Evidence Act 1906, s 106D

Collard v R, unreported; CCA SCt of WA; Library No 970425; 13 August 1997

Garrett v R (1988) 40 A Crim R 213

R v Asplin [1999] WASCA 148

1 IPP J: I have read the reasons to be published by Miller J. I am in agreement with those reasons and have nothing further to add.

2 HEENAN J: I agree with the conclusion to which Miller J has come and I agree with his reasons for coming to that conclusion.

3 MILLER J: The appellant was tried in the District Court on an indictment which alleged one count of sexually penetrating a child under the age of 13 years and two counts of indecently dealing with a child under the age of 13 years. The count of sexual penetration and one count of indecent dealing were alleged to have occurred on a date unknown between 1 February and 31 December 1997 and the further count of indecent dealing was alleged to have occurred on a date unknown between 1 July and 10 October 1997. Each of the counts of indecent dealing alleged that the appellant had touched the breasts of the complainant. The charge of sexual penetration alleged that the appellant had inserted his finger into the vagina of the complainant.

4 After trial the appellant was convicted of the charge of sexual penetration but acquitted on the two counts of indecent dealing. From the conviction the appellant appeals on two grounds. The first ground contends that the verdict of conviction was unsafe and unsatisfactory for the following reasons:

(a) the jury's verdict on counts 2 and 3 indicated that they considered the complainant's evidence to be unreliable;

(b) the acquittal of the appellant on count 2 meant that the jury acted unreasonably in convicting the appellant on count 1, as counts 1 and 2 effectively constituted part of the "one transaction";

(c) the evidence on which the appellant was convicted was uncorroborated, unreliable, inconsistent and/or equivocal.

5 The second ground of appeal contends that the learned trial Judge failed to direct the jury that certain evidence "was not evidence corroborative of the complainant's testimony". Such evidence is said to have included a letter written by the complainant to a magazine and evidence in relation to blood in the underpants of the complainant following one of the alleged incidents.

6 Counts 1 and 2 on the indictment were allegations of sexual misconduct on the part of the appellant on the one night. The complainant identified the date as being in 1997 and some time prior to her 11th birthday, which was on 10 October. She testified that the appellant was staying at her mother's house and whilst watching television her mother had fallen asleep. The complainant was sitting on the appellant's lap on a chair in the loungeroom when she said the following incidents occurred:

"Did anything happen while you were sitting on Terry's lap? --- Yeah.

What was that? --- He started touching my breasts and my vagina.

Where did he touch you with his hand? --- On my breast.

Did he do anything when he touched you? Did he move his hand? --- Yeah.

How did he move it? --- I don't - what? What do you mean?

Did he simply put his hand on your breast or did he move his hand? --- Moved his hand.

He moved it. In what way? --- Like he slid up my stomach first.

Was that inside your pyjamas or outside your pyjamas? --- Inside.

Which hand was he using? --- I think it was his right.

What did he do? --- He started putting his finger in my hole.

When you say he started his finger in your hole -- ? --- Yeah.

--- what do you mean when you say that? --- What do you mean?

Well, are your talking about your vagina? --- Yeah."

7 When cross-examined, the complainant was referred to a statement she had made to investigating police in which she had said that the appellant had first put his finger in her vagina and had then rubbed his hands over her breasts. Confusion arose as to when the incident of alleged indecent dealing had occurred. The complainant said:

"You told us today in your evidence that he did that first, didn't you? --- Yeah, he did it again though.

And you told the police officers he did it twice. Is that right? --- Yep.

And they didn't put it in the statement. Is that --- ? --- No. Nicole - I think that's her name - she said that just to put it as he did - like, he - could I just read it please?

Yes, by all means read it. You have read it? ---What was the question again?

You were saying that Nicole had told you --- ? --- I think that was her name.

Had told you - that was the police officer - had told you to do something? --- Yeah.

What did she tell you to do? --- She said something about, 'Just put it as it is like this,' or something - something like that.

I see, but you're saying to us now he did it twice? --- Yeah.

At the start and then at the end. Is that right? --- Yeah."

8 The learned trial Judge's directions to the jury made it quite clear that the Crown contended the indecent dealing to have occurred prior to the sexual penetration. His Honour said:

"The incidents alleged in counts 1 and 2 the crown says happened on the same night as you all know. It happened in the lounge room whilst Donna Taylor says she was sitting upon the lap of Mr Balaam. The incident alleged in count 3 happened, Donna Taylor says, later in 1997 in the lounge room when they were sitting on a two-seater settee. She said that Mr Balaam started touching her breasts inside her pyjama top.

Now, the incident in count 2 is a little confused because the crown says that the incident alleged in count 2 is the touching following the penetration of the vagina, and that is why the crown has put the touching of the breasts as count 2. I say it's a little confused because Donna Taylor in her evidence-in-chief - and when we talk about evidence-in-chief I'm talking about her evidence to her counsel, counsel for the crown, not her counsel but counsel for the crown - whilst counsel for the crown was asking her about these incidents, her response was that the touching of the breast was before she was penetrated in the vagina.

It was only in cross-examination, when she was faced with an inconsistency in her police statement, did she then say that there were two touchings; one before the penetration and one after the penetration. What you must understand very clearly is that the touching of the breasts the crown focuses upon for the second count is the touching of the breasts after the penetration. So under no circumstances may you find Mr Balaam guilty of touching of the breasts before the penetration of the vagina. Even if you found that to be proved, that is not what the crown is alleging. It is the incident the crown says happened after the penetration by the finger."

9 Because the jury acquitted the appellant on the second count on the indictment it is open to conclude that the jury found as a fact that the complainant had been touched on the breasts on the night in question but were unable to decide whether that touching occurred before or after the incident of sexual penetration. If that was so, the jury was, by reason of the trial Judge's direction, compelled to acquit the appellant. Alternatively, the jury may have been satisfied beyond reasonable doubt that the incident of indecent dealing occurred but that it occurred before the incident of sexual penetration and not after. Again, they were compelled to acquit in the event that they reached that conclusion. It is of course possible that the jury were simply not satisfied beyond reasonable doubt that the touching had occurred at all, but it seems more probable that one of the two alternatives I have given accounted for the verdict

10 The acquittal of the appellant on count 3 means that the jury was not satisfied beyond reasonable doubt that on a date between 1 July and 10 October 1997 there had been a further incident of indecent dealing. The complainant had testified on a second occasion in the year 1997, whilst watching television, she had been sitting on a "two seater" with the appellant when the following incident occurred:

"Did anything happen while you were there? --- He moved closer to me and started touching my breast again but then I walked off.

Were you wearing a top at the time? --- I was wearing my pyjamas.

So you were wearing a pyjama top. Touching the breast - was that inside the pyjama top or outside the pyjama top? --- Inside.

Did he do anything with his hand? --- What do you mean?

No. All right. How long was his hand there for? --- Only about 10 minutes.

What did you do? --- Walked off and went to my room."

11 The incident about which the appellant testified appears (notwithstanding the claim that it was "about 10 minutes" in duration) to have been very brief. Little detail was given by the complainant about it. Further, there was in evidence a print-out of a letter which the complainant had typed onto the family computer and which was a letter she had apparently intended to send to Dolly Magazine. In was in the following terms:

I am 11 yrs old and my mum had this boyfriend who sexually touched me. What I mean by that is he started fingering me while my mum was asleep. He did it last February and since then I have been really scared to go to sleep in case he came. I haven't told mum because he said that if I told anyone he would hurt me. My mum doesn't live with him anymore. Please help me tell me if I should tell her."

12 When directing the jury the learned trial Judge made reference to the unsent letter on the computer, and said:

"... but bear in mind that the letter which you will take to the jury room with you, whilst talking of fingering, makes no mention of the touching of the breasts."

13 At another point his Honour added further reference to the letter:

"The letter on the computer Mr Stubbs has made mention of speaks of the incident happening last February. Well, it's quite plain it could not have been February 1997 because there was no contact between Donna's mother and Mr Balaam in February 1997. It could not have been February 1998 because the relationship had ceased by January 1998. Well, make of that what you will."

14 It is apparent that the contents of the computer letter may have created in the minds of the jury a reasonable doubt as to whether or not either incident of indecent dealing had occurred and/or whether the second alleged incident of indecent dealing had occurred. Failure on the part of the complainant to make reference to anything other than "fingering" in the letter may have led the jury to a process of reasoning whereby they were left with a reasonable doubt in relation to the question whether the first and/or second incident of indecent dealing had taken place. Seen this way, the verdict of the jury seems to be entirely consistent with the evidence and with the directions given by the learned trial Judge.

15 The test in determining whether a verdict is unsafe or satisfactory is that set out by Mason CJ, Deane, Dawson and Toohey JJ in M v R [1994] HCA 63; (1994) 181 CLR 487 at 493:

"Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question 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. On the contrary, the court must pay full regard to those considerations."

16 In Jones v R (1997) 191 CLR 439, Gaudron, McHugh and Gummow JJ (at 452) stated that the test formulated by the majority in M "must now be accepted as the appropriate test for determining whether a verdict is unsafe or unsatisfactory". In Jones the appellant was alleged, during 1991 and 1992, to have had sexual intercourse with a child under his authority. On each occasion the alleged conduct had occurred when the appellant (a gymnastics coach) had directed the complainant to go into a storeroom and lie on mats where he asked her to remove her pants in order that he could massage her legs. On each occasion it was alleged that he had massaged the complainant's vagina and then had inserted his penis into her. The jury convicted the appellant on the first and third counts on the indictment but acquitted him on the second. This led Gaudron, McHugh and Gummow JJ (at 453) to make these observations:

"The jury's finding of not guilty on the second count damaged the credibility of the complainant with respect to all counts in the indictment. Implicit in the appellant's acquittal on the second count was a rejection of the complainant's account of the events which were said to give rise to that count. The jury may have acquitted because the unshaken evidence of the appellant's wife and daughter with respect to the absence of opportunity engendered a reasonable doubt about the appellant's guilt on the second count. They may possibly have acquitted because they were of the view that the complainant had fabricated the circumstances giving rise to the second count. Having regard to the convictions on the first and third counts, the latter alternative seems an unlikely explanation of the verdict on the second count. Whatever the explanation may be, however, the jury's rejection of the complainant's account on the second count diminished her overall credibility. The only reasonable conclusion is that the jury were not satisfied beyond reasonable doubt of the truth of her evidence concerning the incident the subject of the second count, we do not think that the complainant's confusion about whether the offence took place on a Thursday or a Saturday could explain the acquittal on that count. If that was the reason the jury rejected her evidence, they would also have acquitted the appellant on the first count.

It is difficult then to see how it was open to the jury to be convinced beyond a reasonable doubt of the guilt of the appellant with respect to the first and third counts. There is nothing in the complainant's evidence or the surrounding circumstances which gives any ground for supposing that her evidence was more reliable in relation to those counts than it was in relation to the second count."

17 The facts of Jones are distinguishable from those in the present case. As I have explained, there was good reason why the jury may have been satisfied beyond reasonable doubt that the appellant in this case sexually penetrated the complainant, but could not be satisfied beyond reasonable doubt in relation to the second and third counts on the indictment. There were special reasons why the appellant may have been acquitted on the second count on the indictment and the third count was removed in time and involved only an allegation of indecent dealing in relation to which the evidence was scant. In my view, it was open to the jury to convict on count 1 but acquit in relation to counts 2 and 3, and to do so without there being any inherent inconsistency in the verdicts. If there is a proper way in which this Court can reconcile the verdicts of the jury, allowing the court to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict which is contended to be inconsistent, it is not the role of this Court to substitute its opinion on the facts for the verdict of the jury. The test is said to be one of "logic and reasonableness". It was put by Gaudron, Gummow and Kirby JJ in MacKenzie v R (1996) 190 CLR 348 (at 366) as follows:

"Where, as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness. A judgment of Devlin J in R v Stone unreported, 13 December 1954, is often cited as expressing the test:

'He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand.'

Nevertheless, the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense. Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury. In a criminal appeal, the view may be taken that the jury simply followed the judge's instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt. Alternatively, the appellate court may conclude that the jury took a 'merciful' view of the facts upon one count: a function which has always been open to, and often exercised by, juries."

18 The first ground of appeal includes a contention that because the evidence of the complainant was uncorroborated, unreliable and inconsistent, the verdict on count 1 was unsafe and unsatisfactory. However, as a matter of law, corroboration of the complainant's testimony is not required: Evidence Act, s 106D. Absence of corroboration of the complainant's testimony was not unique and certainly not fatal to the prosecution case. In M v R (supra), Gaudron J (at 510) said:

"Given the nature of the case, the verdicts can only be held to be unsafe and unsatisfactory if the complainant's evidence is brought into doubt. Her evidence is uncorroborated. This, of itself, is of no importance, but where evidence is wholly uncorroborated, discrepancies and inconsistencies may assume greater significance than would otherwise be the case. Even so, corroboration or lack thereof is only one of many considerations which bear on the evaluation of evidence. And in this case the fact that the complainant's evidence was coherent and concise is a consideration which weighs in favour of its acceptance."

19 In Jones v R (supra) Kirby J (at 465) put it this way:

"None of the allegations of the complainant against the appellant was corroborated. However, as a matter of law, corroboration was not required. To adopt a position that a case which comes down to 'word against word' is necessarily, and without more, unsafe would be to contradict both common experience and the reforms which the legislatures in this country and elsewhere have adopted in recent years. It is of the nature of many crimes, most sexual crimes and virtually all sexual crimes against children that they are committed in a way designed to escape detection and the prying eyes of potential corroborating witnesses. Offenders take pains to cover their tracks and to avoid detection. The absence of corroboration was therefore not unique. It was not fatal to the prosecution's case."

20 There is, in my view, nothing in the contention that the absence of corroboration of the complainant's testimony rendered the verdict of the jury unsafe and unsatisfactory. Nor in my view is there anything in the assertion that inconsistencies in the testimony of the complainant lead to that result. There were inconsistencies in the testimony of the complainant but the learned trial Judge identified them in his directions to the jury and emphasised the need for the jury to take them into account. They were in essence

(a) the period of time when the incidents were alleged to have occurred;

(b) which finger the appellant had used to penetrate the complainant's vagina;

(c) whether the touching of the breasts, which was the subject of count 2, had occurred before or after penetration;

(d) whether or not the complainant had gone to the kitchen to get a drink before going to the room of her sister.

21 Each of these inconsistencies was clearly identified and it cannot be said that the jury were unaware of them.

22 The final limb of the first ground of appeal asserts that evidence of blood spotting in the complainant's underpants was equivocal and therefore the verdict on count 1 was unsafe and unsatisfactory. There was evidence from a Dr Bredemeyer in relation to blood spotting in the complainant's pants. Although conceding that such spotting may have been caused other than by an act of digital penetration, the doctor thought this unlikely. He did not consider it to be menstrual and there was no indication that she had a tumour or any pathology. In the doctor's opinion it would have been caused by some trauma to the genital area. Dr Bredemeyer also gave evidence that examination of the complainant's hymen showed it to be thinner at the 7 o'clock to 9 o'clock position than on any other part of it. This, the doctor thought, could have been caused by trauma to the hymen by digital fondling or other similar activities.

23 There was evidence from the mother of the complainant and from her sister about blood on the complainant's knickers. The complainant's mother said that her daughter had shown her the knickers on an occasion after the first night the appellant had stayed at the house and the complainant's sister said that the complainant had come into her bedroom on a night when she had been sitting on the appellant's lap and had shown her "little dots of blood on her knickers".

24 All of this evidence was consistent with the testimony of the complainant. It was not, in my view, inconsistent with the complainant's testimony as contended in the ground of appeal. It was evidence which left it open to the jury to conclude that there had been some trauma to the genital area which had caused blood spotting on the pants of the complainant.

25 The learned trial Judge made no reference in his directions to the jury to the issue of trauma to the genital area or to the question of blood spotting on the complainant's pants. However, no complaint can, in my view, be made by the appellant about this. Reference to the subject was likely to be against the interests of the appellant and the omission of any specific direction about the evidence does not, in my view, render the verdict unsafe or unsatisfactory.

26 The second ground of appeal makes complaint that the learned trial Judge failed to direct the jury that certain items of evidence were "not evidence corroborative of the complainant's testimony". These include the letter written by the complainant to the magazine and the evidence relating to blood spotting in the complainant's pants.

27 The learned trial Judge made no reference to the word "corroboration", nor in my view should he have done so. His Honour did make it clear to the jury that the case was one of "oath against oath" and the evidence of the complainant had to be accepted beyond reasonable doubt before there could be a conviction on any count on the indictment. As I have already mentioned, reference was made to the computer letter and its relevance to the credibility of the complainant was made clear. Whilst no reference was made by the learned trial Judge to the question of blood spotting, the directions given in relation to onus and standard of proof made it abundantly clear that under no circumstances could the appellant be convicted on any count on the indictment unless, having regard to all of the evidence, the jury was satisfied beyond reasonable doubt of his guilt on any particular count.

28 Counsel for the appellant contended on the appeal that the evidence of the complainant's mother, her sister and Dr Bredemeyer was "intractably neutral" and not evidence which "confirmed, supported or strengthened" other evidence in the sense that it rendered that other evidence more probable. Reliance was placed upon the observations in this regard in BRS v R [1997] HCA 47; (1997) 191 CLR 275 where (at 297) Gaudron J said:

"Corroborative evidence is evidence that '"confirms", "supports" or "strengthens" other evidence in the sense that it 'renders [that] other evidence more probable' ". In some cases, notably in the case of accomplice evidence, the question is whether it 'tends to show that ... the accused committed the crime [in question], not merely that the crime has been committed'. In the circumstances of this case, the question is whether W's evidence tended to confirm that the offences were committed, not that they were committed by the appellant.

Evidence is not corroborative if, as is sometimes said, it is 'intractably neutral' ".

29 However, this case was specifically concerned with the question of what was or was not corroborative evidence. It was also concerned with the question whether certain evidence was admissible as corroborative evidence or otherwise admissible as evidence of guilt. The same considerations do not here apply. Corroboration of the complainant's testimony was not required and it was not suggested by the Crown that it existed. It would in the circumstances have been wrong for the learned trial Judge to have given any direction to the jury in relation to the question of corroboration, particularly a "negative" direction in which the jury was told that there was no evidence capable of constituting corroboration of the complainant's testimony.

30 It is true that in M v R (1998) 104 A Crim R 154, Wallwork J considered a trial Judge to have erred in failing to point out to the jury that certain evidence may have had an entirely innocent explanation and could not constitute "corroboration" of the complainant's testimony. His Honour did not go so far as to say that the learned trial Judge should have directed the jury that there was a "lack of corroboration" but perhaps it is implicit in his Honour's judgment. If so, it may well be that on the particular facts of that case a direction in those terms was required. Generally, however, I do not favour a direction to the jury that there is a lack of "corroboration" of the complainant's testimony in circumstances where the provisions of s 106D of the Evidence Act specifically provide that a trial Judge is not to warn the jury or suggest to the jury in any way that it is unsafe to convict on the uncorroborated evidence of a child by reason of the fact that children are classified by the law as unreliable witnesses. When there is no suggestion by the Crown that the testimony of the complainant is corroborated and there is no requirement for any corroboration direction (indeed, a bar to such a direction) it is wrong, in my view, for trial Judges to direct juries that certain evidence does not constitute corroboration of the complainant's testimony. It follows that, in my view, the failure on the part of the learned trial Judge to direct the jury that certain evidence was not corroborative of the complainant's testimony in this case constituted no error at all.