MWJ v The Queen [2005] HCA 74

HIGH COURT OF AUSTRALIA

GLEESON CJ,

GUMMOW, KIRBY, CALLINAN AND HEYDON JJ

MWJ APPELLANT

AND

THE QUEEN RESPONDENT

MWJ v The Queen

[2005] HCA 74

7 December 2005

A35/2005

ORDER

Appeal dismissed.

On appeal from the Supreme Court of South Australia

Representation:

P J L Rofe QC with S C Ey for the appellant (instructed by Mangan Ey and Associates)

P F Muscat for the respondent (instructed by Director of Public Prosecutions (South Australia))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

MWJ v The Queen

Criminal law – Practice and procedure – Trial by judge without a jury – Appellant convicted of three sexual offences against a child – Supposed inconsistencies between the evidence of the complainant and her mother concerning complaints that the complainant made to her mother – Whether the manner in which the trial judge dealt with the supposed inconsistencies involved error.

Criminal law – Practice and procedure – Rule in Browne v Dunn – Application of the rule to an accused in a criminal trial – Supposed inconsistencies between the evidence of the complainant and her mother not put to the complainant in cross-examination – Whether the complainant should have been re-called – Consequences for trial judge's decision-making.

1. GLEESON CJ AND HEYDON J. Following a trial before a judge, sitting without a jury, in the District Court of South Australia, the appellant was convicted of three sexual offences against the complainant, who was a child at the time. The three offences allegedly occurred at 10 Jeffries Street, Whyalla Playford, in 1990 or 1991, where the appellant was living with the complainant's mother. There was an alleged earlier offence of a similar nature, said to have occurred at 5 Sutcliffe Street, Whyalla Stuart, between 1986 and 1987. The appellant was acquitted of this charge. The three offences of which the appellant was convicted arose out of a single incident at Jeffries Street. However, evidence was given of other uncharged offences committed earlier at Jeffries Street. The alleged incident at Sutcliffe Street, and the incident at Jeffries Street, which were the subject of the charges, were, according to the complainant, the first and last occasions of sexual abuse to which she was subjected. Where there is alleged to be a history of sexual abuse, it may be that a complainant will find it easiest to remember, and give detailed evidence about, the first and the last occasions on which it occurred. 2. Only three people gave evidence at the trial: the complainant, the complainant's mother and the appellant. The mother gave evidence of complaints made to her. The admissibility of that evidence is not in question in this appeal. The argument in the appeal relates to certain supposed inconsistencies between that evidence and the evidence of the complainant, and to the way those inconsistencies were dealt with at trial. 3. The sequence of complaints was as follows. In 1991, the complainant told her mother that the appellant had tried to have sex with her at Jeffries Street. The complainant's mother gave evidence that she confronted the appellant with the allegation, and he admitted it was true. Many years later, in 2002, the complainant told her mother that, while they lived at Sutcliffe Street, the appellant "used to go into her room at night-time and touch her". The mother gave evidence that she confronted the appellant, who said that the matter had "already [been] worked out between [them]". The appellant in his evidence denied the alleged misconduct and the alleged admissions. The complaints to the mother were said to have been made in general terms. She did not question the complainant in the manner of a police investigator, or a trial lawyer, or seek further particulars as to exactly what happened. In giving evidence about the 2002 complaint, the mother said that she could not remember the exact details of the conversation. 4. The complainant, in her evidence, was asked, and answered, questions about the alleged incident the subject of the charge relating to Sutcliffe Street. She was not asked, either in chief or in cross-examination, whether there were any other instances of sexual abuse at Sutcliffe Street. Counsel for the appellant was aware, from the evidence at committal, that the mother was expected to give evidence of a 2002 complaint about a course of conduct at Sutcliffe Street. She did not ask the complainant whether there were incidents at Sutcliffe Street in addition to that which was the subject of the charge, and of the evidence in chief. The Crown Prosecutor had said, in his opening address, that the complainant "thinks that this is the only occasion when the accused touched her in this way at Sutcliffe Street", but neither counsel raised the question with the complainant in the course of her evidence. The complainant, it should be added, said she was aged about 8 at the relevant time. 5. In brief, the complainant gave no evidence about whether the charged incident at Sutcliffe Street was the only one of its kind at that address. The complainant's mother, who was unclear about the details of the 2002 complaint, described it as a general complaint relating to conduct at Sutcliffe Street, rather than an account of a single and specific incident. There was no direct inconsistency between the complainant's evidence at trial and what, according to her mother, she said in 2002. 6. Counsel for the appellant knew that the mother was going to give evidence of a complaint about a course of conduct at Sutcliffe Street. The fact that she did not cross-examine the complainant about whether there was other abusive conduct at Sutcliffe Street apart from the occasion that was the subject of the charge is hardly surprising. The advantage to be gained from a negative answer was small, and the disadvantage resulting from a positive answer could have been significant. 7. The evidence of the complainant was that the event at Sutcliffe Street was the first occasion on which anything like that had happened. That, perhaps, is why it was the subject of a charge. The complainant was not asked, and she did not say, that nothing like that ever happened again at Sutcliffe Street. In cases of alleged child sexual abuse, where the events allegedly happened many years previously, it may be quite wrong to treat a complainant, who is only asked about a single incident which is the subject of one charge, and who is not asked about other uncharged incidents of a like kind, as intending to imply that the incident about which evidence is given was an isolated incident. Here, the complainant was invited to give evidence, and gave evidence, about uncharged incidents at Jeffries Street. The prosecutor told the judge that the complainant thought that only one incident occurred at Sutcliffe Street. Whether the prosecutor was right or wrong about what the complainant thought is unknown. The complainant did not give evidence, one way or the other, on that topic. To say that the mother's evidence of complaint was inconsistent with the complainant's evidence is incorrect. 8. Indeed, the possibility that, consistently with the complainant's evidence, there might have been a number of incidents at Sutcliffe Street, was part of the reasoning of the trial judge in deciding to acquit the appellant of the charge relating to Sutcliffe Street. He said that "she was not categorical about it being the only time it happened at Sutcliffe Street". He interpreted one answer she gave as possibly implying "that there may have been other occasions about which she has no memory". In order to make good the charge relating to Sutcliffe Street, the prosecution had to establish the date of the offence with sufficient clarity to satisfy the terms of the charge. The trial judge said: