"AK" -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 245

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASCA 245
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:252/2005	Heard:	11 AUGUST 2006
Coram:	ROBERTS-SMITH JA PULLIN JA BUSS JA	Delivered:	17/11/06
No of pages:	42	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	A
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Parties:	"AK" THE STATE OF WESTERN AUSTRALIA
Catchwords:	Criminal law Indecent dealing Evidence Identification Identification by touch accompanied by other circumstantial evidence Retrospectant evidence of other touching Courts and Judges Adequacy of reasons for decision Appeal Whether verdict unreasonable or cannot be supported by the evidence Whether there was a substantial miscarriage of justice
Legislation:	Criminal Appeals Act 2004 (WA), s 30(3)(a), s 30(4) Criminal Procedure Act 2004 (WA), s 119, s 120
Case References:	A Child v Western Australia (2005) 153 A Crim R 406 Alexander v The Queen (1981) 145 CLR 395 Bropho v The State of Western Australia [2006] WASCA 109 Bulejcik v The Queen (1996) 185 CLR 375 Carlson v King (1947) 64 WN (NSW) 65 Chamberlain v The Queen (No 2) (1984) 153 CLR 521 Craig v The King (1933) 49 CLR 429 Darkan v The Queen (2006) 80 ALJR 1250 Dearman v Dearman (1908) 7 CLR 549 Domican v The Queen (1992) 173 CLR 555 Fleming v The Queen (1998) 197 CLR 250 Fox v Percy (2003) 214 CLR 118 Garrett v Nicholson (1999) 21 WAR 226 Lai v The Queen [1990] WAR 151 M v The Queen (1994) 181 CLR 487 MFA v The Queen (2002) 213 CLR 606 Morris v The Queen (1987) 163 CLR 454 Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273 Nevermann (1989) 43 A Crim R 347 Nguyen v The Queen (2002) 26 WAR 59 R v Adler (2000) 52 NSWLR 451 R v E J Smith [1984] 1 NSWLR 462 R v Massey [2000] ACTSC 107 R v Smith [1979] 2 NSWLR 310 R v Tran [2003] ACTSC 53 Raspor v The Queen (1958) 99 CLR 346 Weiss v The Queen (2005) 80 ALJR 444 Wilde v The Queen (1988) 164 CLR 365 Azaddin v The Queen (1999) 109 A Crim R 474

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : "AK" -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 245 CORAM : ROBERTS-SMITH JA

PULLIN JA

BUSS JA

HEARD : 11 AUGUST 2006 DELIVERED : 17 NOVEMBER 2006 FILE NO/S : CACR 252 of 2005 BETWEEN : "AK"

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction : CHILDREN'S COURT OF WESTERN AUSTRALIA

Coram : WISBEY J

File No : IND 4845 of 2004, IND 4846 of 2004, IND 4847 of 2004

Catchwords:

Criminal law - Indecent dealing - Evidence - Identification - Identification by touch accompanied by other circumstantial evidence - Retrospectant evidence of other touching

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Courts and Judges - Adequacy of reasons for decision

Appeal - Whether verdict unreasonable or cannot be supported by the evidence - Whether there was a substantial miscarriage of justice

Legislation:

Criminal Appeals Act 2004 (WA), s 30(3)(a), s 30(4)

Criminal Procedure Act 2004 (WA), s 119, s 120

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant : Mr C J L Miocevich

Respondent : Mr L Hobson

Solicitors:

Appellant : Aboriginal Legal Service

Respondent : State Director of Public Prosecutions

Case(s) referred to in judgment(s):

A Child v Western Australia (2005) 153 A Crim R 406
Alexander v The Queen (1981) 145 CLR 395
Bropho v The State of Western Australia [2006] WASCA 109
Bulejcik v The Queen (1996) 185 CLR 375
Carlson v King (1947) 64 WN (NSW) 65
Chamberlain v The Queen (No 2) (1984) 153 CLR 521
Craig v The King (1933) 49 CLR 429
Darkan v The Queen (2006) 80 ALJR 1250
Dearman v Dearman (1908) 7 CLR 549
Domican v The Queen (1992) 173 CLR 555

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Fleming v The Queen (1998) 197 CLR 250
Fox v Percy (2003) 214 CLR 118
Garrett v Nicholson (1999) 21 WAR 226
Lai v The Queen [1990] WAR 151
M v The Queen (1994) 181 CLR 487
MFA v The Queen (2002) 213 CLR 606
Morris v The Queen (1987) 163 CLR 454
Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273
Nevermann (1989) 43 A Crim R 347
Nguyen v The Queen (2002) 26 WAR 59
R v Adler (2000) 52 NSWLR 451
R v E J Smith [1984] 1 NSWLR 462
R v Massey [2000] ACTSC 107
R v Smith [1979] 2 NSWLR 310
R v Tran [2003] ACTSC 53
Raspor v The Queen (1958) 99 CLR 346
Weiss v The Queen (2005) 80 ALJR 444
Wilde v The Queen (1988) 164 CLR 365

Case(s) also cited:

Azaddin v The Queen (1999) 109 A Crim R 474

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1 ROBERTS-SMITH JA: I agree generally with the reasons and conclusions of Pullin JA, but subject to the following additional remarks.

2 In my view this case was not so much about identification by touch as about the facility of a witness to express herself in the English language.

3 Language facility is an aspect of oral evidence which may be prominent in the assessment by a tribunal of fact, not only of the credibility or reliability of a witness, but in appreciating what the witness actually means; that is, what the witness is actually trying to convey.

4 The appellant was someone who had been known to the complainant all her life. She knew him well at the time of the alleged offences and he had sexual relations with her for a time about a year later; she becoming pregnant by him as a result. As Pullin JA explains, the appellant admitted the later sexual relationship, but maintained he had an honest and reasonable belief that she was consenting. The short point about that, is that it was evidence demonstrating that he had a sexual interest in her at that time. That evidence was admissible as relevant to the issue who it was who sexually interfered with her on the occasion charged. The evidence may not have been of great weight, but it was certainly sufficiently so in the circumstances, which included the fact that the only other male in the bed that night had been the appellant's brother. There was no suggestion in evidence that the appellant's brother had ever demonstrated any sexual interest in the complainant.

5 It seems to me the complainant was not purporting to identify the appellant as the person sexual interfering with her in the bed that night by her sense of touch (in that she was saying she was able to do so by some tactile characteristic which she recognised), but rather that she was familiar with his presence and identified him in that way, given also of course, that he went to sleep alongside her.

6 In making these observations, I do not overlook the fact that there have been many occasions when, for example, a woman has been awoken by sexual intercourse or some other sexual activity which she has thought was her husband or partner, only to realise that it was someone else. That is not the situation. The complainant maintains steadfastly throughout that she knew immediately who was sexually interfering with her, and that she had never been in doubt about that. She has asserted that consistently on the basis that she knew him, and she knew it was him.

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7 A proper understanding of what she was seeking to convey by her evidence about this, it seems to me, depended very much on the opportunity to observe her give that evidence. Not only was it open to the trial Judge to be satisfied on her evidence that it was the appellant who was doing to her the things she described, but on a consideration of all the evidence, and having due regard to the advantage enjoyed in that respect by the trial Judge who clearly formed a particular impression of her as a witness and what she was saying, I am not persuaded there is any reasonable doubt about the appellant's guilt.

8 PULLIN JA: This is an appeal against conviction. The appellant was tried and convicted by Judge Wisbey, sitting in the Children's Court of Western Australia without a jury, of three counts of indecently dealing with the complainant, who was a child between the age of 13 and 16 years. He was acquitted of one count of sexual penetration without consent and one count of indecent assault. The latter two offences were alleged to have occurred after the complainant turned 16.

9 The complainant and the appellant were first cousins. The complainant is two years older than the appellant. The offences the appellant was convicted of took place in February 2002, when the complainant was 15 and the appellant was 13. The appellant chose not to give evidence and did not call any witnesses. The complainant was the only witness to give evidence about the details of the charges.

10 The complainant's evidence was that in February 2002 the complainant was living with her mother, sister and younger brother in Geraldton. They had moved to the town in November of the previous year. In February 2002 the complainant's aunt, along with three of her children, including the appellant, came to Geraldton to take the appellant to a school at Tardun. After staying a night with the complainant and her family, the appellant's family, along with the complainant, her brother and sister, drove out to the school. The group stayed the night at Tardun in a caravan. Four of the children slept on a double bed mattress, they being the appellant, the complainant, the complainant's sister and the appellant's brother. The complainant gave evidence that during the night the appellant put his hand under her shirt and felt her breast, put his hand down her shorts and touched her vagina, and put her hand on his erect penis. Those three events were the subject of the three counts of indecent dealing of which the appellant was convicted.

11 The complainant gave evidence that when the four children went to bed, and when she went to sleep, the appellant was next to her. The

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complainant was cross-examined at length by counsel for the appellant. The point of the cross-examination was to try and persuade the complainant to agree that she could not identify the appellant as the offender. The nature of the offences meant that the offender was not a female and therefore the offences were not committed by the complainant's sister. Thus, if the offences were not committed by the appellant, then they must have been committed by the appellant's brother. The complainant's evidence was that the appellant's brother was not lying next to her when she went to sleep.

12 One of the grounds of appeal requires the Court to examine the whole of the evidence. I have done so and have extracted some of the more important passages of the complainant's evidence. In examination-in-chief (AB 20 - 23) there were the following questions and answers about what happened after the four children went to bed on the mattress:

"And when you first - - can you remember the order that people went to sleep or not?---I can't remember but I know that my sister probably would have been one of the first people asleep.

Okay. Don't guess?---Oh, yeah, but I don't really know. It was too long ago to - -

Okay. Can you remember how you were positioned with the others or not?---Yes. I had [the appellant] next to me, then my sister and then [the appellant's brother].

Did you go to sleep?---I did go to sleep and I was woken up

Were you all facing the same way in the bed?---No. [The appellant's brother] and [the complainant's sister] were at the foot end.

Now, how were you woken up at that stage?---By [the appellant] touching me.

What was he doing?---How - -?---He grabbed my leg and my - - like, he was tinkling me on my back, just sort of to wake me up sort of thing. He - - like, he pulled my - -I was laying with my back towards him and he's - -like, he pulled me - -no, not pulled me but he was waking me up, well, like that - -

MS JOHNSTON: Okay?--- - - on my - -

(Page 7)

How did he pull you?---He - - like, say if I'm like laying on my back towards him, he was tickling my back and my - - in my leg. He pulled my - - I think it was my right leg over so I could lay on my back.

And what happened then?---And then he moved? his hands up to my breast. He - -

Okay. Can I just ask you what you - - can you remember what you were wearing?---I remember wearing my stars and moons boxer shorts. That's all I can remember, but I can't remember what - - I knew I had my bra and knickers on because I always sleep with bra and knickers on.

Right. Did you have - - were you wearing anything else?---And a shirt. I was wearing a shirt.

So - - sorry, so first - - when you first noticed him touching you, what was he doing?---He - - the first thing he done was - like he was touching my leg and stuff like that, but then he moved it up to my breast when I was laying on my back.

And when you say he moved it onto your breast, what - -?---Underneath - - like, it was underneath my shirt and he was touching my breast.

Okay. You said you were wearing a bra?---He - - like, with my bra, you could still, like, touch my - - he wasn't - - my bra was still on but it was just coming through the side sort of thing.

Okay. So is his hand over or underneath - -?---It was - -

- - the bra?--- - - over, like, the bra but it was, like, going into the bra.

And can you say how long that went on for?---It would have went for about maybe 3 to 5 minutes.

Did you - -?---Wouldn't have been very long.

Okay. Did you do anything?---No. I just layed there.

Okay. Did you say anything?---No. I just looked at him.

(Page 8)

Right. And what happened next?---Then he moved his hand down to my stomach and put his hand on my vagina and he started, like, touching me and I stopped; like, I couldn't do anything.

Okay?---His Mum actually - -

MS JOHNSTON: Sorry, can I just - -?---Yeah.

- - Stop you there - - -

MS JOHNSTON: - - - stop you there. When you say that he started touching your vagina you said you were wearing boxer shorts and - - ?---Yeah. He went - - he put his hand, like, through the - - underneath the boxer shorts but they were still on the top of my knickers. Like, his hand was still on the top of my knickers. He was, like, touching me. Then he put his hand underneath my knickers.

And - - ?---I, like - - I was - - stopped him because his mum started coughing.

Where was - - when you say his mum are you talking about your Auntie …?---Yes. She was in the outside of the caravan. She was in the part added on to it, on the single bed with her daughter, [R].

Who was sleeping with her?---Yeah.

Who - - sorry?---[R] … was sleeping with her.

Okay. All right, and did you - - when he had his hand down on that area did you say anything?---No, I was too scared.

Okay. What were you scared of?---I was scared of his mum.

Did you do anything?---No, I just laid there and then he grabbed my hand and put it on his penis and I pulled my hand away.

What sort of state was his penis in?---It was very hard.

Okay. Did you know whether he was wearing anything or not?---No, he was wearing, like, shorts when I seen him jump into bed but when I felt it he wasn't wearing - -

(Page 9)

Okay, and what did you do when he put your hand on - - ?---I pulled my hand away.

Okay. You said that his mum was coughing?---Yeah.

How did you know that?---I could hear her.

Okay?---And she woke us up.

So how did you know that it was her?---Because when she was coughing she was like she was - - I knew it was her coughing. It was just her cough. She was, like, bringing up phlegm and stuff like that. It was just her cough.

All right. Did anything else happen with her?---She woke us up and actually moved us around. She pulled the big bed apart and brought the single bed actually into the caravan where like, we were all laying in the bedroom."

13 After this incident the complainant said that she shifted into bed with the appellant's mother and spent the night there. She was also asked in examination-in-chief:

"Did you notice - - whilst [the appellant] was touching you did you notice whether anyone else had woken up apart from [the appellant's mother]?---No, I was just - - it was too dark to see."

14 The complainant gave evidence that in 2003 the appellant sexually penetrated her without her consent and on another occasion touched her on the vagina. The appellant was acquitted of these charges because the prosecution failed to negative honest and reasonable but mistaken belief. The complainant fell pregnant and had an abortion. The police became involved and she gave a statement to them on 14 May 2003. At trial she was asked in cross-examination whether she could remember making the statement and she said she did. She was then asked about her statement as follows:

"All right. And do you remember if what was in your statement - - do you remember if what you told the police was the truth?---It was all the truth.

It was all the truth?---Yes.

And is what you're saying in court today the truth?---Yes.

(Page 10)

We'll get back to that in a minute. Do you remember, in terms of sleeping arrangements, you said that you were sleeping next to [the appellant]?---Yes.

Do you - - was everyone sleeping with their heads on the pillow or - -?---[The complainant's sister] and [the appellant's brother] I think had their heads down the foot end - -

All right?--- - - or could have been just [the appellant's brother] and [complainant's sister], but I'm pretty - - like, one of us had - - like, was down the foot end of the bed.

You're not sure, are you?---No, I'm not, sorry.

Not sure about a lot of that night, are you?---It was so long ago I - - but I remember that I was sleeping with - - next to [the appellant].

But that you remember definitely?---Yeah, because I got up and moved away.

And I think you said you remember that that was the definite first arrangement. Isn't that right?---Yeah.

…

HIS HONOUR: Well, ask her about it and see if - - - see what she says - -

MS BARONE: Very well, sir.

HIS HONOUR: - - and if she agrees with you it won't be necessary for her to see it.

MS BARONE: Very well, sir.

(TO WITNESS): Do you remember if in your statement you - - I think you said you're not sure about your statement, but I just want to ask you about something. Do you remember if in your statement you spoke about where you first lied down in bed on that evening?---No, I don't remember.

All right. If I said that in your statement you told the police that you were lying next to [the complainant's sister], do you remember that?---It was next to [the appellant]. I don't know if

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I was next to [the complainant's sister], like in the middle of the bed as well, or if I was just next to [the complainant].

Or if you told the police that you were next to [the complainant's sister] and then next to [the complainant's sister] was [the appellant] and then next to [the appellant] was [the appellant's brother] - - -

MS BARONE: - - - next to [the appellant] was [the appellant's brother]?---No, I was next to [the appellant]. [The complainant's sister] must have been on the - - I must have been - - [the appellant] on the side of the bed, then me, then [the complainant's sister].

Well, did you tell the police that it was - - ?---I cannot remember.

All right. If I could show the - -

HIS HONOUR: Yes.

MS BARONE: - - witness her statement?---I can't remember.

FEMALE SPEAKER: We have that now, sir.

HIS HONOUR: Thank you.

MS BARONE: … if you could have a look at paragraph 26 or 25 in the first bit?. First of all … (indistinct) … ?---Hold on. Hold on just a moment.

HIS HONOUR: Just a second.

WITNESS: Yep, I got that.

MS BARONE: All right. First of all, can you just have a look at that statement?---Yep.

Is that the statement of - ?---Yep.

- - - [you]?---Mm hm.

Yep. Dated the 15th - - the 14.5.03?---Yep.

And is that your signature on the bottom of each of those pages?---Yes, it is my signature.

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All right. And does that look like the statement you gave the police?---Yes, it's the - - I know, yep.

Could you have a look at paragraphs 25 and 26?---Yep.

All right. And it - - do you agree with me then that it says that you were lying next to [the complainant's sister]?---Yep.

And then next to [the complainant's sister] was [the appellant]?---Mm hm.

And next to [the appellant] was [the appellant's brother]---Yes.

All right. So is that the situation?---I cannot remember. All I remembered was that [the appellant] was next to me.

MS BARONE: All right. Do you think maybe on the 14th of May of 03 you might have had a better idea?---I might have had a better idea. It was a lot - - it was just after then. It's been too long. This is the first time I've seen my statement - -

Yep?--- - - in 2 years.

All right?---Like in my hand. I've got it in my hand here.

All right. But you agree that probably on the 14th of May was closer - - ?---Yes.

- - to February 2002?---Mm hm.

And that's - - you probably had a better idea or a better recollection on that date?---Yes.

Okay. All right, [complainant], if you just want to put the statement to one side - - ?---Yep."

15 Later she was again asked about the appellant's position in the bed. At AB 61:

"Do you know what you - - how you were sleeping? Were you on your side or on your back or on your stomach?---I cannot remember. Like, the first time I cannot remember.

All right. Well, do you remember if [the appellant] was sleeping to the left or to the right of you?---I can't remember.

(Page 13)

Why can't you remember?---It's too long ago. I can't remember. I can't.

You're not sure if you were on your side or on your back?---I'm pretty - - like, normally when I got to sleep I sleep on my side, but I cannot - - to tell you the truth I cannot remember whether I was on my back or on my side that night.

Were you asleep when the - - or did you wake from being asleep?---Yes."

16 The subject of the appellant's position in the bed was again revisited in cross-examination at AB 65 - 66:

"Right. Do you know which way he was facing?---He was facing the right, like towards the right. He was laying on his left side, facing left, not right. Sorry, left, and I was laying on my back.

MS BARONE: He was laying on his left side?---Is that like if the - - yep, left side.

He was laying on his left side, facing left?---Sorry, right. Sorry, I don't - - I can't remember. Mmm, on his - - sorry. I was laying on my back. I can't remember how he was laying.

You've no idea?---No. All I know is that when I felt his penis his pants were down. I didn't even look at him.

All right."

17 After the lunch adjournment, counsel for the appellant continued with the following (AB 67):

"All right. Just before the break we were talking about the incident up in Geraldton?---Yes.

Yeah. And we were talking about where you said that [the appellant] had put your hand on his penis?---Yeah.

Okay. And you weren't sure where - - what position you were lying in and you weren't sure what position [the appellant] was in either?---Yes.

That's about right?---Yes.

(Page 14)

I think that's where we'd left it. So how did you know it was [the appellant's] hand?---Because he was - - well, when I went to sleep he was the one laying next to me.

All right. So were you presuming that it was [the appellant's] hand?---Yes; yes.

Presuming. Do you know what I mean by the word presuming?---Making sure. Like, made - -knowing that it's his hand?

No presuming to me means surmising or guessing in a way?---No. I knew it was [the appellant].

Okay. Well, how did you know it was [the appellant]?---Because it - - he was laying next to me and I knew it was him.

All right. Well, did you actually see the person on the other end of the hand that was touching you?---No. But he was laying next to me.

All right. So you didn't see [the appellant] next to you because it was night time, wasn't it?---Yes, it was night time.

And was it dark inside the cabin?---Yes, it was dark.

Caravan, sorry; not cabin?---Caravan, yes.

MS BARONE: All right. Dark enough so that you couldn't see other people?---Yes. It was dark enough.

Okay. Because I think when my friend asked you questions about when people were moving, you said you couldn't tell what other people were doing because it was so dark?---Yes, I could not - - I could not say.

Okay. So the hand that you felt touch you, you think it was [the appellant] because he was the one next to you when you went to sleep?---Yes.

Is that right? Okay. So if you were wrong that [the appellant] was next to you, are you wrong about whose hand it - - could you be wrong about whose hand it was?---No. It - - I know it was [the appellant]."

(Page 15)

18 At AB 70 she was then asked whether it might have been the appellant's brother touching her. The following questions and answers were put:

"So could it have been, say, [the appellant's brother] that was touching you?---I don't think it could have been. I'm - - I'm pretty sure it was [the appellant].

You don't think?---No. I'm - - I'm definitely - - I knew - - I know it wasn't [the appellant's brother].

MS BARONE: Okay?---Because he was - - he was in on another side. He was asleep.

All right. And you're making that answer because you think he was in a different position in the bed. Is that right?---Yes; and [the appellant] was next to me.

Did [the appellant] and - - around that time, can you describe if [the appellant] and [the appellant's brother] looked about the same?---No. [The appellant] is very dark and [the appellant's brother] is very fair.

Okay. What about in terms of their physical builds?---You probably - - no. You - - I - - you probably could not tell the difference. But [the appellant's brother] was always a bit like longer than [the appellant], sorry. I couldn't - - you could just like - -

Taller?---Yeah. Like he's - - you could just - - [the appellant's brother] was always like a bit skinnier, and - -

But you never touched the person - - ?---No.

- - the person who was touching you, did you?---No; only when his hand - - my hand went on his penis.

And you never felt that person's body next to you, did you?---Not - - no.

So if I said that you just assumed that it was [the appellant], would you agree with that?---Yes.

Now, I think you said this happened in February 2002. Is that right?---That - - for that? Yes. It was."

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19 In re-examination the following questions and answers appear (AB 142):

"Why do you say that he was - - how do you recall that he was next to you?---I recall that he was next to me because like before - - like everything, like he - - he touched and he had to be next to me to touch me.

How do you know it was him who touched you?---Because I know for a fact. Like, I just know it was [the appellant]. It wouldn't - - it wasn't [the appellant's brother] and it - -

And why do you say it wasn't [the appellant's brother]?---I don't know. Like, [the appellant's brother] - - I don't know, it's just [the appellant's brother] was different."

20 This evidence reveals that the complainant was, by the time she gave her evidence in 2005, uncertain about the precise location of the other people in the bed, but was certain, despite lengthy cross-examination, that it was the appellant who touched her, certain that the appellant's brother, who was the only other person who could have committed the offence, was separated from her by either the appellant, or the appellant and her sister, when the complainant went to sleep, and certain that the appellant's brother did not touch her.

21 In her written statement the complainant appeared to put the complainant's sister between the complainant and the appellant but, it is necessary to bear in mind that in her evidence she said her sister was sleeping with her head at the foot end of the mattress and, that being so, the trunk of the appellant was next to the trunk of the complainant at the other end of the mattress.

22 As well as the complainant's direct evidence that the appellant touched her, there was also circumstantial evidence pointing to the appellant as the offender. That consisted of first, the evidence that the appellant's brother was not next to her and that the appellant was when the complainant went to sleep, and second, the evidence that it was the appellant, and not his brother who, in 2003, showed sexual interest in the complainant by touching her and having sexual intercourse with her. The appellant's counsel submitted that this evidence was inadmissible, but it was not objected to at trial and, in my opinion, it was clearly relevant retrospectant evidence. See R v E J Smith [1984] 1 NSWLR 462which I refer to below. The time between the offences and the later sexual interest

(Page 17)

may go to the weight of the evidence, but that does not affect its relevance.

23 The grounds of appeal are as follows:

"1. The learned trial Judge erred in law by failing to direct himself as to whether the prosecution had negatived beyond reasonable doubt the possibility that the Complainant had mistakenly identified the Appellant as the offender.

2. The learned trial Judge erred in law by failing to give reasons as to why he believed the prosecution had proved the identity of the Appellant as the offender.

3. The verdicts were unsafe and unsatisfactory in that they were unreasonable and have occasioned a miscarriage of justice in that a Jury properly instructed could not have been satisfied beyond reasonable doubt that it was the Appellant who committed the offence [sic]."

Ground 1 - Direction concerning identify

24 Grounds 1 and 2 both complain about the content of the trial Judge's reasons for decision.

25 Section 119(3) of the Criminal Procedure Act 2004 (WA) states that:

"If any written or other law -

(a) requires … a warning … to be given to the jury in certain circumstances;

…

the judge in a trial by a judge alone must take the requirement … into account if those circumstances arise in the course of the trial."

26 Section 120(2) of the Criminal Procedure Act provides that:

"The judgment of the judge in a trial by a judge alone must include the principles of law that he or she has applied and the findings of fact on which he or she has relied."

(Page 18)

27 A discussion about these provisions appears in A Child v Western Australia (2005) 153 A Crim R 406 and in Bropho v The State of Western Australia [2006] WASCA 109.

28 In this case, identification of the appellant was an issue raised by the line of cross-examination. It emerged during the evidence that the complainant was not able to see the person committing the offences. Nor did her sense of hearing allow the complainant to identify the offender. However, as I have pointed out, the complainant gave evidence that she identified the offender as the appellant via her sense of touch. The cross-examination raised the issue of identification and of the reliability of the evidence.

29 The circumstances of this case were that the identification of the appellant was an issue, but it was not a case where the complainant had to identify a person previously unknown to the complainant out of a large category of unknown persons. There were only two males present. The offences were committed either by the appellant or his brother. The complainant knew both of them. She had known the appellant all his life. The matter of significance which had to be isolated and considered was the issue about the reliability of the complainant's identification by touch in the absence of the other usual senses used in identification. However, this was in the light of the circumstantial evidence, consisting of the later sexual interest the appellant showed in the complainant, the lack of any evidence that the other boy showed such an interest and the position of the people on the mattress when the complainant went to sleep.

30 The trial Judge made it clear that he was aware of the issue of identification and that he had to be satisfied beyond reasonable doubt that it was the appellant (and not his brother) who was the offender. He said:

"The defendant, as is his right, elected not to give evidence. And of course it is necessary that I be satisfied beyond reasonable doubt in respect of the first three incidents that the offender was the defendant, that he dealt with the complainant in the manner alleged …"

I would therefore dismiss ground 1.

Ground 2 - Inadequacy of reasons

31 In ground 2 the appellant also complains about the inadequacy of the reasons for decision. In Fleming v The Queen (1998) 197 CLR 250, Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ pointed out, in

(Page 19)

relation to similar statutory provisions, that although the legislation does not use the expression "reasons for judgment", the requirements of the law are not satisfied merely by a bare statement of the principles of law that the Judges applied and the findings of fact that the Judges made. There must be exposed the reasoning process linking them and justifying the latter and ultimately the verdict that is reached. See [28]. In

Domican v The Queen

(1992) 173 CLR 555 at 561 the High Court said that ordinarily the respective cases for the prosecution and the accused must be accurately and fairly put to the jury. The general requirements of law concerning reasons for decision are set out in

A Child v Western Australia

(

supra

). It was necessary for his Honour to identify the fact that there was an issue about identification, to refer to the case that the prosecution put to establish the identity of the offender as the appellant (the complainant's express statement that she perceived the appellant as being the person who touched her, the circumstantial evidence arising from the later sexual interest the appellant showed in the complainant, the lack of any interest shown by the other boy, the position of the people on the mattress) and then to refer to the case being put forward by the appellant (that the complainant's evidence was unreliable, that her sense of touch did not enable her to identify the appellant and that she could not by visual or aural means identify the appellant).

32 Even though this Court should not be overcritical of the reasons given by a judicial officer in a busy court (see Nevermann (1989) 43 A Crim R 347 at 350; Garrett v Nicholson (1999) 21 WAR 226), his Honour's reasons did not adequately identify the issues and deal with them.

33 All his Honour said was:

"I am satisfied beyond reasonable doubt that the three dealings alleged in the first incident occurred and in the manner described by the complainant. I'm satisfied that the - those dealings occurred in the early part of the year 2002 when the complainant was under the age of 16 years. I am satisfied that the dealings were initiated by the defendant and although not invited and, one suspects, not appreciated by the complainant, she did nothing to desist. That is not to the point, since to engage in sexual activity with a person under the age of 16 years, consensual or otherwise, is an offence and I am satisfied beyond reasonable doubt on the evidence that the defendant indecently dealt with the complainant in the three ways alleged.

(Page 20)

That is that he placed his hand on her breast, that he touched her vagina and that he placed her hand on his penis.

And the defendant will be convicted as charged in respect of each count of indecent dealing in the complaints before the court."

34 These reasons give no indication that there was an identification issue and did not advert to any of the evidence relevant to that issue.

35 I would uphold ground 2.

Ground 3 - The verdict of guilty is unreasonable or cannot be supported having regard to the evidence

36 Insofar as this ground asserts that the verdict was unsafe and unsatisfactory, the appellant is relying on s 30(3)(a) of the Criminal Appeals Act 2004. This section, or its equivalent in other States, has been discussed and analysed on many occasions by the High Court. Some of the more important discussions may be found in Chamberlain v The Queen (No 2) (1984) 153 CLR 521, Morris v The Queen (1987) 163 CLR 454, M v The Queen (1994) 181 CLR 487, MFA v The Queen (2002) 213 CLR 606, Raspor v The Queen (1958) 99 CLR 346, Weiss v The Queen (2005) 80 ALJR 444 and Darkan v The Queen (2006) 80 ALJR 1250.

37 From these cases, and other cases to which they refer, a number of propositions emerge:

(a) The words of the section should be used and not the many "judicial expositions" about what the words mean.

Weiss

(

supra

) [9] and [33]. Thus, a ground relying on s 30(3)(a) should complain that the verdict of guilty, having regard to the evidence is unreasonable or cannot be supported, rather than using phrases such as "unsafe and unsatisfactory", "unjust or unsafe", or "dangerous or unsafe": see

M v The Queen

at 492,

MFA v The Queen

at [25] and [58], or "dangerous" or "unsatisfactory":

Chamberlain (No 2)

at 618.

(b) The Court of Appeal may interfere with a verdict under s 30(3)(a) even though there has been no misdirection, erroneous reception or rejection of evidence, no complaint as to the course of the trial and there is some evidence on which a reasonable jury might convict: Chamberlain

(Page 21)

(No 2)

at 531;

Morris

at 473. If the issue is that there was no evidence, then that will raise an allegation of an error of law: see

Raspor

(

supra

) at 350;

M v The Queen

at 492;

Morris

at 473.

(c) The function of the Court of Appeal in determining whether a verdict of guilty is unreasonable or cannot be supported having regard to the evidence is different from that of a trial Judge considering whether, as a matter of law, there is evidence on which the accused could be convicted:

MFA v The Queen

[26].

(d) When considering an appeal under s 30(3)(a), the Appeal Court is obliged to review the whole record of the trial and to make its own independent assessment of the evidence: M v The Queen at 492, Weiss [41] and Darkan [84]. However, in doing so it must make due allowance for the "natural limitations" that exist in the case of an appellate court proceeding on the record: Weiss at [41]; Fox v Percy (2003) 214 CLR 118 at [23], Darkan [84]. These "natural limitations" include the fact that:

(i) the appellate court does not typically get taken to, or read, all the evidence received at the trial: Fox v Percy [23];

(ii) the jury or Judge has had the benefit of having seen and heard the witnesses: M v The Queen at 493; Fox v Percy at [23]; Dearman v Dearman (1908) 7 CLR 549 at 561, but bearing in mind that "an ounce of intrinsic merit or demerit … is worth pounds of demeanour": Fox v Percy [30] quoting Atkin LJ, and

(iii) that the jury (or in this case the Judge) is the body entrusted with the primary responsibility of determining guilt or innocence: M v The Queen at 493.

"Full regard" must be paid to these natural limitations:

M v The Queen

at 493, citing Deane J in

Chamberlain (No 2)

at 621.

(e) The "natural limitations" mean that on all but "rare occasions" it will be impossible to conclude that a verdict of guilt by the jury is unreasonable and cannot be supported having regard to the evidence. See Street CJ in

(Page 22)

R v Smith

[1979] 2 NSWLR 310, cited by Deane J in

Chamberlain (No 2)

at 621;

Lai v The Queen

[1990] WAR 151 at 466.

(f) The task of the appellate court is not to decide what a reasonable jury, or the jury in the particular case, would decide. Instead, it must decide for itself as to whether it has a reasonable doubt:

Weiss

at [35] and[41]. If it does, then the jury should, in most cases, also have experienced such doubt:

M v The Queen

at 494.

(g) An Appeal Court may experience doubt about the guilt of the appellant where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, and if the evidence upon the record itself contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court to conclude that even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted. In those circumstances the court is bound to act and to set aside a verdict based on that evidence: M v The Queen at 494.

38 In my opinion, the third of the "natural limitations" referred to in (c) above means that the jury's (or Judge's) verdict may tip the balance against allowing the appeal if the Appeal Court's view, after reviewing the evidence, is finely balanced between determining whether there is doubt or not. However, in a case where a Judge is the tribunal of fact and the reasons for decision contain an irregularity of the type which exists in this case, the verdict of the Judge is not likely to carry much, if any, weight in the mind of the appellate court.

39 However, in this case, although the trial Judge's reasoning through to a verdict was flawed by omission, full regard may still be given to the fact that his Honour had the benefit of seeing and hearing the complainant give her evidence and the fact that he concluded that she was "generally a thoughtful and truthful witness as to the events about which she has spoken". Although demeanour is generally not as important as the content of the evidence given by a witness, the words of Isaacs J in Darman at 561 (referred to with approval in Fox v Percy at [23]) are still important. His Honour said:

"The mere words used by the witnesses when they appear in cold type may have a very different meaning and effect from

(Page 23)

that which they have when spoken in the witness box. A look, a gesture, a tone or emphasis, the hesitation or an undue or unusual alacrity in giving evidence, will often lead a Judge to find a signification in words actually used by a witness that cannot be attributed to them as they appear in the mere reproduction in type."

40 It is also important to observe that there was no contest between the complainant and any other witness.

41 If this appeal is to succeed, the appellant will have to demonstrate either that the complainant's evidence lacked credibility (despite his Honour's assessment to the contrary) or that there were such discrepancies or inadequacies in the complainant's evidence that this Court should conclude that a reasonable doubt existed about the guilt of the appellant.

42 The complainant's evidence reveals that, despite the determined efforts made in cross-examination to throw doubt on the complainant's identification of the appellant, the complainant never wavered in her evidence that it was the appellant who touched her. As mentioned earlier, if the offence was not committed by the appellant, then the only other person it could have been was the appellant's brother. However there was nothing in the circumstances which left open the possibility that the appellant's brother committed the offences. The complainant did reveal some uncertainty about the precise location in the bed of the persons other than the appellant, but this not surprising in view of the fact that she gave evidence in 2005 about an incident which occurred in 2002. In the statement she gave to the police on 14 May 2003 she said that her sister was next to her and that the appellant was next to her sister. At one stage in her oral testimony she seemed to say that the appellant was next to her on one side and her sister next to her on the other side. However, these inconsistencies never led her to waver from her evidence that it was the appellant who touched her. On that subject she was entirely unshaken. I see no reason to doubt the trial Judge's assessment of the complainant as a truthful witness.

43 I now turn to consider the value of the evidence of the complainant that it was the appellant who touched her. When a person gives evidence in court of an earlier out of court event, they do so by appearing to report what they perceive. They will perceive the event with one or other or more of their senses, namely sight, hearing, taste, touch or smell. Visual identification is the usual means of identification. The appellant's

(Page 24)

argument seemed to assume that visual identification was necessary and was more reliable than identification by the other senses, and that identification by touch was to be given no value at all. The law, however, recognises that visual identification may be unreliable and hence the need for a warning to the jury. See

Domican

. Voice identification is also possible. See

Bulejcik v The Queen

(1996) 185 CLR 375 and

Nguyen v The Queen

(2002) 26 WAR 59. Identification via the sense of touch is also possible, although likely to be more unusual.

R v Adler

(2000) 52 NSWLR 451 per Heydon JA.

44 When a witness identifies a person involved in an event, it might appear to be a statement of a clear proposition. However, as Gibbs CJ said in Alexander v The Queen (1981) 145 CLR 395 at 403 "identification is an act of the mind". This is so by whatever sense the mind is informed: R v E J Smith [1984] 1 NSWLR 462 at 424. Thus the witness giving identification evidence is in fact asserting a series of propositions. In Craig v The King (1933) 49 CLR 429 at 446, Evatt and McTiernan JJ said:

"An honest witness who says 'The prisoner is the man who drove the car,' whilst appearing to affirm a simple, clear and impressive proposition, is really asserting: (1) that he observed the driver, (2) that the observation became impressed upon his mind, (3) that he still retains the original impression, (4) that such impression has not been affected, altered or replaced, by published portraits of the prisoner, and (5) that the resemblance between the original impression and the prisoner is sufficient to base a judgment, not of resemblance, but of identity."

45 A similar sequence of propositions can be stated in relation to identification by hearing or by touch.

46 Both counsel told this Court that they had not made any effort to locate cases dealing with identification by touch. In the absence of any authority on the point, my opinion is that the same considerations that arise in relation to voice identification or visual identification arise in relation to identification employing the sense of touch.

47 In this case the complainant gave evidence she had known the appellant for all her life. They were cousins and had close contact with each other. She was also familiar with the appellant's brother. The appellant was later intimately involved with the complainant. This later evidence of sexual activity and touching is relevant retrospectant

(Page 25)

evidence, just as in the case of voice identification where a witness may acquire knowledge of the accused's voice after the event in issue:

R v E J Smith

(

supra

) at 475.

48 It is clear that the complainant had difficulty in articulating the propositions involved in her evidence that it was the appellant who touched her. This is not at all surprising. In R v E J Smith (supra) at 478, O'Brien CJ observed, in relation to voice identification, that while many features of a person which are visually noticeable are fairly readily capable of description so as to give reasonable reproduction in every day vocabulary, the features of a voice are not by any means as readily capable of verbal description. The Chief Justice gave an example of the fact that a person will readily recognise the voice of a political figure heard regularly on the electronic media, but will be quite unable to convey by words the impression of that voice to one who has not heard it. The same comments apply to the fact that a person may become familiar with a person's touch. On the two occasions when the complainant was asked (ie by the police in 2003 and then at trial) about who touched her in February 2002 it was after the complainant had experienced other occasions when she had been touched in a sexual way by the appellant. She steadfastly held to her evidence that in February 2002 she was touched by the appellant. In my opinion, the uncertainties she expressed about the precise location of the appellant and her sister in the bed, and her agreement that she thought that the hand that touched her was that of the appellant because he was next to her, do not diminish the certainty of her evidence about who touched her and her certainty that the appellant's brother was not lying next to her and did not touch her. The uncertainties or inconsistencies do not lead me to conclude that there is any reasonable doubt about the guilt of the appellant.

49 The complainant was prepared to agree with counsel for the appellant when counsel said "So if I said that you just assumed it was the [appellant] would you agree with that?", but in my opinion that is an example of the kind of question likely to produce an answer of limited value. The limited value of the testimony elicited from such a question is amply demonstrated by the fact that the complainant also agreed with counsel's suggestion that she "presumed" that it was the appellant, only to have it revealed a few questions later that the complainant did not know what the word "presumed" meant.

50 A reading of the whole of the evidence leaves me in no doubt that it was the appellant who touched the complainant and committed the offences. I am therefore satisfied on the whole of the evidence that the

(Page 26)

trial Judge's verdict was not unreasonable and can be supported having regard to the evidence,.

51 Ground 3 should be dismissed.

The application of s 30(4) of the Criminal Appeals Act

52 The result is that I have upheld ground 2 and dismissed grounds 1 and 3. The conclusion, therefore, is that there were irregularities in the trial, but that these did not affect the evidence which was led. The irregularities involved a failure on the part of the trial Judge to spell out what he was required to in his reasons for decision. That leaves for consideration the provisions of s 30(4) of the Criminal Appeals Act 2004 which reads:

"Despite subsection (3), even if a ground of appeal might be decided in favour of the offender, the Court of Appeal may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred."

53 Having upheld ground 2, the Court has a discretion about whether it will dismiss the appeal or allow it. In Weiss (supra) at [41], the High Court said that the application of this provision was to be undertaken in the same way as the Court decides whether the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence. I have already set out what is involved in that process.

54 The Court in Weiss at [45] said that no single universally applicable criterion could be formulated which identifies cases in which it would be proper for an appellate court to allow the appeal ("not to dismiss the appeal"), even though persuaded that the evidence properly admitted at trial proved beyond reasonable doubt the accused's guilt. The Court said (at [45] and [46]):

"What can be said, however, is that there may be cases where it would be proper to allow the appeal and order a new trial, even though the appellate court was persuaded to the requisite degree of the appellant's guilt. Cases where there has been a significant denial of procedural fairness at trial may provide examples of cases of that kind … [and those which] amount to such a serious breach of the presuppositions of the trial as to deny the application of the common form criminal appeal provision with its proviso."

(Page 27)

55 In Wilde v The Queen (1988) 164 CLR 365, which was referred to in Weiss, Brennan, Dawson and Toohey JJ said that the proviso (ie s 30(4)) has no application where an irregularity "goes to the root of the proceedings" so that the accused has not had a proper trial. In other words, the error is so radical or fundamental that they "exclude the application of the proviso", or that the trial had so far miscarried as hardly to be a trial at all: Darkan [94].

56 In this case, because of the Court's consideration of ground 3, there has been an independent assessment of the evidence, which leads me to the conclusion that there was no doubt about the appellant's guilt. The irregularities which occurred were not in the conduct of the trial itself. The irregularities were in the articulation of the trial Judge's reasons for decision. The irregularities did not go to the root of the proceedings. In my opinion, this is an appropriate case for the application of s 30(4). I consider there was no substantial miscarriage of justice and I would therefore dismiss the appeal.

57 BUSS JA: The background facts and the grounds of appeal are set out in the reasons of Pullin JA.

The complainant's evidence of identification

58 The reasons of Pullin JA set out most of the complainant's evidence as to identification. There is, however, some other relevant evidence. The complainant said, at AB 52 - 53, in cross-examination:

"MS BARONE: All right. And do you remember who slept next to you?---I slept next to - - I'm just - -

Make sure you don't guess. You need to - - ?---No, that's why I'm definite, I'm thinking.

All right?---[The appellant], me, [the complainant's sister] and [the appellant's brother].

All right. [The appellant], you - - ?---Or it could have been, sorry - - I know that I was next to [the appellant].

Okay?---But I don't know if I was on the side of the bed, sorry, or he was - - he was next to [the complainant's sister] and I was on the side of the bed. Or I - - I'm sorry, I don't know if [the complainant's sister] - - I know that I was next to him. I don't know if I was on the side of the bed or I don't know if I was in the middle of the bed - I don't know, I can't remember - - -

(Page 28)

WITNESS: - - - I can't remember.

MS BARONE: Right. Well, do you remember who you were next closest to?---[The appellant].

[The appellant]. Are you sure about that?---Yes, I'm positive.

Right. And that was the very first sleeping arrangement?---Yes.

And you're positive about that, are you?---Yes.

Why are you positive about that?---Because that's when he started doing things and I moved away."

Later, in re-examination, the complainant said, at AB 141 - 142:

" … when you all first went to sleep can you remember where you were or who you were next to?---I remember being next to my sister but [the appellant], like - - I don't know if my sister was on the edge of the bed or was swapped around with them two because I don't know, like, if - - if - - either my sister was on the edge of the bed or - - -

WITNESS: - - - my sister was on the edge of the bed or [the appellant] was on the edge of the bed. Like, you know, like I don't know if - - because I was next to [the appellant] and I was next to my sister. I was in the middle of them two.

MS JOHNSTON: Was at the one time that you were in between the two of them?---Yes. Yes, that's - - like, that's the first arrangement. I was - - I was next to my - - [the appellant]. I was next to [the appellant] and my - - I don't - - my sister, yes, she - - she must have been on - -

Don't - - don't guess?---Yes, I can't - -

If you can remember. Okay?---I can't. I'm sorry, I can't remember - -

All right?--- - - where she was.

So can you remember the first arrangement or not?---The first - - like, it's - - it's - - only I remember is that us four were in the bed and [the appellant's mother] was out in the caravan.

(Page 29)

Okay. You've given evidence that [the appellant] was next to you - - ?---Yes.

- - at one stage?---Yes."

Sections 119 and 120 of the Criminal Procedure Act 2004 (WA)

59 Sections 119 and 120 of the Criminal Procedure Act 2004 (WA) applied to the appellant's trial. Section 119 provides, relevantly:

"(1) In a trial by a judge alone, the judge must apply, so far as is practicable, the same principles of law and procedure as would be applied in a trial before a jury.

(2) ...

(3) …"

By s 120, relevantly:

"(1) In a trial by a judge alone -

(a) the judge may make any findings and give any verdict that a jury could have made or given if the trial had been before a jury

;

and

(b) any finding or verdict of the judge has, for all purposes, the same effect as a finding or verdict of a jury.

(2) The judgment of the judge in a trial by a judge alone must include the principles of law that he or she has applied and the findings of fact on which he or she has relied.

(3) …"

60 In Fleming v The Queen (1998) 197 CLR 250, Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ, in a joint judgment, construed provisions of the Criminal Procedure Act 1986 (NSW). The relevant provisions of that Act (which have subsequently been repealed) included these:

(a) Section 33(1) provided:

"A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a

(Page 30)

jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury."

(b) Section 33(2) provided:

"A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied."

For the purposes of this appeal, at least, there is no material difference in effect between s 33(1) of the New South Wales Act and s 120(1) of the Western Australian Act or between s 33(2) of the New South Wales Act and s 120(2) of the Western Australian Act.

61 In Fleming, their Honours said, at 262 - 263 [27] - [30], in relation to s 33(2) of the New South Wales Act:

"[27] … the requirements of s 33(2) … are expressed in terms of legal imperatives and a failure to observe either or both of them is to make a wrong decision on a question of law within the second limb of s 6(1) of the

Criminal Appeal Act

. Such failure may also mean that justice has miscarried, within the meaning of the third limb, because justice according to law, to which the accused was entitled, included compliance with the mandatory requirements of s 33.

[28] … whilst s 33(2), when specifying that which a 'judgment' must include, does not use the expression 'reasons for judgment', it should not be taken as intending that the requirements of s 33(2) be satisfied merely by a bare statement of the principles of law that the judge has applied and the findings of fact that the judge has made. Rather, there must be exposed the reasoning process linking them and justifying the latter and, ultimately, the verdict that is reached.

[29] … the judgment may record what the judge regarded as a principle of law which then was applied, but the principle may have been erroneously formulated. There may have been a literal compliance with s 33(2), but by this means there is disclosed an error of law which, without there being a breach of s 33(2), attracts at least the second limb of s 6(1) of the Criminal Appeal Act.

[30] … if the judgment fails to show that the judge applied a relevant principle of law, two possibilities are presented. One possibility is that, notwithstanding such failure, the principle was applied. Upon that hypothesis, there has been a breach of s 33(2) by reason of the

(Page 31)

omission from the judgment. The other possibility is that the principle was not applied, with the result that, independently of the question of breach of s 33(2), there has been an error of law which may attract at least the second limb of s 6(1) of the

Criminal Appeal Act

. The obligation imposed by s 33(2) was to ensure that the judgment included all principles of law which the judge applied. Unless the judgment shows expressly or by implication that the principle was applied, it should be taken that the principle was not applied, rather than applied but not recorded."

In the passage I have just cited, reference is made to s 6(1) of the

Criminal Appeal Act 1912

(NSW). For the purposes of this appeal, at least, there is no material difference in effect between the first limb of s 6(1) of the New South Wales Act and s 30(3)(a) of the

Criminal Appeals Act 2004

(WA), the second limb of s 6(1) of the New South Wales Act and s 30(3)(b) of the Western Australian Act, the third limb of s 6(1) of the New South Wales Act and s 30(3)(c) of the Western Australian Act or the proviso to s 6(1) of the New South Wales Act and s 30(4) of the Western Australian Act.

62 In my opinion, the obligations imposed by s 120(1) and (2) of the Criminal Procedure Act 2004 (WA) are, in substance, those which were identified and explained in Fleming in the context of the then applicable and comparable New South Wales legislation. The obligations are not limited to responding to and addressing the submissions of the parties as to the applicable legal principles, warnings and directions, but extend to identifying and applying any other legal principles, warnings and directions which are relevant. See R v Massey [2000] ACTSC 107 at [47]; R v Collins [2004] ACTSC 48 at [4].

63 In R v Tran [2003] ACTSC 53 at [4] - [5], Gray J, sitting as a Judge alone, directed himself, as follows:

"[4] I direct myself in accordance with the law in relation to all of the matters which a jury would ordinarily be directed before retiring to consider its verdict. The accused is entitled to have a fair trial according to law. As the tribunal of fact, as well as the tribunal of law, it is my function to find the facts and to draw inferences from them as well as to apply the law to those proven facts. I must deliver my verdict according to the evidence. The burden of proving the charge lies wholly on the prosecution and no burden at all lies upon the accused. If the accused makes or points to an explanation which is consistent with innocence, the accused does not have to prove it. It is for the prosecution to

(Page 32)

disprove it or show that it is irrelevant, otherwise the prosecution will not have proved its case. The accused is presumed to be innocent until at the conclusion of the hearing the evidence establishes guilt. The standard of proof lies upon the prosecution to prove each and every element of the offence beyond reasonable doubt. Where, in this judgment, I make a finding of a particular fact, or speak of being satisfied of any matter, I reach that finding having been satisfied beyond reasonable doubt.

[5] It is for the prosecution to prove each and every element of the charge beyond reasonable doubt before a verdict of guilty can be returned. If I am satisfied that there may be an explanation consistent with the innocence of the accused in respect of any charge, or I am unsure where the truth lies, then in those circumstances, I must find the charge has not been proved to the level of satisfaction required by the law and must acquit."

In general, these directions are apposite to a trial before a Judge alone in this State.

Ground 1: the learned Judge's direction as to identity

64 The learned Judge said, in his reasons:

" … The defendant, as is his right, elected not to give evidence. And of course it is necessary that I be satisfied beyond reasonable doubt in respect of the first three incidents that the offender was the defendant, that he dealt with the complainant in the manner alleged …"

65 The appellant contended at trial that the complainant was mistaken as to the identity of the person who allegedly indecently dealt with her. If the complainant was indecently dealt with as alleged by her, then, on the evidence, the offender was either the appellant or his brother. The passage from his Honour's reasons, which I have cited, contains an adequate direction that his Honour must be satisfied beyond reasonable doubt that it was the appellant, and not his brother, who committed the alleged offences. It is apparent from other passages in his Honour's reasons that his Honour approached the issue of identification on the basis that the respondent had the burden of establishing beyond reasonable doubt that the appellant was the offender. Ground 1 is without merit.

(Page 33)

Ground 2: the adequacy of the learned Judge's reasons

66 It is the duty of a court of first instance, from which an appeal lies to a higher court, to give reasons for the decision which it makes. See Carlson v King (1947) 64 WN (NSW) 65 per Jordan CJ at 66. In Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273, the Full Court of the Supreme Court of Western Australia said, at 282 - 283 [26] - [29]:

" … the giving of reasons is a normal (albeit not universal) incident of the judicial process:

Public Service Board of New South Wales v Osmond

(1986) 159 CLR 656 at 667;

Soulemezis v Dudley (Holdings) Pty Ltd

(1987) 10 NSWLR 247 at 269 - 270, 278; and

Beale v Government Insurance Office of New South Wales

(1997) 48 NSWLR 430 at 441. That is because 'the duty is a function of due process, and therefore of justice':

Flannery v Halifax Estate Agencies Ltd

[2000] 1 WLR 377 at 381, per Henry and Laws LJJ and Hidden J. Fairness requires that the parties should know why they have won or lost. A requirement to give reasons is likely to produce a more soundly based, rational judgment:

Flannery

(

ibid

); and see

Fletcher Construction Australia Ltd v Lines MacFarlane & Marshall Pty Ltd (No 2)

(2002) 6 VR 1 at 31. The requirement also furthers judicial accountability:

Soulemezis

, at 279, per McHugh JA; and

Beale

, at 442, per Meagher JA.

Where there is a right of appeal, the reasons must be sufficient to give effect to that right. The basis for the decision must be apparent, as otherwise the losing party cannot know whether there has been a mistake of law or of fact. Just what that will involve depends upon the nature of the case. Some cases turn upon a simple contest of credibility between two witnesses. Others involve detailed and complex factual and legal issues requiring close reasoning and analysis.

Reasons need not be lengthy and elaborate: Re Powter; Ex parte Powter (1945) 46 SR (NSW) 1 at 5; Beale, at 443; nor do they need to refer to all the evidence led in the proceedings: Mifsud v Campbell (1991) 21 NSWLR 725 at 728. However, relevant evidence should be referred to (albeit not necessarily in detail) and, where there is conflicting evidence of significance to the outcome, both sets of evidence should be referred to. Where one set of significant evidence is preferred over another,

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the trial Judge should set out findings sufficient to explain why:

Beale

, at 443. Similarly, where a dispute involves a form of "intellectual exchange, with reasons and analysis advanced on either side", the Judge "must enter into the issues canvassed before him and explain why he or she prefers one case over the other":

Flannery

, at 382.

Inadequacy of reasons does not necessarily amount to an appealable error. An appeal court will only intervene when no reasons have been given in circumstances in which they were required, or when the inadequacy is such as to give rise to a miscarriage of justice: Beale, at 444. Nor does an appealable error arising from inadequate reasons necessarily result in a new trial. The appeal court is entitled to consider the matter and, if it can do so (where, for example, only one conclusion is reasonably open on the available evidence), it may itself decide the matter: Beale, at 444."

67 In the present case, the learned Judge made findings in relation to the complainant's credit, as follows:

"As I've said, the State case was essentially presented by evidence from the complainant. In substance, I thought that the complainant was generally a thoughtful and truthful witness as to the events about which she has spoken. …"

68 The learned Judge decided that the appellant was guilty of the offences in question. His Honour's reasoning was as follows:

"I am satisfied beyond reasonable doubt that the three dealings alleged in the first incident occurred and in the manner described by the complainant. I'm satisfied that the - - those dealings occurred in the early part of the year 2002 when the complainant was under the age of 16 years. I am satisfied that the dealings were initiated by the defendant and although not invited and, one suspects, not appreciated by the complainant, she did nothing to desist. That is not to the point, since to engage in sexual activity with a person under the age of 16 years, consensual or otherwise, is an offence and I am satisfied beyond reasonable doubt on the evidence that the defendant indecently dealt with the complainant in the three ways alleged. That is that he placed his hand on her breast, that he touched her vagina and that he placed her hand on his penis.

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And the defendant will be convicted as charged in respect of each count of indecent dealing in the complaints before the court."

69 The learned Judge's reasons on the issue of the identification of the offender were inadequate. His Honour did not refer to any of the complainant's evidence. In particular, he did not mention any of the uncertainties or inconsistencies in her evidence relating to identification. His Honour did not explain why he found that it was the appellant (and not his brother) who had indecently dealt with her. As I have mentioned, his Honour stated that the complainant was "generally a thoughtful and truthful witness as to the events about which she has spoken". But the critical point, in relation to identification, was whether the complainant's evidence, which implicated the appellant, was reliable. A witness who is, generally, thoughtful and truthful, may nevertheless be unreliable in his or her account of some material events; alternatively, the account may not be sufficiently reliable to support the conviction of an accused. It was necessary for his Honour to evaluate the complainant's evidence, which implicated the appellant, in the context of the circumstances of the alleged offences and the complainant's evidence as a whole, and make findings as to its reliability. His Honour's failure to undertake that task, and give adequate reasons on the issue of the identification of the offender, constituted an error of law.

70 Ground 2 has been made out.

Ground 2: s 30(3) and (4) of the Criminal Appeals Act

71 Section 30(3) of the Criminal Appeals Act provides that this Court must allow an appeal against a conviction by an offender if, in its opinion:

(a) the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported;

(b) the conviction should be aside because of a wrong decision on a question of law by the Judge; or

By s 30(4):

"Despite subsection (3), even if a ground of appeal might be decided in favour of the offender, the Court of Appeal may

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dismiss the appeal if it considers that no substantial miscarriage of justice has occurred."

72 In Weiss v The Queen (2005) 80 ALJR 444, Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ enunciated, at 454 [39], three fundamental propositions in relation to the proviso to section 568(1) of the Crimes Act 1958 (Vic) (a provision indistinguishable, in substance, from s 30(4) of the Criminal Appeals Act) which, their Honours said, must not be obscured:

"First, the appellate court must itself decide whether a substantial miscarriage of justice has actually occurred. Second, the task of the appellate court is an objective task not materially different from other appellate tasks. It is to be performed with whatever are the advantages and disadvantages of deciding an appeal on the record of the trial; it is not an exercise in speculation or prediction. Third, the standard of proof of criminal guilt is beyond reasonable doubt."

Later, at 454 - 455 [41], their Honours summarised the statutory task which must be performed by an appellate court in deciding whether to dismiss an appeal against conviction on the ground that no substantial miscarriage of justice has occurred:

"That task is to be undertaken in the same way an appellate court decides whether the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence. The appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the 'natural limitations' that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty. There will be cases, perhaps many cases, where those natural limitations require the appellate court to conclude that it cannot reach the necessary degree of satisfaction. In such a case the proviso would not apply, and apart from some exceptional cases, where a verdict of acquittal might be entered, it would be necessary to order a new trial. But recognising that there will be cases where the proviso does not apply does not exonerate the appellate court from examining the record for itself."

(Page 37)

Their Honours acknowledged, at 455 [44], that no single universally applicable description of what constitutes "no

substantial

miscarriage of justice" can be given. They added, however, that one negative proposition may safely be offered:

"It cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty."

Also see

Darkan v The Queen

(2006) 80 ALJR 1250 at 1267 - 1268 [84], 1269 [94] - [96].

73 The learned Judge found that the complainant was indecently dealt with, in the manner she alleged, and that finding is not challenged in this appeal. It follows from the nature of the offences and the circumstances of their commission that the offender was either the appellant or his brother. The critical issue, in the context of his Honour's failure to give proper reasons, is whether this Court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, that the appellant was the offender.

74 The complainant asserted, on several occasions in her evidence, that the appellant was the person who had indecently dealt with her. The basis for that assertion was explored in cross-examination. She said, relevantly:

(a) she was positive she was next to the appellant because "that's when he started doing things and I moved away" (AB 53);

(b) she knew it was the appellant's hand which touched her because "when I went to sleep he was the one laying next to me" (AB 67);

(d) she thought it was the appellant who touched her because he was the one next to her when she went to sleep (AB 68);

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(e) she did not think it could have been the appellant's brother who touched her, and she was "pretty sure" it was the appellant (AB 70);

(f) she knew it was not the appellant's brother who touched her because he was in a different position in the bed and the appellant was next to her (AB 71);

(g) she never touched the person who was touching her, except when her hand "went on his penis", and she never felt that person's body next to her (AB 71);

(h) she "assumed" that it was the appellant who touched her (AB 71).

There is some doubt as to whether the complainant knew the meaning of the word "assumed". It is apparent, from earlier cross-examination (at AB 67), that she did not know the meaning of the word "presumed". This point was not pursued either in cross-examination or re-examination.

75 The complainant reiterated in re-examination (at AB 142) that she knew it was the appellant who had touched her. It was not the appellant's brother because "[the appellant's brother] was different". She did not explain, however, and she was not asked to explain, how he was different.

76 The complainant's evidence as to the position of the children in the bed when she went to sleep was inconsistent with a prior written statement which she signed and gave to the police. The inconsistency is of some significance in that the complainant relied, in part, on her assertion, in evidence at the trial, that the appellant was next to her when she went to sleep, as the basis for her contention that it was the appellant, and not his brother, who had indecently dealt with her.

77 The offences in question were committed in February 2002. The prior written statement was made on 14 May 2003. The trial occurred on 5 and 6 July 2005. When the offences were committed the complainant was aged 15, the appellant was aged 13, the appellant's brother was aged 14, and the complainant's sister was 16 or 17 years of age.

78 In the prior written statement, the complainant said that when she went to sleep the position of the children in the bed was as follows. She was on one side of her sister, the appellant was on the other side of her sister, and the appellant's brother was next to the appellant.

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79 The complainant's evidence-in-chief in relation to the position of the children in the bed was, relevantly, as follows:

(a) "I had [the appellant] next to me, then my sister and then [the appellant's brother]"(AB 20);

(b) her sister and the appellant's brother had their heads at the foot end of the bed and she and the appellant had their heads at the other end (AB 20).

80 The complainant said in cross-examination:

(a) she was not sure whether both her sister and the appellant's brother had their heads at the foot end of the bed (AB 54);

(b) when confronted with her prior written statement, the complainant said she probably had a better recollection on 14 May 2003 (the date of the written statement) rather than at the date of her evidence (5 July 2005) as to the position of the children in the bed (AB 57, 76, 78);

(d) she knew it was the appellant's hand that touched her because when she went to sleep "he was the one laying next to me" (AB 67);

(e) she thought it was the appellant who touched her because he was next to her when she went to sleep (AB 68);

(f) she asserted that the appellant was definitely next to her when she went to sleep (AB 77, 78), but conceded that she had a better recollection of events on 14 May 2003, when she made the prior written statement (AB 76, 78).

81 The complainant said in re-examination (at AB 141 - 142):

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WITNESS: - - - my sister was on the edge of the bed or [the appellant] was on the edge of the bed - Like, you know, like I don't know if - - because I was next to [the appellant] and I was next to my sister. I was in the middle of them two.

MS JOHNSTON: Was [th]at the one time you were in between the two of them?---Yes. Yes, that's - - like, that's the first arrangement. I was - - I was next to my - - [the appellant]. I was next to [the appellant] and my - - I don't - - my sister, yes, she - - she must have been on - -

Don't - - don't guess?---Yeah, I can't - - -

If you can remember. Okay?---I can't. I'm sorry, I can't remember - -

All right?--- - - - where she was.

So can you remember the first arrangement or not?---The first - - like, it's - - it's - - only I remember is that us four were in the bed and [the appellant's mother] was out in the caravan.

Okay. You've given evidence that [the appellant] was next to you - -?---Yes.

- - at one stage?---Yes.

Why do you say that he was - - how do you recall that he was next to you?---I recall that he was next to me because like before - - like everything, like he - - he touched and he had to be next to me to touch me."

82 The complainant did not make a visual identification of the appellant as the offender. It was dark inside the caravan and she could not see other people (AB 67 - 68). Also, she did not identify the offender from the sound of his voice. Pullin JA states, in his reasons, that the complainant gave evidence that "she identified the offender as the appellant via her sense of touch". His Honour's conclusion appears to be based on evidence which the complainant gave in chief; in particular, her evidence that she was woken up by "[the appellant] touching me". In my opinion, that evidence does not constitute a satisfactory basis for concluding that the complainant identified the appellant as the offender from the manner in which she was touched. The basis for her assertion that it was the appellant who touched her was not explained or explored at the trial. For
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example, the complainant did not say that her evidence that she was woken up by "[the appellant] touching me" was based upon her experience, either before or after the occurrence of the relevant events, of being touched by the appellant. None of the complainant's other evidence established that she identified the appellant as the offender "via her sense of touch".

83 There is no doubt, on the evidence, that at least by March 2003 the appellant had demonstrated a sexual interest in the complainant. Counsel for the appellant conceded at the trial (at AB 187) that the appellant had sexual intercourse with the complainant in March 2003 (about 13 months after the commission of the offences in question). There was a dispute as to whether the sexual intercourse was consensual or not. The appellant was charged with unlawful sexual penetration in respect of that incident but, as Pullin JA has recounted, he was acquitted. There was no evidence that the appellant had manifested a sexual interest in the complainant before February 2002 (when the offences in question occurred) or between February 2002 and March 2003. The complainant did not say that her evidence that it was the appellant who indecently dealt with her in February 2002 was based, wholly or in part, on her experience of the sexual intercourse which occurred in March 2003 or the other sexual contact, referred to in Pullin JA's reasons, which happened in April 2003. As Pullin JA has mentioned, the appellant was charged and acquitted in relation to the April 2003 incident.

84 Neither the appellant nor the appellant's brother gave evidence at the trial. The complainant's sister was a witness, but she said she was a "heavy sleeper" (AB 157) and was unable to give any evidence in relation to the indecent dealing.

85 In my opinion, s 30(4) of the Criminal Appeals Act should not be applied in this appeal. The identification of the appellant as the offender depended upon an assessment of the complainant's credit and reliability. Although, as I have mentioned, the learned Judge found that the complainant was "generally a thoughtful and truthful witness as to the events about which she has spoken", his Honour did not evaluate her evidence in relation to identification and he did not make any findings as to her reliability. A witness who is honest is not necessarily reliable. I have examined the record of the trial, but I am unable to conclude that a verdict of guilty was the only verdict reasonably open on the evidence. The "natural limitations" that exist in the case of an appellate court proceeding wholly or substantially on the record preclude my being satisfied beyond reasonable doubt that it was the appellant who indecently

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dealt with the complainant, and that no substantial miscarriage of justice has occurred in consequence of his conviction. In particular, I am unable satisfactorily to determine the reliability of the complainant from the transcript. Also, without seeing and hearing the complainant, I am unable to decide whether the manner in which she gave her evidence bore upon that issue. There is no basis upon which her demeanour can be dismissed as an irrelevant consideration. The complainant gave evidence at the trial on closed circuit television, but her evidence was not recorded on videotape.

Ground 3: was the verdict unsafe and unsatisfactory?

86 Although I have upheld ground 2, it is necessary to refer to ground 3 in that, if upheld, it would warrant an acquittal of the appellant rather than an order for a new trial. See Fleming at 267 [45].

87 The basis on which I have found that ground 2 is made out is the failure of the learned Judge to give proper reasons for his finding that the appellant was the offender, and his Honour's failure to evaluate the complainant's evidence as to identification and to make findings as to her reliability. Also, I have decided that s 30(4) of the Criminal Appeals Act should not be applied in that the "natural limitations" that exist in the case of an appellate court proceeding wholly or substantially on the record preclude my being satisfied beyond reasonable doubt that the appellant was guilty of the offences in question.

88 The appellant has not established, however, that the nature and quality of the evidence at the trial was such that, acting reasonably, the trial Judge ought to have had a doubt as to his guilt.

89 Ground 3 is not made out.

Conclusion

90 I would allow the appeal, quash the appellant's conviction and order a retrial.

AK v The State of Western Australia

[2006] WASCA 245

17 NOVEMBER 2006

"AK" -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 245