DTS v Regina

DTS v Regina - [2008] NSWCCA 329 - NSWCCA 2008 case summary — Zoe

[23]

19 December 2008 DTS v Regina Judgment 1 BEAZLEY JA: On 14 February 2007, the appellant was found guilty of the offence of aggravated indecent assault contrary to the provisions of s 61M(1) of the Crimes Act 1900, being count 1 on the indictment laid against him. The jury returned a verdict of not guilty on count 2 on the indictment, which had charged assault with intent to have sexual intercourse without consent contrary to the provisions of s 66D of the Crimes Act. The jury was not able to reach a verdict on count 3, which was laid alternatively to count 2, of a further offence of aggravated indecent assault contrary to s 61M of the Crimes Act. 2 An offence under s 61M(1) carries a maximum penalty of 7 years imprisonment. 3 On 8 August 2008, Sorby DCJ sentenced the appellant to be of good behaviour for a period of 12 months pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999. 4 The particulars charged in the indictment in respect of count 1 were that between 6 June and 11 June 1991, at Yass, the appellant assaulted the complainant and at the time committed an act of indecency upon her, namely, he touched her breast in circumstances of aggravation, namely, at the time of the offence, the complainant was under the age of 16 years, namely, 12 years of age. 5 The complainant lived with her parents on a country property. The appellant was a family friend and his daughter was married to the complainant's uncle. The appellant was the manager of a business which was conducted out of factory premises at Mortdale. The appellant lived in a flat underneath those premises. The appellant was a regular visitor to the country property where the complainant lived. 6 The appellant was visiting the complainant's family at the property over the Queen's Birthday long weekend in 1991. There was a bonfire and the complainant and a friend had been seated on the ground. The appellant moved to sit between the complainant and her friend and put his arms around them both. With his right hand, he touched and squeezed the complainant's breast and referred to its size.

[31]

Count 3: the second s 61M(1) offence "That between 31 December 1993 and 16 February 1994 at Mortdale [the appellant] assaulted [the complainant] and at the time committed an act of indecency upon her, namely he attempted to remove her shorts in circumstances of aggravation, namely that at the time of the offence she was under the age of 16 years, namely 15 years of age" 9 The facts alleged in respect of counts 2 and 3 were as follows. In January 1994, the complainant was in Sydney and participated in a fishing tournament on 22 and 23 January. The day after the tournament, that is, 24 January, the appellant had lunch with the complainant in the flat underneath the factory premises at Mortdale when, having undone his belt, he chased the complainant around the table, grabbed her and when she fell, pushed her onto her back and pinned her down by her arms. The appellant then tried to undo the complainant's shorts and pull them off. The complainant struggled and said "Don't" and "No" more than once. The complainant was eventually successful in resisting the appellant. The complainant alleged her hands were bleeding from holding on so tightly. The complainant made arrangements to leave the next day and travelled home by train alone. 10 Relationship evidence was also called in relation to counts 2 and 3. 11 The trial judge gave a Murray direction in respect of counts 2 and 3 in the following terms: "The next direction of law that I give you, members of the jury, relates to counts two and three on the indictment. The evidence of [the complainant] was that at the time of the alleged acts by [the appellant] it was just her and [the appellant] who were present in the downstairs flat. Members of the jury, before you can convict [the appellant] on the evidence of the one witness you must carefully scrutinise and evaluate that evidence in the light of the criticisms made of it by counsel for [the appellant] in regard to each of those two counts. It is only after such careful scrutiny and evaluation and if you are satisfied that the evidence is truthful, reliable and accurate that you can use the evidence as a basis for conviction of the two charges, counts two and three alleged in the indictment. I give you this direction because the case against [the appellant] rests almost entirely on the evidence of [the complainant] and when that is the position the direction I have to give you is one that I always give to a jury. The warning is not given because I have a view about the evidence. I give the direction because the law requires that I do so." 12 This direction was the standard form of direction specified in the Judge's Benchbook. 13 At trial, the appellant's solicitor had sought that a more extensive direction be given. His submission was in the following terms: "As for the Murray direction the jury should be told of factors affecting the need to scrutinize the evidence of the complainant with great care; not simply the direction to the jury they must scrutinize her evidence with great care. Kirby J made it clear in Tully v the Queen a point not considered by Crennan J in her majority judgment that he was of that view and said: 'In giving such a direction, it would have been desirable for the judge to remind the jury of the 'particular features of the case which demanded a suitable warning'. Those features included the very young age of the complainant at the time of the alleged offences; the circumstances of her mother's new and ultimately temporary personal relationship with the appellant which could engender animosity and jealousy on the part of the complainant towards the appellant; the long delay between the alleged offences and of the complainant's statement to her mother (or anyone else) about those offences; the explanations given for such a delay, including after the mother's relationship with the appellant ended and the family moved to New South Wales; the inconsistencies that arose between the original statements to police and the evidence under cross-examination in court; and the possible inconsistency of the claim of repeated deep sexual penetration and the intact hymen of the complainant. All of these were matters to be weighed by the jury. But, in accordance with Robinson , they needed to be evaluated by them with the assistance of a judicial warning or comment. Against the background of Alford, they needed to be drawn to notice as issues for the jury's attention in giving real content and substance to the requirement not to convict the appellant except on proof beyond reasonable doubt.'"

[33]

R v Murray (1987) 11 NSWLR 12; (1987) 30 A Crim R 315 14 In a trial by jury, the common law "requires a warning to be given whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case": Bromley v The Queen (1986) 161 CLR 315 at 319, 323-325; Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314 at 330; Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79 at 86, 107. 15 The obligation to give a warning to the jury in respect of uncorroborated evidence was considered in R v Murray. In that case, the appellant had appealed against conviction for various sexual offences committed against a 19-year-old girl. It was submitted, inter alia, that the trial judge failed to adequately direct the jury on six counts that fell within the terms of s 405C(2) of the Crimes Act. This section removed the requirement for the evidence of a woman in a sexual assault case to be corroborated (see now s 164 of the Evidence Act 1995). 16 Counsel for the appellant at trial requested that the trial judge give the direction required at common law, that it is generally not safe to convict on that charge on the uncorroborated evidence. Lee J, with whom Maxwell and Yeldham JJ agreed, held no warning was required in respect of the six prescribed sexual offences. However, Lee J indicated that there may be circumstances where to avoid a miscarriage of justice, the jury should warned that the evidence of an uncorroborated witness must be scrutinised with great care: "Section 405 C (2) has brought about the result that women are no longer, in the eyes of the law, to be put before juries as persons whose evidence requires corroboration before it is safe to act upon it. That concept which has been in the law for a long time has now gone. That, of course, does not mean that a judge cannot draw attention to the absence of corroborating testimony from witnesses who are shown by the evidence to have been present and able to offer corroboration of the girl's story, if it were true, nor does it preclude the judge from making such observations as he considers ought to be made about the credibility of the complainant's evidence, but always with the proviso, of course, that he must make it clear to the jury that those are his opinions and that the weight to be given to the testimony of the woman is entirely a matter for the jury. The fact that a judge does not comment upon the absence of corroboration of the complainant's evidence cannot, in my view, in the case of those offences to which s 405 C applies now be made the basis of a criticism of his summing-up, but again this does not mean that the judge cannot or should not, as is done in all cases of serious crime, stress upon the jury the necessity for the jury to be satisfied beyond reasonable doubt of the truthfulness of the witness who stands alone as proof of the Crown case. 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' evidence is unreliable .

[35]

Robinson v R [1999] HCA 42; 197 CLR 162 17 In Robinson the High Court (Gleeson CJ, McHugh, Kirby, Hayne and Callinan JJ) adopted as correct this statement of the law. The Court was concerned with the operation of s 632 of the Criminal Code (Qld) which provided that a person may be convicted of an offence on the uncorroborated testimony of one witness: subs (1); a judge was not required by any rule of law or practice to warn the jury that it was unsafe to convict on the uncorroborated testimony of one witness: subs (2). However, neither subsection prevented a judge from making a comment on the evidence given in the trial where it was appropriate to make in the interest 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": subs (3). 18 The facts in Robinson involved an assault on a boy aged 8 by a male aged 19. The complainant was involved in a scout's group and the appellant was a scout leader. The complainant and appellant had planned to "camp out" in the backyard of the complainant's home. The complainant's father was in hospital at the time. Because of the weather, the complainant's mother suggested they might use the garage as an indoor camp. The complainant alleged that during the course of the evening, whilst they were in the garage, the appellant sexually assaulted him twice. There was no one else present. The complainant did not tell his mother about the incident for three years. The appellant agreed with the complainant's evidence as to the circumstances in which they had spent the night in the garage, but otherwise denied the sexual assault, or any other indecent or inappropriate conduct towards the complainant. 19 In the trial judge's summing up to the jury, he reminded the jury of the submission which had been made by counsel for the appellant, that the absence of an early complaint may show inconsistency of conduct on the part of the complainant. The trial judge also informed the jury that a delay in complaint was relevant to the complainant's credibility. He made the observation that there may be many reasons why complaint was not immediately made and told the jury they were matters for them to consider. Apart from that, the judge gave no warnings and made no other comment about the nature of the evidence relied upon by the prosecution. 20 An appeal to the Queensland Court of Appeal was dismissed. In the High Court, the appellant argued, inter alia, that the Court of Appeal had erred in deciding there was not an appreciable risk of a miscarriage of justice by reason of the trial judge's failure to give the jury an appropriate warning in relation to the complainant's evidence. The High Court considered that there was merit in this submission. 21 The case had to be determined in light of the provisions of the relevant criminal code. Their Honours noted, at [18]-[20], that s 632(1) did not materially alter the common law and that s 632(2) was not aimed at, and did not abrogate, the general requirement to give a warning whenever it was necessary to do so in order to avoid a risk of miscarriage of justice. Rather, it was directed to the warnings required by common law to be given in certain categories of evidence. Notwithstanding that subs (2) negated any requirement to warn a jury that it was unsafe to convict on the uncorroborated testimony of one witness, that did not mean that in a particular case, there may not be matters personal to the uncorroborated witness, or matters relating to the circumstances generally, which brought into operation the general requirement to give appropriate directions: see Longman v The Queen at 91-94. Their Honours added, at [21], "Moreover, the very nature of the prosecution's onus of proof may require a judge to advert to the absence of corroboration". 22 After referring to R v Murray, their Honours concluded, at [25], that there were particular features of the Robinson case that demanded a suitable warning from the judge. The Court did not attempt to set out all of those matters, but noted that they included the age of the complainant at the time of the alleged offences; the long period which elapsed before complaint, which in that case meant it was impossible for a medical examination to be undertaken in order to verify or falsify the complaint; and the inconsistency in some aspects of the complainant's evidence as to whether penetration had occurred. Their Honour's further noted a curious feature of that case, in that there was the absence of any conversation of any kind between the accused and the complainant about the accused's conduct. In particular, there was no threat and no warning to the complainant not to tell anyone and, thereafter, the complainant and the accused maintained a harmonious relationship. There was no suggestion of any other misconduct by the accused towards the complainant. 23 In the absence of corroboration, these matters created a perceptible risk of a miscarriage of justice, requiring a warning of a kind that brought home to the jury the need to scrutinise with great care the evidence of the complainant, before arriving at a conclusion of guilt. Their Honours stated that the warning should have referred to the circumstances outlined above and should have been expressed in terms which made clear the caution to be exercised in the light of those circumstances.

[36]

Tully v R [2006] HCA 56; (2006) 231 ALR 712 24 The requirement to give a Murray direction and the content of any such direction was considered in Tully v R. In that case, the appellant had been charged with a series of sexual offences against a child under the age of 16 years. The complainant was aged between 9 and just over 10 years of age when the alleged offences occurred. The appellant had been in a personal relationship with the complainant's mother during the period over which the alleged offences occurred. The complainant did not inform her mother of the alleged conduct until about two years after the offences occurred. There was no independent evidence confirming the complainant's allegations, other than an accurate description she had given of a mole near the appellant's penis and a tattoo on each of his buttocks, and the evidence of the complainant's mother of one particular occasion when the appellant and complainant were absent in a car park for so long that the mother began to look for them. However, she gave no evidence of having witnessed any sexual conduct between them. Apart from that, the prosecution case depended solely on the complainant's version of the appellant's conduct towards her. The appellant did not give evidence at trial and nor did he call any evidence in his case. 25 Kirby J and Hayne J each considered that a Murray direction should have been given in that case. Their Honours were in the minority, but nonetheless, their consideration of the circumstances in which such a direction should be given is useful. Kirby J considered that the conviction of the appellant depended upon the acceptance of the evidence of the complainant alone. Apart from the complainant's mother's evidence as to circumstantial features of the case and the complainant's evidence as to the moles and tattoos on the appellant's body, there was an absence of objective reliable confirmatory evidence to support the complainant's testimony: see Kirby J at [54]. His Honour noted that this evidence did not prove the actual offences and it was not inevitably inconsistent with innocence. 26 His Honour, at [57], said: "In giving such a direction, it would have been desirable for the judge to remind the jury of the 'particular features of the case which demanded a suitable warning'." 27 His Honour then identified the features, such as the complainant's age, the relationship of the appellant and her mother and the possibility that that could engender animosity and jealousy; the delay in the complaint and the inconsistencies in the complainant's original statements to police and her evidence in cross-examination, as well as the possible inconsistency of a claim of repeated deep sexual penetration and the complainant's intact hymen. His Honour noted that these were all matters to be weighed by the jury. However, "in accordance with Robinson, they needed to be evaluated by them with the assistance of a judicial warning or comment". 28 Hayne J also considered that the issues in Tully were not materially different from those which arose and were considered in Robinson. His Honour stated, at [91], that it was necessary for the trial judge to point out to the jury the need to scrutinise the complainant's evidence with care when deciding those issues, before convicting the appellant. 29 At [93], his Honour made a comment about the use of bench books (that is, standard forms of instructions to the jury) and said, properly used, such books are invaluable. His Honour continued: "But there is a risk that the prescription of common forms of instruction, which must necessarily be framed without reference to specific facts, and thus in abstract terms, will be used without relating them to the issues that the jury has to decide … The bare recitation to a jury of the relevant sections of a bench book of standard instructions, unrelated to the real issues in the case, does not fulfil the trial judge's task. In particular, to recite the terms of a form of Longman or Robinson direction, without relating that direction to the issues that the judge has identified for the jury as the real issues in the case, will ordinarily not suffice." 30 Callinan J also referred to the principle in Robinson. His Honour observed, at [131], that it was important to focus upon the principles stated in that case, rather than a comparison of its facts with the facts before the Court. His Honour considered that in Tully there had been no error in failing to give a direction. In particular, the complainant's evidence of the distinctive marks on the appellant's body, even though not constituting corroboration as such, was a relevant consideration. In addition, there was evidence that made the delay in complaint plausible. 31 Crennan J, with whom Heydon J agreed on this question, also rejected the need for a Murray type direction in Tully. Her Honour held that there was no forensic disadvantage to the appellant arising out of the explained delay. Further, the particular circumstances of the complainant's age, the sexual nature of the offences, the explained delay between the offences, the report and trial, and the inconsistencies in the complainant's evidence, were all matters which could be evaluated by the jury in the light of their own experiences. Her Honour considered it was not necessary for the trial judge to give a warning in those circumstances to avoid a miscarriage of justice.

[38]

Did the trial judge err in failing to give a Murray direction in respect of count 1? 36 The first question for redetermination is whether this was a case where a Murray direction should have been given in respect of count 1. As I have already indicated, the circumstances surrounding count 1 involved the complainant and a friend sitting near a bonfire, when the appellant came and sat between them. The friend also gave evidence that she and the complainant had been sitting at the bonfire, when the appellant came and sat between them. However, she identified the appellant as being on her left, meaning that she also was sitting to his right. This was inconsistent with the complainant's evidence, who said that she was sitting on the appellant's right. The friend gave evidence that the appellant put an arm around her shoulders and an arm around the complainant's shoulders. She said this was for a few seconds and that she and the complainant had got up and walked away. 37 The appellant submitted that although proof of count 1 relied in part upon the complainant's friend's evidence, her evidence did not tend to confirm one or more elements of the offence charged, that is the touching of the complainant's breast, and was thus not legally corroborative of the complainant's evidence. 38 In R v Baskerville [1916] 2 KB 658, Lord Reading CJ said, at 667: "We hold that evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime has been committed, but also that the prisoner committed it." 39 In R v Kilbourne (1973) AC 729; [1973] 1 All ER 440, Lord Simon of Glaisdale expressed the concept in these terms, at 758: "Corroboration is therefore nothing other than evidence which 'confirms' or 'supports' or 'strengthens' other evidence. It is, in short, evidence which renders other evidence more probable. If so, there is no essential difference between, on the one hand, corroboration and, on the other, 'supporting evidence' or 'evidence which helps to determine the truth of the matter'." 40 In Doney v R [1990] HCA 51; (1990) 171 CLR 207, in the plurality judgment of Deane, Dawson, Toohey, Gaudron and McHugh JJ, their Honours adopted the above statements at 211, [7]-[9] and added: "It is not necessary that corroborative evidence, standing alone, should establish any proposition beyond reasonable doubt. In the case of an accomplice's evidence, it is sufficient if it strengthens that evidence by confirming or tending to confirm the accused's involvement in the events as related by the accomplice. See Baskerville, at p 667; Reg. v. Hester (1973) AC 296, at p 325."

[39]

See also BRS v R [1997] HCA 47; (1997) 191 CLR 275 per Brennan CJ at 282-283 and Kirby J at 324; Doggett v R [2001] HCA 46; 208 CLR 343 per McHugh J at 359, [66]-[68] (with whom Gleeson CJ agreed) who stated, " in determining whether evidence constitutes corroboration, the question for the judge is whether a reasonable jury could regard the evidence as 'increasing the probability that the complainant's entire testimony was truthful' : citing R v M [1994] QCA 007, [1995] 1 Qd R 213 at 221 per Davies JA, with whom McPherson JA and Williams J agreed. 41 It is apparent from the majority judgments in Tully that corroboration in the strict legal sense is not necessarily the determinant of whether a Longman direction must be given: see Callinan J at [132]. The purpose of such a warning is to ensure a fair trial and to avoid a miscarriage of justice: see Crennan J at [180]. Her Honour noted, as had been made clear in Longman, it is not imperative to give a warning merely because the circumstances included allegations of sexual misconduct, or because the complainant was young, or because of any delay in complaint. 42 In this case, the complainant's evidence of the circumstances in which the offences charged in count 1 occurred, found support in the evidence of her friend, notwithstanding some inconsistency between the two accounts. It was open to a jury to regard that inconsistency as not being crucial. Rather, it was open to them to accept the more critical aspects of the evidence, namely, the occasion, location and the circumstance of touching each girl, other than the circumstance of the appellant touching the complainant's breast. Had the complainant's friend seen that, her evidence would have been fully corroborative of the complainant's evidence. 43 The appellant's solicitor, in his address to the jury, identified the discrepancies in the evidence of the two girls. It was not necessary for the trial judge to repeat those matters. His obligation was to give any direction necessary to ensure that the appellant had a fair trial. For the reasons that I have given, that did not require his Honour to give a Murray direction.

[41]

Did the trial judge err in giving in general terms a Murray direction? 46 Strictly, this question does not arise, as the trial judge only gave a direction in relation to counts 2 and 3 and in my opinion, was not required to give any such direction in respect of count 1. However, as the issue was raised, it is appropriate to observe that in Robinson, the High Court stated that such a direction should be related to the circumstances of the case. The remarks of Kirby J, in Tully, as to the content of the direction, accords with what the Court had said in Robinson, as do the comments of Hayne J to which I have referred: see [25] ff above. 47 Finally, the appellant contended that the caveat the trial judge placed at the end of his directions, namely, that he was giving the direction as he was required by law to do so, significantly limited the force and authority that such a direction ought to have. Again, this matter does not arise, as a Murray direction was not required. However, it should be noted that in Longman Deane J adopted the comment of King CJ in R v Pahuja (1987) 49 SASR 191; 30 A Crim R 118 at 125, that a judge: "… is free to frame the caution or warning in such terms as he sees fit. It must be clear to the jury, either from a specific direction or at least from the general tenor of the summing up, that they are free to reject the judge's suggested approach to the evidence of the alleged victim or any views which he might express on such questions of fact. He must not convey the impression that the caution or warning is given as a matter of law." 48 Had this Murray direction been in issue in this case, there may have been a real question as to whether the trial judge erred in the direction he gave. 49 Having regard to what I have said above in relation to the content of a Murray direction, I should draw attention to the fact that King CJ, in Pahuja, also considered that a jury warning may be given in conventional terms, or in such terms as the trial judge considered appropriate. This part of his Honour's statement was also endorsed by Deane J. However, this approach must now be read in light of the later statement of the High Court in Robinson and the comments of Kirby and Hayne JJ in Tully. 50 Accordingly, the principle challenge upon which the appeal has been brought has not succeeded.

[44]

[The appellant] has categorically denied each alleged incident that forms the other acts with the exception of the Christmas presents to [the appellant] which he said was part of presents that he gave to all of [the appellant's] family." 53 Prior to his Honour giving this direction, the appellant's solicitor had sought a direction that such evidence needed to be proven beyond reasonable doubt. In seeking that direction, the solicitor relied upon Gipp v R [1998] HCA 21; (1998) 194 CLR 106; R v FJB (1999) 105 A Crim R 567 at 577. Alternatively, he sought the jury be directed that they may think it should be proven beyond reasonable doubt: Shepherd v R [1990] HCA 56; (1990) 170 CLR 573. 54 In his submissions to this Court, Mr Walsh referred to the High Court's recent decision in HML v The Queen; SB v The Queen; OAE v The Queen [2008] HCA 16; (2008) 82 ALJR 723 and in particular, to certain remarks made by Hayne J (see [102] ff) relating to the admissibility of the sexual conduct of an accused person other than in respect of the offence charged. Mr Walsh contended that his Honour's judgment supported his submission that the jury ought to have been directed that the evidence of the other conduct needed to be proved beyond reasonable doubt. 55 However, the High Court in HML was not of one mind on this issue and there is a question, in any event, as to whether the decision, which was made in a common law context, applies in this State. The judgments in HML were analysed by McClellan CJ in CL in this Court in the recent decision of DJV v R [2008] NSWCCA 272. Having regard to his Honour's analysis of the issues, it is unnecessary for me to engage upon that process. Rather, it is sufficient, having regard to the issue in this case, where the evidence was adduced as relationship evidence, not tendency evidence, to apply the law as stated by McClellan CJ at CL (with whom Hidden and Fullerton JJ agreed), at [31] that: "Context evidence does not require a direction that it be proved beyond reasonable doubt."'

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