AK v The State of Western Australia

• Jurisdiction: Australia Federal only
• Court: High Court (Australia)
• Judge: Gleeson CJ,Kiefel J.,Gummow,Hayne JJ.,Heydon J.
• Judgment Date: 26 March 2008
• Neutral Citation: [2008] HCA 8,2008-0326 HCA A
• Docket Number: P27/2007
• Date: 26 March 2008

[2008] HCA 8

HIGH COURT OF AUSTRALIA

Gleeson CJ, Gummow, Hayne, Heydon And Kiefel JJ

P27/2007

AK

Appellant

and

The State of Western Australia

Respondent

Representation

R W Richardson for the appellant (instructed by Aboriginal Legal Service of Western Australia (Inc))

B Fiannaca SC with D A Lima for the respondent (instructed by Director of Public Prosecutions for Western Australia)

Criminal Appeals Act 2004 (WA), s 30.

Criminal Procedure Act 2004 (WA), ss 119, 120.

AK v The State of Western Australia

Criminal law — Appeals — Application of the proviso — Statutory requirement that reasons for judgment include the principles of law applied and the findings of fact relied upon — Failure to give reasons meeting statutory requirements in respect of central issue at trial — Failure to comply with statutory requirements an error of law — Appeal against conviction to be allowed unless Court of Appeal satisfied that no substantial miscarriage of justice had occurred — Whether no substantial miscarriage of justice had occurred.

Criminal law — Evidence — Identification — Complainant indecently dealt with by one of two males with whom she and her sister were sharing a bed — Complainant unable to identify the perpetrator by visual or aural means — Complainant adamant that the appellant was responsible — Whether identification warning needed — Whether finding of guilt unreasonable or not supported by evidence.

ORDER

• 1. Appeal allowed.

• 2. Set aside the order of the Court of Appeal of the Supreme Court of Western Australia made on 17 November 2006 and in its place order that:

  • (a) the appeal to that Court be allowed,

  • (b) the appellant's convictions be quashed, and

  • (c) there be a new trial.

1 Gleeson CJ And Kiefel J. This is an appeal from the Court of Appeal of Western Australia, which heard a criminal appeal from a judge sitting without a jury. It is common ground that the primary judge erred in law by failing to give adequate reasons for his decision to convict the appellant. All three members of the Court of Appeal (Roberts-Smith, Pullin and Buss JJA) rejected a ground of appeal that the verdict of guilty was unreasonable and could not be supported by the evidence. All three accepted the possibility of application of s 30(4) of the Criminal Appeals Act 2004 (WA), which empowers the Court of Appeal, having upheld a ground of appeal, to dismiss the appeal if it considers that no substantial miscarriage of justice has occurred (‘the proviso’). The Court divided on whether the proviso should be applied.

2 There are three grounds of appeal to this Court:

• ‘2.1. The Court of Appeal erred, having found that the learned trial judge had failed to provide adequate reasons, in finding that the proviso … had any application.

• 2.2 Alternatively, the Court of Appeal erred in concluding, on the whole of the evidence, that the evidence from the record established that the appellant was guilty beyond reasonable doubt, and dismissing the appeal pursuant to s 30(4) of the Criminal Appeals Act.

• 2.3 The Court of Appeal erred in failing to find that the verdict of guilty was unreasonable or could not be supported by the evidence.’

The charges and their background

3 The complainant, a female, and the appellant, a male, are first cousins. They had known one another during the whole of their respective lives, and had lived near one another for much of that time. In February 2002, the complainant was aged 15 and the appellant was aged 13. In March 2003, following some sexual activity between the complainant and the appellant, the complainant fell pregnant. She told a female cousin, other members of her family, and the police, that the appellant was the father. She was ashamed, for reasons that included reasons of culture. She had an abortion. She told the authorities that she had not consented to the intercourse in consequence of which she became pregnant. It is evident from the charges that she also told of an occasion of alleged sexual contact between her and the appellant in February 2002. It seems probable that she said this was the first occasion of such a nature.

4 In October 2004, the appellant was charged as follows: first, there were three counts of indecent dealing with a child between the ages of 13 and 16, relating to three separate aspects of the incident in February 2002; secondly, there was a charge of sexual penetration without consent on 30 March 2003; thirdly, there was a charge of indecent assault without consent on 25 April 2003.

5 The appellant was convicted on the three counts of indecent dealing in February 2002, and received a non-custodial sentence (a supervision order). Consent was not an answer to those charges. The appellant was acquitted of the alleged offences of March and April 2003. In each case, the basis of the acquittal was that the State had failed to negative an honest and reasonable mistaken belief as to consent.

6 It is the alleged indecent dealings in February 2002 that are the subject of the present appeal. In understanding the evidence, and the course of the trial, in relation to those offences it is necessary to keep in mind that it was not disputed that there were sexual relations between the complainant and the appellant in 2003, although the defence case was that they were consensual. According to a version of an act of sexual intercourse put to the complainant in cross-examination by counsel for the appellant, the complainant not only consented but in fact initiated the activity. She denied that allegation. It was put to the complainant that she was making up the story that she was an unwilling partner, partly because of shame at her pregnancy, and partly because she knew that if she, when over 16 (as she was in 2003), had sex with a boy of the appellant's age, she herself would have been committing an offence.

The trial

7 The trial was conducted, before Judge Wisbey, sitting without a jury, pursuant to the provisions of the Children's Court of Western Australia Act 1988 (WA), the appellant not having elected to be tried on indictment by the Supreme Court or the District Court. It is common ground that provisions of the Criminal Procedure Act 2004 (WA) (‘the Criminal Procedure Act’), including ss 119(3) and 120(2), applied.

8 There were only three witnesses: the complainant; a female cousin, who gave brief and unchallenged evidence that in April 2003 the complainant told her she was pregnant and that the appellant was the father; and the complainant's older sister, who was present, with the appellant and the complainant, on the occasion of the February 2002 incident, but who slept through it. The appellant did not give evidence. It may be that no decision was made about whether the appellant would give evidence until the end of the prosecution case. This is consistent with the lines of questioning taken in cross-examination of the complainant, which appear to have been designed to test the complainant's evidence, without confronting the complainant with any specific contrary version of events to which the appellant might be confined if he decided to give evidence.

9 A large part of the complainant's evidence in chief and cross-examination related to the alleged offences of 2003. Enough has already been said about those issues to explain the background to the February 2002 allegations. The whole matter came to light, not because of any complaint in the colloquial sense, but because of the complainant's pregnancy, her identification of the appellant as the person responsible, her allegation of lack of consent, and investigation of the history of her sexual relations with her younger cousin. Part of the cross-examination about the events of 2002 seems to have been directed towards a suggestion that the occasion she described occurred later in that year; a possibility that may have been of significance in relation to her age at the relevant time. However, she was adamant that it was in February, and in that respect she was corroborated by her older sister. Since the suggestion made in cross-examination was not supported by evidence from the appellant or anyone else, the point was not pursued in final address.

10 The complainant's evidence in chief was as follows. In February 2002, the complainant was living with her mother, sister and younger brother in Geraldton. The complainant's aunt, along with three of her children, including the appellant and the appellant's brother, visited Geraldton. The appellant was on his way to a boarding school at Tardun. The whole group decided to travel to Tardun and spend the night there in a caravan. Four of the children went to bed on a double bed mattress: the complainant, the complainant's sister, the appellant and the appellant's brother. The complainant said that she and the appellant were lying together with their heads at one end of the bed and her sister and the appellant's brother were lying with their heads at the other end of the bed. The complainant said that the appellant, early in the night, indecently touched her in three ways, including fondling her breasts and placing her hand on his penis. Repeatedly, the complainant in her evidence in chief described these events by saying ‘[the appellant] did this’ or ‘[the appellant] did that’. She said she had gone to sleep with the appellant next to her, and she was woken up by the appellant touching her. She then described his actions. Following these actions, according to the complainant, the complainant's aunt entered the caravan and the sleeping arrangements were altered. The complainant was not asked, in chief, how she knew the person touching her was the appellant. It was obviously a male; there were only two males in the bed, that is, her two cousins. The appellant, at least by 2003, undoubtedly had a sexual interest in the complainant....