WXY v Tasmania, State of [TASCCA]

• Jurisdiction: Tasmania
• Judge: Evans J,Tennent J,Wood J
• Judgment Date: 23 November 2012
• Docket Number: 350/2012
• Court: Court of Criminal Appeal
• Date: 23 November 2012

[2012] TASCCA 13

SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

Evans, Tennent and Wood JJ

350/2012

WXY

and

Tasmania, State of

SKA v R (2011) 243 CLR 400 [2011] HCA 13 , followed.

Aust Dig Criminal Law [3473]

Criminal Law — Appeal and new trial — Verdict unreasonable or insupportable having regard to evidence — Test to be applied.

REASONS FOR JUDGMENT

COURT OF CRIMINAL APPEAL

Evans J Tennent J Wood J

23 November 2012

1 The appellant appeals against his conviction on one count of rape and one count of indecent assault.

2 The sole ground of appeal is that the convictions are unsafe and unsatisfactory in all the circumstances of the case. TheCriminal Code Act 1924, s402(1), provides:

‘402 Determination of appeals

(1) On an appeal the Court shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence, or that the judgment or order of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal.’

3 For relevant purposes, the applicable terms of s402(1) are the same as those contained in theCriminal Appeal Act 1912 (NSW), s6(1), which is the provision referred to in a passage from the decision in SKA v R (2011) 24CLR 400, [2011] HCA 13 to which we will refer.

4 The ground of appeal against conviction inSKA was that the verdicts were perverse and not supported by the evidence. As noted by Simpson J in SKA v R [2009] NSWCCA 186, par[94], in New South Wales this ground is more commonly pleaded as being that the verdict is unreasonable and cannot be supported and was formerly pleaded as being that the verdict was unsafe and unsatisfactory. In result, the differences between the way the ground of appeal in SKA was expressed and the way the ground in this case is expressed are of no consequence when considering the following passage from the High Court's decision in SKA on the approach that should be taken to such an appeal.

5 At pars[11] — [14] in that decision French CJ, Gummow and Keifel JJ said:

‘The task of the Court of Criminal Appeal

[11] It is agreed between the parties that the relevant function to be performed by the Court of Criminal Appeal in determining an appeal, such as that of the applicant, is as stated in M v R by Mason CJ, Deane, Dawson and Toohey JJ:

Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

[12] This test has been restated to reflect the terms of s 6(1) of the Criminal Appeal Act. In MFA v R McHugh, Gummow and Kirby JJ stated that the reference to “unsafe or unsatisfactory” in M is to be taken as ‘equivalent to the statutory formula referring to the impugned verdict as ‘unreasonable’ or such as ‘cannot be supported, having regard to the evidence’”.

[13] The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say:

In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.

Save as to the issue whether the Court of Criminal Appeal erred in not viewing a videotape of the complainant's police interview, to which reference will be made later in these reasons, this qualification is not relevant to the present matter.

[14] In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the court is to make “an independent assessment of the evidence, both as to its sufficiency and its quality”. In M, Mason CJ, Deane, Dawson and Toohey JJ stated:

In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, “none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand”’.

6 In October 2009, the appellant was the partner of the complainant's grandmother. He was 51 years of age and the complainant was five years of age. The complainant was then attending kindergarten two days a week. Her mother's evidence is that prior to this time she had had no discussion with the complainant about the ‘birds and bees’ or about ‘the mechanics of oral sex’

7 Between 11 and 15 October 2009, whilst the complainant's mother and her husband were in Surfers Paradise on what was described in the evidence as a late honeymoon, the complainant and her younger sister, then aged three, stayed with the complainant's grandmother and the appellant.

8 The charges on which the appellant was convicted are that during this stay, that is, between 11 October 2009 and 15 October 2009:

1. • he unlawfully and indecently assaulted the complainant by placing his hand under her clothing and underpants (indecent assault), and

2. • had oral sexual intercourse with the complainant without her consent (rape).

9 In these reasons we will refer to the complainant's mother and her husband as ‘the parents’, and the husband as ‘the father’, although the evidence did not indicate whether he was the natural father of the complainant and her sister. We will refer to the complainant's grandmother as ‘nan’, as that is how the complainant referred to her. We will refer to nan and the appellant together as the grandparents, although the appellant is not the natural grandfather of the complainant. We will refer to the appellant as such, although in the evidence he was almost invariably identified by his Christian name or a variation of it.

10 At about 8.30pm on 15 October 2009, the complainant's parents called at the grandparents' home to collect the complainant and her sister. Presents were distributed, the adults had coffee and all seemed normal. When the parents and children left the grandparents' home the complainant asked the appellant to carry her to the car, which he did. He also buckled her into her car seat. They left the grandparents' residence at about 10pm and arrived at their own home just before midnight. The children slept during the journey home.

11 The following morning the complainant was in the company of her mother. During the morning she said nothing to her mother about the matters to which we will refer that she spoke of later that day. Shortly after lunch the mother left her children with the father while she visited a friend. When the mother returned she noticed that the complainant appeared to have had a bleeding nose. The complainant is prone to nosebleeds. The mother asked the complainant whether her nose had bled and whether she had had a nose bleed while at her nan's. The complainant said that her nose had bled while at her nan's and went on to talk about her stay at her nan's. She volunteered that the appellant had put ‘his hand … on her front bottom and that he pulled his body out of his pants and put it in her mouth and that she said it felt and tasted disgusting’. The evidence is that the complainant described a man's penis as his body. The complainant then talked to her mother about other things that had happened whilst at her nan's and her mother did not, at that time, question the complainant further about the abuse she had spoken of.

12 The mother phoned the grandmother and told her what the complainant had said. After speaking to the appellant the grandmother rang back and told the mother that the appellant strongly denied the allegations. The mother said the appellant could be heard ranting in the background during this phone call.

13 The mother decided to phone Child Protection, but before doing so, she spoke to the complainant again. The complainant told her mother that when sitting on the appellant's office desk he licked her bum. The complainant said the desk was cold and she had put bum germs on it, he had taken her trousers and pants off and had licked her and had pushed the back of her head down and told her to drink the milk from the cow. She told her mother that this occurred when her nan was in the kitchen. The mother's evidence is that when the complainant made her complaints the only question she asked her was where her nan had been at the time. The mother said she did not ask the complainant for factual information at all.

14 Following this further discussion with the complainant the mother spoke to Child Protection and arrangements were made for a police officer to come to their home. The following morning First Class Constable Melissa Keygan visited them. When Constable Keygan arrived the mother asked that they refrain from saying anything as her daughters were present. Their conversation was ‘very minimal’. The evidence of the mother and Constable Keygan is that Constable Keygan did not speak to the complainant about the allegations at the home. It was then arranged for the mother and the complainant to go to the police station after lunch, which they did. At the police station, whilst the complainant was occupying...