Applicant remanded to District Court for a new trial

Davies and Cody v The King [1937] HCA 27; [1937] 57 CLR 170

Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196

Jackamarra v Krakouer [1998] HCA 27

Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659

Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510

Walker v The Queen, unreported; CCA SCt of WA; Library No 980207; 3 March 1998

1 MALCOLM CJ: This was an appeal against conviction. At the conclusion of the argument on 13 December 1999 the Court granted the appellant an extension of time within which to make an application for leave to appeal, allowed the appeal, quashed the convictions in respect of the offences charged in counts (2), (3) and (4) of the indictment and remanded the appellant in custody for a new trial upon those counts to be held in the District Court on a date to be fixed. The Court then indicated that the reasons for making those orders would be published later. The reasons to be published by Murray J sufficiently state my reasons for joining in the making of those orders.

2 WALLWORK J: After the hearing of the application I agreed with the orders which were made by the Court for the reasons which have been given by Murray J.

3 MURRAY J: On 20 July 1998 the applicant was presented for trial before Muller J and a jury in the District Court upon an indictment containing nine counts of sexual offences allegedly committed against the one complainant between early 1988 and mid-1993. The complainant was born on 27 January 1978 so the offences were allegedly committed between the ages of 10 and 15. When the trial commenced she was a young woman of 20.

4 The allegation was that the offences were committed during the period when the applicant lived with the complainant's mother in a defacto relationship. As a result of the commission of offences against the child, she fell pregnant and at full term gave birth to a child on 5 September 1993. It is perhaps not surprising then that at the commencement of the trial the applicant pleaded guilty to counts 7 and 8 on the indictment, both of which involved penile penetration of the complainant's vagina, in December 1992 and on or about 1 January 1993 respectively.

5 The remaining charges were tried by the jury, although for completeness I should say that counts 5 and 6, both of which related to an act of alleged anal penetration, were the subject of directed verdicts of acquittal for a technical reason concerned with the amendment of the relevant law. The two charges were in the alternative, depending upon whether the evidence was capable of establishing that the alleged incident took place before the relevant date when the new law came into operation or after that date. The offence continued in existence under a different provision of the Code after the repeal of the section which had earlier provided the offence. In the end, because in the learned trial Judge's view the evidence was incapable of establishing within which period the alleged act occurred, a conviction of neither alternative offence was possible as a matter of law and the directed verdict necessarily followed.

6 The Crown case in respect of the charges which were tried by the jury depended entirely upon the evidence of the complainant, although that evidence was corroborated to some degree by the evidence of the applicant at trial. The complainant's evidence was that the applicant commenced to sexually interfere with her shortly after he commenced to live with her mother early in 1988. Thereafter offences were committed from time to time, the last occasion being about May 1993 when she was five months pregnant. Her evidence was that the interference occurred against her will, although of course, having regard to her age, the lack of consent was not an element of any offence charged. However, the complainant testified that she made no complaint about what had occurred, even when she became pregnant and her mother discovered that the applicant was the father of the child. She said that it was in fact ultimately her grandfather who first made a complaint to the police as a result of which police officers came to see her, took a statement from her, and obtained her cooperation to lay the charges.

7 The applicant said that apart from a period during which his relationship with the complainant's mother broke down and he moved out, he lived with the complainant and her mother from early 1988 until 1996. His evidence was that a sexual relationship did develop between himself and the complainant in April 1992 and on occasions thereafter he had sexual intercourse with her. His evidence was that this was at the complainant's insistence and because she threatened that if he did not comply with her wishes in that regard she would complain that he had raped her. No such activity occurred after he learned that the child was pregnant, although he asserted that there was a later occasion when the complainant attempted to blackmail him. The complainant's mother was called by the defence. She gave evidence which generally corroborated that of the applicant so far as he had spoken about the relationship between the two of them, but her evidence was peripheral to, and did not touch upon, the allegations which were the subject of the charges before the court.

8 The first count on the indictment was a charge of indecent dealing which allegedly occurred some time during 1988. The jury returned a verdict of not guilty in respect of this charge. Counts 2, 3 and 4 allegedly occurred on the same date in the latter half of 1989. There was an indecent dealing charged which was concerned with the applicant handling the complainant's breasts, a sexual penetration offence by the insertion of his finger into her vagina, and a sexual penetration offence by inserting his penis into her vagina. The jury convicted of these offences, necessarily accepting the complainant's evidence and rejecting that of the applicant who, it will be recalled, testified that he had no sexual relationship with the child until April 1992.

9 Apart from the counts on the indictment in respect of which directed verdicts of not guilty were returned and those to which I have referred in respect of which pleas of guilty were entered, the remaining count, count 9, charged the applicant with the penile penetration of the complainant in about May 1993, the last occasion when, as I have mentioned, according to the complainant, that occurred. Again the jury returned a verdict of guilty, quite evidently accepting the evidence of the complainant and rejecting the applicant's denial that any such incident occurred after early in 1993 when he learned of the child's pregnancy. As the appeal was argued before us, it was confined to counts 2, 3 and 4, the incident which allegedly occurred in the second half of 1989. The application for leave to appeal did not challenge the conviction for count 9.

10 As a matter of history I note that the applicant was sentenced to an aggregate term of 8 years imprisonment from 31 July 1998. He was sentenced to 1 year, 3 years and 6 years imprisonment respectively on counts 2, 3 and 4, although the sentences were to run concurrently. On each of counts 7, 8 and 9 he was sentenced to 2 years imprisonment to be served concurrently with each other, but cumulatively upon the 6 years imprisonment imposed for count 4.

11 The applicant was convicted on 23 July 1998. He lodged an appeal against his conviction on two grounds in October 1998. It is of no moment now, but in form that proceeding should have been instituted as an application for leave to appeal against conviction. Being out of time it was accompanied by an application for extension of time. It would appear that the appeal was initiated shortly after the applicant was sentenced on 1 October 1998. In an affidavit filed in support of the application for extension of time, the applicant deposes that although at all times following his conviction on 23 July 1998 he was concerned that he had not received a fair trial, should not have been convicted, and wished to appeal, "I did not turn my mind to the question of what formalities were to be observed for lodging an appeal against conviction until after I was sentenced".

12 The delay is exacerbated by the fact that the first mention of the subject matter of the sole ground pursued before the Court of Criminal Appeal was in an affidavit sworn by the applicant on 5 July 1999 in support of the application for an extension of time within which to appeal, an application for leave to appeal, and an application for leave to adduce fresh evidence at the hearing of the appeal. The applicant finally moved, apparently before a single Judge exercising the powers of the Court of Criminal Appeal, for leave to amend his grounds of appeal on 14 September 1999. Leave was granted. Four grounds of appeal were then advanced to replace the two original grounds.

13 Before us, grounds 2 - 4 inclusive were abandoned. The sole ground upon which the applicant relied before us was ground 1 which sought a new trial by reason of the discovery of fresh evidence. As I have said, that was not a topic which emerged until some 11 months after the conviction and it was not formally pursued until over two months later. Even having regard to the fact that the evidence in question appears to have emerged first in the form of an affidavit by a Ms Sebo, sworn on 21 June 1999, the delay is very considerable.

14 There is no satisfactory explanation for any portion of the delay, having regard to any form of the grounds as they developed from time to time. In those circumstances, and particularly in a case such as this where the consequence of success in the appeal is an order for a retrial of serious offences allegedly committed now over 11 years ago, when the complainant will be required to give evidence again of the events in question, probably about 2 years after her evidence was apparently accepted by a jury and she has no doubt put the matter behind her, the court will not grant an extension of time except in a clear case where it is necessary to do so to remedy an apparent injustice: Gavin v The Queen (1992) 6 WAR 195.

15 Indeed, for reasons which will shortly emerge, the unanimous view of the members of the court when we heard the matter fully argued was that upon that basis we were obliged to intervene. We then granted the extension of time sought to enable the appeal to be heard, we allowed the appeal, we quashed the convictions of the offences charged in counts 2, 3 and 4 of the indictment and we remanded the applicant in custody, as he remained a sentenced prisoner, for a new trial upon those counts to be held in the District Court on a date to be fixed. These then are my reasons for joining in those orders.

16 We received in evidence the affidavit of Ms Sebo to which I have referred and an affidavit in reply sworn by the complainant on 17 September 1999. In addition we permitted both young women to be cross-examined. All of that was done pursuant to the power conferred upon the court by the Code, s 697(b).

17 I turn first briefly to the evidence of the complainant. She seemed to me to be an entirely satisfactory witness and she did indeed deny the truth of the evidence given to the court by Ms Sebo. That, however, provided us with little assistance in considering Ms Sebo's credibility. Of more importance, perhaps, was the complainant's evidence that throughout, from the time when she was first approached by the police and made a statement until the completion of her evidence given on oath at the applicant's trial in July 1998, she told the truth. It is perfectly clear that at a retrial she would, to the best of her recollection, give the same evidence again, and that has a bearing upon the relevance of the testimony of Ms Sebo at such a trial.

18 Despite the fact that she was extensively cross-examined, Ms Sebo did not, in my opinion, shift her ground to any significant extent from the account provided in her affidavit. She is a young woman now just 20 years of age, just a little younger than the complainant. She is not related to the complainant, but is the applicant's niece. She appears to have first met the complainant when they were children, only shortly before the applicant commenced his relationship with the complainant's mother. It is common ground between the two women that as children they became friends. After some time, she and her mother moved interstate to live permanently and contact between the two girls ceased. In October 1997 she returned to Perth for a holiday and for some time, actually stayed with the complainant. In her affidavit she deposes:

"11. One day we were talking and I asked her how the charges got laid against Colin.

12. She said that her grandparents made her do it. She said that the charges alleging that Colin had had sex with her when she was a lot younger were not true. She said that she did not really want to lay the charges and felt guilty about it.

13. I did not tell anyone about it because she was my friend and I did not want to breach her confidence.

14. I never discussed the fact that Colin was facing charges with anyone. Nobody in my family ever really raised the subject and I did not think to discuss it with them.

15. I didn't hear very much about the charges Colin was facing for many months after the conversation with Natalie. In about July 1998, I recall that I got a phone call from my mother. She told me to ring my grandmother. My grandmother told me that Colin had gone to trial and mentioned some of the charges. She told me that Colin was in jail.

16. In July 1998 I called Natalie on the telephone and we had a conversation. I can't remember the actual date. We discussed what had happened to Colin.

17. I can't remember the exact words that she said but it was words like, 'Colin's in jail and I am glad he is. I don't feel sorry about lying one bit and I won't let him see Jamie'. She told me again that she had lied about the charges which were supposed to have happened when she was younger.

18. I then said to her 'Colin's a good dad and he loves Jamie a lot' and she said 'so?'.

19. I didn't say anything about Colin's case after that."

19 Ms Sebo deposes that after the second conversation she decided to tell her mother and shortly afterwards contact was made with the applicant's then solicitors and she provided a statutory declaration which she made before a Justice of the Peace on 19 August 1998, briefly setting out the substance of the two conversations in terms which are substantially the same as her affidavit and as her evidence when she was cross-examined before us.

20 There were obviously some difficulties which may bear upon Ms Sebo's credibility. For example, it is difficult to understand why she did not mention the first conversation to anyone. She does not help herself upon that issue in the statutory declaration where she says, "I did not know why she said this to me and didn't take much notice about it." There are other difficulties. It is not immediately clear why the complainant should have been prepared to lie and why she would in fact lie about the incident which was counts 2, 3 and 4 on the indictment concerning an early period of her association with the applicant, when it is not suggested that she lied about the later acts of sexual penetration of which the applicant has been convicted. As can be seen the affidavit confines the complainant's statements in the first conversation to the allegation that the applicant "had sex with her when she was a lot younger". The statutory declaration is not so confined and has the complainant confessing that the charges generally "are not true".

21 Mr Rayney pressed those and other matters upon us in support of an argument that this Court should take the view that Ms Sebo's credibility was so lacking that no reasonable jury would accept her evidence, or think that it might be true and so would rely upon it as casting doubt upon the truthfulness of the complainant as a witness. In my view, although there is weight to many of the matters advanced by learned counsel, they do not enable us to go so far.

22 There is no need in this case for a detailed discussion of the relevant law. I think it is clear that the evidence of Ms Sebo is fresh evidence as that term is understood by the law. It was not available to the applicant at the time of the trial, and indeed, an important part of her evidence relates to a conversation which occurred after the trial in which it said that the complainant confessed that at least in part in her evidence given at the trial, she had lied. Nor, I think, can it realistically be asserted that by the exercise of reasonable diligence in the preparation of his case, the applicant might have discovered that the complainant was said by Ms Sebo to have confessed that she lied to the police when giving her account upon which the charges were based. There is nothing to suggest that Ms Sebo then told anyone of the conversation she says she had with the complainant, and there is no reason to suppose that the applicant should have directly asked her about any such conversation.

23 Such evidence will then be held to have produced a miscarriage of justice so as to result in the convictions being quashed and, in this case, a new trial being ordered, if the court is of the view that Ms Sebo's evidence is of such a character that its reception at trial, having regard to the other evidence then before the jury, would make it likely that the conviction would not have occurred, at least in the sense that there may be seen to be a significant possibility that the jury acting reasonably would not have convicted if they had Ms Sebo's evidence before them: Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392; Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259.

24 Ms Sebo's evidence about the first conversation with the complainant would undoubtedly be admissible at the trial, although it is not of course evidence in any way concerned with the facts which are the substance of the charges in question. Ms Sebo knows nothing about any such matter and as to the applicant's guilt of those offences her evidence would be irrelevant, but it is clearly evidence which is centrally concerned to attack the complainant's credibility and, as I have mentioned, the complainant's evidence is the only evidence of the commission of the offences in question. The first step of course would be to put Ms Sebo's version of the conversation or, on the retrial, both conversations, to the complainant. Her evidence before this Court makes it clear that she would deny the truth of that account.

25 The defence would not in the circumstances be obliged to accept that denial. It is clearly established that in a case involving alleged sexual offences, the credibility of the complainant is not to be taken as a collateral issue in respect of which the cross-examiner would be obliged to accept the complainant's statements in evidence, but as the complainant's credibility is central to the proof of guilt, her denial of the truth of Ms Sebo's account could be contradicted by calling Ms Sebo to give evidence: Smith v The Queen (1993) 9 WAR 99; Bannister v The Queen (1993) 10 WAR 484. It would not be a question whether the jury affirmatively believed Ms Sebo, but whether, if they were not prepared to reject her evidence and so if they considered it might be true, that evidence would so impact upon the complainant's credibility as to create a significant possibility that the jury acting reasonably would not convict. Given the subject matter of the evidence that would undoubtedly be the case.

26 The remaining question therefore for this Court was, given that the evidence had that degree of cogency, was it evidence which was credible in the sense that Ms Sebo's account was capable of belief and might be believed by reasonable persons? It is not for this Court to place itself in the position of the jury and for individual members of the court to determine whether they would or would not accept Ms Sebo's evidence: Gallagher per Gibbs CJ at 397 and per Brennan J at 409; Mickelberg per Toohey and Gaudron JJ at 301 - 2; and R v Bond (1992) 62 A Crim R 383 per Nicholson J at 387 - 8 and Murray J at 422 - 3.

27 At the conclusion of her evidence I considered that, without indicating whether or not I would accept her evidence, Ms Sebo's account satisfied the test of apparent credibility. The evidence was not so inherently lacking in credibility that it could be rejected out of hand. I considered that a reasonable jury might, if they accepted Ms Sebo's evidence, or at least if they did not reject it, consider that it so damaged the complainant's credibility that they were not prepared to rely upon her evidence to establish the applicant's guilt beyond reasonable doubt.

28 For those reasons I joined in the orders made by the court.