Thomas Robert Eastough & Ors v The Queen & Anor [1998] WASCA 53

Thomas Robert Eastough & Ors v The Queen & Anor [1998] WASCA 53 - WASCA 1998 case summary — Zoe

[39]

The complainant said the first specific incident she could recall occurred when she was 10 years old and was in year 5 at school. Later in her evidence she referred to improper conduct commencing when she was five years old but it would appear from her evidence that she could not recall specific instances. She said, when describing the incidents which occurred when she was 10 years old, that she was with her grandmother and grandfather and her two sisters. She and her sisters had had lunch with the grandparents. They then returned to the appellant's house and watched television. While they were doing this the appellant came in and the two sisters, at the appellant's request, went back to the grandparents' house. She said the appellant then gave her a pair of bikini pants and asked her to try them on. She said she went into the toilet removed her underwear, which she left in the toilet and put on the bikini pants under her dress. She said when she came back to the lounge room the appellant had undressed himself and was wearing only his jocks and he was touching his genital area. She said that he asked her to show him the bikini pants which she had put on. She did not show him so he lifted her dress and had a look. She said he told her to lie down and she did as she was asked. She was lying on her back. She said that he pulled her dress up to around her throat. She said that he then touched her breasts and she said that her breasts had started to develop, but she did not commence to wear a brassiere until the following year. She said that he took his jocks off and placed one leg either side of her body and placed his penis between her breasts. He told her to squeeze her breasts together, which she did. She said he then moved up and down between her breasts as if he was having sex and ejaculated onto her chest and cleaned her chest. She then saw, through the lounge room, that her grandfather was coming to the house. She said the appellant told her to pretend that she was in the toilet. She went back to the toilet and changed back to her ordinary underwear, leaving the bikini pants in the toilet. She said that she went to the back door and said goodbye to her grandfather and the appellant and she then went to her grandparents' place to get her sisters. When she passed the appellant he gave her two $5 notes folded into one. She said that she did not tell anyone because she was too scared and he always told her that it was their "little secret". The facts I have outlined constituted the first two counts on the indictment. They were counts of indecent assault alleged to have occurred between 1 January 1987 and 31 December 1987.

[40]

The complainant said that the next incident, which she could remember specifically, occurred when she was 12 years old. She said that it was during the time she was attending high school. She said she thought it occurred in March 1993 when her grandmother and grandfather were away in Geraldton. She said it occurred at the grandparents' house in the afternoon over a weekend, but she cannot recall whether it was Saturday or Sunday. She was staying at the appellant's house. The appellant had the keys to the grandparents' house which he was looking after. The grandparents would leave treats in the refrigerator for the children. The complainant obtained the keys from the appellant and went to the grandparents' house with her sisters to obtain the treats which were chocolate ice creams. While they were eating them the appellant came over and told the sisters to go and play at the house of a friend and the sisters did this. The appellant then told the complainant to go into the grandparents' bedroom. She did this. She said that the appellant asked her to sit on the bed, which she did. The appellant then asked her to lie down and she obeyed. He told her to pull her pants down, which she did. She said that he took his pants down too. She said that he lent over her and tried to put his penis in her vagina. When he started to do this he asked her if she would have sex with him and she replied "No". She said that he asked her why she would have sex with other boys and not with him and she responded that because he was her dad. She said that he tried to push his penis in but it hurt too much and she told him to stop. She said it was erect. She said that he stopped and then he touched her breasts. She was wearing a brassiere and a T-shirt. He pulled the T-shirt up, undid the brassiere and touched her on the breasts with his hands. She said that after this occurred she went to the toilet. She urinated and as there was stinging, she wiped herself with the toilet paper and saw there was blood on the toilet paper. She then dressed and went to the house where her sisters were. She did not say anything to anyone about what had occurred. She said she was too scared and was frightened she would get into trouble. She said at that stage she was aware of the nature of the act he was performing. These facts constituted counts 3 and 4 which were alleged to have occurred between 1 and 31 March 1990 and were a count of indecent assault and a count of an attempt to sexually penetrate the complainant.

[41]

The complainant said the next occasion when there was conduct of this nature was when she was 13 years old. She then described the two counts on which the appellant was acquitted. The appellant had by this time remarried and the complainant was at the wedding. A child was born of this marriage, which the appellant called her stepbrother. The appellant's new wife, prior to this child being born, agreed to look after another baby, Roslyn, who was the appellant's niece. The complainant's evidence was that the acts occurred before her stepbrother was born but after Roslyn came to live with the appellant and his wife. She said she visited the appellant's house but her sisters were not with her. She slept in a room and Roslyn, who was then a baby, slept in a cot in this room. She said that she was asleep in this room when the appellant came in whispering her name and woke her up. She said that he sat on the edge of the bed and took his penis out of his pyjama pants. There was no light in the room, but there was some street light from outside. She said he put her hand on his penis and used his hand to move her hand up and down. She said the penis was only semi erect. She said that he pulled her trousers down, placed his fingers inside her vagina and moved them up and down. She said the incident came to an end when the baby started crying. She said the appellant left the room and she pretended to be asleep. She said that her step mother came into the room and attended to the baby. The stepmother picked the baby up and took her out. The offences charged as a result of this evidence were an act of sexual penetration and an act of indecent assault alleged to have occurred between 8 April 1990 and 7 April 1991. The appellant's new wife gave evidence that Roslyn did not at that time sleep in the room where the complainant slept, but slept in the bedroom of the wife and the appellant. The wife said that Roslyn did not sleep in the other bedroom until after their child was born. She said that there never was a time when she woke up by reason of Roslyn crying and her finding her husband not in the bedroom.

[82]

The next two grounds to which I shall refer relate to the trial Judge's actual directions in the area of complaint. The first is ground 2 which claims that his Honour erred by failing to direct the jury that the evidence of complaint was only capable of being used to buttress the credit of the complainant with respect to the final count of the indictment, namely the incident which occurred on 27 February 1994. This ground must relate to the evidence of Jodie. The direction which should be given is to be found in Kilby v R. Barwick CJ referred to a number of sources as to the purpose of the evidence and these included the 36th Edition of Archbold's Criminal Pleading Evidence and Practice, p392 para 1077, and a proposition set out in Halsbury 1952, 3rd Ed, Vol 10, 468 para 859. The passage referred to in the 1966 Edition of Archbold is contained in para 8-103 of the 1997 Edition. The evidence is admissible not as being evidence of the facts complained of but as evidence of the consistency of the conduct of the complainant with the story told by her in the witness box. This, in ordinary circumstances, is the appropriate direction for the trial Judge to give to the jury. It contains no reference to the term "buttressing". It is, in the main, a direction as to what the evidence cannot be used for. If the situation be that there is properly joined in an indictment a series of alleged acts over a long period of time and a complaint is promptly made in respect of the last act, then evidence of that complaint is properly before the jury, not as proof of the facts stated, but as evidence of the consistency of conduct of the complainant. In my view, as a general rule, there is no requirement for the Judge to say that it can only relate to consistency of conduct in respect of the last alleged act and cannot be used in judging evidence as to earlier acts. I can find no authority suggesting that such a direction should be given and in my experience, such direction is not given. The proposition that such a direction should be given as a matter of course would, in my view, be inconsistent with subpara (b) of s36BD of the Evidence Act. At the very least such direction would cause confusion. There are three requirements in a case of this nature. Firstly, as mentioned, there must be the direction that the evidence is not evidence of the facts complained of but is evidence of the consistency of conduct of the complainant. Secondly, on the facts of this case, there must be the direction required to be given under s36BD that there can be good reasons for not making a complaint and thirdly, in cases of this nature there must be the direction required to be given by Crofts v R [1996] HCA 22; (1996) 186 CLR 427, that the absence of complaint in the earlier instances is a factor to take into account in evaluating the complainant's evidence, having regard to the warning required to be given under s36BD.

[114]

It was held in Longman that if a Judge refused to give the warning referred to, the conviction was liable to be quashed as unsafe and unsatisfactory if it were held that the refusal to warn left a perceptible risk of miscarriage of justice. There is a requirement under the section for the Judge to be satisfied that the warning was justified in the circumstances. The particular circumstances in the present case were that the first offence was some nine years prior to the first trial, the penultimate two offences some five years and the final offence, two years, but with a prompt complaint made after the final offence. It would not be to the point to say that the appellant would have a greater chance of acquittal had the warning in the form now suggested been given. This would apply in every case as the effect of such warning would have an impact on the evaluation of the complainant's evidence. The section recognises that this would be unfair to a complainant if the circumstances did not justify it. His Honour did point out to the jury as a matter requiring their special attention the difficulty faced by the accused person in testing the complainant's allegations a considerable time after the alleged event. He referred to the care necessary for the jury to take. His Honour did not consider the circumstances justified his going to the extent of saying that it would be dangerous to convict on the complainant's evidence. If his Honour was correct in this assessment then he was forbidden by the section from going to this extent. I consider there was material where His Honour could properly reach this view. I come to that view having regard to the fact that there was a complaint on her reaching adulthood and when an event occurred after she left home. The delays were not of the proportion referred to in Longman. The present case was a case of alleged continuous misconduct brought to the notice of the authorities a little over a year after the last act. The directions the trial Judge in fact gave, including the direction relating to the difficulty faced by the appellant in testing the complainant's allegations a considerable time after the alleged event, precluded any risk of a miscarriage of justice.

[120]

In that case the appellant was a gymnastic instructor and was charged with three counts of sexual intercourse with a child under his authority. The first and second offences were alleged to have occurred five years prior to the trial and the third offence four years prior to trial. There were convictions on the first and third counts but an acquittal on the second count. The majority held on the facts of that case that the acquittal on the second count damaged the credibility of the complainant with respect to all counts in the indictment. Implicit in the acquittal was a rejection of the complainant's account of the events which were said to give rise to that count. The majority referred to the fact that the jury may have acquitted because the unshaken evidence of the appellant's wife and daughter with respect to the absence of opportunity engendered a reasonable doubt about the appellant's guilt on the second count. The majority considered it was difficult to see how it was open to the jury to be convinced beyond a reasonable doubt of the guilt of the appellant with respect to the first and third counts. There was nothing in the complainant's evidence or in the surrounding circumstances which would give any ground for supposing that her evidence was more reliable in relation to those counts than it was in relation to the second count. The Court referred to two factors present in that case making it necessary for a reasonable jury to scrutinise the complainant's evidence with considerable care. These were her delay in making the complaint and the lack of corroborative evidence, in particular, the absence of any medical evidence. It was said in the reasons of the majority that given the jury's finding on the second count, it was not open to them, on the whole of the evidence, to be satisfied beyond reasonable doubt of the guilt of the appellant on the first and third counts. Once the jury found that the evidence of the complainant with respect to the second count lacked sufficient cogency to convict, the Crown case on the first and third counts wore a different complexion for it meant that, when her evidence could be set against other reliable evidence, it failed to carry sufficient conviction to reach the criminal standard of proof. The majority said that nothing in the complainant's evidence gave any ground for thinking that the quality of her evidence was higher in respect of the first and third count than it was in respect of the second count. Their Honours said that when the credibility factor is combined with the uncorroborated nature of the complaints and the effect of the lengthy and unexplained delay in making the complaints, the convictions on the first and third counts can only be regarded as unsafe and unsatisfactory. The majority concluded that the proper application of the test formulated by the majority in "M" required the convictions of the appellant to be set aside on the basis that they were unsafe and unsatisfactory.

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Judgment (166 paragraphs)

Thomas Robert Eastough & Ors v The Queen & Anor [1998] WASCA 53 (12 March 1998)

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Cases Cited (12)