Criminal law and procedure - Appeal against sentence - Gravity of offences - Antecedents

Evidence - Admissibility and relevancy - Evidence of other acts of violence absent from complaint - Relationship evidence - Probative value

B v The Queen [1992] HCA 68; (1992) 175 CLR 599

Fordham v The Queen (1997) 98 A Crim R 359

Kailis v The Queen [1999] WASCA 29; (1999) 21 WAR 100

Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461

1 WALLWORK J: I agree with the reasons for judgment and the orders which are proposed by Wheeler J.

2 MURRAY J: In this case I have had the advantage of reading in draft the reasons to be published by Wheeler J. I agree with them unreservedly. There is nothing that I could usefully add to their content.

3 It follows that in my opinion also leave to appeal against the convictions should be refused and, although I too would grant leave to appeal against the sentences to allow the substantive consideration of the arguments presented for the applicant, I would dismiss the appeal against the sentences imposed.

4 On 28 January 2000, the applicant was found guilty of two counts of unlawful and indecent assault upon her daughter, Tracey. The offences were alleged to have occurred between 29 January 1978 and 28 January 1979 and 29 January 1982 - 31 March 1983 respectively. The applicant was sentenced in respect of the first count to a term of 18 months' imprisonment, and in relation to the second count, to a term of 30 months' imprisonment, to be served cumulatively, and was made eligible for parole.

5 The complainant, Tracey, was born in Bunbury on 29 January 1966. During her childhood she lived in Bunbury with the applicant and her two younger brothers and two younger sisters and Mr Sheasby, who was at that time in a de facto relationship with the applicant. It was the Crown case that during her childhood she was subject to frequent physical abuse, going beyond the normal boundaries of child discipline.

6 In relation to count 1, it was alleged that at some time after the complainant's 12th birthday, she began to menstruate. She told her younger sister when she noticed blood on her underpants and the younger sister told the applicant. The applicant sent the complainant to the bathroom and told her to remove her underpants, and then demanded that she shave her pubic hair. The complainant refused and the applicant then shaved the pubic hair of the complainant in such a manner (with a dry razor, and roughly) as to cause her to bleed and to cry. It was her evidence that there were a number of other occasions subsequently upon which the applicant either told the complainant to shave her pubic hair, or shaved the complainant's pubic hair.

7 In relation to count 2, the Crown case was that at a time when she had completed schooling in Year 9 she began to work for Mr Sheasby in his painting business. Mr Sheasby is not the complainant's natural father. During the period of time when she was employed by Mr Sheasby, her mother would demand to inspect her underpants on a daily basis. She did so because she alleged that the complainant was having sexual relations with Mr Sheasby. On the occasion referred to in count 2, it was alleged that the complainant was told that she was not to work with her stepfather that day. The applicant told her to go to the bedroom, close the blinds and remove her underpants. The applicant then began to yell at the complainant and hit her. The complainant found herself on the floor without her underpants, with the applicant sitting upon her, hitting and abusing her. The complainant said that the applicant then inserted a fork roughly into the complainant's vagina. Her evidence was that this hurt her and she told the applicant so and that the incident ended when there was a knock on the door. The complainant asserted that she told a sister shortly afterwards.

8 The applicant denied that either of the incidents alleged in the indictment had occurred, or anything of a similar nature. She denied that the nature of the relationship between herself and the complainant was as described by the complainant and said that the complainant was treated no differently from the other children in the household in relation to physical discipline and chores. She denied that she inspected the complainant's underwear; her evidence was that the complainant would not put her underpants out into the wash and that she would sometimes be disciplined for that.

9 However, in cross-examination, the applicant admitted that she did at one time genuinely believe that Tracey was having sex with Mr Sheasby. She said that Tracey was "making me believe" that she was having sex with Mr Sheasby, that she was "causing a lot of trouble regarding it because she wanted to leave" and that in relation to that Tracey was "trying to sort of provoke me into ... she was causing trouble in that manner, so she got a one-way ticket over to her father" (this last being a reference to the complainant, having shortly after the incident alleged in count 2, left the applicant's household to live with her natural father in New South Wales). She said that even prior to Tracey having made allegations about her, she made no effort to contact Tracey, and she agreed that she had a "strong dislike" for Tracey, apparently even prior to the making of any allegations. Evidence was also given on behalf of the applicant by a sister of the complainant who gave evidence to the effect that the complainant had not told her of the applicant shaving her pubic hair or assaulting her with the fork.

10 The first ground of the application for leave to appeal is that her Honour failed to "properly direct the jury" in accordance with Longman v R [1989] HCA 60; (1989) 168 CLR 79. That ground is particularised by reference to the fact that her Honour failed to warn the jury that it would be "dangerous to convict" the applicant on the evidence of the complainant, given that the only evidence against the applicant was the complainant's testimony about events, which in relation to count 1, occurred 22 years prior to the trial, and in relation to count 2, no less than 17 years prior to the trial.

11 The danger which is identified in Longman as not necessarily being apparent to the jury and as therefore requiring not merely a comment but a warning, is the accused's loss of those means of testing the complainant's allegations, which could have been open to him or her had there been no delay in prosecution. It was held in Longman that (at 91, per Brennan, Dawson and Toohey JJ):

"The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than 20 years, it would be dangerous to convict on that evidence alone unless the jury, scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy".

12 The words used in the majority judgment in Longman are not a formula which is to be parroted by a trial Judge without reference to individual circumstances. What is necessary is that there be an explanation to the jury of what the danger is, and how it arises, and that the Judge should lend the emphasis of judicial office to the proposition that because of that danger it is necessary to give the evidence of the complainant particular scrutiny and evaluation before relying upon it to convict an accused.

13 In this Court in James v The Queen [2000] WASCA 100, Murray J took the view that provided those conditions were satisfied, the decision in Longman did not require any particular form of words, a conclusion with which I respectfully agree. Against that background, I turn to consider the direction given by the learned trial Judge in this case. I do not set it out in its entirety, because comments which touch in some way upon the issues raised in Longman cover some 2 pages of transcript.

14 Her Honour turned to the issues raised in Longman, having drawn the jury's attention to the absence of any complaint other than the disputed complaint to the sister, and the reasons advanced by the complainant for the absence of complaint. Her Honour began her remarks in relation to the Longman issue by saying:

"When you come to consider [the complainant's] evidence, you should also bear in mind and indeed it is quite obvious, that these two alleged offences occurred many years ago - in relation to count 1 over 20 years ago and in relation to count 2 about 17 or 18 years ago."

15 Her Honour told the jury that in assessing the truthfulness and reliability of the complainant's evidence they should bear in mind that the longer the delay between the happening of the alleged offence and the formal complaint, the greater the possibility of error in recollection. She alluded to the jury's own experience that the passage of time would increase the possibility of factual errors. She referred to the possible effects of imagination or prejudice, or outside suggestion, upon the capacity to remember things "particularly things that occurred a long time ago in our childhood or when we were much younger". She advised the jury that it was for this reason that "it is very important that you scrutinise the complainant's evidence with great care. You should exercise considerable caution before acting upon it." So far as the effect upon the applicant was concerned, her Honour immediately continued:

"The delay, in conjunction with the lack of precision as to dates and specific days, does make it difficult for an accused to examine in detail the circumstances of the alleged offences, although, as I have said, in this particular case you will appreciate that the accused says that none of these things happened. However, the delay still puts an accused person at a disadvantage. In this case, the fact that a considerable number of years have passed since the alleged offences were committed and also the fact that there is some lack of precision - and I'm not being critical; it often happens in cases such as this that there is a lack of precision as to exactly when the offences occurred - does, as I have said, result in some difficulty for an accused person in examining the circumstances of the alleged offence or offences."

16 Her Honour then noted that the jury must be satisfied beyond reasonable doubt before they convicted the applicant. She went on to explain that the fact that she had made those comments was not a criticism of the complainant or her evidence, since it was not her Honour's task to form a view as to credibility which was the task of the jury. She continued, that what she was trying to do was to draw the jury's attention to certain circumstances which they should take into account when assessing the complainant's evidence. She noted that, "the substantial evidence and indeed really the only evidence produced by the Crown as to the commission of these two charges is that of the complainant herself". It then followed, she explained, that the Crown case stood or fell on the jury's assessment of her evidence. She noted that the complainant was then nearly 34 years of age and that the offences were alleged to have occurred when she was 12 and between 16 and 17. She again referred to the fact that these offences were alleged to have taken place a long time ago when the complainant was comparatively young and that the passage of time could lead to the dimming of memory.

17 Of the reliability and accuracy of the complainant's recollection, and "whether you, the jury, can safely rely upon it and act upon it" her Honour said, "that's a specific issue that the 12 of you must address in considering whether or not to accept the complainant's evidence because that, in combination with the passage of time and the way that it has unfolded and passed in relation to these matters before you, has meant as I have said that the accused to a degree has lost the means of testing certain aspects of the evidence which has been led against her." Her Honour concluded that in relation to the evidence of the complainant, the jury must "exercise great care and caution" in assessing the evidence and deciding whether or not to rely upon it. Her Honour made a similar but much briefer comment in relation to the evidence given by the complainant of other acts of sexual impropriety (which I take to be the other uncharged incidents of shaving of pubic hair) and the incidents of physical impropriety which are alleged to have occurred, referring again to the long delay and lack of precision in relation to those incidents.

18 It is clear from a reading of her Honour's direction that she advised the jury of the dangers inherent in evidence which was given a long time after these events, they being: the fallibility of recollection; the possibility of outside suggestion or imagination, particularly in relation to childhood events; the lack of precision; and the fact that, arising from those matters, the applicant had lost to an extent the means of testing aspects of the evidence. She told the jury that as a result of those matters, an issue that they "must address" was whether or not to accept the complainant's evidence in the light of those matters and that they must exercise great "care and caution" in assessing that evidence. In my view, that was all that was necessary in order to give the warning required by Longman's case.

19 There was some criticism of the fact that her Honour said to the jury that those comments were not a criticism by her of the complainant or of her evidence. In my view, those comments did not detract from the force of the warning which her Honour gave. The Longman warning is directed to the way in which the jury should evaluate the evidence of a complainant, and it is clear from what her Honour said, in my view, that she was telling the jury that, for the reasons which she gave, they should approach it with particular caution. However, it is also the case that the assessment of the complainant's evidence and formation of a view as to her credibility in the light of those warnings was a matter for the jury. There is a distinction to be drawn between a warning as to the dangers inherent in circumstances in which evidence comes to be given, and a comment as to the credibility of the particular witness who is giving evidence, and it is my view that her Honour's comments were directed to, and would have had the effect of, keeping this distinction alive in the minds of the jury.

20 It is my view that the first ground of appeal must fail.

21 The second ground of the application alleges that the learned trial Judge erred in admitting evidence of other acts of physical violence by the applicant upon the complainant, which acts, it is said, "bore no resemblance to the nature of the matters the subject of the indictment, were highly prejudicial to the accused and of negligible probative value".

22 The acts referred to included hitting the complainant with a wooden dustpan brush, with a wooden spoon that broke, and with a kettle cord, on very many occasions when the complainant did not do her jobs "properly". The jobs included cleaning the house, doing the gardening, looking after the complainant's little brother, changing his underpants and so on. The complainant's evidence was that she was required to do these chores from the time she was very small - approximately 7 years of age. The complainant briefly described an incident in which it was said that she had been playing with matches and so the applicant had put her hand in or on the top of a wooden stove so that her fingers were burnt. She also said that she was the last one to go to bed in the household (presumably the last of the children) because she had to do a variety of housework and to do chores of a personal nature for her mother, such as getting nits out of her hair, cleaning her toenails and brushing her hair. She said the beatings with the kettle cord occurred nearly every day.

23 In relation to the shaving of the pubic hair, the complainant's evidence was that on that occasion the applicant hit and slapped her immediately prior to the shaving incident, and on a number of other occasions required the complainant to shave her own pubic hair. In relation to the incident with the fork, the complainant's evidence was that from the time that she began to work full-time with her stepfather, her mother would check her underpants before she left for work in the morning, and would check them again on her return to ensure that she was wearing the same underpants and to inspect them for markings. Her reason for doing so was, the complainant said, that the applicant said that the complainant was having sex with her stepfather. She said that prior to the incident with the fork, on some occasions when the applicant detected marks on her underpants, she would hit her with a fist, the kettle cord, or a brush, and would pull her hair.

24 I do not understand the applicant to be complaining of the admission of the evidence of hitting on the occasion of the shaving of the pubic hair, or in relation to the hitting and hair pulling that accompanied the inspection of underpants. In each case, that evidence appears to be essential to any understanding of the specific incidents, the subject of the indictment. In relation to the first count, it demonstrates that for some reason the onset of menstruation in her daughter engendered in the applicant feelings of hostility and suggests that the shaving of pubic hair, if it occurred, was an expression of this hostility, albeit an unusual one. In relation to the second incident, it suggests a jealous obsession with the possibility of the complainant having sex with her stepfather, which manifested itself not, as one might expect, in terms of hostility towards, or a demand for an explanation from, the stepfather, but in hostility towards the applicant's daughter. The assault with the fork is then to be seen as a particularly savage manifestation of that jealous obsession.

25 In relation to the evidence of persistent hostility and ill-treatment generally, the submission of the applicant was that the evidence was prejudicial to the applicant and that it did not fall into any of the "recognised categories" under which evidence tending to show the commission of other unlawful acts by an accused person would be admissible. The difficulty with this approach is that it appears to me to fall into the trap which Menzies J described in Wilson v The Queen [1970] HCA 17; (1970) 123 CLR 334 (at 344) of being an attempt "to reduce the law of evidence - which rests fundamentally upon the requirement of relevancy ie having a bearing upon the matter in issue - to a set of artificial rules remote from reality and unsupported by reason."

26 The recent decision of Gipp v The Queen (1998) 194 CLR 106 was a case involving evidence of prior sexual abuse. The judgments in that case, which discuss the issue of evidence of criminal conduct other than that charged in some detail, demonstrate that such evidence may be relevant for a variety of reasons: see Gaudron J at pars 9-12, McHugh and Hayne JJ at pars 76-77, 79-83, Callinan J at pars 177-180. Kirby J did not discuss the matter in detail in his judgment, but the cases footnoted at pars 140-141 demonstrate the range of purposes for which such evidence may be admitted. Although such evidence cannot be led merely as evidence of the general "background" of the offence (see especially Callinan J at par 182) I do not understand either Gipp or any of the authorities bearing on this matter as suggesting that such evidence must fall within some specific, previously recognised, "category" of relevance prior to its admission. The question is whether it is relevant to an issue in the trial or not.

27 In this case, the events alleged in the indictment were entirely bizarre. Further, they were alleged to have occurred between mother and daughter, a relationship which, in common experience, is a generally caring one although not unusually punctuated by greater or lesser occasions of conflict. Counsel for the applicant quite properly advised this Court that in her address to the jury she made submissions suggesting that such bizarre conduct was inherently unlikely to occur in the context of an ordinary family relationship. The transcript of her submissions to the jury bears out this summary. Even if the submission had not been made, it would have been an objection which must inevitably have presented itself to the minds of jurors.

28 The evidence of the other acts alleged by the complainant would, if accepted, show an atmosphere or relationship of extreme and prolonged hostility tending to explain how such events, otherwise entirely inexplicable, could come about. Further, it tends to explain why, in the complainant's evidence relating to the daily inspection of her underpants, there was no reference to any protest or complaint made by her about this unusual violation of her privacy, and tends to explain why, in relation to the shaving incident, although she said that she cried and said she did not want it to occur, she apparently offered no other resistance.

29 In any event, if it were necessary for the evidence to fall into a recognised category before it could be admitted, it appears to me to fall squarely into the category of "relationship evidence" as described, for example, by Toohey J in S v The Queen [1989] HCA 66; (1989) 168 CLR 266 at 279-80. More specifically, it was said in R v Bond [1906] 2 KB 400 at 401, in a passage adopted by Menzies J in Wilson v The Queen (at 343) that in trials for murder and wounding with felonious intent, evidence is admissible:

"... to shew prior assaults by the prisoner upon the murdered or injured person or menaces uttered to him by the prisoner, or to shew conversely irritating behaviour by the deceased to the prisoner as in R v Hagan [1873] 12 Cox CC 357. The relations of the murdered or injured man to his assailant, so far as they may reasonably be treated as explanatory of the conduct of the accused as charged within the indictment, are properly admitted to proof as integral parts of the history of the alleged crime for which the accused is on his trial".

30 In this case, counsel for the applicant said that the acts the subject of the indictment were acts of indecency, whereas the other acts involving uncharged criminal conduct were not. That is true as a matter of law. However, as I have already noted, the motive or impetus for the offences appears to have been one of hostility rather than any desire for sexual gratification, and the indecent assaults were merely particular manifestations of that hostility (in the case of the second count on the indictment, manifestations of an hostility stemming from sexual jealousy, it appears). It is therefore, in my view, quite wrong to suggest that the acts "bore no resemblance" to the nature of the matters the subject of the indictment and were of negligible probative value. On the contrary, in my view, they were manifestations of a long-standing hostility, frequently given physical expression, which alone (absent duress or mental illness) appears capable of explaining, as between a mother and a daughter, offences of this kind.

31 No complaint is made about the way in which her Honour directed the jury in relation to this evidence, assuming it to have been admissible. Since in my view it was admissible for the purpose which I have described, this ground of application must also fail.

32 I would refuse the application for leave to appeal against the convictions.

33 The applicant asserts that the sentence of 18 months' imprisonment on count 1 and 30 months on count 2, being a cumulative term of 4 years' imprisonment, was manifestly excessive having regard to the nature of the offences and the antecedents of the applicant. In addition, it is said that her Honour erred in that she placed too much weight upon the relationship of mother and daughter in assessing the gravity of the offences. The maximum penalty in respect of each offence was one of 4 years' imprisonment, having regard to the time when the offences were committed.

34 It is convenient to consider the gravity of the offences before turning to the antecedents of the applicant.

35 The first observation I would make is that it appears to me that it matters not that these offences were motivated by hostility and anger rather than, as is more usually the case in relation to indecent assaults, a desire for sexual gratification. As the Court of Appeal of Victoria pointed out in another case involving a somewhat bizarre attack of a sexual nature on a daughter, the absence of sexual gratification of the offender may do little to alter the effect upon the victim (R v JMB and AWB [1999] VSCA 62 at par 25).

36 In relation to the first count in the indictment, an important milestone in the complainant's physical development and one which, on her evidence, she did not in any event understand, was made the occasion of the infliction of violence and humiliation, in addition to the physical pain which resulted from the use of the dry razor which caused bleeding. The second count involved the violation of the complainant and the infliction of an appalling sexual indignity. Both were committed by a person who stood in a relationship of trust to the complainant and whose power over the complainant was well nigh absolute, particularly on the occasion of the earlier offence when the complainant was only 12 years of age. As an instance of indecent assault, the second count on the indictment was an extremely serious offence, which, in my view, would justify the imposition of the maximum penalty for offences of this kind. The serious nature of such an assault has been recognised in recent years by its redefinition as a form of sexual assault which would, under current provisions of the Criminal Code, attract a maximum penalty of 14 years' imprisonment.

37 In my view, her Honour did not err in the significance which she placed upon the fact that the applicant was the mother of the complainant, since the element of abuse of trust or, in this case perhaps more correctly, abuse of power, aggravated the seriousness of what was, in each case in any event, a very serious offence.

38 It is true that the applicant's antecedents were good. She had committed traffic offences, but had no other convictions. She had apparently been a good mother to her three other daughters and two sons. She was at the time of trial providing significant support for one of her adult daughters who was suffering an illness, and assisting her with the applicant's grandchildren. She had in the past provided support to her father, who apparently had brain damage resulting from alcohol abuse. Since the complainant was by the time of trial an adult and had no further relationship with her mother, questions of personal deterrence do not seem to have been of particular significance. General deterrence is, however, always of some significance in cases involving an abuse of power by a parent in relation to a child.

39 On the other hand, when one considers factors personal to the applicant, it is clear that there was no contrition or remorse felt by her in relation to these offences. Not only did she deny their occurrence, but she also gave her evidence at trial in a manner designed to suggest that any difficulties which had existed between herself and the complainant were entirely the fault of the complainant. Her refraining from further offences against the complainant is not to her credit, since the complainant was at the time of the second offence between 16 and 17 and went very shortly thereafter to live with her natural father in New South Wales. Her abstaining from further offences since the complainant left home is relevant to the general question of her good character, but does not suggest any course of "rehabilitation" since, as I understand the evidence, it was never suggested that the applicant was disposed to behave in a violent way towards any of her other children. This case is not comparable therefore with cases such as Duncan v The Queen (1983) 47 ALR 746 in which an offender came to be sentenced a number of years after commission of the offences, in circumstances in which he had substantially altered his way of life following the commission of the offences and entered pleas of guilty in relation to them. This was rather a case in which offending had apparently ceased merely because of the removal from the scene of the offender's chosen victim.

40 The court has often noted that cases of intra familial sexual abuse are of a kind which typically should attract significant sentences of imprisonment: Woods v The Queen (1995) 14 WAR 341 at 354 per Anderson J. For the reasons that I have noted, notwithstanding the absence of a sexual motivation, these are to be treated as offences of a sexual nature occurring within a family. Favourable matters personal to the offender, although always relevant, necessarily are limited in their significance in such a context. It is my view that, having regard to the seriousness of the offences, appropriate weight was given to the applicant's otherwise good character prior to and following the commission of these offences by the imposition of sentences which, in the case of the first count, was less than half of the maximum penalty available, and in the case of the second, was 5/8ths of the maximum penalty available. The different nature of the offences and their separation from each other in time, together with the gravity of the totality of the offending made the imposition of cumulative sentences appropriate.

41 I would not interfere with the sentences imposed by the learned trial Judge and would grant leave to appeal, but would dismiss the appeal against sentence.