Watson v the Queen
[2010] VSCA 189
•26 July 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2009 0599
| JAMES HAMILTON WATSON | |
| Applicant | |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | NETTLE and REDLICH JJA and BEACH AJA | ||
WHERE HELD: | MELBOURNE | ||
DATE OF HEARING: | 26 July 2010 | ||
DATE OF JUDGMENT: | 26 July 2010 | ||
MEDIUM NEUTRAL CITATION: | [2010] VSCA 189 | ||
JUDGMENT APPEALED FROM: | (Unreported, County Court of Victoria, Judge Patrick, 23 April 2009) | ||
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CRIMINAL LAW – Conviction – Sexual offences with a child under 16 years – Child under care, supervision or control – Directions to jury – Several grounds of appeal relating to admission of evidence – Whether judge erred in directions regarding relevance and use of evidence of uncharged acts – Complaint made by complainant to relative – s 41D(2) Evidence Act 1958 – Relevance of lapse of time between offence and complaint – Appeal allowed – Re-trial ordered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D A Dann | Victoria Legal Aid |
| For the Crown | Mr J D McArdle QC | Mr C Hyland, Solicitor for Public Prosecutions |
NETTLE JA
BEACH AJA:
Following a trial before the County Court at Melbourne, the applicant was convicted of one count of sexual penetration of a child under 16 under the care, supervision or control of the applicant (Count 1); and three counts of indecent act with a child under 16 (Counts 2, 3 and 4), for which he was sentenced to a total effective sentence of four years' imprisonment with a non-parole period of two years and nine months.
He now seeks leave to appeal against conviction on six proposed grounds of appeal as follows:
Ground 1– The trial miscarried as a result of the admission of evidence relating to a complaint made by the complainant to a relative, BR.
Ground 2– The trial miscarried as a result of the admission of evidence relating to a complaint made by the complainant to her mother, RT.
Ground 3– The trial miscarried as a result of directions given by the judge to the jury as to the use which they might make of the evidence of the complainants made by the complainant to BR and RT.
Ground 4– The trial miscarried as a result of the admission of evidence of uncharged acts.
Ground 5– The trial miscarried as a result of the failure of the judge to direct the jury as to the relevance and use which might be made of the evidence of uncharged acts.
Ground 6– The trial miscarried as a result of the prosecutor cross-examining the applicant as to whether he had during Family Court proceedings relating to the custody of his child denied allegations that he had committed the offences with which he was charged.
Grounds 1 and 3 – Complaint to BR
We begin with Ground 1. In the course of her VATE tape, the infant witness BR was asked among other things the following questions to which she gave the following answers:
30. Okay. And this day that [the complainant] told you about Jamie - - -?
Mm’m.
31. Do you remember what day it was?
No, but I remember we were shopping at Dandenong.
32. Mm’m. And was it on a weekend or a weekday?
I think it was either on a weekend or holidays.
33. Mm’m. And whereabouts did she tell you? Whe - - -?
At Wendy’s.
34.Mm’m. You said that Jamie – that she told you that Jamie asked her to touch him. Can you tell me anything else about that – what she meant by that?
Jamie asked [the complainant] to touch him and [the complainant] said, ‘No’, and then he kept on asking her but she still said, ‘No’.
35.Mm’m. Did she tell you about where he wanted her to touch him or
- - -?
She just said that he wanted her to touch him.
36. Mm’m. And she said that he touched her?
(NODS HEAD)
37. Did she tell you anything else about that?
(SHAKES HEAD) No.
38. Do you know where he touched her?
No. She didn’t tell me anything about it. She just said that he touched her.
Over objection the judge admitted those answers to evidence under s 41D of the Evidence Act1958 and then, in her charge, her Honour directed the jury as follows:
Now, I have just talked to you about the matter of delay and how you may use the delay in making the complaints. I am now going to direct you as to the use that you can make of the evidence of making complaints. The law provides that you can hear evidence of [the complainant F] making a complaint to her niece, but more like her cousin, BR, and to her mother. That evidence would otherwise be excluded because it is hearsay evidence. It is hearsay because it involves BR and the complainant’s mother giving evidence about what [the complainant] told them about events, not what they themselves saw or heard of the events. So the law provides that in this type of case, that type of evidence of complaint is allowed. You can use this evidence in two ways. First, you can consider what the complainant said in assessing her credibility; is she being truthful? Consider what you conclude was said by the complainant. If you consider that what was said was consistent with the evidence she gave in the VATE tape or in the special hearing, then you may use that evidence as support of the credibility of the girl as a witness. It is a matter for you whether you consider that what she says supports her credibility or not. The second purpose for which you could consider this evidence is in considering whether the allegations are true. I warn you that this evidence may not be as reliable as original evidence. It is evidence of what the complainant told someone had happened, it is not evidence given by a witness who saw or heard something happening, or other evidence such as pictures of what happened or scientific evidence. You need to take into account the evidence of what was said and the surrounding circumstances. Those circumstances include the age of the complainant and the circumstances in which the complaint was made. You should take all the circumstances into account and take into account the nature of the evidence and the warning I have given when you are assessing whether what the child said, and her saying it, makes it more likely that what she alleges is true.
Under Ground 1, counsel for the applicant referred to the fact that the complaint was not made until six to eight months after the offences alleged and he contended that, because of the delay, the complaint ought not to have been regard as sufficiently probative to be admissible as evidence of the truth of the facts contained in it.
Counsel for the Crown opposed that contention. He submitted that, in contradistinction to s 66 of the Uniform Evidence Act, there is no requirement under s 41D of the Evidence Act1958 for the facts the subject of complaint to be fresh in the mind of the complainant or, thus, for the judge to have regard to the time elapsed between the commission of the offences alleged and the time of complaint. In the Crown's submission, it is apparent that the bulk of s 41D was modelled on s 66 of the Uniform Evidence Act – which, it was said, implies that the concepts reflected in s 66 must have been considered when s 41D was enacted – and, thus, that the absence of a freshness requirement from s 41D was indicative of a legislative intention that freshness be regarded as irrelevant for the purposes of the latter section.
At first sight, there appears to be some force in that contention. As between two legislative provisions so much in pari material, the absence of reference in one to a matter for which the other expressly provides provokes consideration of the principle of construction encapsulated in the maxim expressum facit cessare tacitum. In our view, however, it does not follow that delay between the time of an alleged offence and the time of complaint has no role to play under s 41D.
As Gaudron and Kirby JJ said in Papakosmas v The Queen,[1] with reference to s 66 of the Uniform Evidence Act but in terms of principle of more general application:
The principle expressed in Ratten is crucially dependent on the virtual certainty of the statement in question being true and, to that extent, it reflects the common law's bias against the reception of hearsay evidence. That is because it is not logically necessary for the possibility of concoction to be excluded before a statement is probative of the fact asserted in it. Rather, all that is necessary is that the statement be consistent with the fact to be proved and its making so connected to that fact that, when taken in conjunction with other evidence in the case, it bears on the probability of that fact having occurred.
The nature and degree of the connection necessary before a statement is probative of the fact asserted in it will, of course, depend on the nature of that fact and, if it be different, the fact ultimately to be proved. Even so, the connection will ordinarily be found in the close contemporaneity of the statement with the fact in issue and the consideration that the statement is a statement of the kind that might ordinarily be expected from the maker if the fact were true. Similarly, a statement that is closely contemporaneous with the fact in issue and is contrary to what would ordinarily be expected if that fact were true rationally bears on the improbability of its having occurred.
The question whether, in the particular circumstances, a statement that is not closely contemporaneous (for example, a subsequent statement to police) is probative of the facts asserted in it can logically only be answered in a case in which those circumstances arise. However, there must be some connecting circumstances because, otherwise, evidence that a particular statement was made is probative only of its making and its contents and such inferences as, in the circumstances, may be properly drawn.[2]
[1](1999) 196 CLR 297, 315 [55]–[57].
[2]See also and compare the analysis of Gleeson CJ and Hayne JJ, ibid, 311, [33]–[35].
Consequently, in our view, it should not be supposed that the time at which a complaint was made was intended to be excluded from consideration as one of ‘the circumstances in which [a complaint] was made’ within the meaning of sub-s 41D(2). Logically, it is one consideration to which a judge should ordinarily have regard for the purposes of determining probative value of a complaint for the purposes of sub-s 41D(2).
In this case, however, we are not persuaded that the delay was such as to detract significantly from the probative value of the complaint to BR. So, if that were the only aspect of Ground 1, we would reject it.
Counsel for the applicant argued in the alternative that, apart from delay, the terms of the complaint made to BR so ill-accorded with the offences alleged, or alternatively were so imprecise, that they could not logically be regarded as probative of the offences. More precisely, as counsel framed the argument, to say only that the applicant 'touched' the complainant said nothing about the place or nature of the touching – in particular, said nothing as to whether it was an indecent touching of the kind the subject of Counts 2, 3 and 4; still less to suggest that it was an act of sexual penetration of the kind the subject of Count 1.
We accept that argument. Absent an indication of the nature and circumstances of the touching, the complaint was not sufficiently probative of the offences alleged to render it admissible under s 41D(4)(a) of the Evidence Act1958 as proof of the facts complained of.
Counsel for the applicant conceded, correctly in our view, that the complaint was sufficiently precise and sufficiently relevant to the offences alleged to be admissible under sub-s 41(4)(b) to support the credit of the complainant. The difficulty with that, however, as the Crown acknowledged, was that the judge did not direct the jury that the evidence of the complaint was evidence only of consistency. To the contrary, as has been seen, her Honour told the jury that it was open to them to consider the complaint in considering whether the allegations were true.
It follows in our view that Ground 1 and, insofar as it relates to Ground 1, Ground 3, are made out.
Grounds 2 and 3 – Complaint to RT
We turn to Ground 2. In the course of her evidence-in-chief, the complainant's mother, RT, was asked the following questions to which she gave the following answers:
Was [the complainant] living with you at that time?---Yes.
At some stage did you have a discussion with your daughter [the complainant] about something she alleged James Watson had done to her?---Excuse me, could you repeat that again, please?
At some stage did you have a discussion with your daughter [the complainant] about something she said James Watson did to her?---Yes, we did.
When was that?---That was on, um, the 19th April or the 20th April she told me.
What year?---2006.
Can you tell us what she said?---She said – she yelled out, ‘Jamie raped me’.
Did you have a discussion with her about it?---Yes. Tried, yes.
Sorry?---Tried.
She was crying, was she?---Yes – well, yes.
Thank you.
Over objection, the judge admitted those answers as evidence under s 41D of the Evidence Act 1958 and gave the jury similar directions as to the use which they might make of that evidence as her Honour had given as to the use which might be made of the evidence of the complaint to BR.
Under Ground 2, counsel for the applicant contended that the terms of the complaint to RT were not sufficiently probative of the offences alleged to be admissible under sub-s 41D(4)(a), as evidence of the truth of the fact that the complainant had been raped, and thus that the judge had erred by directing the jury in effect that it could be used as evidence of the offences alleged.
Counsel for the Crown conceded the point. The difficulty, as he acknowledged, is that the applicant was not charged with rape. Although he was charged with one count of sexual penetration, and although rape necessarily imports an element of sexual penetration, rape may be committed by more than one kind of sexual penetration and there was nothing to show that the rape complained about involved the kind of sexual penetration with which the applicant was charged. As counsel for the Crown concisely summarised the problem, a complaint that 'he raped me' is a statement of logical conclusion, not a statement of fact.
For his part, counsel for the complainant accepted that the complaint that the applicant 'raped me' was admissible under s 41D(4)(b) of the Evidence Act1958 as supporting the credibility of the complainant. We think he was right to make that concession. But once again, the difficulty here is that the judge did not direct the jury that the purpose for which that evidence could be used was so confined. Her Honour told them that it could be used as evidence of the offences alleged.
It follows, in our view, that Ground 2 and, insofar as it relates to Ground 2, Ground 3, are also made out.
Grounds 4 and 5 – Uncharged act
Grounds 4 and 5 were not pressed and, therefore, we say no more about them.
Ground 6 – Cross-examination of the applicant
We turn to Ground 6. In cross-examination of the applicant, the prosecutor asked him whether he had, in Family Court proceedings relating to the custody of his child, denied that he had committed the offences with which he was charged. He answered in effect that he had not been asked anything in the Family Court proceedings of the offences charged but that, if he had been, he would have denied them. There was then an objection to the prosecutor's line of questioning which resulted in the prosecutor determining not to pursue the issue any further. But the judge omitted to direct the jury as to how they were to view what had been said about the matter up to that point.
In our view, the question should not have been asked. Statements made to an accused and not denied by him are not admissible as evidence of the truth of the statements unless the circumstances make it fairly open to infer an admission from the failure of the accused to voice a denial.[3] A question of the kind which the
prosecutor asked in this case should thus not be asked until and unless a judge is satisfied that the suggested statements were made and that the circumstances in which they were made leave it open to infer that an absence of denial amounted to an admission.[4] That was not so in this case. There was no basis to conclude that it was put to the applicant in the Family Court proceedings that he was guilty of the offences charged. There was no evidence of circumstances sufficient to imply that the applicant's failure to deny such allegations, however made, was tantamount to an admission. Indeed, the matter should not have been mentioned at all in front of the jury until it had been explored on voir dire and ruled upon and, the judge should have ruled it to be inadmissible.
[3]Thatcher v Charles (1961) 104 CLR 57, 61 (Fullagar J).
[4]R v Norton [1910] 2 KB 496, 499; Straker v The Queen (1977) 15 ALR 103, 109.
Since the question should not have been asked, and it was likely to have been prejudicial to the applicant, it was incumbent on the judge to direct the jury to disregard it. Instead, her Honour included reference to the matter in her summary of the evidence in a fashion which tended to imply that it was relevant and thus to be taken into account on the question of guilt.
It follows in our view that Ground 6 is also made out.
Conclusion and orders
It may be, perhaps, that one or more of the errors which we have identified would not have been sufficient in itself to cause the trial to miscarry. But the Crown concedes, and we accept, that the aggregate of errors resulted in a miscarriage.[5] It follows that the convictions sustained below should be quashed and a re-trial ordered.
[5]R v Kotzmann [1999] 2 VR 123, 157 [114].
REDLICH JA:
I agree for the reasons jointly stated by Nettle JA and Beach AJA that the appeal must be allowed and the orders made which they propose.
I wish only to make these additional observations as to the relevance of lapse of time between the alleged offence and the time of the making of the complaint. The circumstances in which s 41D of the Evidence Act was enacted should be considered. Section 41D is part of a raft of legislation that has been introduced to counter myths about sexual assaults and to ensure that complainants as well as persons charged with sexual offences are treated fairly. The Victorian Law Reform Commission recommended that until the Uniform Evidence Act is implemented:
The Evidence Act 1958 should be amended to allow the admission of first-hand hearsay evidence in sexual offences cases in circumstances where this evidence is admissible under sections 65 and 66 of the Uniform Evidence Act.[6]
[6]Victorian Law Reform Commission, ‘Sexual Offences: Law & Procedure Final Report’, July 2004, 232.
As the Commission found, it is common for sexual victims to delay in reporting offences and in some cases not to report them at all. That is particularly so in the case of child complainants. Here the applicant does not contend that the delay in making the complaint is such as to deny the complaints sufficient probative value to warrant their exclusion on the ground of delay. The Crown contends that delay between the offence and the making of the complaint can never justify their exclusion. It said that the time lapse is irrelevant as it is not a circumstance within the meaning of sub-s 41D(2). That submission must be rejected.
Section 41D does not make evidence probative that under the common law previously lacked that quality. Rather, it removes the common law rule which excluded hearsay evidence of prior consistent statements. But the evidence must, as did recent complaint evidence at common law, have a sufficiently probative quality to be admitted under the statute. A prior statement consistent with the maker's testimony is probative only when connected to the facts in issue in the way discussed in the joint judgments in Papakosmas v The Queen.[7]
[7](1999) 196 CLR 297.
In the present case it is enough to say that the trial judge was obliged to have
regard to the lapse of time between the alleged offence and the making of the complaint for the purposes of s 41D(2) and s 41D(6). That delay was not of such an order as to substantially detract from the probative value of the evidence of complaint.
NETTLE JA:
The orders of the Court will be as follows:
1. The application for leave to appeal is allowed.
2. The appeal is treated as instituted and heard instanter and is allowed.
3. The convictions sustained below are quashed and the sentence passed thereon are set aside.
4. It is ordered that a new trial be had.
5. The applicant is granted an indemnity certificate in respect of costs under s 14 of the Appeal Costs Act1998 including therein any additional costs that the applicant will pay or be ordered to pay as a consequence of the order for a new trial.
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