Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against conviction - Requirement for a Crofts direction - Admissibility of evidence of complaint - Propensity direction for uncharged acts - Balance in summing up - Turns on own facts

Evidence Act 1906 (WA), s 36BD

Azarian v The State of Western Australia [2007] WASCA 249

BSD v The State of Western Australia [No 2] [2009] WASCA 152

Cook v The Queen [2000] WASCA 78

Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427

Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555

FGC v Western Australia [2008] WASCA 47; (2008) 183 A Crim R 313

Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79

PIM v The State of Western Australia [2009] WASCA 131

R v The State of Western Australia [2006] WASCA 101

Suresh v The Queen [1998] HCA 23; (1998) 72 ALJR 769

T v The Queen [2000] WASCA 153

1 McLURE P: The appellant appeals against his conviction after trial of six counts of sexual penetration of his daughter contrary to s 329(2) of the Criminal Code (WA).

2 The first four offences were committed on the same date sometime between 20 November 2004 and 31 January 2005 when the complainant was aged 11. The complainant was living with her grandmother at the time but was visiting the appellant during school holidays. The fifth and sixth offences were committed on separate occasions sometime between 1 January 2007 and 10 September 2007 when the complainant was aged 13. At that time the complainant was living with the appellant. The complainant made a complaint to police on 10 September 2007. The prosecution case was that the offences were representative of a course of conduct during the relevant period.

3 The prosecution relied upon evidence given by the complainant's boyfriend, Archie Brown, that at the beginning of 2007 at the earliest but more likely around May or June 2007 the complainant sent him text messages telling him she was being abused by her father and that it involved bribes. Brown later deleted those messages. On 30 July 2007 the complainant sent a text message to Brown saying 'My dad tried to bribe me again. So he said that if I have sex with [him] now, I can have sex with you tomorrow'. A photograph of that text message was admitted into evidence.

4 Miller JA ordered that the application for leave to appeal be heard together with the appeal. The grounds of the appeal are to the effect that the trial judge erred:

(1) in failing to give a direction in accordance with Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427;

(2) in admitting the evidence of Brown because it was not evidence of complaint given at the earliest reasonable opportunity;

(3) if the evidence of Brown was properly admitted, in failing to make it clear to the jury that it only served to bolster the evidence of the complainant in respect of the counts which preceded it;

(4) in failing to give to the jury a propensity direction in relation to uncharged acts; and

(5) in failing to give the jury a full and proper summary of the appellant's case.

5 The appellant claims that, not only was the trial judge bound to give a direction in terms of s 36BD of the Evidence Act 1906 (WA), he was also bound to balance that direction by giving a Crofts direction to the effect that the delay in making the complaint was also a matter the jury might properly take into account in evaluating the testimony of the complainant and in deciding whether to believe her.

6 The trial judge made it clear that absence of complaint or delay in complaining may be taken into account in evaluating the evidence of the complainant which is all that Crofts requires: FGC v Western Australia [2008] WASCA 47; (2008) 183 A Crim R 313 [94]; Cook v The Queen [2000] WASCA 78 [108] - [110]. He said:

[I]n judging [the complainant's] credibility and the truthfulness of her evidence, you are entitled to know how she acted at the relevant time while she says these events were occurring, and whether or not she acted in a way which you might expect a child in her position to act after the events of which she has given evidence.

Delay in complaint may be a relevant matter in your mind, particularly in respect of counts 1 to 4. It is something for you to consider and it is for you to weigh its significance, but I must point out to you that absence of complaint or delay in making complaint that one has been sexually assaulted does not necessarily indicate that the matters complained of did not happen. A person such as the complainant might have good reasons for not complaining. Bearing that in mind, it is for you to determine what degree of significance, if any, to give to the delay in complaint. It is entirely a matter for you to judge (ts 120).

7 The trial judge later told the jury in the course of giving a Longman warning (Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79), that 'They are allegations of a serious sexual crime. No complaint was made at the time' (ts 121). The trial judge then addressed the forensic disadvantage resulting from the delay in complaining which he said required the jury to scrutinise the complainant's evidence with care and caution.

9 The appellant contends that the evidence of Brown was wrongly admitted because it did not satisfy the conditions of admissibility in relation to complaint evidence. The contention is based on the incorrect assumption that the relevance of the evidence was confined to complaint. The complainant's video record of interview with police was tendered at trial as her evidence-in-chief. The complainant was examined, without objection, and cross-examined on the statements she made to Brown complaining of her father's sexual misconduct. Indeed, the content of the text message on 30 July 2007 first emerged in cross-examination of the complainant. There is no challenge in this appeal to the admissibility of the evidence of complaint given by the complainant.

10 Brown also gave evidence, without objection, and was cross-examined about the complaints communicated to him from the complainant. The appellant now claims Brown's evidence was inadmissible because the complaint was not made as speedily as could reasonably be expected. Why, it may be asked rhetorically, does the appellant challenge the admissibility of Brown's evidence but not that of the complainant on the same topic. The answer may be found in the conduct of the defence case at trial. The defence case, put in cross-examination to the complainant, was that she had fabricated the allegations against the appellant for the purpose of achieving her goal of going to live with Brown (ts 40, 41, 56, 58) who her father did not like (ts 38). The communications with Brown formed part of the context for the fabrication case. It was submitted by senior counsel for the appellant that the defence case of fabrication could have been run without involving Brown. That may be so but it was not how the case was run at trial. It was put to Brown in cross-examination that there were no text messages from the complainant to him about the bribe (ts 78) and that Brown told the police what the complainant told him to say (ts 76, 78).

11 The only inference to be drawn from the conduct of the defence case was that a forensic decision had been made not to object to the complaint evidence given by the complainant and Brown because it was to be relied on as part of the defence case that the allegations were fabricated so as to facilitate the complainant's goal of going to live with Brown.

12 That being so, there is no miscarriage of justice: Suresh v The Queen [1998] HCA 23; (1998) 72 ALJR 769; T v The Queen [2000] WASCA 153; R v The State of Western Australia [2006] WASCA 101. In Suresh McHugh J said:

[B]y not objecting to the admission of the statement and then using it to support the defence theory of the case, the appellant exercised his right to a fair trial. It would undermine the system of adversarial criminal justice if the admission of technically inadmissible evidence, not objected to for rational forensic reasons, could result in the quashing of a conviction because the forensic tactics had failed to bring about the accused's acquittal [23].

13 That is sufficient to dispose of this ground. In those circumstances I do not intend to determine the question whether the evidence would have been inadmissible if relied on solely for the purpose of complaint evidence to buttress the complainant's credibility. I refrain from doing so because it raises a point of principle which was not addressed by the parties and on which there appears to be a difference, at least in emphasis, in this court in Azarian v The State of Western Australia [2007] WASCA 249 [24] (Pullin JA) [120] (Miller JA).

14 Both the appellant and the respondent in this case appeared to accept that the admissibility of the complaint evidence depended on whether the complainant had acted reasonably in all the circumstances. I doubt the correctness of that approach. She did not complain for over two years after the commission of counts 1 to 4. There is much to be said for the view that the complainant did not act unreasonably so as to justify an inference adverse to the complainant's credit. The complainant had lived with her grandmother since she was a little girl. In 2004 the complainant began spending school holidays with her father at his residence as a result of the intervention of the Family Court. The first four counts occurred when the complainant was aged 11. The appellant told the complainant not to tell anyone 'Or they'll lock me up and you won't see me' (VRI 27). Although the complainant was living with her grandmother at the time, her evidence was that she would not have told her grandmother if anything was happening to her as 'we didn't get on and I knew she wouldn't believe me' (ts 54 - 55). The complainant went to live with her father because she got kicked out of her grandmother's house (VRI 31). Finally, her father was just giving her money, which she referred to as a bribe, for having sex with him about which she was embarrassed (ts 41).

15 However, matters that would prevent an adverse inference arising from delay in complaining do not, it seems to me, permit a positive answer to the question whether the complaint was capable of buttressing (strengthening) her credibility, which is the effect of a complaint made as speedily as could reasonably be expected. These matters were not canvassed in written or oral submissions and their determination should be deferred to another occasion.

Relevance of complaint to subsequent offences

16 The appellant contends the trial judge erred in failing to direct the jury that Brown's evidence could only be used to bolster the complainant's evidence in relation to the first four counts.

17 As a matter of logic, the principles relating to the admissibility of complaint evidence compel the conclusion that it can only apply to past offences. The explanation given by the trial judge (ts 120) of the legal principles relating to complaint evidence and delay in complaining make it clear that the complaint evidence concerns events that have already occurred. In any event, there can be no miscarriage of justice because there was admissible complaint evidence relating to counts 5 and 6 in the complainant's video record of interview with police on 10 September 2007 which was tendered in evidence. This ground is without merit.

18 The appellant claimed the trial judge erred in failing to give the jury a propensity direction in relation to uncharged acts. The appellant's case on this ground was formulated prior to the decisions of this court in PIM v The State of Western Australia [2009] WASCA 131 and BSD v The State of Western Australia [No 2] [2009] WASCA 152.

19 As was made clear in the trial judge's direction (ts 122), the evidence of uncharged acts was relevant to, and probative of, the appellant having a sexual interest in the complainant. Relationship evidence of that nature is admissible as evidence of propensity. That being the case, a warning to avoid the propensity line of reasoning is not required for the reasons given in BSD [35] - [37]. This ground is without merit.

20 A trial judge has a duty to put the cases of the prosecution and the accused to the jury in a fair and balanced way. However, that requirement does not oblige the judge to put to the jury every evidentiary matter or argument advanced on behalf of the parties: Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555, 560 - 561.

21 The trial of the appellant lasted two days and there were only four witnesses. The trial judge summarised the material aspects of the defence case including the significance of delay in complaint (ts 120), evidence of the complainant's grandmother that the complainant lied about certain matters (ts 118), the complainant's motive to lie about what her father had done so she could live with her boyfriend (ts 122 - 123), inconsistencies in the complainant's evidence (ts 116) and the fact that the complainant continued to live with the appellant notwithstanding the offending (ts 116). The trial judge did not refer to the complainant's admission that she sent a text message to her sister's boyfriend which provided some support for the fabrication defence. However, reference to the message

would have to include a reference to the complainant's explanation which rebutted the inference (ts 56). I accept that the trial judge's summing up of the defence case of fabrication is not as clear and direct as it might have been but it was adequate in the circumstances. Indeed, there was no complaint of lack of fairness or balance at the conclusion of the summing up. Moreover, the fact that the trial judge did not deal with all matters relating to the defence case together did not result in any lack of fairness or balance.

22 The grounds of appeal are without merit and I would refuse leave to appeal.