Court of Appeal (WA)|1999-12-01|Before: Malcolm CJ

Latham v The Queen [2000] WASCA 57 (1 December 1999)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : LATHAM -v- THE QUEEN [2000] WASCA 57

Criminal law and procedure - Unsafe and unsatisfactory verdict - Applicant acquitted of nine counts of sexual offences and convicted of two counts of indecent dealing - Whether trial Judge's directions regarding burden of proof and corroboration inadequate - Convictions quashed and retrial ordered

M v The Queen, unreported; CCA SCt of WA; Library No 980452, 12 August 1998

R v Kirkham (1987) 44 SASR 591

1 MALCOLM CJ: This was an application for leave to appeal against conviction. On 19 July 1999 the appellant was convicted on counts (8) and (9) on an indictment which contained 11 counts alleging sexual offences committed on the complainant by the appellant between 1 January 1995 and 25 December 1995 at Kellerberrin. The appellant was acquitted on nine of the counts. The two counts of which he was convicted were counts (8) and (9) which alleged that in each case on a date unknown between 1 January and 25 December 1995 at Kellerberrin the appellant indecently dealt with the complainant, a child under the age of 13 years, contrary to s 320(4) of the Criminal Code. Count (8) alleged that the appellant showed the complainant magazines containing explicit sexual photographs, vibrators, condoms and photographs. Count (9) alleged that the appellant told the complainant to put on a G-string in front of him.

2 At the conclusion of the argument of the application for leave to appeal on 1 December 1999 the Court was unanimously of the opinion that the appellant be granted leave to appeal, the appeal be allowed and the convictions in respect of counts (8) and (9) should be quashed and so ordered. The Court reserved its decision on the question whether or not there should be a re-trial and indicated that the reasons for judgment would be published later. These are my reasons.

3 The application for leave to appeal against conviction dated 5 August 1998 was originally based on six grounds which were concerned with:

(1) the inadmissibility of part of the complainant's video-recorded evidence on the ground that the recording was inaudible;

(2) the absence of a warning that it was dangerous to convict on the uncorroborated evidence of the complainant;

(3) the failure to direct the jury that the absence of timely complaint could be used to assess the credibility and reliability of the complainant's evidence;

(4) the admission into evidence of photographs of pornographic material seized at the applicant's house more than a year after the alleged commission of the offences which the complainant was not asked to identify;

(5) the failure of the learned trial Judge to direct the jury that such photographs could not corroborate the evidence of the complainant; and

(6) the verdict of the jury was unsafe and unsatisfactory in all the circumstances.

4 At the hearing of the application and with the consent of the Crown, the appellant sought and obtained leave to amend the grounds of appeal by deletion of the original grounds and substitution of five new grounds. In summary these were:

1. The learned trial Judge erred in failing to direct the jury that:

(a) It was unsafe to convict the applicant on the uncorroborated evidence of the complainant or, alternatively, that they should only convict having scrutinised the complainant's evidence with great care.

(b) [Specifically in relation to counts (8) and (9)] the evidence obtained by way of search warrant did not amount to corroboration unless the jury were satisfied that the complainant had not seen material of this type on an occasion prior to the commission of the offences without the accused being present, and further, that the jury should scrutinise the complainant's evidence with great care in regard to these counts and in considering the circumstances relevant to its evaluation and paying heed to the warning that they must be satisfied of the truth and accuracy of the complainant's evidence before they convict.

This ground was supported by a number of particulars.

(a) In failing to direct the jury on the issue of corroboration separately from his outline to the jury of the Crown case.

"The only use that the Crown makes of that evidence and invites you to make of that evidence and I tell you to make of that evidence is, according to the Crown, the finding of that material in the suitcase supports the complainant's story with respect to counts (8) and (9) where, as you remember, she says that material was shown to her ..."

in that the learned trial Judge suggested that the evidence was corroboration as a matter of law and further, his statement that she says the material was shown to her when as a fact it was not.

(c) In failing to direct the jury in the clearest terms that unless the jury was satisfied as to the truth and reliability of the complainant's denial that she had access to the suitcase at a prior time, the search warrant evidence could not amount to corroboration; and if they accepted the complainant's evidence, that did not establish in and of itself that the accused was guilty of the offences.

(d) In failing to direct the jury that if they found the complainant lacking in credibility or reliability in relation to the other counts, they could use that finding in relation to their assessment of the complainant's credit and reliability in relation to her denial that she had previous access to the suitcase.

(e) In failing to direct the jury that they could find that the suitcase evidence was neutral and did not corroborate.

3. The learned trial Judge erred in directing the jury:

"Therefore, at the end of the day, for example, if you are unable to say which side - which evidence you prefer, you don't think she's a liar, you don't think he's a liar; say - just by way of example - if you just can't make up your mind then the Crown hasn't proved its case and you would have to acquit, because you couldn't say to yourselves that you're satisfied beyond reasonable doubt."

In all the circumstances, the Judge should have given a direction in terms of Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507 at 515 per Brennan J.

4. The learned trial Judge erred in repeating the Crown's submission to the jury of the:

"unlikelihood that a young girl like the complainant could make up stories like that."

and erred further by failing to direct the jury that by starting or finishing with that approach was irrelevant to their deliberations and that it was likely to lead them into error by reversing the burden of proof (Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1).

5. The verdicts of guilty on counts (8) and (9) were unsafe and unsatisfactory on a number of grounds.

5 At the outset of the hearing of the application, counsel for the Crown informed the Court that the Crown took the view that, if the Court accepted the construction of the directions to the jury the subject of grounds 3 and 4 urged by the appellant, that would demonstrate a fundamental error.

6 At a very early stage in his summing up to the jury, the learned trial Judge explained that there were 11 counts on the indictment and that the prosecution had the responsibility of proving the case. His Honour went on to say:

"An accused person does not have to prove anything, as you have been told. In fact, an accused person is presumed to be innocent; and this man is innocent at this time and will remain so unless you, as a jury, are convicted beyond reasonable doubt that he is guilty, that his guilt has been proven. The prosecution has to prove its case. An accused person does not have to prove his innocence or her innocence. An accused person is presumed to be innocent.

Therefore, at the end of the day, for example, if you are unable to say which side - which evidence you prefer, you don't think she's a liar, you don't think he's a liar; say - just by way of example - if you just can't make up your mind then the crown hasn't proved its case and you would have to acquit, because you couldn't say to yourselves that you're satisfied beyond reasonable doubt.

The level to which the prosecution must prove its case is beyond reasonable doubt. It's a high standard of proof, the highest standard our justice system knows of. It's a higher standard than the standard you would normally apply in your everyday lives where you would - if you think about it - ask yourselves, 'is this more likely than that?' 'do I think this or do I think that?'. That's the balance of probabilities. That's a lower standard. So it's a high standard of proof, beyond reasonable doubt.

The prosecution seeks to prove its case by calling witnesses. There have only been two witnesses in this case. In some cases there is only one witness so don't worry about the numbers of witnesses but it seeks to prove its case by calling witnesses who have given evidence from the witness box or, and I include, the video because the young lady there was on oath and she was in a sense in a witness box so I include that although of course as you no doubt have not forgotten, we heard her evidence via video in circumstances of some difficulty but you are asked to assess the credibility and reliability of witnesses who have given evidence in the court on oath.

Of course the accused person has also given evidence on oath and so the same applies to him. You are asked to and your job is to decide whether you accept what a witness says or not. Are you satisfied beyond reasonable doubt of a witness's credibility and reliability? The two issues are separate if you think about it."

7 It was conceded by the Crown that this direction was clearly wrong in law, insofar as it suggested that the evidence of the accused could not be accepted unless the jury were satisfied beyond reasonable doubt of his credibility and reliability. In the circumstances, I do not consider that the damage done by the relevant statement was counteracted by the earlier statement by the learned trial Judge that, if the jury could not make up their mind which evidence they preferred, the Crown had not proved its case and they would have to acquit.

8 In Liberato v The Queen, supra, Brennan J said at 515:

"When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence of the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue."

9 Deane J at 518 agreed with Brennan J and also said at 519 - 520 that:

"Overall, it appears to me that it is more probable than not that the learned trial judge's orthodox directions on the standard and effect of the onus of proof would have prevailed over the effect of the misdirections. It is, however, impossible to do more than speculate in that regard. There must remain a significant possibility that the members of the jury were at the very least confused about the nature and operation of the criminal onus to the extent that they saw their task as essentially one of making a 'choice' between the crown evidence and the evidence called and statements made on behalf of the accused and is involving no more than a decision about whether or not, to adapt the words of the learned trial judge at one stage of his summing up, they should 'believe' the complainant 'on the whole of the evidence'."

10 His Honour went on to say at 520 that there could be no room for the application of the proviso to s 353(1) of the Criminal Law Consolidation Act 1935 (SA):

"... in an appeal where there is a significant possibility that, by reason of misdirection by the learned trial judge, a jury has convicted on the basis of a choice between the crown and defence witnesses as distinct from being satisfied beyond reasonable doubt of the ingredients of the charge against the accused."

"If some members of the jury in a criminal trial have, by reason of misdirection, failed to comprehend that the finding of guilty cannot be based merely on a failure to believe the accused or on a choice between the crown and defence witnesses, the accused is being denied a trial in accordance with law and, in the event of a conviction there has been a fundamental miscarriage of justice. That being so, the court of criminal appeal could not, in the present cases, properly have been satisfied for the purpose of the proviso that 'no substantial miscarriage of justice' had 'actually occurred'. The reason is that a court of criminal appeal can only properly be so satisfied, in a case where there has been fundamental misdirection if the circumstances are such that it is clear that there is no real possibility that justice has miscarried by reason of that misdirection; cf Mraz v The Queen [1955] HCA 59; (1953) 93 CLR 493 at 514."

11 In this case there was no specific direction to the jury to the effect that even if they positively disbelieved the accused they still could not convict him unless the Crown had satisfied them of the appellant's guilt beyond a reasonable doubt.

12 In the present case, counsel for the defence raised the matter with the learned trial Judge and said that:

"There's just one brief matter I would seek to mention. It relates to your Honour's direction to the jury in relation to the standard and burden of proof. The note I have got of your Honour's charge in that respect is that if the jury is unable to be satisfied and they don't think the accused is a liar or that the complainant is a liar, they have to acquit, and then, further on, the job of the jury is to accept or decide whether they accept a witness's evidence beyond reasonable doubt.

In my submission, Sir, in a case such as this which involves word against word, oath against oath, the jury should have been directed that the Crown case depends upon them accepting the evidence of its principal witness beyond reasonable doubt, notwithstanding the sworn denial by the accused, and they don't have to believe the accused is telling the truth before he's entitled to an acquittal."

"FENBURY DCJ: I didn't say it in so many words but I think I have covered those areas, haven't I? Is that an authoritative phraseology you're using there?

COLLINS, MR: Trying to use it authoritatively, Sir. The decision I have effectively taken my decision from is---

FENBURY DCJ: I didn't spell it out in that concise nutshell fashion but I'm sure or I think I have given them no doubt about issues generally.

COLLINS, MR: My concern, your Honour, is that the comment that the jury has to be satisfied beyond reasonable doubt of the evidence of witnesses has the potential to confuse the jury into thinking that they have to be satisfied beyond reasonable doubt as to the account of the accused that he's telling the truth before they can acquit and, in my submission, that's not the case.

FENBURY DCJ: They couldn't possibly have that view considering how I laboured the golden rules at the beginning, surely. You think they might?

MACTAGGART, MR: May I be heard in reply to that briefly your Honour?

MACTAGGART, MR: With due respect to my learned friend the jury, having regard to the way your Honour fairly set out the various cases and the observations your Honour made particularly as to the complainant's evidence, could be left with no such confusion that my learned friend complains of. Your Honour quite appropriately drew the jury's attention to the necessity of deciding, beyond reasonable doubt, whether the complainant's evidence was true or not. With due respect to my learned friend, the jury could, with respect, be left with no such impressing [sic impression] having regard to the careful direction your Honour gave to the jury.

Your Honour's directions have been quite adequate on that matter and I simply make this observation because really what my learned friend is inviting your Honour to do is to make another point that goes to his defence which he's been inviting your Honour to do all along, when your Honour has quite properly and adequately set out the case, given careful directions as to the law which aren't complained about and I simply make the submission that the jury could be left with no such impression as that which my learned friend contends for. May it please your Honour.

FENBURY DCJ: Well, I don't think I will bring them back. Thank you, Mr Collins and Mr Mactaggart. I think I have adequately done it, for want of a better way of putting it, so we will now adjourn and await the return of the jury and will reconvene shortly for another matter."

13 It appears that the learned Judge did not appreciate that he had not told the jury that even if they positively disbelieved the accused they still could not convict him unless the Crown had satisfied them of his guilt beyond a reasonable doubt. In my opinion ground 3 was made out.

14 As to ground 4, at p 231 of the transcript, the following appears in the summing up:

"The complainant was cross-examined on the video at length by counsel for the accused Mr Collins so that you have seen her evidence tested and you've observed that process so critical to the Crown case is the evidence of the complainant. Without that evidence, really there is no case. You are required to assess the complainant's truthfulness and reliability and the Crown invites you to accept her as a reliable and truthful witness.

The Crown says and places emphasis upon the point, that when one looks at the evidence of the complainant, it contains detail of such quality and quantity that it could not possibly be fabricated by this complainant who was between 10 and 11 years of age at the time of events and 12 when she reported them. The Crown emphasises that general submission to you and the Crown points to the detail that the complainant gave and the Crown points to the unlikelihood that a young girl like the complainant could make up stories like that, could give detail like that."

15 This suggested that the complainant did not have a motive to lie. In Palmer v The Queen, supra, at 7 Brennan CJ, Gaudron and Gummow JJ said:

"It is one thing to permit cross-examination of a complainant in order to elicit, if possible, a motive to lie. It is another thing to permit cross-examination of an accused to show that an accused cannot prove any ground for imputing a motive to lie to the complainant. A complainant knows whether he or she has a motive to lie and, as a motive to lie is a fact that may be proved to impeach the complainant's credit, the complainant may be asked about it. And evidence may be given by other witnesses of events from which such a motive may be inferred ... but the fact that an accused has no knowledge of any fact from which a motive of the kind imputed to a complainant in cross-examination might be inferred is generally irrelevant. In general, an accused's lack of knowledge simply means that his evidence cannot assist in determining whether the complainant has a motive to lie, but if the facts from which an inference of motive might be drawn are facts that the accused would know if they existed, his lack of knowledge could be elicited to disprove those facts."

At 7 - 9 their Honours quoted with approval the following passage in the judgment of Gleeson CJ speaking for the Court of Criminal Appeal of New South Wales in F v R (1995) 83 A Crim R 502 at 511 - 512:

"[T]he 'central theme' of the case, according to the trial judge, could be found in the question, 'Why would the complainant lie'? That is a question, often left unspoken, which usually hovers over cases of this nature ... Whilst that question, sometimes spoken, sometimes unspoken, is often of great practical importance, it is never 'the central theme' of a criminal trial. At a criminal trial the critical question is whether the Crown has proved the guilt of the accused person beyond reasonable doubt. Just as the law does not require the Crown to prove a motive for the criminal conduct of the accused, the law does not require the accused to prove a motive for the making of false accusations by a complainant."

16 In R v G [1994] 1 Qd 540 at 545 - 546 Pinkus JA said in the Court of Appeal of Queensland:

"[F]or a judge to give a direction implying that, ordinarily, a young complainant in a sexual abuse case is unlikely to invent and adhere to the allegations is difficult to reconcile with the direction (which the learned trial judge gave) that it is dangerous to act on such a complainant's uncorroborated evidence."

17 The direction in this case was of the former kind. It was conceded on the part of the Crown before us that while neither of these two grounds taken separately may necessarily have deprived the appellant of a fair trial, when taken together it would be difficult to say that the appellant "ultimately got a fair trial". In the end, in my opinion, when the two points in grounds 3 and 4 are taken together and, particularly having regard to what was said in R v G, the combination of the misdirection in relation to the onus of proof and the endorsement by the learned Judge of a submission made by the Crown about the unlikelihood of a young girl like the complainant making up stories, would necessarily result in a miscarriage of justice.

18 It follows that grounds 3 and 4 were made out and that the convictions had to be quashed.

19 It was submitted on behalf of the appellant that the learned trial Judge should have given a "limited" direction of the kind indicated in ground 1(a), namely, that the jury should only convict if, having scrutinised the complainant's evidence with great care, they were satisfied beyond a reasonable doubt of its truth: cf Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79 at 86 - 87 per Brennan, Dawson and Toohey JJ.

20 Whether any, and if so what, warning is required depends on the particular circumstances of the case: Longman at 88 per Brennan, Dawson and Toohey JJ. Their Honours also said at 89 - 90:

"The complaint which an appellant might make when a trial judge refuses to give a warning under the general law is that the Judge erred in failing to be satisfied that the circumstances justified a warning."

21 In this particular case there was a lack of precision in relation to the dates upon which the alleged offences were said to have occurred and a delay in making a complaint of one to two years.

22 Having referred to that delay, the learned Judge said:

"The issue having been raised by you, then I'm obliged by the Evidence Act to tell you that absence of complaint at the time or delay in complaining does not necessarily indicate that a complainant's allegation that an accused committed offences is false. I mean, it could, depending on what view you took, but it does not necessarily mean that at all. There may be good reasons why a victim of sexual offences such as those alleged refrains from making a complaint concerning those offences.

Now, according to the complainant, the events that she describes occurred between one and two years before she went to the police and gave a statement to the police so there was a delay of one to two years and you should consider whether or not there is a possibility of a mistake or confusion in recollection and memory because of the passage of that time.

Obviously, depending upon the length of delay, there can be mistakes made. I am not saying there have been here or there are likely to have been but it is a matter for you to bear in mind. As to most of the counts, those not related to the pornographic material which are counts 8 and 9, there is no independent evidence to support the complainant's story. Now, of course, ladies and gentlemen, sexual misconduct like this usually takes place in private so it is difficult for a complainant, a person like [the complainant], to produce supportive independent evidence in the form of witnesses.

Similarly, for the same reason, it is difficult for an accused person to produce evidence to refute or to fight such an allegation. It is also, ladies and gentlemen, considering the delay and the lack of preciseness as to the date on which each offence occurred, difficult for an accused person to examine and test the evidence in detail. In a sense it could be said that an accused is at a disadvantage because of the delay.

For example, had a complaint been made within a short time of the offences occurring then the accused may have been able to answer the charges by, for example, calling evidence of what he was doing on those days. So there is no independent evidence with respect to the counts except for counts 8 or 9 but there does not have to be. You can act on the evidence of the complainant alone, ladies and gentlemen, if, after considering her evidence and weighing it up carefully, you are convinced beyond reasonable doubt of its truth and accuracy. It is up to you."

23 His Honour went on to refer to the Crown case relying "heavily, if not entirely almost, on the evidence of the complainant".

24 Specifically, so far as the need for corroboration was concerned, in relation to counts (8) and (9) the learned trial Judge said:

"As to most of the counts, those not related to the pornographic material which are counts 8 and 9, there is no independent evidence to support the complainant's story."

"So there is no independent evidence with respect to the counts except for counts 8 and 9 but there does not have to be."

26 In my opinion it would have been desirable and appropriate at this point for the learned Judge to have directed the jury that they should only convict the appellant in respect of any one or more of the counts other than counts (8) or (9) if, having scrutinised the complainant's evidence with great care, they were satisfied beyond reasonable doubt of its truth in relation to the particular count that they were considering.

27 As to counts (8) and (9), evidence was given of the discovery of two locked suitcases in a shed at the appellant's house which contained explicit sexual photographs, vibrators, condoms and photographs. As to that evidence, the learned Judge told the jury:

"It is very important, ladies and gentlemen, that you don't misuse that evidence of what's found in the suitcases. This is not a court of morals or private sexual matters. It's not illegal to have that material for an adult. It is legal for adults to acquire that sort of material and you must not think ill of the accused person because he had material like that in a suitcase in his bedroom. Apparently his wife knew about it, according to the accused, and really it's his business. This case is not about that material and it's not illegal to have that sort of material. Don't allow any prejudice you might feel about seeing that to affect your judgment.

It's also very important, ladies and gentlemen, and I emphasise because the accused person had that material, you couldn't say he was a person likely to do the sorts of things the complainant says. That does not follow and that's not why the Crown has put that material in, why they have been allowed to. That would be a very wrong way to use that evidence. The only use that the Crown makes of that evidence and invites you to make of that evidence and I tell you to make of that evidence is, according to the Crown, the finding of that material in the suitcase supports the complainant's story with respect to counts 8 and 9 where, as you remember, she says that material was shown to her and she says she was asked to put in a G-string.

The Crown says that sort of material was found in the accused's room, albeit some one year to two years later, in a suitcase. Queried whether it was the same suitcase - the girl said a dark suitcase I think initially, but it's the finding of the material the Crown points to and the Crown says that the finding of that material supports the complainant's reliability and credibility in respect of counts 8 and 9. The Crown says that if you think it does, then you can use that conclusion about her credibility and reliability generally, not just with respect to counts 8 and 9.

If you concluded that it had the effect the Crown says, then you could use any conclusion you reached about her credibility and reliability generally."

"With respect to the material in the suitcase, the defence says that the finding of it by police does not necessarily support the complainant's credibility or reliability at all because the defence says the complainant had access to it previously. She used to take and look at it without permission. The defence says that is why he put a lock on it. As to that in reply, the Crown says or argues that the complainant was too young at the time to interfere in - or to be interested in that sort of material and the Crown offers the theory that the accused put a lock on it so that others would not know that he had it. Well it's for you to decide about all of that, ladies and gentlemen."

29 As the applicant admitted the existence of the material in the suitcase on the wardrobe in the bedroom, the search warrant evidence only confirmed or supported or strengthened the complainant's evidence in the sense that it rendered it more probable, if it was established on the evidence by the Crown that the complainant had not independently seen this material. It was submitted that the jury should have been directed that if they were unable to make that positive finding in favour of the Crown then the search warrant evidence was neutral and did not amount to corroboration. Further, by the trial Judge putting his direction intermingled with the Crown and defence case, it was said that it was likely to lead to confusion in the jury's mind what the actual direction was, particularly the statement by the learned Judge:

"The only use that the Crown makes of that evidence and invites you to make of that evidence and I tell you to make of that evidence is, according to the Crown, the finding of that material in the suitcase supports the complainant's story with respect to counts 8 and 9 ..."(my italics)

30 It was submitted on behalf of the Crown that in this passage the learned trial Judge was simply telling the jury how to approach the evidence. In my opinion, however, the learned Judge went further than telling the jury that they were entitled to rely on that evidence, if they accepted it, as supporting in the sense of corroborating the complainant's evidence with respect to counts (8) and (9). The jury should have been told that they were entitled to use that evidence, if they accepted it, to support the complainant's evidence by way of corroboration. For that purpose it was necessary for the jury to be told what is meant by corroboration and to give to the jury a broad indication of the evidence which the jury, if they accept it, may treat as corroboration. As it was, the direction was couched in terms that they should make use of the evidence as supporting the complainant's story with respect to counts (8) and (9). In my opinion this was a misdirection. The function of the trial Judge was to identify evidence which, if accepted by the jury, was capable of corroborating the evidence of the complainant rather than to instruct them to make use of the evidence for that purpose. It is a question of law to be decided by the Judge whether there is evidence capable of amounting to corroboration; it is for the jury to decide whether the evidence does in fact corroborate the evidence of the complainant and what weight to give to that evidence: R v Baskerville [1916] 2 KB 658 at 667 per Lord Reading CJ; Eade v The Queen [1924] HCA 9; (1924) 34 CLR 154 at 159 per Isaacs and Rich JJ. Baskerville was applied by the High Court in Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207 at 211 per Deane, Dawson, Toohey, Gaudron and McHugh JJ. In that case their Honours also said at 211 that it was well settled that corroboration could take the form of circumstantial evidence citing Baskerville at 667; R v Tripodi [1961] VicRp 30; [1961] VR 186 at 190-191; and Medcraft v The Queen [1982] WAR 33 at 40, among other authorities. In particular their Honours said at 211:

"It is not necessary that corroborative evidence , standing alone, should establish any proposition beyond reasonable doubt... it is sufficient if it strengthens the evidence by confirming or tending to confirm the accused's involvement..."

31 These and other decisions, including the leading Western Australian case of Khan v The Queen [1971] WAR 44 at 53 per Burt CJ were referred to in my judgment in Markovina v The Queen (1996) 16 WAR 354 at 364-367, with which Walsh and Wallwork JJ agreed and which was recently followed and applied in Monk v The Queen [1999] WASCA 27 at [80] - [85] per Wallwork J, with whom Malcolm CJ and Ipp J agreed. The jury should have been told that they were entitled to use that evidence, if they accepted it, to support the complainant's evidence by way of corroboration. As it was, the direction was couched in terms that they should make use of the evidence as supporting the complainant's story with respect to counts (8) and (9). In my opinion this was a misdirection. The function of the trial Judge was to identify evidence which, if accepted by the jury, was capable of corroborating the evidence of the complainant rather than to instruct them to make use of the evidence for that purpose. Had this been the only ground of appeal, it may not necessarily have caused a miscarriage of justice but, when taken together with grounds 3 and 4, it provides further support for the conclusion that the trial was unfair and there was a miscarriage of justice.

32 It was also submitted on behalf of the appellant that the jury should have been told that the relevant evidence only supported the complainant's evidence in the sense that it rendered it more probable that it was true, if it was established by the Crown that the complainant had not previously independently seen the material in question. I am unable to accept that submission. The question whether the complainant had previously seen the material was relevant only to the truth or veracity of her evidence that she was shown the relevant material at the time the offences the subject of counts (8) and (9) were alleged to have been committed. The question was whether the jury accepted her evidence that she was shown the relevant material at that time. The jury did not have to be satisfied beyond reasonable doubt that she had not previously seen the relevant material. If she had, that was a matter to be taken into account in weighing the credibility of her evidence regarding what happened when she said that the offences the subject of counts (8) and (9) occurred.

33 Finally, it was said that the learned Judge, while reminding the jury of the Crown's response that the complainant was too young to be interested in that sort of material, failed also to remind the jury of evidence that the complainant had found and looked at pornographic magazines in the shed while the applicant was away. The applicant gave evidence that the suitcase of material was in his room at the time of the alleged incident. He said that he was only guessing that the complainant saw them of her own accord, because he says on occasions he found the contents "mainly gone" after he had been away from the home for a period. He also said he had found some of the pornography, vibrators and a G-string in the complainant's room "sometimes". He said he would just put them back in the case and subsequently had a padlock put on it.

34 He said that on one occasion he found some of the contents, including vibrators and similar sexual material, in the complainant's room which she shared with her 4 year old nephew, simply lying on her bed at a time when the complainant was 11 years old. He also said that there was pornography similar to that in the case in the shed at the back of his home and upon returning home he would also find the contents in her room. In my opinion, these matters had been sufficiently canvassed before the jury by counsel during the trial and it was not necessary for the learned trial Judge to have specifically referred to them, although it may well have been desirable to do so. I do not consider that the failure of the learned trial judge to deal specifically with them was productive of any unfairness constituting a miscarriage of justice.

35 Ground 5 contended that the convictions on counts (8) and (9) were unsafe and unsatisfactory because:

(a) the applicant was acquitted of nine counts and convicted of two; the misdirections and absence of directions set out in the previous grounds;

(b) the verdicts of acquittal on nine counts indicated that the jury had not accepted the complainant as a credible or reliable witness;

(c) the two charges that the jury convicted on were the only counts the Crown alleged were corroborated; the fact of corroboration depended on the jury accepting the complainant's evidence that she had not seen the material in the suitcase on a prior occasion;

(d) the Crown was required to negative the applicant's assertion that the material was neutral which required the complainant to be a credible and reliable witness;

(e) the findings on the nine counts of "not guilty" could only be made on a negative assessment of the complainant's credit with the result that her evidence failed to carry sufficient conviction to reach the criminal standard of proof on counts (8) and (9); and

(f) the direction by the learned trial Judge that the applicant's evidence should only be accepted if the jury was satisfied beyond reasonable doubt; and the length of the delay.

36 In support of this ground it was contended on behalf of the appellant that it was a reasonable inference that the jury convicted him on counts (8) and (9) because of the evidence obtained from the execution of the search warrant and the applicant's admission regarding the existence of that sexual material in the suitcase in 1995. The Crown contended that this evidence supported the complainant's story in relation to counts (8) and (9) and that they could also use that conclusion to bolster her reliability and credibility in relation to all counts. In essence, however, the submission on behalf of then appellant was that the verdicts in respect of counts (8) and (9) were inconsistent with the verdicts in respect of the other counts.

37 The words "unsafe and unsatisfactory" do not appear in s 689 of the Criminal Code. Similarly, those words do not appear in s 6(1) of the Criminal Appeal Act 1912 (NSW) which is in similar terms to s 689. As Gaudron, McHugh and Gummow JJ pointed out in Jones v The Queen (1997) 191 CLR 439 at 450:

"In M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 492 per Mason CJ, Deane, Dawson and Toohey JJ, the majority said that although the phrase 'unsafe or unsatisfactory' does not appear in s 6, it allows a verdict to be set aside when the verdict is unreasonable or not supportable on the evidence. In the same case, McHugh J said (at 523) that a 'miscarriage of justice' arises whenever the accused has not had a fair trial according to law or whenever the nature of the evidence, the directions to the jury or the procedures that were followed raise a real doubt as to whether the conviction can be regarded as a safe or just conviction. Having regard to the statements in M, there can be no doubt that 'a miscarriage of justice' also occurs when the findings or verdicts of the jury raise a real doubt as to whether a conviction is safe or just."

38 In Jones at 450 - 451 their Honours went on to state that the test for determining whether a verdict is unsafe or unsatisfactory is as follows:

"In M, Mason CJ, Deane, Dawson and Toohey JJ said (at 493) that the test for an unsafe or unsatisfactory verdict was whether the court thought that, upon the whole of the evidence, it was 'open to the jury' to be satisfied beyond reasonable doubt that the accused was guilty. The majority emphasised, however, that it was not the function of the court to answer that question merely by examining the transcript of evidence and the exhibits. Their Honours said that (at 493):

'In answering that question the court must not disregard or discount either the consideration of the jury as 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.'

The majority judges explained (at 494) the application of the test as follows:

'In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence upon the record itself, contained discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to leave the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and set aside a verdict based upon that evidence.' "

39 In my opinion, the learned trial Judge correctly directed the jury in appropriate terms with respect to the need to consider each charge separately and the significance to be attached to the issue of credibility of the complainant in the circumstances of the case. There are various explanations available for the different verdicts which are consistent with the assumption that the jury approached their task in a proper manner and, in particular, that they had to be satisfied beyond reasonable doubt of the complainant's evidence before they could convict on any count. In respect of each of the counts other than counts (8) or (9) the only evidence which implicated the applicant was the uncorroborated evidence of the complainant. In these circumstances, the findings of not guilty of the other offences can be rationalised because there was no corroboration and the applicant's denial of the offences created a reasonable doubt and he was given the benefit of that doubt. In the case of counts (8) and (9), the evidence of the suitcase material at the time of the alleged offences, which the jury appear to have accepted, corroborated a material particular of the complainant's testimony and the applicant's denial of the offences did not create a reasonable doubt.

40 In these circumstances, I consider that the verdicts returned by the jury were not so inconsistent as to render the resulting convictions of the applicant unsafe or unsatisfactory. It was open to the jury upon the whole of the evidence to be satisfied beyond reasonable doubt that the applicant was guilty of the offences the subject of counts (8) and (9). For these reasons I do not consider that ground 5 was made out.

41 The question is whether there should be a new trial. At the conclusion of the hearing the Court reserved its decision on the question whether there should be a re-trial. In Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; (1984) 154 CLR 627 at 630 Gibbs CJ, Murphy, Wilson, Deane and Dawson JJ said:

"The power to grant a new trial is a discretionary one and in deciding whether to exercise it the court which has quashed the conviction must decide whether the interests of justice require a new trial to be had. In so deciding, the court should first consider whether the admissible evidence given at the original trial was sufficiently cogent to justify a conviction, for if it was not it would be wrong by making an order for a new trial to give the prosecution an opportunity to supplement a defective case."

42 In my opinion, the admissible evidence given at the trial satisfies this test. In Director of Public Prosecutions (Nauru) v Fowler at 630 their Honours went on to say:

"Then the court must take into account any circumstances that might render it unjust to the accused to make him stand trial again, remembering however that the public interest and the proper administration of justice must be considered as well as the interests of the individual accused."

43 In the present case, counts (8) and (9) related to two incidents which occurred on a specific occasion in respect of which quite separate evidence was given, including that relating to the material in the suitcase. Having reviewed the material, I have concluded that the evidence given at the trial in respect of counts (8) and (9) was sufficiently cogent to justify a conviction. In my opinion, it would be appropriate to order that there be a new trial in respect of counts (8) and (9).

44 PIDGEON J: I agree with the reasons of the Chief Justice.

45 WHITE J: I agree with the reasons to be published by the Hon the Chief Justice and have nothing further to add.

Law Consolidation Act 1935

Latham v The Queen [2000] WASCA 57

At a glance

Court

Decision date

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Judgment (131 paragraphs)

Latham v The Queen [2000] WASCA 57 (1 December 1999)

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Legislation Cited (2)

Cases Cited (14)