Court of Appeal (WA)|2000-08-02|Before: Murray J, Kennedy J, Wallwork J

Armitage v The Queen [2000] WASCA 197 (2 August 2000)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : ARMITAGE -v- THE QUEEN [2000] WASCA 197

Criminal law and procedure - Indecent dealing - Complainants twin girls aged nearly 11 at time of offences - Whether requirement for corroboration warning - Whether requirement for direction as to meaning of corroboration

Chidiac v The Queen [1991] HCA 4; (1991) 171 CLR 432

Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193

Gill v The Queen [1999] WASCA 68

1 KENNEDY J: I have had the benefit of reading in draft the reasons to be published by Murray J. Generally for those reasons, I agree that the applicant's application for leave to appeal against his convictions should be allowed but that the appeal should be dismissed.

2 WALLWORK J: On 11 February 1999 the applicant was convicted after a trial of two charges of indecently dealing with two children under the age of 13 years. The children concerned were twin sisters aged 10 years at the time of the alleged offences. The charges were laid in the same indictment and were tried together.

3 The defence of the applicant was that he denied that the alleged offences had been committed by him. Evidence was given at the trial to the effect that the mother of the two girls concerned, who was also the mother of the applicant's de facto wife, had not liked him and had asked his de facto wife "quite a few times" to leave him. Evidence was called from a fourth sister who in effect said that she had heard her mother, the mother of the two alleged victims, accuse a third person of having sexually interfered with her (the sister).

4 In essence, the defence was a denial of the offences alleged. An explanation offered for the charges having been made was that there had been a possible concoction of them in which the mother and the twins were concerned.

5 This appeal is not concerned with ascertaining the truth concerning the allegations which were made by the defence. Nothing I say hereafter should be taken as in any way suggesting that the allegations against the two girls and their mother are correct. My comments are solely directed as to the manner in which the trial was conducted.

6 As the trials of the two charges were heard together, problems immediately arise concerning the safeness of the verdicts of guilty on each charge. In Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292 it was held that the trial of charges of sexual offences against three boys aged between 10 and 13 should not have been held together because the evidence admissible on each charge was not admissible on the others.

7 In the present case, the child concerned in the first indictment (hereinafter called A) was not sure that the applicant had put his penis into her hand. That was the alleged offence. A gave evidence that shortly after that alleged offence she had observed the applicant put his penis into the hand of her sister (hereinafter referred to as B).

8 In the course of her summing up, when dealing with the second count against the child B, the learned trial Judge said:

"Depending on your view of a complainant, if you accept the evidence for example of A as truthful and cogent, if you believe her, you are entitled to convict the accused on that evidence alone, so long as you are satisfied beyond reasonable doubt of guilt. You can see ladies and gentlemen, that if that were not so, sexual offending would very often go unpunished because often these offences occur when only two people are present. Of course in this case, if you accept A's evidence and B's evidence, there is corroboration for count 2 in the sense that A said she was present and actually saw the accused put his penis into B's hand on that occasion. It is just in relation to count 1 that the only persons present, on the evidence of A, were herself and the accused, so there is nobody else. It is A's evidence or nothing."

9 The evidence from the two children at the trial had been that at different times on the same day they had each played a game with the applicant pursuant to which they had turned their backs on him. He had put various articles such as lemons and oranges into their hands. The Crown allegation was that following the placing of those sorts of objects in their hands, on each occasion the applicant had put his penis into the hand of the child concerned. After he had done that with the first child she had gone inside. The two children had then come out and the applicant had played the game again with the second child.

10 Further on in the learned trial Judge's address to the jury, she said:

"If in this case you were satisfied that the accused did place his penis into the hands of each girl as is alleged, that would amount to dealing with that girl. You appreciate that in count 1, the complainant A did not see what the accused put in her hands. She told you she first thought it was a thumb. I think she said it felt like skin. She thought it was a thumb and then realised that it was a penis but she never actually saw it while she touched it. She said that when she turned around - and I think she told you she turned around slowly - she saw the accused's hands and they were down over his crotch area, is what she described. Of course in count 2, if you accept A's evidence she saw the accused put his penis into B's hands. And if you accept her evidence about that you can use that as part of all the circumstances that you consider when you are looking at count 1. In other words, if you accept that the game was played in a certain way in count 2, you can use that as evidence of the circumstances that may assist you as to whether you are satisfied beyond reasonable doubt that it was his penis put into A's hand in count 1."

11 It can be seen from the last few lines in the above passage that the learned trial Judge was telling the jury that they could use the evidence as to count 2 in considering whether the applicant was guilty of count 1. That highlights a problem with this trial, as on the decision in Hoch (supra), the evidence concerning count 2, in my view, should not have been admitted against the applicant on count 1. Therefore there should have been no joinder of the counts or trials together in the first place. My reasons for that view are as follows:

12 In Hoch, which concerned alleged sexual offences against three boys aged between 10 and 13 years, where the trials were heard together, Mason CJ, Wilson and Gaudron JJ said at 296:

"In such cases as the present the similar fact evidence serves two functions. Its first function is, as circumstantial evidence, to corroborate or confirm the veracity of the evidence given by the other complainants. Its second function is to serve as circumstantial evidence of the happening of the event or events in issue. In relation to both functions the evidence, being circumstantial evidence, has probative value only if it bears no reasonable explanation other than the happening of the events in issue. In cases where there is a possibility of joint concoction there is another rational view of the evidence. That rational view - viz joint concoction - is inconsistent both with the guilt of the accused and with the improbability of the complainants having concocted similar lies. It thus destroys the probative value of the evidence which is a condition precedent to its admissibility."

"Thus in our view the admissibility of similar fact evidence in a case such as the present depends on that evidence having the quality that it is not reasonably explicable on the basis of concoction. That is a matter to be determined, as in all cases of circumstantial evidence, in the light of commonsense and experience ... On the other hand, if the depositions or statements indicate that the complainants have a sufficient relationship to each other and had opportunity and motive for concoction then as a matter of commonsense and experience the evidence will lack the degree of probative value necessary to render it admissible...In the present case it is clear from the evidence that the several complainants had a close relationship as well as opportunity to concoct their accounts of the offences charged. One complainant was ill-disposed towards the applicant even before the events the subject of the counts in the indictment were said to have taken place. There is no feature of the case which displaces concoction as a reasonable explanation of the several counts. The evidence of the several complainants lacked the requisite probative force necessary to render it admissible as similar fact evidence in relation to the other offences charged. There was therefore a miscarriage of justice by reason that the evidence was wrongly admitted and by reason of the refusal of the application for separate trials."

14 With respect to the question of separate trials, in De Jesus [1986] HCA 65; (1986) 22 A Crim R 375 when discussing the judgment of the House of Lords in Boardman [1975] AC 421 Gibbs CJ said at 377:

"It was accepted by a majority of their Lordships that if evidence in relation to one count was not admissible on another count there should have been no joinder of the counts. Lord Hailsham of Marylebone expressed this view succinctly (at 447) where, dealing with counsel's argument, he said:

'Strictly speaking, it was submitted that each boy's evidence was inadmissible in considering the other charge. This is somewhat surprising, since, of course, in that event there should have been separate trials'."

15 In Boardman, Lord Cross of Chelsea at 459 had said:

"If they are tried together the Judge will, of course, have to tell the jury that in considering whether the accused is guilty of the offence alleged against him by A, they must put out of mind the fact - which they know - that B and C are making similar allegations against him. But, as the Court of Criminal Appeal said in Sims [1946] KB 531 at 536, it is asking too much of any jury to tell them to perform mental gymnastics of this sort. If the charges are tried together it is inevitable that the jurors will be influenced consciously or unconsciously by the fact that the accused is being charged not with a single offence against one person, but with three separate offences against three persons. It is said, I know, that to order separate trials in all these cases would be highly inconvenient. Insofar as this is true, it is a reason for doubting the wisdom of the general rule excluding similar fact evidence. But so long as there is that general rule the courts ought to strive to give effect to it loyally and not, while paying lip service to it, in effect let in the admissible evidence by trying all the charges together."

"In Sutton (a case arising under the law of South Australia) this Court applied the same principle to cases of rape. In that case I said (at 531; 533):

'Before us it was accepted by counsel for the prosecution that where an accused is charged with a number of sexual offences, the charges should not be tried together if the evidence on one count is not admissible on another count. That was the view taken by the majority of the House of Lords in Boardman and it is a view consistent with justice ....'"

"Sexual cases, however, are peculiarly likely to arouse prejudice against which a direction to the jury is unlikely to guard."

"Since the evidence on one count was inadmissible on the other, Sutton required it to be held that the two rapes should not have been joined in the one indictment ... it has been settled at least since Stirland v The DPP [1944] AC 315 at 327-328 that it is not necessarily fatal to an appeal that counsel for the accused at the trial failed to raise a necessary objection. Of course if it were thought that counsel had deliberately refrained at the trial from submitting that the joinder was impermissible in order to gain some tactical advantage, the case would be different, but it is apparent that in the present case counsel for the applicant simply proceeded on a misunderstanding, shared by counsel for the Crown, as to the correct principal to be applied. Regrettable though it is, I am forced to the conclusion that the convictions cannot be allowed to stand. The joinder of the charges was wrongly made and was calculated to have a seriously prejudicial effect on the prospects of the applicant securing an acquittal on any charge."

19 In my view the above law applies to this case, even though the required objections were not taken by defence counsel at the trial. In the present case there was a close relationship between the two girls and there was the alleged antipathy of the mother towards the applicant. The defence was partly based on the possibility of concoction. Had an application been made to exclude the similar fact evidence and for separate trials, in my view both applications should have been upheld. On the authority of Hoch (supra) the evidence on count 2 should not have been admitted when the jury were considering count 1. I realise that no application was made to exclude that evidence.

"The learned trial Judge erred in law in telling the jury:

'Of course in count 2, if you accept A's evidence, she saw the accused put his penis into B's hands, and if you accept her evidence about that you can use that as part of all the circumstances that you consider when you are looking at count 1. In other words, if you accept that the game was played in a certain way in count 2, you can use that as evidence of circumstances that may assist you as to whether you are satisfied beyond reasonable doubt that it was his penis put into A's hand in count 1'."

21 That is only the first part of ground 2, but raises squarely the question of whether the evidence on count 2 should have been admissible and used by the jury when considering count 1 in the indictment.

22 In my opinion, as stated above, because of all the circumstances, the evidence as to count 2 was not admissible on the trial of count 1. In my view that is sufficient to dispose of this appeal, but as they were fully argued, I will deal with the other grounds.

"The learned Judge erred in telling the jury that there was no requirement for corroboration of the accounts of the children and then proceeding to state that if the evidence of wrongdoing on count 2 is accepted this could be corroborative of A's account on count 1."

That ground is similar to ground 2 and I will not discuss it further.

"The learned trial Judge erred in failing to give a corroboration warning to the jury and ought to have been satisfied that such a warning was justified in the circumstances of the case."

25 Various particulars are given of that ground including the ages of the complainants; the poor relationship of the mother of the complainant and the accused; the allegation that the mother had on previous occasions sought to damage the accused's reputation; the absence of any suggestion that the appellant had threatened the twins or told them not to mention the incident to anyone; the defence evidence suggesting that the twins' account was fabrication; "having regard to other evidence in the case".

26 In the course of arguing ground 4, counsel told this Court that the inference which the defence had been inviting the jury to form was that the twins were very young, 10 at the time, had been put up to their allegations by the mother, who had a very poor relationship with both the appellant and the appellant's girlfriend; that there was a poor relationship was very much confirmed by the nature of the de facto's evidence; that there was evidence from another sister who gave evidence along the lines that the mother had made an accusation of sexual interference with her by someone (not the applicant) which was entirely falsely based.

27 In arguing this ground, counsel relied on the decision of the High Court in Robinson v The Queen [1999] HCA 42; (1999) 73 ALJR 1314 where in a joint judgment of Gleeson CJ, McHugh, Kirby, Hayne and Callinan JJ at 13-17 it is said:

"In all cases of serious crime it is customary for Judges to stress that where there is only one witness asserting the commission of the crime, the evidence of that witness must be scrutinised with great care before a conclusion is arrived at that a verdict of guilty should be brought in; but a direction of that kind does not of itself imply that the witness's evidence is unreliable."

28 Their Honours said in that case, which had involved an allegation of unlawful intercourse with a child under the age of 12 years where the complainant had been 8 years at the time of the offences and 11 years at the trial, that:

"In the present case there should have been no difficulty in framing a warning which did not transgress the prohibition in sub-section (3) of s 632 which section provided:

(1) A person may be convicted of an offence on the uncorroborated evidence of one witness, unless this code expressly provides to the contrary.

(2) On the trial of a person for an offence a Judge is not required by any rule of law or practice to warn the jury that it is unsafe to convict the accused on the uncorroborated testimony of one witness.

(3) Subsection (1) or (2) does not prevent a Judge from making a comment on the evidence given in the trial that is appropriate to make in the interests of justice, but the Judge must not warn or suggest in any way to the jury that the law regards any class of complainants as unreliable witnesses."

29 In this case the learned trial Judge should have directed the jury to the effect that the evidence concerning the first count, which was solely the evidence of the child concerned, "must be scrutinised with great care before a conclusion is arrived at that a verdict of guilty should be brought in".

30 In this case, the learned trial Judge, rather than telling the jury that the evidence of the child should be scrutinised with great care said:

"So ladies and gentlemen, you look at that issue carefully. It's a matter for your judgment in assessing the girls' credit and whether you believe them or not. It is also important that you appreciate that there is no requirement in law that the evidence of a complainant be corroborated or supported by any other evidence. Depending on your view of a complainant, if you accept the evidence for example of A as truthful and cogent, if you believe her, you are entitled to convict the accused on that evidence alone so long as you are satisfied beyond a reasonable doubt of guilt. You can see ladies and gentlemen that if that were not so, sexual offending would very often go unpunished because often these offences occur when only two people are present."

31 In my view it was not sufficient in this case for the learned trial Judge to tell the jury to look at the issue carefully. The warning should have been stronger than that. Secondly, to add after having given the warning, that "if that were not so sexual offending would very often go unpunished....", in my view, detracted from the warning to look at the evidence carefully before convicting the applicant in this case.

32 Further, in dealing with the fact that the complaint had not been made for about a month after the alleged events, the learned Judge said:

"Now it's my duty to direct you that there are many reasons why victims delay in complaining as to what has happened to them. Sometimes we hear of the silence of children who keep sexual matters bottled up inside themselves often for years. There can be many reasons for this related to the age and the family circumstances of these children. For that reasons delay in making a complaint does not necessarily indicate that the complaint is false."

33 In my view it was not correct for the learned trial Judge to tell a jury that "sometimes we hear of the silence of children who keep sexual matters bottled up inside themselves, often for years." That would tend to reinforce the evidence of the children in a case like this.

34 Ground 4 should therefore be upheld due to an aggregate of matters which would have detracted from the safety of the verdicts of guilty: R v Ireland [1970] HCA 21; (1970) 126 CLR 321 at 331 where Barwick CJ said: "

"Quite clearly, in my opinion, an aggregate of faults, none of which if it were the only fault, would afford a justification for making an order for anew trial, may properly lead to the conclusion that the trial as a whole, had miscarried so that there should be an order for a new trial."

35 See also Leary v The Queen [1975] WAR 133 at 137 where Jackson CJ said:

"It was submitted for the Crown that notwithstanding any defects and irregularities in the trial which we might consider had occurred, the verdicts should stand as there has been no substantial miscarriage of justice. I cannot agree with this. It is probably true that not each matter raised in the grounds of appeal would call for the convictions to be set aside; but taken together they lead to the conclusion, in my opinion, that the applicants have not had in all respects the fair trial to which the law entitles them. An 'aggregate of faults' may properly lead to a conclusion that a trial, as a whole, has miscarried: R v Ireland [1970] HCA 21; (1970) 126 CLR 321 at 331; [1970] HCA 21; [1970] ALR 727."

"Having told the jury that even though there was no requirement for corroboration there was potentially corroborative evidence, the learned trial Judge erred in law in failing to instruct the jury as to the meaning of corroboration."

37 There is no need to deal with that ground as it would not take the matter any further.

38 In accord with the law referred to in these reasons, in my view the appeals should be allowed, the convictions set aside, and retrials ordered.

39 MURRAY J: The applicant was indicted with two offences of indecent dealing with two girls, twins who were born on 18 June 1986. They were therefore aged 10 at the time of the alleged offences, on the same date, between 6 April and 22 May 1997. They were just short of their eleventh birthday. They were 12 when their evidence was recorded on video on 16 November 1998 for later presentation at the trial. The trial took place in the District Court on 10 and 11 February 1999. I shall follow the lead of Wallwork J and refer to the children as "A" and "B", count 1 of the indictment alleging an offence against A and count 2 an offence against B.

40 The trial of both offences took place together. It appears that no application was made to sever the trials under the Criminal Code (WA), s 585, and the offences charged, being a series of offences of precisely the same character, were certainly properly jointly indicted so that they might be jointly tried. With respect for the contrary view expressed by Wallwork J, it seems to me that the resolution of this application for leave to appeal against conviction does not require consideration of the law concerning the question of the power to present a joint indictment in this case, or the question whether, had an application been made, the trial Judge might or should properly have ordered separate trials, or whether she should have done so without an application.

41 As I have said no such application was made and this application for leave to appeal against the convictions which resulted is not grounded upon the proposition that in any event an order for separate trials should have been made. That would be a question involving a matter of procedure and there seems to me to be no necessary reason for this Court to conclude that, merely by reason of the fact that a joint trial was held, there was any fundamental error of a kind which would require the convictions to be quashed on the ground that the applicant had not been tried according to law: cf Glennon v The Queen [1994] HCA 7; (1994) 179 CLR 1.

42 The Crown case was very short. In truth it depended entirely upon the evidence of the children to whom I have referred. Count 1, with respect to the child A, was alleged to be the first incident which occurred. It happened at the home of the twins where they lived with their mother, father, an older brother and an older sister, to whom I shall refer as "C". The applicant had a defacto relationship with another older sister to whom I shall refer as "D". For a short time in April and May 1997 the applicant and D were staying with the family.

43 One afternoon during the school holidays the applicant and the twins were playing monopoly. A's evidence was that the applicant went outside for a cigarette. She followed. The applicant asked if she would like to play a game. She was to stand with her hands behind her back while he put things in her hand and asked her to guess what they were. She did that and a mandarin, a box and a pencil were put into her hand.

44 Then the applicant put into her hand something with skin on it. At first she thought it was a thumb. The applicant said if she could not guess she could squeeze the thing with her other hand. It is clear that A became suspicious about the identity of the thing, said she could not guess and turned around to go inside. The applicant had his hands in front of his crutch. A went inside and washed her hands. That was her evidence about count 1.

45 A decided she would get B to play the game and she would watch to see if the thing with skin was, as she suspected, the applicant's penis. She told B about the game and B agreed she would like to play. The two girls went outside and A asked the applicant "to play the game" with B. He agreed and A watched. Again, a mandarin, a box and a pencil were put in B's hand as she held it behind her back. Then A saw the applicant expose his penis and place it in B's hand. B asked if it was the applicant's thumb and again A said he told B to squeeze it with her other hand. B turned around quickly, told the applicant he was "disgusting" and the two girls ran inside. Both went to wash their hands.

46 The applicant also came inside and told the girls that they were not meant to look. He said that it was just a joke. A said she did not immediately say anything to anyone, but she told her mother about a month later what had occurred.

47 B's evidence was given in very similar terms about the incident concerning her, the second incident, which was count 2 on the indictment. It is clear that when the object with skin was placed in her hand she very soon suspected that it was the applicant's penis. She immediately looked around and saw that the applicant had his hands "over his private bit." But she appears not to have given evidence that she actually saw the applicant's penis exposed. B thought it was about two weeks after this incident that she and her sister told their mother about what had happened and both girls insisted that the incident did occur and it was not the case that they had fabricated their stories at the instigation of their mother.

48 The girls' mother was called by the Crown to give evidence. While giving her evidence in chief she does not appear to have been asked about a complaint made by the twins. Her evidence, particularly under cross-examination, was that the atmosphere in the house was not a happy one. Initially she had a reasonable relationship with the accused, but for no apparent reason so far as she was concerned, it deteriorated. She was asked about a conversation she had with her daughter D when she had left home at the age of 16. Her mother apparently asked her whether her father or any other male member of the family had sexually interfered with her. D was called by the defence and confirmed that that had occurred, but neither woman agreed that the mother had urged D to make any complaint.

49 It was put to the mother that she had alleged that her husband had interfered with the other daughter C. That was indeed the evidence given by C who was also called for the defence. The mother denied making any such accusation. She denied that she had procured the twins to make their allegations against the applicant because she disliked him, disapproved of the relationship with her daughter D and wanted to break it up.

50 The line taken by the defence is abundantly clear. It may well explain why there was no application for separate trials. The applicant gave evidence in his own defence. He agreed there had been an occasion when he played monopoly with the twins, but said that no incident such as that described by the girls occurred. He went outside only after D came and asked if he wished to have a cigarette and coffee with her. When he went outside he was soon joined by D who had made coffee for both of them. D gave evidence which confirmed that account.

51 The proposition put by the defence was therefore not that the twins themselves had any reason to concoct a story in the terms given in evidence, but that a possible explanation for the allegations was the animosity of the mother towards the applicant, particularly having regard to the fact that she was said to have made such allegations against her husband at a time of disagreement with him.

52 I need not set out the grounds of appeal. They are generally concerned with the directions given to the jury by the trial Judge in respect of the question of corroboration of the evidence given by each of the twins. Ground 2 contains an additional element of complaint about the direction of the trial Judge that the jury might use the evidence in relation to count 2 effectively as similar fact evidence in relation to count 1.

53 As to the question of corroboration, there is certainly no requirement of law in sexual cases for the jury to be directed that it is dangerous to convict on the uncorroborated evidence of the complainant; indeed the law is to the contrary: cf Robinson v The Queen [1999] HCA 42; (1999) 73 ALJR 1314 at 1316 - 1317, par [19] and par [20]. The Evidence Act 1906 (WA), s 50 provides:

"(1) In this section 'corroboration warning' in relation to a trial means a warning to the effect that it is unsafe to convict the person who is being tried on the uncorroborated evidence of one witness.

(2) On the trial of a person on indictment for an offence -

(a) the judge is not required by any rule of law or practice to give a corroboration warning to the jury in relation to any offence of which the person is liable to be convicted on the indictment; and

(b) the judge shall not give a corroboration warning to the jury unless the judge is satisfied that such a warning is justified in the circumstances."

54 The rule is one of general application. It has been the law since 1988. Further, since the Act was amended in 1992 there is now no special rule of this kind applicable to the evidence of children, whether sworn or unsworn, on the ground that as a class children are unreliable witnesses; Evidence Act, s 106D.

55 Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427 was a case in which the High Court considered the effect upon the directions which should be given to a jury, of the Crimes Act 1958 (Vic), s 61, a provision which effectively enacts in relation to sexual cases our Evidence Act, s 50 and s 36BD in respect of delay in making a complaint of the alleged offence. At 451 Toohey, Gaudron, Gummow and Kirby JJ said that:

"...the purpose of such legislation, properly understood, was to reform the balance of jury instruction, not to remove the balance. The purpose was not to convert complainants in sexual misconduct cases into an especially trustworthy class of witness. It was simply to correct what had previously been standard practice by which, based on supposed 'human experience' and the 'experience of courts', judges were required to instruct juries that complainants of sexual misconduct were specially suspect, those complained against specially vulnerable and delay in complaining invariably critical. In restoring the balance, the intention of the legislature was not to 'sterilise' complainants from critical comment where the particular facts of the case, and the justice of the circumstances, suggested that the judge should put such comments before the jury for their consideration. The overriding duty of the trial judge remains to ensure that the accused secures a fair trial."

56 Early in her charge to the jury the trial Judge told them that although, for good reason, there had been one trial of the two offences charged, what had in truth occurred was that there were two trials conducted together. A separate verdict was required upon each count and there was no requirement that the verdicts should be the same. The jury were invited to look carefully at the evidence of the girls in assessing their credit and making a judgment about whether the jury believed them or not. Her Honour continued:

"It's also important that you appreciate that there's no requirement in law that the evidence of a complainant be corroborated or supported by any other evidence. Depending on your view of a complainant, if you accept the evidence, for example, of [A] as truthful and cogent, if you believe her, you're entitled to convict the accused on that evidence alone so long as you're satisfied beyond reasonable doubt of guilt.

You can see, ladies and gentlemen, that if that were not so sexual offending would very often go unpunished because often these offences occur when only two people are present. Of course in this case if you accept [A's] evidence and [B's] evidence, there is corroboration for count 2 in the sense that [A] said she was present and actually saw the accused put his penis into [B's] hand on that occasion. It's just in relation to count 1 the only persons present, on the evidence of [A], were herself and the accused so there is nobody else. It's [A's] evidence or nothing."

57 The first ground of the application is that her Honour erred in failing to instruct the jury as to the meaning of corroboration. It is true that her Honour did not say expressly that by corroboration she meant some evidence independent of the witness to be corroborated which supported that evidence in a material particular and implicated the accused. But in this context, as Toohey J said in BRS v The Queen [1997] HCA 47; (1997) 191 CLR 275 at 290, "Corroboration is not a term of art and, in the present context, it means no more than confirmation."

58 In my opinion her Honour's direction adequately explained what she meant by corroboration. She equated the term with support for the particular complainant being considered, by other evidence, and the direction makes it clear that by that is meant the evidence of another witness. And so her Honour explained that in relation to count 2, A's and B's evidence was mutually corroborative. She contrasted that to the situation with respect to count 1 in respect of which her Honour made the clear and obvious point that if the jury was not prepared to accept and rely upon the evidence of A, there was no other evidence which could result in a conviction.

59 Further, having regard to the whole of her Honour's direction to the jury, she made it abundantly clear that if the jury thought that the children's evidence may have been concocted at the instigation of their mother, then the evidence of neither child could be relied upon. As the case was presented by the defence, there was no possibility that the jury might consider that one child was an honest witness while the evidence of the other child might have been falsely fabricated at the direction of her mother.

60 It is convenient next to consider the proposition argued in grounds 2 and 3 that the trial Judge erred in telling the jury that the evidence in relation to count 2 was relevant to, and could assist in, resolving count 1. Her Honour did not say, as ground 3 asserts, that if they accepted the evidence in respect of count 2, the jury could consider that to be corroborative of A's account in respect of count 1. Her Honour in fact said:

"Of course in count 2, if you accept A's evidence, she saw the accused put his penis into B's hands, and if you accept her evidence about that you can use that as part of all the circumstances that you consider when you're looking at count 1. In other words, if you accept that the game was played in a certain way in count 2, you can use that as evidence of the circumstances that may assist you as to whether you are satisfied beyond reasonable doubt that it was his penis put into A's hand in count 1."

61 Her Honour separately reviewed in some detail the contention of the defence that there were in truth substantial inconsistencies between the evidence of the twins and the jury ought not to rely upon either as an accurate witness. Her Honour also mentioned, although one gathers from her remarks to the jury that the argument was, understandably, put rather less directly, the suggestion that despite the inconsistencies relied on, the jury should not reject the proposition that the girls were entirely untruthful in their evidence which must therefore have been a concoction between both children and their mother, who disliked the applicant and wished to break up the relationship between him and D.

62 With respect to their author these grounds appear to me to involve some confusion of thought. There could never be any suggestion that the evidence in respect of count 2, the offence allegedly committed against B, did not include, most importantly, the evidence of A. It was for the jury to sort out the reliability of that evidence and whether they were prepared to rely upon the girls (as they evidently were) as truthful witnesses. If their evidence was accepted it was open to the jury to find the applicant guilty of count 2 beyond reasonable doubt, particularly because of the clear direct evidence of A.

63 B had nothing to say about count 1, the offence allegedly committed against A. As the trial Judge told the jury, A's evidence alone bore on the question of the applicant's guilt of that offence. The question was whether what A saw happen to B very shortly after the incident which was count 1 on the indictment was relevant to prove the applicant's guilt of count 1.

64 To my mind, with respect to the contrary view, the answer is a clear affirmative. This was a classic case of the probative value of evidence of similar fact. A's evidence was of a game played by the applicant with the girls twice. It was played in a similar fashion in every respect with each girl. It was clearly open to the jury to conclude on the basis of what occurred on the second occasion, that the thing covered with skin placed in A's hand on the first occasion was a part of the applicant and not an innocent part, but his penis. Particularly was that so when one has regard to the evidence of the guilty reaction of the applicant covering his crutch on both occasions and when regard is had to the applicant's later statements, which tried to defuse the significance of what had occurred by referring to it as just a game, a joke, and by saying that the girls were not supposed to have looked around to see what they did. If that evidence was accepted there was in that way a strong circumstantial case of guilt of count 1, relying upon the evidence of A.

65 In my respectful opinion Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292 does not assist the applicant to argue grounds 2 and 3. It was a case about the admissibility as similar fact evidence of evidence given by a number of complainants who spoke of separate indecent dealing offences committed against them individually in strikingly similar circumstances. It is not a case which assists to resolve the question of the probative value, and hence the admissibility (although no objection to admissibility was taken) of the evidence of A about what she saw happen in respect of count 2 as evidence assisting to prove count 1. It is, however, in my opinion, the case that the admissibility of A's evidence about count 2 in relation to the proof of count 1 not only demonstrates the propriety of the joinder, but is a powerful reason supporting the joint trial which was held. In my opinion it does not matter in that regard that B had nothing directly to say about count 1.

66 I think, indeed, that B's evidence about count 2 would in this case have been properly received as similar fact evidence in relation to count 1, as would the evidence of A about count 1 have been properly received as similar fact evidence in relation to count 2. However, that proposition was not put by the trial Judge to the jury. That question of admissibility, had it been raised at the trial, would have depended upon the decision of the High Court in Hoch. There the Court pointed out that what is commonly referred to as similar fact evidence becomes admissible if it has such a high probative value that the evidence of what occurred on the other occasion is more than mere evidence of the propensity of the accused to commit offences of the kind with which he or she is charged, but is capable of establishing the guilt of the accused person upon the basis that it may be inferred from the conclusion that he or she committed the similar fact offence that the accused also committed the offence presently charged.

67 The Court held that in determining the question of the admissibility of similar fact evidence, the trial Judge must apply the same test as the jury must apply in dealing with circumstantial evidence and ask whether there is a rational view of the evidence which is inconsistent with the guilt of the accused. At 296 Mason CJ, Wilson and Gaudron JJ said that such evidence:

"...being circumstantial evidence, has probative value only if it bears no reasonable explanation other than the happening of the events in issue. In cases where there is a possibility of joint concoction there is another rational view of the evidence. That rational view - viz joint concoction - is inconsistent both with the guilt of the accused person and with the improbability of the complainants having concocted similar lies. It thus destroys the probative value of the evidence which is a condition precedent to its admissibility."

68 At 297 their Honours went on to speak of the task of the trial Judge in determining the admissibility of such evidence. They said that the determination that the evidence was not reasonably explicable on the basis of concoction, "is a matter to be determined, as in all cases of circumstantial evidence, in the light of commonsense and experience." Their Honours pointed out that the question for the trial Judge was, however, not to make a preliminary finding whether there was or was not concoction. The question to be determined in the light of commonsense and experience was whether a reasonable explanation for the evidence might be concoction by the witnesses.

69 Brennan and Dawson JJ expressed the same views, observing at 303 that:

"...the trial Judge must make an initial determination of questions of fact which the jury may ultimately have to decide. If the evidence is admitted, its probative force becomes a matter for the jury who may form their own view as to the possibility of a conspiracy among the witnesses to concoct their allegations."

Their Honours concluded in that context that the trial Judge bore the duty to exclude similar fact evidence unless satisfied that there was no real chance that it resulted from a conspiracy or concoction between the witnesses.

70 In this case, in my opinion, it could not be said on appeal, had the question arisen at trial and been determined by the trial Judge, that her Honour would be obliged to conclude that there was a reasonable possibility that the twins' evidence was concocted at the instigation of their mother. Indeed, in my opinion, a proper preliminary determination may well have been to the contrary.

71 It would not be sufficient simply to consider that the girls were twin sisters living together in the one household with their mother. The trial Judge would have to look for more to consider whether in the light of commonsense and experience the evidence of the children was capable of reasonable explanation on the basis of concoction.

72 The suggested motive of their mother to break up the relationship between the applicant and D was weak. According to the evidence of D, that relationship commenced at about the beginning of 1997. By the time she came to give evidence in February 1999 there were two children of the relationship. Her mother had apparently made her dislike known from the outset, according to D, who said that her mother did not want the relationship to commence. It should be said that the mother's evidence was not to that effect. She said there had been an argument with D only about the applicant's lack of trade qualifications which she urged him to obtain "so to be better able to apply for work in Perth so he could support our daughter and maintain a proper family". However that may be, nothing seems to have been suggested to have occurred to explain the timing of the supposed conspiracy, the complaints of the offences having been made to the police on 9 June 1997 following the complaint made by A initially, and then B, to their mother.

73 More seriously, if the evidence of the children was to be regarded as a concoction, there were inconsistencies in the stories which I do not propose to discuss here, but upon which the defence primarily relied in urging the jury that they should not accept the two girls as accurate and reliable witnesses. Finally, it might be thought that it would require an unusual process of invention on the part of the children's mother to instruct them to tell the story given in evidence, a story of indecent dealing which involved neither child being able to say directly that they saw that it was the applicant's penis placed in their hands in the course of what otherwise would have been an innocent guessing game.

74 It would have been so easy in the process of concoction to have each child turn around quickly to see the applicant's penis exposed, but the theory of concoction would require it to be supposed that not only was that not done, but the case in relation to B was sought to be strengthened by having A observe what went on while no similar measures were taken with respect to the case in relation to A. In my opinion it would have been well open to the trial Judge, if the question of admissibility of the evidence of B about count 2, in respect of count 1, and the evidence of A about count 1, in respect of count 2, had been raised, to hold that the evidence of the girls was not reasonably capable of explanation on the basis of concoction and to regard the evidence of each about the count affecting the other as similar fact evidence with a strong probative value.

75 However, as I have said, no such proposition was raised at the trial. Her Honour made no ruling of that kind and, for present purposes, it is sufficient to note that there would appear to be nothing in the case and the evidence which was led to suggest that the trial Judge should have considered that there was any problem in respect of the admissibility of similar fact evidence and, the evidence admissible in respect of each count in the indictment being admissible with respect to the other count, no question of ordering separate trials arose: De Jesus v The Queen [1986] HCA 65; (1986) 68 ALR 1, 4 - 5, 12, 16; Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461, 482 - 484; BRS v The Queen [1997] HCA 47; (1997) 191 CLR 275, 298 - 299 and Gipp v The Queen (1998) 194 CLR 106, 111 - 112. The question under discussion was also recently the subject of a judgment of this Court in Von Porebski v The Queen [1999] WASCA 15; 13 May 1999 in which reference may be made to the reasons of Malcolm CJ and Pidgeon J, with both of whom Ipp J agreed.

76 I have dealt above with the matters canvassed in the argument presented at the hearing of the application, including matters which, in my view, strictly fall outside the ambit of grounds 2 and 3. Suffice it to say that I would not uphold those grounds.

77 I turn finally then to ground 4 which, for various reasons set out in the ground, which again I need not set out here, presents the argument that the trial Judge erred in this case by not including in her directions to the jury what is described as a "corroboration warning", a description which it is clear draws on the terminology of the Evidence Act, s 50, ie, a warning to the effect that in the particular case it would be unsafe to convict upon the uncorroborated evidence of one witness. The ground must therefore relate solely to count 1 on the indictment. Again, no such warning was sought by defence counsel at the trial, but of course if this Court should be persuaded that such a warning was in the circumstances of the case required to avoid a perceptible risk of a miscarriage of justice, then the proper course would be to quash the conviction and consider an order for a new trial: Robinson, a case upon which counsel for the applicant placed considerable reliance during argument, but which in my respectful opinion, was concerned with circumstances quite different from this case.

78 It is useful to bear in mind the observations of Hayne J in Melbourne v The Queen [1999] HCA 32; (1999) 164 ALR 465 at 503 - 504, par [142] - par [144]. His Honour observed that the task of directing a jury in a criminal case is never easy and would be made more difficult for no good purpose, "if trial Judges were bound to give more, and more complicated, directions than the particular case requires." His Honour went on to say that in respect of fact finding by the jury, the trial Judge was only required to give a warning about a danger affecting that process which, uninstructed by a warning, a jury may omit to consider. His Honour included in the examples of such cases the danger involved in "accepting uncorroborated evidence in some circumstances" and his Honour cited Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79. In my opinion this is not a case where any warning in respect of the lack of corroboration of A's evidence about count 1 was required.

79 The jury were told that in respect of count 1 there was only the evidence of A upon which they might rely and so it was a matter of accepting her evidence "or nothing". As I have indicated, that was a favourable direction so far as the applicant is concerned, having regard to the availability of the similar fact evidence of both girls in respect of count 2. The issue of the suggested concoction between the girls and their mother was firmly before the jury and would have an obvious effect upon their capacity to rely upon the evidence of the girls unless they were able to exclude that possibility. The jury were, of course, aware of the ages and the relationship of the children, both to each other and the applicant. Apart from the suggestion of fabrication, the inconsistencies in the accounts they gave in evidence were discussed at length, both by counsel and the trial Judge. In my opinion there was no need to do more in the circumstances of this case and I would not uphold ground 4.

80 It follows that for these reasons, although I would grant leave to appeal, I would dismiss the appeal.

Armitage v The Queen [2000] WASCA 197

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Judgment (118 paragraphs)

Armitage v The Queen [2000] WASCA 197 (2 August 2000)

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Cases Cited (15)