AMS v The State of Western Australia
[2012] WASCA 37
•20 FEBRUARY 2012
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: AMS -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 37
CORAM: MARTIN CJ
PULLIN JA
MAZZA JA
HEARD: 18 OCTOBER 2011
DELIVERED : 20 FEBRUARY 2012
FILE NO/S: CACR 12 of 2011
BETWEEN: AMS
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :McCANN DCJ
File No :IND 872 of 2010
Catchwords:
Criminal law - Inconsistent verdicts - Sexual offences and contravention of Children and Community Services Act 2004 (WA) - Turns on own facts
Legislation:
Children and Community Services Act 2004 (WA), s 101(1)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr S B Watters
Respondent: Mr J A Scholz
Solicitors:
Appellant: Marc G Saupin
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348
MAS v The State of Western Australia [2012] WASCA 36
MARTIN CJ:
Summary
The appellant appeals against her conviction after a trial by judge and jury in the District Court on one count in an indictment which alleged that between 1 January 2007 and 12 May 2007, at Bindoon, being a person having the care and control of her daughter, who was then a child, she engaged in conduct knowing that the conduct may result in her daughter suffering harm as a result of sexual abuse, contrary to s 101(1) of the Children and Community Services Act 2004 (WA). The appellant was jointly tried with her husband, who was convicted on 25 (out of 29) counts of various forms of sexual abuse of the appellant's daughter (who I shall call the complainant). His appeal against conviction was heard on the same day as this appeal, and is to be dismissed for reasons which will be published at the same time as these reasons (see MAS v The State of Western Australia [2012] WASCA 36). For the reasons which follow, this appeal should also be dismissed.
The course of the trial
Much of the trial was concerned with the 29 counts of sexual abuse of the complainant which had been brought against the appellant's husband. The prosecution case against him, and the course of the trial relating to the charges against him are set out in my reasons for dismissing his appeal, which should be read with these reasons. For present purposes it is sufficient to note that the prosecution case was to the effect that the appellant's husband, while her de facto partner and before they had married, engaged in a continuing and sustained programme of sexual abuse of the complainant which commenced in either 1999 or 2000, when the complainant was 11 or 12 years old, and which ended in December 2007 when the complainant was 18 (having attained her majority on 12 May 2007).
The only count on the indictment against the appellant's husband which did not rely upon the relationship between him and his de facto child was the last count (count 29) which alleged sexual penetration without consent during December 2007 after the complainant had turned 18. There were three other counts on the indictment (counts 26 ‑ 28) which alleged sexual penetration of the complainant during 2007, but before the complainant turned 18. Those offences were alleged to have occurred at Bindoon, between 1 January 2007 and 12 May 2007 (in the case of counts 26 and 27), and between 1 January 2007 and 30 April 2007 (in the case of count 28). The trial judge directed the jury to acquit the appellant's husband on count 28, because the evidence was not capable of establishing beyond reasonable doubt that the offence took place prior to the complainant's 18th birthday. The jury returned verdicts of not guilty on counts 26 and 27.
The prosecution opening
The prosecutor opened the case against each accused by outlining the facts which the prosecution would establish in approximate chronological order. As the counts on the indictment also follow chronological order, the prosecutor opened on the facts relating to counts 1 ‑ 25 before referring to the facts which gave rise to the four counts which were said to have been committed in 2007 but before the complainant turned 18 (counts 26 ‑ 28 against the appellant's husband, and count 30 against the appellant).
In relation to those counts, the prosecutor opened on the basis that the evidence of the complainant would be that in early 2007, while living at a house in Bindoon with the appellant and her husband, the complainant overheard them arguing one night. The next morning the appellant asked the complainant to make her a coffee and to bring it out on to the verandah where the appellant and the complainant had a conversation during which the appellant told the complainant that her husband had said that he was attracted to the complainant and wanted to sleep with her. The prosecution case was that the appellant encouraged the complainant to have sex with her husband because it would be a good experience for her, it would be safe, and she would not catch anything. The prosecution case was to the effect that the appellant then left the verandah, telling the complainant that she was going to one of the paddocks and that she said, '[j]ust see how you go' (ts 135).
The prosecutor opened on the basis that the appellant then left the house, after which the appellant's husband took the complainant into the bedroom and had sexual intercourse with her. That intercourse was the subject of count 26 on the indictment. According to the prosecutor, when the appellant returned to the house she asked her daughter what it was like and whether she enjoyed it, to be told by the complainant that it hurt, that she did not like it, and did not want to do it again. The prosecution case was that the appellant replied advising that it always hurts for the first time and that it would get better.
The prosecutor then said to the jury:
Now, the State says the accused [Ms S's] words and actions, namely encouraging [the complainant] to have sex with [Mr S] and not doing anything to prevent it happening again after [the complainant] said it hurt and she didn't like it, constitutes the conduct the subject of count 30 on the indictment. If you accept what [the complainant] has to say about the actions of her mother and the conversation that she had with her mother, then the State says you would be entitled to be satisfied that [Ms S] engaged in conduct knowing that conduct may result in her child suffering harm as a result of sexual abuse. Now, engaged in conduct for the purposes of this charge means to do an act or omit to do an act. So it's not just the encouragement. It's the not doing anything to ensure that it didn't happen again that we rely on. And also harm for the purposes of this charge means any detrimental affect of a significant nature on the child's well-being. So the State says that in this scenario the accused, [Ms S] knew that this conduct may result in harm (ts 77). (emphasis added)
The prosecutor then opened on count 27, which was said to have involved sexual penetration of the complainant while she was in the shearing shed on the property a short time (perhaps a few days) after the conversations between the appellant and the complainant, and the occurrence of the events the subject of count 26.
The complainant's evidence
The complainant gave evidence‑in‑chief which corresponded generally with the opening given by the prosecutor in respect of the counts to which I have referred. In summary, she related a conversation with her mother on the verandah during which her mother encouraged her to have sex with her husband, and a further conversation later that day after sexual intercourse had taken place in which her mother did nothing to discourage repetition of that conduct. During cross‑examination, the evidence given by the complainant with respect to the precise dates upon which the sexual intercourse the subject of counts 26 ‑ 28 had taken place was somewhat vague and imprecise.
The appellant's evidence
The appellant gave evidence. She denied knowing that her husband was sexually interfering with her daughter, and denied ever encouraging her daughter to have sexual relations with her husband. She denied that the conversations related by the complainant had ever taken place.
The prosecution's closing
Consistently with the opening, the prosecutor closed on the basis that the State relied upon the appellant's encouragement of sexual relations between her daughter and her husband in the course of the conversation on the verandah, and also upon the fact that the appellant did nothing to prevent or discourage any further sexual relations after that day.
The direction to the jury
The trial judge directed the jury with respect to the elements of the charge against the appellant in the following terms:
[N]ow I'm going to deal with the elements of the single charge against [Ms S]. Again it's not strictly necessary for the State to prove the starting date over which the alleged conduct occurred, but the State must prove that it occurred before 12 May 2007, because [the complainant] ceased to be a child on that date. With that in mind, the State must prove beyond reasonable doubt the following. Firstly, identity - in other words, the person who committed the alleged offence was [Ms S]. Again, there's no real issue in this case as to who the alleged offender was. Secondly, that [Ms S] had the care or control of [the complainant]. Thirdly, that [the complainant] was a child. Fourthly, that [Ms S] was engaged - sorry, [Ms S] engaged in conduct that may result in [the complainant] suffering harm, as a result of sexual abuse. Fifthly, that at the relevant time [Ms S] knew that the conduct may result in [the complainant] suffering such harm.
...
To engage in conduct means either to do an act or omit to do an act. In other words to do something or to omit to do something. So depending on all the circumstances, saying something or failing to say something. Or doing something or failing to do something can constitute engaging in conduct. The word 'harm' means as follows: Any detrimental effect of a significant nature on a child's well being.
…
Sexual abuse need not be defined for you. But there is no dispute in this case that a de facto stepfather having sex with his de facto child when she was under the age of 18 would constitute sexual abuse (ts 815 ‑ 817).
The trial judge also reminded the jury of a separate trial direction which he had given the jury, in conventional terms, before any evidence was called, and which he reiterated in his charge to the jury. The trial judge reinforced his direction that the jury were to consider each count separately with the following direction in relation to the charge against the appellant:
[I]n relation to [Ms S] there's only one charge relating to events which occurred towards the very end of the period that we're dealing with in this trial. There is no automatic or necessary connection between any charge or charges against [Mr S] and this single charge against [Ms S]. That single charge is laid under a quite different piece of legislation. You'll see that on your indictments. The charges against [Mr S] are under the Criminal Code. Those against [Ms S] are under the Children and Community Services Act. The charge against [Ms S] relates to acts and omissions or alleged acts and omissions in her capacity as a parent in a short period prior to 12 May 2007. There is no necessary connection between your verdicts regarding [Mr S] and your verdict regarding [Ms S] (ts 804).
The grounds of appeal
There are two grounds of appeal, in the following terms:
Ground 1
The verdict of guilty entered against the Appellant concerning Count 30 on the Indictment is factually inconsistent and incompatible with the verdicts of not guilty entered in relation to her co‑accused on Counts 26 and 27 and is therefore unreasonable;
Particulars:
1.1Count 30 alleged that the Appellant encouraged the complainant to have sexual intercourse with her co‑accused on two occasions ('the offences');
1.2The co‑accused denied the offences ever took place and he was acquitted of those two counts;
1.3Despite the State case against the Appellant being inextricably interwoven with Counts 26 and 27, she was convicted of Count 30.
Ground 2
The learned trial Judge erred both in law and fact, and there was a miscarriage of justice, when he failed to adequately and/or properly direct the jury with regard to the issues in the trial as they related to the Appellant;
Particulars:
2.1Count 30 on the Indictment related to the Appellant and Counts 26 and 27 to her co‑accused;
2.2The prosecution case was that the Appellant's culpability concerning Count 30 related unequivocally to her involvement with Counts 26 and 27;
2.3The learned trial Judge failed to adequately direct the jury that they should separately consider the evidence concerning counts 26, 27 and 30;
2.4The learned trial Judge failed to direct the jury that an acquittal on Count 30 should be consequent upon an acquittal on both Counts 26 and 27.
Leave has been granted in respect of both grounds.
Ground 1 - inconsistent verdicts
Ground 1 asserts that the jury's verdict of guilty on the one charge brought against the appellant is unreasonable because it is factually inconsistent with the jury's verdict of not guilty in relation to counts 26 and 27 brought against the appellant's husband. Where an appellant asserts that the verdict of a jury is unreasonable and should be set aside because of factual inconsistency between the verdicts delivered by the jury upon different counts of the indictment, the legal principles to be applied are well established. For present purposes the applicable principles may be taken from the following passage from the judgment of Gaudron, Gummow and Kirby JJ in MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348:
3. Where, as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness. A judgment of Devlin J in R v Stone (Unreported, 13 December 1954) is often cited as expressing the test:
'He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand.'
4. Nevertheless, the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense. Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury. In a criminal appeal, the view may be taken that the jury simply followed the judge's instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt (366 ‑ 367).
The first particular of ground 1 asserts that count 30 alleged that the appellant encouraged the complainant to have sexual intercourse with her husband on two occasions. That is not correct. Count 30 alleged a contravention of s 101 of the Children and Community Services Act 2004 (WA) which provides:
101. Failing to protect child from harm
(1)A person who has the care or control of a child and who engages in conduct -
(a)knowing that the conduct may result in the child suffering harm as a result of any one or more of the following -
(i)physical abuse; or
(ii)sexual abuse; or
(iii)emotional abuse; or
(iv)psychological abuse; or
(v)neglect as defined in section 28(1);
or
(b)reckless as to whether the conduct may have that result, is guilty of a crime, and is liable to imprisonment for 10 years.
(2)In subsection (1) -
engage in conduct means -
(a)to do an act; or
(b)to omit to do an act;
harm has the meaning given to that term in section 28(1).
Section 28(1) of the Act defines 'harm' to mean any detrimental effect of a significant nature on a child's wellbeing.
The trial judge directed the jury as to the elements of the charge brought against the appellant in the passage which I have set out above. The appellant does not complain that the trial judge failed to correctly identify the elements of the offence. Neither the occurrence of sexual abuse, or the suffering of harm as a consequence of sexual abuse are elements of the offence. The offence is complete when a person with care or control of a child engages in conduct with knowledge that the conduct may result in the child suffering harm as a consequence of sexual abuse. Accordingly, in the circumstances of the present case, on the prosecution case, the elements of the offence are satisfied, and an offence complete at the conclusion of the conversation which took place between the appellant and her daughter on the verandah, irrespective of whether or not the sexual abuse the subject of counts 26 and 27 took place.
In the further particulars of ground 1, and in argument presented in support of the ground, it was sought to overcome this obvious deficiency in the ground by asserting that although, as a matter of law, the prosecution did not have to prove the occurrence of sexual abuse as an element of the charge brought against the appellant, as a matter of fact the case had been presented to the jury on the basis that the occurrence of the sexual abuse was an essential and indispensable component of the State's case against the appellant.
However, this assertion is simply incorrect, as a review of the transcript of the trial shows. Neither the opening nor closing address of the prosecutor, nor the evidence led from the complainant, or the cross‑examination of the appellant proceeded upon the basis that the occurrence of the sexual abuse the subject of counts 26 and 27 was an inextricable or indispensable component of the case against the appellant. Reference was made to counts 26 and 27 in the course of the prosecution opening in the context of the case against the appellant on count 30 as part of the chronological narrative of the evidence upon which the State would rely. However, the prosecutor emphasised in both the opening and closing addresses that the case against the appellant was based upon the conversation on the verandah in which the State alleged that she encouraged her daughter to have sex with her husband, and in subsequently failing to take any step to prevent her husband's sexual abuse of her daughter.
It may be that the second aspect of the prosecution case, which relied upon a failure to take any action to prevent the occurrence of sexual abuse depended, in the context of this case, upon the appellant's knowledge of the fact that sexual abuse had taken place. To that extent, there is some basis for an argument that a finding by the jury to the effect that the appellant was aware that her husband was sexually abusing the complainant depended upon it being satisfied beyond reasonable doubt that the sexual abuse the subject of count 26 (and perhaps count 27) had in fact occurred, thus providing the basis for the appellant's knowledge. On the other hand, it might also be argued that there was evidence, in the form of the appellant's own testimony relating to her awareness of the relationship between her husband and her daughter from which the jury might have drawn an inference that the appellant was aware that sexual abuse was taking place, irrespective of the abuse the subject of counts 26 and 27. For the purposes of this appeal it is unnecessary to resolve these competing contentions because the complainant's evidence of the conversation which took place with the appellant on the verandah was, if accepted by the jury, quite sufficient to sustain the jury's verdict, as counsel for the appellant properly conceded during the course of argument.
Put another way, because the jury's verdict can be sustained by evidence given by the complainant which is not inconsistent with the jury's failure to be satisfied beyond reasonable doubt that the sexual abuse the subject of counts 26 and 27 took place, being the complainant's evidence as to the conversation on the verandah, the verdict of guilty on count 30 is not inconsistent with the verdicts of not guilty on counts 26 and 27.
Ground 1 should be dismissed.
Ground 2 - misdirection
Ground 2 complains that the trial judge misdirected the jury with respect to the relationship between counts 26, 27 and 30. Somewhat inconsistently, one of the particulars alleges that the trial judge failed to adequately direct the jury to separately consider the evidence concerning those counts, whereas the other three particulars assert that the trial judge failed to direct the jury that the case against the appellant was inextricably interwoven with the case against her husband on counts 26 and 27, and depended upon a finding of guilt on those counts.
The latter proposition must fail for the reasons given with respect to ground 1. The case against the appellant on count 30 was not inextricably interwoven with the case against her husband on counts 26 and 27, and did not depend upon a finding of guilt on those counts. The trial judge would have been in error if he had directed the jury in the manner proposed by this aspect of ground 2.
The somewhat inconsistent assertion that the trial judge failed to adequately direct the jury that they should separately consider the evidence concerning counts 26, 27 and 30 is simply incorrect, as the passage which I have set out from the directions given to the jury by the trial judge above at [11] shows.
Ground 2 must also be dismissed.
Conclusion
This appeal should be dismissed.
PULLIN JA: I agree with the Martin CJ.
MAZZA JA: I agree with Martin CJ.
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