Woods v The Queen
[2003] WASCA 252
•24 OCTOBER 2003
WOODS -v- THE QUEEN [2003] WASCA 252
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 252 | |
| COURT OF CRIMINAL APPEAL | 24/10/2003 | ||
| Case No: | CCA:18/2003 | 4 SEPTEMBER 2003 | |
| Coram: | MURRAY ACJ STEYTLER J HASLUCK J | 4/09/03 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused | ||
| B | |||
| PDF Version |
| Parties: | IAN DUDLEY WOODS THE QUEEN |
Catchwords: | Criminal law Appeal against conviction Sexual penetration offences Whether verdicts unsafe and unsatisfactory Inconsistencies in complainant's evidence Leave to appeal refused |
Legislation: | Criminal Code, s 689 |
Case References: | Allegretta v The Queen [2003] WASCA 17 Christophers v The Queen (2000) 23 WAR 106 Crisafio v The Queen [2003] WASCA 104 James v The Queen [2000] WASCA 100 Jones v The Queen (1997) 191 CLR 439 Longman v The Queen (1989) 168 CLR 79 M v The Queen (1994) 181 CLR 487. , Morris v The Queen (1987) 163 CLR 454 Mraz v The Queen (1955) 93 CLR 493 Bromley v The Queen (1986) 161 CLR 315 Carr v The Queen (1988) 165 CLR 314 Crampton v The Queen (2000) 206 CLR 161 Doggett v The Queen (2001) 208 CLR 343 Gipp v The Queen (1998) 194 CLR 106 Glennon v The Queen (1994) 179 CLR 1 Kailis v The Queen (1999) 21 WAR 100 MFA v The Queen (2002) 193 ALR 184 R v BWT (2002) 54 NSWLR 241 R v Spencer [1987] 1 AC 128 Salman v The Queen [2001] WASCA 237 Vrisakis v Australian Securities Commission (1993) 9 WAR 395 Wilde v The Queen (1988) 164 CLR 365 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : WOODS -v- THE QUEEN [2003] WASCA 252 CORAM : MURRAY ACJ
- STEYTLER J
HASLUCK J
PUBLISHED : 24 OCTOBER 2003 FILE NO/S : CCA 18 of 2003 BETWEEN : IAN DUDLEY WOODS
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Appeal against conviction - Sexual penetration offences - Whether verdicts unsafe and unsatisfactory - Inconsistencies in complainant's evidence - Leave to appeal refused
Legislation:
Criminal Code, s 689
(Page 2)
Result:
Leave to appeal refused
Category: B
Representation:
Counsel:
Applicant : Mr I D Hope
Respondent : Mr B Fiannaca
Solicitors:
Applicant : Ian Hope
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Allegretta v The Queen [2003] WASCA 17
Christophers v The Queen (2000) 23 WAR 106
Crisafio v The Queen [2003] WASCA 104
James v The Queen [2000] WASCA 100
Jones v The Queen (1997) 191 CLR 439
Longman v The Queen (1989) 168 CLR 79
M v The Queen (1994) 181 CLR 487
Morris v The Queen (1987) 163 CLR 454
Mraz v The Queen (1955) 93 CLR 493
Case(s) also cited:
Bromley v The Queen (1986) 161 CLR 315
Carr v The Queen (1988) 165 CLR 314
Crampton v The Queen (2000) 206 CLR 161
Doggett v The Queen (2001) 208 CLR 343
Gipp v The Queen (1998) 194 CLR 106
Glennon v The Queen (1994) 179 CLR 1
Kailis v The Queen (1999) 21 WAR 100
(Page 3)
MFA v The Queen (2002) 193 ALR 184
R v BWT (2002) 54 NSWLR 241
R v Spencer [1987] 1 AC 128
Salman v The Queen [2001] WASCA 237
Vrisakis v Australian Securities Commission (1993) 9 WAR 395
Wilde v The Queen (1988) 164 CLR 365
(Page 4)
1 MURRAY ACJ: I have had the advantage of reading in draft the reasons to be published by Hasluck J. They express completely for me the reasons why I joined in making the order that leave to appeal should be refused in this case.
2 STEYTLER J: I have had the advantage of reading the judgment of Hasluck J. I am in general agreement with it.
3 As to ground 1, which contends that the verdicts of the jury were unsafe and unsatisfactory, it will be apparent from what Hasluck J has said that this was a case in which the applicant and his alleged co-offender denied, in the course of their videotaped records of interview (they elected not to give evidence at the trial), that the complainant had ever been in a motor vehicle with them on the night in question. The case was consequently one in which the defendants' case was that the complainant had manufactured the whole of her evidence against them.
4 I agree with Hasluck J, for the reasons which he has given, that the various inconsistencies, discrepancies and difficulties in the evidence of the complainant, taken together, were not such as should lead to the conclusion that it was not open to the jury to accept the critical features of her evidence as sufficient to constitute proof, beyond reasonable doubt, that the applicant was guilty of the offences charged. All of these inconsistencies, discrepancies and difficulties would have been apparent to the jury. They were commented on by the applicant's counsel and also, to some extent, by the trial Judge. As Hasluck J has said, to the extent that any such matters could properly be raised as adversely affecting the complainant's credibility and reliability, the significance thereof, and the combined effect of all of these matters, were issues within the capacity of the jury to assess in the light of the impression made by the complainant in the witness box. It is important to bear in mind in this respect that, in answering the question whether it was, upon the whole of the evidence, open to the jury to be satisfied beyond reasonable doubt that an accused person was guilty, the Court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence or the consideration that the jury has had the benefit of having seen and heard the witnesses: M v The Queen (1994) 181 CLR 487 at 493, per Mason CJ and Deane, Dawson and Toohey JJ.
5 As to the second and third grounds of appeal, while there was a significant delay between the time of commission of the alleged offences and the making of a complaint to the police, that delay (of about eight or
(Page 5)
- nine months) was not shown to have resulted in any real prejudice to the applicant in the preparation or presentation of his defence.
6 While there was a somewhat half-hearted suggestion that the applicant and his alleged co-offender had lost the opportunity of questioning others who might have shed light on their movements, and on those of the complainant, on the night in question, nothing specific could be pointed to in that respect. Also, while it was suggested that the motor vehicle in which the offences were said by the complainant to have been committed had been sold by the time that the two men were first interviewed by police, nothing seems to me to turn on this. Counsel for the applicant sought to contend that, if the two men had still had access to the vehicle, they might have been able to demonstrate that its tailgate could not have been used in the manner described by the complainant. However, if that was the fact, the two men could have said so at the trial. Rather, as I have earlier mentioned, they chose not to give evidence.
7 For these reasons, and for those expressed by Hasluck J in respect of these grounds of appeal, it seems to me that grounds 2 and 3, also, have no substance.
8 It was for these reasons that I concurred in the making of an order, at the conclusion of the hearing of the appeal, that the application for leave to appeal should be dismissed.
9 HASLUCK J: This is an application for leave to appeal against conviction. The applicant, Ian Dudley Woods, was convicted in the Perth District Court on 23 January 2003 of two counts of aggravated sexual penetration without consent. He was sentenced to 7 years' imprisonment on each count to be served concurrently.
10 The indictment presented by the Crown against Mr Merritt and the applicant was as follows:
"(1) On 4 December 1999 at Wilson, GRAHAM RAYMOND MERRITT and IAN DUDLEY WOODS sexually penetrated ELIZABETH MOSELEY without her consent
AND THAT GRAHAM RAYMOND MERRITT and IAN DUDLEY WOODS were in company with each other
(2) AND FURTHER that on the same date and at the same place, GRAHAM RAYMOND MERRITT and IAN
(Page 6)
- DUDLEY WOODS sexually penetrated ELIZABETH MOSELEY without her consent
- AND THAT GRAHAM RAYMOND MERRITT and IAN DUDLEY WOODS were in company with each other."
Background
11 The complainant, Elizabeth Moseley, said in evidence at the trial that on 4 December 1999 she was living part of the time in Rossmoyne and part of the time in Bentley with various relatives. On the day in question she went to Kelmscott to visit some more relatives and got there about noon. Later in the day her nephew, Mark Little, drove her to her sister-in-law's home in Bentley where she and Mr Little shared some bottles of beer. She said that this sparked her up and left her wanting more beer.
12 The complainant then asked Mr Little to take her to see her baby granddaughter at a place in Bentley. She stayed briefly at the relevant premises and then went to an upstairs flat where she intended to pay her respects to the Woods family who had suffered a recent bereavement. By this time it was close to 8.00 pm.
13 The complainant said that there were quite a number of people sitting around and she suspected that some of them were using amphetamines. She herself did not use amphetamines but admitted to smoking one cone of cannabis which had little effect upon her. She denied drinking alcohol whilst at the flat in question.
14 In the course of her address to the jury the learned trial Judge summed up the next phase of the complainant's evidence in this way:
"She recognised both Mr Woods and Mr Merritt at the premises and spoke to them briefly before asking them for a lift to the train station so she could make her way back to Kelmscott. She said they agreed but told her they would have to stop off on the way at a hotel or motel to get some amphetamines. She apparently thought nothing of this and eventually she said she left in their company and got into an old white station wagon which she believed belonged to Mr Merritt's wife. Her recollection in her evidence before you was that Mr Woods was driving with Mr Merritt in the front passenger seat and she
(Page 7)
- behind in the rear passenger seat behind the driver. You will recall that her evidence, I think on another occasion, had the men in different positions.
They drove to Kent Street weir having passed a number of places and by this stage the complainant said that she was somewhat suspicious though not frightened because she trusted the two men. However, on arrival at the Kent Street weir the two got out of the car and pulled the back seat down. She was then instructed, she said in her evidence before you, by Mr Woods to remove her shorts and underwear which she did after being told to get out of the vehicle.
The complainant then laid down or somehow came to be lying down in the back of the car and she said that Mr Merritt then got on top of her and placed his penis in her vagina. At the same time she said Mr Woods was in the front of the vehicle or behind her in that sense holding or pinning back her arms as she demonstrated to you in her evidence in the witness box. It's those events that constitute count 1.
After this she said that count 2 occurred when Mr Merritt got off her and Mr Woods took his place and then whilst Mr Merritt held the complainant's arms down, as previously demonstrated by her, she said Mr Woods sexually penetrated her by placing his penis in her vagina. It's those acts that constitute count 2 on the indictment."
15 The complainant said in evidence that she complied with the instructions given to her at the weir because she was frightened that the accused would hurt her unless she obeyed them. She had no thoughts of running away because it was dark and quite an isolated spot. According to her, the two men drove her back to the block of flats and from there she went to another block of flats where she spent the night in a communal laundry because the person she was seeking was not at home. She made it clear in her evidence that she did not consent to having sex with either of the accused persons at Kent Street weir.
16 In the course of her evidence she spoke of having a recollection that she mentioned something of what had happened to her nephew the following morning, but he took no notice of her. Eventually, about a week later she decided to tell a friend about the allegations and this led to her attending upon a Dr McBride.
(Page 8)
17 Dr McBride gave evidence to the effect that she had been a medical officer with the Sexual Assault Resource Centre known as SARC since 1992. She recalled seeing the complainant on the afternoon of 11 December 1999 at which time the complainant seemed extremely distressed. Because the complainant was distressed and said she was feeling suicidal, Dr McBride considered that it was not appropriate to conduct a physical examination and did not do so. Had it not been for the complainant's condition she would have conducted a vaginal examination. It seems that in the course of that attendance Dr McBride obtained information that both men had also anally penetrated her and one of the men involved had a knife.
18 The complainant gave evidence at the trial that shortly after the incident at the weir she attempted to commit suicide by taking some sleeping tablets. She believed that she was admitted to Royal Perth Hospital but admitted under cross-examination that there was no note of such admission in that Hospital's notes. Further evidence was given at the trial by Detective Keen that there was no record of her being admitted to Sir Charles Gairdner Hospital at this time for treatment.
19 The complainant said in evidence that she eventually went to the police about the matter, being about eight or nine months after it happened. This led to enquiries being made as a result of which the applicant was interviewed in respect of the matter on 20 December 2000.
The applicant
20 The applicant did not give evidence at the trial. However, the Crown case included the unsworn statement of each of the accused in their respective video taped records of interview.
21 In essence, Mr Merritt said that he could recall very little about the night of 4 December 1999 because he was very drunk and he had been smoking cannabis. He admitted that he had his wife's white Magna station wagon on the night in question but could not recall seeing the complainant on that evening. He could, however, recall meeting up with and drinking with the applicant in Northbridge on the preceding evening.
22 The applicant said from the outset in his video taped record of interview that the complainant was dreaming up the allegations against him. He acknowledged that he knew her and saw her at the wake on the relevant evening but denied that he offered her a lift and denied that she left with him and Mr Merritt as alleged. In effect, the applicant said that
(Page 9)
- the complainant's allegations were totally untrue and there was no sexual contact between them that night.
23 I note in passing that at the trial of the action the complainant was cross-examined vigorously about alleged inconsistencies between statements she had made to the police and at the preliminary hearing and the evidence-in-chief given by her at the trial of the action. She was cross-examined also about her delay in complaining of the matters the subject of the indictment and about the effect of her drinking habits on the accuracy of her evidence. She was cross-examined also about whether she had spoken of a knife being used. It was common ground that by the time of the trial the station wagon had been sold.
The first ground of appeal
24 By his first ground of appeal, the applicant contended that the verdicts of the jury were unsafe and unsatisfactory having regard to the following matters:
"(a) material inconsistencies of the complainant's evidence both at trial and in respect of prior inconsistent statements;
(b) the exclusion of opportunity to verify the uncorroborated evidence of the complainant;
(c) the embarrassment of the accused in having to respond on 20 December 2000 to an alleged incident on 4 December 1999;
(d) the lack of recent complaint;
(e) the required standard of proof.
Particulars
(a) Material inconsistencies included:
(1) The complaint to a doctor that the complainant had been anally and vaginally penetrated differed from the complainant's evidence of vaginal penetration only.
(Page 10)
- (2) The complainant notified the doctor that an offender held a knife, against her evidence which excluded a knife.
(3) At the preliminary hearing the complainant stated that when the sexual penetration occurred, one of the offenders held her hands from the back seat by holding her hands up behind her back, whereas at the trial the complainant stated that the back seat was laid down and her hands were held above her head.
(4) The complainant notified the Court at the preliminary hearing that she had spend 1½ hours going through her statement with the prosecutor before attending Court. This was demonstrated to be a fiction.
(5) The complainant stated that she had attended at the Royal Perth Hospital on 5 December 1999 being the day after the alleged assaults, and that she received treatment as a consequence of an attempted suicide. This was a fiction.
- (b) The complainant had ingested intoxicating substances on the day of the alleged offence.
(c) The complainant complained that at the time of the provision of testimony her memory was unreliable.
(d) The complainant's evidence could not be verified:
(1) The complainant refused examination of her genitalia by a medical practitioner.
(2) The complainant described being in the company of others known to her when she left with the two convicted men but was unwilling to divulge the names of others present.
(3) The clothing worn by the complainant at the time of the alleged offence had disappeared.
(e) The interviewing of the applicant over one year after the alleged incident caused the applicant to lose the means of
- testing the complainant's allegations in a way which would have been open to him had there been no delay."
Legal principles
25 The first ground of appeal requires that consideration be given to s 689(1) of the Criminal Code which provides that an appeal shall be allowed where the verdict of the jury is unreasonable, or cannot be supported by the evidence, or was pursuant to a wrong decision on a question of law or that on any ground there was a miscarriage of justice. The question becomes, by way of a gloss upon the provision, whether the verdict is unsafe or unsatisfactory and the test may be put succinctly in terms of the question whether the appellate court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the accused: M v The Queen (1994) 181 CLR 487 (supra) at 493; Jones v The Queen (1997) 191 CLR 439 at 452.
26 I note that these authorities were cited with approval by Roberts-Smith J who delivered the principal judgment on behalf of the Court of Criminal Appeal in Allegretta v The Queen [2003] WASCA 17 at par 34.
27 The statutory proviso, which allows for dismissal of the appeal if no substantial miscarriage of justice has actually occurred, recognises that not every departure from the proper application of the law warrants setting aside a conviction. It must appear that the accused has lost a chance which was fairly open to him of being acquitted: Mraz v The Queen (1955) 93 CLR 493 at 514.
28 The decided cases indicate that the duty of the appellate court is to make an independent assessment of the evidence. The independent assessment of the evidence should be directed both to the sufficiency and to the quality of the evidence: Morris v The Queen (1987) 163 CLR 454.
Conclusion as to first ground of appeal
29 It will be apparent from the particulars forming part of the first ground of appeal that the applicant sought to rely upon various alleged inconsistencies and discrepancies in statements made by the complainant before trial and at the trial. The discrepancies concerned such matters as the nature of the penetration, whether in fact the complainant had been threatened with a knife, whether her mental health and drinking habits permitted her to distinguish fiction from reality, whether her hands had been held from the backseat as alleged by the complainant, and whether
(Page 12)
- any weight can be given to the suggestion that she had attended hospital soon after the incident as a result of a suicide attempt. There was also an issue as to the exact sequence of events at the weir including the question of whether the tailgate of the vehicle was down and the way in which items of clothing had been removed.
30 In weighing up the matters advanced in support of this ground of appeal, it is necessary to take account of the fact that the applicant had an opportunity at the trial to give evidence bearing upon the events that were said to have taken place at the weir and as to his movements on the night in question. It must also be kept in mind that the jury was directed by the learned trial Judge in the course of her summing up to make a careful appraisal of the evidence presented in support of the Crown case. The jury was instructed that the Crown was required to prove the facts and matters comprising its case beyond reasonable doubt.
31 To my mind, the jury was entitled to conclude in the circumstances of the present case that the inconsistencies in the evidence of the complainant in the present case were not fundamental in nature, but were consistent with an honest witness endeavouring to recall an incident that had occurred approximately one year before the trial, in circumstances where her capacity to recall particular details was compromised by her intake of alcohol and cannabis over a period of time. While she was shown to be unreliable in a number of aspects of her evidence, she was consistent in relation to the essential circumstances of the offences. The learned trial Judge correctly directed the jury that inconsistencies might assist the jury to assess the reliability of a witness' evidence, but it was for them to consider and assess the relevance of any particular inconsistencies.
32 The matters relied upon in support of this ground of appeal which was said to render the verdict unsafe were all matters which were fairly and properly left to the consideration of the jury for their determination. To the extent that any such matter could be properly raised as adversely affecting the complainant's credibility and reliability, the significance of each matter, and the combined effect of all of them, were issues within the capacity of an ordinary jury to assess in light of the impression made by the complainant in the witness box.
33 In my view, none of the matters raised rendered the offences described by the complainant either impossible or implausible. In all the circumstances, it was open to the jury to accept the complainant's evidence in relation to the sexual acts constituting the offences and to
(Page 13)
- find, beyond reasonable doubt, that the applicant was guilty of the offences. It follows that the jury's verdict was not unreasonable and it was sufficiently supported by the evidence before the Court. It could not be said of the jury's verdict in the present case that the discrepancies complained of were such as to significantly undermine the probative force of the prosecution case in such a way as to lead an appellate court to conclude that, after making full allowance for the advantages enjoyed by the jury, there was a significant possibility that an innocent person had been convicted.
34 Accordingly, I consider that leave to appeal should not be granted in respect of this ground of appeal.
The second and third grounds of appeal
35 The second and third grounds of appeal were expressed in this way:
"2. The Learned Trial Judge erred in failing to be satisfied that the circumstances of the particular case justified a warning that it would be unsafe to convict on the uncorroborated evidence of the complainant.
3. The Learned Trial Judge erred in failing to warn the jury that as a consequence of the delay in the prosecution, the evidence of the complainant could not be adequately tested and that it would be dangerous to convict on the complainant's evidence alone without scrutinising the complainant's evidence with great care."
36 At the hearing of the appeal counsel for the applicant conceded that these two grounds of appeal were really two aspects of a basic contention that the learned trial Judge had failed to give a sufficiently emphatic warning to the jury as to the dangers of convicting the applicant upon the uncorroborated evidence of the complainant in circumstances where a complaint was not made until eight or nine months after the event in question.
37 Counsel for the applicant relied upon the reasoning in Longman v The Queen (1989) 168 CLR 79 to the effect that in circumstances where a significant period of time has elapsed between the event complained of and the complaint the jury should have been told that, as the evidence of the complainant could not be adequately tested in these circumstances owing to the delay, it would be dangerous to convict on the complainant's evidence alone unless the jury, scrutinising the evidence with great care,
(Page 14)
were satisfied of the truth and accuracy of the complainant's evidence. To leave a jury without a full appreciation of the danger of convicting in such circumstances was to risk a miscarriage of justice.
38 Counsel for the applicant sought to underpin these two grounds of appeal by referring to recent decisions of the Court of Criminal Appeal in this State in Christophers v The Queen (2000) 23 WAR 106, Crisafio v The Queen [2003] WASCA 104 and Allegretta (supra). In particular, counsel relied upon the reasoning of McHugh J in Longman (supra) at 107 to the effect that if the evidence in a particular case discloses any circumstances which suggest that the evidence of the complainant may be unreliable, the trial Judge has a duty to make the jury aware of the dangers concerning that person's evidence. As in any case where the prosecution depends solely upon the evidence of one witness, the trial Judge is entitled to point out that the evidence of the complainant requires careful scrutiny before acting upon it. But cases will frequently arise where the circumstances will require a stronger warning.
39 It emerges from the decided cases that the primary factor that gave rise to the need for a specific warning in the case of Longman (supra) was the length of the delay of complaint. The decided cases indicate also that even where a specific direction is required concerning the need to scrutinise the evidence of a complainant in a sexual case, there is no prescribed or ritualistic formulation for such a direction. It must be tailored to the circumstances of the case. What must be brought home to the jury is the need to be "persuaded of the truth and accuracy of the evidence before they may place reliance upon it": James v The Queen [2000] WASCA 100 at par 22.
40 Unlike the decided cases referred to in early discussion, the delay in the present case was not of the same order as the lengthy delays that occurred in the cases relied upon by the applicant. Put shortly, the eight or nine month long delay in the present case between the time of the alleged offences and the time of complaint to the police was comparatively short as contrasted with the kind of delay that was thought to warrant a specific direction in cases such as Longman (supra), Christophers (supra) and Allegretta (supra). I am not persuaded that there was any prejudice to the applicant's ability to test the complainant's evidence by reference to inconsistencies in her accounts and other matters of the kind brought into issue by the first ground of appeal.
41 Further, the learned trial Judge emphasised in the course of her summing up that the Crown case stood or fell on the jury's assessment of
(Page 15)
the credibility and reliability of the complainant's evidence. It was made clear to the jury that they could only convict on the complainant's evidence if it satisfied them beyond reasonable doubt of the accused's guilt. Importantly, there was no request from counsel for the applicant at trial for a direction from the trial Judge as to the consequence of delay as it affected the applicant's ability to test the complainant's allegations.
42 Accordingly, in all the circumstances, I am of the view that the learned trial Judge did not err in not giving a specific direction as to the consequences of delay or as to the dangers of conviction on the uncorroborated evidence of the complainant. It follows that in my view the application for leave to appeal on this ground also must be dismissed.
Summary
43 At the conclusion of the hearing of the appeal an order was made that the application for leave to appeal would be dismissed upon the basis that reasons in support of the order would be provided in due course. These are my reasons for concluding that leave to appeal should be refused.
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