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Judgment handed down in Roger Ward (a pseudonym) v The Queen

03 March 2017

The Court of Appeal today dismissed appeals against conviction and sentence for sex offences against a child, who was aged between six and seven at the time of the offending. 

The appellant (RW) was convicted of three charges of sexual penetration of a child under 16, and three charges of indecent act with a child under 16. He was sentenced to nine years’ imprisonment, with a non-parole period of seven years.

The appeal against conviction rested on what were said to be inconsistencies between the evidence which the child (J) gave in her recorded interview and her answers to questions during cross-examination. RW contended that these inconsistencies had so damaged her credibility and reliability that none of the convictions could stand.

In rejecting this argument, President Maxwell and Justice Redlich (with whom Justice Whelan agreed) drew attention to the particular difficulties associated with a child witness giving evidence and being cross-examined. They said:

Resolution of the appeal thus required an evaluation of the importance to be attached to J’s answers, in the light of the account which she had given [in the interview], and of whether they gave rise to a reasonable doubt which the jury should have entertained. That required consideration of the entirety of J’s evidence, her age, the form and content of the relevant questions, their context and other answers given relating to the same issue. 

In closing address in the present trial, the prosecutor invited the jury to employ [their] common experience in assessing J’s answers. Having reviewed the whole of J’s evidence ourselves, we are satisfied that it was well open to the jury, drawing upon their own experience, to conclude that J was not retracting or resiling from her evidence about what RW had done to her. None of J’s answers obliged the jury to entertain a reasonable doubt.

In part 2 of their reasons, President Maxwell and Justice Redlich discuss the special challenges facing trial judges and defence counsel when a child is giving evidence in such a case. Their Honours said:

[T]he cross-examination of a child complainant in a case such as this is a task of considerable complexity, requiring great care and sensitivity. Where the purpose of the cross-examination is to undermine the child’s credibility and/or to cast doubt on the child’s account of the accused’s conduct, defence counsel face two related forensic challenges. Both are governed largely by the dictates of fairness to a child witness.  

The first challenge is to formulate questions which are age-appropriate. This is necessary as a matter of basic fairness to the child witness, so that he or she can understand the questions and respond. But it is equally important in the interests of the accused. Unless the questions are age-appropriate, answers which appear to create inconsistencies in the evidence are unlikely to serve the desired purpose of creating a doubt in the minds of the jury or — on appeal — of persuading this Court that the jury ‘must have had a doubt’ about the evidence. 

The second challenge is that, so far as practicable in the circumstances, the child witness must be given the opportunity to say whether something they have said, and which the accused disputes, is true.  

RW contended that the sentence imposed on him was manifestly excessive. The Court concluded, having regard to the seriousness of the offending, the age of the victim and the serious breach of trust involved, that the sentences were within range.

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