WGC v The Queen [2007] HCA 58 12 December 2007 A20/2007
ORDER
Appeal dismissed.
On appeal from the Supreme Court of South Australia
Representation
D H Peek QC with A J Crocker for the appellant (instructed by Scammell & Co)
P Brebner QC with S Gill for the respondent (instructed by Director of Public Prosecutions (SA))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
WGC v The Queen
Criminal law – Offences – Elements of offence – Information – Section 49(3) of the Criminal Law Consolidation Act1935 (SA) ("the Act") created the offence of having sexual intercourse with a person of or above the age of 12 years and below the age of 17 years – Section 49(4) of the Act provided a defence to the offence when the complainant was of or above the age of 16 years and the accused believed on reasonable grounds that the complainant was of or above the age of 17 years – The Particulars of Offence alleged that the appellant had sexual intercourse with the complainant when she was aged 13 – The appellant alleged that sexual intercourse occurred when the complainant was aged 16 and that he believed on reasonable grounds that she was of or above the age of 17 years – The jury convicted the appellant – Whether the date of the offence was a material particular that had to be proved beyond reasonable doubt – Relevance of the conduct of the trial to whether the date was a material particular – Relevance that the elements of the offence were admitted – Whether the prosecution should have amended the Particulars of Offence to allege alternative dates – Whether the defence in s 49(4) of the Act was available to the offence as alleged in the Particulars of Offence.
Criminal law – Jury verdicts – Whether the verdicts were uncertain because it cannot be known whether the jury convicted the appellant for an offence committed when the complainant was aged 13 or 16 – Whether the verdicts were uncertain because different jurors may have reached the verdict by different processes of reasoning – Whether the trial judge misdirected the jury.
Criminal law – Sentencing – Jury verdict – Basis for sentencing when jury have two routes to conviction and one involves less serious culpability.
Words and phrases – "Information", "material particular", "Particulars of Offence".
GUMMOW J. The appellant was born on 12 July 1949. The complainant was born on 21 September 1972. Accordingly, the complainant turned 12 years of age on 21 September 1984 and 17 years on 21 September 1989. At a jury trial in July 2006 in the District Court of South Australia, the appellant was convicted of the two counts in the Information. They were of…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
WGC v The Queen [2007] HCA 58
Case
[2007] HCA 58
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by WGC against his convictions for unlawful sexual intercourse contrary to s 49(3) of the Criminal Law Consolidation Act 1935 (SA). The prosecution alleged that the offences occurred between 31 January 1986 and 28 February 1986, when the complainant was 13 years old. The appellant contended that the offences occurred in 1989 when the complainant was 16, and that he reasonably believed she was over 17, which would have constituted a defence under s 49(4) of the Act.
The central legal issues before the High Court were whether the date of the alleged offences, as particularised in the Information, was a material particular that the prosecution was required to prove beyond reasonable doubt, and whether the jury's verdicts were uncertain due to the possibility of different jurors reaching their conclusions via different factual findings regarding the date of the offences and the availability of the defence. The appellant also raised issues concerning sentencing, but these were considered incidental to the primary arguments.
The Court noted the general rule that the date of an offence is not a material particular unless it is an essential element of the offence itself. However, the Court found that the specific circumstances of this case, including the significant delay between the alleged offences and the trial, and the potential for the defence under s 49(4) to be available if the offences occurred in 1989, meant that the date of the offences had become a material particular. The Court reasoned that the prosecution's failure to prove the date as particularised, or to amend the Information to allege alternative dates, meant that the jury could not be certain of the basis of their conviction. Consequently, the Court held that the trial judge erred in failing to direct the jury that the date was a material particular.
The High Court allowed the appeal, quashed the convictions, and ordered a new trial. The Court concluded that the verdicts were uncertain because it was not possible to know whether the jury had convicted the appellant on the basis of the offences occurring in 1986 (when the defence was unavailable) or in 1989 (when the defence might have been available). This uncertainty, coupled with the materiality of the date, meant that the convictions could not stand.
Orders
Orders of the court
Appeal dismissed.
Background
Background to the litigation
The appellant complains that his trial was conducted contrary to law. As these reasons will explain, the appellant is entitled to succeed on two of his arguments. His convictions should be quashed and a new trial ordered.The facts and legislation The statutory provisions: The Information charging the appellant alleged two counts of unlawful sexual intercourse contrary to s 49(3) of the Criminal Law Consolidation Act 1935 (SA) ("the Act"). At the time of the alleged offences, s 49 of the Act provided, relevantly:"49(1)A person who has sexual intercourse with any person under the age of twelve years shall be guilty of a felony and liable to be imprisoned for life.(2) …(3)A person who has sexual intercourse with a person of or above the age of twelve years and under the age of seventeen years shall be guilty of a misdemeanour and liable to be imprisoned for a term not exceeding seven years.(4)It shall be a defence to a charge under subsection (3) of this section to prove that – (a)the person with whom the accused is alleged to have had sexual intercourse was, on the date on which the offence is alleged to have been committed, of or above the age of 16 years; and(b) the accused – (i)was, on the date on which the offence is alleged to have been committed, under the age of seventeen years; or(ii)believed on reasonable grounds that the person with whom he is alleged to have had sexual intercourse was of, or above, the age of seventeen years.…(7)Consent to sexual intercourse is not a defence to a charge of an offence under this section." The Information and the trial: The Information specified particulars of the offences charged in the two counts. Relevantly, the offence alleged in the first count was particularised as "performing an act of cunnilingus upon" the complainant. The offence particularised in the second count was one of having "vaginal sexual intercourse" with the complainant. In both particulars the offence was alleged to have occurred "between the 31st day of January 1986 and the 28th day of February 1986 at Renmark or another place". The prosecution of the appellant was conducted on the footing that the second offence had followed immediately after the first, each constituting a part of a single sexual encounter. The particularity of the two counts, alleging separate acts of "sexual intercourse", conformed to the common law requirement to plead separate offences by way of separate charges[8].[8]See Walsh v Tattersall (1996) 188 CLR 77 at 104-105. The trial of the appellant took place in July 2006. This was some 20 years after the alleged offences. Such a great delay in the prosecution of an accused is inescapably prejudicial to his defence. It calls for a serious reflection by the prosecutor before a prosecution is launched; possible consideration of a judicial stay of the proceedings; but, if they are brought, the strict observance of accuracy and fairness in the conduct of the trial. The complainant gave evidence of the two acts of intercourse having occurred on a houseboat in February 1986, when she was 13 years of age. She said that the appellant was a friend of her parents and committed the offences on the houseboat trip when other passengers, including her parents, were asleep. She said that she could identify the date because she had "lost her virginity" at the age of 13, a few weeks earlier in the Christmas holidays.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
GUMMOW J
KIRBY J
HAYNE AND HEYDON JJ
CRENNAN J
Despite the objections propounded for the appellant, the Court of Criminal Appeal were unconvinced that they should lead to orders quashing the resulting conviction and requiring a new trial. That Court rejected the complaint that the trial judge had erred in failing to direct the jury that the date of the offence, as alleged in the Information, was a "material particular"[15]. As well, it dismissed the submission that the jury's verdicts were uncertain, because unclear as to whether they were returned on the basis of the jury's satisfaction that the offences had happened in 1986 or 1989 or with some jurors concluding that it was 1986 and others 1989[16]. [15](2006) 96 SASR 301 at 303 [1], 306 [16], 312-315 [45]-[50]. [16](2006) 96 SASR 301 at 315 [51] per David J, Vanstone J concurring at 303 [1].The issues for decision Having regard to the grounds on which special leave was granted to the appellant, two issues arise for decision. They are:(1)The materiality issue: Whether, in the circumstances of the case, the date of the alleged commission of the offences charged in the Information constituted a material particular, requiring the trial judge to direct the jury that the prosecution was obliged to prove beyond reasonable doubt that the offences happened on the date particularised; and(2)The alternative theories issue: Whether, in the circumstances of the case, and given the alternative paths that the jury might have taken to convict the appellant of the offences with which he was charged, the trial judge erred in failing to direct the jury that they were required to be unanimous (or to reach their verdict by the requisite majority) in relation to the offences on the basis of the different paths of reasoning open to them, depending on their conclusion as to whether the offences had occurred in 1986 or 1989. Other arguments were advanced for the appellant, including the suggestion that the course adopted in the appellant's trial made it difficult, or impossible, to sentence the appellant appropriately for want of an indication of the basis of the jury's verdicts[17]; or because the trial judge had failed to question the jury about that basis, when their verdicts were returned[18]. However, these issues are incidental to the primary attack that the appellant made on the conduct of his trial. It will be sufficient for this Court to deal with the two issues identified. Indeed, a decision favourable to the appellant on either of these issues would be sufficient to require that the verdicts be quashed and the convictions dependent on them set aside.[17]cf Giam (1999) 104 A Crim R 416 at 420 [24]; cf Cheung v The Queen (2001) 209 CLR 1 at 52 [160]; cf 44-45 [132]-[133].[18]R v Isaacs (1997) 41 NSWLR 374 at 377-378. The materiality of the date of the offences General rule: non-materiality: Generally, the date of an offence, whether specified in the formal document containing the charge or in separate particulars, is not treated as a material fact which the prosecution must prove beyond reasonable doubt in order to make good its accusation. So much was stated by Atkin J in Severo Dossi[19], although his Lordship acknowledged that there were exceptions to the general rule[20]:"From time immemorial a date specified in an indictment has never been a material matter unless it is actually an essential part of the alleged offence. 'And although the day be alleged, yet if the jury finds him guilty at another day, the verdict is good, but then in the verdict it is good to set down on what day it was done, in respect of the relation of the felony; and the same law is in the case of an indictment'[21] … Thus, though the date of the offence should be alleged in the indictment, it has never been necessary that it should be laid according to truth unless time is of the essence of the offence. It follows, therefore, that the jury were entitled, if there was evidence on which they could come to that conclusion, to find the appellant guilty of the offence charged against him, even though they found that it had not been committed on the actual day specified in the indictment."[19](1918) 13 Cr App R 158. [20](1918) 13 Cr App R 158 at 159-160. [21]Coke, 2 Inst (1817) at 318.
Ratio Decidendi
Legal Principle Established
Established by:
GUMMOW J,
KIRBY J,
HAYNE AND HEYDON JJ,
CRENNAN J