R v W [1998] QCA 90

R v W [1998] QCA 90 - QCA 1998 case summary — Zoe

[15]

"However, the question of public importance which, in my opinion, is raised in this case is the existence and extent of the duty of a trial Judge to assist a jury as to the use they may make of evidence of prior convictions having no other relevance in the case than the character and credibility of the accused. It is the settled policy of the law that, in general, evidence of the propensity to commit a crime or of a propensity to commit a particular type of crime is not admitted for the consideration of the jury. But evidence of bad character, particularly where it serves no other purpose in a case than the exposure of that character where the accused's credit is involved, is susceptible of use by a jury as indicating a propensity for criminal behaviour. Where the ground for granting the permission ... is an attempt by the accused to establish his own good character as a matter to be considered on the question of his guilt or innocence, the purpose of the section is to deny the accused the benefit of a false claim to good character. It does not intend to place bad character before the jury as a fact upon which they may conclude the guilt or innocence of the accused. It seems to me, however, that there is a high degree of possibility that a juryman will be prone to reason towards guilt by the use of the fact of prior conviction as indicative of a disposition to crime on the part of the accused. To so use the fact of prior conviction is to cut across the deeply entrenched policy of the law. Therefore, the not unnatural tendency of the juryman and the importance of that policy seem to me to require that the trial Judge, when evidence of prior conviction is properly before the jury for the sole purpose of combatting a suggestion of good character or to weaken or destroy an accused's credibility, must assist the jury by expressly and with emphasis telling them that they may not use the fact of prior conviction as tending to the guilt of the accused. In my opinion, in such a case, he should tell them quite clearly that the fact that prior conviction can only be used as a means of discrediting the accused in respect of any matter as to which he is in conflict in his evidence with the witnesses for the Crown, or as to exculpatory facts or claims which he makes. Where the evidence of prior convictions or of bad character or tendencies is properly admitted for other purposes, it may be that a clear statement of the use to be made of the evidence for those purposes may suffice."

Parties

Applicant/Plaintiff:

# R

Respondent/Defendant:

W \[1998\] QCA 90

Cases Cited (21)

The question of fresh complaint raises a more difficult issue. Thomas J. refers to the decision of this Court in W [1995] QCA 49; [1996] 1 Qd.R. 573, in which it was held that the admissibility of a complaint by a person accusing another of sexual offences could be tested by asking the question whether:

This conclusion may be difficult to reconcile with what was said in Suresh [1998] H.C.A. 23 (3 April 1998). The offences there charged were said to have been committed over a period ending in March 1992 and there was evidence that in about October 1992 the complainant told school friends that the appellant had interfered with her sexually. The Supreme Court of Western Australia in Suresh (1996) 16 W.A.R. 23, held that evidence to be inadmissible but dismissed an appeal against conviction on the ground that there was no miscarriage of justice. Rowland J. who dissented was "not convinced that the evidence . . . was not admissible". Relying upon what was said by Gaudron J. in M [1994] HCA 63; (1994) 181 C.L.R. 487 at 515, the majority in the Supreme Court held the evidence inadmissible applying the "first reasonable opportunity" test: see especially p. 35G. When the case went to the High Court, Gaudron and Gummow JJ. said that (4):

Here, the offences were said to have been committed at times beginning in February 1989, the first complaint being some seven years later. The difficulty is that the complaint was admitted with respect not only to recent offences, but also as to those which occurred years before. Mr Rafter, who appeared for the appellant, did not press the argument that the evidence of complaint should not have been admitted; it appears that he did so because there was no objection to it and because Suresh had not when we heard the appeal been decided by the High Court. The difficulty about declining to give effect to the objection now is that the evidence may well have been admissible on the basis of W, which was followed in King [1995] QCA 48; (1995) 78 A.Crim.R. 53 at 60,61. Since Suresh has I think adopted a view of the matter inconsistent with those two cases, it appears that we must give effect to the objection which might well, but for them, have been taken.

The criticism made by Mr Rafter was that the judge's explanation was confined to R's evidence of fresh complaint. Although it is capable of being read in that way, I should be surprised if the jury so understood it. Counsel relied upon Jones [1997] HCA 12; (1997) 71 A.L.J.R. 538 in support of the view that, if the judge fails to tell the jury what is the relevance of evidence of fresh complaint, that may be a ground for a new trial. The court said in Jones that fresh complaint:

The judge took the course of including in his summing-up a fairly elaborate discussion of the opposing submissions made by counsel, on the facts. In discussing the Crown's submission, his Honour invited the jury to ask themselves where there was an allegation that the complainant had made false accusation, "what motive would that person have for making such false allegations?". His Honour went on to stress that sometimes false accusations are "made for reasons which are not apparent to the Court" and he elaborated on and emphasised that proposition. Mr Rafter said that these directions were erroneous and that the jury should have been directed in accordance with statements in Uhrig (N.S.W. Court of Criminal Appeal, 24 October 1996) as referred to in Palmer [1998] HCA 2; (1998) 72 A.L.J.R. 254 at 258.

Although Palmer had to do with the propriety of a certain line of crossexamination of the accused, it appeared to embrace a wider principle and to approve the decision of this Court in G [1993] QCA 267; [1994] 1 Qd.R. 540, holding that it is wrong for 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 (257). In some context a judge who poses for the jury the question: "Why should this complainant lie?" might be taken to imply that the judge thinks it improbable that the complainant would lie.

The evidence to which reference is made is evidence of the general continuity of the sexual relationship once it commenced. For example the complainant said that contact of a similar kind occurred "just about every time I went out on the patrols with him which was every night" and that once the oral sex commenced, "I used to have to give him oral sex. Usually it was only like a Friday or a Saturday or a Sunday night, whatever nights my mum worked." Such evidence did not add to evidence of specific acts, and is simply evidence that the sexual relationship, once it commenced, was a continuous rather than a sporadic one. Such evidence enabled the complainant's evidence to be seen in proper context, and was "the key to an assessment of the relationship between(the appellant and the complainant) and, as such, constituted part of the essential background against which both (the complainant's and the appellant's) evidence of the alleged offences necessarily fell to be evaluated" (B v The Queen [1992] HCA 68; (1992) 175 CLR 599, 610 per Deane J; cf. Brennan CJ at 604-5).

The following description of such evidence by King CJ (in R v Dolan [1992] SASC 3638; (1992) 58 SASR 501, 503) fairly characterises the nature of such evidence-

" It appears to me that notwithstanding Pfennig [1995] HCA 7; (1995) 182 CLR 461, evidence of past sexual impropriety between the appellant and his stepdaughter, which if accepted would amount to criminal conduct, was admissible as showing 'the relationship between the two persons involved in the commission of the offence, or the guilty passion between them' (S v The Queen [1989] HCA 66; (1989) 168 CLR 266, 275 per Dawson J, 279 per Toohey J, and Harriman v The Queen [1989] HCA 50; (1989) 167 CLR 590, 631 per McHugh J), provided it had 'a sufficiently high degree of relevance ... to justify its admission' (S, 275 per Dawson J), or its probative value raised 'the objective improbability of some event having occurred other than as alleged by the prosecution' (S, 287 per Gaudron and McHugh JJ). I put it this way because if applicable to this species of evidence, then as I read Pfennig, strictly applied, it would almost certainly always lead to its exclusion. The statements in S and Harriman seem to place this sort of evidence into a category of its own, so that the approach previously taken in this Court, as illustrated for example by R v Witham [1962] Qd R 49, 73-4, 77, 82-3 per Stable J, continues to be appropriate. I note also what Toohey J said in Pfennig (p 506-7)."

It seems to me that Mr Rafter's description of this evidence as "evidence of uncharged acts" somewhat overstates its effect. It does not actually describe any further acts or occasions, and its effect is an allegation of continuity in contrast to the occurrence of a few sporadic instances. Mr Rafter however referred to BRS v R [1997] HCA 47; (1997) 148 ALR 101; (1997) 71 ALJR 1512; R v Grech [1997] 2 VR 609; and R v W CA 349 of 1997, 21 November 1997. His submission was that a specific direction was required to the effect that evidence of this kind could only be used to establish the existence of sexual relationship and that it did not show that the appellant had a propensity to commit such offences. It is true that the above cases recognise the need for directions along those lines when there is evidence capable of showing propensity to commit such an offence or capable of persuading a jury that an accused is guilty of such an offence. It is easy to see why such a direction was considered necessary in BRS above. However the evidence in the present case is a far cry from evidence of the kind that was considered in BRS and in Grech. If it is propensity evidence at all (which it can be only in the most theoretical sense) it is not evidence that might lead a jury to convict in reliance upon any illegitimate reasoning based on propensity.

(1990) 19 NSWLR 677

(1998) 72 ALJR 254

(1992) 175 CLR 599

(1992) 58 SASR 501

(1995) 182 CLR 461

(1989) 168 CLR 266

(1989) 167 CLR 590

(1997) 148 ALR 101

(1997) 71 ALJR 1512

(1986) 61 ALJR 1

(1972) 128 CLR 114

At a glance

Court

Decision date

Before

Source

Judgment (77 paragraphs)

Parties

Cases Cited (21)