Wilkshire v R [1961] HCA 60; (1961) 106 CLR 200 (29 September 1961)

HIGH COURT OF AUSTRALIA

WILKSHIRE v. THE QUEEN [1961] HCA 60; (1961) 106 CLR 200

High Court - Evidence

High Court of Australia
Dixon C.J.(1), McTiernan(1) and Windeyer(1) JJ.

CATCHWORDS

High Court - Application for leave to appeal - Charge of assault with intent to have carnal knowledge - Conviction of attempted carnal knowledge - Offence proved as charged - Criminal Law Consolidation Act of 1876 (S.A.) (No. 38 of 1876), s. 64.

Evidence - Admissibility - Unsworn Testimony - Child of tender years - Failure to comply with statutory requirement as to explanation to child - Evidence Ordinance 1939-1961 (N.T.) (No. 24 of 1939 - No. 1 of 1961), s. 9B.

HEARING

Adelaide, 1961, September 29. 29:9:1961
APPLICATION for leave to appeal from the Supreme Court of the Northern Territory.

DECISION

September 29.
DIXON C.J. delivered the judgment of the COURT:-
This is an application for leave to appeal from a conviction by the Supreme more particularity. (at p201)

2. Under the law of the Northern Territory prosecution on indictment is by information in the name of the Attorney-General and the trial is without a jury. The actual charge contained in the information was that the prisoner, the present applicant, on a girl under the age of 12, namely, four years and eleven months, unlawfully did make an assault with intent that he should unlawfully know and carnally abuse the girl. That information was laid under a provision which was enacted as s. 64 of the Criminal Law Consolidation Act of 1876 of the State of South Australia and is incorporated in the criminal law of the Northern Territory. (at p202)

3. It provides for two offences. One is an attempt carnally to know a girl under the age of twelve, and the other is an assault upon her with intent carnally to know her. Perhaps it would be as well if I read the material part of the section - "Whosoever shall be convicted of any attempt, or assault with intent, unlawfully and carnally to know and abuse a girl under the age of twelve years, shall be guilty of a misdemeanour and, being convicted thereof, shall be liable to be imprisoned for any term not exceeding seven years". The side-note to the section says "Attempting to carnally know a girl under twelve years". On the back of the information is endorsed a statement that the indictment was "attempting to carnally know a girl under the age of twelve years". (at p202)

4. The learned judge, after hearing a great deal of evidence, in a very carefully composed judgment convicted the prisoner. But unfortunately he expressed the conviction both in the opening words of his judgment and the concluding words as a conviction of the offence of attempting to carnally know the girl. That creates a difficulty of which the prisoner has fully availed himself, and in a very careful and clear argument Mr. Elliott on his behalf has urged that that conviction was of an offence with which he was not charged and so cannot stand. (at p202)

5. Mr. Elliott proceeded to deal with the merits of the case and maintained that upon the facts of the case and upon the nature of the proofs too much doubt of the identity of the prisoner existed to make it proper to sustain a conviction. (at p202)

6. In the course of that argument it appeared that there was more to be said for the view that the facts constituted the offence charged than an actual attempt. I do not go into the particulars of the rather unpleasant facts. It is sufficient to say that in drawing the information the wiser course was adopted in charging an assault with intent rather than an attempt. (at p202)

7. Having considered the argument upon the effect and sufficiency of the evidence we think that subject to certain specific objections which I am about to mention we ought not to interfere with the conclusions of the learned judge. By that I mean his substantial conclusions. We think that he took great care in considering the case and that his inferences and conclusions were such that no appellate court ought to interfere with them. (at p202)

8. However, the question remains whether he dealt rightly with the admissibility of the evidence of the small child and that is the first of the specific objections. She was not sworn and gave evidence under the provisions of the Evidence Ordinance 1939-1961 of the Northern Territory. Under those provisions a child of tender years may give evidence not on oath subject to certain conditions. The provision says that in every prosecution for any offence where the testimony of a child under the age of ten years may be required the Court may receive the testimony of any such child without administering any form of oath and without any formality except that the Court shall, before receiving the testimony, cause it to be explained to the child that he is required to tell truthfully what he knows about the matter to which his testimony relates. The provision goes on to say that the testimony taken shall be available for all purposes whatsoever. There is a further provision that the evidence shall not be made the basis of a conviction without corroboration. (at p203)

9. The learned judge took some trouble in ascertaining the capacity of the child to give testimony. She was asked questions tending to disclose her understanding and the degree of her intelligence; and discussion took place. But when it is all read it is unfortunately clear that his Honour did not do precisely what the section says, namely cause it to be explained to the child that she was required to tell truthfully what she knew. There was no instruction of that character distinctly given to the child. (at p203)

10. It appears perfectly apparent to us, on reading the girl's testimony in the transcript, that she was speaking in a natural way of what she knew about the matter. There is some evidence obtained in her cross-examination that she had gone over her story, perhaps many times, and it is complained on behalf of the prisoner that for all that appears she may have been stating what had been rehearsed rather than presenting a perfectly natural picture of what she remembered to have occurred. We think, on the whole, that was a matter for the learned judge to consider and certainly the printed page does not bear out such a view. It was not one which his Honour adopted. (at p203)

11. But there remains the fact that the section was not strictly complied with, that in strictness what was said to her did not constitute an explanation that she was required to tell truthfully what she knew about the matter. (at p203)

12. After consideration, we have reached the conclusion that the failure to comply with that particular direction in the section is not a ground on which we should in this particular case upset the conviction and order a new trial. We think it is a matter which was not likely to lead to any substantial miscarriage of justice and, therefore, that it is not a matter on which we should interfere by granting leave to appeal. (at p204)

13. I go back to the fact that the actual judgment pronounced was not in the terms of the information. We think that a conviction in terms of the information must have been sustained and that the finding of intent was implied in the conviction which his Honour actually pronounced. Indeed, it does not appear that any precise point was made at the trial of the difference between the two offences and the possible significance which in the circumstances as proved the difference might possess. (at p204)

14. We have had some difficulty in deciding what in this state of affairs we ought to do. We are all of opinion that we ought not to allow a conviction to stand which is not in accordance with the indictment, but we do not think that this is a case in which we should order a new trial. A remedy does lie in our hands, on an appeal. It consists in substituting the correct order for that which is, in fact, made. But what is before us is not an actual appeal but an application for leave. In the circumstances we think that what we ought to do is to grant leave to appeal, treat the appeal as heard instanter, quash the conviction, and substitute a conviction on the information in the terms of the information, and that order we shall make. Subject to that order, the appeal will be dismissed. (at p204)

15. The order will therefore be leave to appeal granted, appeal heard instanter, conviction as pronounced quashed, substitute a conviction in terms of the information, otherwise dismiss the appeal. (at p204)

ORDER

Leave to appeal granted, appeal heard instanter, conviction as pronounced quashed, substitute a conviction in terms of the information, otherwise dismiss the appeal.