R v WJT

IN THE COURT OF CRIMINAL APPEAL 60024/00 MASON P SULLY J DOWD J

JUDGMENT 1 MASON P: I agree with Sully J. 2 SULLY J: The appellant, WJT, stood trial in September 1999 in the District Court at Campbelltown before her Honour Judge Morgan and a jury. The appellant was so presented for trial upon an indictment containing two counts. The first count charged that between 29 October 1982 and 31 December 1983 at Bondi Junction, he committed with KT the crime of buggery. KT was the appellant's natural daughter. The second count charged that between 24 April 1986 and 31 January 1987, at Kogarah, the appellant had sexual intercourse with KT, she then being a child between the ages of 10 years and 16 years, namely 14 years, and then being under the authority of the appellant. On 21 September 1999, the jury returned verdicts finding the appellant guilty as charged upon both counts. The appellant was sentenced, thereafter, to terms of imprisonment; but no leave is now sought to appeal against those sentences, and nothing more need be said about them. It is the two convictions, only, that are now challenged by the appellant.

3 The complainant gave at trial the following evidence concerning the incident giving rise to count 1 in the indictment: "There was a time he came into the bathroom and made me stand up against the toilet, bend over the toilet facing the window and I was in the shower at the time and he put his penis in my backside and moved it in and out and then ejaculated on my back and then left." 4 The complainant said that the appellant, while committing this act of anal penetration, was "touching the front near my vagina" with his hand. The complainant could not remember whether the appellant had been wearing anything when he came into the bathroom; or whether he had been wearing anything when he left the bathroom. She said that the incident had occurred during the evening; but she was unable to say any more, particularly the time at when the incident had occurred. She said that it had been the first occasion upon which the appellant had done such a thing to her. 5 An attempt was made by the Crown Prosecutor to fix more precisely the time at which this particular incident had occurred. The Crown Prosecutor attempted to do this by reference to particular movements of two girls, KB and GB, who were twins, and who had lived for a time in a unit across the road from where the complainant was herself then living. The best the complainant could do as to times was to say that the bathroom incident had occurred between the time at which the twins, who came from a dysfunctional family, were put into a foster-care institution; and the time when the twins were fostered out of that institution to foster parents, after which time the complainant said that she had lost any continuing contact with the twins. Upon the advice of his counsel, the appellant admitted subsequently that on 24 November 1982, the twins were placed into the care of the Department of Community Services. 6 In connection with the incident giving rise to count 2 in the indictment, the complainant gave the following evidence in chief: "Q. ……………. Now what I want to ask you about now is those sexual assaults at Kogarah. Yesterday you told us that they occurred in the bathroom and in your mother's bedroom. Firstly can I ask you about the bathroom, can you tell us what happened to you in the bathroom? A. There was an incident in the bathroom - in the bath - I can't remember if I was having a bath or a shower - my father came in and came into the bath and pushed me down onto the bath and like inside the bath and put his penis in my vagina and put it in and out and then came on my stomach, ejaculated on my stomach and then left." 7 The complainant could not say whether there had been water in the bath at the time. She was not able to recall the position in which she had been lying or sitting throughout the incident, or the direction in which her back had been pointing at the time. She gave a brief but clear description of the relevant physical layout of the bathroom; and said that she was "between 13 and 14" at the time of the incident. 8 The appellant gave evidence at his trial. He denied flatly having done any of the things thus attributed to him by the complainant. 9 The Crown led from the complainant, in addition to the foregoing evidence, a large amount of additional evidence of sexual assaults of various kinds said by the complainant to have been perpetrated upon her at various times by he appellant. This evidence was admitted at the trial as relationship evidence; and it will be necessary to say later something more about it in connection with some in particular of the grounds of appeal. 10 The Crown led additionally from the complainant a body of evidence of complaint. To this evidence, also, it will be necessary to return in connection with some in particular of the grounds of appeal. It is, however, convenient to note at once that the complainant did not complain to her mother until 1996; that is to say, some 13 or 14 years after the earliest date charged in the indictment; and some 9 years after the last in time of the dates thus charged. It appears from the evidence of Det. Snr. Const. Brill, the officer in charge of the subsequent investigations which led to the arrest of the appellant, that her first contact with the complainant's mother was by telephone on 23 May 1997; that she took a statement from the complainant herself on 27 and 28 May 1997; and that she arrested the appellant at his home on 22 July 1997.

Ground 11 11 The ground is framed as follows: "The trial judge erred in not staying the indictment because of delay and vagueness and uncertainty in the allegations of the complainant." 12 Before the empanelling of the jury, counsel then appearing for the appellant, (not being counsel appearing for the appellant at the hearing before this Court), moved for a permanent stay of proceedings on the indictment. The trial Judge refused the application. Her Honour delivered the following judgment: "I do not think that what has been raised by the defence, that is in relation to the age of the matter, in relation to the two other girls, the wide dates on which the indictment is framed, and the fact that the two girls were approached by police rather than them going to the police, I must say I have some difficulty how that can be unfair toward the accused. " Jago's case sets out the principles to be applied on any application for a permanent stay, any unfairness in relation to age or delay there will be strong directions given to a jury in relation to that aspect and also of course in relation to the time span, but I cannot see that there is anything in the submissions put to me that would cause me to permanently stay these proceedings. "As I say there will be directions given to the jury in relation to those particular matters raised. So I refuse the application." 13 The decision to which the Trial Judge referred in Her Honour's judgment is the decision of the High Court of Australia in Jago v The District Court of New South Wales & Ors (1989) 168 CLR 23. The following proposition, taken from the judgment of Mason CJ in that case, says in my opinion all that needs to be said in connection with the present ground of appeal: "In any event, a permanent stay should be ordered only in an extreme case and the making of such an order on the basis of delay only will accordingly be very rare: Re Cooney . "To justify a permanent stay of criminal proceedings there must be a fundamental defect which goes to the root of the trial 'of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences': Barton per Wilson J." (168 CLR at 34) 14 The available transcript of the proceedings at trial does not contain the detail of the competing submissions that were put to Her Honour in connection with the stay application. This Court must do, therefore, the best that it can upon the basis only of Her Honour's judgment as reproduced above. 15 It suffices to say that, in my opinion, the appellant has not pointed to any error of law or of fact in the way in which Her Honour exercised her discretionary power to grant or to refuse a permanent stay. In my opinion, no cause has been shown to justify this Court's now interfering with Her Honour's exercise of her discretion. 16 I would not uphold this ground of appeal.

Ground 1 17 This ground is framed as follows: "The trial judge erred in not discharging the jury or directing a verdict of not guilty on the second count on the indictment because the evidence referable to the charge was vague, uncertain and duplicitous." 18 In the event, counsel for the appellant did not argue this ground separately; but effectively subsumed the ground into ground 10 which is discussed later herein.

Grounds 2 and 3 19 It is convenient to deal together with these two grounds. The grounds are framed as follows: "2. The trial judge erred in admitting evidence of complaint. 3. The trial judge erred in her directions to the jury regarding complaint evidence." 20 The complaint evidence in question was evidence given ultimately at trial by Mrs AF, nee AS. Mrs AF had been a fellow student and friend of the complainant at Moorefields Girls' High School. Mrs AF's evidence was that she had spoken with the complainant on a number of occasions at school, and that the conversations had been about the complainant's father. Mrs AF said: "I don't remember the words word for word but I know she was scared of him. I know that he was doing things to her that she wasn't enjoying. I knew that he was abusing her sexually." 21 Asked to recount a particular occasion, Mrs AF gave this further evidence: "Yes, there's a few occasions which I can remember. There was a time when we were under the steps at school, the library stairs. She was upset telling me that he was harassing her that night, the night before. There was another time when we were sitting in the stairwell of the library and she was upset again. There was a time when she was - when she tried to kill herself, like cut her wrists because of what was happening with her at home. And then there was another occasion when we were sitting in her room and she was telling me how like she was scared ………….. ." 22 This last answer was interrupted by the Crown Prosecutor who brought Mrs AF's attention to a conversation which she had had with the complainant on the day of the Year 10 Formal. Mrs AF's recollection was that they had spoken on the stairwell of the school library. The topic, as Mrs AF recalled it, had been the complainant's abuse sexually at the hands of the appellant. 23 It is convenient to note that Mrs AF was cross-examined fairly briefly at the trial. I have read the cross-examination; and it does not seem to me to have in any way discredited the substance of the evidence given in chief. 24 Immediately following the empanelling of the jury, and in the absence of the jury, the Trial Judge was asked to entertain, relevantly, an application by the Crown to lead Mrs AF's evidence as evidence of prior consistent statements of the complainant, being prior consistent statements admissible by leave of the Court pursuant to s108(3) of the Evidence Act 1995 (NSW). The relevant provisions of the section are: "108(3) The credibility rule does not apply to evidence of a prior consistent statement of a witness if: (b) it …………….will be suggested (either expressly or by implication) that evidence given by the witness has been fabricated or re-constructed (whether deliberately or otherwise)……………….. ; and the court gives leave to adduce the evidence of the prior consistent statement." 25 After extensive discussion and submissions, Her Honour ruled, relevantly: "I will grant the Crown leave to raise the matter of speaking to Miss AS when she did in accordance with s.108(3)(b) of the Evidence Act , that being said by ……….(counsel) ……… on behalf of the accused that it will be alleged in cross-examination that the allegations by ……………(the complainant) ………….. are fabricated and in accordance with the authorities I will grant leave for it to be raised in the evidence in chief." 26 In my opinion, the course followed by Her Honour was permissible under the statutory provisions; accorded with the guidance given, in particular, in the judgment of Hunt CJ at CL in R v BD (1997) 94 A Crim R 131 at 141, 142; and was entirely vindicated by the way in which the defence at trial was conducted. The written submissions of the Crown in connection with the present appeal note fifteen separate occasions upon which the complainant was cross-examined before the jury to the effect that she was either fabricating or merely guessing the significant parts of her evidence. 27 I would not uphold ground 2. 28 As to ground 3, the only particular complaint put forward in the written submissions of counsel for the appellant is "that the direction was improper in that the Trial Judge did not couch her remarks to limit the use of complaint evidence to the rebuttal of recent invention". 29 The directions in fact given by the Trial Judge to the jury on the topic of complaint extend over some three pages of the summing up transcript. It is neither convenient nor necessary to reproduce now the entirety of this portion of Her Honour's charge to the jury. It suffices to say that I have read it carefully, and that I am of the opinion that the directions given were sound in law and correct in fact. The directions emphasised with complete clarity that the complaint evidence could not be used as establishing the truth of what the complainant herself had said to the complaint witnesses about what had been happening to her at the hands of the appellant. The jury was directed in terms that the complaint evidence was not by itself any evidence that the complainant had been in fact assaulted sexually by the appellant. The jury was directed in terms that the only relevance of the complaint evidence was the fact that the complaints had been made "as that fact may assist you in determining the weight to be given to ……..(the complainant's) ……… evidence here in court ………. ." 30 Her Honour followed these directions with careful directions, not now challenged, as to delay in the making of a complaint; and as to the disadvantages entailed by delay in complaint to the ability of the appellant properly to defend himself against allegations of events said to have occurred many years previously. 31 I would not uphold ground 3.

Grounds 4 and 5 32 It is convenient to deal together with these two grounds. They are framed as follows: "4. The trial judge erred in admitting evidence of 'relationship'. 5. The trial judge erred in her directions to the jury on relationship evidence." 33 The submission put for the appellant is, essentially, that this evidence was wrongly admitted because it tended to prejudice the appellant without having any sufficiently countervailing probative value. 34 The Crown led at trial, principally from the complainant herself, relationship evidence directed to establishing that the appellant had assaulted the complainant when she was a very small child by, in effect, throwing her down the length of the hallway. The probative value of this particular relationship evidence was said to lie in its capacity, if accepted, to explain why the complainant had such an ingrained fear of the appellant as would explain her not having complained sooner than she did complain about his aberrant sexual behaviour towards her. 35 In addition, the Crown led from the complainant extensive evidence of uncharged acts of sexual misconduct by the appellant towards her. The admission of this evidence was justified upon the basis of the principles discussed conveniently in the judgment of Ireland J in R v AH (1997) 98 A Crim R 71 at 77, 78. And see also per Powell JA in R v MM (2000) 112 A Crim R 519 at paragraph 47. 36 The trial transcript is not entirely clear on the point, but it seems to be a fair inference that counsel then appearing for the appellant did not object to the admission of relationship evidence, although he had earlier objected to any attempt by the Crown to lead tendency evidence. At a normal luncheon adjournment occurring during the course of his cross-examination of the complainant, counsel appearing at trial for the appellant asked the Trial Judge to give some direction to the jury on the topic of relationship evidence. After the adjournment Her Honour did so in terms recorded at pages 71 and 72 of the trial transcript of 15 September 1999. No objection was taken to the terms of that direction to the jury. The direction was, in my opinion, correct in law and sufficient in fact. 37 In my opinion, the relationship evidence touching upon the physical assault of the complainant when she was a very small child was correctly admitted. It bore directly upon the question whether the complainant was credible in her assertion that she had been, at all material times, in continuing fear of the appellant. 38 While ever the decision in AH remains unreversed by the High Court, as for the moment at least it does, then in my opinion the relationship evidence touching upon uncharged acts of sexual misconduct, also, was rightly admitted. 39 I would not uphold ground 4. 40 As to ground 5, Her Honour summed up with great care on the topic of the relationship evidence which she had admitted. The relevant passages of the summing up are at pages 14, 15, 16 and 36 of the summing up. It is, once again, neither convenient nor necessary to reproduce the detail of the relevant directions. It suffices to say that I have read them carefully; and that in my opinion they conveyed with complete clarity the explanations and the warnings that the law requires in that context. 41 I would not uphold ground 5.

Ground 6 42 The ground is framed as follows: "The trial judge erred in her application of section 409B of the Crimes Act." 43 This ground has to do with an application made by counsel appearing for the appellant at trial. The application was made on 15 September 1999, and at a stage when the cross-examination of the complainant was well advanced. The relevant exchanges are at pages 66 through 70 of the transcript for 15 September 1999. 44 Before attempting to come to grips with the course at trial of the s409B application, it is useful to recall what was said by this Court in R v McGarvey (1987) 10 NSWLR 632. Hunt J, Wood and Allen JJ concurring, said: "The present argument is not supported by the transcript of what happened before his Honour, nor was any request made in time on behalf of the appellant that a report be obtained from the trial judge to cure what is now asserted to be a mis-statement in his judgment of the basis upon which the application was made to him. In my view, this court should approach the matter in the present case upon the basis of what is recorded by the trial judge in his judgment: ……………. . Counsel should be vigilant to see that there is made a proper record of the material upon which a ruling is sought pursuant to s 409B. Preferably, a detailed written statement of the evidence proposed to be led or extracted in cross-examination should be handed to the trial judge and marked for identification. In that way, there should be no room for any later argument in the trial or upon appeal as to what had been permitted or rejected pursuant to s 409B." (10 NSWLR at 634G - 635A) 45 The only transcript record now available to this Court is woefully inadequate for the purpose at hand. It is clear enough that counsel had in mind to put to the complainant that she was not telling the truth in saying, as she had done during the course of giving her evidence, that she had not known, at least in the early stages of her continuing sexual abuse by the appellant, that what was happening to her was wrong; and that she could, if she wished to do so, complain to her mother, and then to go with her mother to the police and make a formal complaint to the police. It seems to be the case, although it is not by any means clear from what is recorded in the transcript, that counsel was intending to raise an incident, said to have occurred while the complainant and her family were living in Kogarah. The incident was described by counsel as having entailed that the complainant "came into the house one day and told her parents that she'd been raped". The Trial Judge tried to elicit from counsel a rather more coherent and precise definition of what it was that counsel was wishing to put by leave to the complainant. Counsel responded that the point was that "she's given evidence that she didn't know or understand what was happening was wrong". The Judge responded: "That's when she was at Bondi. You're talking about at Kogarah aren't you?" 46 Counsel responded: "I forget precisely, mostly that the evidence in relation to that relates to Bondi, but simply that if a man did something to her of that nature, she knew to complain to her mother, to her parents and she was able to go to the police with her mother." 47 The Judge asked whether it was not the fact that the alleged rapist had been a stranger and not the appellant; and counsel responded affirmatively. 48 The portions of s409B upon which this somewhat disjointed application was based, required the clear establishment of precisely defined statutory criteria before leave could be given in accordance with the section for cross-examination of the kind contemplated by then counsel for the appellant. Like the learned trial Judge, I am unable to see that the statements made by counsel, as disclosed in the only record at present available to this Court, made any sort of a case for the grant of leave as sought. 49 It is contended for the appellant that the offence charged in count 1 of the indictment was not an offence to which s409B in any event applied. It follows, so it is submitted, that the proposed cross-examination ought to have been permitted at least in connection with count 1. If it be assumed that this submission, as to the non-applicability of s409B to the offence charged in count 1 is correct, it does not seem to me to follow necessarily that the proposed cross-examination either could or should have been permitted. For one thing, the contemplated cross-examination might well have proved, when its proper intended scope had been disclosed, to be impermissible pursuant to s41 of the Evidence Act. Or it might have been, when properly understood, to have had no substantial probative value: see s103 of the Evidence Act. 50 I would not uphold ground 6.

Ground 7 51 The ground is framed as follows: "The trial judge erred in failing to discharge the jury after inadmissible evidence was led on the basis that the jury would not have heard it. " 52 The trial transcript records the following material relevant to this ground: "IN THE ABSENCE OF THE JURY …..[Defence counsel]…….. made submissions in relation to issues led in GF's evidence including whether or not the word "penis" was used. Discussion ensued. Crown Prosecutor made submissions in reply as to agreements made between the parties. PLAYBACK (Discussion as to evidence heard in playback.) PLAYBACK CONTINUED (Discussion as to evidence heard in playback) PLAYBACK (Crown Prosecutor made submissions as to evidence heard. Discussion ensued. Crown Prosecutor submitted that evidence heard not grounds for discharging jury. [………Defence counsel……..] made submissions in reply. HER HONOUR: I reject the application to discharge the jury. We'll continue tomorrow with WJT." 53 The transcript of GF's evidence does not contain any reference to the offending word. 54 In those circumstances I cannot see how ground 7 can succeed.

Ground 8 55 The ground is framed as follows: "The trial judge erred in refusing to allow evidence of the complainant's and her mother's financial circumstances." 56 The written submissions of the appellant suggest that this ground has to do with an attempt to cross-examine the complainant to the effect that she was making false allegations against the appellant in order to enable her to pursue a claim for monetary compensation as a victim of crime. The written submissions give no supporting page references to the trial transcript. I have not myself been able to find any. There was an attempt to cross-examine the complainant's mother to the effect that the appellant had given the mother a sum of money for the purchase of a house; but that line of questioning was abandoned in the face of an objection as to its relevance. 57 In any event, the suggested cross-examination of the complainant could only have been relevant to the credibility of the complainant. In that case the Trial Judge undoubtedly had a discretion to exclude the line of questioning upon the basis that it lacked "substantial probative value": see s103(1) of the Evidence Act. In my opinion, the suggested line of questioning did lack substantial probative value. The wrongful conviction of the appellant did not entail that the complainant would receive monetary compensation just for the asking. At the very best, the complainant would thereby have become entitled to make an application for some such award of monetary compensation; but the prospects of success of any such application; and any quantification of the amount that the complainant might receive if successful in such an application were matters of complete speculation. 58 I would not uphold ground 8.

Ground 10 60 The ground is: "The verdicts were unsafe, unsatisfactory and unsupported by the evidence." 61 The relevant principles of law are not in doubt. They are established definitively by the decision of the High Court of Australia in M v The Queen (1994) 181 CLR 487, see in particular per Mason CJ, Deane, Dawson and Toohey JJ at 492-495. 62 I have read the whole of the transcript of the evidence taken at trial. My assessment of it is as follows: [1] There is nothing inherently incredible in the version given by the complainant.

[2] The complaint and relationship evidence, if accepted, enhances significantly the credibility overall of the complainant's version.

[3] The evidence of the Crown witnesses, other than the complainant herself, was evidence which, if accepted, gave some support to the complainant's evidence on the topic of relationship.

[4] The advantage of the jury in seeing and hearing the taking of the evidence at trial, was not, in the circumstances of this case, a merely formal or technical advantage. 63 I am, ultimately, unpersuaded that "………..the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead ……………(me)………….. 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 …………."

64 In my opinion the appeal against conviction should be dismissed. 65 DOWD J: I have read the judgment in draft form of Sully. I agree with the proposed order and the reasons given by His Honour. oOo

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