CECEZ -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 260 (29 November 2007)

CECEZ -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 260 (29 November 2007) - WASCA 2007 case summary — Zoe

[32]

25 Magee was questioned about the pending charges for assault occasioning bodily harm (the trial judge told Magee he would receive a certificate to the effect that any answers he gave would not be admissible in evidence against him in criminal proceedings, other than in a prosecution for perjury in relation to those proceedings). He had pleaded not guilty. One charge was in relation to the brother of his then girlfriend, and the other was in relation to his father. (ts 240 - 242) Magee had also been convicted and fined ($1,000) on 13 May 2003, at the Midland court of petty sessions, for receiving stolen goods and for fraud. On 10 October 2003, in the same court, he was convicted and fined ($100) for possession of unlicensed ammunition (Magee said he used to collect bullets), convicted and fined ($325) for possession of a smoking implement and possession of a prohibited drug (marijuana), convicted and fined ($300) for possession of a controlled weapon (Magee described this as the nose of a swordfish), and convicted and fined ($250) for possession of an unlicensed firearm (Magee described this as an old collector's gun). On 12 May 2004, in the same court, he was convicted and fined ($200) for possession of a prohibited drug, fined ($100) for breach of bail, and convicted and fined ($500) for indecent assault. On 21 October 2004, in the same court, he was fined ($200) for breach of bail. On 22 November 2004, at the Perth court of petty sessions, he was convicted and fined ($200) for possession of a prohibited drug, and convicted and fined ($150) for possession of a controlled weapon (Magee said it was a fishing knife). On 4 March 2005, at the Armadale court of petty sessions, he was convicted and fined ($1,000) for possession of unlicensed ammunition and possession of a firearm, and fined ($500) for breach of a violence restraining order. On 12 May 2005, he was convicted in the District Court at Perth for burglary with intent and aggravated burglary with intent, and sentenced to a two-year intensive supervision order, and was also convicted of burglary and aggravated burglary, for which he received 18 months suspended imprisonment. (ts 242 - 247)

[85]

78 The next thing the appellant remembered was waking up on the side of the road. He was in the passenger side of the car with the seatbelt on. Tomasevic was no longer in the car. He ate some drugs that were in the car to wake himself. (ts 467) There was shaving cream in the glove box and the appellant used it to clean some of the blood in the car. The appellant did not know where he was. He threw some clothes out of the car onto the side of the road. A woman stopped but she could not help him. Then a man stopped and gave him fuel. The appellant drove for a while, and when he turned into Alexander Drive, he saw a woman in a blue Commodore motor vehicle, who pointed him towards the Gnangara Road turn-off. The appellant said he recognised the car from when he was under police surveillance. The appellant turned towards Lake Gnangara, and when he reached there, a man in a gold Fairlane motor vehicle pointed him in the direction of the lake. He drove the car into the bush and left it there. He put some shirts from the car into a bag, and threw the bag away from the car. He walked around the lake, and went to the toilets. A 'homosexual bloke' started following him around the lake, so he ran and then hid in the bush for about two or three hours. The appellant walked to a house, near the lake, of a Mr Gough, but was scared away by dogs, and spent the night near the toilets at the lake. The appellant stayed at the lake for such a long period because he did not know what to do, or how to get home. He did not try to call anybody from the lake, because he did not have a mobile telephone, there was no telephone booth, and he had no money. He said the events of the night and the blood had triggered war memories for him. The appellant went to some nearby houses to ask to make a telephone call, but nobody was home. He did not ask anyone around the lake for help. The 'homosexual bloke' gave the appellant a lift home. He then had a shower, ate and went to bed. It was afternoon. He did not speak to his family when he got home. He was exhausted and went to sleep. (ts 455 - 459, 514 - 534)

[129]

If the warning to which par (a) is directed is a warning that it is generally unsafe to convict for any sexual offence on the uncorroborated evidence of the alleged victim (or, to put the warning another way, that it is unsafe to convict on the uncorroborated evidence of the alleged victim of the particular sexual offence charged because evidence of that kind has been shown by experience to be especially liable to fabrication), par (a) does not affect the requirement to warn about other perceptible risks of miscarriage of justice. A warning may be required because of the circumstances of the case other than, albeit in conjunction with, the sexual character of the issues which the alleged victim's evidence is tendered to prove. Paragraph (a) leaves that situation unaffected.

Furthermore, what par (a) abolishes is the requirement to give a warning, not a judge's discretion to comment on the circumstances of the case. No longer may the judge tell the jury that it is dangerous to convict in the circumstances described in par (a) because the experience of the courts has shown it to be so, but the judge may invite the jury in sexual cases (as is done in other criminal cases) to make their own evaluation of the alleged victim's evidence in the light of common human experience. By force of par (a) alleged victims of sexual offences no longer form a class of suspect witnesses, but neither do they form a class of especially trustworthy witnesses. Their evidence is subject to comment on credibility in the same way as the evidence of alleged victims in other criminal cases, but to comment only. Perhaps it should be added that the judge's discretion to comment should not be exercised so as to convey to the jury, whether by phrase, gesture or intonation, a caution about the general reliability of the evidence of alleged victims of sexual offences which is tantamount to the warning the requirement for which par (a) eliminates.

Paragraph (b) is a unique provision. Its first limb is clearly intended to supplement par (a) by prohibiting the giving of a warning which, the legislature obviously feared, judges might have continued to give despite the abolition of the requirement to give it. Its second limb seems to reflect a misconception of the effect of par (a). Once par (a) abolishes the requirement that jurors be warned that the evidence of alleged victims of sexual offences is generally to be treated with suspicion, no particular set of circumstances could justify the judge's directing jurors that all such evidence is treated with suspicion. If par (a) abrogates the rule which reflects curial experience of the need for caution in evaluating the evidence of alleged victims of sexual offences because of the risk of fabrication, then there is no particular set of circumstances which can justify the trial judge in giving the jury a warning based upon general experience. It would make no sense to treat the warning which par (b) permits - a warning based upon particular circumstances - as being restricted to the same kind of warning as that to which par (a) refers - a warning based upon general experience.

That is to say, unlike par (a), par (b) must relate, not so much to a warning of the general unsafety of convicting on the uncorroborated evidence of alleged victims of sexual offences, as to a warning which a trial judge might consider giving on account of the particular circumstances of the case. That is because par (b) directs the judge to find his justification for giving 'such a warning ... in the circumstances'. If the warning which may be given pursuant to par (b) cannot be the warning referred to in par (a), the phrase in par (b) 'a warning ... of the kind described in paragraph (a)' must be taken to mean any warning that it is unsafe in the circumstances of the particular case to convict on the uncorroborated evidence of the particular alleged victim.

Construing par (b) in that way, it prohibits in any case of a sexual offence the giving of any warning that it is unsafe to convict the accused on the uncorroborated evidence of the alleged victim unless the judge is satisfied that the particular warning is justified in the circumstances. The judge cannot be so satisfied if there is nothing in the case to require a warning other than the circumstance that proof of the offence rests on the uncorroborated evidence of the alleged victim. So construed, par (b) first shuts the door on all warnings that it is unsafe to convict an accused on the uncorroborated evidence of an alleged victim, and then reopens it to such warnings where the particular circumstances of the case provide a justification. This construction of the section is somewhat artificial, but it is essential to avoid absurdity. If the words 'of the kind described in paragraph (a)' were to be construed so that the warnings referred to by the respective paragraphs were the same, par (a) would comprehend a warning which might be 'justified in the circumstances'. Such a construction would accord to par (a) a wider operation than is accorded to that provision in other States and destroy the protection afforded in appropriate cases by the requirement to give a warning unrelated to the suspicion attaching to the evidence of alleged victims of sexual offences.

Paragraph (b) thus comprehends more kinds of warnings than the kind of warning to which par (a) refers. Although a warning can be given only if the judge is satisfied that the warning is justified in the circumstances - and therefore must not be given unless, on a view of the facts reasonably open to the jury, there is an occasion for giving a warning - justification may be found in any requirement of a rule of law or practice which might apply in the circumstances other than the requirement to which par (a) refers. If, on a view of the facts reasonably open to the jury, a rule of law or practice requires a warning to be given, not being a warning of the kind to which par (a) refers, the rule must be followed. The rule is itself justification for giving the warning it requires (87 - 89).

[138]

Authority in this Court has not been as clear as it might have been in relation to the relevance of s 50 in the past. There has perhaps in some cases been a tendency to analyse a direction to see if it was 'good enough' in traditional terms, with s 50 regarded almost as a provision which excuses a failure to give 'full' direction in traditional terms in some cases. For example, in Lambley v The Queen [[2001] WASCA 38] at [17], the Court appears to have suggested that a warning will be both justified and required whenever the circumstances show some intrinsic lack of reliability in the witness. However, in the particular circumstances of that case, it may well have been common ground that the witness was in a category 'similar to' a prison informer, so that a jury would not, unassisted, appreciate what the dangers of the witness's evidence might be. A case which is often cited in this Court is Foo v The Queen [2001] WASCA 406 at [30] in which Parker J, with whom Steytler J and Olsson AUJ agreed, said:

'Notwithstanding the effect of s 50, however, it will usually be essential in this State, in an appropriate case, that a jury receive a clear and emphatic warning from the trial judge of the potential dangers in acting on the evidence of a witness to convict, which dangers exist because that witness is an accomplice, and which the jury might not appreciate without the warning. That will usually be essential whether or not the evidence of the witness is the sole evidence and whether or not there is corroboration of that evidence. The form of the direction may well be different inter alia by virtue of those matters.' (Emphasis supplied)

I quoted that passage myself in Hoy v The Queen [2002] WASCA 275 at [18], and at [19] expressed the view that such a warning may also be appropriate even where the dangers are apparently obvious. However, having regard to the authority which I have discussed, it now seems to me that only if the words which I have emphasised in Foo, relating to 'hidden' dangers, are given their full effect, should that passage be regarded as accurate. The authorities do leave open the possibility that even where a danger is one which a jury will be able to appreciate unassisted, a warning may nevertheless be required. There may, for example, be cases in which, although the danger is apparent, it is a danger which, because of the attractive features of the particular witness, a jury may too readily overlook. However, as the warning is justified by reason of the 'superior experience' of the Courts in relation to particular types of evidence which are apparently safe to act upon (Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521 at 604 per Brennan J), it is likely that it will only be in a very small category of cases that a danger which is apparent to a jury will nevertheless require a warning to be given [77] - [78].

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CECEZ -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 260 (29 November 2007)

Legislation Cited (3)

Cases Cited (24)