BW v The State of Western Australia
[2013] WASCA 212
•10 SEPTEMBER 2013
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: BW -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 212
CORAM: BUSS JA
NEWNES JA
MAZZA JA
HEARD: 17 MAY 2013
DELIVERED : 10 SEPTEMBER 2013
FILE NO/S: CACR 234 of 2012
BETWEEN: BW
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :SCHOOMBEE DCJ
File No :IND 248 of 2012
Catchwords:
Criminal law - Inadmissible evidence adduced - Prejudice to accused - Whether jury should have been discharged - Whether direction by trial judge sufficient to overcome prejudice - Longman direction - Whether discretion adequate - Relevant principles
Legislation:
Criminal Appeals Act 2004 (WA), s 30(4)
Criminal Procedure Act 2004 (WA), s 116(2)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr S B Watters
Respondent: Mr J McGrath SC
Solicitors:
Appellant: Lumlan & Associates
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50
Christophers v The Queen [2000] WASCA 308; (2000) 23 WAR 106
Crampton v The Queen [2000] HCA 60; (2001) 206 CLR 161
Crisafio v The Queen [2003] WASCA 104; (2003) 27 WAR 169
Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427
Doggett v The Queen [2001] HCA 46; (2001) 208 CLR 343
EPD v The State of Western Australia [2011] WASCA 264
FJL v The State of Western Australia [2010] WASCA 8
Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
Mahmood v The State of Western Australia [2009] WASCA 220
Narrier v The State of Western Australia [2008] WASCA 191; (2008) 38 WAR 161
Russell‑Miles v The State of Western Australia [2012] WASCA 57
SPB v The State of Western Australia [2012] WASCA 136
Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
Zammit v The State of Western Australia [2007] WASCA 66; (2007) 34 WAR 302
BUSS JA: I agree with Newnes JA.
NEWNES JA: On 4 September 2012, after a seven day trial in the District Court, the appellant was convicted on a total of 20 counts of sexual penetration, indecent dealing, and indecent recording involving two children, his nieces A and N. On 27 September 2012, he was sentenced to a total effective term of 8 years' imprisonment with eligibility for parole. The appellant appeals against his conviction.
On 17 December 2012, the appellant was granted leave to appeal on ground 4 of his grounds of appeal and grounds 1 to 3 were referred to the hearing of the appeal.
Background
A and N are the daughters of the appellant's brother, R, by his first marriage. Following his divorce, R had custody of the two girls. R and his second wife were living in a northern Perth suburb and the appellant occasionally visited their house. Over time, the two girls began visiting the appellant's house on their own and staying overnight.
It was alleged that when the appellant had access to the girls he would sexually interfere with them, usually at his house. The sexual acts included digital penetration, inappropriate touching, forced masturbation, oral sex acts and the taking of an indecent photograph using a Nokia mobile phone. It was alleged that the various acts were committed over a number of years, both before the girls turned 13 years of age and after they turned 13 years of age but before they turned 16 years of age.
In late 2010, the appellant was charged with the following offences:
Count
Date of Offence
Nature of offence
1
On date unknown between 1 January 2001 and 31 December 2006
Sexual penetration of a child under 13 - s 320(2) Criminal Code (WA)
2
On date unknown between 1 January 2001 and 31 December 2006
Sexual penetration of a child under 13 - s 320(2) Criminal Code
3
On date unknown between 1 January 2001 and 31 December 2006
Sexual penetration of a child under 13 - s 320(2) Criminal Code
4
On date unknown between 1 January 2008 and 30 August 2008
Sexual penetration of a child under 13 - s 320(2) Criminal Code
5
On date unknown between 1 January 2008 and 30 August 2008
Sexual penetration of a child under 13 - s 320(2) Criminal Code
6
On date unknown between 1 January 2008 and 30 August 2008
Sexual penetration of a child under 13 - s 320(2) Criminal Code
7
On date unknown between 1 January 2005 and 31 December 2006
Indecent dealings with child under 13 years - s 320(4) Criminal Code
8
On date unknown between 1 January 2005 and 31 December 2006
Indecent dealings with child under 13 years - s 320(4) Criminal Code
9
On date unknown between 1 January 2005 and 31 December 2006
Indecent dealings with child under 13 years - s 320(4) Criminal Code
10
On date unknown between 1 January 2005 and 31 December 2006
Indecent dealings with child under 13 years - s 320(4) Criminal Code
11
On date unknown between 1 January 2005 and 31 December 2006
Sexual penetration of a child under 13 - s 320(2) Criminal Code
12
On date unknown between 1 January 2005 and 31 December 2006
Sexual penetration of a child under 13 - s 320(2) Criminal Code
13
On date unknown between 1 January 2005 and 31 December 2006
Sexual penetration of a child under 13 - s 320(2) Criminal Code
14
On date unknown between 1 January 2005 and 31 December 2006
Sexual penetration of a child under 13 - s 320(2) Criminal Code
15
On date unknown between 1 January 2005 and 31 December 2006
Sexual penetration of a child under 13 - s 320(2) Criminal Code
16
On date unknown between 1 January 2005 and 31 December 2006
Indecent dealings with child under 13 years - s 320(4) Criminal Code
17
On date unknown between 3 January 2007 and 31 December 2007
Indecently recorded a child over 13 under 16 - s 321(6) Criminal Code
18
On date unknown between 1 January 2008 and 31 December 2008
Indecently dealt with a child in circumstances of aggravation - s 321(4) Criminal Code
19
On date unknown between 1 January 2008 and 31 December 2008
Sexually penetrated a child over 13 and under 16 - s 321(2) Criminal Code
20
On date unknown between 1 January 2008 and 31 December 2008
Indecently dealt with a child in circumstances of aggravation - s 321(4) Criminal Code
The prosecution's case at trial included the evidence of each of the complainants as to the occurrence of the alleged offences, the evidence of the appellant's brother (R) as to admissions he said had been made to him by the appellant, and propensity evidence from one of the appellant's daughters (T) as to admissions she said had been made to her by the appellant that he had sexually interfered with her as a child. There was also evidence that a large number of files of child pornography had been found on the appellant's computer.
The appellant denied all of the allegations and his case, as described by his counsel in opening, was that the allegations were 'retrospective inventions, for a reason or reasons [the appellant] cannot be certain about' (ts 144). The appellant gave evidence at trial. His evidence was that none of the offences had occurred and that he had not made the admissions alleged by R and T. He said he was not aware of any child pornography on his computer but if it was there it must have been downloaded inadvertently.
The appellant was found guilty on each count and convictions were entered accordingly. The appellant appeals against the convictions.
Grounds of appeal
By his grounds of appeal the appellant asserts, in substance, that the primary judge erred in:
(1)failing to discharge the jury after inadmissible and highly prejudicial evidence was given by a prosecution witness;
(2)directing the jury in terms which removed from their consideration both the issue of identity and the issue of whether the offences had in fact occurred;
(3)giving a Longman direction that was inadequate in the circumstances; and
(4)directing the jury, in the course of a good character direction, that it was a matter for them whether they accepted the appellant's evidence that he had no prior criminal convictions, in circumstances where that evidence was uncontradicted.
Disposition of the appeal
Ground 1
This ground arises out of evidence given by T. Prior to trial, the State applied for leave, among other things, to adduce as part of the prosecution case evidence of T as to statements she said the appellant had made to her in about September 2001. Those statements were to the effect that, when asked by T what he did to her as a child, the appellant said that he would 'play/touch' her private parts but that he had not penetrated her with his penis, and that the same had occurred in relation to T's sister. Eaton DCJ gave leave for that evidence to be adduced.
Late on the fourth day of the trial, in the course of T's evidence‑in‑chief as to her conversation with the appellant in September 2001, the following exchange occurred:
Now, can you just tell us what else you asked [the appellant]?‑‑‑I asked him what he had done to me when I was little, and said to him, 'I want the truth'. And he said that he used to play and touch me on my private bits, and he said he never penetrated me with his penis. And I kind of sat back a bit just to kind of take it in, because I was in shock that he actually did tell me the truth. And then I asked him what he had done to my sister, who was - nobody had known whether there was - nothing was ever spoken about my sister. It was always about me. And he said, 'Yes, I did, and I want you to promise not to tell her. So if she want to know, then she can come here and see me in person herself and find out the truth herself'. And I asked him another question about something that I'd read in a file, my docs file, when I was 12. I asked him whether he had stuck a coat‑hanger up me when I was little, something that I'd read. But he said that he didn't. I later found out that ‑ ‑ ‑
No, no. He said he didn't‑‑‑He said he didn't so I thought‑‑‑
Stick to the conversation‑‑‑Yep. He said that he didn't so I thought, 'Okay'.
Did you ask him any other question about what he had done to you?‑‑‑I don't … I can't remember … (ts 499 ‑ 500). (emphasis added)
At the completion of T's evidence‑in‑chief and prior to T's cross‑examination, counsel for the appellant applied to the primary judge for the jury to be discharged, pursuant to s 116(2) of the Criminal Procedure Act 2004 (WA), in light of the statements by T emphasised above. The appellant's counsel contended, in substance, that the statements were so prejudicial that their effect could not be overcome by a direction to the jury.
It was not in issue that the relevant statements were not the subject of the order by Eaton DCJ, but had been volunteered by T and were inadmissible. The primary judge concluded, however, that any prejudice to the appellant could be overcome by a direction to the jury and accordingly refused the application (ts 517).
The statements by T in relation to the coat hanger were not referred to in the appellant's evidence‑in‑chief or cross‑examination, or otherwise in the evidence. In his evidence‑in‑chief, the appellant was asked whether he had made an admission to T in about September 2001 that he had sexually abused her when she was a very young child. The appellant said he did not make such an admission (ts 607). The appellant was cross‑examined as to the conversation with T but there was no reference to the inadmissible evidence.
In her subsequent directions to the jury, the primary judge gave the following direction in relation to the inadmissible evidence:
[T] said something about having read something in the Department of Childcare documents about a coat hanger. Now, there's no evidence as to who made that allegation or whether there's any truth in it. [T] also did not say that anything had occurred with a coat hanger. She just said that she had put what she had read about this to [the appellant] and [the appellant] had denied this. So members of the jury, you should put totally out of your mind anything about a coat hanger. There was no such evidence in this court and it has got absolutely nothing to do with what happened on the occasion when [T] went to see [the appellant]. The only thing that is relevant about that occasion is whether you accept that [the appellant] told [T], 'I touched you and played with your private parts'. So that is the only relevant aspect of that meeting between [T] and [the appellant] (ts 732).
On the appeal, the appellant submitted, in substance, that the failure of the primary judge to discharge the jury had led to a substantial miscarriage of justice. Counsel argued that the inadmissible evidence was relevant to whether the alleged sexual abuse of the complainants took place as it bore upon the appellant's alleged tendency to indulge in sexual misconduct with young children, and in its nature it was graphic, stark and remarkable and therefore likely to be remembered by the jury. In addition, there was a significant delay between the evidence being given and the primary judge's direction to the jury. The evidence was given on 30 August 2012 but the direction to the jury was not given until 4 September 2012, on the completion of the evidence in the case. In the circumstances, the direction could not overcome the prejudice to the appellant caused by the inadmissible evidence and his conviction should be set aside.
I did not understand the relevant legal principles to be in dispute. Where inadmissible evidence is adduced in the course of a criminal trial, an 'irregularity' occurs which will constitute a miscarriage of justice: Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [18]. However, where a miscarriage occurs this court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred: s 30(4) of the Criminal Appeals Act 2004 (WA); Narrier v The State of Western Australia [2008] WASCA 191; (2008) 38 WAR 161 [40] (Buss JA, with whom Martin CJ & Wheeler JA agreed).
In Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427, the prosecution had led inadmissible and highly prejudicial evidence to the effect that the appellant had committed acts of sexual misconduct against the complainant other than those with which he was charged. Toohey, Gaudron, Gummow and Kirby JJ said:
No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. As the court below acknowledged, much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript.
Nevertheless, the duty of the appellate court, where the exercise of discretion to refuse a discharge is challenged, is not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind. The appellate court must also decide for itself whether, in these circumstances, the result of the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice. In other words, can the appellate court say with assurance that, but for the admission of the inadmissible evidence, the conviction was inevitable? (440 ‑ 441)
Accordingly, in considering whether a substantial miscarriage of justice has occurred, it is necessary to have regard to all the circumstances of the trial, including the degree to which the inadmissible evidence was prejudicial to the accused in the context of the issues in dispute at the trial; the stage of the trial at which the relevant evidence was adduced; whether the relevant evidence was adduced inadvertently or not; and whether any direction given by the trial judge to the jury was likely to have overcome the prejudicial nature of the relevant evidence: Narrier (Buss JA) [41].
In my view, no substantial miscarriage of justice occurred in this case. There is no doubt that the evidence in relation to the coat hanger was adduced inadvertently. It was volunteered by T in her evidence‑in‑chief in response to a question that was necessarily framed in general terms. T did not suggest she had any personal knowledge of an occurrence of the nature suggested and it appears from her evidence that she accepted the appellant's denial that it had occurred. Apart from the mention of it in T's evidence, as set out above, it was not referred to at all in evidence during the seven days of the trial and nor was there any evidence that the appellant had ever used an implement of any nature in such a way in the course of the alleged offending or otherwise. The reference to the coat hanger was an isolated comment, quickly passed over. While the suggestion that the appellant might have assaulted T in such a manner was unusual, in the circumstances I do not accept that it was of such a singular nature that any prejudice was not capable of being overcome by an appropriate direction to the jury.
In my respectful opinion, the primary judge was correct to conclude that any prejudicial effect of the inadmissible evidence could be overcome by an appropriate direction to the jury.
The direction the primary judge subsequently gave the jury was sufficient to do so. It was clear, emphatic and unambiguous. The inadmissible evidence was clearly identified and the jury could have been in no doubt that they were to ignore it. It is not to be assumed that the jury might ignore that direction. In the absence of something to indicate to the contrary, it can be accepted that a jury will properly apply a trial judge's direction: Zammit v The State of Western Australia [2007] WASCA 66; (2007) 34 WAR 302 [65]. There is nothing that might indicate to the contrary in this case.
In my opinion, this ground of appeal has no prospect of success and leave to appeal should be refused.
Ground 2
This ground relates to the following part of the primary judge's directions to the jury in relation to the elements of the offence of sexual penetration of a child under 13 years:
The first element that the State has to prove beyond reasonable doubt is identity. So the State has to prove that it was [the appellant] who did the things that the State says constitute the offence. Now, you're not likely to have much difficulty with this element in this case, because it is common cause that [the appellant] regularly saw both [A] and N at their house and also, more often, at his house that he shared with his mother. So this is not a case where there is a dispute as to whether the accused was at the scene of the crime (ts 693).
It was submitted on behalf of the appellant that her Honour's use of the phrase 'at the scene of the crime' in that passage effectively removed two elements of the offence from the jury, namely, the issue of identity and the issue of whether the offence had occurred at all.
In my view, there is no substance in this ground. The colloquialism 'at the scene of the crime' was, with respect, not well‑chosen, but I do not consider it was prejudicial to the appellant. The question of identity did not arise as an issue as the case was run. The issue at trial was whether the offences alleged by the complainants had occurred at all. The appellant's case was that they had not and that the allegations had been fabricated by the complainants and others. It was not a case where, if the offences had occurred, they might have been committed by someone other than the appellant. Her Honour's statement would clearly have been understood by the jury to mean no more than that.
I would also reject the appellant's submission that the reference to 'the scene of the crime' might have been understood by the jury to mean that an offence had in fact occurred. The passage set out above must be read in its context. It is immediately followed by the following statement by her Honour:
The second element that the State has to prove beyond reasonable doubt is that [the appellant] sexually penetrated [AM] and [N] on the specific occasions that each described. Now, this element is obviously very much in dispute, because [the appellant] says none of these sexual penetrations ever happened (693).
The jury could have been left in no doubt that in respect of each charge the prosecution had to prove beyond reasonable doubt that the appellant had sexually penetrated the complainants as alleged.
In my opinion, this ground of appeal has no prospect of success and leave to appeal should be refused.
Ground 3
It was not in issue that a direction in accordance with Longman v The Queen[1989] HCA 60; (1989) 168 CLR 79 was required. The only issue was as to the adequacy of the direction given by the primary judge. The substance of this ground of appeal is that the direction her Honour gave was inadequate.
In Longman, the accused was convicted on two counts of indecent dealing with his step‑daughter. The complainant was aged 6 years when the first alleged offence occurred, and was 10 at the time of the second. The complainant's allegations were not corroborated and the trial occurred more than 20 years after the second alleged offence. The accused denied that the incidents occurred. The trial judge refused a request by the appellant's counsel that a warning be given to the jury about acting on the uncorroborated evidence of the complainant, as s 36BE(1)(a) of the Evidence Act 1906 (WA) (see now s 50 of the Evidence Act) had dispensed with the requirement to give such a warning. The High Court held, however, that the abolition of that requirement did not affect the requirement to give a warning whenever necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case. Brennan, Dawson and Toohey JJ said:
[T]here is one factor which may not have been apparent to the jury and which therefore required not merely a comment but a warning be given to them … That factor was the applicant's loss of those means of testing the complainant's allegations which would have been open to him had there been no delay in prosecution. Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant's story or confirming the applicant's denial. After more than twenty years that opportunity was gone and the applicant's [sic] recollection of them could not be adequately tested. The fairness of the trial had necessarily been impaired by the long delay … and it was imperative that a warning be given to the jury. The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. … To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice. The jury were told simply to consider the relative credibility of the complainant and the appellant without either a warning or a mention of the factors relevant to the evaluation of the evidence. That was not sufficient (91).
In Crampton v The Queen [2000] HCA 60; (2001) 206 CLR 161, Gaudron, Gummow and Callinan JJ said in relation to the directions given in that case:
The trial judge should have instructed the jury that the appellant was, by reason of the very great delay, unable adequately to test and meet the evidence of the complainant … An accused's defence will frequently be an outright denial of the allegations. That is not a reason for disparaging the relevance and importance of a timely opportunity to test the evidence of the complainant, to locate other witnesses, and to try to recollect precisely what the accused was doing on the occasion in question. In short, the denial to an accused of the forensic weapons that reasonable contemporaneity provides constitutes a significant disadvantage which a judge must recognise and to which an unmistakable and firm voice must be given by appropriate directions [45].
Inevitably, what is required by way of a Longman direction cannot be reduced to fixed or inflexible terms. The direction must be tailored to the particular circumstances of the case, with the object of ensuring a fair trial and avoiding the perceptible risk of a miscarriage of justice: Christophers v The Queen [2000] WASCA 308; (2000) 23 WAR 106 [37]; Crisafio v The Queen [2003] WASCA 104; (2003) 27 WAR 169 [17] ‑ [18], [63] ‑ [66].
However, where a Longman direction is necessary the jury must be directed as to the forensic disadvantage of the accused in respect of adequately testing allegations or adequately marshalling a defence as a result of the delay, compared with the position if the complaint were of 'reasonable contemporaneity': Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234 [181]; Doggett v The Queen [2001] HCA 46; (2001) 208 CLR 343 [51] (McHugh J); FJL v The State of Western Australia [2010] WASCA 8 [2] (McLure P). The jury must be instructed to the effect that, although it can convict solely on the complainant's evidence if satisfied beyond reasonable doubt as to the truth and accuracy of his or her evidence, it must scrutinise the complainant's evidence with great care and take into account any facts and circumstances, including the forensic disadvantage suffered by the accused as a result of the substantial delay, which have a logical bearing on the truth and accuracy of that evidence: SPB v The State of Western Australia [2012] WASCA 136 [52] (Buss JA).
In this case, a Longman warning was requested by trial counsel for the appellant. When asked by the primary judge what specific disadvantages were suffered by the appellant by reason of the delay, counsel's response was as follows:
EYERS, MR: Well I think the starting point on the indictment is 1 January 2001. So that's more than 10 years ago, and the usual disadvantages of course are the loss of memory to recount for one's presence, the loss of the ability to perhaps look up alibis in relation to specific times and places where one was meant to be, the loss of the ability to recall general arrangements and practices, the loss of objects and evidence. Specifically, of course it's been suggested - classic example is, well, the Nokia he had at the time he would have got rid of. But had the allegation been brought in a more timely fashion it may have been. And it's really all of the effect that impact negatively upon a defendant's ability to specifically meet the substance of a charge.
SCHOOMBEE DCJ: But the particular matters that you would like to raise in this particular case is perhaps the Nokia phone.
EYERS, MR: Well, it's not just the Nokia phone. If allegations, for instance, relating to the videos which are said to have been watched were brought in a more timely fashion. The loss of the ability to account for one's presence and movements (ts 673 ‑ 674).
The reference to 'videos' was apparently a reference to evidence given by A that in the period in which the offending had occurred the appellant had shown both complainants YouTube videos of child pornography on his computer (ts 183 ‑ 186).
The direction her Honour then gave, so far as presently material, was as follows:
So members of the jury, I also need to say to you something that is relevant to this case because of the long passages of time that there has been between when the incidents are said to have occurred and when [the appellant] was first told about these incidents, or when he was charged and with regard to the date of the trial now.
Now, the State asks you to accept both [A] and [N] as witnesses telling the truth. [A] and [N] are of course the only witnesses to give evidence as to the happening of each respected incident; no one else observed what happened. Because of the crucial nature in the case of their evidence and because of the seriousness of the allegations you should scrutinise [N's] and [A's] evidence with care.
In assessing the truthfulness, reliability and accuracy of their evidence you also have to keep in mind that there has been a delay of some four to eight years between the happening of the various incidents and the former complaint by [N] to the police and [A] shortly thereafter in 2010; in late 2010 and then a further almost two years later up to the date of trial.
Now, clearly the longer the time interval between an incident and a complaint to the police and also between the incident and the actual trial, the greater the possibility of error by witnesses who try and recollect the incident.
You know from your own experience that passage of time does make [it] harder to correctly recall a particular incident with detail. So that is a matter that you have to consider carefully when you are looking at and considering the truthfulness, reliability and accuracy of the evidence of [A] and [N].
Human memory is fallible. The longer the delay the more opportunity there is for error and this is particularly so for events that occurred in childhood. And in this case these events did occur when [A] was aged between six and 13 and [N] was aged between 11 and 14.
It is also a matter of common experience that sometimes the longer you believe something has occurred, the more convinced you are that it happened. This can be so even if you are mistaken in your recollection. Sometimes even honest witnesses can be wrong in their recollections. So, members of the jury, because of the long time passage you have to take these considerations into account.
The other problem is that the longer the delay between an alleged incident and the first complaint to a police and then the accused being notified of that complaint, the more difficult it is to for an accused person to fully test a particular incident or evidence with regard to that. The delay makes it difficult for an accused person to recall and examine in detail the circumstances of the alleged offences of incidents, as well as the circumstances of other conduct which may have involved touching.
In this particular case [the appellant] denies that any of these events alleged occurred, but the delay still places him in a position of disadvantage. The disadvantage does not only lie in that [the appellant] may not be able to recall fully at this stage what happened during any of these alleged incidents. But also he has lost the advantage of rigorously testing the evidence of the complainants.
The usual way of testing a complainant's evidence is by reference to the surrounding circumstances and to details, which if not necessarily of significance by themselves, may help to indicate whether a particular complaint is truthful, reliable and accurate. So because [the appellant] cannot remember these incidents in detail, or the dates or the times when they are said to have occurred so many years later, it is more difficult for him to give instructions to counsel to test the evidence that the complainant's gave as to who was where and what things looked like at the time.
And even if [the appellant] remembered the incidents himself he would still have had the difficulty of finding perhaps witnesses four to eight years later. Having witnesses have difficulties with remembering matters so long ago and not being able to present any potential alibis …
So if [the appellant] had known about these allegations earlier he may have been able to find some other evidence. For example, he may have been able to produce the silver nokia mobile phone and show that there were no photographs of [N] on that phone. So all these matters are disadvantages that an accused person suffers if there is a considerable time delay or passage of time between the alleged incidents and the time when the accused is notified and the trial is heard.
Now, I've drawn your attention to these disadvantages and you must take them into account when you assess [N's] and [A's] experiences. And the reason why I have done so is because the courts have, in their experience, found that there is this disadvantage if there is a long delay between an incident and the trial.
So because of this delay, it would be unsafe to find [the appellant] guilty of the charges presented against him unless, having scrutinised each complainant's evidence with great care, and having considered the circumstances of disadvantage that I have referred you to, you are still satisfied beyond reasonable doubt of the truthfulness, reliability and accuracy of [A's] evidence on counts 1 to 6 and [N's] evidence on counts 7 to 20 (ts 714 ‑ 716).
Later in the course of her summing up, the primary judge said:
So members of the jury, if, having evaluated the complainants' evidence with great care, and mindful of the matters that I have just explained to you concerning a disadvantage for [the appellant] because of the time passage between the incidents and the trial now, you are still satisfied beyond reasonable doubt of the truthfulness, reliability and accuracy of the evidence on any particular count, you can obviously make findings based on that evidence (717).
It is notable that the appellant's trial counsel did not raise any objection to the primary judge's direction and did not ask her Honour to give a redirection or any further direction on the point. Whilst the absence of objection to a trial judge's directions is not fatal to reliance on error if it occasioned a miscarriage of justice, it is a reason 'to pause before embracing that conclusion': Mahmood v The State of Western Australia [2009] WASCA 220 [65]; Russell‑Miles v The State of Western Australia [2012] WASCA 57 [19].
The appellant contended that there had been a miscarriage of justice in this case as in giving the direction:
(1)her Honour failed to give 'an unmistakeable and firm direction';
(2)the statement that the jury would have to 'keep in mind' any forensic disadvantage to the appellant was inadequate;
(3)her Honour did not adequately traverse the lost opportunity the appellant had to marshal a defence; and
(4)her Honour failed adequately to mention the actual or specific forensic disadvantages caused to the appellant.
In support of the first two contentions, it was submitted, in substance, that the direction of the primary judge was 'bland and insufficiently strong enough to convey to the jury the purpose and meaning of the direction'. In that connection, counsel for the appellant relied in particular on what was said by Mazza JA in EPD v The State of Western Australia [2011] WASCA 264, in respect of the directions given by the trial judge in that case. However, EPD was a very different case. There, in the course of his Longman direction, the trial judge on a number of occasions used language consistent with the making of a comment rather than, as required, a firm direction of law (see Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50 [49] ‑ [50]), using terms such as 'you may wish to bear in mind' and 'should have regard to', the effect of delay and the forensic disadvantage occasioned to the accused.
There is no such difficulty in the present case. The direction by the primary judge in this case was in unmistakeably firm and emphatic terms. The jury could have been in no doubt that, as the primary judge explained, they 'must' take the factors she described into account; that is, the jury would have been in no doubt that it was a direction they had to follow, not a comment that they may or may not accept.
There is equally no substance in the contention that her Honour failed adequately to warn the jury of the forensic disadvantage the delay had created for the appellant in adequately testing the allegations made against him or in adequately marshalling a defence.
On the appeal, counsel for the appellant submitted, in effect, that in each instance where evidence had been given in relation to a matter in which the appellant may have been put at a forensic disadvantage, the primary judge should have specifically directed the jury as to how the lapse of time has disadvantaged him in respect of that matter (ts 12 ‑ 13). In that connection, the appellant's counsel referred to the evidence that the appellant had shown videos of child pornography to the complainants and the evidence of the appellant's mother that when the complainants came to the appellant's house she took them shopping. In relation to the latter, it was submitted that the jury should have been directed as to the effect of delay on the memory of the appellant's mother to recall the events of specific occasions on which the complainants had visited the appellant's house and that the appellant had lost the opportunity to produce receipts and other documents from the shopping trips to show that the complainants were with the appellant's mother when the offences were alleged to have taken place. Counsel acknowledged that no such directions had been sought at trial but submitted that the omission to give specific directions as to those matters and to the videos meant that the Longman direction was inadequate.
I do not accept that submission. As mentioned earlier, a Longman direction is not amenable to a formulaic approach but must be tailored to the facts of the case. In the circumstances of this case, it was not necessary for the primary judge to spell out, by reference to specific events or witnesses, each and every possible forensic disadvantage caused to the appellant. In summary, her Honour expressly directed the jury that:
•the complainants were the only witnesses to the alleged offending and their evidence should be scrutinised with great care;
•in assessing the truthfulness, accuracy and reliability of the complainants' evidence they had to keep in mind the delay that had occurred between the offences and the trial;
•even honest witnesses can be mistaken and the longer the delay the greater the opportunity for error, particularly for events that happened in childhood;
•the appellant was at a disadvantage because the delay made it difficult for him to recollect the circumstances of the alleged offending and because he had lost the advantage of rigorously testing the complainants' evidence (ts 715);
•because the appellant cannot recall details of the alleged incidents, or the dates or times when they are alleged to have occurred, he is at a disadvantage in testing a complainant's evidence in the usual way by reference to surrounding circumstances and to matters of detail which might help indicate the veracity and accuracy of the complainants' evidence;
•the appellant would have had difficulty finding relevant witnesses, or witnesses with any recollection of the circumstances, and of being able to present any potential alibi; and
•but for the delay, the appellant may have been able to find other evidence; for example, he might have been able to show there were no photographs on the Nokia mobile phone.
In my opinion, in relation to the ability of the appellant's mother to recall details of the complainants' visits to the appellant's house, the general direction as to the adverse effect on the memory of witnesses was sufficient to cover the disadvantage caused to the appellant. It was unnecessary to make specific reference to it. Similarly, in the light of her Honour's references to the difficulty of testing the complainants' evidence by reference to matters of detail and to the loss of any potential alibi, it was unnecessary to refer expressly to the loss of the opportunity to find material relating to the specific occasions on which the complainants were shopping with, or otherwise in the company of, the appellant's mother. So much was obvious.
Her Honour expressly referred to the Nokia phone by way of example of the sort of evidence that might have been available to the appellant but for the delay (ts 716). While her Honour did not expressly refer to the videos, it would have been quite evident to the jury that the position was the same. It was unnecessary in the circumstances to refer expressly to the videos or to other specific matters of evidence.
In my view, understood as a whole, her Honour's direction was sufficient in the circumstances of this case to bring home adequately to the jury the forensic disadvantages the appellant faced.
In my opinion, this ground of appeal has no prospect of success and leave to appeal should be refused.
Ground 4
This ground of appeal arises out of a direction the primary judge gave as to good character. At trial, the appellant gave evidence that he had no prior convictions other than for speeding offences. Her Honour acceded to a request by the appellant's counsel that, based on that evidence, she give a good character direction.
The direction her Honour gave was as follows:
Then, members of the jury, lastly I need to say to you something about the evidence given by [the appellant] that he does not have any prior convictions other than speeding offences. This evidence was led to show his good character. Now, members of the jury, it's entirely up to you whether you accept from the evidence that he did not have any - or does not have any prior criminal convictions or of any other evidence that [the appellant] is of good character. If you do, you certainly may take [the appellant's] good character into account in deciding whether or not you can draw an inference of guilt in respect to any of the charges (ts 733). (emphasis added)
The appellant's counsel submitted, by reference to the emphasised passage that by directing the jury that it was up to them whether or not they accepted the appellant's evidence that he had no prior criminal convictions, in circumstances where that evidence was uncontradicted, the primary judge had 'diluted' the weight of the potentially exculpatory fact of the appellant's good character.
The appellant's submission is based upon a misreading of her Honour's direction. When the relevant direction is read as a whole it is plain that her Honour's direction does not bear the meaning contended for by the appellant and no reasonable jury would have understood it in that way. The clear instruction to the jury was that it was a matter for them whether they accepted that the evidence the appellant had no prior criminal convictions (or any other evidence) meant that the appellant was of good character. That was an unobjectionable direction. Whether or not the appellant was of good character was a matter for the jury.
I would dismiss this ground of appeal.
Conclusion
In respect of each of grounds 1, 2 and 3, leave to appeal should be refused and the appeal dismissed. The appeal should be dismissed in respect of ground 4.
MAZZA JA: I agree with Newnes JA.
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