Cavill v The State of Western Australia

[2008] WASCA 108

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   CAVILL -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 108

CORAM:   McLURE JA

BUSS JA
MILLER JA

HEARD:   4 APRIL 2008

DELIVERED          :   8 MAY 2008

FILE NO/S:   CACR 96 of 2007

CACR 23 of 2008

BETWEEN:   BRIAN CAVILL

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :MARTINO DCJ

File No  :IND 348 of 2006

Catchwords:

Criminal law - Sexual offences - Seven counts - Appellant convicted on one count only - Whether verdicts of jury inconsistent

Criminal law and procedure - Whether trial judge erred in refusing to grant leave to cross­examine complainant about previous complaints of sexual assault against two persons other than the appellant - Whether evidence related to complainant's sexual experiences - Whether evidence properly excluded under Evidence Act 1906 (WA) s 36BC - Whether trial judge erred in failing to direct jury that a doctor's record of the complainant's admission that there had been 'no penetration' could be used as truth of the contents of the statement - Whether aspects of appellant's video record of interview ought to have been admitted or excised

Criminal law - Sentencing - Whether sentence of imprisonment to be served immediately appropriate - Whether suspended sentence open

Legislation:

Evidence Act 1906 (WA), s 36BC, s 79C
Sentencing Act 1995 (WA), s 6(4), s 39(3), s 76

Result:

Appeals dismissed

Category:    B

Representation:

Counsel:

Appellant:     Mr T F Percy QC & Ms L M Timpano

Respondent:     Mr R G Wilson

Solicitors:

Appellant:     D G Price & Co

Respondent:     Director of Public Prosecutions (WA)

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

Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542

Beamish v The Queen [2005] WASCA 62

Bolton v The State of Western Australia [2007] WASCA 277

Bull v The Queen [2000] HCA 24; (2000) 201 CLR 443

C v The State of Western Australia [2006] WASCA 261

Cecez v The State of Western Australia [2007] WASCA 260

Chandu Nagrecha [1997] 2 Cr App R 401

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Ferris v The State of Western Australia [2007] WASCA 69

G v The State of Western Australia [2007] WASCA 202

Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024

Hill v The Queen [2003] WASCA 177

Jones v The Queen (1997) 191 CLR 439

Kilby v The Queen (1973) 129 CLR 460

Libke v The Queen [2007] HCA 30; (2007) 81 ALJR 1309

M v The Queen (1994) 181 CLR 487

M v The Queen (1998) 104 A Crim R 154

MacKenzie v The Queen (1996) 190 CLR 348

MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606

MJH v Western Australia [2006] WASCA 167; (2006) 33 WAR 9

Palmer v The Queen (1998) 193 CLR 1

Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303

R v Clark [2000] WASCA 229

R v Hawes (1994) 35 NSWLR 294

R v Kirkman (1987) 44 SASR 591

R v Liddington (1997) 18 WAR 394

R v Norton [1910] 2 KB 496

R v PMT [2003] VSCA 200; (2003) 8 VR 50

R v Uhrig (Unreported, NSWCCA, 24 October 1996)

Re Marra Developments Ltd & The Companies Act [1979] 2 NSWLR 186

Riley v The State of Western Australia [2007] WASCA 22

Straker v The Queen (1977) 51 ALJR 690

VIM v Western Australia [2005] WASCA 233; (2005) 31 WAR 1

Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300

1. McLURE JA:  The appellant appeals against his conviction and sentence for one count of sexual penetration without the consent of the complainant.  I agree with Miller JA that the appeals against conviction and sentence should be dismissed.  These are my reasons for that conclusion.

2. The appellant was charged with seven counts, all of which were allegedly committed in the early hours of 1 June 2005.  The offences and the order in which they were allegedly committed were as follows:  one count of indecent assault by the appellant sticking his tongue into the complainant's mouth (count 1), digital penetration (count 2), further counts of digital penetration (counts 3 and 4), one count of attempted penile penetration (count 5), digital penetration (count 6) and one count of indecent assault by forcing the complainant's head towards the appellant's penis (count 7).  The appellant was convicted on count 2 and acquitted on the other counts.

3. According to the complainant's evidence, the offences occurred in three discrete periods in the downstairs guestroom of the appellant's house.  The complainant's evidence was as follows.  The appellant was fully clothed when he put his tongue in her mouth in the course of kissing her.  He left the room for 10 minutes and on his return he removed his jeans.  He was then wearing boxer shorts and a shirt.  The appellant then committed count 2.  The telephone rang and he left the room to answer it.  When he returned he was wearing only boxer shorts.  Thereafter, he committed counts 3 to 7 inclusive.  In the course of committing count 6 the appellant scratched the complainant internally which caused her to bleed.

4. The complainant was aged approximately 23 at the time of the offence.  She lived in South Australia and had separated from her husband.  She had two children, the younger of which was still a baby (wearing nappies and being bottle fed).  The complainant had arranged to come to Perth for a week and stay with her husband's cousin, Dean Marsden, who lived in a northern suburb some distance from Perth.  The complainant's older child went to stay with her father in Melbourne.  The complainant and her baby travelled to Perth arriving on 29 May 2005.  They stayed with Mr Marsden.

5. The appellant attended a dinner party at Mr Marsden's house on 31 May 2005.  At the end of the evening, the complainant had an angry exchange with Mr Marsden who demanded that she and her baby leave his house.  The complainant knew no one in Perth.  Her mother was holidaying with friends in Mandurah.  No public transport was available because of the late hour.  The appellant offered her a room at his house.  He also offered to drive her to Mandurah the following morning.  After arriving at the appellant's house, the complainant met the appellant's wife who appeared to the complainant to be drunk.  The appellant's wife was upstairs when the offence occurred. 

6. On the morning of 1 June 2005 the complainant showered and said nothing to the appellant or his wife about the events in the early hours of that morning.  The appellant drove the complainant to Mandurah, dropping her off at a taxi rank.  The complainant went by taxi to where her mother was staying.  The complainant informed her mother of the assaults and made it clear she wanted to return to Adelaide as soon as possible.  At her mother's insistence the complainant saw a female general practitioner in Mandurah later that day.  The complainant refused an offer of an internal examination because she said she did not want to be touched, was upset and wanted to go home to Adelaide.  Her return flight was rescheduled for later that night.  Shortly after returning from the doctor's surgery, the complainant went by taxi to Perth from where she caught a plane to Adelaide via Melbourne.  The complainant reported the appellant to police in South Australia on the day of her return to Adelaide.  She washed the clothes she was wearing on the night in question.

7. The appellant was interviewed by Western Australian police on 18 October 2005.  The record of interview was adduced in evidence.  After repeatedly denying any contact of a sexual nature with the complainant, the appellant eventually admitted one act of digital penetration.  The relevant parts of the transcript are set out in the reasons for judgment of Miller JA.  The substance of his out of court statement was that the complainant kissed him, undressed in front of him and tried to 'come on to him', that he became sexually aroused, at some point took off his jeans and was wearing boxer shorts and that he penetrated the complainant to some extent with his finger but that it was not forceful.  His evidence was that all of the conduct was consensual.

8. The appellant gave evidence at his trial.  He retracted his out of court admissions and denied any voluntary sexual contact with the complainant.  His evidence was to the following effect.  After the baby started crying, he went to the guest bedroom to see what the problem was.  The complainant said the baby had been sick and she took the baby into the bathroom to clean her up.  The appellant lay down on the bed and went to sleep.  He was wearing shorts (not jeans) and a T‑shirt.  When he awoke, the complainant was lying on the bed next to him.  She had removed the track pants she was wearing when he first entered the room.  He awoke to find his hand on the complainant's crotch.  He had not intentionally placed his hand there and removed it immediately.  Before leaving the room he gave the complainant an asexual kiss and returned to the marital bedroom.

Ground 1 - inconsistency

1. The authorities are reviewed in the reasons of Miller JA.  Relevant cases include MacKenzie v The Queen (1996) 190 CLR 348; MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606; Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303 [71]. In summary, the test to be applied in assessing inconsistency is to determine whether there is a proper way by which the appellate court may reconcile the verdict, allowing it to conclude that the jury performed their functions as required: MacKenzie (367).

2. One of the particulars relied on by the appellant was that a jury question regarding consent indicated that it may have not correctly appreciated its task, consent not having been a live issue at trial.  After it had retired, the jury requested from the trial judge a direction on the law relating to consent and a summary statement relating to that issue.

3. It is the case that the appellant's evidence at trial was that none of the charged acts took place and thus consent was not a live issue.  However, the appellant's record of interview admitted at trial was evidence of the truth of both the inculpatory and exculpatory statements made by the appellant.  The appellant raised the defence of consent in the record of interview.  Moreover, there was a disquieting undercurrent in the cross‑examination of the complainant that could reasonably be seen by the jury as providing some unacknowledged support for a fall‑back consent defence (ie, I did not do it but if I did, she consented).

4. The cross‑examination of the complainant was lengthy and aggressive.  It was put to her that she did not regard her oath to tell the truth as binding because, being a Jehovah Witness, she had not sworn on the bible used by people of that faith.  It was suggested she was unreliable because of her mental state which required a variety of medications including antidepressants.  It was suggested to her that her financial situation was and had always been precarious, that she was impressed by Mr Marsden's lifestyle including his house and furniture, and that, motivated by pecuniary considerations, she came to Western Australia with the hope of establishing a relationship with Mr Marsden which she would facilitate by having sexual relations with him.  This line of cross‑examination was interrupted by questions directed to the objective manifestations of the appellant's wealth and the proposition that the complainant's motive for making the allegations was to obtain a financial advantage in the form of criminal injuries compensation.  The cross‑examiner then immediately returned to the complainant's intentions relating to Mr Marsden.  It was put to her that she trying to act as Marsden's girlfriend and was seeking a sexual liaison.

5. When the complainant arrived in Perth Mr Marsden had a girlfriend called Jessica.  It was suggested the complainant was surprised by this.  The following cross‑examination then took place:

   Did you say to Jessica, 'We have to get Dean drunk'?‑‑‑Never.  No.

   Say, 'We're going to give ‑ we should give him a massage.'  Words to that effect?‑‑‑No.

   No suggestion of giving him a massage?‑‑‑No, not at all.

   Can you remember Jessica saying something to you like, 'You don't need to get Dean

6. At this point there was an objection and senior counsel for the appellant was reminded that the appellant's application for leave to cross‑examine on these matters had been withdrawn. I infer the application was for leave under s 36BC of the Evidence Act 1906 (WA). On the resumption, senior counsel commenced cross‑examining the complainant about a photograph on her mobile phone. The exchange was as follows:

   Do you remember during the course of the evening going to Dean and showing him a photo of yourself on your mobile phone?‑‑‑No, I don't remember that. 

   I suggest that you did that in the presence of Jessica, his girlfriend?‑‑‑No.

   Did you, in those days, have a photo of yourself on your mobile phone?‑‑‑I had photos.

7. There was an objection and senior counsel said he did not intend to pursue that line.  However, he did raise that matter again (ts 293).

8. It was also put to the complainant that if the assault had occurred she could, on the occasions when the appellant left the bedroom, have called for help by telephoning the police or her sister or calling out to the appellant's wife or raising the alarm with neighbours.  It is directly after putting these matters to the complainant that she is again cross‑examined concerning the photographs on her phone.  The cross‑examination also has to be seen in the light of the appellant's evidence at trial that whilst he was sleeping on the bed in the guestroom, the complainant removed her track pants and lay on the bed next to him.

9. Having regard to the content and structure of the cross‑examination it is reasonable to infer that the appellant was running a dog whistle fall‑back defence of consent based in part on the disposition of the complainant in sexual matters. Evidence relating to disposition in sexual matters is prohibited save in certain circumstances with the leave of the court: s 36BA, s 36BC of the Evidence Act 1906 (WA); Bull v The Queen [2000] HCA 24; (2000) 201 CLR 443. Little wonder that the jury may have been left with the impression that if the charged acts had occurred, she was the type of person that was likely to have sought and consented to the conduct. The prohibitions in the Evidence Act were circumvented with adverse consequences for the complainant and the prosecution.  The appellant cannot rely on the jury's question on consent to support the contention that they had not properly appreciated their task.

10. After the trial judge had responded to the jury's question with a direction that the appellant's case was that the conduct the subject of the charges did not occur and consent was not an issue, the appellant was convicted on one count of digital penetration.  It is significant that the only offence to which the appellant confessed in his police record of interview was one event of digital penetration.  He did not admit sticking his tongue into the appellant's mouth or the other offences.  Moreover, there is sufficient to link the digital penetration the subject of the appellant's admission with count 2 on the indictment.  In particular, on the complainant's evidence, the extent or degree of the penetration in relation to count 2 was materially less than for the other counts of digital penetration.  The digital penetration to which the appellant admitted was consistent with the complainant's evidence on count 2.  Further, the appellant emphasised the complainant's failure to raise the alarm when she had opportunities to do so when the appellant was absent from the bedroom.  A jury is likely to consider it fanciful to suggest that a woman in the complainant's position would raise the alarm in the ways suggested as a result of an unwelcome kiss, even of the type the subject of count 1.  However, on the complainant's evidence the appellant left the bedroom after committing the offence in count 2 and upon his return committed the rest of the offences.  Thus, the verdicts can be reconciled. 

11. This case is distinguishable from the facts in M v The Queen (1998) 104 A Crim R 154. The appellant in that case was convicted of one of eight counts of sexual assault against his young daughter. Counts 6 and 7 had allegedly occurred together being the appellant touching the child's vagina (count 6) whilst rubbing his penis between her legs until he ejaculated (count 7). The appellant was acquitted on count 6 and convicted on count 7. The Full Court held that the conviction on count 7 was inconsistent with the acquittal on the other counts. The appellant had admitted involuntarily ejaculating on the child (whilst he was asleep) but denied all of the offences, including counts 6 and 7. The appellant's admission of ejaculation in M was not an admission of the offence charged or any offence as he claimed the action was involuntary.  By contrast, the appellant in this case made an admission of digital penetration and the jury was directed that consent was not in issue.  That is a material distinction.  Further, although the result in M may be correct, the Full Court relied on the reasoning in Jones v TheQueen (1997) 191 CLR 439 which reasoning has been clarified and explained in subsequent cases, including MFA.

12. The guilty verdict on count 2 is not inconsistent with the acquittals on the other counts.  I would dismiss ground 1.

Ground 2 - Prior sexual assaults

1. The facts are detailed in the reasons of Miller JA.  In summary, the appellant wanted to cross‑examine the complainant on what she was noted by her general practitioner to have said about her history of two prior sexual assaults by persons other than the appellant.  The notes refer to an attempted sexual assault when the complainant was aged 14 which went to trial and the second was a sexual assault committed by a relative's boyfriend which the complainant had not reported to authorities.  Prima facie, the evidence is irrelevant and thus inadmissible. 

2. The appellant submitted it was relevant to whether the complainant knew that she should have submitted to an internal examination and preserved the integrity of her clothing for forensic analysis.  The appellant claimed the complainant would have that knowledge simply from the fact of being sexually assaulted or alternatively from investigating police.  The fact of the two prior sexual assaults noted by the general practitioner is not probative of her knowledge of the usual investigative procedures upon a complaint of sexual penetration.  As to information from police, there is nothing in the complainant's history given to her general practitioner that provided a reasonable basis to suggest that she may have been provided with relevant information by police.  Relevance on this ground was not established.  In any event, what the appellant had been told by police could have been elicited without reference to the prior sexual assaults.

3. The appellant also relied on the case of Chandu Nagrecha [1997] 2 Cr App R 401 in support of the assertion that the proposed cross‑examination was relevant to a fact in issue. In that case the appellant was accused of indecently assaulting the complainant. At trial, the defence cross‑examined the complainant as to allegations of sexual impropriety which she had made against other men. The appellant had evidence that other complaints had been made and that they were false. The complainant denied making the complaints. Relying on the collateral evidence rule, the trial judge refused to allow the defence to call evidence as to the making of those complaints. It was held on appeal that the appellant should have been permitted to adduce evidence that she had made the other complaints as the evidence went not merely to credit but to the central issue of whether or not the indecent assault had occurred. This case does not address or identify the relevance of the evidence relating to unrelated sexual assaults. It addresses the question of when rebuttal evidence can be adduced in relation to matters prima facie relevant only to credit. The approach taken by the Court of Appeal in Chandu Nagrecha is inconsistent with the majority view in Hill v The Queen [2003] WASCA 177.

1. The appellant also submitted that the proposed evidence was outside the scope of s 36BC of the Evidence Act.  That section prohibits evidence relating to the sexual experiences of a complainant without the leave of the court and leave cannot be granted unless what is sought to be adduced or elicited has substantial relevance to the facts in issue.

2. Section 36BC only applies to evidence that tends to prove sexual experience:  Bull v The Queen [2000] HCA 24; (2000) 201 CLR 443 [72] ‑ [84]. A complaint following a sexual assault goes to the credit of the complainant (that is, the reliability of the evidence concerning the sexual offence in issue) rather than the fact in issue (whether that assault occurred): Kilby v The Queen (1973) 129 CLR 460. That is, evidence of mere complaint does not tend to prove sexual experience for the purposes of s 36BC.

3. Insofar as the appellant relied on the experience of the prior sexual assaults to ground an inference of knowledge of investigative procedures, that is evidence relating to sexual experience to which s 36BC applies.  Such evidence was not substantially relevant to a fact in issue and was correctly excluded.

4. Further, the appellant did not contend (having no reasonable basis to do so) that the prior sexual assaults had not occurred.  Accordingly, whether or not the complainant complained of those offences is prima facie irrelevant.  There was nothing in the doctor's notes or the evidence that established relevance. 

5. If relevance had been established and there was unfairness in confining the complainant's evidence to what she told the authorities without her confirming the truth thereof (in which event s 36BC would apply), I leave open the question whether the court can exclude the evidence on the basis that its prejudicial effect outweighs its probative value. 

Ground 3 - Section 79C

1. On the complainant's return to South Australia she consulted Dr Lynch and another doctor at the same medical practice, Dr Fowler.  Dr Fowler was not called as a witness at trial but Dr Lynch gave evidence of Dr Fowler's handwritten note in the medical records of the practice that relevantly state:

   14/08/05 - Raped six to seven weeks ago in Perth.  No actual penetration of vagina.

2. The trial judge directed the jury that the evidence of what the complainant said to Dr Fowler was not evidence of its truth but may be seen as a prior inconsistent statement relevant to her credibility. After the summing up, counsel for the appellant sought a re‑direction, claiming for the first time that s 79C of the Evidence Act applied to make the complainant's statement to Dr Fowler evidence of the truth of the statement.

3. The trial judge refused to re‑direct. He noted that the appellant had not given notice of his intention to rely on s 79C of the Evidence Act and if the appellant had made that plain, he would have exercised his discretion under s 79C(6) to reject the admission of the statement. Finally, he concluded that a re‑direction along the lines sought by the appellant would be of no assistance to the jury.

4. The appellant's counsel cross‑examined Dr Lynch as to who made the relevant entry in the medical records of the practice on 14 August 2005.  The appellant's counsel did not tender the document containing the statement in question.  The cross‑examination was undertaken without objection from the prosecution and without the appellant identifying the purpose for which the evidence was adduced.

5. Counsel for the appellant had earlier cross‑examined the complainant as to what she said to Dr Fowler.  She agreed that in substance the note reflected what she told Dr Fowler but explained that when she said there was no penetration she was referring to penile penetration.

6. There are two relevant statements in the entry in the medical notes on 14 August 2005.  The first is a statement by Dr Fowler that the complainant told him what he had recorded in the notes.  The second statement is that made by the complainant herself being that she was raped but there was no penetration. 

7. Dr Fowler's statement as to what he was told was not a statement of which direct oral evidence would be admissible in which event s 79C has no application. The only relevance of Dr Fowler's statement was that the complainant had made an arguably prior inconsistent statement. As the complainant had acknowledged making the statement, Dr Fowler's evidence was not admissible under s 21 of the Evidence Act or at common law.

8. In contrast, the complainant's statement as to what the appellant did was obviously a matter on which the complainant (a qualified person under s 79C(1)) could give direct oral evidence at trial. Its relevance is as evidence of the truth of the statement. This court held in Beamish v The Queen [2005] WASCA 62 [147] ‑ [168] that s 79C(1) and s 79C(2a) apply to statements made by a qualified person (including statements tendered for the truth of their contents) recorded in a document by a third party. There is no challenge to the correctness of Beamish on this point which is consistent with the legislative history of s 79C.

9. Section 79C(1) and (2) implement the recommendations of the Law Reform Commission of Western Australia in its July 1980 report entitled The Admissibility in Evidence of Computer Records and Other Documentary Statements. It is apparent from the report that s 79C(1) and (2) were intended to apply to statements made by a qualified person in a document whether or not they were the author of the document.

10. The business records provision, s 79C(2a), was inserted by the Acts Amendment (Evidence) Act 2000 (WA). As stated by the relevant minister in the Second Reading Speech:

    Under the Bill, business records can be tendered as evidence without calling as witnesses persons who supplied the information in these records unless the court considers it in the interests of justice to do so.  This will reduce the length and costs of the trial and aid in the jury's comprehension of the issues.

11. The term 'business record' is defined in s 79B to mean a book of account or other document prepared or used in the ordinary course of a business for the purpose of recording any matter relating to the business. 'Business' is defined to mean any business, occupation, trade or calling and includes the business of any governmental body or instrumentality and of any local government. Both parties accepted that the medical records in issue in this case were business records. The evidence established that Dr Fowler made the relevant entry in the medical records and that he recorded what he was told by the complainant who was a qualified person who could give direct oral evidence of what the appellant had done to her. Thus, the document containing the complainant's statement was admissible under s 79C(1) or (2a) of the Evidence Act. That is so even though the complainant was a witness at trial. Section 79C(3)(c) makes a statement in a document admissible notwithstanding that the person who made the statement is a witness in the proceedings.

12. However, s 79C is concerned with the admissibility of documentary evidence of the statement. The appellant did not seek to tender the notes in reliance on s 79C of the Evidence Act. Even if he had sought to tender the document, it was open to the trial judge to reject the tender under s 79C(6). Section s 79C(6) provides:

    For the purposes of this section a court may, in its discretion, reject a statement notwithstanding that the requirements of this section are satisfied with respect thereto, if the court is of the opinion that the probative value of the statement is outweighed by the consideration that its admission or the determination of its admissibility ‑ 

    (a)may necessitate undue consumption of time; or

    (b)may create undue prejudice, confuse the issues, or in proceedings with a jury mislead the jury.

13. The complainant's statement in the document is ambiguous and required clarification and explanation which the appellant gave in oral evidence at trial.  To admit the statement as evidence of its truth would confuse the jury and not advantage the appellant.  The preservation of the primacy of direct oral evidence on central issues in criminal cases should be preserved save in exceptional circumstances, as in the Beamish case.  The trial judge did not err in refusing to re‑direct.  I would dismiss ground 3.

Ground 4

1. I would dismiss ground 4 for the reasons given by Miller JA.

Appeal against sentence

1. I would dismiss the appeal against sentence for the reasons given by Miller JA.

2. BUSS JA:  I have read the proposed reasons of Miller JA.  I agree with his Honour that the appeal against conviction and the appeal against sentence should be dismissed.  My reasons are as follows.

Relevant facts

1. Most of the relevant facts are set out in Miller JA's reasons.  I will not repeat those facts except to the extent necessary to explain these reasons.  I will also refer, as necessary, to some additional facts.

Counts in the indictment

1. The indictment contained seven counts, as follows:

   (1)On or about 1 June 2005 at Mindarie [the appellant] unlawfully and indecently assaulted [the complainant] by sticking his tongue into her mouth.

   (2)On the same date and at the same place [the appellant] sexually penetrated [the complainant] without her consent by penetrating her vagina with his finger.

   (3)On the same date and at the same place [the appellant] sexually penetrated [the complainant] without her consent by penetrating her vagina with his finger.

   (4)On the same date and at the same place [the appellant] sexually penetrated [the complainant] without her consent by penetrating her vagina with his finger.

   (5)On the same date and at the same place [the appellant] attempted to sexually penetrate [the complainant] without her consent, by attempting to penetrate her vagina with his penis.

   (6)On the same date and at the same place [the appellant] sexually penetrated [the complainant] without her consent by penetrating her vagina with his finger.

(7)On the same date and at the same place [the appellant] unlawfully and indecently assaulted [the complainant] by forcing her head toward his penis.

Appeal against conviction:  ground 1

1. Ground 1, with supporting particulars, alleges:

   1.The verdict of the jury convicting the Appellant in Count 2 was unsafe and unsatisfactory being inconsistent with the verdicts of acquittal returned on each of the other counts in the indictment.

   PARTICULARS

   a)There was no reasonable basis in the evidence which would have enabled the jury to convict the [appellant] of Count 2 and acquit him of the other 6 counts in the indictment.

   b)The matters the subject of all the counts in the indictment occurred over a short period of time on the same date between the [appellant] and the complainant.

   c)The case came down to a contest of credit between the two parties.  To convict the [appellant] of any offence the jury needed to be satisfied of the truth of the complainant's evidence beyond reasonable doubt.

   d)The jury by its verdicts was not satisfied of the complainant's version of events to the required standard on counts 1, 3, 4, 5, 6 and 7.  The verdict of guilty on count 2 was entirely and irreconcilably inconsistent with the verdicts of acquittal on the other counts.

   e)The case against the [appellant] on Count 2 was in no respect any stronger or supported by any additional evidence to some of the other counts on which the [appellant] was acquitted.

   f)The video taped record of interview contained some alleged admissions to all counts other than counts 5 and 7.  There was no basis for the jury rejecting the alleged admissions on counts 3, 4 and 6 and accepting them on count 2.

   g)The jury's question regarding consent indicated the jury may have not correctly appreciated the task, consent never having been a live issue in the trial.

2. The appellant contends, in essence, that no reasonable jury, which had correctly appreciated its task and had properly applied its mind to the facts of the case, could have convicted him on count 2, but acquitted him on the other counts in the indictment.

3. By s 30(3) of the Criminal Appeals Act 2004 (WA), in the case of an appeal against conviction, the Court of Appeal must allow the appeal 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 set aside because of a wrong decision on a question of law by the judge; or

   (c)there was a miscarriage of justice. 

4. In M v The Queen (1994) 181 CLR 487, 492, Mason CJ, Deane, Dawson and Toohey JJ said, in relation to s 6(1) of the Criminal Appeal Act1912 (NSW) (which is in substance identical to s 30(3) of the Western Australian Criminal Appeals Act), that although the phrase 'unsafe and unsatisfactory' does not appear in the statutory provision, it allows a verdict to be set aside when the verdict is unreasonable or not supportable on the evidence.  Also see Jones vThe Queen (1997) 191 CLR 439, 450.

5. In M (523), McHugh J said that a 'miscarriage of justice' arises whenever the accused has not had a fair trial according to law or whenever the nature of the evidence, the directions to the jury or the procedures that were followed, raise a real doubt as to whether the conviction can be regarded as a safe or just conviction.  In Jones (450), Gaudron, McHugh and Gummow JJ said that, having regard to the statements in M, there can be no doubt that a 'miscarriage of justice' also occurs when the findings or verdicts of the jury raise a real doubt as to whether a conviction is safe or just. 

6. In M, Mason CJ, Deane, Dawson and Toohey JJ said that the test for an unsafe or unsatisfactory verdict was whether the court thought that:

   upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (493).

   In answering that question, their Honours said:

   [T]he court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses.  On the contrary, the court must pay full regard to those considerations (493).

   Their Honours explained the application of the test:

   In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.  It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.  That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced.  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 of criminal appeal 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, then the court is bound to act and to set aside a verdict based upon that evidence.  In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (494 - 495).

   Also see Jones (450 ‑ 451).  The test formulated by the majority in M is the appropriate test for determining whether a verdict is unsafe or unsatisfactory:  Jones (452); MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 [25].

7. In Libke v The Queen [2007] HCA 30; (2007) 81 ALJR 1309, Hayne J (with whom Gleeson CJ and Heydon J relevantly agreed) said that where it is alleged that a conviction is unsafe or unsatisfactory, the question for an appellate court is:

   [W]hether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt (M v The Queen (1994) 181 CLR 487 at 492 - 493, 69 ALJR 83). It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. In the present case, the critical question for the jury was what assessment they made of the whole of the evidence that the complainant and the appellant gave that was relevant to the issue of consent to the digital penetration that had occurred in the park. That evidence did not require the conclusion that the jury should necessarily have entertained a doubt about the appellant's guilt [113]. (emphasis in original)

   Also see Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [41] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ).

8. In MacKenzie v The Queen (1996) 190 CLR 348, 366 ‑ 368, Gaudron, Gummow and Kirby JJ enunciated a number of general propositions distilled from a review of the cases on inconsistent verdicts. The principles in MacKenzie were applied in MFA, where Gleeson CJ, Hayne and Callinan JJ said:

   Since the ultimate question concerns the reasonableness of the jury's decision, the significance of verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case.  Furthermore, it must be considered in the context of the system within which juries function, and of their role in that system.  A number of features of that context were emphasised in MacKenzie.  They include the following.  First, as in the present case, where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count.  This will often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part.  Secondly, emphasis will invariably be placed upon the onus of proof borne by the prosecution.  In jurisdictions where unanimity is required, such as New South Wales, every juror must be satisfied beyond reasonable doubt of every element in the offence.  In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant.  This may not be unreasonable.  It does not necessarily involve a rejection of the complainant's evidence.  A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt.  The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution.  A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant.  It may simply reflect a cautious approach to the discharge of a heavy responsibility.  In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant's evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others.  Thirdly, there is the consideration stated by King CJ in R v Kirkman ((1987) 44 SASR 591 at 593), and referred to in later cases (eg, MacKenzie v The Queen (1996) 190 CLR 348 at 367 - 368): it may appear to a jury, that, although a number of offences have been alleged, justice is met by convicting an accused of some only. And there may be an interaction between this consideration and the two matters earlier discussed [34].

1. More recently, in Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303, Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ said, in relation to inconsistency of verdicts:

   Difficulties in understanding jury verdicts which are explicable on the basis that one of them is 'merciful', or that they accord with the jurors' innate sense of fairness and justice, do not lead to the conclusion that the jurors have acted unreasonably (MacKenzie v The Queen (1996) 190 CLR 348 at 367 - 368). The question in the present case is whether that is the explanation, or whether the jury, faced with a position in which some favoured conviction of rape on both counts and some did not, compromised by convicting only of one act of unlawful carnal knowledge and one rape. It is for the appellant to demonstrate that the latter is the case (MacKenzie v The Queen (1996) 190 CLR 348 at 368). This the appellant has not done. The verdicts do not in themselves represent, on the public record, an affront to logic and commonsense. The fact that, if the jury were minded to be merciful, it would have been more logical to convict on count 6 and acquit on count 7, is an insignificant detail: from the point of view of mercy, it did not matter which count was the subject of the conviction. 'It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside' (MacKenzie v The Queen (1996) 190 CLR 348 at 368) [71].

2. In Jones, the accused was charged with three acts of sexual intercourse with a female child. The jury acquitted the accused of the second count, but convicted on the first and third counts. The accused appealed against conviction on the ground that there had been a miscarriage of justice under s 6(1) of the Criminal Appeal Act 1912 (NSW). The majority of the High Court, applying the test in M, held that the convictions should be set aside in that they were unsafe and unsatisfactory.  Gaudron, McHugh and Gummow JJ said:

   Given the jury's finding on the second count, it was not open to them, on the whole of the evidence, to be satisfied beyond reasonable doubt of the guilt of the appellant on the first and third counts.  Once the jury found that the evidence of the complainant with respect to the second count lacked sufficient cogency to convict, the Crown case on the first and third counts wore a different complexion.  For it meant that, when her evidence could be set against other reliable evidence, it failed to carry sufficient conviction to reach the criminal standard of proof.

   As we have already said, nothing in the complainant's evidence gave any ground for thinking that the quality of her evidence was higher in respect of the first and third count than it was in respect of the second count (455).

3. In MFA, Gleeson CJ, Hayne and Callinan JJ made the following observations about Jones:

   … some Judges have taken Jones as authority for the proposition that where multiple offences are alleged involving the one complainant, then verdicts of not guilty on some counts necessarily reflect a view that the complainant was untruthful or unreliable, and that an appellate court should consider the reasonableness of guilty verdicts on the basis that the complainant is a person of damaged credibility.  That view is erroneous.  It overlooks the attention to factual detail in the reasoning of Jones.  It also overlooks the principles stated in MacKenzie, which were not qualified in Jones, and the considerations mentioned in the preceding paragraph [see [34] extracted above] in these reasons.  Jones is not to be understood as establishing a set of legal propositions, separate or different from the test formulated in M, which must be applied in deciding whether a conviction on one or more counts of sexual offences, when the accused was acquitted on other counts, is unreasonable, or cannot be supported, having regard to the evidence [35].

   Also see, in MFA, these comments of McHugh, Gummow and Kirby JJ in relation to Jones: 

   We would dissent from the proposition that Jones stands for a rule that, in cases of complaints of a number of sexual offences, a jury must either accept or reject the lot.  It always remains for a court of criminal appeal whose jurisdiction is invoked to examine any differentiation in the verdicts to see if it can be justified.  All that Jones decides is that, on the facts of that case, the necessary justification in logic and reasonableness was missing.  Jones was a very fact-specific case. Indeed, all such cases are highly fact-specific [89].

4. See also Cecez v The State of Western Australia [2007] WASCA 260 [119] - [123]; G v The State of Western Australia [2007] WASCA 202 [68]; Ferris v The State of Western Australia [2007] WASCA 69 [142] - [146]; Riley v The State of Western Australia [2007] WASCA 22 [16] - [25]; VIM v Western Australia [2005] WASCA 233; (2005) 31 WAR 1 [187] - [194]; R v Kirkman (1987) 44 SASR 591, 593.

5. Accordingly, there is no general rule that in cases where several sexual offences depend upon the complainant's evidence, acquittal on some counts requires the conclusion that the jury must necessarily have regarded the complainant generally as an untruthful witness or that his or her credibility was undermined in respect of the counts on which convictions were recorded:  R v PMT [2003] VSCA 200; (2003) 8 VR 50 [25].

6. The appellant relied on certain observations of Kennedy J in the decision of the Court of Criminal Appeal in M v The Queen (1998) 104 A Crim R 154. However, those observations were made before the decision of the High Court in MFA which made plain that the decision in Jones was 'a very fact‑specific case' [89], and that Jones does not stand for a rule that, in cases of complaints of a number of sexual offences, a jury must either accept or reject the lot [89].  All cases in which there are allegations of several sexual offences are highly fact‑specific.  The proper approach for this court is to identify and apply the relevant principles enunciated by the High Court in the various authorities to which I have referred.

7. In the present case, the appellant has not established any relevant inconsistency in the verdicts reached by the jury. 

8. First, there is the evidence as to the nature and extent of the digital penetration concerning count 2 compared with the other counts alleging digital penetration.  The complainant said, in relation to count 2, in examination‑in‑chief, that after the appellant had returned to the guest room on the second occasion and got on the bed, he 'straight away put his hands under my tracksuit pants … and my G‑string and started feeling me around on my clitoris' (trial t/s 204).  The complainant also said that she remembered feeling his hand and finger moving around, up and down, and that he touched inside her labia majora (trial t/s 204).  The complainant's evidence in relation to counts 3, 4 and 6 described the appellant's digital penetration of her vagina as being deeper and more forceful in nature (trial t/s 207 ‑ 209).  During his video record of interview with police, the appellant admitted that, after 'kissing' and 'cuddling' the complainant, he possibly touched the outside of the complainant's vagina, he may have put his fingers in the complainant's vagina, it was possible he penetrated the complainant's vagina with his fingers, and he touched the complainant's vagina but did not really penetrate it (VROI t/s 74 ‑ 75).  The appellant consistently denied, however, that there had been any 'forceful penetration' (VROI t/s 77, 82).  The prosecution's case and the complainant's evidence was, of course, to the effect that count 2 occurred after count 1 (which alleged unlawful and indecent assault by the appellant inserting his tongue into the complainant's mouth) and before counts 3 ‑ 7.  At trial, the appellant gave evidence and recanted the admissions he had made in the video record of interview.  Plainly, however, those admissions were against his interest and if the jury accepted that the admissions were truthful, it was entitled to take them into account in considering whether the prosecution had proved the appellant's guilt beyond reasonable doubt in relation to any of the counts in the indictment. 

9. Secondly, on a fair reading of the transcript of his video record of interview, the appellant admitted only one occasion of digital penetration, even though he gave different accounts of the extent of the penetration.  Certainly, the jury was entitled to conclude that there was no admission of more than one such occasion.  The appellant did not admit in the interview the conduct the subject of count 1 and he denied the conduct the subject of counts 5 and 7.

10. Thirdly, there is the evidence as to what the appellant was wearing at material times.  The complainant said, in examination‑in‑chief, that when count 2 occurred, the appellant was wearing a 'top and boxer style shorts' (trial t/s 206).  During his video record of interview, the appellant admitted that he removed his jeans and was wearing boxer shorts (VROI t/s 72).  Also, the appellant said, in examination‑in‑chief, in the context of returning to the guest room on the second occasion, that he was wearing 'a pair of shorts and singlet, T‑shirt, whatever it was' (trial t/s 574).  The complainant said, in examination‑in‑chief, that after the occurrence of count 2, when the appellant returned to the guest room on the third occasion, he was wearing only boxer shorts and no T‑shirt (trial t/s 207). 

11. Fourthly, there is the evidence as to the timing of the events the subject of count 2.  The complainant said, in evidence‑in‑chief, that the appellant left the guest room after he fell off the bed shortly following the occurrence of count 1 (trial t/s 201 ‑ 203).  She also said that he returned to the guest room within 10 minutes, and count 2 then occurred (trial t/s 204 ‑ 205).  During his video record of interview, the police suggested to the appellant that after kissing the complainant in the guest room he had left the room, but had later returned and placed a finger into her vagina and over her clitoris.  Although the appellant initially denied that he had kissed the complainant or digitally penetrated her vagina, he did admit, shortly after this denial, that he may have left the guest room, had a drink and then returned to the room (VROI t/s 37).  Also, the appellant said, in examination‑in‑chief, that he had left the guest room after his first visit and returned on a second occasion, and it was during this second visit that he fell asleep on the bed and awoke later with his right hand on the outside of the complainant's clothes in the vicinity of her pubic area (trial t/s 572 ‑ 576).  The complainant said, in the course of her evidence in relation to count 2, that the appellant had stopped touching her and left the guest room to answer a telephone (trial t/s 205), and that he had later returned to the room and the incidents the subject of counts 3 ‑ 7 had then occurred (trial t/s 206 ‑ 210).

12. The learned trial judge properly instructed the jury to give separate consideration to each count (trial t/s 671).  It is apparent that the jury obeyed this instruction, given their verdict of guilty on count 2 and not guilty on the other counts.  A verdict of guilty does not necessarily imply that the jury disbelieved the complainant.  It may simply have reflected a cautious approach to the discharge of a serious and important civic duty.  The jury may have needed supporting evidence before reaching a conclusion beyond reasonable doubt in relation to each count, or may not have been able to reach such a conclusion if they considered the complainant had been more reliable about some parts of her evidence than others.  The admissions which the appellant eventually made in his video record of interview with police may well have been a powerful consideration in the jury's decision to convict him on one of the counts (that is, count 2).  Further, the jury may have felt, despite a number of offences being alleged, that justice was met by convicting him of one offence only.  See MFA [34].

13. After the jury retired to consider its verdict, it sent a note to the learned trial judge.  The note read:

    Your Honour, some members of the jury seek clarification of the following: 

    (1)Your Honour's direction on the law relating to consent;

    (2)Your Honour's summary statement relating to consent (trial t/s 702).

    His Honour showed the note to trial counsel for the appellant and the prosecution in the absence of the jury.  His Honour informed counsel of a further direction he proposed to give to the jury in respect of the note.  Counsel for the prosecution had no comment.  Counsel for the appellant said:

    consent is not an issue in this case and it is whether the prosecution have proved beyond reasonable doubt that these incidents have occurred and perhaps if they can just be redirected as to the defence position that there is a denial that these incidents occurred (trial t/s 702).

    His Honour then directed the jury, relevantly, as follows:

    First, on the law, the law is that consent means consent freely and voluntarily given.  Consent is not freely and voluntarily given if it is obtained by force or threat or intimidation.  A failure of a person to offer physical resistance does not of itself constitute consent.

    That's the answer to your first query.  Your second query relates to the facts of this case, so I'm moving now from law to facts, and what I said to you this morning on that is that it's my view that consent is not an issue in this case.  The question for you to ask yourself on each charge, it seems to me, is whether on all the evidence the state has proved beyond reasonable doubt that [the appellant] did the things of which [the complainant] gave evidence.

    The state's case is that that is what occurred.  The defence case is that these things did not happen at all, and that it seems to me on the facts of this case is the issue and consent, it seems to me, is not an issue in this case on the facts of this case (trial t/s 703).

14. When the appellant made the admissions against interest, in the course of his video record of interview, he maintained that the sexual contact in question was consensual.  As I have mentioned, the appellant gave evidence at the trial and asserted that there had been no sexual contact and that the admissions in the video record of interview were untrue.  Accordingly, the appellant did not raise, by way of defence at the trial, any issue as to whether the conduct alleged against him in the indictment was consensual or whether he had an honest and reasonable but mistaken belief that the complainant consented.

15. The indictment does, of course, allege in relation to each count that the conduct complained of occurred without the complainant's consent, the absence of consent being an element of the offence which the prosecution must prove beyond reasonable doubt. 

16. It is apparent that, in the circumstances, the jury's question regarding consent was raised for the purpose of seeking clarification as to the relevance of consent to their deliberations.  The learned trial judge's direction in response to the question explained carefully that, on the issues in contention at the trial and the manner in which the appellant had chosen to run his case, consent was not an issue.  In my opinion, the jury's question does not raise any concern as to whether it correctly understood its task.  Rather, it suggests that the jury adopted a careful and thoughtful approach to their deliberations.

17. The verdicts do not represent an affront to logic or commonsense.  It was open to the jury, upon the whole of the evidence, to be satisfied beyond reasonable doubt that the appellant was guilty on count 2, but not to be satisfied to the requisite standard in relation to the other counts.  My review of the trial record does not indicate that the jury failed correctly to appreciate its task or properly to apply its mind to the facts of the various counts in the indictment. 

18. Ground 1 fails.

Appeal against conviction:  ground 2

1. Ground 2, with supporting particulars, alleges:

   2.The learned sentencing judge erred in refusing to grant leave to cross‑examine the complainant as to the fact that she had previously made complaints of sexual assault against two persons other than the accused.

   PARTICULARS

   a)The matters did not require leave under s36BC of the Evidence Act not being questions relating to the [complainant's] sexual experience.

   b)Alternatively, if leave was required, the learned sentencing judge ought to have granted leave on the following basis:

   i)It was not in issue that the Complainant had made previous complaints of sexual assault against other parties, one of which had gone to Court;

   (ii)The question of whether the Complainant had experience in the judicial process generally, and in relation to sexual assault specifically was of significant importance in any assessment of the Complainant's behaviour at the time in question and to an assessment of her credit generally;

   iii)A significant factor in the case was whether the Complainant had failed to preserve intact the clothes worn by her on the night in question. Her failure to do so was likely to have been seen by the jury as a factor indicative of the falsity of the complaints had they known of the previous complaints;

   iv)The Complainant's refusal on two occasions to undergo a medical examination immediately following the alleged sexual assaults in question should have been able to have been assessed by the jury in the light of her previous complaints of sexual assault and experience of the judicial process;

   v)The matters went to credit, but not exclusively to credit, and had substantial relevance to the issues for resolution by the jury in the circumstances of the case.

2. At the trial, counsel for the appellant sought to cross‑examine the complainant in relation to statements she allegedly made on 4 June 2005 to Dr Brian Lynch.  Dr Lynch said, in a statement which formed part of the prosecution brief:

   I had asked her about previous history of a similar nature.  She said a family friend had tried to touch her inappropriately when she was 14.  This went to court, but the man was found not guilty.  She also informed me that her sister's boyfriend had sex with her against her will 4 months previously.  He was affected by alcohol and possibly marijuana at the time.  She had taken no action about this sexual assault.

3. The appellant, in his written submissions to this court, said:

   The significance of the Complainant's prior complaints was that, as a result of these complaints she had experience in the manner in which complaints of sexual assault are investigated and prosecuted.  That she failed to preserve the integrity of the clothing, and refused to allow two different doctors to examine her, was particularly significant in light of her previous complaints, especially the complaint that was taken all the way to trial.

   It was submitted that these prior incidents were of particular significance in the light of the complainant's admission in evidence that when she complained to police in South Australia about the appellant's conduct she was told not to wash her clothing.

4. According to the appellant, Judge Sweeney (who heard and determined the appellant's application for leave under s 36BC of the Evidence Act 1906 (WA) at a directions hearing before the trial) and the learned trial judge should have held that leave was not required under s 36BC to cross‑examine the complainant as to her experience of the manner in which complaints of sexual assault are investigated and prosecuted in that the cross‑examination would not have led to 'evidence relating to' the complainant's 'sexual experience'. Alternatively, the appellant contended that if leave under s 36BC was required, it ought to have been granted.

1. Section 36BC provides:

   (1)In proceedings for a sexual offence, evidence relating to the sexual experiences of the complainant, being sexual experiences of any kind, at any time and with any person, not being part of the res gestae of the proceedings, shall not be adduced or elicited by or on behalf of an accused unless leave of the court has first been obtained on application made in the absence of the jury (if any).

   (2)The court shall not grant leave under subsection (1) unless satisfied that -

   (a)what is sought to be adduced or elicited has substantial relevance to the facts in issue; and

   (b)the probative value of the evidence that is sought to be adduced or elicited outweighs any distress, humiliation or embarrassment which the complainant might suffer as a result of its admission.

2. Recently, in Bolton v The State of Western Australia [2007] WASCA 277, Steytler P (with whom Buss and Miller JJA agreed) considered various aspects of the proper construction and application of s 36BC. His Honour said:

   The words 'sexual experiences' include experiences as the victim of a sexual offence:  Hill v The Queen [2003] WASCA 177 [48] (McLure J; Murray & Wheeler JJ agreeing). These words have also been construed as meaning actual sexual experiences, in the sense that the defence cannot, without leave, cross-examine a complainant on the question whether a previous complaint of rape involved consensual sex (see R v Tribe [2001] QCA 206 [22] - [24], [31] - [34] (Mackenzie J, McMurdo P & Williams JA agreeing)) but can, without leave, suggest to the complainant that a previous complaint of rape was false because the sexual act never occurred (R v Stergiou [2004] WASC 172; (2004) 147 A Crim R 120 [16] - [20] (Le Miere J)). The rationale for this distinction is that cross-examination contending that sexual activities did not take place at all is not cross‑examination with respect to the complainant's sexual experience: see also R v MAG [2004] QCA 397 [24] - [27] (Williams JA, Cullinane & Jones JJ agreeing); R v Thow [2003] TASSC 16 [9] - [10] (Slicer J). Under Western Australian legislation, the lack of sexual experience is not caught by s 36BC: cf, in this respect, Criminal Procedure Act 1986 (NSW) s 293(3) [36].

3. Later, Steytler P referred to Bull v The Queen [2000] HCA 24; (2000) 201 CLR 443, and noted:

   As will be apparent, s 36BC provides that, where the evidence forms part of the res gestae, it will be admissible without leave.  The words 'res gestae', in this context, refer to events that are so close in time and space to the offence charged as to be inseparable from it:  Bull [110] (McHugh, Gummow & Hayne JJ). After referring to the remarks of Dixon CJ in Dawson v The Queen (1961) 106 CLR 1, 16, that 'the ingredients of a crime are to be proved by direct or circumstantial evidence of the events, that is to say, the parts and details of the transaction amounting to the crime, and are not inferred from the character and tendencies of the accused', the majority in Bull went on to say [112]:

   This statement provides an insight as to what constitutes the 'res gestae' for the purpose of s 36BC.  The existence of consent, for example, is not to be 'inferred from the character and tendencies of the [complainant]', but is to 'be proved by direct or circumstantial evidence of the events, that is to say, the parts and details of the transaction amounting to the crime'.  Where an act or statement is intimately connected with the particular sexual conduct which is the subject of the charge, or in other words with 'the parts and details of the transaction amounting to the crime', it is part of the res gestae and so is admissible under s 36BC without leave.  That applies to acts or matters tending to prove the disposition of the complainant, as well as to other acts or matters relating to the sexual experiences of the complainant. 

   The majority noted an apparent conflict between s 36B and s 36BC, and also between s 36BA and s 36BC. They said in this respect [64]:

   That is because s 36BC allows evidence relating to sexual experiences to be adduced if it is part of the res gestae or if the court is satisfied of certain conditions and gives leave to adduce the evidence.  Yet in terms ss 36B and 36BA respectively purport to render inadmissible any evidence relating to the sexual reputation of the complainant or to the disposition of the complainant in sexual matters even when it relates to or is derived from the sexual experiences of the complainant.  The conflict between the literal meanings of these sections suggests that the literal meanings of ss 36B and 36BA must be qualified to some extent.

   Next, before it can be admitted by leave under s 36BC, the evidence must be of substantial relevance.  Evidence which is legally relevant must be excluded if its relevance is not substantial:  Hill [58] (McLure J). Finally, if leave is to be given, the probative value of the evidence must not be outweighed by the distress and humiliation that the eliciting of that evidence may have on the complainant [43] ‑ [45].

4. In Bolton, Steytler P also referred to the words 'evidence relating to' in s 36BC and in s 36B and s 36BA. His Honour observed:

   The majority in Bull gave detailed consideration to the meaning of the words 'evidence relating to' in each of the three sections.  They said [72]:

   Evidence of a fact or matter is testimony that tends to prove that fact or matter.  Accordingly, any evidence that tends to prove the disposition of the complainant is evidence relating to his or her disposition.  Such testimony does not cease to be evidence relating to the disposition of the complainant because it also tends to prove some other fact or matter in the proceedings.  Evidence that on the occasion in question or on other occasions a complainant had used sado­masochistic devices in the course of sexual activity would tend to prove the disposition of that complainant in sexual matters.  The validity of the proposition would not be affected by the fact that the evidence was tendered for the purpose of proving a fact in issue such as consent or an honest belief that the complainant had consented.  It may be that the natural meaning of the words 'evidence relating to' is wide enough to cover evidence that only incidentally refers to sexual reputation, disposition or experiences, an issue that we must later discuss.  But it seems impossible to deny that those words in their ordinary meaning at least cover any testimony which tends to prove any of those matters.

   However, they went on to say [75]:

   Sometimes, however, testimony of an out-of-court statement is admissible to prove a fact relevant to a fact in issue such as the intention or purpose of the complainant or even the consent of the complainant.  If the statement contains material that refers to matters relating to the reputation, disposition or experiences of the complainant in sexual matters, would it be evidence tending to prove those matters and prohibited by one or more of the three sections?  We think not.

   The majority also compared hearsay statements with evidence of conduct.  They said [80] - [81]:

   If a hearsay statement is admissible to prove a fact in issue or a fact relevant to a fact in issue, it is evidence of that fact only and the statement cannot be regarded as evidence tending to prove any fact in the statement.  It follows that, in a trial to which ss 36B, 36BA or 36BC apply, a statement of the complainant that is admissible to prove a fact in issue or a fact relevant to a fact in issue other than the reputation, disposition or experiences of the complainant in sexual matters, does not become, upon admission, evidence tending to prove those matters even if the contents of the statement refer to them.  The statement has no probative value in respect of those matters.  Accordingly, it is not evidence tending to prove any of those matters.

   But, as we have said, evidence of conduct stands in a different category.  The ordinary and natural meaning of the words 'evidence relating to' is that they cover any testimony that tends to prove a fact or matter.  If testimony tends to prove the sexual reputation, disposition or experiences of the complainant in sexual matters, it does not matter that it is adduced for some other purpose.  It will, by force of ss 36B, 36BA and 36BC, be inadmissible for all purposes [46] ‑ [48].

5. The evidence of the alleged previous incidents referred to in Dr Lynch's statement was not admissible under the law of evidence, independently of s 36BC, unless it was relevant.

6. In my opinion, the appellant did not establish at trial that the evidence in question, for the purposes of ground 2, was relevant.  It did not rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue, or a fact relevant to a fact in issue, in the proceedings.  See Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024 [2] (Gleeson CJ); Phillips [50]. Also, it did not relate to the complainant's credit.

7. The first alleged incident involved an attempt to inappropriately touch the complainant.  On the evidence, and the appellant's case and proposed case at trial, there is no basis for supposing that there was any necessity for the integrity of the complainant's clothing to be preserved and no basis for supposing that she derived any experience as to the importance which is ordinarily attached to the preservation of the integrity of a complainant's clothing or his or her prompt examination by a medical practitioner where the complainant alleges an actual sexual assault (as distinct from an attempted inappropriate touching).  The second alleged incident involved an actual sexual assault with penetration.  It is apparent, however, from Dr Lynch's statement that the complainant did not make any complaint to the police about the assault and no action was taken against her sister's boyfriend.  Again, on the evidence, and the appellant's case and proposed case at trial, there is no basis for supposing that, as a result of this incident, the complainant derived any experience as to the importance which is ordinarily attached to the preservation of the integrity of a complainant's clothing or his or her prompt examination by a medical practitioner where the complainant alleges an actual sexual assault.

8. Chandu Nagrecha [1997] 2 Cr App R 401 is distinguishable on the basis explained by McLure JA in her reasons.

9. Accordingly, ground 2 is without merit, irrespective of the proper construction and application of s 36BC.  I will, however, make some brief observations in relation to the section.

10. In my opinion, the notion of 'sexual experiences' within s 36BC, in combination with the object or purpose of the Parliament in enacting that provision, is broad enough to embrace an attempted sexual assault or an attempted indecent dealing.

11. In my opinion, therefore, evidence of the alleged previous incidents referred to in Dr Lynch's statement was evidence relating to the complainant's sexual experiences within s 36BC(1).  Plainly, those incidents were not part of the res gestae of the proceedings against the appellant.

12. If the evidence which the appellant's counsel had sought to adduce in cross‑examination of the complainant at the trial was not for the purpose of establishing the truth of the alleged previous incidents, but to establish some other fact that was legally relevant, the evidence would not have been inadmissible under s 36BC(1).  See Bolton, where Steytler P said:

    However, the appellant did not seek to lead the evidence for the truth of its contents concerning the complainant's sexual disposition or sexual experiences.  He sought to rely upon it for three reasons, as I have said.  The first was in order to prove the complainant's intention or purpose in going to his house which, in turn, was relevant to the issue of consent.  The second was in order to prove the appellant's understanding of what the appellant was willing to do if she came to his house which, in turn, was relevant to the issue of honest and reasonable belief in consent.  The third was in order to cast doubt on the complainant's credibility concerning her memory of the conversations, her professed lack of sexual interest in the appellant (which, she said, she had conveyed to him) and her reasons for going to his home.

    Applying what was said by the majority in Bull [80], the complainant's hearsay statements were admissible to prove intention or purpose (being relevant to consent) and the appellant's understanding (being relevant to honest and reasonable belief) and could not be regarded as evidence tending to prove the complainant's sexual disposition or sexual experiences, in respect of which they had no probative value. The only other relevance of the statements related to the issue of credit. Consequently, the evidence was not excluded by either of s 36BA or s 36BC, although a strong direction would have been needed in order to make it plain to the jury that the evidence was admissible only for the purposes identified and not for the purpose of proving sexual disposition or experiences and that they should not engage in impermissible reasoning in respect of it [63] ‑ [64].

13. As I have mentioned, I have concluded that evidence relating to the alleged previous incidents referred to in Dr Lynch's statement was not relevant to a fact in issue or a fact relevant to a fact in issue or to the complainant's credit, and, therefore, independently of s 36BC, the evidence was not admissible.

14. In my opinion, the decision of each of Judge Sweeney and the learned trial judge to refuse to permit the appellant's counsel to cross‑examine the complainant on the alleged previous incidents was correct. 

15. Ground 2 fails.

Appeal against conviction:  ground 3

1. Ground 3, with supporting particulars, alleges:

   3.The learned sentencing judge erred in failing to direct the jury that the business record of Dr Fowler identified by Dr Lynch to the effect that the Complainant had admitted to him that there had been 'no penetration' of the vagina could be used by the jury as truth of the contents of the statement.

   PARTICULARS

   a)Dr Fowler's notation in the surgery records was a business record for the purposes of s79C of the Evidence Act.

   b)The contents of the statement by the Complainant as recorded were admissible as to the truth of its contents.

   c)Any evidence as to whether there had been penetration of the Complainant was a matter of substantial relevance in the case.

   d)The jury ought to have been directed that they could use the contents of the statement as evidence of the fact that the Complainant had not been penetrated rather than simply as evidence of the fact that she had made the statement to the doctor.

2. At the trial, there was evidence that on 14 August 2005 the complainant consulted Dr Clive Fowler.  Dr Fowler made a note in his medical records on that day in relation to the consultation.  The note reads:

   Raped, 6‑7 weeks ago in Perth - no actual penetration of vagina.  Nauseated and upper abdominal pain - burning.

3. The appellant's counsel cross‑examined the complainant on Dr Fowler's note.  She admitted having said to Dr Fowler that there was no vaginal penetration.  She explained, however, that in making that statement to Dr Fowler she meant that there had been no penile (as distinct from digital) penetration of her vagina.

4. In summary, the terms of the complainant's statement, as recorded in Dr Fowler's note, were put to her as a prior inconsistent statement, but she admitted making the statement and gave an explanation for it. Any evidence from Dr Fowler as to the alleged prior inconsistent statement was therefore not admissible under s 21 of the Evidence Act or at common law.  See MJH v Western Australia [2006] WASCA 167; (2006) 33 WAR 9 [148] ‑ [152] (Buss JA).

5. Dr Fowler was not called as a witness, but Dr Lynch (who practised at the same medical practice as Dr Fowler) gave evidence including in relation to Dr Fowler's note.

6. I agree with McLure JA, for the reasons she gives, that ground 3 is without merit.  I have some brief additional observations.

7. Section 79C(1), (2) and (2a) make admissible statements in a document, and not the document itself. The existence of an admissible statement in a document therefore does not make the balance of the document admissible, if it is otherwise inadmissible. See Re Marra Developments Ltd & The Companies Act [1979] 2 NSWLR 186, 198 (Needham J).

8. Section 79C(3) is significant. By s 79C(3)(a), s 79C makes a statement admissible notwithstanding the rules against hearsay. See the observations in Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542, 569 (Hutley JA) in relation to the identical New South Wales provision. Section 79C(3)(b) provides that s 79C makes a statement admissible notwithstanding the rules against secondary evidence of the contents of a document. Section 79C(3)(c) provides that s 79C makes a statement admissible notwithstanding that the person who made the statement or the person who made a statement from which the information in the statement is reproduced or derived is a witness in the proceedings, whether or not he gives evidence consistent or inconsistent with the statement. As J D Heydon notes in Cross on Evidence, 7th Aust ed, [35315]:

   If strict regard had to be paid to the rules as to prior consistent or inconsistent statements of witnesses there could be extreme problems in the orderly calling of witnesses.  Statements tendered as business records can be admitted even though they are consistent or inconsistent with the sworn evidence of their makers.  A party can tender a business record even though it is consistent with his witness's sworn evidence; he can tender his own witness's prior inconsistent statements as business records even though the witness is not hostile; and prior consistent and inconsistent statements in business records can be tendered not merely as going to credit, but as evidence of the matters of fact or opinion asserted.

   Section 79C(3)(d) provides that s 79C makes a statement admissible notwithstanding that the statement is in such a form that it would not be admissible if given as oral evidence. The concluding words of s 79C(3) state, however, that s 79C does not make admissible a statement which is otherwise inadmissible.

9. The learned trial judge exercised the discretion conferred on him by s 79C(6) to reject Dr Fowler's note because of the failure of the appellant's counsel to tender the note under s 79C earlier in the proceedings and because his Honour had already outlined the issues in the trial to the jury and the tendering of the note and further directions in relation to it would not be of any assistance to the jury. A proper interpretation of his Honour's reasons is that, in terms of s 79C(6), his Honour was of the opinion that the probative value of the statements in Dr Fowler's note was outweighed by the consideration that its admission at a very late stage of the trial (after the jury had retired) may confuse the issues.

10. In my opinion, the appellant has failed to establish that the learned trial judge made a material error of fact or law in the exercise of his discretion.  In any event, even if his Honour did make a material error of fact or law, the error did not occasion a miscarriage of justice.  The appellant's counsel cross‑examined the complainant in relation to Dr Fowler's note, she admitted making the statements in question, and she gave an explanation in relation to them.  It was for the jury to assess whether to accept or reject her explanation, and to decide what impact any rejection of her explanation had upon her credit.

11. Ground 3 fails.

Appeal against conviction:  ground 4

1. Ground 4, with supporting particulars, alleges:

   4.The learned Judge at the Directions Hearing erred in her rulings on the admissibility of disputed portions of the video record of interview.

   PARTICULARS

   a)The portions of the video record of interview which offended against the rule in Palmer v R (1998) 193 CLR 1 should have been edited; and

   b)The portions of the video record of interview which offended against the rule in Straker v The Queen (1977) 51 ALJR 690 should have been edited.

1. The confession of Cooke was held to be admissible. The court was satisfied on the balance of probabilities that at the time of making the confession Cooke had or may reasonably be supposed to have had personal knowledge of the matters dealt with in the confession. It was not excluded by reason of the provisions of s 79C(4) of the Evidence Act 1906.

2. The court then considered the admissibility under s 79C of police memoranda of the type I have described. The court said:

   The starting point in considering admissibility under s 79C is whether direct oral evidence of the statements in the police documents would be admissible. That requires the statements to be relevant. The State does not suggest that the evidence of the victims as to the facts and circumstances of the offences is irrelevant. The confessions are relevant and admissible as direct evidence of the fact that Cooke confessed to the crimes. However, they are not tendered solely for that purpose. They are tendered as evidence of the truth of the fact that he committed the crimes. Whether he committed the crimes and thus the reliability of Cooke's confessional statements is a fact in issue in the appeal. The reliability of the confessions is also relevant to their admissibility under s 79C(1) of the Evidence Act.  In these circumstances, the finality rule, which prohibits evidence in support or rebuttal on matters going solely to credit, has no application.

   The statements in MFI 14 and 15 identified above are relevant and matters on which direct oral evidence would be admissible. Some of the statements in MFI 23 are statements of the opinion of persons involved in or responsible for the investigation of these crimes committed more than 40 years ago. Section 79C applies equally to statements of fact and opinion. The question is whether the statements could be the subject of direct oral evidence in the appeal. Evidence as to whether or not the police force, being the State institution responsible for investigating crimes and charging offenders, accept that Cooke was responsible for the assaults in question, is relevant and admissible. The opinions of unidentified individual officers is not unless they can be taken to represent the official position of the police force or the State. [181] ‑ [182]

   The memoranda were found to be admissible and the exclusion in s 79C(4)(a) of the Act was held not to apply.

3. It can be seen from the decision in Beamish that in some cases statements of fact and statements of opinion by persons involved in investigation of crimes committed many years ago may be admitted as the truth of those facts and/or opinions pursuant to s 79C of the Evidence Act 1906.  Confessional material, such as that made by Cooke in Beamish may also be admissible under that section. 

4. However, the admissibility of this type of material is a different question from the admissibility as evidence of the truth of the fact of Dr Fowler's entry in his medical notes in the present case.  The point of distinction is that in Beamish it was necessary to tender documentary evidence of numerous facts and opinions, most of which had been expressed many years beforehand.  Although some of the witnesses who had made those statements may have been available to be called and indeed some were, they could not be expected to recall, 40 years later, the detail contained within the various statements, memoranda and other documents.

5. The difference between the present case and the case of Beamish is that the complainant in this case gave evidence and identified the statement in Dr Fowler's notes. She accepted that she had made the statement. She was cross‑examined about it. She endeavoured to explain what she had meant by it. Evidence of what she had said to Dr Fowler was thus before the court. No question arose as to the admissibility of Dr Fowler's record pursuant to the provisions of s 79C of the Evidence Act 1906. 

6. The question of the admissibility of Dr Fowler's record as evidence of the fact that there had been no vaginal penetration of the complainant was raised after the trial judge had directed the jury.

7. The prosecutor questioned the direction about what the complainant had said to Dr Fowler and the trial judge said:

   MARTINO DCJ:   [W]hen I referred to out of court statements, I did refer to prior inconsistent statements and I said some of the matters that were referred to were the matters of Dr Lynch and Dr Fowler, but then I said there were two matters I wished to say about evidence of that nature.

   WILSON, MR:   Yes.

   MARTINO DCJ:   It's not evidence of the truth of what - but I have already told them that.  What I said to Dr Jovanovic it's not evidence of the truth of what was said ‑ ‑ ‑

8. Counsel for the appellant then raised (apparently for the first time) the application of s 79C of the Evidence Act 1906 and, in particular, s 79C(2a).  He said:

   PERCY, MR:   Yes.  I thought your Honour had given that direction, it was my understanding.  Just one aspect that concerns me, your Honour.  In relation to the evidence of Dr Lynch about the entry in the records by Dr Fowler ‑ ‑ ‑

   MARTINO DCJ:   Yes.

   PERCY, MR: - - - we would say that has a different significance. Under the provisions of section 79C of the Evidence Act, the jury might be entitled, depending on what weight they placed on it, to accept it as the truth of what it was, that is ‑ ‑ ‑

   MARTINO DCJ:   That she was raped.

   PERCY, MR:   Either that she was raped or that there was no penetration.  It's a business record for the purposes of that, and as your Honour will be aware, that was canvassed in Beamish v R in 2005, in relation to police records as to whether they are simply records of a report of the offence or whether they're actually evidence of the truth of the offence, and it was held that they were evidence of the truth of the offence, and this has the same category, so they could use it.  It's a twin edged sword for me, but I will be asking your Honour to give that direction, that what is contained in that record is not only evidence that the complainant said, but it may well be treated as evidence of the truth of that matter, that is, she was raped but there was no actual penetration.

9. After pointing out that Dr Fowler's note would not come within s 79C(4) of the Evidence Act 1906, the following exchange occurred:

   MARTINO DCJ:   But that's only evidence of what the doctor's opinion was, not the truth of what the doctor was told, generally speaking.

   PERCY, MR:   It's only evidence of what was said to the doctor, and that's true, but when you don't call the doctor and that - in the evidence of what happens just goes in singularly in that form, it simply goes in as that, we say that is evidence of the truth of the matter, and I accept unconditionally what my friend says, that in most cases it's just a way of facilitating proof without calling a witness, but we say - if my friend reads Beamish he will understand where I'm coming from.

   MARTINO DCJ:   But even if you called the doctor, 79C is satisfied, on production of the document

   PERCY, MR:   Yes, I suppose what they could do is they could say, 'Not only are we going to call the doctor to give evidence, we're going to put her notes in,' and then it will transcend the purpose of the evidence which they give and it will formulate into the truth, but I don't think that happens when you call a witness, it just doesn't.

10. The trial judge then pointed out to counsel for the appellant that the matter had not been raised until after the judge had charged the jury:

    MARTINO DCJ:   You didn't raise this until just now, did you, Mr Percy?

    PERCY, MR:   I said to the jury that - if you read that, if you have a look at that evidence and rely on that, I said, 'Get your red pen and put it straight through that, because that's evidence of the fact.'  I put that to the jury on the basis, I thought your Honour might have being going to give such a direction.

    MARTINO DCJ:   But you didn't raise it at the time when the evidence was led?

    PERCY, MR:   I didn't because it was admissible.  I wasn't objecting to anything.  The evidence went in, it went in on its face.  It's just the question - - -

    MARTINO DCJ:   You asked the question.

    PERCY, MR:    - - - of the evidence.

11. The trial judge then gave a ruling on the issue, indicating that he would not redirect the jury.  He said:

    [U]nder section 17C [sic 79C] subsection (6) the court has a discretion to reject a statement, notwithstanding its admissibility, if of the opinion that the probative value of the statement is outweighed by consideration that its admission may create undue prejudice, confuse the issues or mislead the jury.  I did not understand when the evidence was led that the evidence was being led as evidence of the truth of it.

    I thought it was just exactly the same as the evidence of Dr Lynch, that it was being evidence of what was being said to a doctor by the complainant and if it had been raised that it was being led as to the truthfulness of what was said, then I would have at the very least given consideration to whether Dr Fowler should be called, and even if he had been called, or she had been called, I think it was he, it may well be that I would have decided the evidence was because of the short nature of the note and the length of time ago, evidence not of the truthfulness of what the complainant said.

    Secondly, in relation to the matter of evidence, it seems to me that the issues in this case are as I have outlined them to the jury and I don't think it would be of any assistance for the jury to be told that - the fact that she told Dr Fowler, the complainant told Dr Fowler, that she had been raped is evidence she had been raped.  The fact that she told Dr Fowler that there had been no penetration of the vagina is evidence that there was no penetration of the vagina and I will not be directing the jury on that issue as Mr Percy has submitted.

12. In my opinion, the first problem the appellant faces under this ground is that there was no tender of Dr Fowler's record at trial. The document was not produced within the meaning of s 79C(2a). All that happened was that the complainant was cross‑examined about the statement on the basis that it was a prior inconsistent statement. Because she admitted what she had said to Dr Fowler, there was no question of tender of the document pursuant to s 21 of the Evidence Act 1906.  Nor was any attempt made to tender the document under s 79C(2a).

13. I have reservations as to whether the provisions of s 79C(2a) were applicable to the case.  In my view, the section is aimed at the production of a document which is a business record and which becomes admissible as evidence of a fact or opinion stated in it in circumstances where the evidence would otherwise be hearsay and inadmissible.  It becomes unnecessary for the statement to be admitted as evidence in circumstances where the content of the statement is admitted by a witness who made it.  In those circumstances, there is evidence before the court that the statement was made, and made in the terms which were recorded by the person making the business record.

14. Further, and in any event, I consider that the trial judge was correct to apply the provisions of s 79C(6) which are in the following terms:

    (6)For the purpose of this section a court may, in its discretion, reject a statement notwithstanding that the requirements of this section are satisfied with respect thereto, if the court is of the opinion that the probative value of the statement is outweighed by the consideration that its admission or the determination of its admissibility -

    (a)may necessitate undue consumption of time; or

    (b)may create undue prejudice, confuse the issues, or in proceedings with a jury mislead the jury.

15. I consider the trial judge to have been correct to conclude that in the exercise of his discretion, any probative value of the statement was outweighed by the consideration that its admission might confuse the issues or mislead the jury. The issues would be confused and/or the jury misled because the purpose of the cross‑examination was to establish that the complainant had made a prior inconsistent statement in relation to the issue of penetration. She admitted saying what was recorded in writing, but endeavoured to explain what she had meant by the statement. The issue of what she had said and what she had meant by it was clearly before the jury and no good purpose was to be served by the application of the provisions of s 79C(2a) of the Evidence Act 1906.

16. For all of these reasons, and particularly because of the failure of counsel for the appellant to tender the record during the course of the trial, I would dismiss ground 3 of the grounds of appeal.

Ground 4

1. This ground of appeal contends that the trial judge erred in failing to rule as inadmissible certain portions of the video records of interview of the appellant.  There are two aspects of the video records of interview that are said to have rendered portions of them inadmissible.  They are formulated in the ground of appeal as follows:

   a)The portions of the video record of interview which offended against the rule in Palmer v R (1998) 193 CLR 1 should have been edited; and

   b)The portions of the video record of interview which offended against the rule in Straker v The Queen (1977) 51 ALJR 690 should have been edited.

2. At a directions hearing before Sweeney DCJ various aspects of the appellant's video records of interview were edited.  However, Sweeney DCJ refused to edit aspects of the video record of interview which are now contested.

The rule in Palmer v The Queen

1. Palmer v The Queen (1998) 193 CLR 1 is authority for the proposition that questions put to an accused in cross‑examination asking him whether he could suggest any reason why the complainant would have invented allegations against him are inadmissible. Brennan CJ, Gaudron and Gummow JJ said:

   It is one thing to permit cross‑examination of a complainant in order to elicit, if possible, a motive to lie. It is another thing to permit cross‑examination of an accused to show that an accused cannot prove any ground for imputing a motive to lie to the complainant. A complainant knows whether he or she has a motive to lie and, as a motive to lie is a fact that may be proved to impeach the complainant's credit, the complainant may be asked about it. And evidence may be given by other witnesses of events from which such a motive may be inferred. But the fact that an accused has no knowledge of any fact from which a motive of the kind imputed to a complainant in cross‑examination might be inferred is generally irrelevant. In general, an accused's lack of knowledge simply means that his evidence cannot assist in determining whether the complainant has a motive to lie, but if the facts from which an inference of motive might be drawn are facts that the accused would know if they existed, his lack of knowledge could be elicited to disprove those facts [7]. (footnote omitted)

2. In the present case, there is one passage in the record of interview which is objected to:

   Q.  Yeah, well anyway she said that, ah, you were wearing, ah, a pair of boxer style, ah, shorts.  Why would she know that?

   A.  I wouldn't have a clue.

   Q.  Okay.

   A.  Wouldn't have a clue.  Seems she seems to remember a lot of things about five months ago.

3. In my view, there is no substance in this aspect of the ground of appeal.  The appellant was not asked 'why would the complainant lie?' but was told that the complainant said he was wearing boxer style shorts.  He was asked why she would know that.  The appellant was not asked to comment upon whether the complainant had any motive to lie about his wearing boxer shorts, but only whether he knew why she would be saying it.

4. In any event, the appellant admitted in his video record of interview that he had taken off his jeans whilst in the room occupied by the complainant and that he was wearing boxer shorts.

5. I can see nothing objectionable in the way in which the question was asked.

The rule in Straker v The Queen

1. Contrary to the appellant's contention, Straker v The Queen (1977) 51 ALJR 690 contains no 'rule'. It certainly does not stand for the proposition that a suspect cannot be questioned at length by putting to him the allegations of the complainant. That was the present case.

2. In Straker, police asked the suspect whether at any stage on the night in question he had had anal intercourse with the deceased.  The answer was negative.  There was no evidence to the effect that any person had had anal intercourse with the deceased on the night of his death.  Gibbs J held that the question and answer about anal intercourse should have been excluded from the evidence in accordance with the decision in R v Norton [1910] 2 KB 496, 500.

3. The passage to which Gibbs J was referring begins at 499 of R v Norton and it is in the following terms:

   If the answer given amount to an admission of the statements or some part of them, they or that part become relevant as shewing what facts are admitted; if the answer be not such an admission, the statements are irrelevant to the matter under consideration and should be disregarded.  This seems to us to be correctly and shortly stated in Taylor on Evidence, s 814, p 574: 'The statements only become evidence when by such acceptance he makes them his own statements.'

   No objection was taken in this case to the admission of the statements in evidence, but as the prisoner may be tried again on an indictment on which that question may arise, we think it well to state in what cases such statements can be given in evidence.  We think that the contents of such statements should not be given in evidence unless the judge is satisfied that there is evidence fit to be submitted to the jury that the prisoner by his answer to them, whether given by word or conduct, acknowledged the truth of the whole or part of them.  If there be no such evidence, then the contents of the statement should be excluded; if there be such evidence, then they should be admitted, and the question whether the prisoner's answer, by words or conduct, did or did not in fact amount to an acknowledgment of them left to the jury.  (499) ‑ (500)

4. Jacobs J held that in the state of the evidence at trial, there being no evidence to support a conclusion that any person had had anal intercourse with the deceased on the night of the deceased's death, the question and answer would only have been admissible on the basis that it was an admission; but it was a denial and the evidence was therefore wrongly admitted.  Stephen J agreed with Jacobs J on this point.

5. Murphy J held that because the medical evidence was that the deceased's condition was consistent with anal intercourse having occurred either before or after death or not having occurred at all, the pre‑trial questioning of the appellant in which he denied that anal intercourse had occurred was prejudicial and should have been rejected as inadmissible.

6. The case therefore stands for a different proposition than that relied upon by counsel for the appellant.  In the present case, the appellant, when first questioned, denied that there had been any sexual act between himself and the complainant.  Later, in the course of questioning, he said 'I'll tell you the facts' and admitted that he had given the complainant a kiss, cuddled her and touched her in the vaginal area in circumstances where he put his fingers in her vagina.  He also admitted that at one point he took off his jeans.  He maintained that what had occurred had occurred with consent.  He said 'She wanted sex'.  In the end, after what was undoubtedly persistent questioning, the appellant did admit to digital penetration with his fingers of the complainant's vagina.

7. It therefore seems to me that the appellant's admissions which are clearly admissions against interest, have to be read in the context of his earlier denials.  His testimony at trial was to the effect that he denied all allegations of sexual assault when questioned by police and only gave into them and admitted one incident of digital penetration of the vagina because that was what they wanted him to say and if he said it they would stop questioning him.  If this was the line of defence raised, it was necessary that the totality of the questions and answers should be before the jury.

1. It is unnecessary to deal with each of the questions and answers objected to.  It is sufficient to say that they all relate to the appellant's early denials of any sexual contact between himself and the complainant.

2. To the extent that the appellant denied the acts which constituted the counts on the indictment in relation to which he was acquitted, it was in his interests for that evidence to be before the jury.  He had only admitted to police one incident of digital penetration of the vagina.  He had denied all other allegations.  The jury was not satisfied beyond reasonable doubt that the counts other than count 2 had been made out.  The appellant's denials were one factor in the jury's consideration of the counts in relation to which he was acquitted.

3. In these circumstances, I can see no substance in the second aspect of ground 4 of the grounds of appeal against conviction.

Ground 5

1. Ground 5 of the grounds of appeal contends that if the court is not satisfied that the errors identified at any of the individual grounds of appeal constitute or have led to a substantial miscarriage of justice, the combination of those errors has led to such a miscarriage.

2. For the reasons I have given, I am unable to find any substance in grounds 1 ‑ 4 of the grounds of appeal and, that being so, it is unnecessary to consider ground 5.

3. I would therefore dismiss the appeal against conviction.

Appeal against sentence

1. The appellant's appeal against sentence boils down to a contention that a sentence of imprisonment to be served immediately was not the only disposition which was open to the sentencing judge and that it was open to impose a sentence of suspended imprisonment:  Sentencing Act 1995 (WA) s 76.

2. If a suspended sentence of imprisonment was an open disposition, then the sentencing judge ought to have imposed it:  Sentencing Act 1995 s 39(3). Clearly, a sentence of imprisonment to be served immediately was only to be imposed as a sentence of last resort, and only if the seriousness of the offence was such that only immediate imprisonment could justify it and/or the protection of the community required it.

Sentencing comments

1. The sentencing judge reviewed the facts of the case and found that after allowing the complainant and her child to stay at his home on the night in question, the appellant first took her to a room and later entered that room, put himself on to the bed, placed his hands under the complainant's tracksuit pants and under her G‑string and felt her clitoris.  Although told to stop and get off her, the appellant refused to do so.  He continued to touch her on the clitoris and inside the outer lips of the vagina.  The telephone then rang and he got up and left the room.

2. The sentencing judge described the offence as not planned but opportunistic.  He said:

   [It] did involve taking advantage of a vulnerable young woman who had a baby with her.  The offence has caused anxiety and distress to the victim. You are a person of good character apart from this offence which was out of character.  You have no relevant record and I have regard to the evidence of good character that witnesses gave during the trial.

   The risk of your reoffending is medium to low.  You have been a hard worker throughout your life and you have supported your family.  In arriving at the appropriate sentence I need to punish you, I need to deter you.  I also need to consider general deterrence which is a factor in this case.  Sexual penetration without consent is a serious offence and it's necessary for the punishment to reflect that seriousness.

   I have decided that the offence is so serious that the only appropriate sentence is a term of imprisonment.  I have borne in mind the changes to the sentencing legislation in 2003.  I have also borne in mind that you have spent close to a fortnight in prison which equates to a sentence of imprisonment for approximately one month with eligibility for parole, and so I have reduced the sentence by one month.

3. The sentencing judge imposed a sentence of 15 months' imprisonment and then considered whether or not the term should be suspended.  He said:

   I bear in mind that a term to be served should not be imposed unless a suspended term is not appropriate.  I have considered the circumstances of the offence, the matters personal to you, including your good character and lack of record and the fact that you have spent close to a fortnight in prison.

   I have the understanding, notwithstanding all the matters to your credit, that a suspended term is not appropriate and I would order that a term be served.

Grounds of appeal

Ground 1

1. The first ground contends that the sentencing judge erred in the exercise of his discretion in not suspending the sentence of imprisonment.  No error of law is raised, but reliance is placed on Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 and, in particular, to the passage in the judgment of Kirby J at 85 et seq where his Honour makes reference to the need to attribute 'double weight' to all factors relevant both to the offence and to the offender - whether aggravating or mitigating - which may influence the decision whether to suspend the term of imprisonment. As his Honour put it at 87, the Sentencing Act 1995 requires a 'two step approach' to facilitate a desirable flexibility in sentencing options, permitting in a particular case the exploration of alternatives to immediate custodial punishment.

2. Senior counsel for the appellant submitted that there were important mitigating factors in favour of the appellant.  These included his prior good record, the circumstances of the offence and the fact that he had served a short sentence of imprisonment.  In addition, he was categorised as having a low risk of reoffending.

3. It is accepted that the appellant had no prior record of convictions apart from a traffic related matter.  He did serve a short term of imprisonment following his conviction.  However, it cannot be said that the circumstances of the offence were such that they were of minimal significance.  It may be that the offence was at the lower end of the scale for an offence of its type, but any digital penetration of a female's vagina (whether complete penetration or not) is a serious offence.  In R v Clark [2000] WASCA 229 Wheeler J (with whom Kennedy and Pidgeon JJ agreed) said:

   A very significant feature of the majority of sexual assault offences is the element of fear caused to the victim.  Whether it is committed by a stranger or by a person known to the victim, the victim will almost inevitably have real fears about the degree of force to which the offender may resort in order to overcome resistance, or to further humiliate her, or to ensure her silence.  Many victims fear for their lives and nearly all fear further violence of some kind.  The experience is seen by the victim as a degrading one both at the time, and in recollection after the event, and this too is a significant feature of the offence.  The extent to which the circumstances are likely to give rise to such fears and to such feelings will be significant factors in determining the seriousness of the particular offence.  [12]

4. In C v The State of Western Australia [2006] WASCA 261, Wheeler JA pointed out that there is no hierarchy 'of sexual penetration'. Her Honour said:

   I would have great difficulty in accepting the proposition that there is any sort of 'hierarchy' of sexual penetration which is such that some forms of penetration, such as digital penetration, are in all circumstances to be considered less serious than others.  I have found it necessary to make these observations because it seems to me that the idea of such a hierarchy is reflected, either expressly or implicitly, in submissions in many sentencing appeals in these matters.  It is, in my view, important to stress that the seriousness of the offence will be determined by all of the circumstances of the case.  [35]

5. Whilst there will be cases where penile penetration is a much more serious offence than digital penetration, digital penetration as an offence should not be underrated in its seriousness.

6. The present case was, in my view, a serious case.  The appellant, who was approximately 60 years of age, brought to his home a young woman, almost 40 years younger than him (with her young child), whom he placed in a guest bedroom within the house.  Although his wife was home, she was asleep upstairs.  The appellant took advantage of the complainant's presence in the house and penetrated her vagina with his fingers.  Penetration was not complete, and appears to have been only at the entrance to the vagina.  Nevertheless, penetration it was, and the appellant was rightly convicted of the offence which constituted count 2 on the indictment.

7. In my opinion, the offence was serious enough to require a sentence of imprisonment to be served immediately and I can find no error in the trial judge's determination that a sentence of imprisonment to be so served was the only appropriate disposition.  I do not consider that a suspended term of imprisonment was open in the circumstances.

Ground 2

1. The second ground of appeal does not advance the appellant's case.  It contends that the sentencing judge failed to make adequate allowance for the minimal degree of penetration.  I have already referred to the fact that penetration was incomplete and involved only penetration of the outer aspect of the vagina.  The complainant described feeling the appellant's hand and a finger and his finger going up and down.  She said in relation to the outer lips of the vagina that he was 'actually touching inside that'.

2. The appellant said himself in his record of interview that 'I just touched it.  I didn't really penetrate'.  He then went further and said 'It wasn't forceful'.  Later, he said that what took place had taken place with the complainant's consent.

3. The sentencing judge was clearly aware of the fact that the assault involved only the penetration of the outer lips of the vagina.  Although he did not say that it was an offence at the lower end of the scale of seriousness, the sentence imposed reflects that fact.  The sentence of 15 months' imprisonment was, in all the circumstances, well within the range of sentences that could have been imposed for the offence in question.  In my opinion, there is no substance in the second ground.

4. I would dismiss the appeal against sentence.