The Queen v Robinson[1998] QCA 50

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

 C.A. No. 314 of 1997

Brisbane

[R. v. Robinson]

THE QUEEN

v.

PETER JAMES ROBINSON

(Applicant)

Appellant

Williams J.

Lee J.

Cullinane J.   

Judgment delivered 20 March 1998

Separate reasons for judgment for each member of the Court,

APPEAL AGAINST CONVICTION DISMISSED.  APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

CATCHWORDS: CRIMINAL LAW - Sodomy - Appeal against conviction - whether S. 632(3) prohibits the giving of a warning where child complainant is a witness - whether rule of practice concerning child witnesses remains - whether circumstances called for specific warning about child complainant’s evidence -

S. 632(3) Criminal Code

Langman v. The Queen (1989) 168 CLR 79,

R v.  Wilson (CA355/94 Court of Appeal 14 November 1994 unreported)

CRIMINAL LAW - Sodomy - Appeal against sentence - whether a sentence to six years imprisonment for each offence is manifestly excessive.

Counsel:  Mr A. Rafter for the applicant/appellant.

Mrs L. Clare for the respondent.

Solicitors:  Bushnells Lawyers for the applicant/appellant.

Director of Public Prosecutions (Queensland) for the respondent.

Hearing date: 17 October 1997

REASONS FOR JUDGMENT - WILLIAMS J

Judgment delivered 20 March 1998

The facts relevant this appeal are fully set out in the reasons for judgment of Cullinane J.  I agree, for the reasons which he has given, that there is no substance in any of the grounds of appeal against conviction; the appeal against conviction should be dismissed.  However, because of the importance of s. 632 of the Criminal Code I will make some additional observations on its relevance.  Further, I agree that the application for leave to appeal against sentence should be dismissed.  Given that the appellant had no previous convictions, and that the two incidents occurred within a very short space of time, the sentence is at the top of the range, but because of the breach of trust involved it is not, in my view, manifestly excessive.

This appeal raises for consideration s. 632 of the Criminal Code which came into force on 1 July 1997.  It effects, as indeed was the intention of Parliament, significant changes to the criminal law.  Prior to its introduction trial judges regularly warned juries (indeed in some instances they were required to) of the dangers of acting on the uncorroborated evidence of particular classes of witnesses.  In particular such warnings were given with respect to, inter alia, complainants in sex cases and children.  The wording of s. 632, set out in the reasons for Cullinane J, makes it clear that such general warnings are longer permissible with respect to such classes.  If there was any doubt on that question it is removed by a consideration of the Second Reading Speech of the Attorney-General.

Giving the expression “any class of complainants” in s. 632(3) its ordinary meaning, the provision must cover complainants (male or female) in sexual cases and children who are also complainants.

As is made clear by the reasoning in Longman v. The Queen (1989) 168 CLR 79, a decision on the comparable Western Australian legislation, the trial judge in his summing up may, and should, give appropriate warnings to the jury based upon the particular circumstances of the case.  If there is a long delay between the commission of the alleged offence and the trial (as was the case in Longman) or if there are inconsistencies in the evidence affecting the credibility of the complainant, there should be specific reference in the summing up to such matters.  But in doing so the learned trial judge must refrain from making any reference to the alleged general propensity of a particular category of complainant witnesses to be more or less likely to be reliable as a witness.

The trial here was very brief and the issues were confined.  The learned trial judge (in the passage quoted by Cullinane J) referred to the significance of there being no recent complaint, but apart from that it is not clear that the circumstances of the case called for any particular warning or direction in the course of the summing up.  In the circumstances I agree that there was no deficiency in this regard in the summing up although it was perhaps briefer than was desirable in all the circumstances.

Before leaving s. 632 an anomaly should be noted.  The prohibition on a judge commenting upon the possible unreliability of a class of witnesses only covers such witnesses who are also complainants.  If, for example, a sexual offence committed on an 8 year old child was witnessed by a 10 year old, the learned trial judge would be obliged (unless R v. Wilson CA 355/94, 14 November 1994, unreported and R v. F.A.R. (1996) 2 Qd. R. 49 were reconsidered) to give a general warning that the evidence of the 10 year old witness should be scrutinised with particular care because of the potential unreliability of child witnesses.  One has only to state the proposition to see the absurdity of the situation which would result.  The judge would be in breach of s. 632 if he said any such thing about the 8 year old complainant, but was obliged to say it about the 10 year old witness.  There would, naturally, in such a case be a flow on effect from what was said in relation to the 10 year old so that the jury would be likely to treat the evidence of the 8 year old in the same way.  If that were to happen it may be there would be a mistrial.  If follows that it may be preferable in such cases for the judge in the summing up not to give the warning in relation to the 10 year old, but while the decisions to which I have just referred remain as a statement of principle that course also creates possible problems.

The matter needs urgent further consideration by the legislature.  A somewhat similar problem appears to have arisen in South Australia as is evidenced by the reasoning in R v. Pahiya (1988) 49 SASR 272.  If there is good reason for imposing an embargo on judges suggesting that the law regards any class of complainants as unreliable witnesses it is difficult to see why the position should be any different with respect to any witness whether complainant or not.

I agree with the orders proposed by Cullinane J.

REASONS FOR JUDGMENT - LEE J.

Judgment delivered 20 March 1998

I have read the reasons of Williams J and Cullinane J.  Having considered all of the material and submissions, including the supplementary submissions by Mr Rafter, counsel for the appellant, of 10 December 1997, I have unfortunately come to a different conclusion.  The appeal against convictions should be allowed and a new trial ordered.  Because of the importance of the several issues raised, including the meaning and effect of s. 632 of the Criminal Code which, in its amended form (Act 3 of 1977) came into effect on 1 July 1997, just three weeks before the appellant’s trial for two offences allegedly committed on one occasion in October/November 1993,  it is necessary to set out my reasons in some detail.

The appellant was convicted by a jury on 22 July 1997 of two counts of unlawful anal intercourse committed in late October or early November 1993 (i.e. nearly four years earlier) on the complaint of a boy who was born on 8 October 1985 and was just eight years of age at the time of the alleged offences.  He was 11, almost 12 at trial.  The appellant, a scout leader at the time, was born on 10 February 1974, and was 19 at the date of the offences and 23 at trial.  He was sentenced to six years imprisonment on each count, to be served concurrently.  No recommendation was made.  The maximum penalty  provided by s. 208(2)(b)(i) as it was then numbered, was life imprisonment because the boy was under 12 years of age.  There was an alternative count in the indictment in each case of unlawful and indecent dealing which the jury did not need to consider in view of the verdicts of guilty on the principal counts.  The appellant appeals against the convictions and seeks leave to appeal against the sentence.  The grounds of appeal against conviction are as follows:

“1. A miscarriage of justice occurred by reason of evidence which was prejudicial to the Appellant and inadmissible being led, namely:

1. Evidence from the witness John Brian Gavranich of his opinion expressed as a fact that regression in toileting habits and soiling in children is often the result of psychological and/or physical trauma in those children’s lives, when no or insufficient facts or other opinion evidence had been led to make that opinion relevant to the case against the Appellant.

2. Evidence from the Complainant in the taped interview with him (ex.1) of two (2) complaints made by him about the Appellant which were neither recent nor capable of supporting the credibility of the Complainant as a witness (R v.  W [1996] 1 Qd R 573); nor established by any other evidence.

2. The evidence of penetration of the Complainant by the Appellant was insufficient to sustain the convictions for sodomy or, alternatively, was such as to make those convictions unsafe.”

The ground of the application for leave to appeal against the sentence was that the sentence was manifestly excessive.  The appellant was a young man and had no previous convictions.  There was no other improper conduct other than the two incidents which allegedly occurred very close together on the one occasion.  There was no violence, threats or warnings of any kind to the complainant who appeared to act normally with the appellant after the alleged offences.  There was no permanent physical injury, although there was evidence that commencing some time after the alleged offences, the complainant commenced soiling his pants and occasionally did so up to the time of his medical examinations in October, November 1995.  There was imprecise evidence that “physical or psychological trauma”, if it occurred, could have produced such a consequence.

At the hearing of the appeal, two additional grounds of appeal against conviction were advanced by Mr Rafter, without objection:-

“3. The learned trial Judge erred in failing to give the jury an appropriate warning in relation to the complainant’s evidence.

  4. The learned trial Judge failed to give the jury an adequate direction with respect to the complaint evidence that was admitted.”

Ground 3 is concerned primarily with the effect of the amendments to s. 632, which occupied most of the time on the appeal.  Ground 4 is, in practical terms, an alternative to Ground 1(b) although in para.7 of Mr Rafter’s outline, he enlarged the numbers of “complaint evidence” to at least three, wherein ground 1(b) refers only to two.  Indeed, the complainant said in ex.1 that he mentioned the matter to a number of his relatives and others.  There is no other evidence of complaint of any kind from persons other than the complainant.

Following the first complaint by the complainant to his mother on 29 November 1996, a tape-recorded interview (R15) was conducted between a police officer and the complainant with his mother present on 30 November 1996, i.e. more than three years after the alleged offence.  It was not on oath.  The whole of this out of court interview was admitted into evidence pursuant to s. 93A of the Evidence Act 1977 as ex.1, without objection by defence counsel.  A transcript was made available to the jury and to this Court.  

The complainant gave evidence and was cross-examined.  Essentially, his evidence-in-chief consisted of ex.1 which was played in full to the jury.  The cross-examination of him was to some extent the taking of him through what he had said in this statement.  His mother, father and Dr Gavranich (paediatrician) gave short evidence for the Crown but were not cross-examined.  The appellant gave evidence which, in chief, was simply a denial that improper conduct had occurred at all.  He was cross-examined and again denied any  impropriety.

The trial was very short and occupied less than one day on 21 July 1997.  Counsel for the appellant at the trial addressed for only three minutes from 2.58pm to 3.01pm on 21 July 1997.  The Crown Prosecutor addressed from 3.01pm to 3.25pm.  The summing-up commenced at 3.25pm and was very short.  It was effectively completed by 3.40pm.  The jury were not asked to retire until 9.30am next morning.  Apart from the standard directions and directions as to the law relating to the counts in the indictment, about which, though very short, no complaint was  made, his Honour’s only comments on the facts occurred at pp. 51-2 of the record as follows:-

“Now, you have recently heard the addresses of Counsel.  I will not go into detail about that.  I should say this because Mr Townsing in his address touched on this question: The absence of an early complaint in this case may show inconsistency of conduct on the part of the complainant.  It is clearly relevant to his credibility in that respect.  There may be many reasons why a complaint is not made straightaway, and Mr Ryan in his address to you went through a number of reasons why he says this eight-year old boy would not have complained straightaway to his parent.  These are matters for you to consider. 

Mr Townsing has submitted to you that the absence of recent complaint is significant, that is word against word, his client has given evidence and that you  will give the benefit of the doubt to his client.

Mr Ryan has made lengthy submissions to you but basically he says at the end of the day when you have considered all the matters he placed before you, you will be satisfied beyond reasonable doubt that the complainant boy has been telling you the truth and you will convict.”

This is yet another case where addresses of counsel were not transcribed and which may have had a bearing on the approach of the learned trial Judge to the summing up.  See the recommendation by White J in The Queen v.  Chevathen (CA 222 of 1997, 3 October 1997 unreported).  In this regard I repeat what I said in R v.  Moore (CA 283 of 1997, 21 November 1997 unreported) and in R v.  Coupe (CA 277 of 1997, 9 December 1997 unreported) See also R. v.  Makanjuola, John [1995] 2 Cr App R 469 at 473 para (4).  Nevertheless, as Mr Rafter submitted, defence counsel in only three minutes could hardly have made any significant submissions apart from those referred to by the learned Judge in the passage above quoted.  Counsel’s approach seemed to be consistent with the fact that he did not cross-examine three out of the four Crown witnesses.  He simply relied upon the appellant’s denial that any misconduct had occurred, i.e., word against word.

No warnings of the kind complained about were given during the summing-up;   nor was any direction given about the use which could be made of the “complaint evidence” given by the complainant on at least three occasions, and which was contained in ex.1 or referred to in the oral evidence on cross-examination of the complainant;  nor, as indicated,  was any objection taken at the trial to the admissibility of ex.1 or any of its contents: see ss. 98, 130 of the Evidence Act 1977; Horan v.  Ferguson [1995] 2 Qd R 490 per Demack, J.  (with whom McPherson, J.A. agreed) at 496-7; R v. W [1996] 1 Qd R 573, particularly at 576.  Nor was any attempt made by the Crown Prosecutor (R9), who led the evidence, to excise from ex.1, any inadmissible complaint or other evidence from ex.1, despite the very strong statements of this Court in those two authorities as to inadmissible evidence.  The learned Judge’s attention was not directed to inadmissible evidence in that tape.  Apart from the reference to the absence of an early complaint to his parent (more than three years after the alleged offences), and a brief reference to its relevance to the complainant’s credibility, the learned Judge made no reference to or any comment on the complainant’s evidence, or indeed, on any of the evidence at all.

  At the outset, Mr Rafter properly conceded that no objection had been taken by counsel at the trial to the admissibility of evidence, the subject of ground 1, and that no redirection whatever had been requested by counsel at the trial, in particular with respect to the added grounds (3) and (4).  Nevertheless Mr Rafter relied upon the well-known comment by Viscount Simon in Stirland v.  DPP [1944] AC 315 at 328:

“The object of British Law, whether civil or criminal, is to secure, as far as possible, that justice is done according to law, and, if there is a substantial reason for allowing a criminal appeal, the objection that the point now taken was not taken by counsel at the trial is not necessarily conclusive.”

That principle has been applied in numerous authorities since, e.g. in R  v.  Morgan [1978] 1 WLR 735 at 740, the English Court of Appeal said at 739-740:

“The second complaint against the Judge is that he never warned the jury of that possibility.  In terms he did not, though we have been told frankly by Mr Paterson that counsel who appeared for the appellant at the trial never suggested the possibility.  One can understand his reluctance to do so.  Nevertheless, the Judge’s duty cannot be circumscribed by whether counsel does or does not take a particular point in this class of case.”

See also R v.  Wilson (CA 355 of 1994, 14 November 1994 unreported); R v.  McEndoo (1991)  5A Crim R 52 (CCA Qld); R v.  Wilson (CA 200, CA 333 of 1996, 12 August 1997 unreported per Fitzgerald P and Lee J at 79 (Note 86); R v. Omarjee (1995) 79A. Crim R 355; R v. Miletic [1997] 1VR 582; and most recently, the High Court decision in KBT v. The Queen  (1997) 72 ALJR 116) and in particular the joint judgment of Brennan CJ, Toohey, Gaudron and Gummow JJ at 119 and per Kirby J at 126.  See also R v.  Moore, R v.  Coupe.

Whilst it is quite possible to infer that defence counsel allowed ex.1 to be tendered without objection as to the complaints referred to therein, for tactical reasons (he cross-examined in relation to some of them), another possible inference is that he wrongly thought that the whole contents were admissible under s. 93A of the Evidence Act, or took the view that the Court’s discretion to reject evidence tendered under s. 93A is regularly exercised against the accused: R v.  F.A.R. [1996]2 Qd R 49 per Fitzgerald P. at 54, such that an objection was not attempted.  As the above passage in the summing up indicates, the absence of an early complaint appears to have been directed to an absence of such a complaint to his mother, which was not made until over 3 years after the alleged offences, followed by the recorded interview with a police-officer the next day (ex.1).  As this particular late complaint was apparently the only focus of the defence submission that this showed inconsistency of conduct of the complainant for not having complained in a timely fashion to his parent and bore on the complainant’s credibility, it is difficult to see why defence counsel at the trial did not specifically object to the complainant’s other “complaint evidence” in the record of interview (p. 13) that in 1994 (ie. the year immediately following the alleged offences in October 1993, the year 1994 being affirmed twice in cross-examination (R21-22)), he already mentioned the matter to Mark Dainer, an 18 year old boy (ex.1, p. 13) who lived next door and who was sharing a tent with him at that time (p. 20-22), and to other relatives (“my Mum, Dad, Nanna, and Peter and Marie [they’re] real good friends” - p. 16), which suggests that the right to object to what were otherwise clearly inadmissible previous consistent out of court statements may have been overlooked; R v. W.

In this context, it is only out of court statements which truly constitute a “fresh” complaint, which are exceptionally admitted:  Kilby v. R (1973) 129 C.L.R. 460 per Barwick CJ at 466; R v. W, and then for a very limited purpose which requires a careful direction to the jury as to the limited use to be made of them, particularly where the credibility of the complainant was central to the accused man’s case: Jones v.  R (1997) 71 ALJR 538, as, indeed, it was in this case.  These statements should not have been led in the first place and could clearly have been objected to.  Had this occurred the learned trial judge would without doubt have excluded them:  Horan v. Ferguson at 496-7; R v. W at 576.

Whatever may be the correct inference, an appellant is not forever estopped  from raising any points of substance on appeal, notwithstanding the approach by his counsel at the trial, at least if more is involved than a tactical decision which turns out to have been misjudged: R v.  Wilson (CA 200, 323 of 1996 per Fitzgerald P and Lee J at 79).  Once evidence is admitted, even if incorrectly, and assuming it remains admitted, that evidence, however elicited (including out of court statements by the complainant), is part of the total evidence before the jury who are, as in this case, directed that the evidence adduced by the appellant (which includes evidence in cross-examination of the complainant) is added to the evidence adduced by the prosecution so that the jury should consider upon the whole of the evidence whether they are satisfied beyond reasonable doubt as to guilt (46-47).  See e.g. B v.  The Queen (1991-2) 175 C.L.R. 595 where evidence adduced by the accused was said to be part of the evidence to be evaluated both for and against him.  The same principle applies with respect to inadmissible evidence not objected to by counsel for the defence.  All of the evidence so admitted, from whatever source, is to be evaluated by the jury, with appropriate directions, and where necessary, warnings by the trial Judge. 

There is no justification for the rationale that where inadmissable “complaint evidence” was allowed in by defence counsel, even for tactical reasons, this abolishes the accused’s right to appropriate directions and warnings in relation to its use if a warning or direction is needed.  It comprises part of the evidence before the jury.  This is the subject of ground 4 which is referred to later.  The problem here is that defence counsel did not ask for any such direction.

The question then is whether, if any of the points raised by Mr Rafter are upheld, there has been a substantial miscarriage of justice;  i.e. the respondent must show that there has not been such a miscarriage.  This is the role of the Court of Appeal which is concerned to ensure as far as possible that justice has been done according to law:  Stirland v.  DPP  at 328;  KBT v. The Queen; Chamberlain v.  R (No 2) (1983-4) 153 C.L.R. per Brennan J (as the Chief Justice then was) at 604‑6.  The overriding consideration is whether the appellant has lost the chance of acquittal and has had a fair trial.  In considering this question, I have not overlooked the fact that conduct of Counsel at the trial may in some circumstances be a relevant consideration in determining whether or not there has in fact been a miscarriage of justice: R v.  Muller [1996] 1 Qd. R. 74 at 77; KBT v. The Queen.

Mr Rafter also conceded that even though at the date of the alleged offences, s. 208(4) of the Criminal Code  as it then stood provided that a person may be convicted upon the uncorroborated testimony of one witness, but that the Court shall warn the jury of the danger of acting on such testimony unless it was corroborated in some material particular by other evidence implicating the person, he did not rely on this provision or on the provisions of s. 632 existing at the date of alleged offences.  This was said to be the effect of the High Court decision in Rodway v.  R. (1990) 169 C.L.R. at 515.  Section 208(4) as it then stood (and some other similar sections) were removed by the Criminal Law Amendment Act (No 3) of 1997, effective 1 July 1997, which also amended s. 632 to its present form.  See also R v.  Drury [1984] 1 Qd R 356, and R v. Omarjee.  Because of this concession, it is not necessary to consider s. 208(4) as it stood at the date of the alleged offences.   It is therefore not to the point that had the trial taken place only about three or four weeks earlier, a strong warning would have been mandatory, not discretionary.  There seems to be no Queensland provision equivalent to s. 76F(3)(a) of the Evidence Act 1971 (A.C.T.)  or s. 405C(3)(a) of the Crimes Act 1900 (N.S.W.)  now replaced by s. 164 of the Evidence Act 1995, (N.S.W.), which, notwithstanding the sections which abolished (A.C.T.) or removed the requirement (N.S.W.)  of a warning in the case of a complaint of a sexual offence, nevertheless preserved “any rule of law or practice” which required a warning with respect to an offence committed before the sections commenced.  The result is that  ss. 208 and 632 as they presently stand, were conceded as applicable, even though the alleged offences were committed long before they were amended to their present form.

Early in the trial (R 7) the Crown Prosecutor conceded that there was no evidence capable of corroborating the complainant.  He also submitted that there was no recent complaint but, as indicated, no objection was made to the tender of ex.1 in full, nor any attempt to excise any inadmissible “complaint evidence” or any other evidence from it before it was led.  It was simply tendered and played in full to the jury with the aid of transcripts.

Some discussion then occurred about the new provision s. 632 although the new section was not then available to anyone in Court (R 8).  Surprisingly, defence counsel admitted that he had not even seen the legislation although he was aware of its existence from some discussion with colleagues.  The Crown Prosecutor submitted that the learned trial Judge was not restricted regarding any comments about the evidence but that he could not suggest to the jury that because the complainant belonged to a particular class of witness such as a complainant in a case where sexual offences are alleged, the jury should approach the evidence with any greater caution or greater scepticism than they might another witness.  Defence counsel submitted that his Honour had an overriding discretion but agreed that his Honour was no longer in a situation where he automatically gave warnings because the case involved a sexual offence.  His Honour said that if it emerged during the trial that there was some reason to be concerned about the evidence given by a complainant, then a warning could be given to which defence counsel said, “Yes,  that’s my understanding of it, Your Honour.”  His Honour commented (R8) “Wait until the section comes”.  The matter appears to have been left there.  The learned judge did not have the advantage of submissions in relation to it along the lines of those advanced in this Court viz, that the amendments did not abolish the long standing rule of practice as to a warning concerning the evidence of a young child witness, as opposed to a young child complainant.  Indeed, there is no further reference to the section in the record. 

It is convenient to first deal with Ground (3) which concerns s. 632.  It occupied most of the time on the appeal.  The section in its current form was introduced by Act No.  3 of 1997 and commenced on 1 July 1997.  Its wording has produced difficulties in interpretation, as the rival submissions demonstrate.  It now provides:

“Corroboration

632 (1) A person may be convicted of an offence on the uncorroborated testimony of one witness, unless this Code expressly provides to the contrary.

2. On the trial of a person for an offence, a Judge is not required by any rule of law or practice to warn the jury that it is unsafe to convict the accused on the uncorroborated testimony of one witness.

3. Subsection (1) or (2) does not prevent a Judge from making a comment on the evidence given in the trial that it is appropriate to make, in the interests of justice, but the Judge must not warn or suggest in any way to the jury that the law regards any class of complainants as unreliable witnesses.”

As Cullinane  J.  points out, ground (3) has two components.  The first is that the trial Judge should have exercised his discretion not only to comment but also to give a firm warning to the jury pursuant to the first clause of s. 632(3) because of particular features, including those which Mr Rafter identified (referred to below), which, he submitted, was supported by Longman v.  The Queen (1989) 168 C.L.R. 79.  The second component is that the trial Judge should have given a general warning with respect to the complainant’s evidence on the basis that he was a young child witness, in accordance with what is referred to as the long established rule of practice recognised in the decision of this Court in R v.  Wilson (CA 355 of 1994) and by the High Court in B v.  The Queen at 615-616 (approving R v.  Pahuja (1988) 49 S.A.S.R. 191 at 616), that the evidence of (any) young child should be scrutinised with care for various reasons.  Counsel also relied on Longman v.  The Queen which also approved R v.  Pahuja at 86-87, 96.  See also R v.  Muller (supra).

Whilst there was no real dispute that the learned Judge had the power to “comment” on the evidence in accordance with the first component, this aspect, and further, whether the learned Judge should have given a warning as submitted, will be deferred until necessary consideration is given to the purpose and effect of s. 632(3), particularly the second clause thereof.  This necessarily involves an examination of the whole of s. 632 as it now stands.

On the second component, it was submitted by Mr Rafter that nothing in the amendments in any way affected the direction which he submitted would still be given today if precisely the same circumstances had arisen as in Wilson (CA 355 of 1994).  That case was concerned with the evidence of a child witness, not the complainant, although the complainant child also gave evidence.  The majority (Fitzgerald P and Davies JA) expressed the rule in general terms as applying to child witnesses in general, applying B.v. The Queen at 616, and approving R.  v.  Schlaefer (1992) 57 S.A.S.R. 432 and R.  v.  C.B.R. [1992] 1 Qd.R. 637.  Mr Rafter drew a distinction between a child witness as such, and a complainant in a sexual case, i.e., what is forbidden is any comment that the jury should exercise considerable care in evaluating the evidence of a complainant in a sexual case according to the former time honoured rule of practice in such cases, but that the amendment did not alter the other established rule of practice concerning warnings when a young child gives evidence.  In other words, it was submitted that where a child was both a complainant in a sexual case and a witness, no comment may be made concerning the complainant by virtue of the fact that the complaint was made with respect to a sexual offence,  but that there was nothing to prevent a warning according to the established rule of practice that considerable care should be taken in evaluating the evidence of a child witness, even if that witness was also the complainant in a sexual case.  He referred to R.  v.  Pahuja; See also B.  v.  The Queen at 615-6.  Mr Rafter made no submissions concerning warnings traditionally required with respect to other categories of what have been called “suspect witnesses” or to any other warnings of the kind referred in Bromley v. The Queen (1986) 161 C.L.R. 315 per Gibbs CJ.  at 319, per Brennan J.  (as the Chief Justice then was) at 323, 325, Carr v. The Queen (1988) 165 C.L.R. 314 per Brennan J. at 330, per Gaudron J.  at 341, both approved in Longman at 86.  These authorities indicate that warnings should always be given in any case where it is necessary in the interest of justice to ensure that the jury have a proper appreciation of the nature of the evidence as they approach their assessment of it, and to ensure a fair trial.

Mrs Clare for the Crown submitted (written outline para 4) that s. 632(2) abolished the requirement to warn juries in relation to the uncorroborated evidence of children i.e. children generally (which must mean whether a complainant or not).  She further submitted that the new section overruled the direction recognised in Wilson (CA 355 of 1994) with respect to child complainants, viz that s. 632(3) absolutely prohibited a warning in relation to the evidence of child complainants (outline para 4), while leaving open the power of the trial judge to comment on the particular circumstances of a specific child complainant, if appropriate in the interests of justice, providing it does not suggest the general unreliability of children.  Thus this submission, if correct, clearly means that no warnings can ever be given about the “general unreliability of children” who are witnesses whether complainants or not.  This submission is contrary to the view of the majority that an anomaly still exists such that a warning can still be given concerning the evidence of child witnesses who are not complainants. 

Also necessarily implicit in the Crown’s submission, although it was not specifically argued, is that s. 632(2) abolished all “common law” warnings according to rules of law or practice, not only with respect to evidence of child witnesses, but with respect to all other categories of “suspect witnesses”, such as accomplices, informers, persons of very bad character, mentally ill persons, and perhaps others, some of whom might give evidence in a seemingly forthright and believable fashion without apparent inconsistencies or conflict with other evidence.  Thus it follows from this submission, if correct, that s. 632(2) has abolished the requirements of warnings of any kind whilst the first clause of s. 632(3) has in effect reinstated the type of warnings contemplated by Bromley v.  The Queen, Carr v.  The Queen and Longman at 86 where appropriate.

Mrs Clare referred to a comment by Davies JA as to the Wilson warning in R v. F.A.R. at 61 as follows:-

“The second concerns his Honour’s reference to the existing rule of practice that a trial judge should tell the jury that the evidence of a child should be scrutinised with particular care: (R v. Wilson C.A. 355/1994;  Court of Appeal, 14 November 1994, unreported).  That rule of practice rests on a dubious presumption that a child’s evidence is inherently less reliable than that of an adult.  In my view, it requires reconsideration.  But for reasons which this Court gave in Wilson such a warning appears, for the present, to be mandatory.”

See also per Fitzgerald P at 55-56:

“A warning to the jury that it is dangerous to convict on the uncorroborated evidence of a child is mandatory in respect to some offences (see, for example, ss. 208, 210, 215, 217 and 218 of the 1899 Criminal Code).  In other criminal proceedings also, it is a rule of practice that a trial judge should tell the jury that the evidence of a child should be scrutinised with particular care:  see, e.g. R v. Wilson C.A. 355/1994;  Court of Appeal, 14 November 1994, unreported).  In my opinion, there are serious problems associated with that ‘rule of practice’:  cf. Longman (168 C.L.R.) at 92-93 per Deane J.”

Those remarks of Deane J were in the context of a complainant in a sexual case but the President was of the view that these remarks were relevant to the President’s discussion in relation to child witnesses.  His Honour was primarily concerned with the impact of various statutory provisions, including s. 93A of the Evidence Act, on the rule of practice.  Nevertheless, Deane J said (p.  92):-

“Unsatisfactory though its historical rationale may be, the rule of practice is now firmly entrenched in the traditional criminal law of this country.  The present tendency is, however, to explain the rationale of the rule without reference to the gender of the complainant and to state the rule itself in non-discriminatory terms.”

That this rule of practice “deserves all the reverence of law” had been recognised as early as 1861: Kelleher v.  R (1974) 131 C.L.R. 534 per Mason J at 559 and Hargan v.  R (1919) 27 C.L.R. 13 at 24 per Isaacs J, affirmed by Gibbs J in Kelleher at 553.  See also R.  v.  Kilbourne [1973] A.C. 729 per Lord Hailsham of St Marlebone at 740 para F-G.  All members of the Court of Appeal in F.A.R. recognised that the rule of practice with respect to the warning concerning the evidence of young children given on oath,  was still in existence at that time.  The question for this Court now is not whether the relevant rule of practice should receive reconsideration but whether the latest amendment to s. 632 has absolutely abolished (i.e. prohibited) that rule as the Crown contends (and, indeed, as a consequence, all rules of practice with respect to all other categories of long accepted suspect witnesses).  The issue is therefore of considerable importance and requires consideration of its terms but in the context of the development of this rule of practice (and other such rules) and its purpose, and in the context of legislation elsewhere and authorities which in general make it very clear that the abolition (i.e. prohibition) of any such firmly entrenched rule requires specific language.  R.  v.  Pahuja; Longman; B.  v.  The Queen at 616-7.

It appears that Queensland is the last state in Australia to introduce legislation of this general kind.  According to Cross on Evidence, Australian edition, vol. 1, para 15135, in all other States and Territories, the only restriction appears to be against a warning in cases of complainants of a sexual offence.  Evidence by young children, accomplices, or other categories of suspect witnesses was simply not dealt with in this particular type of legislation.  In NSW this was so under the former s. 405C, the section dealt with by the High Court in M.  v.  The Queen (1994) 181 C.L.R. 487 at 499.  That provision has now been replaced by ss. 164, 165 of the Evidence Act 1995 which appear to be of general application although merely providing that “it is not necessary that the Judge” give a warning regarding “uncorroborated evidence”, with no reference to one witness as in Queensland: s. 632(2).  Nevertheless, s. 165(3) seems to preserve warnings  in a range of cases where in a jury trial a party requests a warning.  See Cross para [15260].  Also since Longman, the Western Australian provision has been enlarged to apply to all indictable offences - See p. 83, by s. 50 of the Evidence Act 1906.  The corroboration warning there referred to now refers to “the uncorroborated evidence of one witness” (cf.  632(2) of the Code) whereas in Longman the section dealt with (s. 36BE of the Evidence Act 1906 para (1)(a)) specifically referred only to a warning that it was unsafe to act on the uncorroborated evidence “of the person upon whom the offence is alleged to have been committed”.  The Queensland s. 632 appears to be a modified version based on parts of sections in other States, and particularly the current West Australian provision, although there are still important differences.  This has resulted in the present difficulty.  Compare the language used in the Criminal Justice Act 1988 (U.K.), s.  34, and the Criminal Justice and Public Order Act 1994 (U.K.)  s. 32, and R.v. Makanjuola, John.

Nevertheless, as Cross points out (para [15135]), there are apparently two models.  Some merely state that a judge is not required by any rule of law or practice to give a warning, and some go further and forbid a warning to be given merely on the basis that complainants in a sexual case (as a class) are to be regarded as untrustworthy.  Cross states that the passage in Longman at 87-8 is directed to the second model and further, as pointed out at para [15052], the point regarding the old common law rule requiring a warning in the case of evidence given by young children on oath did not specifically arise in Longman where the victim was of full age at the time of trial.  However, the view is expressed in Cross that the interpretation of the statute adopted by the High Court in that case indicates that it is not to be taken to have abolished in sexual cases the other rules of law or practice requiring a corroboration direction.  See in particular Longman at p. 87 second paragraph and p. 89, first full paragraph and in particular the statement that “justification (for a warning) may be found in any requirement of a rule of law or practice which might apply in the circumstances other than the requirement to which para. (a) refers”.  Nevertheless, care is obviously needed when considering authorities on legislation in other States and Territories.

It seems reasonably clear that the “rules of practice”, regarding the evidence of various categories of “suspect witnesses”, developed under the influence of similar rules relating to corroboration.  In Kelleher v.  R., Gibbs J.  at 553, after dealing with the established rule that a warning should be given that it was dangerous to convict on the uncorroborated testimony of the person (whether male or female) on whom a sexual offence was committed, which His Honour stated was a practice of comparatively recent origin, said:-

“The practice appears originally to have been formulated under the influence of similar rules relating to the corroboration of the evidence of young children and of accomplices, ...”

In view of the submissions that such “corroboration” warning has been abolished, or prohibited by s. 632(2), it is helpful to refer to the origin of corroboration and to the reasons for it, and the common law rules in relation to it, as set out in two decisions of the House of Lords.  In DPP v.  Hester [1973] A.C. 296, Senior Counsel for the Crown at 204 submitted that:

“The origin of corroboration may well be (cf.  the position in Scotland) that in this kind of offence one must have more than one witness.”(a sexual offence)

At 324, Lord Diplock said:-

“This makes it necessary to examine the concept of corroboration at common law apart from statute.  The rule adopted in legal systems based upon the civil law that an accused could not be convicted on the testimony of a single witness never took root in the common law.  The only exception was in the case of perjury - a crime which was originally punished in the Court of Star Chamber, whose procedure prior to its abolition was influenced by the civil law.  Apart from statute and with this one exception inherited from the practice of the Star Chamber, ever since trial by jury assumed its modern form it has always been open to juries to convict an accused of any offence upon the unsupported testimony of a single witness.  But common sense, the mother of the common law, suggests that there are certain categories of witnesses whose testimony as to particular matters may well be unreliable either because they may have some interest of their own to serve by telling a false story, or through defect of intellect or understanding or, as in the case of those alleging sexual acts committed on them by others, because experience shows the danger that fantasy may supplant or supplement genuine recollection.  For brevity I will hereafter refer to evidence of this kind as ‘suspect’ evidence and the witnesses who give it as ‘suspect’ witnesses.

At common law the risk of unreliability was dealt with in different ways according to its cause.  The more draconian way was to classify the witness as incompetent to give evidence in the proceedings of all.  Until the Evidence Act 1843, persons who had a proprietary or pecuniary interest in the outcome of civil or criminal proceedings were incompetent witnesses in those proceedings.  So in civil proceedings were the parties and their spouses until the Evidence Act 1851, and the incompetence of the accused  to give evidence in criminal proceedings against him continued until it was at last removed by the Criminal Evidence Act 1898.  Persons incapable of understanding the nature of an oath, whether because of infancy or because of defect of intelligence, were also incompetent at common law to testify in civil and criminal proceedings alike.  The only statutory inroad upon this disability is that which is now contained in section 38(1) of the Children and Young Persons Act 1938.

But a witness whose evidence upon a particular matter might be expected to be of doubtful reliability for reasons which did not bring him within the category of an incompetent witness was always admissible at common law.  It was for the jury to determine what credence they attached to it.  In law they were entitled to base their verdict upon it, and upon it alone, if they were satisfied of its truth.  But in criminal cases, for the protection of the accused it became the practice of judges in the second quarter of the 19th century to warn the jury of the danger of convicting upon such testimony unless it was corroborated by evidence from some other source.”

At 325, His Lordship continued:-

“Accomplices form the commonest category of witness whose evidence in criminal cases became subject to the common law requirement of a warning to the jury as to the danger of convicting upon it unless it was confirmed by evidence from some other source, and most of the reported cases are about the evidence of accomplices.  But a similar rule of practice at common law grew up as to the evidence of two other categories of witnesses whose reliability either generally or as to particular matters  was liable to be suspect for other reasons.  These were: children who, though old enough to understand the nature of an oath and so competent to give sworn evidence,  are yet so young that their comprehension of events and of questions put to them or their own powers of expression may be imperfect; and persons, regardless of their age, who claim to have been victims of a sexual offence.

The danger sought to be obviated by the common law rule in each of these three categories of witnesses is that the story told by the witness to the jury may be inaccurate for reasons not applicable to other competent witnesses, whether the risk be of deliberate inaccuracy, as in the case of accomplices, or unintentional inaccuracy, as in the case of children and some complainants in cases of sexual offences.  What is looked for under the common law rule is confirmation from some other source that the suspect witness is telling the truth in some part of his story which goes to show that the accused committed the offence with which he is charged.”(emphasis added).

The above passages make it clear that the reasons for warnings differed in each of these categories.  The warning regarding accomplices and children focuses upon their evidence, no matter what the type of offence, whereas with respect to complainants of a sexual offence, the focus is on the nature of  the offence, and not on the particular complainant, who may be male or female, adult or child.  This is an important distinction and appears to have ben specifically reflected in ss. 130A, 129N(1) of amendments to the Evidence Act 1977 (Qld) as enacted by Act No.  37 of 1995 on 16 June 1995, but which was never proclaimed to commence, and in s. 632 as finally enacted to commence from 1 July 1997.  See below.

At 327, His Lordship continued:-

“My Lords, to incorporate in a summing up a general disquisition upon the law of corroboration in the sort of language used by lawyers may make the summing up immune to appeal upon a point of law, but it is calculated to confuse a jury of layman and, if it does not pass so far over their heads that when they reach the jury room they simply rely upon their native commonsense, may, I believe, as respects the weight to be attached to evidence requiring corroboration, have the contrary effect to a sensible warning couched in ordinary language directed to the facts of the particular case.”

A similar approach was adopted by Lord Hailsham of St Marylebone LC in Reg v.  Kilbourne at 739-740.  His Lordship said:-

“In my view, there is no magic or artificiality about the rule of practice concerning corroboration at all.  In Scottish law, it seems, some corroboration is necessary in every criminal case.  In contrast, by the English common law, the evidence of one competent witness is enough to support a verdict whether in civil or criminal proceedings except in cases of perjury (cf.  Hawkins’ Please of the Crown, vol.  4, c.46, s. 2; Foster’s Crown Cases (1762) 233).  This is still the general rule, but there are now two main classes of exception to it.  In the first place, there are a number of statutory exceptions ...

But side by side with the statutory exceptions is the rule of practice now under discussion by which judges have in fact warned juries in certain classes of case that it is dangerous to found a conviction on the evidence of particular witnesses or classes of witness unless that evidence is corroborated in a material particular implicating the accused, or confirming the disputed items in the case.  The earliest of these classes to be recognised was probably the evidence of accomplices ‘approving’ for the Crown, no doubt, partly because at that time the accused could not give evidence on his own behalf and was therefore peculiarly vulnerable to invented allegations by persons guilty of the same offence.  By now the recognised categories also include children who give evidence under oath, the alleged victims, whether adults or children, in cases of sexual assault, and persons of admittedly bad character.  I do not regard these categories as closed.  A judge is almost certainly wise to give a similar warning about the evidence of any principal witness for the Crown where the witness can reasonably be suggested to have some purpose of his own to serve in giving false evidence ...

Since the institution of the Court of Criminal Appeal in 1907, the rule, which was originally discretionary in the trial judge, has acquired the force of a rule of law in the sense that a conviction after a direction to the jury which does not contain the warning will be quashed, unless the proviso is applied: see Rex v.  Baskerville [1916] 2 K.B. 658; Davies v.  Director of Public Prosecutions [1954] A.C. 378, 398 per Lord  Simonds L.C.

However, it is open to a judge to discuss with the jury the nature of the danger to be apprehended in convicting without corroboration and the degree of such danger (cf. Reg.  v.  Price (Herbert) [1969] 1 Q.B. 541, 546) and it is well established that a conviction after an appropriate warning may stand notwithstanding that the evidence is uncorroborated, unless, of course, the verdict is otherwise unsatisfactory: Rex v. Baskerville [1916] 2 K.B. 658.  There is, moreover, no magic formula to be used: Reg. v.  Price [1969] 1 Q.B. 541.  I agree with the opinions expressed in this House in Reg.  v.  Hester [1973] A.C. 296 that it is wrong for a judge to confuse the jury with a general if learned disquisition on the law.  His summing up should be tailor-made to suit the circumstances of the particular case.  The word ‘corroboration’ is not a technical term of art, but a dictionary word bearing its ordinary meaning; since it is slightly unusual in common speech the actual word need not be used, and in fact it may be better not to use it.  Where it is used it needs to be explained.”(emphasis added)

The general rule that the court may act upon the uncorroborated testimony of one witness is confirmed in Cross [15001].  However, as Cross points out, this does not mean that the court must act upon the evidence of one witness, even if it is unshaken in cross-examination, and in no way discredited by the witness’s demeanour.  The author cites a quote from Sir James Stephen, in A General View of the Criminal Law of England, pp. 249-50 as follows:-

“The circumstances may be such that there is no check on the witness, and no power to obtain any further evidence on the subject.  Under these circumstances juries may, and often do, acquit.  They may very reasonably say, we do not attach such credit to the oath of a single person of whom we know nothing, as to be willing to destroy another person on the strength of it.  Thus cases arises where the fact deposed to is a passing occurrence - such as a verbal confession or a sexual crime - leaving no trace behind it, except in the memory of an eye or ear-witness ... The justification of this is, that the power of lying is unlimited, the causes of lying and delusion are numerous, and many of them unknown, and the means of detection are limited.”  (emphasis added)

This passage highlights the potential problems associated with sexual offences, because of that type of offence, and not merely because of the qualities of the individual complainant in any particular case.

As Cross points out, it was to meet situations such as those which have just been mentioned that the judges developed rules of practice under which juries must be warned of the dangers of convicting on uncorroborated evidence.  The foregoing passages from Hester, Kilbourne and Cross demonstrate that whilst the basic common law rule was that evidence of one competent witness was always enough to support a verdict in criminal proceedings, except in the case of perjury, the practical result was that more than one witness was generally necessary to secure a conviction, where the principal witness was within one of the “suspect categories” of witnesses, unless corroborating evidence of some other kind was admitted, although the reasons for the several rules of practice varied.  However, even with the formal abolition of the requirements of corroboration so that the evidence of one witness was all that was legally necessary to support a verdict, the rules of practice prevailed where the one witness was within one of the “suspect categories” with similar consequences.  i.e. more than one witness was usually necessary.  The foregoing appears to be a pointer to a reason why the words, “one witness” were used in the unproclaimed s. 130A of the Evidence Act 1977 (Qld) and finally in s. 632(1), (2) of the Code.

The passages referred to in Hester at 327-8 and Kilbourne at 740-741 also make it clear that where warnings were given, there was no magic formula to be used.  It must be adapted to the particular circumstances of the case R.  v.  C.B.R.; Longman at 86; Carr at 319.  There is accordingly no longer any requirement to refer to the words “uncorroborated testimony” or the word  “corroboration” or the desirability of it in any way in an appropriate warning.  This avoids the necessity of explaining the law concerning corroboration and what evidence, if any, is capable of being corroborative: Bizumig (1986) 23 A.Crim.R.1563 at 164; cf.  R.  v.  Pahuja per King C.J. at 196-8, Cox J.  at 213-4.  Indeed Lord Hailsham of St Marylebone said in Kilbourne it is better not to use the word “corroboration” at all in a suitably framed warning.  See also Hester per Lord Diplock at 327.  The view is emphatically reinforced by the Court of Appeal (U.K.)  in R.  v.  Makanjuola, John.  p. 471, where it was stated that one of the reasons for abrogating the requirement of “corroboration” warnings was partly “to escape the tortuous exercise which jurors found more  bewildering than illuminating” of a warning in which the words “uncorroborated evidence” or “corroboration” were used, the nature of any warnings being now a matter for the judge’s discretion.  This view is equally apposite under s. 632(2) of the Code.

Nor is there any requirement to state in any general or unqualified manner that it is “dangerous” or “unsafe” to act on the “uncorroborated” evidence of the victim of an alleged sexual offence (or other suspect category): Longman, per Deane J at 93.  At 94, his Honour referred to a direction by Burt CJ in Miller v. The Queen (unreported 23 December 1987) and the qualification by Gibbs J in Kelleher where his Honour referred to the warning of the danger, possibly to be communicated to the jury, that “the members of the jury may act upon that testimony, after scrutinizing it with great care, and paying heed to the warning that they are satisfied of its truth and accuracy”.  Deane J said that the preferable warning is couched in terms of the need to exercise considerable caution before acting on the word of the complainant alone but with the added qualification to expand the warning in accordance with Gibbs J’s comments i.e. to refer to the need to scrutinize the evidence with great care  and exercise considerable caution.  See, for example, the simple formulation in Wilson (C.A. 355 of 1994).

Thus the requirement of corroboration, or when that was formally abolished, the warning that it was unsafe or dangerous to act on the uncorroborated evidence of a child (or other suspect witness), was merely a response to what was perceived to be an inherent unreliability of the evidence of suspect categories of witnesses, although in some cases, such as sexual offences, the accent was on the nature of the offence and the evidence of a complainant in relation to that offence, whereas in other categories, the nature of the offence was irrelevant.  Other categories were suspect because of the persons, and the unreliability per se of their evidence in any type of offence, going beyond the mere credibility of a witness.  There are thus two separate aspects - the alleged inherent unreliability of the evidence of “suspect witnesses” and the requirement of “corroboration”, or of a warning in respect of it, to assist in alleviating the perceived risks associated with the use of such evidence.  All of the rules of practice which required a warning (except that concerning complainants of sexual offences as witnesses), were directed to witnesses, and not to complainants as witnesses.  Nevertheless, as indicated, the reasons for the warnings in respect of various categories of “suspect witnesses” varied:   See also Wilson (C.A. 355 of 1994) per Lee J; B.v. The Queen at 616.  Cross  at para. [15145] states:

“All that can be said is that the factors rendering it dangerous to act on the evidence of children and accomplices differ.  In each case there is a danger of invention but the tendency of all accomplices is to tell the same kind of lie, that is, one implicating the accused, while there is no reason why the over-imaginativeness of children should lead to a coincidence in their untruthfulness.  The point has never been fully considered by an English or Australian Court.”: R.  v.  Gregg (1932) 24 C.R.App.R.13

Brennan J stated the reasons and the consequences of any failure to give the warning in Chamberlain v.  The Queen (no.2) (1983) 153 C.L.R. 521 at 604 as follows:

“Long curial experience has satisfied Courts of Criminal Appeal that some categories of evidence which a reasonable jury might act upon in returning a guilty verdict are frequently unsafe, and should be acted on (if at all) only after the jury has been warned of the danger of acting on them.  Those categories of evidence, as the court’s experience shows, have a special character: apparently safe to act upon, but frequently unsafe in fact.  Acting under the extraordinary power in the common form statute, the court has given effect to its superior experience of those categories of evidence and has set aside verdicts which would otherwise have been allowed to stand.  Thus in Hargan v.  The King where a prosecutrix alleged that a sexual offence had been committed on her, the Court quashed a conviction because of an omission to warn the jury that they should scrutinise such evidence with very special care.”(emphasis added).

His Honour reaffirmed that principle in Carr v.  The Queen (1988) 165 C.L.R. 314 at 325.  See also per Gaudron J at 341.  Wilson and Dawson JJ pointed out in Carr at 318-9 as follows:-

“The principle is that, since the circumstances of cases are infinitely various, the interests of justice to be served in each case are more likely to be protected by a trial judge who is free to sum up the case for the jury in a manner best suited to the facts of that case.  The objectives which guide him in that task are relevance and fairness.  Judicial experience has identified a strictly limited range of cases where as a matter of practice a departure from this general principle has been required.  We refer to the rules which oblige a  trial judge to warn the jury of the danger of convicting upon  the uncorroborated evidence of a accomplice, the victim of a sexual offence and the sworn evidence of a child: See Archbold, Criminal Pleading Evidence and Practice   42nd.ed. (1985), para 16-3.  These are cases where the evidence suffers from some intrinsic lack of reliability going beyond the mere credibility of a witness.” (emphasis added).

As indicated, there are various reasons for the warning with respect to evidence given by young children, whether as complainant witnesses, or merely as supporting witnesses.  To the foregoing should be added references to the Australian decisions referred to by the appellant, R.  v. Pahuja, and B.  v.  The Queen, which set out these and other reasons, and also refer to other categories.  Also, those authorities demonstrate that the long standing rules of practice, firmly entrenched in the common law, require specific language for their abolition: Longman.  The foregoing is amply demonstrated by the helpful formulation of the rule by Cox J and R.  v.  Pahuja before any reference by his Honour to the particular South Australian provision there under consideration.  It concerned a child complainant of a sexual offence as in the current case. At 215-6 his Honour said:

“The common law rule is that the jury should be warned, in a criminal case, against acting on the uncorroborated evidence of a child, that implicates the accused, although they may do so if they are convinced that the witness is truthful and reliable.  The question was raised, in the English case of R v.  Mitchell (1952) 36 Cr App R 79 at 82-83, whether the warning is only necessary where the child witness is an accuser, ‘that is, not necessarily the accuser in the charge but a child who is alleging an offence in relation to itself or, as is sometimes said, a child who has been tampered with’.  The Court of Criminal Appeal did not find it necessary to decide the point in that case.  It seems tolerably clear, however, on the authorities, that the rule is not so limited.  Certainly the question of its application will arise most often in sexual cases, but the foundation for the rule, namely, the imagination and impressionability and limited understanding of young children and their amenability to the influence of adults, is common to all types of criminal prosecution - to the child as identity witness, for instance - and not merely to sexual cases in which the child is what Mitchell calls an accuser.  The way in which the principle is stated in the books suggest that it is of quite general application: see, generally, Hargan v.  The King (1919) 27 C.L.R. 13; Hester (supra) and R v.  Schlaefer (1984) 37 SASR 207.  Certainly judicial discussion of the rule will often be influenced by the particular occasion for its application.  However, I notice that in Hester, Lord Diplock distinguished very clearly the three common law categories of witness whose evidence in criminal cases require a corroboration warning.  He dealt first with accomplices, and continued (at 325):

‘But a similar rule of practice at common law grew up as to the evidence of two other categories of witnesses whose reliability either generally or as to particular matters was liable to be suspect for other reasons.  These were: children who, though old enough to understand the nature of an oath and so competent to give sworn evidence, are yet so young that their comprehension of events and of questions put to them or their own powers of expression may be imperfect; and persons, regardless of their age, who claim to have been victims of a sexual offence.’

That indicates, to any mind, a rule with respect to child witnesses that is not restricted to any particular type of prosecution.  In R v Cleal [1942] 1 All ER 203 at 204, Hilbury J.  speaking on behalf of the Court of Criminal Appeal, referred to the judge’s obligation to warn the jury about a child witness as ‘a rule to be observed and applied in all cases’: see also R v.  Campbell [1956] 2 QB 432 and R v.  Sawyer (1959) 43 Cr App R 187.  I think, too, that the Full Court in Schlaefer (supra) was treating the need for a corroboration warning, with respect to child witnesses in that case, as something quite distinct from the warning appropriate to the complainant, in a sexual case.  Indeed, if the rule is limited in the way posed by the Court of Criminal Appeal in Mitchell (supra), one would expect it to be stated rather as a type, or perhaps extension, of the rule relating to those who claim to have been victims of a sexual offence.  Of course, where the alleged victim was also a child the warning to the jury (prior to the Evidence Act 1929 amendment) might well have been put in a composite form, provided that both aspects of the matter were dealt with adequately.  But there were two quite distinct common law principles involved, not merely one.”  (emphasis added).

His Honour then considered the particular provision of s. 34i of the Evidence Act 1929 (S.A.), as follows:

“In proceedings in which a person is charged with a sexual offence, the judge is not required by any rule of law or practice to warn the jury that it is unsafe to convict the accused on the uncorroborated evidence of the alleged victim of the offence.”

It will be noted that that provision is specific as to what rule of practice was no longer required ie. the evidence of victims (i.e. complainants) of a sexual offence, even if a child.  It does not refer to other categories of complainants of other offences or other categories of witnesses.  Nor does it say “... of one witness” as in s. 632(2) of the Code.  His Honour then continued at 216:

“With that in mind I return to the interpretation of s. 34i of the Evidence Act.  Has the section anything to do with the common law rule about child witnesses where the accused is being tried for a sexual offence and the child witness happens to be the alleged victim?  Subsection (5), read literally, may perhaps appear to have abrogated the common law requirement in such a case.  However, I cannot think that this was the legislature’s intention in enacting subs (5).  It would create a strange distinction between sexual cases and non-sexual cases, a corroboration warning still being required for the child witness in the latter case but not in the former where, one might think, it would be most needed.  Indeed, it would produce the paradoxical situation of the judge being required to give a corroboration warning in the case of any supporting child witnesses in a sexual case but not in the case of the alleged child victim himself.  As I have said, the need for alerting the jury to the inherent risks with respect to any witness of tender years - the matter is dealt with by Lord Diplock in Hester - is not confined to sexual cases; nor is the risk of a miscarriage of justice as a result of ignoring it.  It would require, in my view, very clear and unambiguous language to abolish, especially in such a selective fashion, an important safeguard against error.  I do not think that the words of subs.(5) are so unyielding that we are obliged to adopt their literal meaning.  Nor do I consider that the restricted terms of subs(6) carry any implication with respect to the common law rule about child witnesses.  In my opinion, subs.(5) has as its subject-matter any rule of law or practice about warning a jury that it is unsafe to convict the accused in a sexual offence on the uncorroborated evidence of an alleged victim, for the reason simply that he is the alleged victim, and that is the key to the subsection’s interpretation.  It has nothing to say about the quite separate rule relating to the uncorroborated evidence of a witness who is a child of tender years, whether the child happens to be the alleged victim of the offence charged or not.  I would hold, therefore, that a trial judge in this State is still obliged to give the usual warning to the jury against acting upon the uncorroborated evidence of a child, whether or not the evidence is given in a sexual case.” (emphasis added).

After referring to the trial judge’s entitlement to exercise his own judgement:    R v. Morgan at 739, Cox J at 217 continued:

“In Hargan (supra) the witness was fourteen and a half.  The judges spoke of the need for corroboration in the case of a child, but the matter was complicated because the child witness was also the prosecutrix in a sexual case.  The terms of the appropriate warning had to be suited to that feature of the case as well as to her tender years.  In Hester the practice, in the case of child witnesses who gave sworn evidence, was put on the footing of their possibly imperfect comprehension of events and of questions put to them or their own powers of expression: [1973] AC 296 at 325.  The complainant in Morgan was twelve (thirteen at the trial), and there was a real possibility of collusion.  In Schlaefer evidence was given by a boy of ten, who was the alleged victim with respect to one count on the information and at the same time a corroborating witness with respect to three other counts.  The trial judge gave a corroboration warning with respect to the boy as alleged victim, but not also by reason of his young age.  It was held by the Full Court that he should have done so although, in the circumstances, no miscarriage of justice resulted.  The learned Chief Justice quoted Lord Diplock’s words in Hester about the comprehension and powers  of expression of children.  However, his Honour also referred to the English case of R v. Dossi (1918) 13 Cr App R 158, where the possibility of small children being under the influence of others - sometimes their parents - and being apt to allow their imaginations to run away with them and to invent untrue stories, was also seen as a danger.  Usually it could be expected that the warning would take such matters into account, as well as the matter of comprehension.  The learned judge in the present case did not address his mind to that aspect of the matter.  Whether his failure to warn the jury more fully with respect to V’s evidence could have resulted in a miscarriage of justice, in the circumstances of this case, is a matter that I do not need to decide.”  (emphasis added)

Johnson J at 223 said:

“(4) It seems somewhat unlikely that the legislature would abolish the rule in respect of the evidence of young children on such a selective basis, particularly when it is not at all uncommon for the Crown to rely on  the evidence of another child to support its case in respect of a sexual offence against a young child.  It would be somewhat odd if the judge is required by rule of practice to warn the jury against convicting the accused on the uncorroborated testimony of the non-victim witness but not in respect of the uncorroborated testimony of the alleged witness/victim.”

Their Honours obviously considered that “paradoxical situation” or “oddity” as supporting the view that the legislation did not intend to abolish the separate rule of practice where the complainant of a sexual offence is also a child witness.  Those passages make it clear that whilst the rule abolished the requirement of a warning on the uncorroborated evidence of (any) alleged victim of a sexual offence, including a child, the fact that the complainant was in that class of complainants, did not affect the need for a warning in his or her concurrent capacity as a witness of a particular class if he or she fell within it as in that case.  This is the approach relied upon by the appellant.

That authority has been applied in South Australia in R v. Corkin no.2 (1988) 50 S.A.S.R. 285 (Cox J); and by the Full Court in R v. Do (1990) 54 S.A.S.R. 543 and in Hickman v. R (1993) 60 SASR 415.  As already indicated, R v. Pahuja was cited with approval in B v. The Queen at 616 and in Longman at 87, 96.  However, the South Australian legislation prohibited only the warning with respect to a complainant of a sexual offence, and not of offences generally or of complainants generally. 

The rule as set out in B v. The Queen, applied by this court in Wilson (CA 355 1994) should also be set out.  It is also consistent with the appellant’s approach.  It refers to other categories of suspect witnesses.  That case also concerned a complainant of a sexual offence and legislation in the A.C.T. which by s. 76F of the Evidence Act 1971 (S.A.)  abolished the practice requiring a warning that it was unsafe to convict on the uncorroborated evidence for the complainant, whilst not affecting the other rule of practice that a warning should be given in relation to the sworn evidence of a young child.  Dawson, Gaudron JJ (at 616-7) stated the rule as follows:-

“The second rule of practice to which the trial judge may have intended to refer is that which required a similar warning to be given where the witness is a young child who gives sworn evidence.  There is also a third category of witnesses, namely, accomplices, in respect of whose evidence the common law requires such a warning to be given.  And there are, of course, cases which do not fall within any particular category but in which a warning should be given - for instance, where in a criminal trial a witness has some mental disability which may affect his capacity to give reliable evidence: See Bromley v.  The Queen (1986) 161 C.L.R. 315.  But the recognized categories should not be regarded as closed: See Director of Public Prosecutions v. Kilbourne [1973] AC 729, at p. 740, Longman v.  The Queen (1989) 1568 C.L.R. 79, at p. 86.  The evidence of prison informers, for example, may perhaps now be regarded as another recognized category: See Pollitt v.  The Queen (1992), 174 C.L.R. 558 at pp. 598-600.  The reason for requiring a warning differs from category to category.  In the case of young children, the reason does not lie in the nature of the offence: See Reg.  V.  Pahuja (1987), 49 S.A.S.R. 191, at p. 216, but in other considerations.  The fact that young children may be under the influence of others and are apt to allow their imagination to run away with them and to invent untrue stories is one justification which has been advanced: See R.  v.  Dossi (1918), 13 Cr.App.R. 158, at p. 161.  Again, it has been said that the warning is required in relation to ‘children who, though old enough to understand the nature of an oath and so competent to give sworn evidence, are yet so young that their comprehension of events and of questions put to them or their own powers of expression may be imperfect’: See Director of  Public Prosecutions v.  Hester, [1973] A.C. 296, at p. 325.  No such reasons were given by the trial judge for warning the jury that it would be unsafe to convict upon the uncorroborated evidence of the daughter, although the rule of practice that such a warning should be given in relation to the sworn evidence of a young child is, under s. 76F(3)(b) of the Evidence Act, unaffected by the abolition by s. 76F(1) of the similar rule of practice in relation to the evidence of complainants in the case of prescribed sexual offences.”  (emphasis added).

It should also be observed that in cases where statute formerly required a warning about the danger of acting on evidence unless it was corroborated, the abolition of such a provision in no way affected the application of the common law warning if otherwise required.  See for example the remarks of de Jersey J (as the Chief Justice then was), (agreed with by McPherson SPJ (as his Honour then was), and Shepherdson J) in R v. CBR [1992]) 1 Qd R 637 at 640, cited with approval in Wilson (CA 355 of 1994).   Section 9(1) of the Evidence Act 1977 allows the admission of evidence of a child not given on oath if he or she possesses sufficient intelligence to justify the reception of the evidence and understands  the duty of speaking the truth.  By s. 9(2), it was provided that a person charged with an offence may be convicted upon such evidence “but in a trial by jury of a person so charged the judge shall warn the jury of the danger of acting on such evidence unless they find that it is corroborated in some material particular by other evidence implicating that person.”  In 1989, by Act No.17, s. 9(2) was amended to delete the words quoted which required the warning.  Nevertheless, de Jersey J at 640 said:-

“Our attention was drawn to amendment made to s. 9 of the Evidence Act in 1989.  There is no longer a requirement that a judge warn the jury of the danger of acting on the uncorroborated evidence of a child if the evidence is not given on oath.  That change in the law does not however bear on the separate question of whether the witness’s status as a child warrants the giving  of a similar warning.”

His Honour previously at p. 639 recognised the long standing rule of practice imposed by the common law and referred to various authorities.  In that case, his Honour held that the warnings in fact given were appropriately “adapted to the particular circumstances”, citing Longman at 86.  In a not dissimilar context, but subject to the proper effect of the new s. 632, is the simultaneous repeal by Act 3 of 1997 of provisions of the Criminal Code which required a warning of the danger of convicting on the uncorroborated evidence of a child, and in particular the sections referred to by Fitzgerald P in F.A.R. at 55-56: s. 208 (which Mr Rafter conceded he was not relying upon in this case), ss. 210, 215, 217 and 218.

It should also be observed that even though young children who gave evidence on oath were as a class generally regarded as “suspect” witnesses, it has long been recognized that whether or not a “corroboration” warning should be given in any particular case was a matter within the discretion of the trial Judge which was always the subject of review: R.  v.  Morgan at 739 approved by the High Court in B.  v.  The Queen at 617, by Cox J and R.  v.  Pahuja at 217, and by this Court in Wilson (355 of 1994) by Fitzgerald P and Davies JA at p. 2 and by Lee J.  at p. 4, where in the circumstances of those cases, a traditional warning was called for.  The existence of this long standing discretion, in my view, is also relevant to the interpretation of s. 632 as it now appears.

Against the foregoing background, the history of s. 632 should be set out to assist in understanding its present scope.  When it was first enacted it provided as follows:

“Accomplices.  A person cannot be convicted of an offence on the uncorroborated testimony of an accomplice or accomplices.”

In 1986, a new s. 632 was substituted as follows:-

“A person may be convicted of an offence on the uncorroborated testimony of an accomplice or accomplices, but the Court shall warn the jury of the danger of acting on such testimony unless they find that it is corroborated in some material particular by other evidence implicating that person.”

The next significant amendment to s. 632 came with the passing of the Criminal Code 1995 (Act No.  37 of 1995), which was extensively debated in the Parliament before it was enacted on 16 June 1995.   It was never proclaimed to commence.  Of historical interest, the extensive debates on the Bill on both sides of the Assembly centred principally on the need for removal of the requirement of a warning in relation to the evidence of women who complained of sexual offences.  The amendment introduced s. 130A into the Evidence Act 1977 in the following terms:-

“Corroboration 

S. 130A (1) A person may be convicted of an offence on the uncorroborated testimony of one witness, whether or not the witness is a complainant, the person’s accomplice or anyone else.

2. On the trial of a person for an offence before a jury, the Judge is not required by any rule of law or practice to warn the jury that it is unsafe to convict a person on the uncorroborated testimony of one witness. 

3. Nothing in subsection (1) or (2) stops a Judge from commenting on testimony given in a trial, if the comment is appropriate in the interests of justice.

4. In this section -

‘Uncorroborated Testimony’ means testimony that is not corroborated in some material particular by other evidence implicating the person.”

By s. 129(N), the expression “complainant” was defined as follows:-

“129N (1) A ‘complainant’ is the person in relation to whom a sexual offence is claimed to have been committed.

129N (2) However, a person is not a complainant if the person is -

1. at least 17 years when the sexual offence is claimed to have been committed; and

2. an accomplice in its commission.”

Section 129(N)(1) appears to have given effect to the widespread understanding that a “complainant” traditionally referred to a complainant in a sexual case to which it was limited by the subsection.  In Hester, Diplock LJ at 325 (followed by Cox J in R.  v.  Pahuja at 215) referred to the rule as applying to those who claim to be the victims of a sexual offence (i.e. a complainant of such an offence).  Act No.37 of 1995, had it commenced, had the effect of abolishing the mandatory warning required under the former s. 632 in the case of accomplices.  So also with other specific provisions of the Criminal Code referred to above which required a warning and which have now been abolished by Act No. 3 of 1997.  Section 130A(1),(2) arguably were intended to remove the requirement of a warning no matter what was the class of witness (i.e. accomplice, child witness, a complainant of a sexual offence or otherwise) but did not expressly prohibit any such warning.  However, it is not necessary to finally interpret Act No.37 of 1995 because it was never proclaimed to commence and was repealed (including s. 130A of the Evidence Act and other evidentiary provisions about proceedings for sexual offences) by Act No.3 of 1997 effective 1 July 1997.

The final amendment to s. 632 of the Criminal Code in its current form (set out at p. 11 above) was introduced by Act No.3 of 1997 effective 1 July 1997.  As already indicated, at the same time it removed the mandatory warnings that it was dangerous to convict on the uncorroborated testimony of a child in certain sections referred to, for example, by Fitzgerald P in F.A.R. at 55-6: ss. 208, 210, 215, 217 and 218.  Compare R v. C.B.R.  Also the former compulsory warning in s. 632 as to accomplices was deleted.  Section 632(1), (2) as amended appear in some respects to be narrower in operation than s. 130A(1)(2) of the Evidence Act 1977 enacted by Act No.37 of 1995, yet s. 632 is possibly wider with respect to “any class of complainants”:s. 632(3), where there is no definition of “complainant” as there was in s. 129(N)(1) of the Evidence Act as enacted by the Criminal Code of 1995 (which expressly limited the expression to a complainant with respect to a sexual offence committed on him or her).

A “complainant” in the context of the new s. 632 simply means a complainant of an offence.    It is difficult to limit its scope as applying only to complainants of a sexual offence.  The reference in s. 632(3) to “any class of complainants” is literally capable of applying to any class of complainants of any type of offence not limited merely to sexual offences, notwithstanding the widespread understanding that “complainant” in the context of warnings, referred to a complainant of a sexual offence which was the basis on which this particular rule originated.

On the other hand, specific statutory provisions apart, there was no pre-existing rule of law or practice which required a warning regarding complainants of any type of offence at all other than sexual offences, and no rule of practice or law that required that child complainants per se of any offence (except in respect of a sexual offence) are to be regarded as unreliable, as opposed to young child witnesses generally in respect of any type of offence.  Hence, the need for specific language to achieve the result contended for by the Crown, i.e. not only the abolition of the requirement of any warning according to any “rule of law or practice”, but their absolute prohibition.

S. 632(1), (2) are in the same terms as the former s. 130A(1), (2) except that the words in s. 130A(1) “whether or not the witness is a complainant, the person’s accomplice or anyone else” are not included in subsection (1), which may suggest that s. 632(1), (2) are narrower in operation because the Parliament has now omitted them.  Only one witness is again sufficient to procure a conviction, whether corroborated or not which is no more than a restatement of the long settled common law position: Hester; Kilbourne.  Again, s. 632(2) simply states that a judge is not required by any rule of law or practice to issue a warning that it is unsafe to convict the accused on the uncorroborated testimony of one witness.  It does not say any witness which would have provided more support for the result contended for by the Crown.  Nor does s. 632(2) say, “any complainant” who gives evidence.  The use of the word “one” witness in the subsection introduces a difficulty simply because there never was a requirement to issue a warning where there was only one witness (apart from the warnings of the kind referred to in Bromley, Carr and Longman at 86), but only if that one witness (or indeed any witness in the case) fell within a class of traditional “suspect witnesses” but then for different reasons.  As indicated, one type of warning was directed to the nature of the offence, e.g. rape and not to the category of witness who complained.

By s. 632(2), a judge is not expressly prohibited from issuing a warning unless the passage referred to in Longman at 86 that “judges should no longer warn juries that allegations of sexual offences are more likely to be fabricated than other classes of allegations” is applicable under s. 632(2) with respect to any class of witness.  As indicated, Cross suggests that Longman should be limited to the particular legislation under consideration.  i.e. the Western Australian legislation before recent amendments which now applies the rule to any indictable offence.  See Longman at p. 83.

However, in those States where there was no absolute prohibition, such a warning could apparently still be given, as a matter of discretion, as occurred in M v.  The Queen (1994) 181 C.L.R. 487 at 499, involving New South Wales legislation before the amendment by the Evidence Act 1995 (N.S.W.).  Thus, that such warning is “not required” does not mean that it cannot be given in an appropriate case.   Mason CJ, Deane, Dawson, Toohey JJ (three of whom were members of the Court in Longman) appeared to approve or at least made no adverse comment in relation to the trial Judge’s traditional warning concerning the evidence of a 13 year old girl who was sexually assaulted when the section merely said that such a warning was not required.  Indeed, the Court said that the warning was given “in accordance with the views expressed by this Court in Longman v.  The Queen”, which, at least arguably, indicates that Longman did not intend to prohibit absolutely even a traditional warning if the circumstances so warranted it, which goes beyond mere “comment on the evidence given in the trial”, if the judge in his discretion considered it to be necessary in the particular circumstances.

This seems to be the approach of the Court of Criminal Appeal of Western Australia following Longman (which also dealt with Western Australian legislation).  In Butun v.  The Queen (C.C.A. 191 of 1990, 15 February 1991 unreported), the Court, consisting of Malcolm CJ, Wallace and Walsh JJ, allowed an appeal against a conviction for a sexual offence against a young girl, aged 9 at the time and 19 at trial.  After considering Longman, the Court accepted that in the circumstances of that case, a “corroboration” warning of the traditional type or similar was “justified” and should have been given under the current legislation, s. 50 of the Evidence Act 1906, which replaced the legislation dealt with in Longman but is to similar effect except that it now applies to any indictable offence.  At p. 30 of the judgment of the Court, the following appears:-

“Nor did his Honour go on to tell the jury that it would be dangerous to convict on the complainant’s evidence alone unless, scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, they were satisfied as to its truth and accuracy.  Although his Honour said that the Crown case rested on the evidence of one witness, he did not draw specific attention to the absence of corroboration or give a ‘corroboration warning’ or any other warning, or tell the jury that they should evaluate the evidence having regard, not only to the matters mentioned, but also having regard to the fact that the complainant’s mother hated the appellant, had told the complainant ‘bad things’ about the appellant and that the complainant herself accepted that she hated the appellant.  They were not told that these matters raised the possibility of fabrication which they would need to exclude before acting on the complainant’s evidence alone.

In the result, having regard to the learned Judge’s remarks that the case ‘really comes down to a credibility issue, an issue of believability’ and his concluding remarks in the passage quoted from his address to the jury concerning ‘where the truth lies’, there was a real risk that without either the corroboration warning or any other warning, the jury may have decided the case merely in terms of whether the applicant was a truthful witness and the appellant was not.  They were not told that, even if they rejected the evidence of the appellant, it did not follow that they should necessarily convict him, but they had to be satisfied that the evidence of the complainant alone justified a finding by the jury that they were satisfied beyond a reasonable doubt that each of the four offences had been proved.

In our view the situation was one where the corroboration warning or a warning along the lines we have indicated was ‘justified’.  In the particular circumstances it was required in order to avoid the risk of a miscarriage of justice.  In our opinion the direction given, although it touched upon some of the matters relevant to the evaluation, did not constitute a sufficient warning in the particular circumstances because of the omissions to which we have referred.  Whether the warning should have been a corroboration warning or some lesser warning elaborating on the matters relevant to the evaluation of the complainant’s evidence is very much a matter for the trial Judge.  Counsel for the appellant did not contend that a corroboration warning, as such, should have been given.  In our view, however, the risk of a miscarriage of jsutice occurring in the somewhat unusual circumstances of this case, called for a warning which was more pecise and in stronger terms.

We consider that the absence of a sufficient warning leaves the convictions unsafe and unsatisfactory.”  (emphasis added)

The decision in Butun v.  The Queen was cited with approval by the same court in Robinson  v.  The Queen (1995) 13 W.A.R. 451 at 461 in the judgment of Malcolm CJ, with whom Pidgeon, and Ipp JJ agreed:-

“The decision in Longman applies equally to the construction and application of s. 50:  See Butun v.  The Queen (unreported), Court of Criminal Appeal, Library No.  8717, 15 February 1991 (at 24-28, per Malcolm CJ, and Wallce and Walsh JJ.  The kind of warning which should have been given in that case was along the lines which were suggested in Longman.”

As already indicated, the approach of the trial Judge in M v.  The Queen appears to have had the approval of the High Court, notwithstanding that the legislation provided that such a traditional warning was not required and appears to have recognized that a traditional warning in a sexual case was within the discretion of the trial Judge if the circumstances so warranted.

It should also be observed that s. 632(2) of the Code does not expressly prohibit any type of warning where there is more than one witness, one of whom might be in a category of “suspect witnesses”.  Then s. 632(3) in the first clause states that subsections (1) or (2) do not prevent a judge from making a comment on the evidence that it is appropriate to make in the interests of justice, which may merely be a recognition of the long standing powers (and duty) of a Judge in any type of case if a warning is necessary: Bromley v.  R.; Carr v.  R; Longman (at 86). 

If all relevant rules of practice were intended to be prohibited by s. 632(2), as appears to be the effect of the Crown’s submission in the current case, no comment can be made by a Judge at all with respect to any witness by reason of the fact that the witness is in any category of witnesses, whether suspect or otherwise and whether a complainant or not.  As indicated the section merely says “one” witness, not “any” witness.  The submission is that comment can only be made on the evidence actually given at the trial.  If the one witness is an accomplice, or informer, or a person of very bad character or a long standing liar, or a mentally ill person who may appear to give evidence in a seemingly straight forward manner and without conflict or inconsistency, even a comment may not be called for under the first clause of s. 632(3).  The following passage in Longman at 87-8 is apparently relied upon in support of the foregoing approach:-

“Furthermore, what para (a) abolishes is the requirement to give a warning, not a judge’s discretion to comment on the circumstances of the case.  No longer may the judge tell the jury that it is dangerous to convict in the circumstances described in para (a) (i.e. in case of a complainant of a sexual offence only) because the experience of the courts have shown it to be so, but the judge may invite the jury in sexual cases (as is done in other criminal cases) to make their own evaluation of the alleged victim’s evidence in the light of common human experience.  By force of para (a) alleged victims of sexual offences no longer form a class of suspect witnesses, but neither do they form a class of especially trustworthy witnesses.  Their evidence is subject to comment on credibility in the same way as the evidence of alleged victims in other criminal cases, but to comment only.  Perhaps it should be added that the judge’s discretion to comment should not be exercised so as to convey to the jury, whether by phrase, gesture or intonation, a caution about the general reliability of the evidence of alleged victims of sexual offences which is tantamount to the warning, the requirement for which para (a) eliminates.

Paragraph (b) is a unique provision.  Its first limb is clearly intended to supplement para (a) by prohibiting the giving of a warning which, the legislature obviously feared, judges might have continued to give despite the abolition of the requirement to give it.  Its second limb seems to reflect a misconception of the effect of para (a).  Once para (a) abolishes the requirement that jurors be warned that the evidence of alleged victims of sexual offences is generally to be treated with suspicion, no particular set of circumstances could justify the judge’s directing jurors that all such evidence is treated with suspicion.  If para (a) abrogates the rule which reflects curial experience of the need for caution in evaluating the evidence of alleged victims of sexual offences because of the risk of fabrication, then there is no particular set of circumstances which can justify the trial judge in giving the jury a warning based upon general experience.  If would make no sense to treat the warning which para (b) permits - a warning based upon particular circumstances - as being restricted to the same kind of warning as that to which para (a) refers - a warning based upon general experience.”(emphasis added)

If that passage, and the comments by Deane J.  at 95, support the proposition that s. 632(2) prohibits the requirement for  all warnings, according to “rules of law or practice”, it may be that the  second clause in s. 632(3) amounts to a “misconception of the effect of” s. 632(2) which is all embracing and that as a result the second clause of s. 632(3) is mere surplusage with no practical effect.  On the other hand, it should be presumed that the second clause of s. 632(3) is intended to have an operation quite apart from s. 632(1), (2) on the basis of the fundamental rule of construction that words in a statute are intended to have some meaning.  They should not be regarded as surplusage and some meaning should be attributed to them if that is possible: See Cargo ex “Argos” (1873) L.R. 5 P.C.134 of 153; Murray v.  Inland Revenue Commissioner [1918.] A.C. 541 at 553; Morton v.  Long [1968] V.R. 221 at 223.  The second clause of s. 632(3) should not if possible be regarded as surplusage with no practical effect. 

A further rule of construction of statutes which gives some support for the Crown’s submission is that Parliament should not be taken to have intended a manifestly absurd result.  See e.g. Kelly v.  Pierhead Ltd [1967] 1 W.L.R.65 at 70 per Salmon LJ; Salemi v.  Mackellar (No. 2) (1977) 137 C.L.R. 396 at 401 per Barwick CJ; “an absurd result ... is only to be accepted if there is no acceptable alternative available.”; Gilbard v.  Amey Roadstone Cpn Ltd (1974) 73 L.G.R. (U.K.) 43 at 57 per Roskill LJ.  The anomaly identified by Williams J and Cullinane J with respect to child witnesses (not complainants), namely that warnings may still be given with respect to the evidence of such witnesses but not with respect to a witness who is a complainant, would, if the Crown’s approach is correct, amount to an absurdity as Williams J points out so that this result should be avoided if possible.

On the other hand, the second clause of s. 632(3) provides an absolute prohibition against the  judge warning or suggesting in any way to the jury that the law regards any class of complainants as unreliable witnesses.  This is in terms the only absolute prohibition in s. 632.  Its use of the word “any” with respect to complainants may be contrasted with the use of the word “one” with respect to the word “witness” in s. 632(1), (2).  The second clause of s. 632(3) may merely be intended to reinforce s. 632(2) so as to ensure that the evidence of no witness, who happens to be the complainant of an offence (at least a sexual offence), should be the subject of a warning because he or she is a complainant, i.e., that such warning is absolutely prohibited and is not merely “not required”, so that s. 632(2) still allows in an appropriate case, (i.e. it does not prohibit) warnings with respect to categories of “suspect witnesses” other than witnesses in their class merely as complainants of an offence.  It would then be a matter for the discretion of the trial Judge in the particular circumstances and so preserves the long standing discretion in those other cases, including the case where young children give evidence, as recognized in R.  v.  Morgan, B. v.  The Queen at 617,  R.  v.  Pahuja at 217, and Wilson (355 of 1994).

Support for the latter view may be derived from Longman at 87.5, the latter part of 88, and in particular from the passage at 89/90 as follows:

“Paragraph (b) thus comprehends more kinds of warnings than the kind of warning to which para. (a) refers.  Although a warning can be given only if the judge is satisfied that the warning is justified in the circumstances - and therefore must not be given unless, on a view of the facts reasonably open to the jury, there is an occasion for giving a warning - justification may be found in any requirement of a rule of law or practice which might apply in the circumstances other than the requirement to which para. (a) refers.  If, on a view of the facts reasonably open to the jury, a rule of law or practice requires a warning to be given, not being a warning of the kind to which para. (a) refers, the rule must be followed.  The rule is itself justification for giving the warning it requires.

There is authority for the view that a judge’s omission to give a warning of the kind to which par.  (a) refers cannot found a successful appeal: see per Fullagar J.  in Reg. v.  B. .  In principle, that must be so for par.(a) abolishes any requirement to give that kind of warning.  But that notion has no relevance to a judge’s refusal to give a warning of a kind required by a rule of law or practice other than the rule to which par.(a) refers.  If a judge refuses to give a warning required by a rule of law or practice other than the rule referred to in par(a) that is, a warning required by the general law, the refusal is reviewable on appeal and the conviction is liable to be quashed as unsafe and unsatisfactory if it be held that the refusal to warn left a perceptible risk of miscarriage of justice.  In Western Australia, the statutory framework within which an application for a warning under the general law must be made is par.(b).  The opening words of par.(b) would prohibit the giving of any warning and thus the latter words of par.(b) must be invoked to open the way for the warning to be given.  The complaint which an appellant might make when a trial judge refuses to give a warning under the general law is that the judge erred in failing to be satisfied that the circumstances justified a warning.  Appealable error consists in a failure to be satisfied that the warning should be given when a warning is required by the general law apart from the requirement abolished by par.(a).  That was the complaint raised before the Court of Criminal Appeal in this case.”  (emphasis added).

See also per Deane J at 95-96,102.

It may also be observed that the second clause of s. 632 (3) does not say “... but the judge must not warn or suggest in any way to the jury that the law regards any class of witness as unreliable.”  Had that been done, it would have abolished beyond doubt (i.e. prohibited), all pre‑existing and well‑established rules of practice with respect to various “accepted categories” of “suspect witnesses” such as accomplices, informers, (who are mostly witnesses rather than complainants although they can be complainants), mentally ill witnesses, young children, persons with very bad character and perhaps others who were not complainants but merely were called as witnesses.  Section 632(2) could then have had an operation of merely reinforcing s. 632(1).  i.e. when there was only one witness, which is otherwise enough to maintain a conviction.  In that case no corroboration warning is necessary merely for that reason.  (Subject to a warning of the kind referred to in Bromley, Carr and Longman (at 86).

Nor does s. 632(3) by express language eliminate the need for a warning with regard to the evidence of young children, eg.  words could have been added at the end of s. 632(3) along the following lines “... or any class of child witness as unreliable”, or perhaps “... or that it is unsafe to convict on the evidence of a complainant by reason of the fact that the complainant is a child”.  Had an amendment along those lines been made, there may still have been a problem when a child complainant gave evidence and was mentally ill, or of very bad character, being otherwise within the accepted category of suspect witnesses as identified by Brennan J (as the Chief Justice then was) in Bromley v. R at 323, by Wilson and Dawson JJ in Carr v. R at 318-9 and in Archbold 43rd Edition vol.1 para 16-3, as well as in B v. The Queen at 616-7.

Because of the difficulties of interpreting the section, a reference to the Parliamentary Debates with respect to the second reading of the bill which led to the current amendment is permissible within strict guidelines in order to assist if possible in the interpretation of the section as enacted.  Section 14(b) of the Acts Interpretation Act 1954 permits the use of extrinsic evidence in certain circumstances in order to assist interpretation -

a)  if the provision is ambiguous or obscure; or

b) if the ordinary meaning of the provision leads to a result that is manifestly absurd or is unreasonable; or

c)  in any other case - to confirm the interpretation conveyed by the ordinary meaning of the provisions. 

In this regard, permitted extrinsic evidence is referred to in s. 14B(3) of that Act.  The first category, the speech of the Attorney-General in moving a motion that the bill be read a second time, is authorised by s. 14B(3)(f).  The second category consists of a speech of the Opposition spokesman on Justice affairs in the same proceeding recorded in the official record of debates in the Legislative Assembly,  and is authorised by s. 14B(3)(g).

In Hansard 4 December 1996 p. 4871, the Attorney-General’s speech was as follows:

“Clause 113 will replace Section 632 ‘Accomplices’ with a new section titled ‘Corroboration’.  This new provision and the repeal of parts of many other sections will do away with the present requirement that a trial judge must warn a jury of the danger of convicting on the uncorroborated evidence of one witness.  Judges will no longer be allowed to tell juries that the law regards any particular class of complainant (such as women or children or complainants in sex cases) as unreliable witnesses.  The requirement of corroboration would be retained for offences such as sedition, perjury and like offences.  Nothing will affect the ability of a trial judge to otherwise comment about the evidence as is appropriate in the interests of justice in any given case.”

The speech of the Opposition spokesman on Justice affairs appears on 18 March 1997 p. 511:-

“The position of women in our criminal justice system is an area that requires a careful and vigorous approach to reform.  I welcome the action of the Government in following the lead set out in Labor’s 1995 Criminal Code to overcome the antiquated and discriminatory rule of evidence which required judges to give a warning as a strict rule in cases involving complainants of sexual cases.  The law should be that these offences are treated the same as other offences and that a judge should be free to comment as the judge sees fit on the facts and circumstances of the case.”

And at p. 514:-

“In respect of accomplices, the law has traditionally required that there be a warning given that it is dangerous to convict on the uncorroborated testimony of an accomplice.  That is so because accomplices, by their nature, are unreliable; they are criminals.  Although the Opposition welcomes the reform to the corroboration laws governing sexual complaints, it is unfortunate that the traditional rule regarding accomplices has been swept away as well.”

The speech of the Attorney-General as well as that of the Opposition spokesman shows that the amendment was intended at least to abolish the former rule of practice as to the need for a warning in the case of the evidence given by victims of a sexual offence.  The new section is quite clear in this respect.

The Attorney-General’s speech closely follows the section as enacted with the words in parentheses added:-

“(Such as women or children or complainants in sex cases)”

Those words are clearly illustrative only.  It does not seem possible to limit those words to women as complainants in sex cases, or children as complainants in sex cases or (males) as complainants in sex cases.  As indicated below (p. 47), there are numerous categories of complainants of offences other than those mentioned.  However, the first example in the brackets, women as a class of complainants, have never been regarded as unreliable witnesses per se and no rule of practice ever required a warning in respect of their evidence, whether as a complainant in any offence or as a witness, except as a complainant in a sexual case, in respect of  which the rule is now abolished, and except if they otherwise fell within another category of suspect witnesses.  This is capable of supporting the view that no “class of complainant”, whoever they may be (man, woman or child, male or female), shall be regarded as unreliable witnesses merely because they are a “member of a class” who make a complaint of an offence.

No comment is made in the speech that warnings regarding the evidence of witnesses generally, and in particular the evidence of young child witnesses, or accomplices or other categories of “suspect” witnesses other than complainants in sexual cases was intended to be prohibited by the amendment, but only that any class of complainant should not be regarded as unreliable witnesses. Young children as a class of complainants were never subject to a warning because they were merely a class of complainants (except in sexual cases) but only because they were witnesses.

Following the comment by the Opposition Spokesman in respect of the abolition of the long standing and well entrenched warning concerning the evidence given by accomplices, no further relevant debate appears in Hansard and the particular clause of the Bill (cl.113), was duly enacted in its present form in s. 632.  If it be correct that the requirement of a warning in accordance with such a long standing and well entrenched rule of practice in relation to accomplices  was swept away (i.e. prohibited), this of course supports the Crown’s submissions (or what I take to be implicit in the Crown’s submissions), that all warnings in accordance with any rule of law or practice including warnings with respect to the evidence of child witnesses,  are totally prohibited.  This comment however, may have been referring to the abolition of the mandatory statutory warning required by the former s. 632 as enacted in 1986, not the “common law” warning.

As indicated above, the provision that a warning is “not required”, does not on its own appear to totally prohibit a warning in accordance with any “rule of law or practice”, except a warning with regard to the rule of practice with respect to complainants of at least sexual offences which is now prohibited by s. 632(3).

There are, therefore, various possibilities:-

1. If a warning can still be given with respect to child witnesses (not complainants) then ss. 632(1), (2) merely declare the common law so that the requirement of all warnings according to “rules of law or practice” except the warnings now prohibited by s. 632(3) are in no way restricted and should be given if justified by the circumstances, but without use of the words “uncorroborated evidence” or “corroboration”; or

2. Section 632(2) prohibits all warnings in accordance with “any rule of law or practice” regarding all suspect witnesses with the result that s. 632(3) second clause has no practical effect, a conclusion which should be avoided if at all possible.  Notably s. 632(2) does not say “any witness”; or

3. Section 632(1), (2) merely remove the requirement of all warnings regarding all suspect witnesses without absolutely prohibiting them (subject to s. 632(3) second sentence), and so retain the longstanding discretion of the trial judge to give a traditional “corroboration” warning or similar in an appropriate case (reviewable on appeal if not given): Longman p. 89/90 (quoted above); M.  v.  The Queen at 499; Butun v.  R.;  Robinson v.  R.; Morgan v.  R; B. v.  The Queen at 617, Pahuja at 217, Wilson (C.A. 355 of 1994); and

4. Section 632(3) second clause expressly prohibits only warnings regarding any class of complainants in their capacity as complainants of an offence with accent being on the nature of the offence.  It does not prohibit any warning in their concurrent capacity as belonging to any class of suspect witnesses (if that is the case) quite apart from the fact that they are merely a complainant of an offence.  In that event, whether a warning should be given, and in what terms, is within the discretion of the trial judge and exists quite apart from the power of the judge to “comment on the evidence” in accordance with the first paragraph of s. 632(3).

With some hesitation, the view I prefer is that contained in number 3 and 4 above and for the following additional reasons.  In s. 632(3) the second clause, each word “class” and “complainant” is simple and easily explicable.  A class is merely any discrete group.  A complainant is, to take the term at its widest, any victim of an offence, or at least one who survives to tell the tale.  Thus, assuming that the word “complainant” relates to any type of offence, and is not limited to a complaint of a sexual offence, s. 632(3) provides that a judge must not warn the jury that the law regards any discrete group of victims of crime as unreliable because they belong to a class of complainants of an offence or because of the nature of the offence ie. for the reason that they may have been predisposed to complain of offences in general or for other reasons, such as a trivial offence or an offence that is technical and which most people would ignore.  It seems plain enough that the prohibition applies to victims of sexual offences, such persons being a “class of complainants” of such offences.

In days past a warning was required in respect of the evidence of such complainants, because of fears about their unreliability based on their status as a particular class of complainants with respect to sexual offences (i.e. rape victims, etc).  Various reasons were given for the rule. See the above remarks of Brennan J in Chamberlain v. R, Dawson, Wilson JJ in Carr v. R and Deane J in Longman.  The old adage, now discounted (Deane J at 94), was that such complaints were easy to make and hard to refute.  The word “complainant” was in this context, clearly related to the offence complained of i.e. rape or other sexual offences  and not because the complainant as a witness was otherwise within a suspect group, for example, an adult woman.  If a woman is now a complainant of a sexual offence, no warning can be given for that reason.  Nor could any other type of warning be given according to any other rule of law or practice unless she happened to be in one or other of the remaining suspect categories.  Section 632(3) has now specifically prohibited the long standing rule of practice which required a warning with respect to the evidence of any complainants of a sexual offence by reason of the nature of the offence ie. because the complainant in such a case is in that class viz in the class of complainants of a sexual offence.

The problem in this case arises when one considers the class of child complainants such as that dealt with in R v. Pahuja.  It is undisputed that child complainants are a “class” of complainants who may or may not give evidence.  It is also undisputed that, generally speaking and subject to the trial Judge’s discretion, a warning was required to be given in respect of child witnesses for  the  significant  reasons  set  out   in B v. The Queen at 616, R v.  Pahuja per Cox J at 215-6, and as applied by this Court in Wilson (No.  355 of 1994).  These two propositions seem to have led to the view that the warning in respect of the evidence of young children, by virtue of s. 632(3) cannot now be given if the child in question is also the complainant (as well as a witness) and therefore falls within that particular class of complainant.  There is an initial attraction to this view because it seems to offer what some may see as some protection to vulnerable complainants, especially in cases of sexual assaults, but also where they are complainants in any other type of offence eg.  even a common assault. 

However, on this interpretation, that view is flawed.  The final sentence of s. 632(3) prohibits any warning that a “class of complainants” is unreliable.  As already indicated, there has never been any rule that child complainants per se are to be regarded as unreliable.  The rule has always been that a warning should be given in respect of child witnesses, regardless of whether the child is a complainant or not, and with respect to any offence, as the above passages in R v.  Pahuja, approved in B v. R and Longman, indicate.  This distinction has been noted by Williams J who views it as something of a anomaly that a warning may be given in respect of child witnesses but is prohibited in respect of child complainants who give evidence.  Cullinane J also refers to this in his  reasons.   So  did  Cox,  Johnson  JJ in R v. Pahuja.

On this approach, the  problem is overcome if the words of s. 632(3) are literally applied as they stand.  So long as the trial judge does not tell the jury that child complainants are unreliable because they are in that class of complainants (apparently of any class of offence), the subsection has not been infringed.  However, the trial judge is perfectly at liberty in an appropriate case to tell the jury  that child witnesses including child complainants who give evidence may be unreliable and their evidence should be treated with caution in the usual way.  The subsection literally only prohibits a warning in terms of the unreliability of a class of complainants per se and certainly as a class of complainants in a sexual case, but it does not prohibit a warning in their capacity as witnesses for reasons other than that they belong to a class of complainants or because of the nature of the offence.  This has some support by the passage in the judgment of Brennan, Dawson, Toohey JJ in Longman at 86, that what was abolished was “the requirement to warn of the general danger of acting on the uncorroborated evidence of alleged victims of sexual offences as a class”.  See also R.  v.  Pahuja per Cox J at 216-7; B.  v.  The Queen at 216 “in the case of young children, the reason does not lie in the nature of the offence.”

To suggest otherwise would be tantamount to prohibiting any warning ever on any complainant’s evidence.  That is because all complainants will fall into some class or other.  Mentally disabled complainants are a class of complainants.  Complainants who wait for very long periods before complaining constitute a class of complainants.  Adult accomplices in an act of incest, if they later complain, are a class.  Complainants with extensive criminal histories or who are otherwise of bad character are a class of complainants which always attracted a warning: see per Brennan J in Bromley v.  R at 323, referring to the category identified by Lord Hailsham of St. Marylebone L.C. in R v.  Kilbourne at p. 740.  Married women or men are classes of complainants and so are single persons.  Aged persons comprise a class of complainants.  Others might spring to mind.  The evidence of some of these witnesses always attracted a warning.  It would be absurd to suggest that merely because any such complainants fall into a particular class, no warning could ever be given about the unreliability of such a class in their capacity as witnesses as opposed merely to their membership of a class of complainants or the nature of the offence, when such a warning is required.  If a complainant of even a sexual offence gives evidence and otherwise falls within a “suspect category” of witness which ordinarily calls for a warning, there is no reason why it should not be given if the circumstances so warrant, as long as it is not suggested that, because the complainant is a member of the particular class of complainants or because of the nature of the offence, the evidence of that witness for that reason must be examined with extreme care.  The situation is no different for child witnesses who happen also to be complainants. 

If this approach to the meaning of s. 632(3) is correct, it is no solution to reply that, in each of the abovementioned “classes” (mentally disabled complainants, those with serious criminal histories, young children and perhaps others), the fact that a complainant is a member of such a class  is really only indicative of the special circumstances of the case, so that a warning might still be given under the first limb of s. 632(3). As pointed out above, that limb allows only comment on the particular evidence in the case with possible difficulties in its application if all rules of practice are intended to be abolished. After all the fact that a complainant is a child (witness) is also a special circumstance of the case, and is the reason for the general rule usually requiring a warning.  Until the requirement for that general rule is specifically removed as emphatically stated by Cox J and Johnson J in R v Pahuja, the anomaly described by Williams J and Cullinane J, would continue to exist if s. 632(3) second clause were to prohibit only warnings regarding child complainants who give evidence and not child witnesses generally.  With respect, such a conclusion should be avoided if possible.  Also the fact that the evidence of a child witness (not a complainant) is clearly the subject of the usual warning as in Wilson (CA 355 of 1994), demonstrates that the view advanced by Mr Rafter is probably correct, namely that the amendments are not directed to the abolition of any rule of practice as to warnings in the case of the evidence of any young child witness given on oath in their character as witness for reasons other than their membership of a class of complainants or the nature of the offence.  The prohibition in s. 632(3) applies to warnings about classes of complainants per se.  If the warning is not directed to complainants or to particular offences, but rather to witnesses generally, it does not fall within the prohibition.  To achieve the result contended for by the Crown the authorities state that clear and unambiguous language is essential. 

Section 632(3) states at the outset that subsections (1), (2), are not to be read as preventing a Judge from making a comment on the evidence given in the trial that it is appropriate to make in the interests of justice.  As indicated, this is a warning of the type referred to in Bromley, Carr, and Longman at 86 and is within the discretion of the trial Judge.  Also, because s. 632(2) merely removes the requirement (subject to s. 632(3) second sentence), and not the trial judge’s discretion, a traditional warning according to any other rule of law or practice” may still be given if the trial judge in his or her discretion so concludes: Longman at p. 89-90.  In this way, s. 632(2) and s. 632(3) are in harmony.  A suitable warning (if given) may comprise in the particular circumstances, a traditional warning which may and usually should also include comment on the evidence in the case so that the warning is not given in a vacuum; See R.  v.  Butun; Wilson (C.A. 355 of 1994).  In this way the dichotomy referred to by Williams J and Cullinane J.  and indeed in R.  v.  Pahuja, would in my respectful opinion, no longer exist.  In clear cases a warning should be given.  The exercise of the judge’s discretion is the subject of review: Longman, p. 89-90; R.  v.  Butun.

In the result, and not without some hesitation, I conclude that Mr Rafter’s submissions are correct namely that s. 632(3) second sentence does not prohibit a warning regarding the evidence of a young child witness because he or she is a child where the facts indicate that a traditional warning should be given, even if that child is also the complainant of an offence.  In this case, having regard to the circumstances outlined under the first component of ground (3) below, including the evidence concerning penetration referred to in ground 2 below, a traditional warning in strong terms was required and, indeed, should have been given, accompanied by appropriate comment on the evidence: R.  v.  Butun; Wilson (C.A. 355 of 1994) per Lee J.  As indicated, no such warning was sought at the trial.

I now deal with the first component of Ground (3).  Mr Rafter identified various features in the evidence which, he submitted, clearly called for a warning under the first part of s. 632(3) even if no traditional warning was given pursuant to the second component just dealt with.  These features and various others  appear on the evidence which the Court must examine for itself in an appeal of this type.  Also, the Court is not necessarily limited to matters relied upon by the appellant: See R v. Ross (1987) 29 Crim R 77; R v. Bracewell (1979) 68 Crim App.R. 44, and R v.  Snowdon (CA 271 of 1995, 4 June 1996 unreported per Lee J, dissenting at 15), approved by Fitzgerald P and Lee J in R v.  Wilson (CA 200 of 1996, CA 336 of 1996 at 79 (Note 86).  These features are as follows:-

1. The complainant was a young boy just 8 at the time: Longman, B v. The Queen at 616.

2. There was a long delay in prosecution.  The trial was nearly 4 years later, when the complainant was then almost 12.  This, it was said, would affect the accurate recall of a young boy and of his perceptions nearly 4 years earlier, which was also demonstrated by inconsistencies and uncertainties in his oral evidence and in ex.1: see below; Longman, 90, 100.

3. The complainant boy was asleep.  He said he went to bed and asleep about 8.30- 9.00pm.  (ex.  1, p. 4).  (The appellant confirmed this (R 40).  The appellant said that he had coffee upstairs with the complainant’s mother and then went to bed in the garage at 10.30pm. (R 40).)  The complainant said that during sleep, his tight shorts had been removed by the appellant, but he did not wake up (ex.1 p. 8).  He said he did not wake up until the appellant was “starting” to put his “willy up my backside” (ex.1 p. 2) (R19).  He said that on the second occasion the appellant “started” to do it again (ex.1 p. 6).  He said that the incidents occurred “probably about 11, 12 o’clock” (R 23 ex.1, p. 4):  Longman, 90, 100-1. 

4. The complainant made no complaint to his mother until over 3 years later.  His explanation for the late complaint was “cause I didn’t know anything about sexual harassment basically” (ex.1 p. 8), notwithstanding that when the alleged incidents occurred he said he did not like it (ex.1 p. 11).  He moved away and knew that something wrong was going on (R 26).   He said he did not go upstairs after the alleged incidents to tell his parents (my mum and dad) “because they were asleep I think” (R 19, 23) even though it is clear from the evidence of his mother and father that his father was in fact hospitalised at the time for a period of about 6 days.  So did the appellant (R 37, 42).  After the comment that he thought that his parents were asleep he then said, contrary to his latest statement (R 26), “no” to a question that he would have realised what was happening was wrong but agreed that it was unusual (R 19);  and notwithstanding previous discussions in 1994 with the 18 year old neighbour with whom he was camping at the time, Mark Dainer, when “we talked about girls and stuff and I did . . . he just talked about poofters and I said this guy he stuck his willy up my bum and stuff he just said, ‘Oh what a poofter’ like that”(ex.1 p. 16).    The record at p. 22 indicates that they were talking about “prostitute parades” when Mark Dainer alleged that the appellant was a “poofter”.  The complainant admitted that he knew what that meant and knew what Dainer was talking about (R 22), which further indicates that he knew that what had occurred was wrong.  This conversation occurred long before he spoke to his mother, grandmother and others.

5. There was no complaint to the appellant at any stage ( R 42).  No violence or force  or threat was suggested, no words were spoken between the appellant and complainant (ex.1, 9, 12).  The appellant did not tell the complainant not to tell anyone (ex.1, 12).  The appellant maintained a harmonious relationship with the complainant and his family for some weeks after the alleged offences, the last contact being a scout party in about April 1994 (R 38, 43).  There was no suggestion of any prior or subsequent misconduct.  The appellant had visited the family home on several occasions (R 32) and had camped out with other family friends of the complainant (R 40).  The complainant freely went with the appellant to the applicant’s grandmother’s house some distance away (ex 1, 12) the day after the event and went with him to a swimming carnival apparently about 3-4 days later (ex. 1, p. 12, 15), although in oral evidence in cross-examination he changed those statements to convey that both of those events had occurred before the alleged offences.  His father’s evidence shows that the carnival probably occurred after the alleged incidents as ex.  1 indicates.  See M.  v.  The Queen at 499, where equanimity of a young complainant following alleged sexual offences was said to be significant, and, in this case, if the complainant knew that what had allegedly occurred was wrong.  So also was the delay of one month in complaining to the mother, thought to be significant in M.  v.  The Queen.   

6. There were important conflicts in the complainant’s evidence concerning penetration.  He admitted the possibility that he could have been mistaken.  He frequently said, “I can’t remember” to various questions put to him on the topic.  On one occasion he finally said he was sure it occurred.  His last word on the subject in reexamination (R.31) when the prosecutor attempted to clear up the conflicts, occurred when asked whether the appellant’s penis went inside the hole in his bottom out of which “stuff that comes out of your bottom” when going to the toilet, he said “I can’t remember”.  Some of these conflicts are also referred to in the reasons of Cullinane J.  Others are referred to below under ground 2. 

7. There was no corroboration.  The medical examination in October and November 1995 was solely for the purpose of checking why he was soiling his pants which he had apparently done for about two years prior to 1995 (R33, 36).  It showed no signs of any injuries and was normal.  Whilst the medical evidence showed this was to be expected after such a long delay, it was neutral in its results.  The complainant had said, when asked twice whether it hurt: “I can’t remember” (ex.1, 9, 15).  It was said that had there been a timely complaint, not only could the allegations have then been properly investigated to ensure that the complainant’s version was reliable but also a medical examination promptly held might have either confirmed or denied the complainant’s allegations.  The appellant has lost these possible advantages, a factor of significance in Longman, 91 , 108.

8. The circumstances under which the complaint was ultimately made to his mother, over 3 years later, soon after hearing an allegation of abuse by another boy in the scouts (not involving the appellant but apparently another scout leader), relayed by the complainant’s mother, and soon after an allegation of abuse of his sister who had to go to Court (ex.  1, p. 8, R 29).  He said (ex.1, p. 2) “I only just told Mum and Dad because um they were talking bout someone else that this had to happen to but not the same person it was another person” and that “because a boy had had it done to him” which caused the complainant to become upset because that boy “was a good friend of mine”;  and the  circumstances under which the complainant mentioned the matter to the 18 year old neighbour (Dainer) whilst they were camped in a tent in 1994, following “general discussions about sexual matters” during which Dainer referred to the appellant as a “poofter”, an expression which the complainant said he then understood.  These circumstances might point to the risk that he was merely fantasising or was influenced in making the complaint to his mother out of sympathy for his sister or a friend when allegations had been made about scout leaders.  He said (R 29) that one of the reasons he told his mother was that people were doing this to other children.

9. The complainant’s father was ill and in hospital for six days or so over the relevant period, which, according to submissions by Mr Rafter, may have caused psychiatric stress or trauma at that time to the complainant who otherwise had spent a lot of time with his father who could not take him to the impending swimming carnival (R34).  His father was involved in the scouting movement and “went everywhere with J” (the complainant) (R33).

These matters were, of course, for the jury to resolve, the submission being that in order to properly assess the evidence and to resolve the matters in issue a warning should have been given under the first limb of s. 632(3).  As already stated, the appellant categorically denied any improper conduct at all, in evidence-in-chief and in cross-examination.

I have difficulty in distinguishing Longman in this respect.  In my respectful opinion, it matters little that the delay between the alleged offences and complaint was over 3 years and the delay between the alleged offences and the trial was about 4 years whereas the delay in Longman was considerably greater.  The complainant in that case was an adult at the time.  See for example Omarjee where the Victoria Court of Criminal Appeal ruled that a clear warning was needed with respect to the evidence of an adult complainant who delayed complaining for only 3 years (369-70), and R. v. Miletic where the Victorian Court of Appeal took a similar firm view with respect to the evidence of an adult complainant who delayed complaining until after termination of her relationship with the alleged offender in December 1993 for alleged sexual offences committed between November 1990 and December 1993.  New trials were ordered in each case notwithstanding that specific objection or request for redirection was not made by counsel at the trial.  See also M v.  The Queen at 499 (delay of one month in complaining to the complainant’s mother).  Also in Butun v. R. no request for a direction was made by counsel at the trial.  The conviction was nevertheless quashed.

In the current case the complainant was just 8 at the relevant time and not yet 12 at trial.  The delay in complaining was over 3 years.  In Longman at page 90 in the joint judgement of Brennan, Dawson and Toohey JJ, the following appears:-

“The Court of Criminal Appeal limited their inquiry unduly under a misconception of the scope of para (b).  The question which arose, and which arose under the latter part of para (b), was whether a warning was required that it was unsafe to convict on the uncorroborated evidence of the complainant, not by reason of her being an alleged victim of a sexual offence, but by reason of the whole of the circumstances of the case. There were several significant circumstances in the case: the delay in prosecution, the nature of the allegations, the age of the complainant at the time of the events alleged in the two counts in indictment, the alleged awakening of a sleeping child by indecent acts and the absence of complaint either to the applicant or to the complainant’s mother.  It would not have been surprising if these circumstances had elicited some comment from the trial judge, for it would have been proper to remind the jury of considerations relevant to the evaluation of the evidence. Of course, any comment must by fairly balanced.  For example, any comment on the complainant’s failure to complain should include (as indeed s. 36BD requires) that there may be ‘good reasons why a victim of an offence such as that alleged may hesitate in making or may refrain from making a complaint of that offence’.  But there is one factor which may not have been apparent to the jury and which therefore required not merely a comment but a warning be given to them; see Reg v.  Spencer [1987] A.C. at p 141.  That factor was the applicant’s loss of those means of testing the complainant’s allegations which would have been open to him had there been no delay in prosecution.  Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant’s story or confirming the applicant’s denial.  After more than twenty years that opportunity was gone and the applicant’s recollection of them could not be adequately tested.  The fairness of the trial had necessarily been impaired by the long delay (see Jago v.  District Court (NSW)) and it was imperative that a warning be given to the jury.  The jury should have told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, was satisfied of its truth and accuracy.  To leave a jury without such a full appreciation to the danger was to risk a miscarriage of justice.” (emphasis added).

At p 100, Deane J, after considering if there may have been good reasons for the absence of contemporaneous complaint in that particular case, attached much greater significance to the delay as a disadvantage to the accused.  After certain comments in relation to that aspect, his Honour said at 100-101:-

“The real force of the applicant’s case lies, however, in the combination of: (i) the circumstances of the alleged offences, and (ii) the possible effect, in the context of those circumstances, of the extraordinary lapse of time before complaint and trial.  The gravamen of both offences was the alleged placing or pressing by the applicant of his hand on or against the complainant’s genitalia.  There was no suggestion of penetration, violence or of contact with other than the applicant’s hands.  One of the alleged offences occurred when the complainant was 6.  The other when she was 10.  On each occasion, the complainant was asleep immediately before the alleged offence.  More than twenty years later, her recollection is that, on each occasion, she awoke to find the alleged offence being committed but pretended to remain asleep.  She cannot remember whether she went back to sleep after the incident in the truck.  After the other incident, the applicant carried her to her bed where she went back to sleep.  It is in the context of the nature of the offences that the length of time between alleged offence and first complaint assumes great significance.  The possibility of child fantasy about sexual matters, particularly in relation to occurrences when the child is half asleep or between periods of sleep cannot be ignored.  The border line between fantasy and reality can be an uncertain one.  Contemporaneous questioning of a child may distinguish fantasy from reality.  The long passage of time can harden fantasy or semi-fantasy into the absolute conviction of reality.  So to say is not to suggest that the allegations of the complainant in the present case arose from fantasy or semi-fantasy.  It is simply to explain why it seems to me that, in the particular circumstances of the case, the complainant’s evidence of the alleged offences which was not given until so long after their alleged occurrence required to be scrutinised with very great care indeed.  It was not merely a matter of whether the jury was satisfied beyond reasonable doubt that the complainant was an honest witness and that the applicant was not.  It was a question of the intrinsic reliability of the only evidence which was capable of sustaining a finding of the appellant’s guilt.”  (emphasis added).

McHugh J at page 106 said:-

“However, s. 36BE does not prevent the evidence of complainants in sexual cases from being subject to the standard directions which are required to be given in appropriate circumstances in criminal cases: cf Williams v.  The Queen (1987) 26A Crim R 193; Pahuja v.  The Queen (supra); Reg v.  Murray (1987) 11 N.S.W.L.R. 12.  Cases concerned with the uncorroborated evidence of complainants in sexual cases were perceived as ‘cases where the evidence suffers from some intrinsic lack of reliability going beyond the mere credibility of a witness’: Carr v.  The Queen at 319 per Wilson and Dawson JJ.  If the evidence of a complainant appears potentially unreliable for a reason other than that he or she is making an uncorroborated allegation of a sexual offence, nothing in s. 36BE prevents a trial judge from warning the jury of the potential unreliability of the evidence of the complainant. 

In Bromley v.  The Queen, Gibbs CJ said:

‘What is required in a case where the evidence of a witness may be potentially unreliable, but which does not fall within one of the established categories in relation to which the full warning as to the necessity of corroboration must be given, is that the jury must be made aware, in words which meet the justice of the particular case, of the dangers of convicting on such evidence’.”  (emphasis added).

After noting that complainants in sexual cases no longer fell within the category of witnesses to which the full warning must be given, His Honour concluded:-

“If, however, the evidence discloses any circumstance which suggests that the evidence of the complainant may be unreliable, the trial judge has a duty to make the jury aware of the dangers concerning that person’s evidence.  As in any case where the prosecution depends solely upon the evidence of one witness, the trial judge is entitled to point out that the evidence of the complainant requires careful scrutiny before acting upon it.  But cases would frequently arise where the circumstances would require a stronger warning.  The terms of that warning will depend upon the particular circumstances of that case: Carr at 318.

In the present case both offences are alleged to have commenced when the complainant was asleep.  She testified that on each occasion she pretended to remain asleep.  She stated that after the incident in the applicant’s bed she went back to sleep.  She could not remember whether she went back to sleep after the incident on the truck.  She was about 6 years old when she alleges that the first offence occurred and about 10 years old when she alleges that the second offence occurred.  The complainant did not allege that penetration occurred or was attempted.  Both offences were alleged to have occurred more than twenty years before the hearing. 

The fallibility of human recollection and the effect of imagination, emotion, prejudice and suggestion on the capacity to ‘remember’ is well documented.  The longer the period between an ‘event’ and its recall, the greater the margin for error.  Interference with the person’s ability to ‘remember’ may also arise from talking or reading about or experiencing other events of a similar nature or from the person’s own thinking or recalling.  Recollection of events which occurred in childhood is particularly susceptible of error and is also subject to the possibility that it may not even be genuine: Hunter Memory, Rev. BD.  (1964), pp 269-270.

No matter how honest the recollection of a complainant in this case, the long period of delay between the formal complaint and the occurrence of the alleged events raised a significant question as to whether her recollection could be acted upon safely.  The likelihood of error was increased by the circumstances in which the complainant said the incidents occurred.  The opportunity for error in recalling twenty years later, two incidents of childhood which are alleged to have occurred as the complainant awoke, and then pretended to be asleep, are obvious.  Experience derived from forensic contest, experimental psychology and autobiography demonstrates only too clearly how utterly false the recollections of honest witnesses can be.” (emphasis added)

And further at 108:-

“To the potential for error inherent in the complainant’s evidence must be added the total lack of opportunity for the defence to explore the surrounding circumstances of each alleged offence.  By reason of the delay, the absence of  any timely complaint, and the lack of specification as to the dates of the alleged offences, the defence was unable to examine surrounding circumstances to ascertain whether they contradicted or were inconsistent with the complainant’s testimony.”

Even though it may be accepted that much of the above passages from the judgments in the High Court consist of explanations why such a warning was required, nevertheless, that decision is strong support for submissions by Mr Rafter that a warning should have been given at least under the first limb of s. 632(3).  In my respectful opinion it is no answer that the facts of the case were in short compass or that the case was merely one of word against word; see K.B.T. v. The Queen.  Nor, as indicated, is it possible to distinguish Longman on the basis that the delay there was much longer than in the present case.  The principle is the same.  The appellant has been deprived of the opportunity of a timely medical examination of the complainant which might have confirmed or negatived the complaint.  He has also been deprived of the advantage of a timely investigation into the events at the relevant time and in particular as to the reliability and accuracy of the complainant’s allegations had he been questioned promptly (and before later conversations with his next door neighbour and subsequent events involving his sister and his friend).  In my opinion, notwithstanding that a warning is well within the discretion of the trial Judge,  the present case was one which required a strong warning to the jury of the potential for error in the complainant’s testimony.  This is reinforced by repeated statements made throughout his evidence that he either could not remember or was not sure, or whether penetration had in fact occurred, or whether it hurt him or not, and in other respects.  See below.  Had His Honour been requested to give such a direction, and the reasons for it, His Honour may well have done so.  The problem is that such a request was not made.

I proceed now to deal with the other grounds of appeal.  As to ground 1(a), the submission concerning the evidence of the witness Gavranich is not entirely without merit.  The evidence is weak.  The conduct of the complainant following the incident showed a normal continuing relationship with the appellant after the alleged incident.  There was no evidence of any emotional or such upset following the alleged incidents other than regression in toileting habits which commenced at some unstated time after the alleged incidents.  However, as stated by Cullinane J, it was not objected to.  Nor was any exploration by counsel for the appellant of the nature of suggested psychological and or physical trauma explored.  Whilst it is possible that the complainant may have been under some psychological trauma due to the illness of his father with whom he spent a great deal of time, this matter was nowhere expressly raised at the trial.  I am not prepared to disagree with the conclusions of Cullinane J in this regard. 

Ground 1(b) should be considered in conjunction with ground 4.  As already indicated, had objection been taken to that evidence, the learned trial judge would without doubt have excluded them from the evidence: Horan v. Ferguson; R v. W at 576.  However, that evidence having been admitted, there is in my respectful opinion, substance in the further submission by Mr Rafter contained in ground 4 that the learned trial judge failed to give the jury an adequate direction with respect to the complaint evidence that was admitted.  It is of course quite true that in no sense could any of the evidence referred to by Mr Rafter be regarded as being recent.  The appellant has contended that the learned trial judge ought to have informed the jury that any complaint made by the complainant should not be treated as confirmatory proof of what was alleged against the appellant. 

In my respectful opinion, it is no sufficient answer to distinguish the High Court decision in Jones v.  The Queen (1997) 71 A.L.J.R. 538 on the basis that the complaints therein met the test of recent complaints which required a special direction as to the use of that evidence.  What is important is the nature of the evidence which was admitted, it being out of court statements by the complainant that he had “complained” on various occasions in 1994 and in 1996.  As indicated, those statements were clearly inadmissible, as indeed would be evidence of any complaint unless it was exceptionally admitted as “recent”; Kilby v. R at 466.  But that is purely a question of admissibility of evidence and does not govern the character and use of complaints made by a complainant, whether recent or otherwise, once the evidence is admitted and not excluded, even if this was the course adopted by  Counsel for the appellant at the trial for tactical reasons.

It is well known that lay people often wrongly conclude that because a person has repeatedly said that something has occurred, therefore it must for that reason be true.  They are often inclined to the view that mere assertion, particularly if repeated, necessarily means that what is asserted is true.  Lewis Carroll’s statement in ‘Hunting of the Snark’ that “What I tell you 3 times is true”, is quite incorrect.  Merely saying something does not necessarily make it so.  There are several references to statements made by the complainant in ex.1 and in his oral evidence.  The first was in 1994 to his 18 year old neighbour.  Then there was the statement to his mother and his further reference of statements made to his mother, father, grandmother and various other persons above referred to.

In the result, the evidence having been admitted without objection, a clear direction should have been given to the jury, not merely that the absence of an early complaint may show inconsistency of conduct on the part of the complainant and was relevant to his credibility, but that the complaints he made were not evidence of the facts complained of.  There is a distinction between the credibility of the complainant on the one hand and the probative value (and use) of facts he stated in evidence.  See eg.  Croft v. The Queen (1996) 186 C.L.R. 427 per Dawson J at 434 in a different context.  As pointed out in Jones, this is of particular importance where the credibility of the complainant was central to the appellant’s case as it was in the present case.  In my opinion, there is substance in this ground of appeal.  Had the learned trial judge been asked to give such a direction, his Honour without doubt would have done so, or alternatively would have ruled that the evidence was inadmissible and that the jury should disregard those statements: R v. W at 576.

The only other ground remaining is ground 2 regarding the evidence of penetration of the complainant by the appellant.  It was asserted that this evidence was insufficient to sustain a conviction for sodomy or, alternatively, was such as to make those convictions unsafe.  It is therefore necessary to examine the evidence in this regard.  Some of it has been referred to in the reasons of Cullinane J and some comments in relation to it have already been made above in these reasons.  Further passages are now referred to.

At pp. 19-20 the following appears:

“Then just under that the policeman says to you, ‘Can’t explain it at all, right, mmm.  Can you tell me what happened at all?’  Your answer is, ‘Yeah, um, I was sleeping.  He started putting his willy up my backside and I woke up and then he stopped doing it.’  Do you see that?-- Yes.

‘Then he went out to get a drink of water.’  Is that right?-- Yes.

Then you say you quickly moved the mattress back.  Is that right?-- Yes.

Which mattress are you referring to?  Which mattress did you pull back?-- I pulled mine over to closer to the wall and then he pulled it back over and started doing it again.

So, when you put your mattress over against the wall, did his mattress stay where it was?-- Yes.

Your parents were at home at the time, J?-- Yes.

Why didn’t you run up and see mum and dad?-- I don’t know because they were asleep, I think.

But at this stage you would have realised he was doing something wrong to you?--  No, because I didn’t - I was only young and I didn’t know nothing about stuff like that.

You didn’t know nothing about it?-- No.

Well, did you realise that something unusual was happening?-- Yes.  That’s why I pulled my mattress away.

But you still didn’t go up and see your mum and dad?-- No.

What was the reason for that?-- Because I didn’t know nothing about what was happening or nothing.

In that same answer, this is about 10 lines down, ‘I was sleeping.  He started putting his willy up my backside.’  See that?  It starts at line 8 where you come in, ‘J.’  See that?  ‘Yeah, I was sleeping and he started putting his willy up my backside.’?-- Yes.

What do you mean by that, started putting his willy up your backside?-- Well, just started putting his willy up my backside.  He pulled down my pants and started doing it.

Did you actually feel him pulling down your backside - your pants?-- No, because I was asleep at the time.

Is it possible that your pants could have come down while you were asleep?-- Yes.

That is a possibility.  You say he put his willy in your backside.  It is probably a delicate question, J, but do you know what an anus is, a rectum?-- No.

You don’t.  Can you describe more fully what you mean by he put his willy in your backside?  Was it just on the outside?-- No - I can’t quite remember.

You can’t quite remember?-- No.

Do you know what a penis is?-- Yes.

A willy, I think you call it a willy.  So, you are not too sure whether his willy went directly inside or was just touching you on the backside?- I can’t remember.

That happened in late 1993, October to November, sometime around then in 1993.  It that right?-- Yes.”

At p. 23 the following evidence appears:

“Well, you say that he interfered with you firstly?-- Yes.

By pulling over the mattress?-- No, what happened, the mattresses were almost together, about 30 centimetres together and then he started doing it and then he got up and got a drink or seen what the time was or something and then I quickly moved over my mattress and I tried to go back to sleep but I didn’t and then he moved the mattress back over and started doing it again.

Did you feel very uncomfortable about this, what was going on?-- I can’t remember, really.

You certainly didn’t run out of the garage at all?-- No.

Did you say to Mr Robinson, ‘Look, I don’t like what you are doing.  You better stop this.”?-- No, I didn’t.

You are quite sure that Mr Robinson got up and got a glass of water?-- He done something.  I don’t know what he done but ----

But he did get up?-- Yes.’

At p. 24-25 the following evidence appears:

“MR TOWNSING: We are talking about the first incident, J, when you went out in the garage and you say Mr Robinson touched you in the first place.  You were asleep, weren’t you?-- Yes, and then I woke up.

You woke up, all right.  It is possible that you misinterpreted the situation?-- Yes, it is but I don’t think it is.

So, you would admit that it could have been a total misinterpretation of what took place?-- Yes.

HIS HONOUR: In what sense?

MR TOWNSING: Well, Mr - you are saying that Mr Robinson placed his - you are alleging his penis in your backside, aren’t you?  It is possible you are mistaken about that taking into account you were asleep in the first place?-- Yes, but that woke me up and then he went out and then I quickly moved over my mattress.

Just go through that again, J.  You were asleep, right.  Initially you are saying that Mr Robinson has interfered with you, all right.  Now, just waking up from your sleep, is it possible that you have misinterpreted what Mr Robinson did to you?

MR RYAN: I object to the question.

HIS HONOUR: What do you mean by ‘misinterpreted’?  Are you putting to him it didn’t happen or something happened?

MR TOWNSING: Well, I am suggesting it didn’t happen ----

HIS HONOUR: All right.

MR TOWNSING:  ---- for a start.

HIS HONOUR: Well, you haven’t done that yet.

MR TOWNSING: I am suggesting to you, J, that it didn’t happen and that you are mistaken that it did happen.  What do you say to that?  Is that a possibility?--  I don’t really understand you.

All right.

MR RYAN: Well, my learned friend, Your Honour, should simply put it to the witness and ask him to comment.  It is improper for him, in my submission, to be both saying he didn’t do it and then in the same question saying it is possible.

HIS HONOUR: Put separate questions to him, Mr Townsing.

MR TOWNSING: J, I am suggesting this first occasion before Mr Robinson got up, I am suggesting that did not happen.  What do you say to that?-- I don’t really think that - I think it happened but I don’t think it - don’t think I would sort of - I don’t think I would miss it though, if you know what I mean.

‘Misinterpreted’, did you say?-- Yeah.

HIS HONOUR: You are being asked now did it happen.  It has been put to you that it didn’t.  What do you say to that?-- I don’t think it - I think that it did happen and ----

All right, yes.

MR TOWNSING: J, you don’t seem too sure about that.

MR RYAN: Your Honour, I object to that because the witness has had considerable difficulty understanding the way in which the question has been put.

HIS HONOUR: You say you think it did happen.   What do you mean by that?--  I - I think it did happen but - but they could be right.  I could have misunderstand it but I really, really do think that it happened.

On p. 27 the following evidence appears:

“So you’re saying the first occasion then is the movement of the mattresses then he comes back to the mattresses?-- Yes.

So all up 20 minutes, 10 to 20 minutes?-- Yes.

Right at the bottom of that page, J, this is at page 9, the policeman says to you, ‘Did it hurt?’  Answer, ‘I can’t remember.’  See that?-- Yes.

He says, ‘Did it hurt?  Can’t remember?’  ‘I can’t remember.’  ‘All right.  Did you say anything at all?’  Answer, ‘No.’  Correct?-- Yes.

So, really, what you are saying is that it didn’t hurt you as such?-- No, but I just can’t remember, because it was such a long time ago.

You didn’t tell him to stop what he was doing?-- No.”

At p. 30 -

“MR TOWNSING:   Well, you are saying that Mr Robinson placed his willy in your bottom?-- Yes.

And you are saying that took place on two occasions between a short break, all right.  What I am suggesting to you, J is that did not happen.  Is it a possibility it didn’t happen?-- Yes, there is, but I really don’t think that I could have just made it up, because I am not that sort of person.”

And further at p. 30:

“MR TOWNSING: What I am putting to you, J, is, one, the incident with Mr Robinson, the two incidents we are talking about before, where there was a break in between, I am suggesting that that did not happen.  What do you say to that?--  I think it did happen.

My next question is after you said, ‘I think it did happen’, my next question is, is it possible you could be mistaken?-- Yes, that is, but I don’t think I am that sort of person who could mistake a thing like that because is this a serious matter.

I am not trying to trick you, J.  I have got no further cross-examination.”

Earlier at p. 25, the complainant said:

“I think I have asked this before, Your Honour, but I will ask it again.  You are not too sure whether his penis went into you anus?-- Really, really, really I do think it did.  I’m quite sure that it did.

Okay.  Why do you say that?-- Because there’s nothing else that went up my bottom in the room.”

In re-examination at p. 31, the following appears:

“MR RYAN: J, I have just got a couple of questions and then you can go, okay.  You have still got that transcript in front of you there?  Can I get you to turn to page 6 there.  If you go down that page, about three-quarters of the way down the page, one of the police officers asked you about what happened after you woke up.  He asked you the question and you can’t remember what time.  ‘What was he doing, exactly?’  ‘Like, getting his willy and putting it inside my bottom.  Inside.’  Do you see that there?  Okay.  Now, what I just want to ask you is when you were saying that it went inside, what part of your bottom were you talking about it going inside?-- All of it.

You know that you use your bottom for going to the toilet, don’t you?-- Yes.

The stuff that comes out of your bottom comes out of a hole, doesn’t it?-- Yes.

Was it inside that hole?-- I can’t remember.”

In the light of some of the complainants’ answers, the submissions on behalf of the appellant are understandable.  However, whilst the complainant did not use the word “penetrated”, he made several statements both in his oral evidence and in ex.1, from which the jury were entitled to infer that penetration, however slight, had occurred.  The tape recorded interview (ex.1) occurred without the pressure of cross-examination in a court room: At p. 6, in answer to a question “What was he doing?”, he replied, “Putting his like getting his willie and putting it inside my bottom, inside.”  At p. 9 , in answer to a question “And was he doing anything then?”, he replied, “He was putting his willie inside.  In and out of my bottom” for “about ten twenty minutes (i.e. the total time for both offences).  There are other statements in his oral evidence to similar effect.

The jury saw and heard the witness (as well as ex.1).  Subject to proper warning and directions, they were entitled to consider whether the complainant may have been confused under cross-examination, and were entitled to accept parts of his evidence and reject other parts as they were directed by the learned judge (R.49).  His Honour also gave clear directions as to what were the elements of the principal counts of anal intercourse on which the appellant was convicted, as well as the alternative counts of unlawful and indecent dealing.  The jury discriminated between them.

On the other hand, I am clearly of the opinion that the nature and quality of the complainant’s evidence fortifies the need for a very strong warning, the subject of either or both components of Ground 3.  A suitable composite warning should have been given: R.  v.  Butun; Wilson (C.A. 355 of 1994).  It was on the basis of the absence of such a warning, that the High Court in Longman held that the verdict was unsafe and unsatisfactory and a new trial was ordered.

In the result, ground (1)(a) fails.  Both components of the added ground (3) as well as the added ground (4) succeed.  Ground 2 depends upon whether a warning should have been given, having regard to the fact that no warnings or direction were sought at the trial: Longman.  The question therefore is whether the proviso should be invoked, namely whether or not the Crown has shown that there was no substantial miscarriage of justice.

In Longman, whilst conceding that Counsel in that case had asked for the appropriate direction which the trial Judge refused to give, the joint judgment of Brennan, Dawson and Toohey JJ.  at 91 stated:

“The fairness of the trial had necessarily been impaired by the long delay (see Jago v.  District Court (N.S.W.)  and it was imperative that a warning be given to the jury.  The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing 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.  To leave a jury without such a full appreciation to the danger was to risk a miscarriage of justice.  The jury were told simply to consider the relative credibility of the complainant and the appellant without either a warning or a mention of the factors relevant to the evaluation of the evidence.  That was not sufficient.”  (emphasis added).

Deane J.  at 97 said:

“Nor is it the function of an appellate court subsequently to intervene merely for the purpose of substituting its own views about whether such a warning was justified in all the circumstances of the particular case.  The essential function of an appellate court is to intervene when the intervention is necessary to prevent possible miscarriage of justice.  When complaint is made of the absence of a warning of the kind referred to in s. 36BE(1)(a), the ultimate question for the appellate court is whether, viewed in the context of the summing up as a whole and of any other particular or general defects in it, the effect of the absence of a warning of that kind is that there is a real risk that justice has miscarried with the result that the verdict is unsafe and unsatisfactory.  It is as a step towards answering that ultimate question that an appellate court will be concerned to form its own views about whether, making full allowance for the significant advantages enjoyed by the trial judge, the particular circumstances of the particular case was such that it was not open to the trial Judge to fail to be satisfied that a warning of the relevant kind was justified.”

His Honour went on to conclude that in that case the verdict was unsafe and unsatisfactory.  This was the final ruling of the majority at 91 and of McHugh J.  at 109.  A new trial was ordered.

In Miletic, in the joint judgment of the three members of the Court of Appeal at 603-4 the following appears:

“No exception was taken below by defence counsel but, as in R.  v.  Omarjee (1995) 79 A.Crim.R.355 at 368, no reason appears in the present case why the general rule should not have applied.  We do not stay to consider whether there may be exceptional cases where that would be enough on its own to warrant appellate intervention.  We simply take the imbalance into account in evaluating Mr Weinberg’s more substantial submission that the nature and quality of the complainant’s testimony itself called for a warning.”  (emphasis added)

Reference was then made at length to the joint judgment of the majority in Longman at 90‑91.

At 605, the judgment continued:-

Where there is no specific rule requiring a particular direction, there must be an identifiable factor or group of factors calling for a direction to be given.  It is not for an appellate court to make its own evaluation, for it is not equipped to do so.  Counsel for the applicant must identify a specific factor or group of  factors that could not safely be left to trial counsel to deal with in his address but required a direction that had the authority of the judge’s office.  When it is said in the authorities that the necessity for a direction arises from the circumstances of the case, what is meant is that those circumstances must include such an identifiable factor or group of factors and that the form of the direction must be tailored to the facts of the case: see, for example, R.  v.  Omarjee at 369.

In our opinion a distinction should also be drawn, in cases such as the present, between circumstances that it is well within the ability of the jury to assess for themselves and factors the full significance of which may be more apparent to the judge: cf.  Bromley v.  R. (1986) 161 C.L.R. 315 at 324-5 and Carr v.  R (1988) 165 C.L.R. 314 at 330.  Appellate intervention is much more likely to be warranted in the latter case than in the former.  Where a concatenation of circumstances is within the capacity of a jury to evaluate, in the light of their own experience and with the benefit of counsel’s addresses, it is only in exceptional cases that a warning is required.  More often it is simply a matter for the judge to decide whether or not it is appropriate to make a comment for the assistance of the jury.

...

We return therefore to the general principle that a judge should give any direction that is necessary and practical, in the circumstances of the case, to avoid a perceptible risk of miscarriage of justice.  For the reasons to which we have already adverted, the nature and quality of the complainant’s evidence called for careful scrutiny. ...  we have concluded that there was a miscarriage of justice calling for the conviction to be quashed and a new trial directed.  If similar evidence is given  at the re-trial, a warning of the kind for which Mr Weinberg contended should be given.”  (emphasis added). 

As indicated, the nature of the evidence given by the complainant was such that rendered a  warning necessary under at least the first component of the added ground (3).  Also various other factors have been referred to above which required an appropriate warning.  As to the second component of added ground (3), see the comments of Brennan J.  in Chamberlain v.  The Queen at 604, set out above in these reasons at p. 23.  His Honour said that the court in Hargan v.  The Queen quashed a conviction because of an omission to warn the jury that they should scrutinize with very special care the evidence by a prosecutrix who alleged that a sexual offence had been committed on her.  The same principle applies with regard to a warning about the potential unreliability of a child witness where such a warning should have been given.

Furthermore, the new ground (4) deals with a category of evidence which, according to the passage from Miletic at 606, was of a type where the full significance of the matters referred to are more apparent to a Judge than ordinary jurors.  Nothing appears in the current case to show that such matters were left to the address of counsel for the appellant of the trial.  As indicated, his address was for three minutes only.  Nor am I prepared to conclude that no direction was sought simply for tactical reasons.  The more likely view is that it was simply overlooked.  Nor do I regard the fact that it was “word against word” or “all or nothing”, as operating against the appellant in this case: KBT v. R. 

Nor do I consider that it is possible for this court to conclude from a reference to the record, that the jury would inevitably have convicted the appellant had the appropriate warnings and directions been given in accordance with either one or both components of ground (3) or in accordance with ground (4).  In my view, any one of those grounds or components is sufficient to allow the appeal.   See for example R.v. Snowdon.  (C.A. 271 of 1995, 4 June 1996 unreported at 43 et seq per Lee J.).  This is not a case where there is a considerable body of other corroborative evidence as to which the jury was properly directed as occurred in R.  v.  Richards and Ors. [1965] Qd.R. 354.  Indeed it was conceded that there was no corroboration in the current case.

A somewhat similar proviso to s. 668E(1) was considered by the Privy Council in Makin v.  The Attorney-General for New South Wales [1894] A.C.57.  That case involved whether or not evidence of criminal acts other than those charged was admissible.  Nevertheless the principle seems to be the same.  At 69, the judgment proceeded:-

“Reliance was of course placed upon the language of the proviso.  It was said that without the inadmissible evidence there were evidence sufficient to sustain the verdict, and to show that the accused was guilty, there has been no substantial wrong or other miscarriage of justice.  It is obvious that the construction contended for transfers from the jury to the Court the determination of the question of whether the evidence - that is to say, that the law regards as evidence - established the guilt of the accused.  The result is that in a case where the accused has the right to have his guilt or innocence tried by jury, the judgment passed upon him is made to depend not on the finding of the jury, but on the decision of the Court.  The judges are in truth substituted for the jury, the verdict becomes theirs and theirs alone, and is arrived at upon a perusal of the evidence without any opportunity of seeing the demeanour of the witnesses and weighing the evidence with the assistance which this affords.

It is impossible to deny that such a change of the law would be a very serious one, and that the construction which their Lordships are invited to put upon the enactment would gravely affect the much cherished right of trial by jury in a criminal case.”

The appellant is entitled to a fair trial by a properly directed jury and not by an appeal court.  This is not a case where it is appropriate to apply the proviso to s. 668E: KBT v.  R.. 

In my opinion, even if the interpretation adopted as to the meaning and effect of s. 632 (2), (3) is incorrect, the appeal against convictions should be allowed by virtue of the first component of ground (3) or ground (4).  However, as indicated at the outset, a new trial should be ordered on the indictment as framed.  I would accordingly set aside the convictions and order a new trial.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

 C.A. No. 314 of 1997

Brisbane

Before Williams J.

Lee J.

Cullinane J.

[R. v. Robinson]

THE QUEEN

v.

PETER JAMES ROBINSON      Appellant

REASONS FOR JUDGMENT - CULLINANE J.

Judgment delivered

The appellant was convicted of two counts of unlawful anal intercourse with a child under the age of 12 years. He was sentenced to six years imprisonment for each offence.

This is an appeal against conviction and an application for leave to appeal against sentence.

The offences were alleged to have been committed one night in late October or at the beginning of November 1993 at the complainant child's home. The only evidence against the appellant was that of the child who was born on 9 October 1985. He was 8 at the time of offences and 11 at the time of the trial.

The appellant gave evidence and denied the offences. The relevant occasion was common ground. The complainant was involved in the Joey Scouts and the appellant was a Joey Scout leader who was helping the complainant attain badges awarded for particular activities. He visited the house where the complainant lived for this purpose and also it would seem to baby sit for the complainant's mother.

The complainant's father was in hospital at the relevant time and it appears the appellant  took the complainant to a scout swimming carnival at about this time. On the relevant evening the complainant's mother allowed the appellant and the complainant to occupy a garage attached to the house. The complainant had wished to camp out in the yard with the appellant apparently as an activity associated with their joint involvement in the Joey Scouts. However because of weather conditions it was suggested by the complainant's mother that a substitute for this might be to use the garage as a type of indoor camp. Each of them slept on a mattress.

The evidence of the complainant was videotaped and tendered pursuant to s. 93A of the Evidence Act.

The complainant's account was that in the course of the evening he woke to find that the boxer shorts he had been wearing had been pulled down and that the appellant was penetrating him. The appellant then left the room and the complainant pulled his mattress over to the side of the room away from the mattress of the appellant but when the appellant returned he pulled it back into centre of the room close to his own mattress and according to the complainant again penetrated him.

The videotaped interview took place on 30 November 1996. On the previous evening the complainant had told his mother about these events. This was in excess of three years after the evening in question.

The videotaped interview included a reference to the complainant having told his mother and also having told a youth who was a neighbour on another occasion which on the complainant's account was some two years after the relevant evening.

According to the complainant he and the neighbour had been talking generally about subjects such as “girls and stuff” and the neighbour “just talked about poofters and I said this guy he stuck his willy up my bum and stuff. He just said Oh what a poofter like that --- I just told him he was Joey scout leader and his name was platypus and he knew ---.”

It would seem that the complaint to the mother which is also included in the videotaped interview was made following a discussion which he heard between his mother and his grandmother about a friend of the complainant who was in the scouts being sexually assaulted. In addition it would seem that there had been some incident involving the complainant's sister.

The complainant when cross-examined said at pp. 19 and 20:

“Did you actually feel him pulling down your backside - your pants?-- No, because I was asleep at the time.

Is it possible that your pants could have come down while you were asleep?-- Yes.

That is a possibility. You say he put his willy in your backside. It is probably a delicate question, J, but do you know what an anus is, a rectum?-- No.

You don't. Can you describe more fully what you mean by he put his willy in your backside? Was it just on the outside?-- No - I can't quite remember.

You can't quite remember?-- No.

Do you know what a penis is?-- Yes.

A willy, I think you call it a willy. So, you are not too sure whether his willy went directly inside or was just touching you on the backside?-- I can't remember.”

A little later in cross-examination he was asked at p. 25:

“MR TOWNSING: J, what did you feel at the time?-- Something hard and long going up my backside, and I - the only thing that was in the room that could have gone up my backside is probably a pencil and I don't think it was a pencil.

A pencil?-- Yeah, and I don't think it was.

Was it dark in the room that night?-- Yes.

Could you actual see him? Could you see his penis at all?-- No.

I think I have asked this before, Your Honour, but I will ask it again. You are not too sure whether his penis went into your anus?-- Really, really, really I do think it did. I'm quite sure that it did.

Okay. Why do you say that?-- Because there's nothing else that went up my bottom in the room.”

In re-examination he was asked at p. 31:

“MR RYAN: J, I have just got a couple of questions and then you can go, okay. You have still got that transcript in front of you there? Can I get you to turn to page 6 there. If you go down that page, about three-quarters of the way down the page, one of the police officers asked you about what happened after you woke up. He asked you the question and you can't remember what time. ‘What was he doing, exactly?’ ‘Like, getting his willy and putting it inside my bottom. Inside.’ Do you see that there? Okay. Now, what I just want to ask you is when you were saying that it went inside, what part of your bottom were you talking about it going inside?-- All of it.

You know that you use your bottom for going to the toilet, don't you?-- Yes.

the stuff that comes out of your bottom comes out of a hole, doesn't it?-- Yes.

Was it inside that hole?-- I can't remember.”

The appellant appeals against his convictions on a number of grounds. The first ground argued was a ground added by leave.

“The learned trial judge erred in failing to give the jury an appropriate warning in relation to the complainant's evidence.”

This ground has two components.

The first is that the learned trial judge in the exercise of his power to do so under s. 632(3) of the Criminal Code ought to have made appropriate comments to the jury because of particular features of the evidence of the complainant child in the circumstances of this case. Reliance was placed upon the judgment of the High Court in Longman v The Queen (1989) 168 CLR 79. This complaint raises a failure to make specific comment when according to the appellant it was called for.

The second respect in which the absence of comment by the trial judge is the subject of criticism is based upon a judgment of this Court in R v Wilson (C.A. 355/94 Court of Appeal 14 November 1994 unreported). In their joint judgment Fitzgerald P and Davies JA said:

“There is a rule of practice that juries are reminded that the evidence of a child should be scrutinized with particular care. A number of reasons have been given for this: see for example B v The Queen (1992) 175 CLR 599, 616; and, generally, R v Schlafer (1992) 57 SASR 423 and R v CBR [1992] 1 Qd R 637. It is plain that the rule of practice was not followed in this case. Although the question whether a warning is necessary in any case is a matter for the trial judge there being no fixed age below which it should be given (B v The Queen at 617), there does not appear to have been any reason for departing from the rule in the present case and none was given by the learned trial judge.”

This argument then was concerned with a failure to give a general warning.

Apart from a reference to the absence of an early complaint his Honour did not make any comment on the evidence of the complainant. There was no request by counsel who appeared for the appellant at trial that the jury should be given warnings or that comments should be made of the kind contended for here.

Section 632 which came into effect on the 1 July 1997 provides as follows:

“(1) A person may be convicted of an offence on the uncorroborated testimony of 1 witness, unless this Code expressly provides to the contrary.

(2) On the trial of a person for an offence, a judge is not required by any rule of law or practice to warn the jury that it is unsafe to convict the accused on the uncorroborated testimony of 1 witness.

(3) Subsection (1) or (2) does not prevent a judge from making a comment on the evidence given in the trial that it is appropriate to make in the interests of justice, but the judge must not warn or suggest in any way to the jury that the law regards any class of complainants as unreliable witnesses.”

In Longman the Court was concerned with a provision of the Evidence Act (WA) which was in the following terms:

“(1) On the trial of a person for a sexual assault offence or an offence under Chapter XXII of The Criminal Code

(a) the judge is not required by any rule of law or practice to give in relation to any offence of which the person is liable to be convicted on the charge for the offence a warning to the jury to the effect that it is unsafe to convict the person on the uncorroborated evidence of the person upon whom the offence is alleged to have been committed; and

(b) the judge shall not give a warning to the jury of the kind described in paragraph (a) unless satisfied that such a warning is justified in the circumstances.

(2) Nothing in subsection (1) affects the operation of any law that provides that a person cannot be convicted of an offence upon the uncorroborated testimony of one witness or upon the evidence of a child whose evidence is admitted under section 101.”

That provision is limited to the evidence of a complainant in a sexual offence. Subsection 3 of s. 632 is considerably wider in its scope and contains a similar prohibition in respect of any class of complainant.

Because it seems to me the express terms of s. 632(3) require that the same construction be afforded to that section that the High Court afforded to the provision under consideration in Longman’s case it will be helpful to refer in a little detail to some of the reasoning in the joint judgment of Brennan, Dawson and Toohey JJ.

The appellant in that case had been charged with two sexual offences against a girl who, at the time of the first, was six years of age and at the time of the second ten. The trial did not take place until 1988 at which time the complainant was 32. The complaint had first been made some 25 years after the first alleged incident and 21 years after the second.

Their Honours at pp 87 and 88 discussed the purpose and effect of paras (a) and (b) set out above:

“Furthermore what par.(a) abolishes is the requirement to give a warning, not a judge's discretion to comment on the circumstances of the case. No longer may the judge tell the jury that it is dangerous to convict in the circumstances described in par.(a) because the experience of the courts has shown it to be so, but the judge may invite the jury in sexual cases (as is done in other criminal cases) to make their own evaluation of the alleged victim's evidence in the light of common human experience. By force of par.(a) alleged victims of sexual offences no longer form a class of suspect witnesses, but neither do they form a class of especially trustworthy witnesses. Their evidence is subject to comment on credibility in the same way as the evidence of alleged victims in other criminal cases, but to comment only. Perhaps it should be added that the judge's discretion to comment should not be exercised so as to convey to the jury, whether by phrase, gesture or intonation, a caution about the general reliability of the evidence of alleged victims of sexual offences which is tantamount to the warning the requirement for which par.(a) eliminates.

Paragraph (b) is a unique provision. Its first limb is clearly intended to supplement par.(a) by prohibiting the giving of a warning which, the legislature obviously feared, judges might have continued to give despite the abolition of the requirement to give it. Its second limb seems to reflect a misconception of the effect of par.(a). Once par.(a) abolishes the requirement that jurors be warned that the evidence of alleged victims of sexual offences is generally to be treated with suspicion, no particular set of circumstances could justify the judge's directing jurors that all such evidence is treated with suspicion. If par.(a) abrogates the rule which reflects curial experience of the need of caution in evaluating the evidence of alleged victims of sexual offences because of the risk of fabrication, then there is no particular set of circumstances which can justify the trial judge in giving the jury a warning based upon general experience. It would make no sense to treat the warning which par.(b) permits - a warning based upon particular circumstances - as being restricted to the same kind of warning as that to which par.(a) refers - a warning based upon general experience.

That is to say, unlike par.(a), par.(b) must relate, not so much to a warning of the general unsafety of convicting on the uncorroborated evidence of alleged victims of sexual offences, as to a warning which a trial judge might consider giving on account of the particular circumstances of the case. That is because par.(b) directs the judge to find his justification for giving ‘such a warning ... in the circumstances’. If the warning which may be given pursuant to par.(b) cannot be the warning referred to in par.(a) the phrase in par.(b) ‘a warning ... of the kind described in paragraph (a)’ must be taken to mean any warning that it is unsafe in the circumstances of the particular case to convict on the uncorroborated evidence of the particular alleged victim.

Construing par.(b) in that way, it prohibits in any case of a sexual offence the giving of any warning that it is unsafe to convict the accused on the uncorroborated evidence of the alleged victim unless the judge is satisfied that the particular warning is justified in the circumstances. The judge cannot be so satisfied if there is nothing in the case to require a warning other than the circumstance that proof of the offence rests on the uncorroborated evidence of the alleged victim. So construed, par.(b) first shuts the door on all warnings that it is unsafe to convict an accused on the uncorroborated evidence of an alleged victim, and then reopens it to such warnings where the particular circumstances of the case provide a justification.”

When speaking of the effect of a failure to give a warning arising from the particular circumstances of the case their Honours said at pp. 89 and 90:

“There is authority for the view that a judge's omission to give a warning of the kind to which para. (a) refers cannot found a successful appeal: see per Fullagar J. in Reg. v. B. [1987] V.R. at p. 279. In principle, that must be so for par.(a) abolishes any requirement to give that kind of warning. But that notion has no relevance to a judge's refusal to give a warning of a kind required by a rule of law or practice other than the rule to which par.(a) refers. If a judge refuses to give a warning required by a rule of law or practice other than the rule referred to in par.(a), that is, a warning required by the general law, the refusal is reviewable on appeal and the conviction is liable to be quashed as unsafe and unsatisfactory if it be held that the refusal to warn left a perceptible risk of miscarriage of justice. In Western Australia, the statutory framework within which an application for a warning under the general law must be made is par.(b). The opening words of par.(b) would prohibit the giving of any warning and thus the latter words of par.(b) must be invoked to open the way for the warning to be given. The complaint which an appellant might make when a trial judge refuses to give a warning under the general law is that the judge erred in failing to be satisfied that the circumstances justified a warning. Appealable error consists in a failure to be satisfied that the warning should be given when a warning is required by the general law apart from the requirement abolished by par.(a). That was the complaint raised before the Court of Criminal Appeal in this case.”

Their Honours went on to consider the application of those principles to the circumstances of that case at pp. 90 and 91:

“The Court of Criminal Appeal limited their inquiry unduly under a misconception of the scope of par.(b). The question which arose, and which arose under the latter part of par.(b), was whether a warning was required that it was unsafe to convict on the uncorroborated evidence of the complainant, not by reason of her being an alleged victim of a sexual offence, but by reason of the whole of the circumstances of the case. There were several significant circumstances in the case: the delay in prosecution, the nature of the allegations, the age of the complainant at the time of the events alleged in the two counts in the indictment, the alleged awakening of a sleeping child by indecent acts and the absence of complaint either to the applicant or to the complainant's mother. It would not have been surprising if these circumstances had elicited some comment from the trial judge, for it would have been proper to remind the jury of considerations relevant to the evaluation of the evidence. Of course, any comment must be fairly balanced. For example, any comment on the complainant's failure to complain should include (as indeed s. 36BD requires) that there may be ‘good reasons why a victim of an offence such as that alleged may hesitate in making or may refrain from making a complaint of that offence’. But there is one factor which may not have been apparent to the jury and which therefore required not merely a comment but a warning be given to them: see Reg. v. Spencer [1987] A.C., at p. 141. That factor was the applicant's loss of those means of testing the complainant's allegations which would have been open to him had there been no delay in prosecution. Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant's story or confirming the applicant's denial. After more than twenty years that opportunity was gone and the applicant's recollection of them could not be adequately tested. The fairness of the trial had necessarily been impaired by the long delay (see Jago v. District Court (N.S.W) Ante, pp. 31 32, 42 44, 56 57, 71 72. and it was imperative that a warning be given to the jury. The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing 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. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice. The jury were told simply to consider the relative credibility of the complainant and the appellant without either a warning or a mention of the factors relevant to the evaluation of the evidence. That was not sufficient.”

It was the appellant’s case that consistent with these principles the trial judge was obliged because of certain particular features of the evidence of the complainant in this case to exercise his power under s. 632(3) to draw these matters to the jury's attention and make appropriate comment about them and that his failure to do so has resulted in a perceptible risk that a miscarriage of justice has occurred with the consequence that the conviction should be quashed as unsafe and unsatisfactory and a new trial ordered. I will return to this shortly.

All States and the Commonwealth and the Northern Territory have legislation with which s. 632 might be compared. These are summarised in Cross on Evidence Aust. Ed at 15135. In some cases the relevant provision abrogates a requirement or rule of practice that a warning should be given whilst others go beyond this and prohibit any such warnings. Section 632(3), unlike most provisions elsewhere in Australia, prohibits any warning to a jury about the dangers of acting on the evidence of any complainant because of any class to which he/she belongs or any comment which suggests the potential unreliability of any witness on this account. The sub-section is not limited to any category of offence or complainant. However it permits a judge to make a comment to a jury appropriate to the particular evidence of any witness, including a complainant in the particular circumstances of any case. As Longman illustrates a judge will have an obligation to exercise this discretion where the circumstances are such as to call for appropriate comment to the jury.

In my view the general warning which the Court of Appeal said in Wilson’s case should be given in respect of the evidence of a child (and which reflects a long standing rule of practice) is now prohibited by s. 632(3) where the child is a complainant. It would be an anomalous situation if such a warning was prohibited by statute in the case of a child complainant yet required where a child is a witness but not a complainant. 

It is worth noting that in South Australia the majority of the Full Court in R v Pahiya (1988) 49 SASR 272 referred to such an anomaly when considering the relevant provision of the Evidence Act (SA). The sub-section provides:

“In proceedings in which a person is charged with a sexual offence, the judge is not required by any rule of law or practice to warn the jury that it is unsafe to convict the accused on the uncorroborated evidence of the alleged victim of the offence.”

The majority held that this provision did not abolish the rule requiring the warning to the jury against acting on the uncorroborated evidence of a child, whether the case involves a sexual offence or not. Each of the judges who formed the majority referred to the entrenched nature of the rule and the need for express language to bring about its abrogation. Cox J at p. 216 thought that to hold otherwise would bring about the “strange distinction” of a warning being required where there is a child complainant in a non-sexual case but not in a sexual case. At p. 216 he said:

“Indeed, it would produce the paradoxical situation of the judge being required to give a corroboration warning in the case of any supporting child witnesses in a sexual case but not in the case of the alleged child victim himself.”

On the same subject Johnston J said at p. 223:

“It seems somewhat unlikely that the legislature would abolish the rule in respect of young children on such a selective basis, particularly when it is not at all uncommon for the Crown to rely on the evidence of another child to support its case in respect of a sexual offence against a young child. It would be somewhat odd if the judge is required by rule of practice to warn the jury against convicting the accused on the uncorroborated testimony of the non-victim witness but not in respect of the uncorroborated testimony of the alleged victim witness.”

Each went on to hold that where the complainant in a sexual offence was a child, a judge is not obliged to give a jury a warning about the evidence of a child complainant because he/she is the alleged victim but remains obliged to give the usual warning about the evidence of a child.

The terms of s. 632(3) preclude such an approach in my view. To the plain words of the sub-section might be added by way of confirmation (see s. 14B of the Acts Interpretation Act) the following passage in the second-reading speech of the Attorney-General (Hansard Queensland Legislative Assembly, 4 December 1996 at p. 4871):

“Clause 113 will replace section 632 ‘accomplices’ with a new section titled ‘corroboration’. This new provision and the repeal of parts of many other sections will do away with the present requirement that a trial judge must warn a jury of the dangers of convicting on the uncorroborated evidence of one witness. Judges will no longer be allowed to tell juries that the law regards any particular class of complainant (such as women or children or complainants in sex cases) as unreliable witnesses. The requirement of corroboration will be retained for offences such as sedition, perjury and like offences. Nothing will affect the ability of a trial judge to otherwise comment about the evidence as is appropriate in the interests of justice in any given case.”

In R v F.A.R. (1996) 2 Qd.R.49 Davies JA said at p. 61:-

“The second concerns his Honour's reference to the existing rule of practice that a trial judge should tell the jury that the evidence of a child should be scrutinized with particular care: (R. v Wilson C.A. 355/1994; Court of Appeal, 14 November 1994, unreported). That rule of practice rests on a dubious presumption that a child's evidence is inherently less reliable than that of an adult. In my view, it requires reconsideration. But for reasons which this Court gave in Wilson such a warning appears, for the present, to be mandatory.”

The need for the reconsideration of which Davies JA there spoke may have been crystallized by the coming into operation of s. 632 and the apparent resultant dichotomy in the treatment of the evidence of a complainant child who is a witness on the one hand and a non-complainant child who is a witness on the other.

Counsel for the appellant in support of the ground that his Honour failed to make comments specific to the circumstances of the present case when those circumstances required the exercise of the power conferred by s. 632(3) placed some reliance upon features in Longman’s case which were said to be similar to those in the present and particularly those referred to in the passages set out above at pp. 90 and 91 of the report.

As will be seen their Honours thought that those features might have made it unsurprising for the trial judge to have made some comment upon them but the primary feature of the evidence in that case which led the court to conclude that some comment was necessary concerned matters which might not have been apparent to a jury. These flowed from the very long delay between the alleged offences and the making of the complaint and thus the loss of the opportunity to explore generally the alleged circumstances of the offence and to possibly obtain evidence throwing doubt upon the allegations or to support the denial of them. 

Some reliance was placed here upon the delay in complaining to the complainant’s mother and the possible loss of opportunity of carrying out a medical examination of the complainant child which might have been possible had a complaint been made at this time. 

The only evidence on this subject came from Dr Gavranrich, a paediatrician who was called at p. 36.

“Doctor, would you expect to find any evidence of trauma to the anal region which may result from anal penetration upon examination in a child of eight years or nine years or ten years of age if that penetration occurred roughly two years prior to your examination?-- Most unlikely, I would say.”             

The matter was not further explored. 

It was also argued that the circumstances in which the complainant came to speak about these matters raised important questions as to the genuineness of his account of what occurred and that the passages which have been set out earlier which it is suggested cast doubt upon whether any penetration occurred required special mention.

The circumstances of this case are in my view far removed from those of Longman’s case. Here the offences are alleged to have been committed on one occasion on which the appellant and the complainant spent a night in the garage attached to the complainant’s parent’s house. It is common ground that they had spent the night in that garage on that occasion and it would seem clear only on that occasion.

The evidence fell within a narrow compass and the trial took place over a very short period. The jury could hardly have been under any misunderstanding as to what the issues were.  No doubt it would not have been inappropriate for his Honour to make comment about the matters that I have just referred to but it is difficult to accept that a jury would not have been aware as to the significance of these matters as they emerged in the course of the evidence.

I am not persuaded that the absence of any specific reference to these matters gives rise to an appreciable risk of a miscarriage of justice.

The next ground of appeal concerned the evidence of Dr Gavranrich. He examined the complainant in October and November 1995. He was provided with a history (to which the complainant’s mother deposed) of the complainant soiling his clothes. He was asked at p. 36:

“Doctor, is there any correlation at all from your experience and also in the literature of which you are aware between soiling problems in children and traumatic events which occur in those children's lives?-- There is.

What is the relationship?-- It is often the causal effect. If the child has had psychological trauma, physical trauma, they may subsequently regress in areas of their development including their toileting habits and they may go on and develop soiling as a direct result of these events.”

This evidence was not the subject of any cross-examination. It was contended that the evidence was inadmissible and that it was prejudicial to the appellant. Also some challenge was made to Dr Gavranrich’s ability to express an opinion about this matter. 

Dr Gavranrich is as I have said a paediatrician and there does not seem to me to be any reason why this would not be a matter on which he was qualified to speak.

As to the objection to this evidence generally, whilst it was not perhaps of any substantial probative force it was nonetheless in my view admissible as being behaviour consistent with traumatic events of the kind alleged by the complainant and thus tending to some extent to be confirmatory of his evidence. No doubt it might have been consistent with other traumatic events or as having arisen from other causes. These were matters however to explored in evidence and to be evaluated by the jury. Dr Gavranrich was not cross-examined. There is in my view no substance in this ground of appeal.

As has already been mentioned, the video-taped interview included some reference to complaints by the complainant which could not be regarded in any sense as being recent. No objection was taken to the inclusion in the video-taped interview of these references. It is however contended before this Court that the evidence was inadmissible and should not have been led.

The record of the complainant’s cross-examination shows that some emphasis was placed upon the circumstances in which these complaints came to light no doubt with a view to casting doubt upon the veracity of the complainant and planting in the jury’s mind a doubt as to whether what he was relating were events which had happened on whether they might have been suggested by the context in which the complaints came to be made. It is impossible to avoid the conclusion that no objection was taken to this evidence for tactical reasons. The possibility that these matters might have been able to be turned to the advantage of the appellant is obvious and the record suggests that this was sought to be done. It is not now open to the appellant to complain about the inclusion of these matters in the video-taped interview placed before the jury.

The next ground of appeal against the conviction was based upon the alleged insufficiency of the evidence to sustain the conviction for sodomy. More particularly it is contended that a jury could not have been satisfied beyond a reasonable doubt that penetration had been effected.  The appellant was charged with alternative offences which the jury might have convicted him of in the event that a doubt was entertained as to whether penetration was in fact effected but the complainant’s evidence generally was accepted.

I have already set out the evidence on this subject.

The test to be applied is set out in the joint judgment of Mason CJ, Deane, Dawson, Toohey JJ in M v The Queen (1994) 181 CLR 487 at 493:

“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. See Whitehorn v The Queen (1983), 152 CLR, at p. 686; Chamberlain v The Queen [No. 2] (1984), 153 CLR at p. 532; Knight v The Queen (1992), 175 CLR 495, at pp. 504-505, 511. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations. Chamberlain v The Queen [No. 2] (1984), 153 CLR, at p. 621.”

As will be apparent there were parts of the evidence of the complainant in which he said that he could not be sure that there had been penetration. There are other parts of the evidence  in which he unequivocally states that there had been. The record of his cross-examination suggests  possible confusion at times in the course of giving his evidence. The jury heard and saw the complainant cross-examined and were in a position to make an assessment of these matters.

The consideration of his evidence as a whole does not in my view justify the conclusion that a jury could not have been satisfied beyond reasonable doubt that penetration occurred. 

Finally the applicant sought leave to add an additional ground based upon the judgment of the High Court in Jones v The Queen (1997) 71 ALJR 538.

In this respect the appellant complains that his Honour ought to have informed the jury that any complaint made by the complainant could not be treated as confirmatory proof of what was alleged against the appellant. That was a case in which there was evidence led of complaints which met the test of recent complaints. There was evidence that the complainant had made such complaints  to a number of persons and some of those were called to give evidence.

That case it seems to me is concerned with ensuring that a jury is properly instructed as to the limits to the use to which evidence of a recent complaint can be put. In this case there was no recent complaint. His Honour told the jury at p. 52:

“Mr Townsing in his address touched on this question: the absence of an early complaint in this case may show inconsistency of conduct on the part of the complainant. It is clearly relevant to his credibility in that respect. There may be many reasons why a complaint is not made straight away, and Mr Ryan in his address to you went through a number of reasons why he says this 8 year old boy would not have complained straight away to his parents. These are matters for you to consider.”

The circumstances then are quite different from those under consideration in Jones and in the usual case where there is recent complaint. I am not persuaded that his Honour erred in failing to make any reference of the kind contended for in this case.

So far as sentence is concerned, the offences occurred on a single occasion. The serious feature of them is the breach of trust involved. The applicant was 19 at the time of the offences and has no previous convictions. The serious nature of the offences needs no dwelling upon.

We were referred to some judgments of this Court. At least by reference to a comparison with the matter of Hellemons (C.A. 97 of 1997; 1.7.97; unreported) the sentence imposed in this case appears somewhat on the high side. However in other somewhat earlier cases a longer sentence was imposed although in one a recommendation for release after some two years was made.  

Whilst the sentences imposed in the case can be regarded as towards the top of the range I am not persuaded that they are manifestly excessive and I would refuse leave to appeal against sentence.