CHAN WAI v. R.

1993,No.688
(Criminal)

HEADNOTE

Rape - main prosecution witness 'counselled' by police psychologist when giving evidence amounting to a material irregularity.

No corroboration of complainant and no complaint for some 4 years. Medical evidence disclosing complainant a virgin.

Duty of Judge to ensure Defendant has a fair trial and Jury is not influenced by prejudice.

Prosecuting counsel also under a duty not to utilize emotional advocacy which comes close to an appeal to the Jury to abandon their calm, rational approach.

Sentence - wrong for Judge to add 3 years to sentence as the complainant had to give evidence.

A Defendant has a right to plead not guilty and although not entitled to any discount as on a plea, is not to be punished for exercising that right.

IN THE COURT OF APPEAL

1993, No. 688
(Criminal)

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REASONS FOR JUDGMENT

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Sears J. (giving the Judgment of the Court):

1. On August 4th we gave the Applicant leave to appeal against his convictions, quashed them and said we would put our reasons into writing.

2. The Applicant was tried before His Honour Judge Wong, sitting as a Deputy High Court Judge, and a Jury on an indictment containing five counts. There was one count of rape and two of indecent assault of a girl, and two counts of indecent assault of her elder sister.

3. The rape charge was that the Applicant, the 'step-father' of the two girls, raped her then aged 8 in September 1988. The girl only made a complaint several years later and there was no corroboration of her allegation.

4. It was necessary therefore for her evidence to be closely scrutinized. After about 10 minutes of examination-in-chief, she by then aged 13, became upset and the Judge adjourned for 55 minutes. When the Court resumed, she continued for a short while and then indicated, after pausing, that she would be able to give evidence later on. The following exchange then occurred:

"COURT: (To Witness) Do you want some psychological sort of -
how should I say it - do you want to get some advice from psychologists or you want some psychological sort of advice before you continue your evidence?

(Witness shakes head.)

COURT: (To Witness) Do you feel that you are able to continue
with your evidence in the afternoon?

A. Yes.

COURT: (To members of the jury) Members of the jury, as you can
see it is a bit difficult for the young child really to give evidence she says that she maybe able to give evidence in the afternoon, so I hope that you can have greater patience with this witness.

So I will adjourn now until 2.30.

Meanwhile I will discuss with counsel as to whether it is desirable to have some psychological help from experts meanwhile."

From where the Judge obtained this idea of "psychological counselling" in the middle of a witness's evidence, we do not know. Unfortunately, Miss Ma, prosecuting counsel, making no demur to the taking of this unusual and improper step, actively encouraged him by suggesting that there was a senior clinical psychologist at Police Headquarters. Mr. McGuinniety said he had "a degree of unease about all this". He should have objected strongly, but he did ask that the witness not be approached by the Police - Miss Ma replied that she had to be "protected by the Police". For an hour in the afternoon, the witness was "counselled" by a psychologist from the Police Force, and the Judge later explained this to the Jury.

5. This was a most serious and material irregularity. Mr. Schapel, now appearing for the Crown, does not seek to suggest otherwise. Witnesses, particularly those who are young, sometimes become embarrassed, or emotionally upset when giving evidence. Judges should permit them to become composed and if necessary comforted by a friend or relative. While they are giving evidence there should be no contact, in the form of counselling or otherwise between them and the police or those employed by the police.

6. What happened here was not only irregular, but was almost certain to cause prejudice in the Jury's mind against the Defendant. Indeed Miss Ma, in her closing address, said:

"Last Monday, we experienced in this court room part of the trauma and agony the girl went through in trying to bring herself to give evidence. Throughout the whole day, that brave little girl was unable to testify to the atrocities the defendant had inflicted upon her. It was not until she had spent the whole afternoon being counselled by clinical psychologists that she was able to give evidence the following day."

7. This type of emotional advocacy was quite out of place. It came very close to an appeal to the jury to abandon the calm, rational approach which they are required to bring to their deliberations.

8. The girl, after this "counselling" gave evidence that the Defendant raped her when she was 9 or 10, although the indictment alleged it occurred in 1988 when she was 8. She described how the Defendant then naked, laid on top of her and moved up and down for a while. He then inserted his finger into her vagina. After this he inserted his penis into her vagina and moved forward and backward "for a while". This exchange then occurred:

"Q. So you said you felt something pressing against you and you felt that he put his penis into your vagina - sorry, sexual organ?

A. Yes.

Q. What did he continue to do after his sexual organ was in your vagina?

A. He moved forward and backward.

Q. What did you feel about his movements?

A. Painful."

The girl said that the Defendant had on other occasions, which she could not specify, put his penis into her.

9. A medical examination was carried out on her when she was nearly 13, that is some 5 years after the rape alleged in the indictment, or 3 to 4 years after the date of rape given in evidence. The forensic pathologist noted that her hymen was intact and said:

" The fact that the hymen was intact and the vaginal opening could only admit a little finger, indicates that penetration of an object of the size of a penis into the vagina could not have occurred."

10. An additional report, nearly a year after the original report and just before the trial said:

" The fact that the hymen was intact and the vaginal opening could only admit a little finger, indicates that penetration of an object of the size of a penis into the vagina could not have occurred fully, however, partial penetration of the penis into the vagina could have occurred."

11. The Defendant gave evidence and denied that any indecent acts had been committed on the two girls. The girl's mother gave evidence that in the 3-4 years after the alleged rape, no complaint was made to her.

12. The prosecution evidence led on the rape was:

(i) It had occurred either when the complainant was 8, 9 or 10.

(ii) No complaint was made to her mother with whom she lived, or to any school teacher or friend for either 3 or 4 years.

(iii) There was no corroboration.

(iv) The medical evidence indicated that no penetration other than very slight could have occurred.

(v) Her evidence was that a penis had been inserted into her vagina on several occasions and that it had caused her pain.

13. It is most surprising that a submission of No Case was not made. The evidence taken at its highest was of a tenuous character, it was inconsistent, it was only obtained after "psychological counselling" and it would have been dangerous to act on the uncorroborated evidence of the girl. There was, without doubt, considerable prejudice, but little safe evidence.

14. A Judge's duty is to ensure that a Defendant has a fair trial and that it is only legally admissible evidence which is placed either before him or a Jury. In our judgment, if the Judge had recognised the unusual nature of the complainant's evidence when compared with the medical evidence, and the absence of complaint and corroboration, he should have stopped the case himself.

15. If, however, he may have been of the view that a Jury, properly directed, could have convicted, then it was incumbent on him to ensure that his summing-up dealt in a fair and balanced manner with all the difficult aspects of the prosecution case. This did not happen.

16. The Judge warned the Jury of the danger of acting on the uncorroborated evidence of the complainants, but nowhere dealt with the inconsistencies of the prosecution evidence.

17. The totality of his summing-up on the rape charge was:

" As to the second charge, she said that when she was about 8 to 10 years old, the defendant went to her bedroom, took her to his bedroom, took off her clothes; the defendant also took off his clothes. He laid on top of her and moved up and down. He led her hand to touch his penis. Later she felt pain in her private part. She was told by the defendant that it would be all right. He also said that, "Well, mummy did that too." And then she felt something wet, and the defendant used tissue to clean himself and wipe the bed sheet. That is briefly the evidence in respect of the second charge."

18. This was, in our judgment, an inadequate way of dealing with the evidence. The Judge did not tell the Jury that the medical evidence disclosed that the girl's account of full sexual penetration was probably untrue, or at its lowest level rendered her evidence unreliable. Nor were they told that the absence of complaint for many years when there was ample opportunity so to do was an important factor for them to consider as it affected the credibility of the girl.

19. The only other comment made by the Judge on this charge, towards the end of his summing-up, was "Is it likely that she can fabricate evidence in such detail?"

20. There was not only the rape count, but also several counts of indecent assault, one against the elder sister. It was necessary for the Judge to give a clear and careful direction as to the evidence on each count being considered by the Jury separately. What he said was:

"In your deliberation you have to consider each charge separately and return a verdict in respect of each charge."

21. What the Jury made of that, we do not know, but it was in the circumstances of this trial, wholly inadequate. They may have thought that the evidence on the indecency counts could have assisted them on the rape count.

22. Mr. Schapel accepts that not only was there a material irregularity when the girl was "counselled", but also that the summing-up was seriously flawed. He does not oppose this application. He further accepts that the conduct of the case was such as to deprive this Applicant of a fair trial.

23. In our judgment, this type of case, particularly when serious, uncorroborated allegations are made by a young person who for many years has kept silent, requires careful and impartial consideration by the trial judge. His most important function is to keep the balance between prosecution and defence and to ensure that the Jury considers the evidence in an unemotional and unprejudiced manner with their minds concentrating on the issues which they must decide.

24. Regrettably, this summing-up fell far short of the standard required for such a serious charge - it was unbalanced, inadequate and misleading.

25. We need only add that when the Judge sentenced the Defendant, he took 5 years as a starting point, but added 2 years for the Defendant standing in 'loco parentis'. He then said that as "the little girl had to give evidence in public and that has caused her extreme distress", an additional 3 years would be imposed making a total of 10 years.

26. This Court has said on a number of occasions (see for example R. v. Tam Chi Yim (Cr. Ap. 319 of 1993) that a Defendant, although disentitled to the discount he would receive on a plea of guilty, must not obtain an additional sentence for pleading not guilty.

27. It is an elementary principle that a person has a right to plead not guilty, and is not to be punished for exercising that right.

28. It was wrong of the Judge to increase the sentence by 3 years.

29. The convictions are quashed and no order for re-trial is made.