WLC v The Queen - [2007] NTCCA 6

WLC v The Queen [2007] NTCCA 06
PARTIES:WLC

v
THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO:CA 20 of 2006 (20423650)
DELIVERED:  4 May 2007
HEARING DATES:  16-17 April 2007
JUDGMENT OF:  MARTIN (BR) CJ, ANGEL & MILDREN JJ
APPEAL FROM:  Southwood J, Sentencing Remarks, 20 October 2006
CATCHWORDS:

CRIMINAL LAW – appeal against conviction – whether miscarriage of justice – whether misdirection to jury – whether evidence of guilty passion can be used as corroboration – whether appellate court should admit fresh evidence – appeal dismissed
Statutes:
Criminal Code (NT), s 128, s 129, s 131A, s 131A(1), s 131A(3), s 132, s 134, s 135, s 188(1), s 188(2)(k), s 192, s 192B
Citations:
Applied:
Director of Public Prosecutions v Hester [1973] AC 296
Gallagher v The Queen (1986) 160 CLR 392
Pollitt v The Queen (1992) 174 CLR 558
R v Baskerville [1916] 2 KB 658
Followed:
B v The Queen (1992) 175 CLR 599
K v R (1992) 59 A Crim R 113
McKeon v R (1987) 31 A Crim R 357
R v Beserick (1993) 30 NSWLR 510
R v Massey [1997] 1 Qd R 404
R v McCann (1972) Tas SR (NC3) 269
R v Taylor (2004) 8 VR 213
R v Witham [1962] Qd R 49
Referred to:
BRS v The Queen (1997) 191 CLR 275
Weiss v The Queen (2005) 224 CLR 300
References:
Cross on Evidence, 4^th Aust ed, Butterworths, Sydney, 1991- (loose-leaf edition)
REPRESENTATION:
Counsel:
Appellant:D Grace QC
Respondent:  R Wild QC
Solicitors:
Appellant:Elliotts
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    B
Number of pages:  16

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
WLC v The Queen [2007] NTCCA 06

No. CA 20 of 2006 (20423650)
BETWEEN:

WLC

Appellant

AND:

THE QUEEN

Respondent

CORAM: MARTIN (BR) CJ, ANGEL & MILDREN JJ
REASONS FOR JUDGMENT
(Delivered 4 May 2007)
The Court:

This is an appeal against conviction.
On 13 October 2006, the appellant was convicted of two counts as follows:
“Count 1
That between 1 November 1993 and 30 June 1994 at an unknown location in the Northern Territory of Australia committed an act of gross indecency with S, a child under the age of 16 years.
AND THAT the act of gross indecency involved the following circumstance of aggravation, namely,
(i)that S was under the age of 14 years and WLC was an adult.
Section 129(1)(b) and (2) of the Criminal Code.
…
Count 3
Between 1 July 1994 and 1 May 1997 at various locations in the Northern Territory of Australia, being an adult, maintained an unlawful relationship of a sexual nature with S, a child under the age of 16 years.
AND THAT the unlawful relationship involved the following circumstance of aggravation, namely,
(i)that in the course of the relationship WLC had unlawful sexual intercourse with…

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.

Continue reading WLC v The Queen

Details

AGLC: WLC v The Queen [2007] NTCCA 6
Case: [2007] NTCCA 6
Decision Date: 4 May 2007

CaseChat Overview and Summary

The appeal before the Supreme Court of the Northern Territory, heard by Martin (Br) CJ, Angel and Mildren JJ, concerned a conviction for sexual offences against a child. The appellant, WLC, sought to appeal his conviction, alleging a miscarriage of justice. The Crown case, as presented to the jury, alleged that the appellant had sexually assaulted the complainant from approximately five years of age until she was seven. The complainant's mother, MA, was a key witness, testifying to witnessing some assaults and participating in others, and also alleging she was subjected to significant abuse by the appellant.

The legal issues before the Court of Appeal included whether there had been a misdirection to the jury regarding the use of evidence of a "guilty passion" as corroboration, and whether the appellate court should admit fresh evidence. The appellant also contended that a miscarriage of justice had occurred.

The Court considered the evidence presented at trial, including the complainant's testimony and that of her mother, MA, who had initially provided a statutory declaration denying the allegations but later retracted it and provided a detailed account of the appellant's abuse of both herself and the complainant. The Court analysed the directions given to the jury concerning the corroborative value of certain evidence, particularly in relation to the concept of a "guilty passion." The Court ultimately found no misdirection and dismissed the appeal.

The appeal was dismissed.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

Occasions 1 and 2 involved the attempted insertion of the accused’s penis into S’s vagina and anus. For the purposes of this appeal it is not necessary to deal with the particulars of the other occasions which remained for the jury’s consideration.Background facts The complainant was born on 25 September 1988. The Crown case alleged that the appellant sexually assaulted the complainant starting when she was about five years of age in 1994. The appellant commenced a relationship with the complainant’s mother, MA, shortly prior to 1 July 1994. MA testified as an eye witness to some of the sexual assaults (and contextual evidence of physical assaults upon the complainant), and conceded that she was also a party to some of the sexual assaults (testifying as to holding the complainant’s hand while she was sexually abused and, on one occasion, travelling by car to pick up her daughter so that the appellant could play with her). The nature of the allegations made by the complainant was that the appellant had commenced a course of conduct involving repetitive sexual and violent offences against her from about the age of five years until she moved to Victoria at about the age of seven, at which time she disclosed the offending to the Victorian police. The appellant’s behaviour commenced several months prior to the introduction of the offence of maintaining a relationship with a child created by s 131A. The offending mostly occurred in remote areas of the Northern Territory. The appellant was a bulldozer operator who lived out of a caravan as he moved around the bush. The complainant’s mother joined the appellant initially as his camp cook and then as his de facto partner. The complainant sometimes lived with her mother and the appellant and sometimes lived with her maternal grandparents and a couple known as “Lany and Glen”. The complainant gave evidence that her mother was present either watching or holding her hand during most of the offending. When the matter was first investigated in 1997, MA swore a statutory declaration that the complainant’s account was untrue and that no offending had occurred. In the light of this statement, a decision was made not to prosecute and the file was closed. Nevertheless, the complainant was never returned to her mother’s care. In 2004 the relationship between MA and the appellant broke down. MA approached the police and made a new statement retracting her former 1997 statement and detailing a course of conduct by the appellant much as the complainant had described. MA also complained that the appellant had subjected her to repeated sexual and physical abuse throughout the relevant period and threatened to kill her and her family if she attempted to leave the relationship or disclose the abuse. The investigation was reopened and proceeded to committal on numerous charges of sexual and physical violence by the appellant against the complainant and MA. The appellant was committed on the majority of the charges, however in order not the prejudice the appellant, a decision was made to run separate trials in relation to the offences against each complainant. Accordingly, the Crown did not lead any evidence of the sexual offences concerning MA in the present trial. In pre-trial negotiations, it was agreed that evidence of the violent offending in relation to both mother and daughter would not be charged, but would be admitted into evidence without objection to show the relevant context of the offending and the nature of the relationship between the appellant, the complainant and her mother.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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