CDL v The State of Western Australia
[2022] WASCA 145
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: CDL -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 145
CORAM: BUSS P
MAZZA JA
BEECH JA
HEARD: 29 NOVEMBER 2021
DELIVERED : 4 NOVEMBER 2022
FILE NO/S: CACR 101 of 2021
BETWEEN: CDL
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: DAVIS DCJ
File Number : IND 533 of 2018
Catchwords:
Criminal law - Application for leave to appeal against conviction - Appellant convicted of three counts of persistently engaging in sexual conduct with a child under 16 years, four counts of producing child exploitation material and one count of possessing child exploitation material - Whether there was a miscarriage of justice due to incompetence of counsel or express errors of the trial judge - Whether verdict was unreasonable or could not be supported by the evidence
Legislation:
Criminal Code (WA), s 218, s 220, s 321A
Criminal Procedure Act 2004 (WA), s 118(1)
Evidence Act 1906 (WA), s 31A
Result:
Extension of time refused
Leave to appeal on all grounds refused
Application in appeal dated 21 September 2021 dismissed
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | Not applicable |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
CDL v The State of Western Australia [2022] WASCA 18
Drago v The Queen (1992) 8 WAR 488
HTD v The State of Western Australia [2019] WASCA 39
Huggins v The State of Western Australia [2018] WASCA 61
JAW v The State of Western Australia [2013] WASCA 261
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
McMahon v The State of Western Australia [2010] WASCA 143
NTH v The State of Western Australia [2020] WASCA 22
Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614
R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308
SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
The State of Western Australia v Jackson [2019] WASCA 118; (2019) 55 WAR 285
TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124
Vella v The State of Western Australia [2006] WASCA 129
Wark v The State of Western Australia [2020] WASCA 19; (2020) 56 WAR 365
Wells v The State of Western Australia [2017] WASCA 27
Whitby v The State of Western Australia [2019] WASCA 11
Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 234
JUDGMENT OF THE COURT:
This is an application for leave to appeal against conviction. The appeal was filed almost two years out of time. The appellant's explanation for the delay is unsatisfactory. Whether an extension of time should be granted depends upon the merits of the appeal.
The charges
The appellant was charged on indictment in the District Court with three counts of persistently engaging in sexual conduct with a child under the age of 16 years, contrary to s 321A of the Criminal Code (WA) (the Code), with three different children, to whom we will refer as E (count 1), C (count 2) and B (count 3), five counts of producing child exploitation material, contrary to s 218 of the Code (counts 4 to 8) and one count of possession of child exploitation material, contrary to s 220 of the Code (count 9). Relevantly to this appeal, counts 1, 2, 4 and 5 were alleged to have been committed between 27 October 2011 and 16 April 2013, counts 3 and 6 were alleged to have been committed between 14 April 2013 and 14 April 2016. Count 8 was alleged to have been committed between 2 December 2012 and 13 December 2013. Count 9 was alleged to have been committed between 1 October 2011 and 14 April 2016.
Section 321A(4) of the Code provides that a person who persistently engages in sexual conduct with a child under the age of 16 is guilty of a crime. Section 321A(2) of the Code provides that a person persistently engages in sexual conduct with a child if that person does a sexual act in relation to the child on three or more occasions each of which is on a different day. A sexual act as defined in s 321A(1) of the Code is an act which would constitute a prescribed offence. Relevantly, the definition of a prescribed offence includes an offence of indecently dealing with a child under the age of 13 years contrary to s 320(4) of the Code. Section 321A(11) of the Code provides that if in a trial of a charge of an offence under subsection (4) there is evidence of sexual acts on four or more occasions the jury members need not all be satisfied that the same sexual acts occurred on the same occasions as long as the jury is satisfied that the accused person persistently engaged in sexual conduct in the period specified.
The term 'child exploitation material' for the purposes of an offence contrary to s 218 of the Code is defined in s 217A. Relevantly, child exploitation material means either child pornography or material that, in a way likely to offend a reasonable person, describes, depicts or represents a person, or part of a person, who is, or appears to be a child (a) in an offensive or demeaning context; or (b) being subject to abuse, cruelty or torture (whether or not in a sexual context).
'Child pornography' means material that, in a way likely to offend a reasonable person, describes, depicts or represents a person or part of a person who is, or appears to be a child (a) engaging in sexual activity; or (b) in a sexual context. The word 'child' is defined to mean a person under the age of 16 years and the word 'material' includes any object, picture, film, written or printed matter, data or other thing.
The trial
The appellant was tried before Davis DCJ and a jury. On the first scheduled day of the trial, 8 April 2019, the appellant pleaded guilty to count 9. The circumstances in which that plea was entered are set out below. On 9 April 2019 he pleaded not guilty to counts 1 to 8. On 16 April 2019, the jury found the appellant guilty of counts 1 to 6 and count 8. He was found not guilty of count 7.
On 2 August 2019, her Honour imposed a total effective sentence upon the appellant of 12 years 6 months' imprisonment with eligibility for parole backdated to commence on 14 April 2016. On 18 February 2022, this court dismissed the appellant's appeal against sentence: see CDL v The State of Western Australia.[1]
[1] CDL v The State of Western Australia [2022] WASCA 18.
The grounds of appeal
The appellant is self-represented. His appellant's case is, to say the least, unconventional. It does not comply with the requirements of r 32 of the Supreme Court (Court of Appeal) Rules 2005 (WA) (the Rules). It comprises four so-called grounds of appeal supported by 119 pages of written submissions. It is a considerable challenge to distil the appellant's contentions into a comprehensible legal framework. It appears that the appellant's principal complaint is that he suffered a miscarriage of justice by reason of the alleged incompetence of his lawyers. The appellant makes numerous other complaints. For the reasons that follow, there is no substance to any of the complaints made by the appellant.
Some aspects of the procedural history
In order to understand some of the criticisms made of the appellant's lawyer, it is necessary to say something about the procedural history in the District Court. Throughout the proceedings in the District Court, the appellant was represented by counsel. At trial his counsel was Mr Crispe, a very experienced criminal lawyer.
On 1 March 2019, prior to the identity of the trial judge being disclosed to the parties, the appellant brought an application for a judge alone trial pursuant to s 118(1) of the Criminal Procedure Act 2004 (WA) on the basis that the State's case comprised video recordings which, on the State's case, showed the offending the subject of counts 1 to 3. This material also comprised the child exploitation material the subject of counts 4 to 8. The appellant submitted, in essence, that the volume and content of the video recordings would place too great a mental and emotional burden on the jury and would engender antipathy and prejudice towards the appellant that could not be cured by direction.
Quail DCJ held, having viewed the videos, that while their content was confronting it was not so repugnant that a jury would be unable to approach the task of assessing it 'without undue prejudice' to the appellant.[2] His Honour observed that it was likely that the real issues at the trial would require the application of objective community standards and that a jury was better placed to decide these issues than a judge sitting alone. His Honour was not satisfied that it was in the interests of justice to order a trial by judge alone and dismissed the appellant's application.[3]
[2] ts 80.
[3] ts 83.
The trial commenced on Monday 8 April 2019.
A number of issues were raised with the trial judge, Davis DCJ, before the empanelment of the jury. In the presence of the appellant, Mr Crispe informed her Honour that he would be making some admissions of fact as to the identity of the victims and that the videos were, as he put it, 'filmed' by the appellant.[4] Mr Crispe also informed her Honour that he had instructions that the appellant would plead guilty to count 9 but only in respect of material found on his computer and not in respect of many thousands of images contained in an external hard drive device discovered by the police in the appellant's home.[5] Mr Crispe told her Honour that the plea of guilty to count 9 would be entered in the presence of the jury.[6] Mr Crispe conceded that the facts relating to count 9 were cross-admissible as propensity evidence in respect of the other counts in the indictment.[7]
[4] ts 91.
[5] ts 92.
[6] ts 92 - 93.
[7] ts 94.
The prosecutor told her Honour that the State's case on count 9 was that the appellant was in possession of approximately 26,000 images of child exploitation material contained in the computer and an external hard drive, but the majority of them were on the hard drive. The question of how many images the appellant possessed could not be agreed and became the subject of a trial of issues conducted by Davis DCJ on 8 April 2019.
The trial of issues began with the appellant being arraigned on count 9. Upon the charge being read to him the appellant answered 'I plead guilty to what was on my computer, your Honour'. Her Honour responded 'Yes, just say, "Guilty" or "Not guilty."'. The appellant replied 'Guilty, your Honour'. Her Honour then ordered a judgment of conviction.[8]
[8] ts 104.
The State called the investigating officer, Detective Senior Constable Robert John Miley. He testified that on 13 April 2016 police conducted a search of the appellant's home pursuant to a search warrant issued under the Criminal Investigation Act2006 (WA). Detective Miley said that the appellant, upon being told that the officers were looking for child exploitation material, said 'Yes, I have some of that. I would like to plead guilty'.[9] Detective Miley described how, from the hall door of the house, he was met with a row of computer screens which were sitting on an office desk and that there were computers and 'all sort of mass storage devices around that area'.[10]
[9] ts 108.
[10] ts 110.
Specifically with respect to count 9, Detective Miley said that the child exploitation material was found on the 'main hard drive of the computer' and also in 'some external hard drives that were either attached to the computer at the time or [were] sitting right beside the computer'. Detective Miley's attention was drawn to three of the hard drives designated as W1, W2 and W3, being item 41 in the police exhibit log. The external hard drive designated W3 contained 24,260 images which Detective Miley described as 'the bulk of the child exploitation material'.[11] The hard drive in the computer itself, which was seized from a computer disk, contained, on analysis, 369 images.[12] Detective Miley described how the appellant's computer desk was in the front lounge room and the hard drives were nearby.
[11] ts 115.
[12] ts 116.
In the course of Detective Miley's examination-in-chief there was a short adjournment.[13] When the trial of issues resumed Mr Crispe said:[14]
Perhaps I could rise and say, your Honour, in light of the evidence‑in‑chief of the current witness, we abandon the application, your Honour, and accept the evidence of the prosecution in relation to count 9.
[13] ts 133.
[14] ts 134.
Mr Crispe elaborated:[15]
Well, it appears in the light of the evidence, and I've looked at some other material and discussed it with the accused, and it's quite - I'm satisfied that the 24,000 whatever it is W3 is - and he accepts is - does contain child pornography matter and was in his possession.
[15] ts 134.
Davis DCJ suggested to the prosecutor and defence counsel that an agreed set of facts relating to count 9 should be prepared having regard to the State's intention to adduce those facts at trial as propensity evidence in respect of the other counts.[16]
[16] ts 136.
At this point, her Honour confirmed with the prosecutor that the propensity evidence was being led to establish that the appellant had a sexual interest in children. Defence counsel said that he did not wish to be heard on the matter.[17] Her Honour stated that she was:[18]
[F]irmly of the view that the evidence had significant probative value and the probative value of the evidence compared to the risk of an unfair trial is such that fair-minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial so that's section 31A [of the Evidence Act 1906 (WA)].
[17] ts 137.
[18] ts 137.
The proceedings were then adjourned to the following day, 9 April 2019.
On 9 April 2019, in the absence of the jury panel and before arraignment, defence counsel informed the trial judge that the appellant intended to proceed to trial in respect of counts 1 to 8. He also informed her Honour that the facts with respect to count 9 had been agreed.[19] Defence counsel also foreshadowed making admissions in the course of his opening address.[20]
[19] ts 144.
[20] ts 144.
Later on the morning of 9 April 2019, in the presence of the jury panel, the appellant was arraigned on counts 1 to 8 and pleaded not guilty.[21]
[21] ts 146 - 147.
The State's case
As opened,[22] the State's case was as follows.
[22] ts 162 - 173.
At the time of the commission of the offences the appellant was employed as a traffic warden at a primary school in a suburb of Perth.
In about 1993, the appellant married a woman in Thailand. Together, they had a son, K, who, at the time of the trial, was in his 20's. In 1999 the couple separated and later divorced. The appellant's ex‑wife remarried in 2002. In July 2005 she gave birth to triplets; E, C and Z. E and C are girls, Z is a boy. The appellant is not the father of these children. Eventually the appellant's ex-wife divorced her second husband. He moved overseas.
The appellant maintained contact with his ex-wife, K and the triplets. He would often look after the triplets both at their home and his.
In about 2013, while the appellant was employed as a traffic warden, he befriended a woman who had two female children, M and B. M was born in February 2001. B was born in April 2012. In the period between 2013 and 2016 the appellant babysat M and B.
Counts 1 and 2 involved E and C respectively. The State alleged that the appellant persistently engaged in sexual conduct with E and C between 2011 and 2013 when they were aged between 6 and 7 years. The sexual conduct consisted of indecent dealing with each of the complainants, mainly by touching them on the vagina and on the nipples. The appellant videoed the girls as the sexual conduct occurred. In doing so he positioned them in front of the camera, pulled aside their clothing and exposed their vaginas. In some instances, the appellant spread open their vaginas as he videoed them.
In respect of count 1 which involved E, there were 19 separate days where it was alleged the appellant engaged in sexual conduct towards her. The jury were shown a selection of the video recordings in support of count 1. In one such recording the appellant lifted E onto his lap while she was eating a banana. He spread her legs apart, moved her underwear to one side to expose her vagina and then placed the banana between her legs, telling her to refer to it as a 'doodle'. In another video, the appellant touched E on the vagina, spreading open her vagina with his fingers as she lay asleep on a bed. On occasions he would offer E money and ask her how much she would cost and how long he could have her for. On occasions, the appellant referred to the complainant's vagina as 'slits', 'holes' or 'cunts'.
As to count 2 which concerned C, the State's case was that over 20 separate days the appellant engaged in sexual conduct. The video recordings showed that the appellant, on numerous occasions, sat C on his lap, spread open her legs, moved her underwear to one side and touched her vagina. He also lifted up her top and touched, rubbed and squeezed her nipples. The video footage also showed how the appellant opened C's vagina with his fingers as she slept and exposed this part of her body to the camera. As with E, the appellant made obscene comments to C including referring to her vagina as her 'slit'. On one occasion the appellant said to C 'Everything with a slit and a little hole gets broken eventually'. On another occasion the appellant asked C how wide her legs would open and as he pulled her legs apart he rubbed her underwear in the area of her vagina and asked her 'Have we got any holes here?'.
Count 3 concerned B who was a toddler. The State alleged that on at least three separate days the appellant indecently dealt with her while babysitting the child at her home or in a car. The State alleged that the appellant indecently dealt with B by placing her on his lap and touching her vagina. If B was wearing some kind of covering, the appellant removed the covering and touched the baby on the vagina and her bottom. He also pulled up B's clothing and rubbed the baby's nipples. On one such occasion which occurred in his car, the appellant said 'Come on darling, give me a play with your little tits'. He then said 'How about your little cunt?' and then put his hand down the front of B's pants. All of this conduct was recorded by the appellant on video. On another occasion, the appellant spread B's legs apart and with his hands on either side of the complainant's vagina spread open her vagina and rubbed it with his finger.
The State's case in respect of counts 1 to 3 did not rely upon the oral testimony of C, E and B. The State's case relied upon the video footage which the prosecutor said spoke for itself.
The production of those recordings was the basis of counts 4 to 6, which were charges of producing child exploitation material.
Count 7 concerned video images taken of E and C's brother, Z. The appellant was ultimately acquitted of this charge. In light of this, it is unnecessary to say anything more about this count.
Count 8 concerned recordings made of B's older sister, M, when she was aged between 11 or 12 years. The child exploitation material, the subject of count 8, was constituted by video footage the appellant took of M's breasts as she bent forward, often zooming in on her breasts. The appellant did not touch M. In all, the appellant produced 14 video recordings of M including a video of her wearing her school uniform during which the appellant focused on her groin and underwear. The State's case relied on the recordings. M was not called as a witness.
At about 4.55 pm on 13 April 2016, police officers executed a search warrant at the appellant's home. Relevant parts of the search were video recorded by the police. During the search, police located the appellant's computer and a number of external hard drives. The appellant admitted that there was some child exploitation material on the hard drives. During the search, the appellant explained in respect of a video in which he could be seen pulling back a young girl's underwear that the girl had a small cut which had been there all her life due to an autoimmune deficiency which had turned into a black spot. He said 'That was the reason behind it. That's the full story behind it.' The appellant asserted that his behaviour was not inappropriate.
The appellant's case
In the course of Mr Crispe's opening address to the jury he, on behalf of the appellant, admitted, pursuant to s 32 of the Evidence Act:
1.that each of the named complainants in the indictment was a child under the age of 16 years;
2.in relation to counts 1 and 4, each of the 14 videos which the parties had agreed were to be played to the jury, contained images of E and that the videos were taken by the appellant;
3.in relation to counts 2 and 5, each of the 22 videos which the parties agreed were to be played to the jury, contained images of C and were taken by the appellant;
4.in relation to counts 3 and 6, each of the videos which the parties agreed were to be played to the jury, contained images of B and were taken by the appellant; and
5.in relation to count 8, each of the videos contained images of M and were taken by the appellant.
These admissions were reduced to writing and tendered as an exhibit.[23]
[23] ts 176, exhibit 1.
On behalf of the appellant, Mr Crispe said that he denied that the conduct he engaged in with the complainants was sexual having regard to the context in which it took place.[24]
[24] ts 175.
The factual issues in dispute at the trial
Immediately following counsel's opening addresses, her Honour identified the real issues for the jury to decide in respect of the counts in the indictment. She told the jury[25] that in counts 1 to 3 the issue was whether the conduct engaged in was sexual conduct and whether it was persistent, that is, whether it occurred on three or more occasions on three separate days. As to counts 4 to 8, the issue was whether the recordings made by the appellant contained child exploitation material.[26]
[25] ts 176 - 177.
[26] ts 177.
The evidence
Most of the evidence comprised the video recordings. Not all of the video recordings taken by the appellant were shown to the jury. It is evident from the trial record that the prosecutor and Mr Crispe worked cooperatively so that the jury was shown as much of the video recordings as was necessary for them to fairly decide the case. It may be inferred by the way in which the trial was conducted that both counsel were conscious of the potential adverse impact on the jury and the potential for prejudice to the appellant if all of the video recordings seized by the police were played to the jury. Further, as the State case relied on the video recordings, the number of witnesses who were required to give oral evidence was reduced to a minimum with some witness statements being read to the jury by consent.
One such witness was the mother of E, C and Z. Her statements which set out her relationship with the appellant and formally identified her triplets were read to the jury on 9 April 2019. In her first statement she said, amongst other things, 'I still maintain a good relationship with [the appellant], we are good friends. I have never noticed anything out of the ordinary or strange about his behaviour and I'm very shocked about what has happened'.
Another prosecution witness whose statement was read to the jury was the mother of M and B. She described how she met the appellant and that he helped her out in various ways.
The prosecutor also read to the jury the statement of Senior Constable Christopher Patrick Fitzsimons who, along with Detective Senior Constable Chamberlain and Detective Miley, executed the search warrant at the appellant's home in the afternoon of 13 April 2016. He stated that Detective Chamberlain explained to the appellant that police intended to search for child exploitation material and the appellant said, 'Yes, I have some of that. I wish to plead guilty'.
Detective Fitzsimons stated that upon entry to the house he saw a computer desk with a desktop computer on it with several screens. He conducted a preliminary analysis of the computer and found that it contained what he believed to be child exploitation material involving a young female child. He said that numerous other computer items were seized from the appellant's home. He later participated in the seizure of numerous devices from the appellant's home and then delivered them to the Technology Crime Squad (TCS) for examination, a process that took numerous weeks.
After Detective Fitzsimons' statement was read to the jury, again with Mr Crispe's consent, the prosecutor read to the jury the statement of agreed facts in respect of count 9, as follows:[27]
[27] ts 187 - 188.
At 4.55 pm on 13 April 2016, the police executed a search warrant at the home of the accused at … A number of computer devices belonging to the accused were seized and later inspected. In total, various computer devices contained 26,425 images and videos - videos and images -
- I should have read -
- of children, other than the children referred to in counts 4 to 8 on the indictment, which had been downloaded from the internet. These videos and images are classed as child exploitation material. The videos and images depict children aged from under one-year-old to approximately 10 years old.
Child exploitation material is categorised according to its level of seriousness by reference to the child exploitation material sentencing classification scheme and [it's] set out in this way.
Category 1 material depicts no sexual activity but includes nudity, surreptitious images focused on underwear, nakedness, sexually suggestive posting and explicit emphasis on genital areas and solo urination.
Category 2 shows solo masturbation of a child or non-penetrative sexual acts between children.
Category 3, non-penetrative sexual activity between children and adults, and includes mutual masturbation.
Category 4 refers to penetrative sexual activity between children and adults.
And category 5 refers to sadism, bestiality or humiliation or child abuse material.
The 26,425 videos and images found on the computer device as seized from the accused have been categorised as follows.
In category 1, there were 893 videos, 21,216 category 1 images.
In category 2, there were 109 videos and 204 images.
In category 3, there were 111 videos and 1,237 category 3 images.
In category 4, there were 731 videos and 1,418 category 4 images.
In category 5, there were 178 videos and 328 category 5 images.
Detective Miley gave oral evidence. His role in the search was as the exhibits officer.[28]
[28] ts 190.
Detective Miley described the layout of the appellant's home. He said that upon entering the front door there was an area which he described as a study and lounge room which also functioned as the appellant's bedroom (the front lounge room). Down the hallway was a storage room and to its left K's bedroom.
A short distance from the front door was a computer desk upon which were a number of computer devices. In total, police seized 44 devices from the front lounge room and the storage room. All of these devices were entered onto the exhibits log by Detective Miley and were later transported to the TCS where, over a period of six or seven weeks, they were examined.
As we have said, the search of the appellant's home was video recorded. An edited version of the footage was played to the jury and tendered in evidence.[29]
[29] ts 204, exhibit 9.
In the course of the search, the appellant:
(a)admitted that the computer equipment on the desk in the front lounge room belonged to him;[30]
(b)said that there might be child pornography on 'a couple of hard drives';[31]
(c)said that he knew that he had some child exploitation material on the computer on his desk, which he had downloaded from the internet;[32]
(d)said that this material comprised short videos of children engaged in sexual activity;[33]
(e)explained that he obtained the material over the internet via a peer‑to‑peer file sharing programme;[34] and
(f)said he had been downloading movies containing exploitation material for three years.[35]
[30] Search video ts 7.
[31] Search video ts 18.
[32] Search video ts 8.
[33] Search video ts 9 - 10.
[34] Search video ts 11.
[35] Search video ts 13.
Leaving aside count 7, the video recordings which were the basis for counts 1 to 6 and count 8 were contained in items 10 and 41 as recorded in the exhibits log by Detective Miley. Item 10 was a Seagate 1 terabyte external hard drive which was found in the front lounge room. Detective Miley could not recall where exactly in the room it was found.[36] The video material stored on this device was later designated by TCS as D1. Item 41 comprised three external hard drives found on the computer desk. Each of these external hard drives was examined by TCS and designated as W1, W2 and W3 respectively. While the bulk of the material which comprised counts 1 to 6 and count 8 was contained in D1, some of it was also contained in the hard drive designated as W2. The hard drive designated as W3 contained the child exploitation material which was the subject of count 9.[37]
[36] ts 205, 206.
[37] ts 210.
Each count on the indictment comprised a number of separate video recordings. Each video was identified by the complainant's first initial followed by a number. For example, for the complainant E, the separate recordings were designated E1, E2, E3 and so on. The exact date on which each video was recorded is not known. However, it appears from their content and the surrounding circumstances that many were recorded on different occasions although sometimes multiple videos were made of the same occasion. Each video recording in respect of each complainant was shown to the jury. All of the video recordings shown to the jury were ultimately tendered in the one exhibit, exhibit 16.[38] As an aid, the jury were provided with schedules which in the case of each complainant identified each video relevant to that complainant. The schedules provided other information including when the video footage was 'created' on the storage device. The schedules were marked at trial as MFI‑10 (complainant E), MFI‑11 (complainant C), MFI‑13 (complainant B) and MFI‑15 (complainant M).
[38] ts 265.
In the course of Detective Miley's evidence, the prosecutor made it clear that in respect of complainants E and C the State did not allege that the date on which the video footage was 'created' was the date on which it was actually recorded.[39]
[39] ts 239 - 240.
The schedules with respect to complainants B and M were in essentially the same format as the schedules in respect of complainants E and C. Detective Miley testified that the video footage in relation to complainants E and C was taken at two locations, one being E and C's home and the other being at the appellant's home. The videos taken of complainants B and M were taken at their family home and at a suburban beach.[40]
[40] ts 265 - 266.
Defence counsel chose not to cross-examine Detective Miley.[41] After Detective Miley was excused from further attendance at the trial the prosecutor closed the State's case.[42]
[41] ts 267.
[42] ts 267.
The appellant's evidence
The appellant elected to give evidence in his defence.[43] He was the only defence witness.
[43] ts 267.
The appellant said that along with their biological father, the triplets born to his ex-wife regarded him as their father.
The appellant claimed that, like his son, K, the triplets were born with an autoimmune condition called G6PD deficiency. The appellant said that in K this condition manifested itself when his son was aged between 4 and 10 years by an 'autoimmune sore on the top of his ear'.[44]
[44] ts 271.
The appellant said that the triplets came to him with any health problems they had. In particular, C came to him complaining that it hurt when she went to the toilet. She then showed him a sore on her labia which he said was infected.
With respect to E, the appellant said that E came to him with the 'same problem'.[45]
[45] ts 271.
Mr Crispe took the appellant to each of the video clips that the State relied on to prove counts 1 and 4 which were designated E1 to E14. Defence counsel described in brief terms what was shown in each clip and, in effect, asked the appellant to comment. It will be recalled that in general terms the video footage showed the appellant exposing the child's vagina to the camera, touching her chest and on occasions speaking to her in what may be thought to be sexualised language.
The appellant denied that any of the video footage involved him engaging in sexual behaviour towards E and where any of the footage also showed C, towards her. The appellant insisted that he exposed E's vagina to examine whether E had a sore on it consistent with G6PD deficiency. He did so because he noticed that she was pale and he wanted to find out if something was wrong with her.[46] When asked to comment about video footage of E in her school uniform with a banana between her legs,[47] the appellant said that E had pulled her pants aside and put a banana against her vagina and said 'Now I've got a doodle'. The appellant said that there was nothing sexual in what occurred. Later he agreed that he had placed the banana between her legs and said to her 'Yes, now you've got a doodle' or something similar. He also agreed that he touched the outside of her underwear around the time that he removed the banana.[48] When the appellant was referred to E5, a video which showed the appellant touching E's chest and pulling her underwear to one side, he once again denied that there was anything sexual in what he did. He said that he pulled E's underwear aside because 'I have to know if that infection is there or not'.[49]
[46] ts 280 - 281.
[47] Video E3.
[48] ts 281 - 282.
[49] ts 283 - 284.
In respect of video footage which showed the appellant touching E's chest, the appellant explained that this was non-sexual 'casual' contact. The appellant said, in substance, that as E had not developed breasts this was not sexual contact. On occasions in his evidence he referred to it as tickling E.[50]
[50] ts 287.
At one point in his evidence-in-chief in relation to the counts which concerned E the appellant explained that he was making a home video and that the camera was 'on all of the time'.[51]
[51] ts 293.
The following exchange occurred at the end of the appellant's examination-in-chief in respect of E:[52]
So in any of those E1 to 14 what do you say to the allegation that they were sexual - sexual contact?---Well, then if - if you want to call these sexual contact - if you're looking after a six-year-old child and you're looking after triplets, and if you have to rub, say, Vicks, on their chest, you could call it sexual. If you have to give them a bath you could call that sexual. If you have to treat a womb [sic] or something - a wound, you could call that sexual. None of it's sexual, all right. Someone can - a third party can come along and say "Hey, you know, that's sexual." But it's not sexual, you know. And parents who know this - - -
Did you touch the child, [E], for sexual gratification - - -?---These children - - -
- - - on any of the occasions that we just - - -?---These children have been touched for their health. To make sure they stay healthy. To make sure that when they go to the toilet it doesn't hurt, all right. To make sure all these things - to make sure they're clean. It's - to make sure - they're got G6PD deficiency - to make sure they don't get ill, they don't get sick, all right. They live at their mother's place. I spent a very short period of time with them. They live at their mother's place. Their mother works fulltime. She cannot afford them to get sick, right. And that's the reason why they come to me with their problems. They don't go to their mother because - I can't speak for their mother, right, but I'm - I can tell you that they come to me because they're not going to get yelled at if they're sick.
[52] ts 294
Defence counsel then proceeded to examine the appellant in respect of the allegations concerning C.[53]
[53] ts 299 - 302.
The appellant accepted that in some of the videos relating to C, he is seen touching C's vagina. The appellant said that on the first occasion this occurred, C came to him with a lesion on her vagina and asked him to look at it, which he did. He observed that C had been pulling off little scabs, and that her vagina was infected. He described the sore as 'an autoimmune lesion'. He said that he touched C's vaginal area to '[make] sure there [was] not an infection there'.[54]
[54] ts 300.
The appellant also accepted that he took videos of C's chest or nipple area. He said that most of the time he had a video camera strapped to his right hand, which 'was always on'.[55] He explained that he took about 34 hours of video footage, from which he would eventually produce a family video. He denied that he deliberately filmed C's chest area. The appellant said that he filmed C's vaginal area because the lesion was 'quite small' and his eyesight did not allow him to see the area in detail. The appellant testified that he used the video camera to enlarge the area so that he could see it properly.[56]
[55] ts 300.
[56] ts 301.
The appellant said that with respect to C, the video clips which were shown in the State's case were taken over two days. When asked about E, the appellant said that the video footage relevant to her was also taken over two days.[57]
[57] ts 302.
In examination-in-chief with respect to B,[58] the appellant said that the video footage relied upon by the prosecution was taken as part of a family video. He said that the footage was taken over two days at B's home and on another day at the beach.
[58] ts 302 - 305, 307.
With respect to the video footage taken at B's home, B's sister, M, and B's grandmother were present. The appellant said that the videos which formed the State's case did not properly show the context in which the footage was taken. The appellant explained that B had been eating potato chips and that parts of the chips had fallen onto her vaginal area and that what was shown in the footage was him 'brushing away the chips'.[59] The appellant said that he brushed away the chips and then handed B to M so that she could put a pull-up nappy on B in preparation for a trip to the shops. The appellant said:[60]
If I hadn't brushed the Pringles off and made sure there was no Pringles there, we would have walked to the shop which is about a kilometre away and I guarantee [B] would have been uncomfortable.
[59] ts 304.
[60] ts 304.
The appellant said that B was about 18 months old when the videos were taken at the house and just under 12 months old at the beach.[61] The appellant said that there was definitely nothing sexual about the footage he took of B.[62]
[61] ts 305.
[62] ts 307.
The appellant was cross-examined by the prosecutor. At times, the appellant prevaricated at length in his answers to questions put to him.[63]
[63] ts 324 - 327, 327 - 328, 330 - 331, 332 - 333 and 335 - 336.
The appellant's testimony under cross-examination included the following:
(a)He denied a sexual interest in the complainants and in children generally.[64]
(b)While he accepted that he possessed approximately 26,000 images or videos the subject of count 9 and that he had pleaded guilty to this offence, he denied that he was sexually obsessed with children.[65]
(c)While the appellant accepted that he was not the biological parent of any of the children the subject of the charges, he referred to himself as 'a stand-in father' for the triplets[66] and later in the cross-examination he said that he was 'one of their parents'.[67]
(d)The appellant maintained that any touching of the children or recording of them was not indecent.
(e)The appellant maintained that he videoed and touched the genital area of E and C only to check on their medical condition. He accepted that he did not mention to E and C's mother that they needed to go to the doctor because of their condition because in his opinion it was not so critical as to warrant a visit to the doctor.[68]
(f)While acknowledging that some of the video footage showed the camera zooming in on the genital and chest area of a child, the appellant explained that he was, in effect, unaware that he had done so because in order to turn the camera on it was necessary to put his finger on the zoom button.
(g)The appellant said that the video footage used by the State was only a small and selective portion of the video footage that he had taken of the children and what had been shown to the jury was 'the worst selection of that footage'.[69]
(h)The appellant maintained that his intent with respect to the video footage was to produce a family video for the complainants' families.[70] When asked by the prosecutor why he had kept the videos which showed the genital area of the children he replied 'Because - because I have not produced a video yet'.[71]
(i)In respect of E and C, although the lesions on their genital area warranted medical intervention, he agreed that he did not seek medical attention for them.[72]
[64] ts 308, 324.
[65] ts 309.
[66] ts 311.
[67] ts 331.
[68] ts 314.
[69] ts 318 - 319 and 323.
[70] ts 332.
[71] ts 332 - 333.
[72] ts 335 - 336.
Defence counsel did not re-examine the appellant.[73]
[73] ts 340.
The closing addresses
The prosecutor's closing address
In substance, the prosecutor in his closing address submitted to the jury that the video footage taken of E, C, B and M by the appellant spoke for itself as to the sexual nature of the conduct engaged in by the appellant and in respect of the counts alleging the production of child exploration material. The prosecutor submitted that on any reasonable viewing of this material the appellant was, contrary to his evidence, engaging in sexual conduct with E, C and B and in relation to all four complainants what was recorded plainly constituted child exploitation material.
In respect of each of counts 1, 2 and 3 the prosecutor posed two questions. First, did the behaviour recorded on the video footage involve sexual acts towards E, C and B? If so, did the video footage establish that the sexual acts against each child occurred on at least three separate days?
A significant portion of the prosecutor's closing address was taken up with the second question. The prosecutor took the jury through the schedules referred to in [55] of these reasons and in respect of each of E, C and B identified a particular video clip or clips as having been taken on a particular day. The prosecutor conceded that the State was unable to specify the exact dates on which the appellant recorded the video footage in respect of E and C. However, the State's case was that by examining the surrounding circumstances the jury could infer that the video footage was recorded on more than three different days. In relation to B, the State's case was that the file name revealed the date on which the video clip was taken by the appellant. Alternatively, it was obvious that some of the clips had been taken on separate days having regard to B's changes in her physical appearance.
As to E, the prosecutor identified nine separate days. Some of the clips show both E and C.
The prosecutor addressed the jury by reference to the schedules. The prosecutor's submissions in relation to the appellant's offending against E may be tabulated in this way:[74]
[74] Prosecutor's closing address ts 4 - 8.
| Day number | Video clip number according to the schedule | Summary of the contents of the video clip according to the schedule |
| 1 | E1 | E and C are shown. E is wearing a turquoise blue T‑shirt. She picks up the camera and runs away and the appellant says, 'The camera batteries aren't charged. It's not on'. The appellant then spreads E's legs and tells her, 'Everything with a little slit and a little hole gets broken some day'. He then pulls her underwear to the side and touches her vagina. The appellant then says, 'Would you say that's plump … see the hole's bigger now'. The appellant then pulls E onto his lap and exposes her vagina towards the camera while touching it. The appellant asks her, 'What do you want for Christmas?' to which E asks, 'Are you Santa?'. C is dressed in a green fairy skirt. At one point the appellant opens her legs towards the camera and says, 'What else is pink has a little slit and a hole?' while he points to her vagina and touches it on the outside of her underwear. C then drops a money box and the appellant says, 'You will get broken one day'. |
| 2 | E2, E4, E6 and E10 | E is wearing a blue T-shirt and is wrapped in a blue towel. She is asleep and can be heard snoring. The appellant pulls the towel down to expose her vagina. He does this twice. In E4, E6 and E10 the appellant can be seen touching E's vagina including by spreading the labia. |
| 3 | E3 | E is wearing a school uniform and eating a banana. The appellant says, 'Put the banana there as a doodle'. The appellant then spreads E's labia with his finger and asks, 'What do you call it?' The appellant asks E, 'How big is Graham's [a reference to E's father] doodle?'. The appellant also asks, 'How wide can you spread your legs?' and then touches the outside of her underwear and tells her he is removing the banana. |
| 4 | E5 | E is wearing a white T-shirt with pink trim. She is lying on the appellant's lap. He asks her, 'Do we need arms?', then, 'Do we need this?', exposing her vagina and spreading it open. The appellant then asks E, 'Do you need these?' while he squeezes her breast and records her nipple and breasts with the camera. The appellant then pulls E's underwear to the side and asks about 'these muscles' while he records her vagina. |
| 5 | E7 | This clip shows E and C in their school uniforms. The appellant tells E to come to him to play with some dice. E sits on the appellant's lap. The appellant rubs E's nipple on the outside of her shirt. E is eating a purple lolly. The appellant repeatedly opens E's legs towards the camera. He says to her, 'You are like a little blue tongue lizard eh'. The appellant then says, 'Has your body turned blue?' and exposes E's breast and records himself squeezing E's breast. |
| 6 | E8 | In this clip the appellant records both E and C. E is wearing a pink singlet and a dark pink skirt. E is rolling some dice. The appellant opens E's legs and rubs the outside of her underwear. He also pulls down E's singlet and squeezes her breast. The appellant then smacks and squeezes E's bottom on the outside of her underwear. C is wearing a grey and pink T-shirt and white skirt. The appellant says to C, 'If you get the right answer I'm going to tickle you'. He then spreads C's legs towards the camera and squeezes her right breast whilst apparently tickling her. The appellant then moves C towards the camera pulling her pants aside and spreading her labia saying, 'Oh look it's just about gone, there is a sore spot here' whilst touching her vagina. |
| 7 | E9 | This clip shows both C and E. C is dressed in a yellow Dora the Explorer T-shirt and pink shorts. The appellant lifts up her T-shirt and squeezes her breasts saying, 'I'm going to tickle you'. He then turns C onto her front so that she is lying across him and he asks her what numbers he is writing on her back. The appellant then spreads C's legs apart towards the camera and moves her underwear exposing her vagina to the camera. E is wearing a white and pastel matching shorts and T-shirt set. The appellant has E lie across him and draws numbers on her legs. While doing so he pulls her shorts aside exposing her vagina to the camera. The appellant then spreads E's labia and touches her vagina while asking her, 'How did you get so much money?'. At the time E has a little coin purse in her hand. |
| 8 | E11, E12 and E13 | In each of these clips E is wearing a pink and black spotted T-shirt and pink underpants with a blue trim. Among the things that are shown in this video footage are: (a) the appellant pulling her underwear down, spreading open E's vagina to the camera; (b) lifting E's shirt and squeezing her nipple while zooming the camera in on her breast region; (c) the appellant giving E a $5 note and then rubbing her vagina with his thumb and finger while E is reading numbers off the $5 note; and (d) at one point when the appellant has spread E's labia he says to her, 'How long can I have this for' while touching her vagina. He also says, 'You would be a ripe fruit'. |
| 9 | E14 | E is in her bedroom naked. The appellant takes footage of E's vagina. She is lying on her bed with her legs up. The appellant puts a band-aid on E's toe. He then follows E around the house telling her to put a thong or sandal on her foot instead of shoes. When E leaves the bedroom the appellant says to her 'little cunt' and 'little green fruit'. The appellant continues to film E in her underwear. At one point while she is in a seated position he focuses the camera on her genital area. |
The State alleged that the offending in respect of C occurred over 14 separate days as follows:[75]
[75] Prosecutor's closing address ts 8 - 14.
| Day number | Video clip number according to the schedule | Summary of the contents of the video clip according to the schedule |
| 1 | C1 | C is wearing a white T-shirt with a flower motif and white underwear. The appellant touches C on the outside of her underwear in the area of her vagina. He then spreads C's legs open towards the camera, pulls her underwear to the side so that her vagina is exposed directly to the camera. |
| 2 (Day 2 in relation to E | C2 | This video clip involves C and E. C is wearing a blue skirt and playing with toy dinosaurs. The appellant asks C to make the dinosaur fight on top of her underwear. The appellant touches C on the outside of her underwear. E then comes into view wearing a denim skirt. The appellant rubs E's bottom outside her underwear and says, 'Can I give you a smack'. The appellant then spreads E's legs. E gets up and the appellant responds, 'I'll get you roller skates if you come back here. Alright no Barbie roller skates'. |
| 3 | C4 | E is wearing a pink dress with white trim and pink shorts. She is drawing pictures with pens in the backyard. The appellant says to E, 'Come here I want to tickle you before I go … come and tell me what you want for Christmas. Shut your eyes … one tickle and you get what you want from Santa'. E does not go to the appellant. Instead, she climbs up a drainpipe and stands on a window ledge. The appellant says, 'Santa is off to see more children'. C is wearing a blue T‑shirt and blue shirt. She is seen to sit on the appellant's lap. The appellant lifts up her top to expose her nipple and touches her breast. The appellant then says to C, 'Shut your eyes and make a wish' and then takes video footage of her pink underwear. As he does so, C says, 'I want a new bicycle, a new bed and a new Christmas tree'. While stroking C's legs the appellant says, 'I want to turn you into chocolate'. |
| 4 | C5 | On this occasion C is wearing a black and pink top and blue underwear with pink trim. The appellant pulls C onto his lap. E is wearing a mermaid costume. The appellant says to her, 'Hop next to your sister quick'. The appellant then takes video footage up C's skirt. At the time she was not wearing underwear. The appellant then opens C's legs and while touching her genital area on the outside of her pants asks, '[C] what do you call this, what do you call your little slit?'. C answers, 'A monkey'. |
| 5 | C6 | C is wearing her school uniform and is sitting on the appellant's lap in the back garden. While holding her leg open so that her underwear can be seen the appellant asks C, 'How old are you … how long is your leg'. He then asks C, 'How big do you think you will grow?' after which the appellant says, 'I want to see that cunt'. The appellant then spreads C's legs and using both hands spreads her labia open in front of the camera. While her vagina is exposed he moves C closer towards the camera. |
| 6 | C8 | On this occasion C is in the shower. The appellant zooms the camera on C. C says, 'I can see you [the appellant]'. The appellant spreads C's legs open while she is in the shower. He then says, 'Hop out [C] and I'll dry you'. The appellant then proceeds to dry C's legs and while doing so exposes her vagina and moves her closer to the camera while holding her legs apart. |
| 7 | C9 and C10 | C is wearing a white and blue spotted dress with a pale blue cardigan and underwear with pink trim. Initially C is seated on the appellant's lap and hands her a red ball. The appellant pulls her underwear aside and touches her vagina in front of the camera. The appellant asks C, 'What did you want me to bring you today?' to which C replies, 'Barbie roller skates'. The appellant then lifts C back onto his lap and touches her underwear holding her legs apart. C then climbs onto a trampoline and the appellant records up her skirt. On the same day the appellant picks up C, walks towards the camera spreading her legs and pulling her underwear aside so as to expose her vagina. The appellant puts his finger inside C's underwear and then holds her upside down. The appellant pulls C's underwear down to expose her bare bottom and says, 'Shall I give her a smack?' as he rubs her bottom and smacks it with his hand directly in front of the camera. |
| 8 | C11 | C is wearing a school uniform and holding a toy. The appellant lifts up her top and exposes her breasts to the camera and asks, 'Did someone give that to you for Easter?'. The appellant then rubs C's nipple. A short time later he smacks her bottom in front of the camera. A short time later he asks C, 'Have you got a pussy?'. The appellant adds, 'It's a few more years before you get any hair … you are a bald and hairless little pussy'. The appellant seats C on his lap and spreads her legs open while recording between her legs. The appellant says to C, 'What would cost more this or you?' … Can I buy you for $2 … can I tickle you for 50 cents?' The appellant lifts C's shirt, squeezes her nipple and exposes her breast to the camera. |
| 9 | C12 and C16 | Both C and E are seen in these clips. Both are wearing school T-shirts. The appellant says, 'My finger won't fit in your hole as your hole is too little'. He then asks C, 'Has [E] got a little hole … you have both got little holes'. The appellant brings C closer to the camera and then pulls her shirt down to expose her breasts and a birthmark. The appellant touches her breast area with his hands in front of the camera and says, 'You don't want a big hole, a little hole is good'. Later the appellant proposes 'a deal' to C. C asks the appellant if he would buy her a Barbie doll. After lifting her T-shirt and touching her on the region of her breasts the appellant asks, 'Who wants a deal for a Barbie doll?'. The appellant continues, 'Take off your shirt and I'll give you a Barbie doll'. |
| 10 | C13, C14, C15 and E9 | In C13, C is wearing a yellow Dora the Explorer T-shirt and pink shorts. She is sitting on the appellant's knee. While on the appellant's lap he spreads C's legs and pulls her shorts open to expose her vagina which he touches with his finger twice. In C14, E, who is wearing matching white pants and top, is picked up by the appellant who opens her legs towards the camera to expose and record her vagina. The appellant then plays a game with E instructing her to catch balls that he throws at her between her legs. The appellant then requests that C come to him 'for a deal'. C comes and sits on the appellant's lap and he spreads her legs towards the camera exposing her vagina. The appellant moves the camera and then sits down with C on her knees so that the camera is recording between her legs. The appellant pretends to make coins disappear into a 'slot machine' [between C's legs]. He then exposes her vagina to the camera and touches C's genital area on the outside of her shorts. In C15 (which is the same recording as E9), the appellant lifts C's T-shirt and squeezes her breast saying, 'I am going to tickle you'. A short time later he spreads C's legs apart, moves her underwear and exposes her vagina to the camera. |
| 11 | C18 | C is lying on a blue mattress. While doing so, the appellant spreads her labia with his thumbs and touches her vagina. He asks C, 'Why didn't you wear black pants on Halloween?'. C puts on a pair of pink shorts and a top. She then goes into the bathroom. The appellant pulls the back of her shorts open and records her exposed buttock region. He asks C, 'What makes you look like a girl then?' and 'What part of your body … how do we know you are a girl now?'. |
| 12 | C19 and C20 | In C19 and C20, C is in the bath. The appellant focuses on both her vagina and breasts. While C is reciting her times tables the appellant tells her to put her feet over the edge of the bath and then records between her legs. He also holds C's legs open and then touches her breast asking, 'Is this getting smaller or bigger'. At another point, the appellant holds C's legs open while he is recording her vaginal area. The appellant says to C, 'Pretend you are shaving your legs' and asks her, 'Where else do you get hair when you are older?'. |
| 13 | C21 | C is wearing jeans and a flannel shirt. The appellant strokes C's legs on the outside of her jeans. He also pulls C's jeans down and in the process his fingers touch her pubic area. |
| 14 | C22 | On this occasion C is wearing a green top and a multi-coloured fairy skirt. Throughout the video C is crying and asking for her 'daddy'. The appellant says to C, 'Look here you have hurt your leg'. He then opens C's legs and rests his hand on top of her underwear. He then pulls the underwear open exposing her genitals to the camera. He says, 'Do they have a little pink Barbie pussycat?'. A short time later the appellant lifts C's legs showing her buttocks towards the camera. The appellant says, 'I'll buy you an Easter egg too. Come back here then'. C then sits on the appellant's lap and he moves her so that her vaginal area is directly facing the camera. The appellant then rubs her genital area on the outside of her underwear with his fingers and thumb. He also says to C, 'Spread your legs. I'm checking how long your legs are'. The appellant then moves the camera closer to the area between C's legs. |
The State alleged that the appellant indecently dealt with B on four days, being 12, 17, 18 and 19 December 2013 as follows:[76]
[76] Prosecutor's closing address ts 14 - 17.
| Day number | Video clip number according to the schedule | Summary of the contents of the video clip according to the schedule |
| 1 12 December 2013 | B1, B 2 and B3 | In each of B1, B2 and B3, B is wearing a pink swimming costume. In B1 the appellant holds B's left leg open to expose her vagina to the camera. In B2 the appellant touches B's vagina with his finger repeatedly while recording. In B3 the appellant asks M, 'Can you look up an address for me?' and while M is inside the house the appellant spreads B's legs and exposes her vagina with his finger. |
| 2 17 December 2013 | B4 and B5 | Again, B is wearing a pink swimming costume. M and B are playing in the pool. While B is sitting in the pool the appellant pulls her swimsuit strap to the side to expose her right breast. The appellant then pulls the crotch area of B's swimming costume to the side to expose and then record her vagina. His finger looks to brush B's vagina while moving the costume. In B5 the appellant pulls B's swimming costume to the side and records himself squeezing B's right breast. He then undresses B in front of the camera, spreads her legs and records her vagina. |
| 3 18 December 2013 | B6, B7, B8, B9 and B10 | In B6, which lasts for approximately 30 minutes, B is, once again, wearing a pink swimming costume. The appellant exposes B's vagina towards the camera and pretends to be dusting sand off. He repeatedly touches B's buttocks and genital area. The camera zooms in on B's vagina while the appellant is counting B's toes. Towards the end of the recording the appellant pulls B behind a toy kitchen out of M's line of sight. He then exposes B's vagina and rubs it up and down with his finger repeatedly. In B7, the appellant inserts his fingers inside B's bathing costume to pull apart and expose her vagina towards the camera. In B8, B is wearing a white T-shirt with a happy motif. She is not wearing any pants and is playing with a toy phone. The appellant lifts up B's T-shirt and records B's naked bottom and genital area. He also touches B's vagina. In B9, B is wearing the same T-shirt she wore in B8. The appellant pulls B's legs apart and exposes her vagina. He says, 'We are going to brush sand off you'. The appellant touches B's vagina with his fingers and spreads her legs apart again saying, 'We are getting sand off you'. There is no sand visible on B. In B10 the appellant records up B's T-shirt and focuses the camera on her genital region and bottom. B then gets into a blue car. The appellant picks B up and says that he is brushing sand off her feet. He then spreads B's legs towards the camera and moves closer in that direction holding B's legs apart. He then touches B's vagina with his hand with her legs spread. |
| 4 19 December 2013 | B11, B12, B13, B14, B15 and B16 | In B11 and B12, B is wearing a striped navy onesie and is eating out of a Pringles crisps container. In B11, B is sitting on the appellant's lap. After M leaves the room, the appellant spreads B's legs apart and moves her genital region towards the camera while rubbing her vagina region with his fingers. M returns to the room. After M leaves, the appellant continues to record between B's legs and rubs her exposed vagina with his fingers. In B12, still while B is sitting on his lap, the appellant spreads her legs and moves her closer to the camera so that her genital area is directly in front of it. He then rubs her vaginal region with his fingers, including on her pubic bone and spreads her labia. In B13, B14, B15 and B16, B is wearing navy pedal pushers and a white T-shirt. She is in the appellant's car. M is also in the car. In B13, the appellant asks M to leave the car. He then lifts B's T-shirt and squeezes her breast stating, 'Come on [B] give me a play with your little tits, come on give us a squeeze'. The appellant then puts his hand down B's pants and touches her genital region saying, 'What about your little cunt eh?'. When B cries the appellant says, 'Listen here, what you have got, nappy, have you got a nappy on?'. While touching her genital area he says to B, 'Come on, where is your cunt?'. In B14, the appellant mentions the words 'mobile mechanics' and asks M to get her computer. M leaves the car. B runs away to follow M. The appellant picks up B and moves her towards the camera. He then pulls her pants down and exposes her vagina directly in front of the camera. The appellant then puts B in a highchair and then lifts up her top and squeezes her breast. In B15, the appellant pulls B's pants down and touches her genital area while looking directly into the camera. After asking M to write down the number of a mobile mechanic he walks away holding B. He then comes back into view and pulls down B's pants to expose her genitals to the camera. He is also seen to touch B's vagina on the outside of her clothing and to squeeze her bottom. In B16, M is holding B. The appellant asks B to come over to him. He lifts her onto his lap. B gets down and M and B play together in the sand. When M goes inside the house, the appellant picks up B from the sandpit and squeezes and rubs her bottom in front of the camera on the outside of her pants. He then picks her up with his hand between her legs. |
The State prosecutor submitted that the facts relevant to count 9 were relevant to the jury's assessment of the appellant's denial of a sexual interest in children.
The prosecutor submitted to the jury that contrary to the appellant's evidence, he had a sexual interest in children and that the offences were motivated by that sexual interest.
Defence counsel's closing address
In respect of counts 1 to 3, defence counsel submitted in his closing address that there were two questions for the jury to consider. The first question was whether the conduct relied upon by the State was sexual conduct. Defence counsel said that this was a matter for the jury to decide. He made no substantive submission on this question. The second question, which defence counsel submitted was the 'critical' question, was whether the State had proved, in relation to each child, that the appellant had committed a sexual act on three or more separate days.
With respect to E and C, defence counsel emphasised that the State conceded that there was no record of the actual recording date on which the video clips were taken, and no expert evidence was led on this point. As to B, Mr Crispe submitted that there was no technical evidence to show when each of the recordings was actually made.
In substance, defence counsel submitted that, at its highest, the evidence showed that there were recordings made on different occasions, but not on three or more different days. Mr Crispe pointed out that the fact the recordings occurred at different locations or when the children were wearing different clothes did not necessarily mean they were made on different days. He submitted to the jury that young children will often change clothes on multiple occasions during a day, or be in different places. In respect of each of the complainants, Mr Crispe submitted, in effect, that the jury could not be satisfied that the sexual acts the subject of counts 1 to 3 did not occur on more than two days.
Defence counsel did not make submissions with respect to counts 4, 5, 6 and 8, other than to assert, in effect, that what was adduced did not constitute child exploitation material.
The summing up
The trial judge began her summing up to the jury on the afternoon of 15 April 2019. On the morning of 16 April 2019, in the absence of the jury, her Honour raised an issue with counsel.
Her Honour said that defence counsel had emphasised, particularly in respect of E and C, that there was no proof of a date on which the recordings the subject of the charges were actually made, and that there was nothing to show that the incidents happened on different days. Her Honour said that 'out of thoroughness' she looked at the video footage in exhibit 16 to see what distinguishing features, such as seasons or clothing that the appellant wore, might assist the jury in deciding this issue.
Her Honour said that upon putting the device which contained exhibit 16 into her computer, which had installed on it a software programme called GOM, the recordings revealed a time and date stamp which had not been displayed when the videos were shown to the jury using different software.
Her Honour discussed with counsel various options as to how this discovery may be dealt with. After conferral, both counsel agreed that the jury would be provided with essentially the same software that was used to play the videos during the trial, that is, without displaying the date and time stamps.
Upon resuming her summing up, her Honour identified the real issue with respect to counts 1 to 3 as whether the appellant persistently engaged in sexual conduct with the child the subject of the count. Her Honour directed the jury that a person engages in sexual conduct with a child if that person does a sexual act, relevantly an act of indecent dealing with a child under the age of 13 years, on three or more occasions, each of which is on a different day.
Her Honour instructed the jury that in order for the State to prove that the appellant committed an act of indecent dealing, it needed to prove beyond reasonable doubt that the appellant dealt with the child, and that the dealing was indecent. Her Honour instructed the jury that a dealing must be a willed or deliberate act, involving, for the purposes of the case, a physical touching of the child's body. She instructed the jury that for a dealing to be indecent, it must be something that was unbecoming or offensive to common propriety.
Her Honour summarised the appellant's evidence and, in particular, the appellant's testimony that E and C suffered from G6PD deficiency, and that the appellant examined their genital areas to ensure that they did not have a sore or lesion on their skin which derived from this autoimmune deficiency. Her Honour made it clear to the jury that the appellant's evidence was to the effect that what he did was not sexual and was done in the interests of their health.
Her Honour reminded the jury of the appellant's testimony with respect to B, that his behaviour towards her was not sexual. On one of the occasions alleged by the State to involve an indecent dealing, the appellant said he was brushing off crumbs, and on another, that he was attempting to ensure E did not wet the upholstery in his car.
Her Honour told the jury, in substance, that the appellant denied that he indecently dealt with the children the subject of counts 1 to 3.
As to the issue of whether the State had proved that the alleged indecent dealings in respect of a particular complainant occurred on three or more different days, her Honour told the jury that they were entitled to draw inferences from the surrounding circumstances, such as the weather and what the appellant was wearing at the time, to determine if the appellant indecently dealt with a child on three or more different days. Her Honour gave a standard direction to the jury as to the drawing of inferences, about which no complaint is made in this appeal.
As to the counts involving the alleged production of child exploitation material (counts 4 to 8), her Honour identified the real issue to be determined as whether the images were child exploitation material. Her Honour instructed the jury that the State's case was that what the appellant produced was child pornography because it depicted the child the subject of the material in a sexual context, and that the material depicted the child in an offensive or demeaning context, or being the subject of abuse.
Her Honour directed the jury concerning the use that could properly be made of child exploitation material the appellant admitted he possessed, which was the subject of count 9. Her Honour identified that use as being to show that the appellant had a sexual interest in children which was relevant to whether the appellant's conduct towards the complainants was sexual and to rebut 'the innocent explanations that [the appellant] has given in his evidence'.[77]
[77] ts 414.
Neither counsel took exception to any aspect of her Honour's summing up. Nor did counsel contend that any alternative verdict should be left to the jury.
The issues raised on this appeal
We have already referred to the difficulties posed by the appellant's grounds of appeal and written submissions.
There are four grounds of appeal. As pleaded, grounds 1 to 3 allege breaches of procedural fairness. Ground 1 alleges a breach of the 'hearing' rule; ground 2 alleges a breach of the 'bias' rule; and ground 3 alleges a breach of the 'no evidence' rule. Ground 4 alleges 'flagrant incompetence' by defence counsel, couched in a framework of civil causes of action in contract and tort.
The grounds of appeal do not capture the appellant's complaints and are misconceived. While grounds 1, 2 and 3 allege denials of procedural fairness, the written submissions do not specifically address how the rules specified in grounds 1 to 3 were breached. If, by these grounds, the appellant asserts that he was not informed of the case against him, nor given the opportunity to put his case, or there was actual or apprehended bias against him on the part of the trial judge and jury, or there was insufficient evidence to justify the convictions, there is no rational basis for these assertions.
By ground 2, in substance the appellant submits that his lawyer exhibited bias against him.[78] To state the obvious, the lawyer for an accused person in a criminal trial is not an administrative decision‑maker for the purposes of the requirements of procedural fairness, or for any other relevant purpose. Nor do those requirements attach on any other basis or for any other reason to the function of a lawyer in appearing for an accused.
[78] Appellant's submissions [715] - [723].
In support of ground 3, the appellant purports to invoke the principle that an administrative decision‑maker's decision must be based on logically probative evidence.[79] He then submits, at some length, that in communicating with and advising the appellant, his lawyer acted without logically probative evidence.[80] Again, these submissions are founded on the misconception that the appellant's lawyer is an administrative decision‑maker whose decisions are amenable to judicial review.
[79] Appellant's submissions [723].
[80] Appellant's submissions [724] - [737].
As to ground 4, the appellant's approach to defence counsel's alleged incompetence by recourse to civil causes of action is plainly inapt.
In his written submissions, the appellant makes many complaints about the investigation of the charges, his legal representation throughout the proceedings, the conduct of the DPP and 'errors' allegedly made by the trial judge. Subject to this court's power to admit additional evidence on appeal, this appeal must be decided on the evidence and material that was before the District Court. The appellant's written submissions are replete with statements of fact which go beyond the evidence and material before the District Court and have not been the subject of any application to admit additional evidence. Such statements cannot be taken into account by this court. Put another way, simply because the appellant asserts some matter of fact to be true in his written submissions does not make it so and is no evidence that it is so.
This court is, of course, mindful that the appellant is a litigant in person. Bearing that in mind, we have distilled the substance of the appellant's complaints from his grounds and submissions. On our reading of the grounds of appeal and the written submissions, the appellant's principal contention is that he suffered a miscarriage of justice due to the alleged incompetence of his lawyers in the proceedings leading up to and during his trial.
In addition, the appellant alleges a number of miscarriages of justice and/or errors by the trial judge as follows:
(a)the trial judge should have, but failed to, instruct the jury that a touching of a complainant for medical or hygienic reasons cannot amount to an indecent dealing;
(b)the trial judge should have, but failed, to give a direction in accordance with Jones v Dunkel[81] as a result of the State's decision not to call, as prosecution witnesses, the child complainants;
(c)the trial judge erred in failing to give a Zoneff[82] direction concerning an alleged lie told by the appellant in his evidence;
(d)the trial judge erred in admitting as propensity evidence the facts upon which count 9 was based;
(e)the trial judge erred in failing to leave any alternative verdicts for the jury's consideration; and
(f)there was a reversal of the onus of proof.
[81] Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.
[82] Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 234.
Further, the appellant asserts, or appears to assert, that:
(a)his conviction on count 9 based on his plea of guilty should be set aside;
(b)he has suffered a miscarriage of justice as a result of various improprieties committed by the investigating police officers and the prosecution; and
(c)the verdicts of guilty were, having regard to the evidence, unreasonable or cannot be supported.
The alleged incompetence of counsel
We will deal first with the appellant's complaints about defence counsel.
In his written submissions the appellant makes numerous criticisms of defence counsel. The appellant alleges that:
(a)defence counsel was 'biased' against him and believed that he was guilty, which prevented defence counsel from discharging his obligations effectively;[83]
[83] Appellant's case, pars 716 - 723.
(b)the incompetence of defence counsel led to bail being initially refused and later, when bail was granted, it was granted on conditions that were 'oppressive', as a result of which the appellant's ability to prepare his defence was impaired;[84]
[84] Appellant's case, pars 197 - 208.
(c)defence counsel acted incompetently in the application for a judge alone trial because:[85]
[85] Appellant's case, pars 209 - 234.
(i)counsel who appeared at the directions hearing (not Mr Crispe) accepted that the appellant would not be adducing expert evidence to the effect that E and C had G6PD deficiency;
(ii)against instructions, defence counsel accepted that there was no objection to any of the prosecution evidence;
(iii)defence counsel failed to take up the opportunity to select a representative sample of videos to show to Quail DCJ and, instead, accepted the sample chosen by the State;
(iv)defence counsel failed to submit that a judge alone trial should be ordered because of the adverse media attention the case had received and would likely receive in the course of the trial;
(d)defence counsel was medically unfit to represent the appellant at trial;[86]
(e)the search video was edited prior to trial, with defence counsel's knowledge but without defence counsel having received instructions from the appellant to edit the video;[87]
(f)in respect of the conduct of the trial, as the appellant put it in his written submissions:[88]
Contrary to [the appellant's] instructions no witnesses were called by Mr Crispe, Mr Crispe refused [the appellant's] request to cross‑examine the prosecutor's witness, no exhibits were tested (or their chain of evidence) to probe their integrity, evidence supporting [the appellant's] defence was not sought, undisclosed evidence withheld by the prosecution was not sought, and the evidence that was presented by the prosecution had totally lost its integrity, by way of editing into short video clips by police, which Mr Crispe ignored. Due to Mr Crispe's conduct and negligence an abuse of process occurred at all levels[;]
(g)defence counsel did not act to prevent the matters referred to at [113] above.
Legal principles
[86] Appellant's case, pars 724 - 728
[87] Appellant's case, pars 235 - 238.
[88] Appellant's case, par 626.
We adopt, without repetition, the comprehensive statement of legal principles concerning alleged incompetence of counsel made by this court in Huggins v The State of Western Australia.[89] It is sufficient for present purposes to make the following points.
[89] Huggins v The State of Western Australia [2018] WASCA 61 [375] ‑ [401].
First, the incompetence of counsel is not, of itself, a ground of appeal. Rather, the relevant ground is that there was a miscarriage of justice. Thus, the focus of the inquiry must be upon the consequences of the alleged incompetence and the extent to which it caused or contributed to a miscarriage of justice, rather than upon the cause or nature of the alleged incompetence. The question does not turn on the adjectival characterisation of competence, such as being 'flagrant'. The focus is upon what happened or did not happen, not on why any error occurred.
An appellant who seeks to demonstrate that the conduct of his or her counsel caused a miscarriage of justice undertakes a heavy burden which is not easily discharged. This is a consequence of the adversarial nature of a criminal trial and the role played by counsel. Ordinarily, an accused is bound by the way the trial is conducted by counsel, even if the trial was not conducted in accordance with their wishes. It is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions or involved errors of judgment or even negligence. It is not the province of appellate courts to review the wisdom or prudence of the conduct of a trial by trial counsel. For example, an apparently rational decision by trial counsel as to what evidence to call or not to call does not give rise to a miscarriage of justice simply because an appellate court thinks it worked to the probable disadvantage of the appellant.
The onerous burden an appellant alleging incompetence of counsel must overcome is illustrated by Nudd v The Queen,[90] where the court concluded that, notwithstanding that counsel's conduct of the trial was incompetent to a serious degree and that some of that conduct could not be rationally justified, there was no miscarriage of justice. In McMahon v The State of Western Australia,[91] McLure P (Buss JA & Mazza J relevantly agreeing) said as follows:[92]
In this context, miscarriage of justice has two aspects, process and outcome. If the conduct of counsel has deprived the accused of a fair trial according to law, that will give rise to a miscarriage of justice without regard to whether counsel's conduct might have affected the outcome: TKWJ [76] (McHugh J); Nudd v The Queen [2006] HCA 9 [3] ‑ [7] (Gleeson CJ). This corresponds with that limb of the proviso where there is a serious breach of the pre‑suppositions of a trial: Weiss v The Queen (2005) 224 CLR 300 [46]; Wilde v The Queen (1988) 164 CLR 365, 373. A complete failure to cross‑examine a complainant or a complete failure to address the jury may result in an unfair trial: TKWJ [76]. So too may wrong advice that an accused is not entitled to give evidence: Nudd [17].
In the majority of cases, irregular conduct of counsel will not deprive the appellant of a fair trial. In such circumstances, the ultimate question of whether a miscarriage of justice has occurred raises two issues. First, did counsel's conduct result in a material irregularity in the trial. Secondly, is there a significant possibility that the irregularity affected the outcome: TKWJ [79] (McHugh J); Ali v The Queen (2005) 79 ALJR 662 [18] (Hayne J).
The test of whether there is a material irregularity is objective: TKWJ [17], [27] ‑ [28], [107]. Ordinarily, it is difficult to establish a material irregularity when the alleged error of counsel concerned forensic choices upon which competent counsel could have differing views: TKWJ [81]. However, if the error of counsel plainly affected the result of the trial, there will be a miscarriage even though the error involved a forensic choice or judgment. Where the error involves the failure to adduce evidence, there are parallels with the test for the admission of new or fresh evidence: TKWJ [32] (Gaudron J).
[90] Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614.
[91] McMahon v The State of Western Australia [2010] WASCA 143.
[92] McMahon [25] - [27].
In the present case, the appellant's complaints fall within the second category outlined by McLure P, elaborated in the second paragraph of the passage set out above. Thus, the appellant must demonstrate that his counsel's conduct of the trial gave rise to a material irregularity and that there is a significant possibility that the irregularity affected the result of the trial.
In order to establish that a failure to call a witness caused or contributed to a miscarriage of justice, an appellant is ordinarily required to call the witness in question to give evidence in a form which would be admissible at trial so that the appeal court can be satisfied of what the witness would actually say under oath and assess the relevance and cogency of their evidence.
Was a Zoneff direction required?
Under cross‑examination, the prosecutor challenged the appellant about his claim that he was a 'father' or 'stand‑in father' to the triplets[99]. It is clear from this cross‑examination that the prosecutor was alleging, in substance, that these claims by the appellant were deliberately false.
[99] ts 310 ‑ 312.
The prosecutor, in his closing address, submitted that the appellant lied in his testimony by suggesting that when he 'indecently dealt' with the complainants 'he was simply acting as a concerned parent'[100].
[100] Prosecutor's closing address ts 20.
At the conclusion of counsel's closing addresses, in the absence of the jury, her Honour raised the question of whether she should give a Zoneff direction. Her Honour said that she would give such a direction if defence counsel wished her to do so, but she did not think that it was necessary because:[101]
it's really detracting from the issues that the jury will have to determine. Because even if they don't accept what he says about anything, they still have to assess the material and they still have to assess whether there are three sexual acts on three different days.
[101] ts 379 ‑ 380.
Defence counsel agreed with what her Honour said.
Her Honour did not give the jury a Zoneff direction. The appellant asserts that the trial judge was obliged to do so.
In cases where the prosecution alleges that an accused has told a lie, but does not allege that the lie was told out of a consciousness of guilt, it may require that a direction be given to the jury not to reason in this way. In Zoneff v The Queen the majority (Gleeson CJ, Gaudron, Gummow, & Callinan JJ) said that a direction that might have appropriately been given, on the facts of that case, was:
You have heard a lot of questions, which attribute lies to the accused. You will make up your own mind about whether he was telling lies and if he was, whether he was doing so deliberately. It is for you to decide what significance those suggested lies have in relation to the issues in the case but I give you this warning: do not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something, that is evidence of guilt.
The majority said that a direction in these terms may be adaptable to other cases in which there is a risk of a misunderstanding about the significance of possible lies where the prosecution does not suggest that the accused told the lies because of a fear that the truth would implicate him or her in the commission of the offence.[102]
[102] Zoneff v The Queen [23] - [24].
There is no authority to the effect that a Zoneff direction must be given in every case where it is alleged that an accused has told lies where such lies could only go to the question of the accused's credibility and were not told out of a consciousness of guilt. In principle, there can be no such hard and fast rule. Whether a Zoneff direction is required in any given case, depends upon whether it is necessary to avoid any perceptible risk that the alleged lies will be used by the jury to impermissibly reason that they were told out of a consciousness of guilt.
In the present case, the prosecutor did not suggest that the lie allegedly told by the appellant was told out of a consciousness of guilt. It is clear from the context in which the relevant submission was made by the prosecutor that it was relevant only to the appellant's credibility. This was not a case where the alleged lie was given any real prominence. As her Honour said in her brief discussion with counsel about the alleged lie, the case turned on the jury's assessment of the video footage. In these circumstances, there was no apparent risk of the jury engaging in impermissible reasoning concerning the alleged lie. Her Honour was not required to give a Zoneff direction.
Did her Honour err in admitting propensity evidence?
As described earlier in these reasons at [21], her Honour ruled that the facts upon which count 9 was based were admissible as propensity evidence pursuant to s 31A of the Evidence Act in the proof of counts 1 to 8 on the basis that they showed that the appellant had a sexual interest in children.
The appellant submits that the child exploitation material the subject of count 9 was inadmissible as propensity evidence because there was 'no nexus' between count 9 and the remaining counts on the indictment and that any probative value the evidence had was outweighed by its potential to unfairly prejudice him. The appellant submitted that the probative value of the evidence was limited because there was no evidence adduced by the prosecution at his trial that possessing child exploitation material 'was a good independent predictor of indecent dealings'.[103] The appellant also submitted that the propensity evidence was inadmissible because the appellant's character had not been put in issue.[104]
[103] Appellant's case, pars 642 - 647.
[104] Appellant's case, par 367.
It can be said immediately that the trial judge did not err in admitting the evidence as propensity reasoning. That is because counsel for the appellant conceded the admissibility of the evidence - see [13] and [21] above.[105] The appellant must establish a miscarriage of justice. No miscarriage of justice arose from the admission of the evidence because, for the reasons below, the evidence was admissible under s 31A of the Evidence Act.
[105] NTH v The State of Western Australia [2020] WASCA 22 [107].
Section 31A of the Evidence Act states:
31A.Propensity and relationship evidence
(1)In this section -
propensity evidence means -
(a)similar fact evidence or other evidence of the conduct of the accused person; or
(b)evidence of the character or reputation of the accused person or of a tendency that the accused person has or had;
relationship evidence means evidence of the attitude or conduct of the accused person towards another person, or a class of persons, over a period of time.
(2)Propensity evidence or relationship evidence is admissible in proceedings for an offence if the court considers -
(a)that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and
(b)that the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
(3)In considering the probative value of evidence for the purposes of subsection (2) it is not open to the court to have regard to the possibility that the evidence may be the result of collusion, concoction or suggestion.
The general principles relating to whether propensity evidence has significant probative value were recently summarised by this court in The State of Western Australia v Jackson.[106] We adopt, without repeating, that summary. We immediately note that it is not necessary for an accused's good character to be put in issue before propensity evidence can be admitted.
[106] The State of Western Australia v Jackson [2019] WASCA 118; (2019) 55 WAR 285 [18] ‑ [23], [52] ‑ [53].
The mere fact of a sexual interest in persons of the same class as the complainant is not usually, without a common linking feature, of significant probative value in determining whether the appellant acted on that sexual interest. However, as illustrated by The State of Western Australia v Jackson, where the relevant act is proved independently to have actually occurred, a sexual interest in persons of the same class as the complainant may be of significant probative value in determining whether the act which actually occurred was deliberate or sexually motivated. However, such evidence would not ordinarily have significant probative value in determining whether the alleged act actually occurred.
In the present case, the acts the subject of the charges were recorded and the fact that the appellant committed them was not in issue. However, whether the acts were of a sexual nature and therefore indecent was in issue. The appellant testified to the effect that he did not have a sexual interest in children and that the acts recorded on the video recordings were not sexual in nature.
A sexual interest in children is a tendency within the meaning of s 31A(1) of the Evidence Act and can be properly characterised as propensity evidence. The child exploitation material the subject of count 9 tended to show that the appellant had a sexual interest in children of the same ages as the complainants and was relevant and highly probative as to whether the charged conduct was of a sexual character and therefore indecent. It was also relevant to the appellant's credibility and to rebut his evidence that he did not have a sexual interest in children. The evidence was such as would rationally affect, to a very significant extent, the jury's assessment of the probability that the appellant's acts on the video were sexually motivated. It comfortably met the threshold of having significant probative value, so as to satisfy the requirement in s 31A(2)(a).
Having regard to the central importance of the evidence to establish whether the appellant's acts were sexually motivated, an issue crucial to the issue of indecency, and whether the appellant recorded child exploitation material, and bearing in mind directions that could be, and were, given to the jury as to how the evidence could and could not be used, the probative value of the evidence compared to the degree of risk of an unfair trial was such that fair‑minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
There is no merit in the contention that the evidence the subject of count 9 was inadmissible in relation to the proof of the remaining counts on the indictment.
Was there a reversal of the onus of proof?
The appellant's submissions in support of his contention that there was a reversal of the onus of proof begin with his observation[107] that he gave evidence at his trial to the effect that the triplets had the genetic condition G6PD deficiency 'and an autoimmune skin problem which periodically became infected'. The appellant characterised this evidence as 'his alibi'.[108] He submitted, in effect, that, as the burden of proof was on the State, he was not obliged to support his 'alibi' by reference to 'independent evidence', but somehow at his trial he had been required to do so. The appellant submitted, in effect, that what occurred at his trial was analogous to the error identified in Buss P's reasons in Wark v The State of Western Australia,[109] where his Honour found that the trial judge (in reasons given in a judge alone trial) had erred in her approach to the consideration and determination of the weight to be given to the appellant's alleged alibi evidence by requiring that the alibi (given in a record of interview with police), having not been verified by sworn or affirmed evidence, be supported by 'independent evidence' or corroboration.
[107] Appellant's case, par 584.
[108] Appellant's case, par 586.
[109] Wark v The State of Western Australia [2020] WASCA 19; (2020) 56 WAR 365 [464].
There is no merit in this contention. The situation in the present case is completely different from that in Wark. The evidence the appellant gave that the triplets had G6PD deficiency was not an alibi and was not analogous to an alibi. Even if the children suffered from this condition, it was well open to the jury to find that the acts the appellant recorded were indecent and constituted child exploitation material. The mere fact that the children may have had the condition described by the appellant would not excuse or explain the conduct that can be observed and heard in the video recordings. Further, it was not suggested in the trial, much less in her Honour's summing up, that there was any onus on the appellant to adduce 'independent evidence' or corroborate that the children had G6PD deficiency. Her Honour correctly directed the jury that the State bears the onus of proof and that it was for the State to establish, beyond reasonable doubt, the elements of the offences, including whether the appellant engaged in sexual conduct or behaviour which was offensive or demeaning.
There is no merit to the contention that her Honour reversed the onus of proof as alleged.
The allegations of error and/or miscarriage of justice on the part of the trial judge have no reasonable prospect of success and are rejected.
Should the plea of guilty on count 9 be set aside?
We now turn to the complaints set out in [114] above.
It is not entirely clear why the appellant alleges that the conviction based on his plea of guilty to count 9 should be set aside. At one point in his written submissions,[110] the appellant alleges that at the time that he entered the plea the images and videos had not been classified into the categories which ultimately formed part of the statement of agreed facts which was tendered during the trial and which is set out at [48] of these reasons.
[110] Appellant's case, par 275.
It is no easy matter for an appellant to persuade a court to set aside a conviction based on a plea of guilty. In any such case the appellant must show that there has been a miscarriage of justice. Although the categories of miscarriage in this regard are not closed, there are three well recognised circumstances in which courts are prepared to set aside pleas of guilty, being cases in which the appellant did not understand the nature of the charge or intend to admit guilt, cases in which upon the admitted facts the appellant could not in law have been guilty of the offence and cases in which the guilty plea has been obtained by improper inducement, fraud or intimidation and the like.[111]
[111] See Vella v The State of Western Australia [2006] WASCA 129 [26].
There is nothing to suggest that the appellant comes within any of the three well recognised circumstances in which courts are prepared to set aside pleas of guilty. The circumstances in which the plea was entered show that the appellant entered the plea to count 9 unequivocally. There was, initially, a question as to the number of images and videos that the appellant possessed. A trial of the issues followed in which Detective Miley gave oral evidence. During Detective Miley's evidence-in-chief and after a short adjournment, defence counsel abandoned the trial of issues and accepted the State's contention that the child exploitation material was contained on both the appellant's computer and in the external hard drive designated W3. Mr Crispe told the judge that he had discussed the position with the appellant and that he accepted that the external hard drive designated W3 contained child pornography and was in his possession. On appeal, there is no evidence and no basis to contradict what counsel told the judge. The categorisation of the child exploitation material is not an element of the offence and is not a matter that bears upon the validity of the plea of guilty.
There is no basis upon which the conviction based on the plea of guilty to count 9 should be set aside.
Alleged improprieties committed by the investigating police officers and the prosecution
In the appellant's written submissions, he alleges that:
(a)During the search of his home on 13 April 2016, police officers 'tampered with' items found during the search. It is evident from the appellant's written submissions[112] that, by 'tampered with', the appellant means that items found in his home were placed on or near his computer desk.
(b)When he was told by police that they were searching for child exploitation material, he did not say he wished to plead guilty.[113]
(c)His arrest was unlawful, in essence, because there was no reasonable basis to suspect that he had committed an offence.
(d)The police failed to disclose three videoclips which were exculpatory of him.[114]
[112] Appellant's case, pars 1 - 49.
[113] Appellant's case, par 80.
[114] Appellant's case, pars 127 - 129.
The gravamen of the appellant's complaint about the prosecution is that the video‑recordings played at the trial were deliberately selective and were incomplete. He claims that there were numerous other recordings he took of the children which were innocent and would have shown the recordings the subject of the charges in their true (innocent) context.
There is no merit to any of the contentions made by the appellant.
With respect to the assertion that the police 'tampered with' items seized during the search on 13 April 2016, it should be noted that the appellant does not suggest that the police have somehow manufactured, manipulated or interfered with the computer files found on the devices. The complaint is that some of the devices were moved by police from locations in the appellant's house to the vicinity of the appellant's computer desk. Whether or not this is so, there was no dispute at trial, indeed, defence counsel admitted in the trial of the issues[115] that the hard drives and external hard drives found in the house were in the appellant's possession. Moreover, the appellant admitted in his evidence that all of the video‑recordings the subject of the charges were taken by him. It is impossible to see how, even if the police discovered the devices which contained the material the subject of the charges in a location in the appellant's house other than the vicinity of the appellant's computer desk, this has led to any miscarriage of justice.
[115] ts 134.
There is nothing to support the assertion made in the appellant's submissions that he did not say to police, when told that they intended to search for child exploitation material, 'I wish to plead guilty'. There was no challenge to this statement, which was referred to in the deposition of Detective Chamberlain that was read to the jury, and, of course, the admission is completely consistent with the plea of guilty that the appellant entered on count 9.
There is no merit in the allegation that the appellant's arrest on 16 April 2016 was unlawful. Contrary to the submissions of the appellant, based on the material found by police in the course of the search, by the time the appellant was arrested there was ample reason for the police to suspect, on reasonable grounds, that the appellant possessed child exploitation material.
As to the appellant's allegation that the police did not disclose three video‑recordings which he took which he asserts were exculpatory, nothing has been produced to this court to suggest that such video‑recordings exist. The three video‑recordings referred to by the appellant, said to show C picking dried scabs from an autoimmune lesion on her labia, C showing that a lesion had turned into a dark red spot, and the appellant being shown B's 'deformed left nipple' and being asked for his opinion, have not been shown to exist and have not been produced to this court. In any event, having regard to the description of their content, we are unable to see how the three videos could have materially assisted the appellant's defence.
Finally, we turn to the appellant's contention that the video‑recordings played to the jury in support of the charges gave a misleading impression of the appellant's relationship with the children. The video‑recordings that were played to the jury were a selection of the video‑recordings made by the appellant of the complainants. The appellant has not established by evidence that videos of the kind he says exist were not disclosed or have been withheld by the respondent. While it may be that there were video‑recordings taken of the complainants which did not show the appellant engaging in sexualised behaviour towards them and did not constitute child exploitation material, this does not detract from the nature of the content of the video-recordings that were played to the jury. The fact that the appellant may have taken completely innocent videos of the children on occasions does not mean the video‑recordings the subject of the charges do not show the appellant indecently dealing with the complainants or that by recording his actions he was not producing child exploitation material.
The appellant has not established that he has suffered any miscarriage of justice as a result of any lack of disclosure on the part of the prosecution.
Were the verdicts of guilty unreasonable?
In Wells v The State of Western Australia,[116] this court summarised the principles governing a ground of appeal that the verdict is unreasonable or cannot be supported by the evidence, by reference to the leading authorities, including M v The Queen;[117] SKA v The Queen[118] and R v Baden-Clay,[119] as follows:
(1)The appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence. It is not simply a matter of deciding whether as a matter of law there was evidence to support the verdict. The appeal court must determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand.
(2)The question for the appeal court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
(3)That question requires consideration of whether the jury must, as distinct from might, have entertained a reasonable doubt about the accused's guilt.
(4)In answering that question, the appeal court must pay full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the jury had of seeing and hearing the witnesses.
(5)A doubt experienced by an appellate court would be a doubt which a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt.
(6)If the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the appellate court must set aside the verdict.
(7)The setting aside of a jury's verdict on the ground that it is unreasonable within the meaning of s 30(3)(a) of the Criminal Appeals Act 2004 (WA) is a serious step, not to be taken without regard to the advantage enjoyed by the jury over a Court of Appeal which has not seen or heard the witnesses called at trial.
[116] Wells v The State of Western Australia [2017] WASCA 27 [13].
[117] M v The Queen [1994] HCA 63; (1994) 181 CLR 487.
[118] SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400.
[119] R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308.
In respect of counts 1 to 3, the appellant admitted that he was the person in each videoclip. Each clip showed him dealing, in the sense that he touched, the complainant who was, at the relevant time, a child under the age of 13 years.
The issues for the jury to determine were whether they were satisfied beyond reasonable doubt that the dealings were indecent and that, relevantly to each child, he indecently dealt with the child on three or more occasions, each of which was on a different day.
Having regard to the video footage which was described in respect of each complainant in the schedules, it was well open to the jury to find that the appellant's dealings with each complainant were indecent and that he indecently dealt with each child on three or more occasions.
It was well open to the jury having viewed the video footage to find, contrary to the appellant's sworn evidence, that the video footage did not show innocent or accidental touching of each child's chest or genital area as part of a home video. It was also well open to the jury to reject the appellant's contention that the appellant examined the genital areas of E and C to see if they had a sore which had been caused by G6PD deficiency.
The appellant was not the father of the complainants. While he was trusted to look after them, he was not their primary caregiver. If, as he states, he thought that any of the complainants suffered from G6PD deficiency, it was not for him to conduct a series of intimate examinations of the child. His duty was to inform the complainant's mother of his suspicion. If his purpose in dealing with E and C and recording his actions was to show that E and C had G6PD deficiency, it was unnecessary for him to take such a large number of recordings. In any event, the content of the video‑recordings (including in respect of B) belie any claim that they were taken for some innocent purpose. The appellant's conduct and the highly sexualised language he used are completely inconsistent with his claims that he was concerned about the children's health, comfort or wellbeing. The appellant's sexual interest in the children is clear from the videos and from the child exploitation material the subject of count 9, which was adduced as propensity evidence. Having regard to the evidence adduced by the State, it was well open, perhaps inevitable, that the jury would reject the appellant's explanations for what he did.
As to the number of days on which the video footage had been taken in respect of each of E, C and B, it was open to the jury to conclude that the footage had been taken on three or more occasions, each on a separate day. In the case of E and C, this is evident from the surrounding context and the changes in appearance of the children. It will also be recalled that in some of the videos there is reference to Christmas and Easter. With respect to B, there was evidence from Detective Miley to the effect that the dates on which the video footage was recorded were incorporated as part of the file name. Further, it was open to the jury to infer from all of the surrounding circumstances that the video footage was taken over multiple days (being at least three separate days) and not just on multiple occasions.
As to counts 4, 5, 6 and 8, it was well open to the jury to be satisfied beyond reasonable doubt, based on the appellant's own admissions, that he produced the video footage the subject of these counts and, having regard to their content, for the jury to be satisfied beyond reasonable doubt that it was child exploitation material in the form of child pornography.
In our opinion, having undertaken our own assessment of the whole of the evidence at trial, the trial record does not require a conclusion that the jury must necessarily have entertained a reasonable doubt about the appellant's guilt in respect of counts 1, 2, 3, 4, 5, 6 and 8 or any of them. For the reasons we have given, the State's case against the appellant was very strong. The verdicts of guilty were not unreasonable and were supported by the evidence, including inferences that the jury was entitled to draw about the number of days on which sexual acts occurred. On the evidence it was well open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty. After paying full regard to the consideration that the jury was the tribunal of fact entrusted with the primary responsibility of determining guilt or innocence and the advantage that the jury had in seeing and hearing the appellant give evidence, we do not have a reasonable doubt as to his guilt.
Application dated 21 September 2021
The appellant filed an application in an appeal dated 21 September 2021 seeking leave to appeal against conviction. A separate application for leave to appeal is not required by either the Rules or the Criminal Appeals Act. As the application is unnecessary it will be dismissed.
Conclusion and orders
This appeal against conviction is completely without merit. None of the grounds of appeal have any reasonable prospect of succeeding. In the circumstances there is no point in giving the appellant leave to appeal out of time.
The orders that we would make are as follows:
1.An extension of time is refused.
2.Leave to appeal on all grounds is refused.
3.The application in an appeal dated 21 September 2021 is dismissed.
4.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RK
Research Associate to the Honourable Justice Murphy and the Honourable Justice Mazza
4 NOVEMBER 2022
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