WK v The Queen
[2002] WASCA 176
•27 JUNE 2002
WK -v- THE QUEEN [2002] WASCA 176
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 176 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:148/2001 | 15 MAY 2002 | |
| Coram: | WALLWORK J MURRAY J MILLER J | 27/06/02 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused | ||
| A | |||
| PDF Version |
| Parties: | WK THE QUEEN |
Catchwords: | Criminal law Evidence Admissibility of letter written by accused Not dislosed before trial Inadvertent non-disclosure Whether admissions equivocal Inadmissible evidence led through detective Reference to another trial Whether capable of being cured by direction Turns on own facts |
Legislation: | Nil |
Case References: | Bradshaw v The Queen, unreported; CCA SCt of WA; Library No 970228; 11 November 1996 Buller v The Queen [2002] WASCA 90 Maric v R (1978) 20 ALR 513 R v Doolan [1962] Qd R 449 R v Khalil (1987) 44 SASR 23 The Queen v Chin (1985) 157 CLR 671 Festa v R (2001) 185 ALR 394 Glennon v R (1994) 174 CLR 1 Grey v R (2001) 184 ALR 593 Lawless v R (1979) 142 CLR 659 R v Hughes [1998] QCA 279 R v Sam [2000] QSC 368 R v Storey (1978) 140 CLR 364 R v Vonarx [1999] 3 VR 618 Wilde v R (1988) 164 CLR 365 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : WK -v- THE QUEEN [2002] WASCA 176 CORAM : WALLWORK J
- MURRAY J
MILLER J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Evidence - Admissibility of letter written by accused - Not dislosed before trial - Inadvertent non-disclosure - Whether admissions equivocal - Inadmissible evidence led through detective - Reference to another trial - Whether capable of being cured by direction - Turns on own facts
Legislation:
Nil
Result:
Leave to appeal refused
(Page 2)
Category: A
Representation:
Counsel:
Applicant : Mr I D Fraser
Respondent : Mr R E Cock QC
Solicitors:
Applicant : Laurie Levy & Associates
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Bradshaw v The Queen, unreported; CCA SCt of WA; Library No 970228; 11 November 1996
Buller v The Queen [2002] WASCA 90
Maric v R (1978) 20 ALR 513
R v Doolan [1962] Qd R 449
R v Khalil (1987) 44 SASR 23
The Queen v Chin (1985) 157 CLR 671
Case(s) also cited:
Festa v R (2001) 185 ALR 394
Glennon v R (1994) 174 CLR 1
Grey v R (2001) 184 ALR 593
Lawless v R (1979) 142 CLR 659
R v Hughes [1998] QCA 279
R v Sam [2000] QSC 368
R v Storey (1978) 140 CLR 364
R v Vonarx [1999] 3 VR 618
Wilde v R (1988) 164 CLR 365
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1 WALLWORK J: I agree with the reasons for judgment and the conclusions of Miller J.
2 There is nothing I wish to add.
3 MURRAY J: I have had the advantage of reading in draft the judgment to be published by Miller J with which I entirely agree. There is nothing I could usefully add. I too consider that the application for leave to appeal should be dismissed.
4 MILLER J: The applicant was tried in the District Court at Perth on an indictment which contained seven counts of indecently dealing with a lineal relative under the age of 16 years (Criminal Code, s 329(4)) and two counts of sexual penetration of a lineal relative under the age of 16 years (Criminal Code, s 329(2)). The applicant was convicted of six counts of indecent dealing. There were verdicts of not guilty on the counts alleging sexual penetration, although on one count the alternative verdict of indecent dealing was returned. He was sentenced to 4 years' imprisonment with eligibility for parole.
5 The applicant appeals against his convictions on two grounds. The first is that the learned trial Judge erred in law in admitting in evidence a letter written by the applicant to his wife which was handed to his daughter, the mother of the complainant in the proceedings. This letter was relied upon by the prosecution as constituting admissions of guilt by the applicant. The second ground of appeal contends that the trial miscarried by reason of inadmissible and prejudicial material being adduced at the hearing which was incapable of being cured by direction. This constituted evidence from a Detective Van Der Sluys to the effect that she had handed the original of the letter in question to a prosecutor in a previous trial.
6 At the trial of the applicant his granddaughter, Deborah, gave evidence in which she alleged that she had been indecently dealt with and sexually penetrated by the applicant between the years 1995 and 1999. At the conclusion of her testimony, the prosecution called a witness who had been a friend of Deborah and who gave evidence that she had stayed at the home of the applicant and his wife on an occasion when Deborah was present. The prosecution then called Diane, the mother of the complainant. She gave evidence that Deborah went to the home of the applicant and his wife on weekends and holidays during the years in
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question. She testified about a change in Deborah's behaviour during the year 1999. There was then a discussion between mother and daughter, following which the complainant was taken to the police. The witness was asked whether she then did anything. Her evidence as to what then transpired was as follows:
"After that did you yourself do anything? --- As in to - like, I made a statement when I was there.
You made a statement, right, but after that did you write a letter? --- Yes, I did.
Who was the letter to? --- To Judith at the back of the court there.
Who's Judith? --- My mother.
Right, and what was the letter about? Sorry. Was the letter in relation to Deborah? --- Yes. It was in relation to the whole situation and ---
Sorry, I must stop you there. As a result of sending that letter did you receive a letter in reply? --- I did, yes.
Who was that letter from? --- The accused.
Was it signed by the accused? --- Not to my knowledge, no.
Were you able to identify the handwriting? --- It was definitely his handwriting.
How is it that that letter arrived at your place? --- The letter was sent to me from England to his wife and his wife sent the letter to me and address ---"
7 Counsel for the applicant raised objection to the use of this letter. He informed the Court that the defence was caught by surprise in relation to the letter and, in any event, it was very vague in its terms and for that reason ought not to be admitted in evidence. The prosecutor then informed the Court that the letter was being led for the purpose of establishing that, after having being spoken to by police, but before being charged, the applicant had left the country. The prosecutor said:
"SMITH, MR: What I would be suggesting, sir, is that the matter - it's been identified as the handwriting of the accused. I
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- accept what my learned friend says in regard to the clarity of any admissions if there are any admissions in it. It is part of the res of a scenario where there will be evidence to say that this accused, after he was spoken to by the police but before he was charged with this offence, actually left the country and it was only when he came back and was arrested that he was then charged with this offence. This letter was written while he was away in England and I will be leading evidence along those lines through the police officer who made the inquiries as to his whereabouts and alerted the immigration, etcetera, to it. Basically, I would be happy at this stage, in fact my submission would be that the item should be accepted only as a marked for identification item."
8 The learned trial Judge directed that the letter be marked for identification and in the exchange which followed between the Judge and the prosecutor, it was clear that the prosecution thought it might be material which could be put to the applicant in the event that he testified.
9 The prosecutor had apparently received the letter during the luncheon adjournment on the first day of the hearing, having no knowledge of it prior to that time. The Director of Public Prosecutions informed the Court at the hearing of the appeal that the letter had in fact been on a file in his office for several weeks. It was on a file which related to charges against the applicant which related to an entirely different complainant. It had not been intended to use the letter on the trial of the applicant for the alleged offences against Deborah and accordingly had not been the subject of discosure to the defence.
10 The applicant contends that by failing to disclose to the defence the existence of the letter there was a breach of the Crown's duty of disclosure. Rule 37 of the Criminal Procedure Rules 2000 is relied upon. That rule is in the following terms:
"37. Pre-trial disclosure by the Crown
(1) If on being arraigned an accused enters any plea that necessitates an actual trial, the DPP must file, and serve on the accused -
(a) a copy of any statement, report or deposition of any person who may be able to give relevant evidence at the trial;
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- (b) notice of the name and, if known, the address of any person from whom no statement, report or deposition has been obtained but who may be able to give relevant evidence at the trial and a description of the relevant evidence concerned;
(c) notice of those of the persons referred to in paragraphs (a) and (b) whom the Crown proposes to call;
(d) a copy of any record that the Crown proposes to tender in evidence at the trial or, if it is not practicable to copy the record, a description of it and notice of where and when it can be inspected;
(e) a copy of the criminal history of the accused.
- (2) The duty in subrule (1) is a continuing duty.
(3) Subrule (1) does not limit the operation of section 592 of the Code."
11 Once the prosecutor became aware of the letter, he was obliged pursuant to r 37(1)(a) to provide to the defence a short supplementary statement of the witness Diane, in which she identified the letter and its authorship. This was so even though there was no intention to tender the letter.
12 In Buller v The Queen [2002] WASCA 90, Malcolm CJ at [7] stressed that the duty of the Crown with respect to disclosure in order to ensure a fair trial is of the utmost importance. It is a duty to be scrupulously observed in order to ensure that an accused has a fair trial. The duty to disclose certainly extends to all material available to the Crown which is relevant or possibly relevant to any issue in the case. That was made clear in Bradshaw v The Queen, unreported; CCA SCt of WA; Library No 970228; 11 November 1996 where Malcolm CJ said (at 9):
"In order for there to be a fair trial the Crown is obliged to disclose to the defence all material available to it that is relevant or possibly relevant to any issue in the case: R v Keane (1995) 99 Cr App Rep 1… In Archibald 1995 Vol 1 pars 4.265 - 4.272, the duty of disclosure to the defence by the prosecution is
(Page 7)
- summarised. In R v Brown it was held that the Crown is obliged to disclose to the defence:
'That which can be seen on a sensible appraisal by the prosecution:
(1) To be relevant or possibly relevant to an issue in the case;
(2) To raise or possibly raise an issue whose existence is not apparent from the evidence the prosecution proposes to use;
(3) To hold out a real as opposed to a fanciful, prospect of providing a lead on evidence which goes to (1) or (2).' "
- These principles are reflected in r 37, which clearly adopts the common law principles for the purpose of the Criminal Practice Rules.
13 Whilst these principles are of universal application to all cases, it must be appreciated that the circumstances of the present case were such that the failure to disclose the existence of the letter was accidental. Indeed, it had not been intended by the prosecution to use the letter on the trial of the applicant until it was brought to the attention of the prosecutor at lunchtime on the first day of the hearing. Further, and in any event, it is to be appreciated that the letter was the applicant's own document.
14 Although it is true that innocent failure to disclose relevant material may constitute a miscarriage of justice, in determining whether or not there has been a miscarriage of justice, the question is whether disclosure of the material in question to the defence might well have influenced the result of the trial: see Bradshaw v The Queen (supra) per Malcolm CJ at 12.
15 In the present case that criterion cannot be met. The letter was the applicant's own letter. He must have known of its existence. When it was produced at the trial he had the opportunity to instruct his counsel in relation to it. Indeed, there was an overnight adjournment in relation to which instructions could clearly have been taken. Witnesses who had already been called could have been the subject of an application for recall, had defence counsel thought it necessary to do so. No such application was made.
16 On the second day of the trial the applicant elected to give evidence. He denied the allegations which the complainant made. When
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- cross-examined he was asked about the letter. It came about in the following way:
"Whilst you were in England you received from your wife a letter that you daughter Diane had written to your wife? --- I think I - yes, sir.
And as a result of that you wrote back to your wife? --- About my - about Diane, yes.
About Diane. That's the letter that - just have a look at it. The item marked for identification P3. That's your handwriting, isn't it? --- That's about my daughter Diane. Yeah.
And the first two pages is about your daughter Diane? --- Yeah."
"Now I have made one mistake and my daughter is after my blood."
18 On the second page there appears the following passage:
"We have gone out of our way to help her I am truly sorry for what I done I will be back to face the justice I deserve."
19 On the third page there are the following words:
"Diane would you please tell your mother that at no time did I ever do anything that you have said I done."
20 The fourth page begins with a numeral one. It also has the date 8 December 1999. What is there written clearly relates to the complainant Deborah. An extract from it is as follows:
"It all started with hugs and kisses. Every time now that I can bring to my mind, that Deborah came to greet me was with a big hug and squise. And then ask for some money around $5. It was always Deborah who wanted to come up to Chidlow or to
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- go to town and the shops and always wanted to know when Nana was at work."
21 The applicant was cross-examined about the contents of the letter. He was asked what was the "one mistake" that he admitted to having made. His answer was that it related to cutting Diane off as his daughter after she had had a number of abortions. The applicant was then asked what he meant by the words "It all started with hugs and kisses …". He said that this meant "Relationships … every time you'd meet her she'd give you a hug and a kiss". The applicant was also asked what he meant by the words "and always wanted to know when Nana was at work". He replied that he did not know what that meant.
22 The applicant was vigorously questioned about the use of the words "we have gone out of our way to help her. I am truly sorry for what I have done. I will be back to face the justice I deserve". His answer was that he (and his wife) were truly sorry because they had gone out of their way to help Diane. He contended that it was Diane he was talking about and in relation to the question of facing justice, the following exchange occurred:
"Then when you say, 'I'll be back to face the justice I deserve'? --- To get in touch with Diane and get these allegations cleared up, that I didn't do anything about them. That's what I meant in that letter. That's why I was coming - that's why I was coming home. That's why I was coming home.
I suggest to you that what you are talking about there, Mr [K] is that you have - when the police put these accusations to you you became very depressed because you now knew that your true self was out in the open? --- No, sir.
You then decided that the only way out of it was to leave the country? --- No, sir.
You left the country without even telling your wife, who stood by you through all this? --- Yes, sir.
You have taken what little money you had in the house to pay for your ticket? --- Yes, sir.
How did you support yourself while you were in England? --- I stayed with my brother and his wife.
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- Just for spending money and things like that; you didn't have any money with you? --- No.
Then you have come back to Australia, obviously after having some contact with your wife? --- Yes, sir.
She impored you to come back? --- Yes, sir. To come back and get it all straightened out.
See what you are saying here is, 'We have gone out of our way to help her. I am truly sorry for what I've done. I will be back to face the justice I deserve'? --- Yes, sir.
I suggest to you, Mr [K], that what you are actually saying there is that you are sorry that you have been involved with Deborah in the way you have? --- No, sir, you've got it all wrong. You've got it all wrong.
And the only justice you are facing is the justice that this court is going to give to you? --- You've got it all wrong, sir. No, no no. You've got it all wrong, sir."
23 At the conclusion of this exchange the letter was tendered and became exhibit P3 in the proceedings. There was no objection to its tender. Nor was there any re-examination of the applicant in relation to the contents of the letter.
24 When the learned trial Judge came to charge the jury he made specific reference to the contents of the letter in the following terms:
"The crown draws your attention to the letter, exhibit P3, and says that by inference you should conclude that the accused, in that letter, is acknowledging inappropriate behaviour on his part towards the complainant.
In that respect of course you have to look at that document. You may well have to draw inferences from it and if you do of course you will bear in mind what I have said to you about the drawing of inferences. You could only draw an inference adverse to the accused; that is, you could only draw an inference that it relates to, or that it is an acknowledgement on his part, of impropriety towards the complainant if you are satisfied that it is the only reasonable inference to be drawn
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- from the words of the letter, that it came to view that it was not capable, reasonably, of supporting any other view.
In that regard of course the accused has told you the circumstances in which he wrote that document and the matters that he was referring to when writing it."
25 Foremost in the submissions of the applicant is the proposition that any statements contained within the letter were equivocal or ambiguous. For this reason it is argued that the letter was inadmissible in the proceedings. Reliance was particularly placed upon R v Khalil (1987) 44 SASR 23 at 37 where O'Loughlin J said:
"There is no doubt that where a confession is equivocal, the court may quash a conviction founded solely thereon: S L Phipson, The Law of Evidence (13th ed, 1982), p 449; R v Barker (1915) 11 Cr App R 191; R v Smith (1979) 5 Crim LJ 161."
- However, it will be seen that the passage relied upon supports only the proposition that the Court may quash a conviction founded solely on evidence of a confession which is equivocal. O'Loughlin J did make it clear that an equivocal or ambiguous confession might be excluded in the exercise of the Court's discretion and there is no doubt that in a proper case this may occur.
26 Another case relied upon by counsel for the applicant was R v Doolan [1962] Qd R 449 where it was held that whilst even if strictly admissible, an equivocal admission would be dangerous to accept in evidence. The admission in question was, however, truly equivocal as Townley J (at 455) makes clear:
"Tallis made a written statement which might be said to implicate the appellant. A copy of it was handed to the latter who appeared to read it and then said: 'I thought that bastard had more bloody sense than to give you fellows a statement. He has dubbed us all in.' This comment was, to say the least, equivocal and, in my opinion, could not be taken as an unequivocal admission of the truth of the contents of the statement."
- This is a very different admission from the admissions relied upon by the prosecution in the letter written by the applicant in this case.
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27 In my view the letter written by the applicant was admissible in evidence as containing admissions against interest made by the applicant. It was not ambiguous to the point where the trial Judge ought, in the exercise of his discretion, have excluded it. It was material upon which the applicant could properly be cross-examined, as is made clear in The Queen v Chin (1985) 157 CLR 671. In that case Gibbs CJ and Wilson J (at 678 - 679) said:
"A cross-examiner is entitled to ask questions to establish matters relevant to the issues whether or not the witness has deposed to such matters in his examination in chief. Cross-examination 'is not confined to matters proved in chief; the slightest direct examination, even for formal proof, opens up the whole of the cross-examiner's case': Phipson on Evidence, 13th ed (1982), p 804; Reg v Beckett and Macintosh, and see Wigmore on Evidence, Chadbourne rev (1976) Vol 6, par 1885. the cross-examination may serve the purpose of confirming the evidence already given by witnesses for the prosecution, but the Crown Prosecutor may also prove, by admissions made by the accused under cross-examination, facts which were not proved in chief, whether because it was not possible to prove them, or simply because the Crown Prosecutor failed to advert to them. The trial judge, of course, retains his discretionary powers to ensure that the cross-examination is not unfair."
28 The procedure adopted by the Crown Prosecutor in this case was entirely in accordance with normal practice. Once the letter was acknowledged by the applicant as his, the prosecutor was entitled to cross-examine him about the contents of it. The learned trial Judge was required to and did, give the jury a very clear direction that it would only be if the jury were satisfied beyond reasonable doubt that the only inference to be drawn from the contents of the letter was an admission of guilt, that such an admission could be used against the applicant.
29 I can find no basis upon which it can be said that any miscarriage of justice occurred by reason of the use of and tender of the letter. Nor can I find any substance in the argument on behalf of the applicant that the Crown case had been split and the applicant was prejudiced by reason of being precluded from cross-examining Diane about the contents of the letter. As I have already pointed out, application could easily have been made for Diane to be recalled for the purpose of cross-examination and one would assume that in the circumstances in which the letter came to light, leave would have been granted to recall her. As no application was
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- made, I can find no substance in the submission that the Crown in some way "split" its case.
30 The second ground of appeal relates to the unfortunate revelation by a Crown witness of the fact that the original of the letter had been handed to a prosecutor "at another trial". Detective Senior Constable Van Der Sluys gave this evidence in the following way:
"At some stage were you provided with an original of a letter by Diane? --- Yes, I was.
Do you know where the original of that letter is? --- I believed I handed it to a prosecutor at another trial."
31 There was no need for Constable Van Der Sluys to have said that she handed the letter to a prosecutor at another trial. It was only necessary for her to have said that at one time she had the original in her possession but that she had given it to an officer of the DPP. Detectives should be alert to the need to avoid making gratuitous comments such as was made in this case. Indeed, Constable Van Der Sluys made another similar statement when she gave the following answer to a simple question which required only an affirmative or negative response:
"And on Tuesday, 9 November did you in fact go to his premises in Chidlow? --- Yes, we did and we spoke to his wife and she advised us that she believed he was in England and that he had taken all the money out of their account."
- Although no ground of appeal is raised in relation to what was said in this respect, it was clearly prejudicial to the applicant and ought not to have been said.
32 The learned trial Judge, in the course of his charge to the jury, made reference to Detective Van Der Sluys' evidence about the letter. He said:
"You also recall that there was a comment about exhibit P3, the letter that was written by the accused person having been handed over by the officer to a prosecutor on another occasion. That occasion does not concern you and you must not speculate about it. The simple fact is that the issue is now before you, the matter is before you, and you must only consider the evidence that is put before you on this occasion and analyse that evidence as it relates to the charges before you."
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33 In my view the direction given by the learned trial Judge to the jury was sufficient to cure any prejudice to the applicant arising out of the comment of Detective Van Der Sluys. Although counsel for the applicant argued that the jury would have assumed that the applicant had been tried in relation to other allegations of sexual assault upon a different complainant, I am unable to conclude that the jury would have reached such a view. They would, in my view, have been more than likely to have concluded that there had been a previous trial of the applicant for the alleged offences against the complainant and this was a retrial. Not surprisingly, the learned trial Judge did not specify what trial had been held on the other occasion. To the extent therefore that counsel for the applicant submitted (in written submissions) that the jury should have been directed that the applicant was acquitted of charges the subject of a previous trial, I positively disagree. Reference to the previous trial would have meant reference to the fact that the applicant had been tried on other sexual offences and acquitted. Nothing could have been more prejudicial.
34 Counsel for the applicant contends that the answer given by Detective Van Der Sluys could not be said to have been inadvertent and was in fact deliberate. I am unable to conclude that that is so. Although different considerations will apply, depending upon whether prejudicial material is admitted in evidence inadvertently or deliberately (see Maric v R (1978) 20 ALR 513 at 520), there is nothing to suggest in the present case that Detective Van Der Sluys deliberately, for the purpose of prejudicing the applicant, gave the evidence she did. As I have said, it was unfortunate that she answered the question as she did and clearly she is in need of some tuition in relation to the manner and extent to which questions should be answered in similar circumstances.
35 I am unable to find that any miscarriage of justice has occurred to the applicant by reason of the prejudicial answer given by Detective Van Der Sluys to the question about the letter. The matter was, in my view, sufficiently corrected by the learned trial Judge and it was a case in which the proper direction was certainly capable of removing the prejudicial effect of the evidence.
36 For these reasons I would dismiss the applicant's appeal.
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