R v Wilson [1994] QCA 481

The appellant has appealed against his conviction on 9 August 1994 in the District Court at Gympie on one count of indecent treatment of a child under the age of 16 years with a circumstance of aggravation. On the same day, he was also sentenced to imprisonment for 18 months, and he has applied for leave to appeal against that sentence.

At the material time, late November 1990, the complainant's mother was the de facto wife of the appellant, who lived with the complainant and her family. Although no complaint was made until 12 July 1993, the allegations which the complainant then made related to a course of events extending from 1 January 1989 to 11 July 1993. As a result, the appellant was charged with a number of offences in relation to the complainant, including rape, unlawful carnal knowledge against the order of nature, indecent assault, and maintaining a sexual relationship with a child under the age of 16 years. When he was first tried, he was acquitted of all charges except the present count, on which the jury could not agree. The conviction against which he has appealed was the result of a re-trial.

There were only three witnesses at the trial, the complainant, her younger sister, and her mother, whose evidence amounted to little more than an assertion that, although she had been drinking for an extended period on the day of the incident and had taken medication, she was asleep in the room next to where the incident was said to have taken place, and would have heard the complainant if she had screamed.

All three witnesses identified the material night by reference to an end of year school concert which they had attended in company of the complainant's brother. After they returned home, the complainant's mother, brother and sister all went to bed, while the complainant remained watching television with the appellant, who had been drinking for some hours.

After a time, the complainant went to bed in the room which she shared with her sister and slept. According to her evidence, she was awoken later by the appellant who was sitting on the end of her bed pulling the covers down. He tried to get into bed with her but she resisted. He ignored her protests, and touched her breasts and pubic area. Then he ripped off her underpants, forced her legs open and inserted his finger in her vagina. The complainant cried and protested, but the appellant told her to be quiet and threatened to break her arms and legs. He then started rubbing her clitoris, and asked her when she was going to orgasm, stopping only when she told him that she had. The appellant told the complainant not to tell anyone.

The complainant's sister's evidence was that the appellant came into the room which she shared with the complainant and sat on the complainant's bed. She could hear kissing and the appellant saying: "I love you, I love you, you are so beautiful." The appellant entered the complainant's bed although the complainant said: "No, stop." The complainant's sister then pretended to have a bad dream and screamed and the appellant went over and told her to be quiet and to go and get a drink. On the way back to the bedroom, she saw the complainant who was red-eyed as though she had been weeping.

According to the complainant, she did weep. After the appellant had gone, she got up and hid her torn underpants and went back to bed and cried herself to sleep. However, according to her, her sister did not call out or have any contact with her. There were many differences between the evidence of the two sisters, and the trial judge told the jury that the only thing they had in common was that the appellant was in their bedroom and that his weight was on the complainant's bed.

Although other grounds were raised in the notice of appeal, the only ground argued was one added by leave at the hearing; namely, that the trial had miscarried because the judge did not warn the jury of the danger of acting upon the evidence of the complainant's sister unless after careful scrutiny they were satisfied as to its reliability. At the trial, this point was not taken, and no redirection was requested on this basis, although, as was not disputed, that is not necessarily fatal to the point's success on appeal.

For the appellant, it was emphasised that the complainant's sister's evidence was unsworn, that at the time of the incident she was only nine or perhaps ten years of age, and that the evidence was given almost four years after the incident which she described. Further, the evidence of the complainant's sister was of particular importance in this case in that it provided the only possible corroboration of the complainant's evidence.

As the respondent pointed out, the trial judge did deal generally with the credibility and reliability of witnesses, and warned the jury of the difficulties associated with uncorroborated evidence of sexual offences. However, it is clear that there was no warning associated with the circumstance that both complainant and her sister were children when the alleged offence was committed, and the complainant's sister was quite young at that time and still only 14 at the trial at which she gave unsworn evidence.

There is a rule of practice that juries are reminded that the evidence of a child should be scrutinised with particular care. A number of reasons have been given for this: see, for example, B. v. The Queen [1992] HCA 68; (1992) 175 C.L.R. 599, 616; and, generally, R. v. Schlaefer (1992) 57 S.A.S.R. 423 and R. v. C.B.R. (1992) 1 Qd.R. 637. It is plain that that rule of practice was not followed in this case. Although the question whether a warning is necessary in any case is a matter for the trial judge, there being no fixed age below which it should be given (B. v. The Queen at 617), there does not appear to have been any reason for departing from the rule in the present case and none was given by the learned trial judge.

This is not a case in which it is possible to be satisfied that, although there has been some error in the trial, the appellant is certainly guilty and there has been no substantial miscarriage of justice. The case against the appellant depends entirely upon the evidence of the complainant, and the evidence of her sister was of considerable importance because it potentially corroborated aspects of her account. We have no doubt that, in these circumstances, the warning should have been given, and that the failure to give the warning could have affected the outcome of the trial.

In the circumstances, there is no alternative but to allow the appeal and order a new trial.

I have had the advantage of reading the reasons of the President and Davies JA and do not need to refer to the facts in detail. However, I desire to add some comments of my own.

The appellant's sole complaint is that the trial Judge failed to give any warning in relation to the corroborating witness, the complainant's younger sister, who was 9 at the time of the alleged offence and 13 at trial. The complainant was 14 at the time of the alleged offence and 17 at trial. Whether there was corroboration of the complainant's testimony was a central issue at the trial.

Counsel for the appellant contended that the trial Judge had dealt with the younger sister's evidence exclusively by reference to the question of whether it was capable of amounting to corroboration, no reference being made to the fact that, before the jury could properly consider that issue, they needed to consider very carefully whether that evidence was not only honest but reliable. He submitted that there were a number of significant reasons in the present case why a specific warning was required and that his Honour should have discussed those reasons in the context of warning the jury that they should have approached the younger sister's evidence with considerable caution. It was further said that his Honour's treatment of the younger sister's evidence was inadequate, notwithstanding that he told the jury to keep in mind that it differed from what the complainant said.

Although not formally in a class requiring corroboration, the evidence of child witnesses is in a category which experience has shown should be approached with caution. It is no doubt for this reason that the rule of practice, referred to by the President and Davies JA, of reminding the jury to scrutinise such evidence with particular care, has emerged. But the basis of the rule is different from other traditional categories in which similar warnings are given.

In particular, in the case of evidence by a complainant of a sexual offence or evidence of an accomplice, the fear is one of active dishonesty. The trial Judge in this case pointed out to the jury, in the traditional way, how they should approach the evidence of the complainant with respect to the particular offence and gave the usual warning which should be given irrespective of his or her age or sex: Archbold, Criminal Pleading Evidence and Practice, 43rd ed. 1620. His Honour also correctly explained the nature of corroboration. However, his Honour gave no other warning and was not asked to do so by counsel.

In the case of child witnesses generally or evidence of others such as the mentally disabled, whilst not excluding the possibility of active dishonesty in some cases, the need for an additional warning of the kind referred to by the President and Davies JA generally rests in less sinister considerations such as the witness' impaired ability to comprehend the solemnity of the occasion and the importance of telling the truth, their difficulty in recalling matters of no special significance to a young or impaired mind, their reduced ability to separate reality from fiction, and their impressionability or openness to influence: cf. B. v. The Queen [1992] HCA 68; (1992) 175 C.L.R. 599 at 616 per Dawson and Gaudron JJ, 616; R. v. Hester [1973] A.C. 296 at 325 per Lord Diplock. All of these factors, and I do not intend them to be exhaustive, bear upon the reliability of their evidence in the sense that they may tend to produce an honest but mistaken account of relevant events. Of course, where the witness is both complainant or accomplice, as well as child, both sets of considerations may apply.

Whilst recognising that whether or not a separate warning is necessary with respect to the evidence of child witnesses in any given case and that the nature and extent of any such warning, are matters for the trial Judge: R. v. Hester at 316F per Lord Morris; R. v. Morgan [1978] 1 W.L.R. 735; B. v. The Queen at 617, it is clear that where a warning of the kind is appropriate, as in this case, it is not enough for a trial Judge merely to tell a jury that they must exercise care. His directions do not exist in a vacuum. He must tell them why they must do so and relate those reasons to the facts of the particular case. In R. v. Hester at 316F-G, Lord Morris said:

"Any warning to a jury of the need to examine the evidence of children with care would no doubt in a suitable case include mention of any circumstances affecting the independence of their testimony. But as to this no general rule could be laid down. According to the infinite variety of differing sets of circumstances a judge would exercise his judgment as to the style and language of the guidance that it would helpful and wise for him to give."

"No doubt in a case of this kind it is right for the judge to give all proper warnings as to the possible weaknesses of the evidence . . . "

The summing up must meet the exigencies of the particular case and the Judge must make such comment as the justice of the circumstances requires. If he does not and a conviction follows, it may be liable to be overturned by this Court unless it can be demonstrated that no substantial miscarriage of justice resulted: R. v. Kilbourne [1974] A.C. 729 at 740.

That comment would include the identification, no doubt with the assistance of counsel, of those factors peculiar to the case which bear upon this issue. In this case factors suggested include the following: the younger sister was 13 years old and speaking of events when she was 9; her evidence was unsworn; there were major discrepancies between her evidence and that of the complainant which were not identified in the summing-up; the first complaint of the offence was not made until a considerable period after it allegedly occurred; the younger sister had spoken to the complainant about the allegations; she was confused about the time of their arrival home after the school concert by reference to which the material night was identified, saying that the complainant said it was only 7:30pm whereas the preponderance of evidence shows that they did not arrive home until after 10:00pm, the alleged offence occurring later that night; the complainant and her younger sister did not like the conduct of the appellant who drank excessively and had abused and was violent towards their mother; the younger sister said that she and the complainant wanted the appellant to leave, which he subsequently did. On the other hand there are doubtless factors which may tend to support the evidence of the complainant and her younger sister, and which may be appropriately pointed out to the jury to ensure balance.

Like the President and Davies JA, I am satisfied that no good reason has been given for departing from the rule of practice in the present case. Notwithstanding that no redirections were sought by counsel: cf. R. v. Morgan at 740A, it was not sufficient, in a case such as this, where a central issue was whether the account of the complainant was corroborated by the evidence of her younger sister, to merely tell the jury in a summary way that the evidence of the corroborating witness differed "quite, or very markedly" from that of the complainant.