AJE v The State of Western Australia
[2012] WASCA 185
•26 SEPTEMBER 2012
AJE -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 185
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASCA 185 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:150/2011 | 8 JUNE 2012 | |
| Coram: | PULLIN JA MAZZA JA BEECH J | 26/09/12 | |
| 22 | Judgment Part: | 1 of 1 | |
| Result: | Appeal upheld Conviction quashed and retrial ordered | ||
| A | |||
| PDF Version |
| Parties: | AJE THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law and procedure Statement by prosecutor that accused did not give evidence Whether prosecutor infringed s 8(1)(c) of the Evidence Act Turns on own facts Criminal law Uncharged acts as evidence of sexual interest Whether jury had to be directed that sexual interest had to be proved beyond reasonable doubt |
Legislation: | Evidence Act 1906 (WA), s 8(1)(c), s 31A |
Case References: | Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50 Bataillard v The King (1907) 4 CLR 1282 BBH v The Queen [2012] HCA 9; (2012) 286 ALR 89 BSD v The State of Western Australia [No 2] [2009] WASCA 152 Buiks v The State of Western Australia [2008] WASCA 194 Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413 Di Lena v The State of Western Australia [2006] WASCA 162; (2006) 165 A Crim R 482 Donaldson v The State of Western Australia [2005] WASCA 195; (2005) 31 WAR 122 Douglass v The Queen [2012] HCA 34 Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517 HML v The Queen [2008] HCA 16; (2008) 235 CLR 334 KMB v The State of Western Australia [2010] WASCA 212 Neubecker v The Queen [2012] VSCA 58 Noto v The State of Western Australia [2006] WASCA 278 Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461 PIM v The State of Western Australia [2009] WASCA 131; (2009) 40 WAR 489 Preston v The State of Western Australia [2012] WASCA 64 R v Hillier [2007] HCA 13; (2007) 228 CLR 618 R v McKenzie-McHarg [2008] VSCA 206; (2008) 189 A Crim R 291 R v S, G [2011] SASFC 48; (2011) 109 SASR 491 R v Sadler [2008] VSCA 198; (2008) 20 VR 69 Siebel v The Queen (1992) 57 SASR 558 Stuart v The Queen (1959) 101 CLR 1 Stubley v The State of Western Australia [2010] WASCA 36 The State of Western Australia v Pollock [2009] WASCA 96 VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : AJE -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 185 CORAM : PULLIN JA
- MAZZA JA
BEECH J
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : O'NEAL DCJ
File No : IND 214 of 2011
Catchwords:
Criminal law and procedure - Statement by prosecutor that accused did not give evidence - Whether prosecutor infringed s 8(1)(c) of the Evidence Act - Turns on own facts
Criminal law - Uncharged acts as evidence of sexual interest - Whether jury had to be directed that sexual interest had to be proved beyond reasonable doubt
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Legislation:
Evidence Act 1906 (WA), s 8(1)(c), s 31A
Result:
Appeal upheld
Conviction quashed and retrial ordered
Category: A
Representation:
Counsel:
Appellant : Ms M Shaw QC & Mr T Cox
Respondent : Ms L Petrusa
Solicitors:
Appellant : Armour & Allen
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50
Bataillard v The King (1907) 4 CLR 1282
BBH v The Queen [2012] HCA 9; (2012) 286 ALR 89
BSD v The State of Western Australia [No 2] [2009] WASCA 152
Buiks v The State of Western Australia [2008] WASCA 194
Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413
Di Lena v The State of Western Australia [2006] WASCA 162; (2006) 165 A Crim R 482
Donaldson v The State of Western Australia [2005] WASCA 195; (2005) 31 WAR 122
Douglass v The Queen [2012] HCA 34
Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517
HML v The Queen [2008] HCA 16; (2008) 235 CLR 334
KMB v The State of Western Australia [2010] WASCA 212
Neubecker v The Queen [2012] VSCA 58
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Noto v The State of Western Australia [2006] WASCA 278
Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461
PIM v The State of Western Australia [2009] WASCA 131; (2009) 40 WAR 489
Preston v The State of Western Australia [2012] WASCA 64
R v Hillier [2007] HCA 13; (2007) 228 CLR 618
R v McKenzie-McHarg [2008] VSCA 206; (2008) 189 A Crim R 291
R v S, G [2011] SASFC 48; (2011) 109 SASR 491
R v Sadler [2008] VSCA 198; (2008) 20 VR 69
Siebel v The Queen (1992) 57 SASR 558
Stuart v The Queen (1959) 101 CLR 1
Stubley v The State of Western Australia [2010] WASCA 36
The State of Western Australia v Pollock [2009] WASCA 96
VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1
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1 PULLIN JA: At the conclusion of the hearing of this appeal, the court made orders that the conviction be set aside and that there should be a retrial and announced that reasons be published later. These are my reasons for making the orders.
Ground 1
2 This ground should be upheld for the reasons given by Mazza JA and Beech J.
Grounds 3 and 5
3 These grounds should be dismissed for the reasons given by Mazza JA and Beech J.
Ground 2
4 This ground should be dismissed. There were two aspects to this ground. First, the appellant submitted that evidence of an alleged uncharged act was not admissible as propensity evidence. This submission should be dismissed for the reasons given by Mazza JA and Beech J.
5 The second aspect of this ground was the appellant's submission that the trial judge erred in failing to direct that the jury should not accept the evidence of the uncharged acts unless they were satisfied that it had been proved beyond reasonable doubt. This submission should be rejected. I repeat what I said in KMB v The State of Western Australia [2010] WASCA 212 at [3] namely:
The submission that such a direction had to be given has no merit. The evidence about the uncharged acts was circumstantial evidence. It did not amount to evidence constituting an indispensible link in a chain of evidence necessary to prove the appellant's guilt in relation to any of the counts in the indictment. This is because the complainant gave direct evidence of the offences the subject of the indictment: see Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573, 579, 585; PIM v The State of Western Australia [2009] WASCA 131 [157], [314]; Stubley v The State of Western Australia [2010] WASCA 36 [159] - [160], [390].
6 In HML v The Queen [2008] HCA 16; (2008) 235 CLR 334, some members of the High Court expressed the view that such a direction had to be given, but in BBH v The Queen [2012] HCA 9; (2012) 286 ALR 89 [76] Hayne J acknowledged (Gummow J agreeing) that the court in HML was divided. In the Victorian case of R v Sadler [2008] VSCA 198; (2008) 20 VR 69 the Court of Appeal recognised that the majority of the
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judges in HML 'did not express any clear view as to whether uncharged sexual acts must always be proved beyond reasonable doubt' [60].
7 I agree with the statement by Gleeson CJ in HML that 'There is no general principle that whenever, at a criminal trial, the prosecution sets out to prove, as a fact relevant to a fact in issue that some criminal conduct occurred, that fact must be established beyond reasonable doubt' and that it is 'ordinarily neither necessary, nor appropriate for a trial judge to give separate directions about the standard of proof of uncharged acts' [31] - [32]. See also Crennan J in HML at [477]. These statements are consistent with what the High Court said in R v Hillier [2007] HCA 13; (2007) 228 CLR 618.
8 Insofar as the appellant submitted that evidence of sexual interest (as opposed to evidence of uncharged acts) had to be proved beyond reasonable doubt, I reject that submission. This is an area of law which seems to be developing unnecessary complications. Acceptance of the appellant's submission would lead to unnecessary hair-splitting. It is not necessary to categorise evidence of uncharged acts as background or context evidence or evidence of sexual interest. Evidence that a man is sexually interested in his child or has committed uncharged sexual acts on his child is circumstantial evidence which should not be treated differently from any other circumstantial evidence.
9 MAZZA JA & BEECH J: This appeal against conviction was heard on 8 June 2012. At the conclusion of the hearing, the court unanimously allowed the appeal, with reasons to follow. These are our reasons for joining in making that order.
10 The appellant was charged on indictment, as follows:
On a date unknown between 1 January 2005 and 21 June 2005 at Balga, [the appellant] sexually penetrated [the complainant], a child under the age of 13 years, by penetrating her vagina with his finger.
On a date unknown between 21 June 2006 and 31 December 2006 at Bruce Rock, [the appellant] sexually penetrated [the complainant], a child under the age of 13 years, by penetrating her vagina with his finger.
11 On 24 May 2011, after a short trial before O'Neal DCJ and a jury, he was convicted on count 1 of the alternative offence of indecently dealing with a child under the age of 13 years and he was convicted as charged on count 2.
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12 Later, on 26 August 2011, the appellant was sentenced to a total effective sentence of 3 years' immediate imprisonment with eligibility for parole.
Background
13 The state's case relied upon the veracity of the complainant's evidence. Her evidence was not supported by forensic evidence.
14 The complainant is the appellant's daughter. She was born in 1994. At trial, her examination-in-chief essentially comprised of a visually recorded interview undertaken with police officers on 19 August 2010, which she confirmed was true.
15 In that interview, she told the police that on three occasions the appellant had penetrated her vagina with his fingers. On each of these occasions, she said that she was sleeping in the same bed as the appellant.
16 The complainant said that the first time it happened was at the appellant's house in Balga, when she was 10 years of age and in year 5 at school: VRI ts 31 - 32.
17 The second occasion also occurred at the appellant's home in Balga, this time when the complainant was 11 years of age and in year 6 at school. She said that she woke up to the appellant 'fingering' her and 'rubbing my thingy and just playing with it': VRI ts 22. When the complainant was asked to describe exactly what the appellant was doing, she replied, 'Um, he was just, um, tickling and, um, just rubbing and, yeah': VRI ts 27.
18 The third occasion occurred at the home of friends of the appellant in Bruce Rock, when the complainant was approximately 12 years of age and in year 7 at school. The complainant described the appellant as 'fingering my vagina': VRI ts 2. She explained that '[The appellant] just had a finger in my thing and he just played with it and stuff': VRI ts 8.
19 The first incident was treated as an uncharged act. The second incident was the subject of count 1 and the third incident was the subject of count 2.
20 The state adduced evidence from Detective First Class Constable Southall. On 19 August 2010, Detective Southall interviewed the appellant. This interview was recorded on video and tendered in evidence as exhibit 1. In the course of the interview, the appellant generally declined to comment until he got legal advice, at times also denying the
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- allegations made by the complainant (appellant's VRI ts 26 - 28). Further, he denied being sexually attracted to young girls of the complainant's age. He said he was attracted to girls 'in their twenties': appellant's VRI ts 34. He made some admissions as to the surrounding circumstances of the offending which confirmed some of the complainant's testimony.
21 The appellant elected not to give or adduce any evidence.
Grounds of appeal
22 There were originally five grounds of appeal. At the hearing of the appeal, senior counsel for the appellant, Ms Shaw QC, abandoned ground 4: appeal ts 3. The grounds which were pursued are as follows:
1. The fair trial of the appellant miscarried because the learned prosecutor breached the statutory prohibition in s 8(1)(c) of the Evidence Act 1906 (WA) in impermissibly commenting to the jury about the appellant's failure to give evidence.
2. The learned trial judge erred in misdirecting the jury concerning the evidence led by the prosecution - both during the complainant's evidence at trial and during the appellant's pre-trial interview with the police - of an uncharged act of sexual misconduct on the part of the appellant in 2004.
Particulars
- 2.1. The complainant admitted at trial that she could not remember the details of what happened and could not say with any certainty that the appellant touched her. In the circumstances, the jury should have been directed to disregard the evidence of this uncharged act.
2.2. Alternatively, the jury should have been directed that it could only be used if found proved beyond reasonable doubt given that the prosecution relied upon it to prove the appellant had a sexual interest in his daughter.
3. The learned trial judge erred in failing to present the issues in the case to the jury properly, including:
3.1. by failing to identify the acts that were the subject of the two charged counts; and
3.2. in failing to present the defence case on each of the charged acts adequately.
…
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- 5. In all the circumstances, there was a miscarriage of justice.
Particulars
- 5.1. The jury only heard an edited version of the appellant's interview with the police which did not capture the true effect and force of the appellant's denials of sexual misconduct as a number of those denials were edited out. It was inherently unfair for the jury to be presented with a version of the appellant's interview with the police in this form.
5.2. The learned prosecutor accentuated the unfairness in telling the jury that the appellant had failed to deny the allegations in his interview with the police when the only version before the jury was this edited version.
5.3.The learned prosecutor further accentuated the prejudice to the appellant by breaching the statutory prohibition in s 8(l)(c) of the Evidence Act 1906 (WA) in impermissibly commenting to the jury about the appellant's failure to give evidence at trial.
5.4. The appellant repeats and relies on the other grounds of appeal above on a separate and cumulative basis.
Ground 1 - Did the prosecutor's closing address infringe s 8(1)(c) of the Evidence Act?
Section 8(1)(c)
24 Section 8(1)(c) of the Evidence Act 1906 (WA) is in these terms:
8. Accused persons in criminal cases
(1) Except as in this Act it is otherwise provided, every person charged with an offence shall be a competent but not a compellable witness at every stage of the proceedings whether the person so charged is charged solely or jointly with any other person: Provided as follows -
…
(c) the failure of any person charged with an offence to give evidence shall not be made the subject of any comment by the prosecution.
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The prosecutor's address
25 The part of the prosecutor's closing address that is alleged to have infringed this subsection is as follows:
As I said to you at the start of the trial, sexual acts whether they be consensual or non-consensual; lawful or unlawful rarely happen in public. They happen more often than not behind closed doors. Behind drawn curtains, between two people. And it follows that invariably there are only ever two people that can tell you about what happened during a sexual act. This case is no different. You've heard from [the complainant] about these acts that she says took place. I don't resile from what I said to you at the start of the trial that for you to find the accused guilty as charged in relation to counts 1 and 2, you'd have to be satisfied that she is both an honest witness when she speaks of those incidents, and an accurate witness when she speaks of those incidents. And you'd have to be satisfied of that beyond reasonable doubt. The accused as you've just heard has elected not to give evidence. That is his right. That is every accused person's right. You shouldn't use that decision against him in any way. I certainly as the prosecutor don't ask you to. You mustn't. He did take part in a police record of interview and the allegations were put to him, and you will recall his response. He declined to comment, as is his right. As is every accused person's right. So you don't have from him a version in which he admits the conduct and you don't have from him a version in which he denies the conduct. You don't have either of those things, but I suggest it leaves you in a position where, as I stated at the start of the trial, in any event you will have to look carefully at what [the complainant] has said. And make conclusions about whether you accept her as an honest and reliable witness: ts 131 - 132. (emphasis added)
The parties' submissions
26 It was submitted on behalf of the appellant that the italicised part of the prosecutor's address was a comment on the failure of the appellant to give evidence and thus infringed the prohibition in s 8(1)(c) of the Evidence Act.
27 Ms Petrusa, on behalf of the respondent, submitted that the prosecutor did not infringe the subsection. She submitted that when the prosecutor told the jury, 'The accused as you've just heard has elected not to give evidence. That is his right. That is every accused person's right. You shouldn't use that decision against him in any way', was not a comment, but a statement of the law: appeal ts 59. Ms Petrusa's second submission was that the part of the prosecutor's address where he said, 'So you don't have from him a version in which he admits the conduct and you don't have from him a version in which he denies the conduct', was not referable to the failure to give evidence, rather, it was a comment on
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- his failure in his video recorded interview to give a version of events: appeal ts 60 and 66.
28 The third submission made on behalf of the respondent is that when the portion of the prosecutor's closing address which we have referred to is considered as a whole, he was doing no more than highlighting the importance of the complainant's evidence: appeal ts 60.
29 The next submission made on behalf of the respondent was that, insofar as the prosecutor's address is inaccurate in that it states, in effect, that the appellant did not deny the alleged conduct, that was remedied by the learned trial judge in his summing up. Finally, if the prosecutor infringed s 8(1)(c) of the Evidence Act, the breach was, in the light of the learned trial judge's summing up, insignificant and did not give rise to a miscarriage of justice: appeal ts 60.
The law with respect to s 8(1)(c) of the Evidence Act
30 The starting point is the statutory language of s 8(1)(c). It is in its terms a clear and absolute prohibition on the making of any comment by the prosecutor about the accused's failure to give evidence. The words extend to implied as well as express comment: Bataillard v The King (1907) 4 CLR 1282, 1291 (Isaacs J) and Siebel v The Queen (1992) 57 SASR 558, 560 (King CJ, with whom Bollen J agreed). What is prohibited is any comment on the failure to give evidence. As King CJ explained in Siebel, this means that a comment 'whether … fair or unfair, balanced or unbalanced, favourable or unfavourable' (562) cannot be made by the prosecutor.
31 The subsection speaks of a 'comment' by a prosecutor. The state's submissions invoke a distinction between a comment and a statement. It has been held that words which refer to the fact that an accused person has not contradicted the prosecution evidence, or has failed to provide an alternative version of events, or has not given evidence is comment upon the failure of the accused person to give evidence and is thus prohibited: Siebel (562), followed in R v S, G [2011] SASFC 48; (2011) 109 SASR 491 [102] (Peek J, with whom Doyle CJ and White JA agreed). Express or implied reference to the fact that the accused had the opportunity to give evidence, and did not do so is comment prohibited by the statute: Bataillard (1288, 1291). In this light 'comment' in s 8(1)(c) is used in a wide sense, and encompasses many things that might be seen as a statement of fact or law.
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The disposition of the ground: the section was infringed
32 In the present case, the words spoken by the prosecutor, when read as a whole, are a comment on the appellant's failure to give evidence and infringed s 8(1)(c). Contrary to Ms Petrusa's submission, what was said was clearly more than a statement of the appellant's right to silence. The prosecutor drew the jury's attention to the failure of the appellant to give evidence (and, for that matter, the appellant's alleged failure to comment to the police on the allegations against him). He then proceeded to tell the jury that, as a result, there was no version either denying or admitting the alleged conduct. The effect of what the prosecutor said was to submit to the jury that when it was considering the complainant's evidence, it should bear in mind the absence of any alternative version of events and that the complainant's evidence was uncontradicted. Further, the remark that the jury did not have a version of events in which the appellant admitted the alleged conduct, left open the possibility that any version he might have given would have been an admission to that conduct.
33 The prosecutor's infringement of s 8(1)(c) was compounded by his erroneous statement that the jury had no version from the appellant denying the conduct. The appellant did, in fact, deny the alleged conduct, as we have already pointed out, in his video recorded interview with the police. The fact that the learned trial judge, in his summing up, corrected this error, while ameliorating this aspect of the prosecutor's statement, does not take away from the fact that the statement was an infringement of the subsection.
34 We do not accept Ms Petrusa's submission that the words 'so you don't have a version in which he admits the conduct and you don't have from him a version in which he denies the conduct', refers only to what the appellant said in his video recorded interview with the plaintiff and did not refer to his failure to give evidence. This comment (which Ms Petrusa conceded in oral argument was in fact a comment; appeal ts 66) followed immediately after the prosecutor had pointed out to the jury that the appellant had elected not to give evidence and had declined to comment to the police. It could only have been reasonably understood by the jury as referring to both matters.
35 It does not matter that the ultimate point of this part of the prosecutor's address was to highlight the importance of the complainant's evidence. While this is a legitimate matter for the prosecution to pursue, it cannot be achieved by infringing s 8(1)(c) of the Evidence Act.
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Miscarriage of justice
36 We reject Ms Petrusa's submission that in light of the learned trial judge's summing up on the issue of the appellant's failure to give evidence, any breach of s 8(1)(c) was reduced to insignificance such as not to give rise to a miscarriage of justice.
37 We respectfully agree with Peek J when he said, in R v S, G [107], that it will be rare that a conviction will be saved on appeal by the intervening decision of the trial judge to give more stringent directions to the jury, as occurred in Stuart v The Queen (1959) 101 CLR 1 or to give ameliorating directions. This is because the legislature has conferred on an accused a right to have a trial free of the prohibited comment, and the infringement of that right cannot be lightly overlooked: see also Siebel (565).
38 In this case, the learned trial judge gave directions in accordance with what was said by the High Court in Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50, 70 - 71, in these terms:
[The appellant] didn't give evidence in this case and it's his right not to do so. No adverse inference can or should be draw against him from his exercising that right. It's a right every accused person has, and if whenever it was exercised, an adverse inference was drawn against the accused person, it would mean that the right had no value. The fact that he didn't give evidence, proves nothing one way or the other. Of course he attended at an interview with the police and said certain things in the course of that interview. What he said in the recorded interview, is evidence that you can take into account, but of course he wasn't under oath when he answered questions in the interview. He didn't have to give evidence here before you. As I've said - sorry, I beg your pardon. He didn't have to answer any of the questions that the police asked him: ts 102.
39 This direction was no more than usually given when an accused invokes his or her right to silence. His Honour did not refer to the prosecutor's breach of the subsection and address it directly to ameliorate its effect.
40 Ms Petrusa submitted that if the prosecutor infringed s 8(1)(c), the infringement was of a technical or trivial nature so as not to amount to a miscarriage of justice: appeal ts 71. This submission, it would seem, relied on authority such as Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517, 526 - 527.
41 We would not characterise the infringement in this case as technical or trivial. To the contrary, we regard the breach as serious and plainly
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- amounting to a miscarriage of justice. It was not fleeting, short or inadvertent. It related to a central issue in the case, the complainant's credibility. We have already described what we perceive to be its effect. That effect was potentially damaging to the appellant.
42 In some cases where there has been an infringement of s 8(1)(c), or its equivalents have been breached, the proviso has been applied. In the present case, the respondent did not seek to invoke the proviso: appeal ts 60.
43 For these reasons, we upheld ground 1.
Ground 2 - the uncharged conduct
The course of the trial
44 Ground 2 relates to the evidence given by the complainant of the uncharged conduct which she said occurred when she was approximately 10 years of age. No objection was made to the admissibility of this evidence prior to trial.
45 In cross-examination, the following exchange occurred concerning this alleged conduct:
And you just woke up and you said that you thought your dad was doing something to you?---Yes.
[Complainant], do you think that you could have been mistaken about that?---No, cos I could feel him doing it.
But you can't really remember, can you, the details of what happened?---Not that night, no.
No. So you can't really say with any certainty whether he was touching you, can you?---No. Not certainly: ts 56. (emphasis added)
46 In the absence of the jury, before counsel's closing addresses, the prosecution raised with the learned trial judge that a direction in respect of the uncharged conduct may be required: ts 82. He told his Honour that the relevance of the evidence was primarily to show that the appellant had a sexual interest in the complainant: ts 82. In his closing address, the prosecutor submitted to the jury that the evidence showed that the appellant had 'some sexual interest in the complainant': ts 135.
47 Defence counsel invited the learned trial judge to direct the jury that no weight could be attached to the complainant's evidence about the
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- uncharged conduct in light of her answers in cross-examination: ts 85 - 86. In her closing address, she submitted that in light of the complainant's answers in cross-examination, the evidence of the uncharged conduct had 'no importance whatsoever': ts 145.
48 His Honour's direction with respect to the uncharged conduct was as follows:
Now, there was a degree of uncertainty on her part that was apparent in her evidence that was read out to you in full by Mr Hills-Wright, and the reason I'm mentioning this to you now is that it's important that you understand the purpose for which the State put that matter forward at all because of course, it's not the subject of any charge that you need to consider. ... If you are satisfied that the 2004 event probably occurred, you could reach a conclusion that [the appellant] had a sexual interest in his young daughter: ts 114.
The parties' submissions
49 The appellant made two submissions in respect of the uncharged conduct. First, it was said that the learned trial judge should have directed the jury to disregard the evidence of the uncharged conduct in light of the complainant's answer in cross-examination that she was not certain that the conduct had occurred. In truth, this is a submission that the uncharged conduct became inadmissible and led to a miscarriage of justice.
50 The second submission made on behalf of the appellant was that his Honour erred in directing the jury that it had to be satisfied, on the balance of probabilities, that the conduct had occurred, when the correct standard of proof was proof beyond reasonable doubt.
51 The respondent submitted that the evidence of the uncharged conduct was, notwithstanding the complainant's cross-examination, admissible and that his Honour made no error as to the standard of proof of the uncharged conduct.
52 It is convenient to deal with the question of the standard of proof first.
Uncharged acts and sexual interest: standard of proof
53 The appellant submits, and the state denies, that where evidence of uncharged acts is led to prove the accused had a sexual interest in the complainant, the jury must be satisfied beyond reasonable doubt of the uncharged act(s) before they can use it as evidence of sexual interest (ts 40 - 42) or, the jury must be satisfied beyond reasonable doubt of the
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- sexual interest (ts 30 - 34). For reasons developed below, we accept the latter submission.
54 Evidence of uncharged acts may be admitted under s 31A for one or more different purposes. It is important to identify the purpose of the evidence, and that the jury be directed accordingly: Noto v The State of Western Australia [2006] WASCA 278 [22].
55 Evidence of uncharged acts may be led to demonstrate propensity, or for a non-propensity purpose.
56 Evidence of uncharged acts led to show the accused had a sexual interest in the complainant invites propensity reasoning: HML v The Queen (2008) 235 CLR 334 [41], [132], [342] and [506]; BBH v The Queen [2012] HCA 9 [52], [153], [166], [167]; BSD v The State of Western Australia [No 2] [2009] WASCA 152 [37].
57 In HML v The Queen, the High Court considered several issues in respect of evidence of uncharged conduct in the context of the common law principles relating to the admission of propensity evidence. One of the issues was the standard of proof of uncharged acts and whether those acts needed to be established beyond reasonable doubt. The court was divided on this issue. An analysis of the separate judgments in the case reveals that the majority decided that where the prosecution seeks to demonstrate by evidence of uncharged conduct that the accused had a sexual interest in the complainant, the jury must only find that the accused had a sexual interest if it is proved beyond reasonable doubt: [41] (Gummow J), [63] and [83] (Kirby J), [132], [200], [242] and [247] (Hayne J) and [506] (Kiefel J).
58 Of course, in Western Australia, the common law principles with respect to the admissibility of propensity evidence were substantially amended by s 31A of the Evidence Act, primarily by abolishing the test in Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461, that propensity evidence is inadmissible if there is a rational view of it, when taken with the other relevant evidence, that is inconsistent with the accused's guilt.
59 A question arises whether that affects the standard of proof in relation to propensity evidence or other evidence admitted under s 31A. That question was identified but not resolved by Wheeler JA in PIM v The State of Western Australia [2009] WASCA 131; (2009) 40 WAR 489 [21] - [23].
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60 The state relies on what was said by Pullin JA in PIM [149] - [158], and in KMB v The State of Western Australia [2010] WASCA 212 [3]. However, neither of these cases focused on the standard of proof of uncharged acts that are relied on to demonstrate sexual interest. In PIM, the grounds of appeal did not squarely raise that question; [19] - [20], [179]. The appellant's complaint in that case was that the trial judge had not directed the jury about the use to which the uncharged acts could be put. In KMB, the uncharged acts were to be used as background or context, not to show sexual interest [74], [77].
61 The question of the standard of proof in respect of uncharged acts in the context of evidence admitted under s 31A of the Evidence Act was discussed by Buss JA in PIM. In that case, his Honour, after referring to the judgments in HML and to cases decided subsequently by other intermediate courts of appeal, particularly R v Sadler [2008] VSCA 198; (2008) 20 VR 69 [60] - [67], which he specifically approved [315], said:
In my opinion, until the High Court provides further guidance on the point, where evidence of uncharged sexual acts is admitted under s 31A:
(a) a trial judge should, ordinarily, proceed on the basis that there is a real risk that the jury may use the evidence as a sufficiently important step in reasoning towards a verdict of guilty on the offence or offences charged to require particular mention in his or her summing up; and
(b) the judge should, ordinarily, direct the jury in his or her summing up that they should not conclude, on the basis of the evidence of the uncharged sexual acts, that the accused had a sexual interest in the complainant unless they are satisfied beyond reasonable doubt of the existence of the sexual interest.
It does not, however, necessarily follow that there will be a miscarriage of justice if a trial judge does not, in a particular case, give the direction I have mentioned. The whole of the trial judge's summing up must be examined, in the context of the particular facts and circumstances and the evidence and course of the trial as a whole, in order to determine whether there has been a miscarriage: [317] - [318].
62 In Stubley v The State of Western Australia [2010] WASCA 36 Pullin JA [159] - [160] and Buss JA [389] - [394] each reiterated the views they had respectively stated in PIM. Owen JA said [4] that there was much to be said for the approach in Sadler.
63 The Court of Appeal of Victoria in Sadler explained the reason for the requirement that sexual interest be proved beyond reasonable doubt.
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- The requirement is founded on the risk that the jury will use the uncharged acts as an important step in their reasoning to guilt. In particular, it may be used by the jury when the other prosecution evidence (usually including or comprising the evidence of the complainant about the events the subject of the charge(s)) does not itself satisfy it beyond reasonable doubt, to lead to its satisfaction to that standard. See BBH [157], [165] - [169]. Used in that way, the sexual interest is an essential step in the reasoning to guilt. See also R v McKenzie-McHarg [2008] VSCA 206; (2008) 189 A Crim R 291 [12].
64 Another possible response to the risk that the jury might use the uncharged acts in this way would be to direct of the need to be satisfied beyond reasonable doubt before it may use the uncharged acts in this way. However, that would add another layer of complexity to an already overly complex area of jury directions. Moreover, as Buss JA's analysis in PIM demonstrates, the approach in Sadler is supported by the weight of intermediate appellate decisions (albeit not in identical statutory frameworks).
65 The approach in Sadler has been confirmed in Victoria in cases since (see Neubecker v The Queen [2012] VSCA 58), albeit without deciding whether the enactment of an amendment to the Victorian equivalent of s 31A of the Evidence Act alters the position, see [58].
66 Like Buss JA, we would apply the approach in Sadler. Generally, this does not mean that the jury must be satisfied beyond reasonable doubt as to each alleged uncharged act. Rather, the jury must be satisfied beyond reasonable doubt of the sexual interest. However, in this case only one uncharged act was relied upon to demonstrate sexual interest, so satisfaction of the sexual interest involves satisfaction as to the (one) uncharged act.
67 The evidence of the uncharged conduct in this case was expressly put and left to the jury as evidence that the appellant had a sexual interest in the complainant. For the reasons given, the learned trial judge should have directed the jury that it needed to be satisfied beyond reasonable doubt that the alleged uncharged act occurred, and thus the sexual interest existed, before it could use it to show the appellant's sexual interest in the complainant. It follows that to instruct the jury that it was only required to be satisfied that the uncharged conduct probably occurred (ts 114) was an error of law and amounted to a miscarriage of justice. We would give leave to appeal with respect to ground 2 and uphold the ground as a result of this error.
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Was the evidence inadmissible?
68 The question of whether ground 2 should also be upheld on the basis that his Honour should have directed the jury to disregard the evidence of the uncharged act remains. As we said earlier, this depends upon whether the evidence was in fact inadmissible. If the evidence was admissible, the assessment of its weight was a matter for the jury to decide and not for the trial judge.
69 Section 31A of the Evidence Act reads:
31A. Propensity and relationship evidence
(1) In this section -
propensity evidence means -
(a) similar fact evidence or other evidence of the conduct of the accused person; or
(b) evidence of the character or reputation of the accused person or of a tendency that the accused person has or had;
relationship evidence means evidence of the attitude or conduct of the accused person towards another person, or a class of persons, over a period of time.
(2) Propensity evidence or relationship evidence is admissible in proceedings for an offence if the court considers -
(a) that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and
(b) that the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair-minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
(3) In considering the probative value of evidence for the purposes of subsection (2) it is not open to the court to have regard to the possibility that the evidence may be the result of collusion, concoction or suggestion.
70 The history and proper interpretation of this section have been dealt with in this court in a series of cases, including Donaldson v The State of Western Australia [2005] WASCA 195; (2005) 31 WAR 122; VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1;
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- Di Lena v The State of Western Australia [2006] WASCA 162; (2006) 165 A Crim R 482; Buiks v The State of Western Australia [2008] WASCA 194; Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413; PIM v The State of Western Australia and Preston v The State of Western Australia [2012] WASCA 64.
71 Evidence will be admissible under s 31A if:
(a) it comes within either, or both, of the definitions of propensity evidence and relationship evidence; and
(b) it is considered that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value. In assessing whether the evidence in question has significant probative value, the court is not permitted to have regard to the possibility that the evidence may be the result of collusion, concoction or suggestion; and
(c) the probative value of the evidence compared to the degree of risk of an unfair trial is such that fair-minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
72 In this appeal, there was no issue that the uncharged conduct was propensity evidence as defined in s 31A(1) of the Evidence Act. Nor was it argued that if the evidence had significant probative value, the evidence was inadmissible, having regard to the fair-minded person test. The issue was whether the evidence had significant probative value. Ms Shaw QC submitted that while the complainant's evidence might have had significant probative value as expressed in the visually recorded interview, it did not have that quality once the complainant said in cross-examination that she was uncertain whether the appellant had touched her: appeal ts 26.
73 It is, of course, for the jury to decide whether evidence is to be accepted and, if so, what weight to give it. That being so, in assessing whether the evidence had significant probative value, the evidence is to be taken at its highest from the perspective of the prosecution.
74 The complainant did not resile in cross-examination from her evidence about what occurred when she was 10 years of age. While she did say that she was not certain that the appellant had touched her, she also said, in answer to the question that she could have been mistaken, 'No, cos I could feel him doing it'. Taking the evidence at its highest, and
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- as a whole, the answer, 'No. Not certainly', might be seen as cautious response, not inconsistent with satisfaction that the uncharged conduct had in fact occurred.
75 In our opinion, this evidence had significant probative value; it was for the jury to decide whether it accepted that the alleged conduct had occurred. The evidence was admissible pursuant to s 31A of the Evidence Act. His Honour did not err in the way alleged by the appellant.
76 To summarise the position in respect of ground 2, we would uphold the ground, but only on the basis that his Honour erred as to the standard of proof in respect of the uncharged conduct.
Ground 3 - The learned trial judge's summing up
77 This ground of appeal and the written submissions did not exactly correlate with the oral submissions made in support of the ground.
78 In her oral submissions, Ms Shaw QC alleged that the learned trial judge erred in two respects. First, he failed to present the defence case on each of the charged acts separately. Second, he failed to direct the jury that when evaluating the complainant's evidence it must bear in mind the appellant's denials and that it could not convict the appellant without rejecting those denials beyond reasonable doubt.
79 Without question, a trial judge has an obligation to fairly present to the jury the case made by the accused. The relevant legal principles were discussed by Martin CJ, with whom Wheeler JA agreed, in The State of Western Australia v Pollock [2009] WASCA 96 [2] - [6]. There is no need to repeat what his Honour wrote.
80 The specific criticism made by senior counsel for the appellant was that his Honour failed to put the defence case, and particularly the appellant's denials, separately, in respect of counts 1 and 2: appeal ts 14.
81 The defence case in respect of each count was the same. It was that the complainant's evidence was incapable of satisfying the jury beyond reasonable doubt that the alleged sexual conduct had occurred, having regard to a number of factors, including the appellant's denials in his video record of interview.
82 The evidence that the jury had to consider was completed within the first day of trial. On the morning of the second day of trial, both counsel addressed the jury. Their addresses were not long, and focused very much upon the credibility of the complainant.
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83 The learned trial judge clearly and in unequivocal terms directed the jury that before it could convict the appellant of any offence it had to be satisfied beyond reasonable doubt that the complainant's evidence with respect to counts 1 and 2 was truthful. His Honour drew the jury's attention to the alleged weaknesses in the complainant's evidence, including what were said to be inconsistencies in it, the inherent unlikelihood of the conduct occurring and the failure of the complainant to make a prompt complaint. His Honour referred, although not at great length, to the denials made by the appellant in his videotaped record of interview. He told the jury that the weight to be given to the answers the appellant gave in the video record of interview was a matter for it, although it was not required to give the same weight to his denials as it might to the admissions made as to some of the background circumstances: ts 103.
84 Having regard to brevity of the trial and the simple issues involved in it, which were the same on each count, there was no need for his Honour to explain the defence case on count 1 and then explain the same case separately on count 2. To do so would have been unnecessarily repetitive. For these reasons, we reject Ms Shaw's first submission on this ground.
85 We now turn to Ms Shaw's second submission.
86 His Honour made it clear that the jury had to decide the case on the evidence that was before it. He said that the evidence included the testimony of the complainant and the video record of interview: ts 99.
87 He gave clear and unexceptional directions as to the onus and standard of proof: ts 101. He told the jury that it could take into account what the appellant said in his video record of interview: ts 102. His Honour referred to the appellant's denials. His Honour said that the weight to be given to those denials was a matter for the jury to decide: ts 103.
88 After explaining the elements of the offences, his Honour turned to outlining the parties' cases: ts 109. In summarising the defence case, his Honour referred to criticisms of the complainant's evidence, but did not mention the accused's denial in his record of interview. He then emphasised that the state case turned on whether the jury was satisfied beyond reasonable doubt of the complaint's evidence: ts 113. He told the jury to scrutinise the complainant's evidence with great care.
89 His Honour did not expressly direct the jury that it ought, when considering the complainant's evidence, weigh the appellant's denials, nor
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- did he direct the jury that it could not convict the appellant unless it was satisfied beyond reasonable doubt that his denials were false. Clearly, a direction to that effect reflects the proper approach by the jury. See, for example, Douglass v The Queen [2012] HCA 34 [12] - [13]. Ground 3 turns on whether, taking the direction as a whole, those matters were sufficiently conveyed to the jury by the direction. Given that the appeal succeeds on grounds 1 and 2, it is not necessary to decide that question.
Ground 5 - the catchall
90 Ms Shaw agreed that ground 5 was a catchall. Particulars 5.1 and 5.2 have no merit. Each of them are based on the fact that an edited version of the appellant's record of interview was tendered in evidence. The appellant's video record of interview was edited with the consent of his counsel to remove from it allegations that were put to the appellant, which he denied, of sexual misconduct in respect of three other young girls which were not the subject of any later charges. Evidence of the exchanges between the interviewing officers and the appellant on these matters would have been inadmissible and highly prejudicial to the appellant. The appellant has suffered no miscarriage of justice whatever as a result of the edited version of the appellant's interview being tendered at the appellant's trial.
91 Particulars 5.3 and 5.4 are merely a repetition of the grounds of appeal which have already been dealt with in these reasons.
92 Insofar as ground 5 raises matters not otherwise dealt with in grounds 1, 2 and 3, the ground has no merit. We would not give leave to appeal in respect of it.
Conclusion
93 For these reasons we allowed the appeal on grounds 1 and 2, quashed the convictions and ordered a re-trial.
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