to Dr A in order to get a prescription for contraceptive tablets. She said that the doctor had asked her if she was sexually active and that she had had to tell her that she was. She told the doctor that the person involved was a boy from her school. Dr A's evidence established that this was on 14 June 2002. It may have been a source of embarrassment for the complainant to admit to Dr A that she had lied. Most important of all, perhaps, the complainant's evidence was that her step-father had accompanied her to the doctor on the occasion of her visit on 26 October 2002 and was waiting for her outside the doctor's consulting room.
20 The complainant was also cross-examined at length during the trial concerning the fact that she had made no complaint over the period of three years in which the abuse continued. When asked why she had not complained, she responded by saying (as is not uncommon in cases of this kind), 'Because I felt dirty and ashamed. I felt like it was my fault'. When asked why she thought it was her fault, she said (once again giving an answer that is not uncommon in such cases) that she thought that she might have done something to provoke it. She also said that she had not thought that anybody would believe her if she did complain. This was because the appellant had in his possession a number of letters and notes written by the complainant (she said that he had made her write these) that 'made it sound as if [she] had feelings for him'. It consequently seems inevitable that, if she had been asked why she did not complain to her doctor on 26 October 2002, she would have given similar responses. It is also necessary to bear in mind that, if evidence had been introduced of the failure to make any complaint on 26 October 2002 concerning the
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appellant, the evidence of the complaint made on 24 September 2003 would inevitably have been introduced into evidence.
21 In all of these circumstances, I am not persuaded that, at least as matters turned out during the trial, the evidence had substantial relevance to the facts in issue as required by s 36BC(2). Consequently, if the evidence fell within the ambit of s 36BC(1) of the Act, leave to adduce it was rightly refused.
22 That leaves the question whether, if I am right in my conclusion that s 36BC(1) had no application (or, if it applied and I am wrong in considering that leave to adduce the evidence under that section was rightly refused), the failure to allow the evidence to be adduced led to a substantial miscarriage of justice: s 30(4) of the Criminal Appeals Act 2004 (WA); Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [39] and Libke v The Queen [2007] HCA 30; (2007) 81 ALJR 1309; (2007) 235 ALR 517 [46] - [49] (Kirby & Callinan JJ), [115] (Hayne J, Gleeson CJ & Heydon J concurring).
23 For the reasons I have given when considering the question whether or not the evidence had substantial relevance, and also for those given by EM Heenan AJA, I am satisfied that there was no substantial miscarriage of justice. I have only one comment to add to what was said by EM Heenan AJA in that respect. This relates to correspondence between the appellant and the complainant which, with respect, EM Heenan AJA rightly describes as having been 'in extremely compromising terms' so far as the appellant is concerned. He mentions that the appellant admitted authorship of some of these documents but denied that of others. It may be material to add, in this respect, that, in one of these disputed documents (exhibit 4), the word 'butterflies' had been misspelled. The appellant was asked, during the course of cross-examination, to spell that word. He made an identical misspelling.
24 For the reasons given by EM Heenan AJA the case against the appellant was very strong indeed. The introduction of the evidence to which I have referred would not have changed this.
25 I would dismiss the appeal.
26 MILLER JA: The appellant was convicted in the District Court at Perth of nine charges of indecent dealing and/or sexual penetration of a child. There were two convictions for indecent dealing and four convictions for sexual penetration of the child at a time when she was between the ages of 13 and 16 years and three convictions for sexual penetration of the same
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child at a time when she was over the age of 16 years and under the care, supervision and authority of the appellant.
27 The appellant has appealed against his convictions and relies upon a single ground. It is set out in the judgment of EM Heenan AJA. It relates to an application by counsel for the appellant at trial to adduce evidence from the complainant by way of cross-examination about a complaint she had made to a doctor. The facts are fully recounted in the judgment of EM Heenan AJA. They reveal that on 26 October 2002, the complainant's general medical practitioner recorded that the complainant, between the ages of 8 and 11 years, had been sexually abused by her stepfather. The relevant manuscript of the note is set out in the judgment of EM Heenan AJA. In full, the record of the general medical practitioner is as follows:
28 It was accepted at trial that the reference to sexual abuse did not relate to the alleged sexual acts of the appellant. However, the same notes reveal that, at a later consultation on 24 September 2003, the medical practitioner recorded that the complainant (then aged 15 years and 10 months) said that she had been forced to have intercourse with her father (the appellant) for two years.
29 If counsel for the appellant had been able to cross-examine the complainant about the statements she was said to have made to her medical practitioner on 26 October 2002, it would have been inevitable
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- that in re-examination she would also have been questioned about the complaints made on 24 September 2003. As EM Heenan AJA has said at [79], this would have largely eroded the significance, if any, of the absence of complaint against the appellant at the 26 October 2002 consultation.
30 The question which arises from the appellant's ground of appeal is whether the proposed questioning of the complainant about the consultation on 26 October 2002 infringed the provisions of s 36BC of the Evidence Act1906 (WA), and, if it did, whether leave to ask the proposed questions ought to have been granted.
31 EM Heenan AJA has concluded that the questions were not prohibited by s 36BC at all. His Honour relies upon the judgment of McHugh, Gummow and Hayne JJ in Bull v The Queen [2000] HCA 24; (2000) 201 CLR 443 as authority for this conclusion.
32 In Bolton v The State of Western Australia [2007] WASCA 277, Steytler P elaborated upon what was said by the majority in Bull about s 36BC of the Evidence Act1906. Steytler P said:
Section 36BC and sexual experiences
The words 'sexual experiences' include experiences as the victim of a sexual offence: Hill v The Queen [2003] WASCA 177 [48] (McLure J; Murray & Wheeler JJ agreeing). These words have also been construed as meaning actual sexual experiences, in the sense that the defence cannot, without leave, cross-examine a complainant on the question whether a previous complaint of rape involved consensual sex (see R v Tribe [2001] QCA 206 [22] - [24], [31] - [34] (Mackenzie J, McMurdo P & Williams JA agreeing)) but can, without leave, suggest to the complainant that a previous complaint of rape was false because the sexual act never occurred (R v Stergiou [2004] WASC 172; (2004) 147 A Crim R 120 [16] - [20] (Le Miere J)). The rationale for this distinction is that cross-examination contending that sexual activities did not take place at all is not cross-examination with respect to the complainant's sexual experience: see also R v MAG [2004] QCA 397 [24] - [27] (Williams JA, Cullinane & Jones JJ agreeing); R v Thow [2003] TASSC 16 [9] - [10] (Slicer J). Under Western Australian legislation, the lack of sexual experience is not caught by s 36BC: cf, in this respect, Criminal Procedure Act 1986 (NSW) s 293(3).
In Bull [62] the majority considered that the use, in s 36BC, of the plural 'sexual experiences' was significant. They said that it indicated that the purpose of the section was to prohibit evidence which described any occasion or episode of sexual activity involving the complainant and another person but that its purpose was not to prohibit all evidence that
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- tends to prove the state of his or her sexual experience. They went on to say [62]:
'Without infringing s 36BC (nor ss 36B and 36BA), the defendant would plainly be able to question the complainant concerning the extent of his or her sexual knowledge. This is clear from the qualifying words 'being sexual experiences … with any person'. Those words also indicate that the complainant could be questioned or evidence adduced to prove that the complainant had witnessed the sexual activities of others as long as the evidence did not suggest that the complainant was involved in those activities. Moreover, without infringing the prohibition in s 36BC, to rebut a claim that the complainant had not had sexual intercourse before the events the subject of the charge, the defendant would seem able to adduce medical evidence that an examination of the hymen or anus indicated otherwise.' [36] - [37]
If the words 'evidence relating to' in ss 36B, 36BA and 36BC are read as meaning 'evidence adduced for the purpose of proving', it would cut down the effect of ss 36B and 36BA and reduce, if it did not abolish, the conflict between those sections and s 36BC. Evidence that incidentally revealed or disclosed or tended to prove the complainant's reputation or disposition in sexual matters would not be inadmissible if it was adduced for a different, permissible purpose. [66]
- Their Honours added:
On the assumption that the words 'evidence relating to' are confined to testimony that tends to prove reputation, disposition or experiences, one needs also to bear in mind that testimony relating to conduct and testimony relating to out-of-court statements stand in different positions. As we have pointed out, testimony relating to conduct may have the tendency to prove disposition, even though it has the tendency to prove a fact in issue. Because that is so, the plain language of s 36BA prima facie prohibits all testimony relating to conduct that tends to prove the disposition of the complainant in sexual matters, even if the evidence is relevant and is tendered only for some other purpose. However, testimony relating to out-of-court statements is much less likely to tend to prove such matters. Independently of ss 36B, 36BA and 36BC of the Act, testimony concerning out-of-court statements by or in the presence of the complainant will only be admissible in limited circumstances. Because the complainant is not a party to the proceedings, testimony on behalf of the accused concerning such statements will be admissible to prove a fact asserted in the statement only if it comes within a recognised exception to the hearsay rule. The hearsay rule, and not s 36B, 36BA or 36BC, will ordinarily prohibit the admission of such testimony. [73]
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- The basis upon which an out of court statement may be admissible to prove a fact relevant to a fact in issue was also made clear:
Sometimes, however, testimony of an out-of-court statement is admissible to prove a fact relevant to a fact in issue such as the intention or purpose of the complainant or even the consent of the complainant. If the statement contains material that refers to matters relating to the reputation, disposition or experiences of the complainant in sexual matters, would it be evidence tending to prove those matters and prohibited by one or more of the three sections? We think not. [75]
35 Nevertheless, the evidence was hearsay. As such it was only admissible to prove a fact in issue or a fact relevant to a fact in issue.
36 This raises the question whether the fact that the complainant made a complaint of earlier sexual abuse at the hands of a person other than the appellant at a time when the appellant was allegedly sexually abusing her, went to a fact in issue or a fact relevant to a fact in issue. The argument of the appellant is that it did, because it could have been expected that if the appellant was sexually abusing the complainant at the time of her complaint about someone else having abused her in the past, she would have said so.
37 I do not consider the hearsay statement of the complainant to her general medical practitioner about earlier sexual abuse to go to a fact in issue or a fact relevant to a fact in issue. The statement had no probative value other than to establish the fact of a complaint about another occasion of sexual abuse at the hands of a different person.
38 I accept that there may be a very narrow dividing line between questions which go merely to credit and questions which go to a fact in issue in the proceedings (or a fact relevant to a fact in issue in proceedings) (see Bannister v The Queen (1993) 10 WAR 484 per Kennedy J at 487 - 488 and Gleeson CJ in Bull), but that is not the question in this case. The question is whether the complainant's alleged statement to her general medical practitioner on 26 October 2002 went to a fact in issue or a fact relevant to a fact in issue.
39 I am unable to accept that if the complainant on 26 October 2002 mentioned earlier incidents of sexual abuse (many years earlier), but did
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- not mention incidents of sexual abuse at the hands of the appellant at that time, this went to the issue whether the appellant committed the acts of sexual abuse which were the subject of the indictment.
40 The appellant was alleged to have sexually abused the complainant between the period 1 September 2000 and 1 October 2003. The appellant was the stepfather of the complainant and he lived with the complainant's mother at the relevant time. The complainant usually resided with her natural father and her natural father's second wife, but from time to time visited her mother and, on those occasions, stayed at the house occupied by her mother and the appellant. These occasions involved weekends and holidays, but also other occasions. The prosecution case was that, during some of these visits, the appellant sexually interfered with the complainant.
41 It therefore seems that, on 26 October 2002, when the complainant is said to have made the relevant complaint to her medical practitioner, she was midway through a period of time during which she was spending occasional nights at the home of the appellant where the appellant was living with her mother. The fact that she made no complaint of sexual molestation by the appellant does not seem to me to have substantial relevance to the question whether at that time there was sexual molestation by the appellant. The making of a complaint to her general medical practitioner about an earlier period of sexual abuse did not, in my opinion, advance the question whether in October 2002 the appellant was guilty of sexual misconduct towards the complainant. It could not, in my opinion, be said to have had substantial relevance to that question. Mention of the earlier sexual abuse did not exclude the fact that the appellant was responsible for sexual misconduct towards the complainant at the relevant time.
42 There is nothing to suggest that the complainant went to her general medical practitioner for the purpose of complaining about sexual abuse. According to the notes, she was there for treatment for the consequences of sexual abuse, including 'nightmares about it'. She was referred by the general medical practitioner to 'Gosnells' for counselling.
43 For these reasons, I am of the opinion that the appellant's ground of appeal cannot be made out. If I am wrong about that, I agree with EM Heenan AJA that there was, in any event, no substantial miscarriage of justice for the reasons which his Honour has advanced.
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44 EM HEENAN AJA: After a trial in the District Court of Western Australia at Perth before her Honour Judge Yeats and a jury, the appellant was convicted on 24 April 2007 of nine charges of indecent dealing or sexual penetration of a girl, whom I shall refer to as X, who was at various times a child over the age of 13 years and under the age of 16 years, and in relation to some of the offences, over the age of 16 years but then under the care of the appellant and/or under his care, supervision or authority. The convictions included two counts of indecent dealings, four counts of sexual penetration of a child over the age of 13 years and under the age of 16 years and three counts of sexual penetration of a child over the age of 16 years and under the appellant's care, supervision and authority.
45 Following these convictions, the appellant was sentenced to various terms of imprisonment, effectively totalling 9 years and 4 months and was made eligible for parole. From each of these convictions the appellant, by leave granted by Wheeler JA on 23 July 2007, appeals to this court on the single ground that:
The learned trial Judge erred in not allowing the application by defence counsel to adduce evidence from the complainant and Dr A [whom I shall so describe to avoid any identification of the complainant] in relation to disclosure of previous sexual abuse to the complainant.
PARTICULARS
(A) The disclosure of previous sexual abuse by a third person to Dr A was contemporaneous to the sexual abuse that was the subject of the Indictment.
(B) The State conceded that counsel for the defence should be entitled to cross-examine the complainant.
46 The question of whether the complainant should be granted leave to adduce evidence then postulated to come within the prohibition of s 36BC of the Evidence Act, was raised by counsel for the appellant in the absence of the jury at the commencement of the trial, together with a number of other preliminary issues. None of these, except for this particular issue, now requires attention. The submissions made by counsel for the appellant, and by counsel for the prosecution, were each heard and dealt with in the absence of any voir dire hearing or the production of any detailed statements of proposed witnesses about the alleged facts for which leave was being sought to adduce the evidence. The ruling made, to refuse leave to adduce such evidence, has meant that there is no actual
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- record of the evidence in respect of which leave was sought or of the precise questions proposed, although, having regard to the manner in which the application was dealt with at trial and again on this appeal, it has been possible to ascertain, with relative confidence, what was the substance of the proposed evidence.
47 The case against the appellant advanced by the prosecution at trial was that over a period between 1 September 2000 and 1 October 2003, during visits to the appellant's home, the appellant had sexually molested, in one way or another, the complainant X. The appellant was the step-father of X and had been living with the complainant X's mother for four years. X usually lived at her father's house with her father's second wife but visited her mother and stayed with the appellant some weekends, during holidays and other visits there.
48 The case for the prosecution was that it was during some of these visits that the unlawful sexual molestation of the young girl was committed. This also accounts for the allegations that at the material times she was under the appellant's care, supervision or authority.
49 The foreshadowed defence for the appellant, at the time this application was determined, later maintained throughout the trial, and by evidence on oath given by the complainant, was that he had never molested the young girl or engaged in any sexual impropriety with her, as alleged, or at all. It was accepted at the outset, and remained the case throughout the trial, that the vital issue was whether or not any of the alleged acts of sexual impropriety had occurred and that, to a large degree, any decision on those allegations depended greatly upon the credibility of the complainant X. This was, of course, subject to the onus and burden of proof, upon the credibility of the appellant.
50 At the time of making the application for leave to cross-examine the complainant pursuant to s 36BC of the Evidence Act, counsel for the appellant was in possession of a copy of a set of clinical notes maintained by Dr A. These clinical notes contained records of a series of consultations which X had with Dr A as her general medical practitioner over a period dating from 15 February 2001 to and including 24 September 2003 and perhaps later. The records of one particular consultation, apparently occurring on 26 October 2002, were said to be relevant and justified the grant of the leave which was being sought. Importantly, leave was being sought to cross-examine the complainant on this subject who, in any event, was to be called and was called as a witness for the prosecution. The leave being sought was to allow
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- cross-examination in relation to her complaint about earlier sexual molestation by a different person at the consultation on 26 October 2002.
51 As is apparent, the date of 26 October 2002 was during the period in which the prosecution alleged the improper sexual molestation of the complainant by the appellant was occurring, that is between 1 September 2000 and 1 October 2003, as already noted. The manuscript clinical record of the consultation of 26 October 2002 included a note that the patient (obviously the complainant), between the ages of 8 to 11 years: had been sexually abused by her step-father and that she went to Princess Margaret Hospital (PMH) - no evidence; that she again went to PMH when 13 years of age; and that she had been threatened by her step-father and had nightmares about it. There were several other notes relating to the consultation which need not be mentioned.
52 It was common ground by counsel for the appellant and the prosecution, and accepted by the learned trial judge, that the reference to sexual abuse by the 'step-father' in this note did not relate to the appellant but to a completely different person and, at least as far as the notes went, no record had been made of any complaints or allegations of sexual abuse or interference by the appellant.
53 Counsel for the appellant indicated that he desired to cross-examine the complainant in order to elicit evidence that no complaint had been made to the doctor on the occasion of the consultation of 26 October 2002 about any of the alleged offences by the appellant which the prosecution was asserting had by then been committed. Counsel submitted that, in addition to this evidence of lack of complaint about any conduct said to give rise to the present charges, leave should be granted to elicit evidence from the complainant, that she had, at that consultation, reported or complained of sexual abuse by a third person many years earlier. The alleged relevance of this evidence was that, if it could be proved or accepted that the complainant had mentioned to Dr A at the 26 October 2002 consultation that there had been prior sexual abuse by a third person some years before and, as seems to be accepted, that she had not then complained about any of the more recent abuse alleged to have been committed by the appellant, that was so incongruous that it tended to undermine the complainant's credibility on the vital issue of whether or not any of the alleged sexual abuse by the appellant had occurred.
54 As already stated, the brief manuscript notes of Dr A relating to this consultation were the only records available to support the line of cross-examination proposed by counsel for the appellant but there was no
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- apparent reason to doubt their accuracy so far as they went. By contrast, there was no statement or writing from the complainant X about her conduct at this consultation. However, it seems to have been assumed that if she were cross-examined on the subject she would probably give answers along the lines of the information recorded in the notes. If she did not, there may be an inconsistency between her evidence on that subject and evidence which might be expected to be elicited from Dr A in cross-examination of such a nature as would affect the complainant's credibility on the vital issue of whether or not the offences alleged had been committed.
55 No application at the trial was made by counsel for the appellant for leave to adduce evidence from Dr A about the statements made to the doctor by X at the consultation on 26 October 2002. On the assumptions made by counsel at the trial that under s 36BC leave to adduce such evidence was essential, one might infer that if leave to cross-examine X on this topic had been granted and if X had then not admitted that no reference had been made by her to the alleged offences when she met Dr A on 26 October 2002, there would then probably have been a further application under s 36B by counsel for the appellant for leave to cross-examine Dr A on that topic. However, any leave granted under s 36BC to cross-examine X in this regard may well have meant that leave to adduce evidence on the same topic from another or other witnesses would also be permitted. In view of the refusal of leave as sought there was no occasion for counsel at trial to make any similar application for leave in respect of evidence to be adduced from Dr A.
56 Although not then the subject of any application by either party for leave to examine or cross-examine by either party under s 36BC of the Evidence Act, there was a subsequent note in the records of Dr A regarding a later consultation which she had with the complainant on 24 September 2003 when X was then aged 16 years and 10 months. According to that note, the complainant told Dr A that she had been forced to have intercourse with her father for two years; that she had moved out of the father's home on 21 September 2003; that she visited her mother on 20 September 2003 but had not had intercourse with her father for a month. This was treated as a reference to the appellant. This note also contains records that the doctor recommended that she should be seen by the Sexual Assault Referral Centre and that investigations should be undertaken.
57 At the point when the application for leave under s 36BC was heard and determined, the position of the prosecution was that it did not intend
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- to adduce evidence of complaints to Dr A made at this later consultation on 24 September 2003, but that if leave were granted for evidence to be adduced, as was proposed by the application, then the prosecution would seek to elicit evidence of that later complaint against the appellant. Although, in the events which happened, the issue never arose for determination, counsel for the appellant appears to have accepted that if leave were granted, as was then being sought, it would follow that the prosecution would be at liberty to adduce evidence along the lines contained in the doctor's notes of this later consultation about her assertions against the appellant.
58 After briefly hearing submissions, the learned trial judge ruled that the evidence which was sought to be adduced was prohibited by s 36BC of the Evidence Act and unless leave were granted under s 36BC(2), as was being sought, the proposed lines of cross-examination could not be pursued. Her Honour took the view that the statutory prohibition against this evidence meant that it should generally not be adduced and that no good reason had been demonstrated to allow it to be adduced.
59 In this respect it is important to identify, as precisely as possible, the nature and significance of the proposed evidence in respect of which counsel for the appellant was seeking leave. Counsel at the trial submitted in this regard, at ts 41:
I do not wish to explore the details of that alleged abuse, but rather to show that the complainant had the opportunity when making that statement to the doctor in October 2002, at a time when on the State case, and if one has a look at the dates alleged in the indictment, she is being abused by the accused man, to show that when she made this statement to the doctor she had the opportunity to also reveal the alleged offences committed by the accused, but she did not; she failed to do so.
60 The position taken by counsel for the prosecution at trial also emerges from the submissions, at ts 46:
Your honour, it ultimately is of course a matter for your honour's discretion, but the state would say that that would be permissible to cross-examine her in relation to [what] she told the doctor about an incident of previous sexual abuse. The two caveats I would put on that though are as follows ... [counsel went on to submit that the note about going to PMH and no evidence being found should not be a permitted subject of leave and, secondly, that if leave were granted as sought the prosecution should be permitted to adduce evidence about the later consultation on 24 September 2003 when a complaint against the accused was (apparently) distinctly made].
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61 In making her ruling to decline leave, as sought on behalf of the appellant, the learned trial judge said (ts 47 - 48):
She was not going to the doctor to make complaints about sexual assaults, she was going to the doctor for treatment, one would assume … and the doctor was taking a history from her. It wasn't an occasion of making complaints. It seems to me if we start with that note, reading the whole context of the note, I am not satisfied that in the particular factual situation of this case that it has substantial relevance to the facts in issue. I don't think in this case it goes to the question of whether or not there has been a sexual assault ...
The making of and the failure to make a complaint following a sexual assault go to credit rather than to a fact in issue - and the failure to make a complaint is all I think we have here and that certainly is part of the defence case.
I don't think this has substantial probative value. I hope I'm not wrong about that but I must make that ruling based on my reaction to the case law, to the section of the Evidence Act and to the particular propositions put to me.
62 As Mr Vandongen very properly submitted at the hearing of this appeal, the eliciting of evidence sought by counsel for the appellant, namely that at a consultation with Dr A on 26 October 2002, the complainant made a report of sexual abuse by her step-father (not the accused) some years before when she was aged 8 to 11 years but did not at that consultation make any complaint of sexual abuse or impropriety by the accused at times which were then recent or at all, may not be evidence prohibited by s 36BC. Indeed, if one takes the view of McHugh, Gummow and Hayne JJ in Bull v The Queen [2000] HCA 24; (2000) 201 CLR 443 as to the scope and application of s 36BA and s 36BC, that would not prohibit evidence of the kind which counsel had foreshadowed because none of the proposed questions upon which cross-examination was being sought would enquire whether or not the earlier sexual abuse had in fact occurred, and an out-of-court statement to a doctor that they had occurred would not be evidence of that putative fact.
63 A different view of the scope of the prohibitions of s 36AB and s 36BC was taken by Gleeson CJ and Kirby J in Bull v The Queen. The differences have been set out in detail and analysed by Steytler P in the recent case of Bolton v The State of Western Australia [2007] WASCA 277 where his Honour, and the other members of the Court of Appeal, Buss and Miller JJA, took the view that the court was bound to follow the 'majority' view in Bull. No submission has been made to us that this court is not so bound, because all members of the court agreed in the ultimate
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- result in Bull v The Queen despite differences in their reasons, notwithstanding observations in Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166 about the problems of identifying a binding ratio decidendi in a case where there are multiple concurring judgments but with different reasons. I am satisfied that, therefore, this court should follow the same approach that was adopted in Bolton.
64 This means that leave to adduce the proposed evidence was not necessary and that counsel for the appellant could have cross-examined on these subjects, within the narrow confines which he had defined, without leave. No ground of appeal has been raised to assert that the appellant was deprived of the opportunity to adduce admissible evidence but, the conduct of the trial and of this appeal plainly proceeded on the assumption that the proposed evidence was inadmissible in the absence of leave and that the ruling by the trial judge refusing leave effectively disallowed cross-examination on the proposed topic. Therefore, although not strictly within the precise wording of the existing ground of appeal, I am satisfied that the substance of this appeal, and the justice of the case, requires that we should treat the appeal as in effect raising the issue that the appellant was wrongly prevented from adducing evidence on an issue relevant to the case and that that submission has been successfully made out.
65 Of course it is not difficult to foresee that if leave had been granted and cross-examination as proposed had been sought, there was a high degree of risk that, if not carefully controlled or confined, the proposed questioning or re-examination might quickly stray into areas in which the fact of the previous sexual activity or history by the complainant might be canvassed and that this would be evidence which could only be received, if at all, pursuant to a prior grant of leave.
66 It is therefore desirable to treat the present appeal additionally on the footing that leave under s 36BC of the Evidence Act may have been needed for some of the evidence which might be expected to emerge if the topic of the complaint about earlier alleged sexual misconduct made at the doctor's consultation on 26 October 2002 had been opened up. In effect, the learned trial judge's ruling was that there was no substantial relevance in the line of proposed cross-examination to any fact in issue because, at the most, the matter went to the absence of complaint and that this only affected the credit of the complainant.
67 The provisions of s 36BA and s 36BC of the Evidence Act are as follows:
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- 36BA. Sexual disposition of complainant, evidence of
In proceedings for a sexual offence, evidence relating to the disposition of the complainant in sexual matters shall not be adduced or elicited by or on behalf of an accused.
36BC. Sexual experience of complainant, evidence of
(1) In proceedings for a sexual offence, evidence relating to the sexual experiences of the complainant, being sexual experiences of any kind, at any time and with any person, not being part of the res gestae of the proceedings, shall not be adduced or elicited by or on behalf of an accused unless leave of the court has first been obtained on application made in the absence of the jury (if any).
(2) The court shall not grant leave under subsection (1) unless satisfied that -
(a) what is sought to be adduced or elicited has substantial relevance to the facts in issue; and
(b) the probative value of the evidence that is sought to be adduced or elicited outweighs any distress, humiliation or embarrassment which the complainant might suffer as a result of its admission.
68 The basis for the ruling that because evidence of lack of complaint related to credit and not to a fact or facts in issue, and should not therefore be the subject of leave granted under the section, emerged from the principles explained in Hill v The Queen [2003] WASCA 177. However, as McLure J pointed out at [53], there may be occasions when that distinction is not maintainable. The distinction was assumed to exist and to prevent the adduction of evidence without leave granted under the section by Le Miere J in R v Stergiou [2004] WASC 172 [27]. However, the distinction between issues of credit and evidence going to a fact or facts in issue has often produced difficulties and can involve questions of degree.
69 In the case of Bannister v The Queen (1993) 10 WAR 484, Kennedy J (487 - 488) indicated that in sexual cases the distinction diminished to vanishing point and, although it is apparent that Franklyn J took a slightly different view (at 492), it is clear that there may be occasions when issues of credit and issues about a fact in issue in the case may closely overlap: see Gleeson CJ in Bull v The Queen [9]:
It does not follow, however, that one can dismiss from further consideration the subject of relevance. The reason or reasons why evidence is relevant, and the question whether it answers the description of
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- 'evidence relating to the disposition of the complainant in sexual matters', may be interrelated [9].
- and McHugh, Gummow and Hayne JJ [103] - [106] where their Honours observed:
The third construction is that s 36BA prohibits the tender of any evidence which tends to prove the disposition of the complainant in sexual matters except where the evidence is evidence of the sexual experiences of the complainant and is admissible under s 36BC. This construction resolves the apparent conflict between ss 36BA and 36BC referred to above. On this construction, evidence which proves the complainant's sexual experiences but which also tends to prove the complainant's disposition in sexual matters is governed by s 36BC in so far as it proves the sexual experiences, but is governed by s 36BA for all other purposes.
In our opinion, the third construction is the one which best reconciles the legislative intention underlying ss 36B, 36BA and 36BC of the Act. That construction gives each of those sections 'the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme' [Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 382, per McHugh, Gummow, Kirby and Hayne JJ]. In Project Blue Sky Inc v Australian Broadcasting Authority [381 - 382], this Court said:
'A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals [Ross v The Queen (1979) 141 CLR 432, 440, per Gibbs J]. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions [See Australian Alliance Assurance Co Ltd v Attorney-General (Q) [1916] St R Qd 135, 161, per Cooper CJ; Minister for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565, 574, per Gummow J].'
The third construction strikes an appropriate balance between the competing aims of ensuring that the accused can put all cogent evidence before the court and protecting the complainant from humiliation and embarrassment. It accords with the terms of s 36BC which indicate that the Western Australian Parliament considered that, in the circumstances defined in s 36BC, evidence of the sexual experiences of the complainant should be admissible. Furthermore, the third construction reduces the potential for unfairness to the accused. At the same time, it protects the complainant by subjecting evidence of sexual experiences which tends to prove sexual disposition to stringent conditions. In order to be admissible, the evidence must relate to the complainant's sexual experiences and either be part of the res gestae of the proceedings, or (1) have substantial
- relevance to the facts in issue and (2) have a probative value that outweighs the distress, humiliation or embarrassment which the complainant might suffer as a result of its admission.
The third construction also gives the words 'relating to' in all three sections a wider and, in our opinion, a more natural meaning than that required by the second construction. It is true that it gives those words a meaning which is not as wide as 'disclosing or implying'. Given the refusal of the legislature to use those words despite the example of s 409B(3) in the New South Wales legislation, it seems safe to assume that the legislature of Western Australia intended the words to have a narrower meaning.
70 One of the strongest bases for maintaining that issues relating to absence of complaint in a sexual case go, at the most, to credit is the realisation, now entrenched in statutory provisions such as s 36BD of the Evidence Act, that there may be good reasons why a victim of a sexual offence may hesitate in making or refrain from making a complaint. Further, the absence of complaint should not be regarded as necessarily being indicative of want of credit or as inconsistent with the occurrence of a sexual assault which may be very embarrassing and/or damaging for the complainant to disclose.
71 The features of the present case tend, however, slightly to diminish those considerations. This is so, because the appellant may have wished to argue that if it were embarrassing or damaging for the complainant to disclose earlier sexual abuse by her step-father, it might not be any more damaging or embarrassing for her to disclose more recent sexual abuse by the appellant, particularly as it was continuing. It is this potential capacity for the absence of complaint in the present instance to dilute the significance of more general explanations for the absence of complaint which may have been a significant factor and one which could give this evidence potential to undermine the credit of the complainant.
72 Accordingly, this particular instance is one in which issues of credit and issues relating to a vital fact in issue overlap and, in doing so, go part of the way to demonstrate the criteria necessary for the grant of leave under s 36BC(2).
73 The next question is whether or not the evidence was likely to have 'substantial relevance to the facts in issue'. This phrase has not been defined by the Act nor, so far as counsel were able to assist us, has it been the subject of judicial analysis in any comparable setting. Nevertheless it must be taken as an indication that the legislature considered that evidence of this kind should not be admitted merely because it had some minor or insubstantial relevance.
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74 It follows that, in the exercise of the power to grant leave, a judge would need to be satisfied that the evidence, if adduced, and not otherwise refuted or explained, did have the potential to affect a finding on a crucial issue of fact. Importantly, that is a decision which needs to be taken at the time when the application for the grant of leave to adduce the evidence is being decided. That will usually be at an early point in the trial and before any opportunity has been given to the complainant or to the witness to be cross-examined to put the episode or the fact in its context or to reject or refute it, if that is the position of a witness, or to offer some explanation which deprives the point of its capacity to have any substantial impact on the postulated issue of fact.
75 It follows from this that a ruling that the issue which is to be the subject of evidence for which leave is sought as having substantial relevance, must be regarded as being limited to the prosects of the case as they then appear and that the significance of the point or of the evidence may be greatly changed by further developments in the case. So, for example, by the end of the trial the postulated significance of the evidence may have substantially diminished or disappeared. In other words, the acceptance that proposed evidence may be of substantial relevance to a fact or facts in issue is no more than a ruling that it is or that it has that potential at the time the ruling was made. That potential relevance can change.
76 In the present case where the defence was, and continued to be, that the alleged sexual impropriety with the complainant had never been committed by the appellant and that her evidence that it had was not credible, made her evidence in relation to the occurrence or non-occurrence of the offence a substantial issue. In my view, had it been necessary to grant leave to adduce the evidence being sought by counsel for the defendant, leave should have been granted. It follows, therefore, that I am satisfied that the actual ground of appeal advanced by the appellant has been made out and that there has been a wrongful rejection of evidence in this case.
Proviso
77 However, that is not the end of the matter because counsel for the prosecution submits that, notwithstanding any wrongful rejection of this evidence, the judgments of conviction should be upheld because the erroneous exclusion of evidence did not cause any substantial miscarriage of justice: see Criminal Appeals Act 2004 (WA) s 30(4); Weiss v The
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- Queen[2005] HCA 81; (2005) 224 CLR 300 [43] and Libke v The Queen [2007] HCA 30; (2007) 81 ALJR 1309; (2007) 235 ALR 517.
78 The basis for the submission that no substantial miscarriage of justice has been caused by the wrongful exclusion of this evidence was supported by the submission that, had the evidence been adduced, it would inevitably have followed that the prosecution would have been permitted to adduce evidence of the later complaint about sexual molestation by the appellant made to the doctor at the consultation on 24 September 2003. The original reason why that evidence had not been led seems to be that it was not considered to be 'recent' and so within the rule in R v Osborne [1905] 1 KB 551, 561; Suresh v R [1998] HCA 23; (1998) 53 ALR 145 [4], [17] and [26] and Papakosmas v R [1999] HCA 37; (1999) 196 CLR 297.
79 Once the defence had sought to prove that there had been no complaint on an occasion when one could have been expected, the prosecution would have been entitled to prove that there was in fact a complaint on another similar occasion some 11 months later. This would have largely eroded the significance, if any, of the absence of complaint against the appellant at the 26 October 2002 consultation.
80 Furthermore, the complainant was asked repeatedly in cross-examination about why she did not complain to Dr A about the alleged assaults by the appellant at the consultation on 26 October 2002 and at other consultations when she had attended the doctor, both before and after then, when there was an opportunity to complain. She was also extensively cross-examined about the lack of complaint to her mother, aunts, teachers and other persons in authority when there was opportunity to do so. The answers which she gave in relation to all those questions were, in effect, that she did not want to complain because she felt guilty as she believed (as is commonly mistaken by the victims of sexual assault) that she must have done something to cause the appellant to behave as he did and that it was all her fault.
81 In my view, having read the cross-examination of the complainant on these points, the probability is overwhelming that if she had been asked why she made no complaint against the appellant at the consultation with Dr A on 26 October 2002 at a time when she actually disclosed earlier alleged sexual abuse by a different family member, her explanation would have been much the same and that her failure to complain on this occasion would not have been treated any differently by the jury than her numerous
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- failures to complain on other occasions when she had opportunity to do so.
82 More importantly, however, the decision in Weiss v The Queen requires this court to examine the entire case for itself to consider and determine the strength of the prosecution case and from that perspective to make a decision as to whether or not there has been any miscarriage of justice. In this case the evidence against the appellant was very strong. It included the evidence of G, a previous spouse and partner of the appellant who described his possession and use of a set of handcuffs for sexual activities which took on added significance in the face of evidence by the complainant herself that the appellant had handcuffs.
83 There was also a series of letters, cards and other writings sent by the appellant to the complainant, and some cards and messages sent by the complainant to the appellant which were in extremely compromising terms and suggested the existence of a past active sexual relationship between them. His authorship of some of these letters to the complainant was admitted at trial, but he denied authorship of others. There was handwriting evidence, challenged and disputed by the appellant, that the handwriting on the compromising letters and cards was his. The similarities between the handwriting acknowledged to be that of the appellant and the handwriting on the disputed items was close and, in my view, it was permissible for the jurors, with the benefit of the expert evidence, to form their own opinion as to whether or not the accused had written the compromising materials and their verdicts must be regarded as indicating that they concluded that he did.
84 This complainant was young, vulnerable and particularly fragile in view of the history of previous sexual abuse from some other member of the family. The reasons for her lack or delay of complaining were cogent and persuasive and I cannot imagine that, had evidence been adduced that the complainant had, at the consultation with Dr A of 26 October 2002, mentioned earlier sexual abuse by another relative but failed to mention any alleged abuse by the complainant that the strength of the prosecution case would have been diminished.
85 Accordingly, while I consider that the ground of appeal relied on by the appellant has been made out, I am satisfied that there has been no substantial miscarriage of justice and that this appeal should be dismissed.
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