"Cb" v The State of Western Australia [2006] WASCA 227

"Cb" v The State of Western Australia [2006] WASCA 227 - WASCA 2006 case summary — Zoe

[102]

"Statements made out of court, members of the jury, can take a variety of forms. They can involve things that people say in the course of doing something or when something is being done. They can involve things written down by themselves. They can involve formal statements given to police officers. There are different rules for what a witness says and what an accused person says in relation to what is said outside court.

What an accused person says at any time can be looked at as an assertion of fact made by him or her as an assertion of belief or opinion or statement of mind, whether it's made from the witness box or out of the witness box. What people other than the accused say, people I call witnesses, outside the witness box is not an assertion of fact for the purposes of a trial. In other words, in a trial if a witness goes into the witness box and says, 'I saw Bob kick the dog on that night,' if the witness says that from the witness box, then that's an assertion of fact. That's before you as evidence which if you accept it would be evidence that the dog was kicked on that particular night.

If a witness says in a statement to police, 'I saw Bob kick the dog on that night,' and the witness then goes into the witness box and says, 'I don't remember what happened on that night,' even though the witness is shown the statement and says, 'Yes, I remember saying that to the police but I don't remember,' then you would have before you something the witness said on a prior occasion which was to contrary effect.

That might or might not have some relevance when you came to consider the reliability of what you are being told in court. Obviously it would depend on all of the circumstances of the original event, the circumstances in which the statement was made, the manner of giving evidence now. There would be a whole host of circumstances of course that you would need to look at in a particular case before, at the end of the day, you decided whether or not your view of what you were being told from the witness box was affected by the prior inconsistent statement, but you are permitted to hear what was said on the former occasion because obviously that's something that is potentially relevant in any case.

If somebody says A one day, we want to hear if they said B on a former day. It's something as a matter of commonsense we think we want to take on board and ponder, but it's not evidence of the fact. If the witness adopts it in the witness box, then of course it becomes part of the witness's evidence given in court but otherwise it's before you to that limited extent as material which you can consider, if you think it's relevant."

[129]

"... it is relevant that initially the allegation was that these incidents occurred between 30 October 2001 and 15 December 2001 and that then he was indicted on the basis that the conduct complained of had occurred between 30 October 2001 and 21 December 01 and, finally, that the statement of [JW] to the police indicates a different span of time again.

It's relevant because it's a matter that can be taken into account by the jury when weighing up the evidence in this way. In the same way as a delay in complaint causes unfairness perhaps to an accused person, then to charge a person with allegations without being absolutely specific as to a date make [sic: makes] it very difficult for him to defend it and that's a matter that should be able to be taken into account by the jury - that initially he was confronted with this span of time and then later a different span of time and then - a specific day it seems in the police statement.

The difficulty that he faces because of that in trying to ascertain where he was on each and every day in each of those periods is a matter that the jury, in my submission, can taken into account.

MACKNAY DCJ: Sorry, where do you say the specific day come [sic: comes] from?

GIUDICE, MR: Well, in his statement - - -

MACKNAY DCJ: His?

GIUDICE, MR: [JW's] statement at page 4 of the brief, paragraph 41. He told the police - and he has admitted this in cross-examination; that he told the police this and then that he told the police the truth and that his memory was better when he made the statement than it was when he gave evidence, because in his evidence he said he couldn't recall when this date was.

MACKNAY DCJ: I think you and I have had this discussion before. That doesn't make it an allegation of fact. If somebody says, 'I can't remember what I told the police' or 'What I told the police would have been true', I don't think that makes it evidence of the fact in the trial.

GIUDICE, MR: In my submission, what I was putting to him was not in the - - -

MACKNAY DCJ: That's something different but I'm just mentioning that.

GIUDICE, MR: That's what I'm answering, sir, that matter you just mentioned, if I may.

MACKNAY DCJ: Yes.

GIUDICE, MR: And I will answer it this way and that is that I wasn't putting this paragraph to [JW] as a prior inconsistent statement. I was putting it to him to refresh his memory and say to him, 'Well, your evidence is now you can't recall when this occurred but this is what you told the police. Did you tell the police the truth, and what was your memory like then?' so that the jury, in my respectful submission, could infer from that that what [JW] in fact told the police was what his memory was at that time of when it occurred.

MACKNAY DCJ: But unless he confirms it in court, there's no assertion of the fact?

GIUDICE, MR: No, not in court but it is evidence - if his evidence is, 'Look at this very moment I don't have a recollection but yes, I told the police that, it's in my statement and I signed it and therefore it must be right - - -

MACKNAY DCJ: But if he says, 'Therefore it is true', then that's an assertion of fact but simply saying, 'It would've been true' is not in my view an assertion of fact made from the witness box.

GIUDICE, MR: But if he has no recollection now, he can't say that - - -

MACKNAY DCJ: That's as may be and subject to hearing from Ms Forrester, that would be my view, Mr Giudice. As I say, I have a very vague feeling that you and I have had this discussion before and it might be that's - anyway, that's not to the point. What's the - this is not the complainant's document, is it?

GIUDICE, MR: No.

MACKNAY DCJ: And you're talking about a six-day period.

GIUDICE, MR: Yes.

MACKNAY DCJ: And you say that fairness to your client demands that he be permitted to say originally the allegation was different by six days.

GIUDICE, MR: Yes.

MACKNAY DCJ: It has been extended by six days.

GIUDICE, MR: Yes. And then in the trial it has been extended to right up until July 2002 - no, no, six months before July 2002. That would make it inclusive of January."

[198]

"Do you remember the day when Mr and Mrs [B] came over to your house talking to your mum and dad about the note?---Yeah.

Did your dad say to you, 'This better be true, [JW]. If it's not, you're going to get it'?---I can't remember but he could have said that.

Did your dad say to you, '[JW], if this is a joke, you won't see the light of day?' Did he say that to you?---I don't know, I can't remember.

Are those the sorts of words he uses, 'You won't see the light of day,' and he gets wild?---Can't remember but don't think he'd say I won't see the light of day but can't really remember that far back.

Did you remember a water fight that you had with [DB] and [J] where - - -?---A little bit.

A little bit. Do you remember a particular water fight when you and [RW] and [AW] were against [DB] and [J]?---Yeah.

And you and your friends and - you and [RW] and [AW] had lots of water bombs and you filled some of them with dye, green dye or some coloured dye?---Mm.

Do you remember [DB] and [AW] getting big water guns or pistols and firing at you a mixture of vinegar and salt and all sorts of stuff?---I remember that a little bit.

After that you didn't like it, did you? You got angry at that, at what they did. Isn't that right?---That water fight was a lot before that note.

Well, maybe it was but you got very angry after that water fight?---I don't remember being very angry at all because it was just a little water fight.

You ran home and yelled out, 'You're dickheads'?---No, I can't remember that but I wouldn't have said that.

You wouldn't have said - - -?---Because that wasn't a very bad fight. It was just a water fight, a normal play around water fight.

This water fight, this particular water fight, happened just before you wrote the note, didn't it?---It happened a while before that.

How long before?---Can't remember how long before but I know it wasn't just before the note.

It was just days before, wasn't it?---I think it would have been a bit more because - - -

Bit more. A week?---I wouldn't remember the time but I know it wasn't just before the note.

You went home and you and [RW] were angry and you wrote this note to get back at the [appellant and his brother]?---No.

Was [the appellant] in the water fight?---I can't remember. I don't think he was.

So you wrote a note and do you remember next day after the note was delivered - do you remember the next day?---A little bit. I'm not quite sure."

[201]

"... So there was a note written on a particular day and you remember the day you wrote the note?---No.

But do you remember - can you remember in your mind sitting there writing it now? Have you got a picture of it?---Yes.

Yeah. Now, I want to take you to the night before you wrote the note and what I'm going to put to you is that the night before you wrote that note there was a water - you had one of those water fights with water bombs; you [AW], [JW], against [DB] and [J]. Now, do you know [J], a boy called [J], as a friend of [DB's]?---I don't remember his name but I remember a friend of his.

Yes, and was he about the same age?---Of me?

Mm?---As me?

No, as [DB]?---A bit younger.

A bit younger. And do you remember having a water fight with - against him when there was some dye involved in a syringe?---No.

All right. Do you remember a water fight where this boy and [DB] filled up their water guns with all sorts of stuff, like vinegar and pepper and salt?---Yes.

Yeah. Now, what I'm going to say to you is that was the night before you wrote the note. What do you say about that? Can you remember?---No.

Would you disagree with me if I said it was the night before you wrote the note?---I'm not sure.

You're not sure. Okay. Anyway, this water fight, you or [AW] or [JW] filled a syringe or some syringes with dye and used that in the fight against [DB] and his mate. Is that right?---I'm not sure if it was syringes. It might've been a water pistol.

A water pistol. All right. Now, what colour dye was it?---It might've been green.

Green. It might've been green. So what they did was, [DB] and his mate, they went and got their water guns and filled them up with all this stuff, dye and vinegar and pepper and salt, water, didn't they?---Yes.

And they bombarded you lot with it. Is that right?---Yep.

And you and [JW] and [AW], you didn't like that, did you?---No.

No. And you ran off and went home. Is that right?---Yep.

And did [JW] yell out, 'Fuck you,' as he ran off?---I'm not sure.

Did anybody call [DB] and his mate dickheads as you ran away?---Not sure.

Anyway, you weren't very happy with them for what they'd done. Is that right?---Mm'hm.

Yeah. Now, what I'm going to put to you is that you went home then and then thought about it and you were thinking of a way to get back at them, [RW], were you?---I don't think so.

And what you did is that you and [JW] wrote the note to get back at them, as a joke?---No. We done it for a reason.

And your brother [AW], he had a look at the note and he laughed, did he?---Not my brother, [JW's] brother.

Sorry, [JW's] brother [AW] looked at the note and laughed?---Yes.

And what did he say, he said, 'That's gay'?---Yes.

And he rewrote it?---Yes.

And you don't remember what was in the note?---No.

You then - who wrote the note in the first place?---The one that we sended to - - -

No, the very first note?---[JW].

[JW]. And then [AW] wrote something else, wrote a note out?---Yes.

And then you copied it?---Yes.

Did you go with [JW] over to the house to drop the note off?---Yes.

And what was in the note wasn't true, was it?---It was true."

[208]

"Now, there's a suggestion that these children made it up for a particular reason, and let me tell you this: one of the questions we are not allowed to put to you for very good reason is why would they make it up, because that invites speculation from you and it puts an onus on the accused which he does not have to prove that these children made it up for a particular reason, so we don't ask you that question but my learned friend has suggested to you a reason why they might have made it up, and that's the water fight.

Now, perhaps the best indication as to what the children thought of that was the looks on their faces when they were confronted with that allegation. That was a game. The kids, [JW] and [RW], had dye and all sorts of things themselves. [AW] told you, 'We didn't care. We were doing it to them.' They didn't, on [JW's] evidence, even have that the night before the night. No-one seems to accept that except for [J] who came along and told you.

Well, it's a matter for you, ladies and gentlemen, but I would suggest to you that this water-fight story is a total farce. There is no way that [JW] and [RW] persisted for, let me point this out, three years in this allegation. They talked to adults, they talked to police, they have talked to me via the camera and another prosecutor for [RW] and [AW], and they were persistently cross-examined by my learned friend all about a water fight.

I would suggest to you that that is just completely farcical, ladies and gentlemen, and they denied it very, very clearly, and I don't intend to spend very much time on it because perhaps the most telling point of [RW's] evidence was when he was being confronted with that allegation by my learned friend, and he said, 'You and [JW], you decided after the water fight to go home and make this up, get back at them for a joke,' and [RW] said, 'No, we did it for a reason,' what he was quite plainly saying is a water fight is not a reason to make these sorts of allegations even at his age."

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (287 paragraphs)

"Cb" v The State of Western Australia [2006] WASCA 227 (2 November 2006)

Parties

Legislation Cited (3)

Cases Cited (20)