Wagenaar v The Queen

[2000] WASCA 325

WAGENAAR -v- THE QUEEN [2000] WASCA 325

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASCA 325
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:45/2000	Heard:	10 OCTOBER 2000
Coram:	KENNEDY J PIDGEON J IPP J	Delivered:	3/11/00
No of pages:	24	Judgment Part:	1 of 1
Result:	Appeal against conviction dismissed Leave to appeal against sentences granted Appeal allowed Effective sentence of 11 years' imprisonment reduced to 9 years
PDF Version

Parties:	WILLIAM WAGENAAR THE QUEEN
Catchwords:	Criminal law and procedure Rape Unlawful and indecent assault Sufficiency of direction as to consent Sufficiency of direction as to delay in making complaint Sufficiency of Longman warning Uncharged acts given in evidence by accused Whether direction called for Criminal law and procedure Sentencing Two counts of rape Two counts of indecent assault Sentence of 8 years on rape counts, sentences of 2 and 3 years respectively on indecent assault counts Sentence of 3 years' imprisonment ordered to be served cumulatively upon first sentence of 8 years' imprisonment, with remainder of sentences to be served concurrently Lapse of 27 years since offences Rehabilitation of accused since last offence Whether evidence of remorse Sentences on rape counts each reduced to 6 years
Legislation:	Criminal Code, s 325, s 328
Case References:	Bell (1981) 5 A Crim R 347 Crofts v The Queen (1996) 186 CLR 427 Dick v The Queen, unreported; CCA SCt of WA; Library No 940633; 10 November 1994 Duncan v The Queen (1983) 47 ALR 746 Holman v The Queen (1970) WAR 2 James v The Queen [2000] WASCA 100 Kailis v The Queen (1999) 21 WAR 100 Longman v The Queen (1989) 168 CLR 79 R v G P (1997) 18 WAR 196 R v Law; Attorney General (1995) QCA 444 R v Murray (1987) 11 NSWLR 12 R v Tiso (1990) 12 Cr App R (S) 122 Sell v The Queen (1995) 15 WAR 240 Sheasvy v The Queen [2000] WASCA 190 The Queen v Ware, unreported; CCA SCt of NSW; 9 July 1997 The Queen v Werner, unreported; CCA SCt of Qld; 9 October 1998 A Child v Andrews (1994) 12 WAR 552 Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621 Cook v The Queen (2000) 22 WAR 67 Dempsey v The Queen, unreported; CCA SCt of WA; Library No 960059; 9 February 1996 HG v The Queen (1999) 197 CLR 414 House v The King (1936) 55 CLR 499 Huynh v The Queen [1999] WASCA 45 Jarvis v The Queen (1993) 20 WAR 201 Jones v The Queen (1997) 191 CLR 439 M v The Queen (1994) 181 CLR 487 Mill v The Queen (1988) 166 CLR 59 Nobes v The Queen, unreported; CCA SCt of WA; Library No 990007; 15 January 1999 Pearce v The Queen (1998) 194 CLR 610 R v Albu (1995) 84 A Crim R 11 R v Coward (1985) 16 A Crim R 257 R v Duncan (1991) 56 A Crim R 460 R v Frawley (1993) 69 A Crim R 208 R v Jenner (2000) 110 A Crim R 512 R v Martelli (1995) 83 A Crim R 550 R v Medina (1995) 84 A Crim R 316 R v Owen (1991) 56 A Crim R 279 R v Podirsky (1989) 43 A Crim R 404 R v Richards [1999] WASCA 105 R v Shaw (1989) 39 A Crim R 343 R v Weng Keong Chan (1989) 38 A Crim R 337 R v Zorad (1990) 47 A Crim R 221 Spiers v The Queen [1999] WASCA 206 Suresh v The Queen (1998) 72 ALJR 769 Woods v The Queen (1994) 14 WAR 341 Yanko v The Queen, unreported; CCA SCt of WA; Library No 960030; 23 January 1996

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : WAGENAAR -v- THE QUEEN [2000] WASCA 325 CORAM : KENNEDY J

PIDGEON J
IPP J

HEARD : 10 OCTOBER 2000 DELIVERED : 3 NOVEMBER 2000 FILE NO/S : CCA 45 of 2000

CCA 46 of 2000

BETWEEN : WILLIAM WAGENAAR

Appellant

AND

THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Rape - Unlawful and indecent assault - Sufficiency of direction as to consent - Sufficiency of direction as to delay in making complaint - Sufficiency of Longman warning - Uncharged acts given in evidence by accused - Whether direction called for

Criminal law and procedure - Sentencing - Two counts of rape - Two counts of indecent assault - Sentence of 8 years on rape counts, sentences of 2 and 3 years respectively on indecent assault counts - Sentence of 3 years' imprisonment ordered to be served cumulatively upon first sentence of 8 years' imprisonment, with remainder of sentences to be served concurrently - Lapse of 27 years since offences - Rehabilitation of accused since last offence - Whether evidence of remorse - Sentences on rape counts each reduced to 6 years

(Page 2)

Legislation:

Criminal Code, s 325, s 328

Result:

Appeal against conviction dismissed

Leave to appeal against sentences granted
Appeal allowed
Effective sentence of 11 years' imprisonment reduced to 9 years

Representation:

Counsel:

Appellant : Mr T F Percy QC & Mr B Smith
Respondent : Mr R E Cock QC

Solicitors:

Appellant : Halperin Fleming Meertens
Respondent : State Director of Public Prosecutions

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

Bell v The Queen (1981) 5 A Crim R 347
Crofts v The Queen (1996) 186 CLR 427
Dick v The Queen (1994) 75 A Crim R 303
Duncan v The Queen (1983) 47 ALR 746
Holman v The Queen [1970] WAR 2
James v The Queen [2000] WASCA 100
Kailis v The Queen (1999) 21 WAR 100
Longman v The Queen (1989) 168 CLR 79
R v GP (1997) 18 WAR 196
R v Law [1995] QCA 444
R v Murray (1987) 11 NSWLR 12
R v Petchell, unreported; CCA SCt of WA; Library No 930346; 16 June 1993
R v Tiso [1990] Crim LR 607
R v Ware, unreported; CCA SCt of NSW; No 60115/97; 9 July 1997
R v Werner, unreported; CCA SCt of Qld; BC 9806243; 9 October 1998
Sell v The Queen (1995) 15 WAR 240
Sheasby v The Queen [2000] WASCA 190

(Page 3)

Case(s) also cited:

A Child v Andrews (1994) 12 WAR 552
Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621
Cook v The Queen (2000) 22 WAR 67
Dempsey v The Queen, unreported; CCA SCt of WA; Library No 960059; 9 February 1996
HG v The Queen (1999) 197 CLR 414
House v The King (1936) 55 CLR 499
Huynh v The Queen [1999] WASCA 45
Jarvis v The Queen (1993) 20 WAR 201
Jones v The Queen (1997) 191 CLR 439
M v The Queen (1994) 181 CLR 487
Mill v The Queen (1988) 166 CLR 59
Nobes v The Queen, unreported; CCA SCt of WA; Library No 990007; 15 January 1999
Pearce v The Queen (1998) 194 CLR 610
R v Albu (1995) 84 A Crim R 11
R v Coward (1985) 16 A Crim R 257
R v Duncan (1991) 56 A Crim R 460
R v Frawley (1993) 69 A Crim R 208
R v Jenner (2000) 110 A Crim R 512
R v Martelli (1995) 83 A Crim R 550
R v Medina (1995) 84 A Crim R 316
R v Owen (1991) 56 A Crim R 279
R v Podirsky (1989) 43 A Crim R 404
R v Richards [1999] WASCA 105
R v Shaw (1989) 39 A Crim R 343
R v Weng Keong Chan (1989) 38 A Crim R 337
R v Zorad (1990) 47 A Crim R 221
Spiers v The Queen [1999] WASCA 206
Suresh v The Queen (1998) 72 ALJR 769
Woods v The Queen (1994) 14 WAR 341
Yanko v The Queen, unreported; CCA SCt of WA; Library No 960030; 23 January 1996

(Page 4)

1 KENNEDY J: I have had the benefit of reading in draft the reasons to be published by Ipp J, with which I am in agreement. I am also in agreement with the orders which his Honour proposes.

2 PIDGEON J: I agree with the reasons to be published by Ipp J and the orders proposed.

IPP J:

The offences

3 This is an application for leave to appeal, an appeal against conviction and an appeal against sentence. The appellant was convicted after trial by jury of two counts of rape contrary to s 325 of the Criminal Code and two counts of unlawful and indecent assault contrary to s 328 of the Criminal Code. He was sentenced to 8 years' imprisonment on each of the rape counts, 2 years' imprisonment on the first of the indecent assault counts and 3 years' imprisonment on the second indecent assault count. The term of 3 years' imprisonment was ordered to be served cumulatively upon the term of 8 years' imprisonment in respect of the first count and all other sentences were ordered to be served concurrently. The effective overall sentence was accordingly 11 years' imprisonment. The appellant was ordered to be eligible for parole.

4 The complainant was born on 4 August 1957. The applicant is her uncle. During the period that the offences were committed, both the appellant and the complainant resided in Albany. The appellant drove a truck and sold cigarettes and the complainant was at school.

5 The facts giving rise to the first rape count occurred during 1970 at Jerramungup when the complainant was only 12 to 13 years of age and in Grade 7. She was taken by the appellant while he travelled in the country on business. They stayed overnight at the Jerramungup Hotel and, in her motel room, the appellant raped her. At the trial, the appellant admitted taking the complainant on a trip and admitted that an act of sexual intercourse took place in a hotel room. He denied, however, that this took place in 1970, and claimed that it occurred later, when the complainant was 15 years old. He asserted that the appellant consented to the sexual intercourse.

6 At a time when the complainant was 15 years old, the appellant's wife was in hospital, having given birth to a child. The complainant had

(Page 5)

agreed to babysit the appellant's children while he visited his wife. For that purpose the complainant stayed the night at the appellant's home. When he returned from the hospital he told the complainant to get into the shower and she did. He then entered the shower and touched her all over her body, including her breasts and vagina. This conduct constituted the second count.

7 The appellant then took the complainant into his bedroom and raped her. This conduct constituted the third count.

8 In regard to these two offences, the appellant, at the trial, admitted that acts of a sexual nature took place. He admitted that he touched the complainant in the shower and he admitted that he sexually penetrated her in his bedroom. He claimed, however, that she consented to all these acts.

9 When the complainant was still 15 years old, the appellant took her to a beach with two of his sons. When the two boys left the vehicle and were out of sight, the appellant grabbed the complainant and made her suck his penis until he ejaculated. That made her vomit. This conduct constituted the fourth count. The appellant denied that that act occurred at all.

10 The appellant now appeals against his convictions on several grounds. There are so many that it would not be convenient to set them all out at this stage. I shall identify them as I proceed to deal with them.

The first ground: the direction as to consent

11 The first ground of appeal is that the learned trial Judge erred in his direction to the jury on the question of consent. The words criticised were contained in the following passage:

"So you must concentrate on the state of mind of the complainant immediately before the act of intercourse. You should have regard to all the circumstances as you find them to be and in particular to events leading up to the act and her reaction to those events. As I have said, there is a wide spectrum of state of mind which consent may comprehend. Where the dividing line is to be drawn between real consent and mere submission is to be determined by each of you, applying your experience of life, knowledge of human nature and knowledge of modern behaviour, although in this case knowledge relevantly of 30-year-ago behaviour. So there is a

(Page 6)

dividing line and where it is and how it's to be drawn is essentially a jury question, thus 12 people are combined here to determine that issue, the difference between real consent and mere submission."

12 Mr Percy QC, senior counsel for the appellant focussed on the learned Judge's reference to "mere submission". He submitted that "mere submission" was not equivalent to an absence of consent and that the learned Judge should have told the jury that the fact that the complainant might merely have submitted to intercourse did not necessarily mean that she had not consented. He referred to Holman v The Queen [1970] WAR 2 where Neville J indicated (at 10) that submission might or might not be consensual and argued that a direction should have been given in the terms suggested by Jackson CJ in Holman v The Queen (at 6), namely:

"A woman's consent to intercourse may be hesitant, reluctant, grudging or tearful, but if she consciously permits it (providing her permission is not obtained by force, threats, fear or fraud) it is not rape."

13 There are a number of points to be made in connection with this submission.

14 Firstly, it ignores other directions given by the learned Judge concerning consent. Before the passage complained of his Honour said:

"It doesn't matter, for example, whether he is drunk or sober, although that doesn't enter into it in this case, and the general moral standards of the victim are irrelevant. That doesn't perhaps enter into this case. This must be frankly stated and clearly understood. The act being proved, the question is whether the woman consented, and consistently with my earlier direction, it's for the crown to establish the absence of consent, or to establish that consent was induced by force or by threats or intimidation or fear of bodily harm.

Here there doesn't seem to be any question of threats or fear of bodily harm, but mainly intimidation. That's a live issue. I think that was the word used by Mrs t'Hart, 'I was intimidated.' So consent covers a very wide range of states of mind in the context of intercourse. This is where your experience of life as mature people is important. Clearly it ranges from actual desire to reluctant acquiescence. Both can still be consent, so consent

(Page 7)

is to be given its ordinary meaning, and there is a difference between consent and submission, which is very important in this case.

The complainant effectively says here, 'I did not consent,' but it wasn't that she shouted, 'Don't, don't, don't do it. Leave me alone,' or shouted or screamed or fought. It was rather that she submitted, but, she says, without consent, 'I did not consent, but he was my uncle, I was young, I didn't know really what was happening, I was sexually naïve and he did it,' and I think that's essentially what she is saying. She submitted, but without consent.

It is true that a woman is not expected to struggle against her assailant. Her submission may be entirely consistent with non-consent on her part but if she does consent to intercourse it cannot be rape, provided her consent was not obtained by force, fear of bodily harm or threats or intimidation, and she does say here that she was intimidated by him."

15 Also regard must be had to the following directions given after the passage complained of.

"You may consider this: the complainant, in relation to the first count which is alleged, was between 12 and 13, she says, somewhere around that age. The complainant, in relation to the third count, was just 15. You may, and I say 'may', take the view that a girl of that age, either or both ages, 12 to 13 or 15, just turned 15, a religious girl not previously sexually experienced - you may take the view that she would be incapable of giving a true consent and yet may have submitted for the reasons which had been advanced, but that is for you to determine."

16 In the passages to which I have referred the learned Judge explaIned, as he put it, the "difference between consent and submission", and stressed that that difference was "very important in this case". His Honour said that consent had to be given its ordinary meaning, and contrasted consent with submission. He said that submission did not involve consent. After explaining that "submission may be entirely consistent with non-consent", the learned Judge emphasised that "if she does consent to intercourse it cannot be rape" unless the consent was obtained by intimidation. His Honour pointed out that the complainant

(Page 8)

said that she was indeed intimidated by the appellant and this was the issue the jury had to face. Was the submission in consequence of intimidation or was there "real consent"? In my view the directions were perfectly clear and the jury could not have been misled.

17 Secondly, regard must be had to the meaning of "consent" under s 325 of the Criminal Code at the time the offences were committed. Section 325 then provided:

"Any person who has carnal knowledge of a woman or girl, … without her consent, or with her consent if the consent is obtained by force, or by means of threats or intimidation of any kind, or by fear of bodily harm, or by means of false and fraudulent representations as to the nature of the act, … is guilty of a crime which is called rape."

18 Mr Percy accepted that the word "consent" in s 325 meant consent in accordance with its ordinary meaning. There was then no statutory definition of the term. On that basis, the observations by Archbold, Pleading Evidence and Practice in Criminal Cases, 43rd ed at par 20 - 345 are relevant. The learned authors state:

"Although juries should be told that 'consent' in the context of the offence of rape is a word which must be given its ordinary meaning, it is sometimes necessary for the judge to go further. For example, he should point out, if necessary, that there is a difference between consent and submission."

In my view this is precisely what the learned trial Judge did.

19 Thirdly, in my view, the direction suggested by Jackson CJ, in this day and age, is inappropriate and the learned Judge was entirely correct in not utilising it. The fact that the present definition of consent under s 319(2) might differ from the meaning of consent under the old s 325 of the Code, does not justify a direction in the terms suggested by Mr Percy.

20 For reasons I have expressed, I consider that the direction in fact given by the learned Judge was clear and in accordance with the law prevailing at the time the offences were committed. Accordingly I would not uphold the first ground of appeal.

(Page 9)

The second ground of appeal: the direction as to the behaviour of young females 30 years ago

21 The second ground of appeal asserts:

"The learned trial Judge erred in directing the jury that they were entitled to take into account the peculiar characteristics of women in the [c[omplainant's situation thirty years ago."

The words complained of are the following:

"You have regard to those facts because this was a girl, on her evidence - and it hasn't been suggested otherwise - with no prior sexual experience, no boyfriends, and you do have to look at the times. You compare how even a 15 -year-old girl, who had just turned 15, don't forget, this girl was only a few days over 15 in relation to count 3 - you compare how a girl of 15 was in 1970 compared to a 15-year-old girl today, educated and experienced in today's rather more aggressive and modern lifestyle. Times have changed, there is no doubt about it, and so that's a question for experience.

I can easily think back 30 years but I don't know whether you all can and it's a question for each of you to give serious consideration to. The times are important. Today's 15-year-old you might think sometimes would bear little or no resemblance to the 15-year-old girl of 1970, not necessarily but perhaps. If you have got children 15 years of age, who have been 15 years of age back in those days, and you compare them to girls you see of 15 years of age today sometimes you might think there has been a difference. I'm not saying necessarily there was. Girls differ and through the ages people have difference but it's a very important factor."


Mr Percy submitted that in these directions the learned Judge "was dealing with matters that were not in evidence before the jury and matters which were not properly the province of the jury".

22 I am not persuaded that a jury in the year 2000, with its collective experience and knowledge, would not have the requisite knowledge of the behavioural attitudes of a 15-year-old girl in 1970. Of course, the age and composition of the jury might be relevant in this respect. If that be so, it is significant that counsel for the appellant at trial made no complaint about this direction.
(Page 10)

23 In any event, the general experience of life of members of a jury does not include only matters of which they have first hand experience. Their collective wisdom is made up also of knowledge gained from reading, listening to others, and in every other way in which human beings inform themselves so as to enable them to exercise judgment in human affairs. On this basis, I consider it entirely appropriate for the learned Judge to have made reference to the behaviour of young persons at the time in question.

The third ground of appeal: direction as to the delay in complaining - sexual intercourse having been admitted

24 The third ground is that the learned Judge erred in directing the jury "as to the question of recent complaint". Essentially, the appellant challenges the way in which the learned Judge dealt with the fact that on the appellant's own case, sexual intercourse had admittedly occurred between him and the complainant, and the only issue was consent.

25 The learned Judge gave the usual direction in connection with recent complaint. His Honour informed the jury that they could take into account the fact that the complainant had made no complaint of any sexual abuse until she complained to her husband many, many years after the events in question. The learned Judge told the jury that "absence of complaint is relevant simply to credibility of the complainant" and explained correctly how the absence of complaint could be used by them in coming to their conclusions. His Honour then said:

"Where there has been a long delay, there is a direction that I need to give you, and this is a case of long delay. Three decades have passed. A delay may be so long and may be so inexplicable or so unexplained that you may properly take it into account in concluding in a particular case that an allegation was false, but I remind you in this case that the accused doesn't allege that there was no sexual conduct.

In some cases you have cases that come before this court where a complainant comes along 30 years later and says, ' These things happened when I was a young girl 14 years of age,' and 25 or 30 years have gone by and the accused says, ' They did not happen. It is a total figment of her imagination.' That's a rather different case from a case where the accused says, 'Yes, sexual intercourse did take place between us but it was with

(Page 11)

consent,' so you see, it's not the situation where he is saying this woman has come out of the woodwork 25 or 30 years later and made these wild allegations for no known reason and they just did not happen.

He's saying they didn't happen the way she said they happened or at the time she says they happened, in relation to count 1, or at all in relation to count 4, that it was different, but I need still to tell you that whether the delay is long and inexplicable or unexplained is for you to decide. Here an explanation has been given. Primarily she said, 'Because I was ashamed.' Shame seems to be the foremost consideration."

26 Mr Percy submitted that the learned Judge "ought not to have drawn any distinction between cases where sexual relations had been admitted and those where it had not. To direct the jury effectively that the failure to complain was a matter that was not of as much significance in such a case was an error".

27 I am not persuaded by these submissions. The directions initially given by the learned Judge as to lack of complaint were in accordance with s 36BD of the Evidence Act 1906, that is to say, the jury were warned that delay in complaining did not necessarily indicate that the allegation that the offence was committed was false, and his Honour informed the jury that there might be good reasons why a victim of such an offence might hesitate in making a complaint of that offence.

28 In Crofts v The Queen (1996) 186 CLR 427, the High Court was concerned with s 61 of the Crimes Act 1958 (Vict) which is similar to s 36BD of the Evidence Act. Toohey, Gaudron, Gummow and Kirby JJ (at 451) explained in regard thereto that:

"The purpose [of s 61] 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

(Page 12)

the judge should put such comments before the jury for their consideration. The overriding duty of the trial Judge remains to ensure that the accused secures a fair trial. It would require much clearer language than appears in s 61 of the Act to oblige a judge, in a case otherwise calling for comment, to refrain from drawing to the notice of the jury aspects of the facts of the case which, on ordinary human experience, would be material to the evaluation of those facts."

Their Honours went on to say (at 452):

"Two qualifications to the duty to provide the warning … 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 … ."

Their Honours, earlier (at 450) had quoted with apparent approval the observations of Lee J in the New South Wales Court of Criminal Appeal in R v Murray (1987) 11 NSWLR 12 at 18 that:

"The law does not lay down any defined direction in regard to the lateness of a complaint and in my view it is a matter in every case for the trial judge, in his own judgment, to determine whether anything more is required than what is in fact determined in [the relevant New South Wales statute being the equivalent to s 36BD of the Evidence Act]. Each case should be looked at on its own facts and the extent of the delay and factors bearing upon the likelihood of the complaint being a false one should be taken into consideration."

Toohey, Gaudron, Gummow and Kirby JJ went on to say that the directions made by the trial Judge in Crofts v The Queen were unbalanced as he omitted to give any warning to the effect that delay in complaint told against the credibility of the complainant in that case.

29 In my view the approach by the learned Judge in the present case accorded entirely with the approach of the High Court in Crofts v The Queen. His Honour made it plain that a long delay that is not satisfactorily explained could be taken into account by the jury in concluding that an allegation was false. His Honour, in effect, however went on to say that the inference that might be drawn from delay might be of lesser significance when the accused person admits sexual intercourse with the complainant, particularly where the complainant was the niece of the accused and aged only 12 years and, thereafter, 15 years, when the

(Page 13)

acts of intercourse the subject of the charges at the trial, took place. In my view, these particular circumstances and, in particular, the fact that sexual intercourse was admitted, meant that it was less likely that the complaint was false. The learned Judge was entitled to tailor the direction with these matters in mind.

30 His Honour did so, quite fairly, in a balanced way. After pointing out that sexual intercourse was admitted, and that the only issue was whether it took place with consent, he observed that this was not a case where the complainant was making "wild allegations for no known reason". He nevertheless, went on to stress that "whether the delay is long and inexplicable or unexplained is for you to decide". I would dismiss this ground of appeal.

The fourth ground of appeal: the Longman warning

31 The fourth complaint is that the learned Judge "erred in failing to give a sufficiently strong warning of the kind referred to by the High Court of Australia in Longman v The Queen (1989) 168 CLR 79". The essence of the appellant's complaint, as put by Mr Percy in the course of argument, was that the learned Judge "never actually said it was unsafe, he never ever said it was dangerous to convict". Mr Percy submitted that: "Nothing short of a direction to the jury … that it would be unsafe or dangerous would have sufficed. It was an extremely long delay."

32 The learned Judge drew to the attention of the jury the fact that the delay in making complaint had caused the appellant difficulties. He pointed out, for example, that the appellant could not investigate and produce a certain hotel register because the registers in question were no longer in existence. He told the jury that therefore they had to "scrutinise her evidence with great care". He said that the factors they should consider "when scrutinising her evidence with great care" were that she was "only a young girl at the time of the alleged offences" and she had continued to have a family association with the appellant over many years. His Honour said further:

"Generally is has been said in cases where the allegations are totally denied that the fallibility of human recollection and the effect of imagination, emotion, prejudice and suggestion on the capacity to remember is all well documented. The longer the period between an event and its recall the greater the margin for error. Interference with a person's ability to remember may also

(Page 14)

arise from talking, reading about, experiencing other events of a similar nature or from a person's own thinking or recalling. Recollection of events which occurred in childhood is susceptible to error, we know that, and is also subject to the possibility it may not be genuine. No matter how honest the recollection of the complainant, the long delay between her formal complaint and the accounts of the alleged events may raise questions as to whether you can act safely on her recollection, but that's entirely for you.

The opportunity for error in recalling things 25 to 30 years ago is obvious but, I stress here, the accused actually admits sexual conduct at a particular time. What he says is that it was all consensual. It's not therefore a case there the allegations are made of sexual misconduct with a total denial that they occurred. As I said to you those cases often attract very strong warnings of the type that I have just given you. He denies it, she says it happened, but she says it happened 30 years ago. Here he actually says, 'Yes, it did happen, not exactly when she says but in different circumstances.' The letter, of course, is testimony to the fact that some sexual contact very clearly occurred when she was a young girl, so it's not a case of allegations coming out of the blue, so to speak."

33 In my opinion the learned Judge carried out precisely what is required in Longman v The Queen. The explanation and warning required has to be tailored to the individual circumstances of the case concerned. In this case the dangers caused by the delay in the complaint and prosecution were properly drawn to the attention of the jury and they were properly told to scrutinise the evidence of the complainant with great care before relying upon it to convict the appellant: see in this regard Sheasby v The Queen [2000] WASCA 190, James v The Queen [2000] WASCA 100.

34 There were, in any event, strong factors which justified a substantial watering down of a Longman warning (or even doing away with it altogether). These all derive from the fact that the appellant admitted sexual intercourse with the complainant when she was 15 years of age. The admitted sexual intercourse occurred between uncle and a very young niece, a relationship that enabled the appellant to take advantage not only of his age and the complainant's youth but of the family authority stemming from the relationship. Whatever the situation might be in regard to consent, the acts of intercourse were a gross abuse of the trust

(Page 15)

which had been reposed in him when he was allowed to take the complainant on a trip on her own. Once it was apparent that the appellant was prepared to commit acts of that kind, the need for a Longman warning diminished substantially.

35 Moreover, as I shall mention later, there was evidence according to which the appellant admitted to others that he had committed offences. The corroboration constituted by the admitted intercourse and the admissions made by him all justified the approach of the learned Judge. In my view the learned Judge was entirely justified in giving the warning that he did.

The fifth ground of appeal: the delivery route direction

36 The fifth ground of appeal was that "his Honour erred in directing the jury that the evidence of the [appellant] in respect of the delivery route and the locations of where he stayed overnight was 'self-serving' and that it should be considered … on a different basis than other evidence in the case".

37 The passage in the learned Judge's directions about which the appellant complains is as follows:

"The accused, Mr Meertens says, pinpoints the year from his delivery routes. Katanning was not on the route to Pingrup. He did not stay overnight at Jerramungup, but I must tell you Miss Archer is correct. The fact that he drew a plan saying 'This is where I went' is not independent evidence. It's evidence from him and you are entitled to accept it but it's what we call self-serving evidence. He is serving himself by saying, ' This is what I did.' It's not independent evidence from somebody from the company concerned, Cruickshank Bros, to say, ' This is the route he took at that time.' There may not be anybody who can say that. You mustn't conjecture about that. I'm not saying he had to bring evidence forward. He didn't have to prove anything, but by producing that plan it doesn't necessarily prove that is where he went."

38 Mr Percy submitted that whilst the evidence as to the delivery routes was not independent evidence, "it was evidence to be assessed in the normal manner by the jury and did not have any inherent lack of probative value simply because it had been given by the [a]ccused". Therefore the reference to the evidence being "self-serving" constituted a mis-direction.
(Page 16)

39 Mr Cock QC, senior counsel for the respondent, submitted that the appellant's argument was based on a misunderstanding of what the learned Judge was saying. According to Mr Cock, the learned Judge was instructing the jury that the fact that a plan was produced added nothing to the weight of the appellant's evidence.

40 Mr Percy accepted that the plan was simply used as an aide-memoire to the jury. All in all, the issue seems to be entirely insignificant and I am not persuaded that the learned Judge erred in any material respect as submitted by this ground of appeal.

The sixth ground of appeal: the failure to discharge the jury

41 The sixth ground was that the learned Judge "erred in failing to discharge the jury following the revelation that the witness Woonings had misled the court".

42 This issue arose in the following way. In the course of his evidence, the appellant said that on one occasion, in a shop owned by her father, Mr L Woonings, Mr Woonings produced some pornographic material which he, the appellant and the complainant saw. Shortly after that, according to the appellant, some sexual contact occurred. The complainant denied this in her testimony. The complainant's brother, Mr R Woonings, was cross-examined as to whether there were pornographic magazines in his father's shop and he denied that and he denied bringing out the pornographic material to show the appellant. Mr L Woonings, the complainant's father then testified and denied having any pornographic material in his shop. Apparently, the next day, Mr L Woonings communicated with then counsel for the Crown and told her that he had given false evidence about the pornographic material. Counsel raised this with the trial Judge who suggested that the appropriate course was for the prosecution to re-open its case, to bring Mr Woonings back into court, have him sworn and explain to the jury how he had decided overnight to tell the truth, and then to allow counsel for the appellant to cross-examine Mr Woonings and, in the course of his final address, to make appropriate submissions as to his credibility to the jury. Apparently, counsel for the appellant did not demur at this course which was adopted. In particular, counsel did not suggest that the trial be aborted.

43 Mr Woonings was duly recalled. He explained to the jury that he had lied the previous day in giving his evidence about the pornographic

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material and he was cross-examined by counsel for the appellant in this regard. He admitted that at one time he had had pornographic material in his shop.

44 In the circumstances, as counsel for the appellant made no application to discharge the jury by reason of Mr Woonings' change of evidence, this ground cannot succeed. I should say, in any event, that I think that the course suggested by his Honour was entirely appropriate and there would have been no reason to discharge the jury. This was plainly the view of counsel for the appellant at the time. The issue as to the pornographic material was not one of any major significance. It was not suggested that Mr Woonings' initial false testimony took the appellant by surprise. His recanting in open court and the way in which he was allowed to give evidence and then cross-examined must have been to the advantage of the appellant.

45 In the course of making submissions on this ground, Mr Percy raised another argument which, although it did not fall under the ground, was dealt with by Mr Cock without objection. Mr Percy drew attention to the following remarks made by counsel for the respondent during the course of addressing the jury. She said:

"You can completely disregard the evidence of Woonings. What a complete waste of time he was as a witness. He lied to you yesterday on his oath. For whatever reasons he might have had, surely that must mean that you can't accept anything he said on his oath with full security. So forget his evidence. We don't need it. We never needed it. He is a peripheral witness. What he lied about was a peripheral matter, but it is very important that you don't get distracted by your disappointment in him in considering he (sic) evidence."

46 Mr Woonings, however, had given important evidence on another issue. He said that he had spoken to the appellant after March 1998 when he had discovered the allegations made against the appellant. He said that he was then surprised that the appellant had pleaded not guilty because the appellant had told him that "he would take it on the chin, he would plead guilty". He said that he confronted the appellant with this and told him, "[y]ou have promised it, to plead guilty". The appellant replied "I cannot plead guilty because the sentence will be too great". The learned Judge referred to this evidence in the course of addressing the jury and said: "It's for you to judge how you assess those admissions." His Honour made no other comment in respect thereof. Mr Percy submitted that

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his Honour should have withdrawn this issue from the jury in the light of the concession made by counsel for the prosecution that a jury could disregard the testimony of Mr Woonings.

47 Mr Woonings' evidence as to the admissions made by the appellant had been given in due form under oath and he never said anything to the effect that that particular evidence was false. When he testified about the falsity of his evidence concerning the pornographic material, he made no mention of his testimony concerning the appellant's admissions. Moreover, he was not cross-examined on that occasion about the admissions.

48 The ultimate decision as to whether this evidence should have been removed from the jury's consideration was that of the learned Judge. The fact that counsel for the prosecution might have discounted the value of her own witness does not detract from that discretion. His Honour made no attempt to influence the jury about the reliability or truth of the evidence in question, and left it to them to decide what should be made of it. On my reading of the transcript, it seems that counsel for the prosecution, in making the comments that she did, simply forgot about the evidence given by Mr Woonings concerning the appellant's admissions. It may be that counsel for the appellant also forgot, as he omitted, as I have pointed out, to cross-examine Mr Woonings on the issue. All in all, I consider it entirely appropriate for his Honour to have left the matter for the jury and I would dismiss this ground of appeal.

The seventh ground of appeal: uncharged acts

49 The seventh ground of appeal asserts that the learned trial Judge erred in failing to direct the jury as to the use to which they could put the evidence of the uncharged acts of sexual relations between the parties admitted by the appellant.

50 The appellant himself had asserted in his evidence-in-chief that there were consensual acts of a sexual nature between himself and the complainant. This evidence was led by him in an attempt to show that, by subsequent acts of consensual sexual conduct between himself and the complainant, the inference could be drawn that the prior charged acts occurred with the complainant's consent.

51 The complainant denied the uncharged acts alleged by the appellant and the learned trial Judge made no reference to them in charging the jury. This, in fact, is the appellant's complaint. In my view that complaint is

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quite groundless. It is one thing when the prosecution introduces evidence of uncharged acts to explain and clarify the relationship between the parties. In those circumstances very careful directions have to be given to the jury as to how they are to use that evidence: Kailis v The Queen (1999) 21 WAR 100. It is something else entirely when an accused person introduces evidence of uncharged acts for his own purposes to support his own case. That evidence is then before the jury for an entirely different purpose. In those circumstances, it is entirely within the trial Judge's discretion as to what comments should be made in regard thereto. In this case, the learned Judge said nothing about them. In my view that was a perfectly legitimate approach, and to the benefit of the appellant. I would dismiss this ground of appeal.

The eighth ground of appeal: the "totality of the errors"

52 The eighth ground of appeal asserts that the verdict of the jury was unsafe and unsatisfactory by reason "of the totality of the errors alleged in grounds 1 - 4 inclusive".

53 In my view there was no substance whatever in any of those grounds. Mr Percy did not attempt to identify any particular evidentiary weakness or lacuna in the case for prosecution. Indeed, there was ample evidence on which a reasonable jury could have convicted the appellant. Mr Percy did not submit otherwise. I would dismiss this ground.

The sentence appeal

54 I now turn to the application for leave to appeal against sentence. The sole ground of appeal was that the sentence was excessive in all the circumstances of the case.

55 In the course of sentencing the appellant the learned sentencing Judge accepted that there were aggravating features present, namely the age of the complainant, the breach of trust, the age discrepancy, the relationship between the parties, and the repetition of the offences.

56 The complainant stated that she had forgiven the appellant and had no hatred towards him. His Honour said that he would take this into account but also had to bear in mind that the appellant had said in her testimony that she suffered great shame over a long period of time and it took until about 1998 for her to face up to and bring to light the

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circumstances of the offences. Nevertheless, the fact that the complainant bore the appellant no malice was a matter to which his Honour had regard.

57 The learned Judge was informed that the appellant "brought up a decent, law-abiding family, God fearing family … . He has a dependent wife who is standing by him and the family is standing by him". The appellant has five children and they and his wife continue to afford him support. The learned Judge noted that the appellant had no prior convictions whatever, had served in the Army Reserve and had been employed throughout his life. The appellant had over the years achieved a position of responsibility and respectability in community life but, as his Honour himself remarked, the convictions are "life ruining".

58 There are certain mitigatory factors that were not given much weight by the learned Judge or were not taken into account by him. I shall proceed to deal with those.

59 His Honour noted that the appellant had shown no remorse for the offences. The learned Judge observed that "the remorse you express was for consensual intercourse and the verdict is against that". His Honour regarded the appellant's conduct as going "some little way to an expression of remorse". The learned Judge's reservations as to remorse stemmed from the fact that the appellant pleaded not guilty and asserted that the complainant, at the very young age of 15 years (on his version), was a consenting participant in sexual conduct. These matters do demonstrate a lack of proper remorse. But there was evidence that the appellant was not unaffected by what he had done.

60 The appellant has been an active member of the Free Reformed Church for some 25 years and he played a substantial part in the affairs of that community. He held various offices in a number of organisations associated with the church. His Honour accepted that "people who know him, particularly in the church, have always regarded him as a person of excellent character and … he has made a contribution to the church community". He was an elder of the church but asked to be relieved from that office by reason of the charges to be brought against him. Before the trial, the appellant was confronted by members of the congregation and after scripture reading and prayer he expressed his remorse to the complainant and her husband. According to an elder of the church, who was present, the appellant "expressed deep regret for his deeds", "expressed his sincere remorse" to the complainant and her husband, and declared that he had misused the trust placed in him and had caused the complainant much anguish. The witness stated that "in emotional words

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which must have been extremely difficult for him to express in front of witnesses, Mr Wagenaar asked to be forgiven". This led to "a wholehearted expression of forgiveness" by the complainant and her husband. The appellant was described by the witness as "a broken and penitent man".

61 I should add that, about two years before the trial, the appellant wrote the complainant a letter in which he stated:

"I am writing to you with much sorrow in my heart for the terrible wrongdoing committed to you a long time ago. It has been on my conscience all those years, the guilt, and trying to find a way to resolve the pain inflicted on you by my terrible behaviour towards you."

62 The issue of remorse is a complex one. Perhaps the explanation for the appellant's conduct is that, despite his knowledge, public recognition and acceptance of his own guilt, he was fearful of the sentence that would be imposed on him were he to be convicted and for that reason defended the case against him. That accords with the evidence of Mr L Woonings. If that were to be correct, his conduct in requiring the complainant to testify and in advancing a defence of consent (found to be false) does not reflect at all well upon him. That, in turn, may be ameliorated to a degree by the forgiveness evinced by the complainant. In any event, however, to the extent that remorse may be evidence of rehabilitation, I think that it has to be accepted that there was evidence of recognition by the appellant of his criminal conduct and the harm he had done, and that he has reformed to some extent. These are mitigatory factors of some significance. Moreover, the appellant's confession and apology to the complainant must have been of benefit to her (notwithstanding his plea of not guilty) and this, too, has to be taken into account.

63 There is a further factor which, in my view, is of some significance as a mitigatory circumstance. Since no later than January 1973, the last date on which the last of the offences committed by the appellant occurred, the appellant has lived a blameless and socially constructive life. That is a period of some 27 years. He has, also, as I have noted, shown signs of genuine rehabilitation. He has been a loving, dutiful husband, a father of five children, a diligent employee, a committed member of his church and has contributed in other ways to the general welfare of the community. These are not matters to which the learned Judge attached significance. With respect, I do not agree with that approach.

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64 It has been said that the mere passage of time does not attract "a great deal of discount by way of sentence" in relation to sexual offences: R v Tiso [1990] Crim LR 607 referred to with approval in Dick v The Queen (1994) 75 A Crim R 303. See also R v Petchell, unreported; CCA SCt of WA; Library No 930346; 16 June 1993, where Franklyn J said that "the mere fact of delay in apprehension" is not as a general rule a mitigating factor. Nevertheless, the court in that case accepted as a mitigatory circumstance the fact that, since 1981, when the respondent ceased his criminal conduct, he had lived a completely blameless life.

65 There are several authorities that accept that delay coupled with some other consequence, making it unfair not to reduce the sentence, such as rehabilitation, or even merely, for a long period, living a blameless and constructive life, is mitigatory (see, for example, R v Law [1995] QCA 444 and R v Werner, unreported; CCA SCt of Qld; BC 9806243; 9 October 1998. In my view, this principle underlies the decision in R v Petchell.

66 In Duncan v The Queen (1983) 47 ALR 746 at 749 this Court referred to Bell v The Queen (1981) 5 A Crim R 347 and said:

"The case is authority for the proposition that where, prior to sentence, there has been a lengthy process of rehabilitation and the evidence does not indicate a need to protect society from the applicant, the punitive and deterrent aspects of the sentencing process should not be allowed to prevail so as to possibly destroy the results of that rehabilitation."

67 In Sell v The Queen (1995) 15 WAR 240 Malcolm CJ (with whom Kennedy and Ipp JJ agreed) said at 261:

"It may be accepted that where there has been a lengthy and unexplained delay in bringing a prosecution and, prior to sentence there has been a successful attempt over that period by the offender at rehabilitation, so that the protection of society need not be considered, deterrent and punitive aspects should not prevail over rehabilitative aspects of the sentencing process: see Duncan v The Queen (1983) 97 [sic - 47] ALR 746 at 749 per Wallace, Brinsden and Rowland JJ."

68 In R v Law the Queensland Court of Appeal stated that it was difficult to see why a lapse of time should be a mitigating factor unless the delay has resulted in some unfairness to the offender. Relying on this

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principle, the Court accepted as mitigatory the circumstance where the time between commission of the offence and sentence was sufficient to enable the Court to see that the offender had become rehabilitated or that the rehabilitation process had made good progress. In addition, the Court accepted as mitigatory the case where the combined effect of aging and the absence of any recorded offences for a lengthy period made it unlikely that an offender would re-offend.

69 In R v Ware, unreported; CCA SCt of NSW; No 60115/97; 9 July 1997, Gleeson CJ (with whom James and Sperling JJ agreed) said:

"Delay does not of itself warrant leniency towards an offender. Many cases, particularly cases of sexual abuse, only come to the notice of the authorities many years after the offences have occurred. On the other hand, depending upon the circumstances of the individual case, the fact that there has been delay may require close consideration to be given to rehabilitation that may have occurred over the period between the date of the offences and the date when the proceedings are brought before the court."

70R v Werner is a case that bears some similarities to the present. The court was there concerned with sexual offences committed between the beginning of 1984 and the end of 1985 upon a boy who was then under the age of 17 years. The complainant first made a complaint in September 1997 and the applicant was convicted and sentenced in 1998. Jones J (with whom Thomas JA and Shepherdson J agreed) observed that in R v Law the Court of Appeal did not attempt to lay down a restricted number of mitigatory circumstances arising out of the lapse of time between the commission of an offence and sentence. Jones J held that in the case in question not only should the rehabilitation of the applicant be taken into account but "the applicant's changed circumstances". His Honour said (at [5]):

"The applicant set about rehabilitating himself after that last event. In June 1986 he married his present wife with whom he has had three children now aged 12, 10 and 8 years. He has remained in employment as a technician, a position he has held for 34 years. He has continued his involvement with his church and in the small community of Emerald. The fact that the complaint was made after such a lapse of time has had a shattering impact on him and members of his family. The applicant is obviously a religious man and with a long

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association with his church. He has, for example, had to confess his commission of these offences to his church community. It is a measure of his worth that the church elders came to court to support him."

71 If, say, a young man of say 18 years of age commits offences of the kind committed by the appellant, and it is established at the time of sentencing that there are very good prospects that the offender will rehabilitate himself and not offend again, and is likely over the long term to contribute positively to the community, those matters would inevitably be taken into account as mitigatory. In my view it is an a fortiori case of mitigation where - over a period of many years after the offence has been committed - the offender has recanted, not committed any further offences whatever, rehabilitated himself (at least to a degree), established himself as an honourable and worthwhile person in the eyes of his family and the community, and contributed substantially to the general good of society.

72 It has to be borne in mind that in cases where there has been an abuse of trust much less weight is given to mitigating factors: R v GP (1997) 18 WAR 196 at 207. Nevertheless, the matters to which I have referred are of significance in arriving at an appropriate overall sentence. In my view, once regard is had to those matters, the sentence has to be seen as excessive. I would accordingly uphold the application for leave to appeal against sentence, uphold the appeal, set aside the sentence of 8 years' imprisonment imposed on the two counts of rape and substitute therefor sentence of 6 years' imprisonment. Otherwise the sentences remain unaltered as does the order of eligibility for parole. The overall effect is that the aggregate sentences amount to 9 years' imprisonment.