CGT v The State of Western Australia
[2021] WASCA 150
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: CGT -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 150
CORAM: MAZZA JA
MITCHELL JA
ARCHER J
HEARD: 11 AUGUST 2021
DELIVERED : 25 AUGUST 2021
FILE NO/S: CACR 234 of 2018
BETWEEN: CGT
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: SWEENEY DCJ
File Number : IND 810 of 2016
Catchwords:
Criminal law - Appeals - Practice and procedure - Application for leave to withdraw notice discontinuing appeal - Whether discontinuance notice was a nullity - Whether the court should exercise its discretion to permit withdrawal of the discontinuance notice
Criminal law - Child sexual offences - Whether guilty verdicts were arguably unreasonable or unsupported by the evidence - Whether absence of evidence at trial gave rise to a miscarriage of justice
Legislation:
Criminal Code (WA), s 320(2)
Result:
Application for leave to withdraw discontinuance notice dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | K C Cook |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Beamish v The Queen [2005] WASCA 62
Bridges v The Queen (1998) 20 WAR 59
Huggins v The State of Western Australia [2018] WASCA 61
Johnson v The Queen (1992) 57 A Crim R 290
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Ponnambalam v The State of Western Australia [2015] WASCA 185
R v Tabe [1983] 2 Qd R 60
Shah v The Queen [2019] WASCA 110
Smith v The State of Western Australia [2014] WASCA 90
The State of Western Australia v CGT [2018] WASCA 226
Wells v The State of Western Australia [2017] WASCA 27
YNT v The State of Western Australia [2020] WASCA 80
JUDGMENT OF THE COURT:
Summary
On 8 December 2017, the appellant was convicted of seven counts of sexually penetrating a child under the age of 13 years, contrary to s 320(2) of the Criminal Code (WA). The offences were all allegedly committed against the same complainant, who was the appellant's granddaughter. The offences were alleged to have been committed on unknown dates between 2 March 1993 and 29 September 1994, when the complainant was 6 or 7 years old.
On 16 March 2018, the appellant was sentenced to a total effective sentence of 6 years' imprisonment, backdated to 1 December 2017, with eligibility for parole. On 21 December 2018, this court allowed a State appeal against that sentence, which was increased to a total effective sentence of 8 years 9 months' imprisonment.[1]
[1] The State of Western Australia v CGT [2018] WASCA 226.
On 7 December 2018, the appellant, now unrepresented, filed an appeal notice seeking to appeal against his convictions. An amended appeal notice was filed on 19 December 2018. The appellant required, and sought, an extension of time in which to appeal. An appellant's case was eventually filed on 11 June 2019, together with an application to adduce additional evidence in the appeal.
On 2 August 2019, the appellant filed a discontinuance notice. A certificate of conclusion of the criminal appeal was issued on the same day.
By application in an appeal filed on 15 January 2021, the appellant seeks leave to withdraw the discontinuance notice. The appellant seeks to pursue a ground of appeal which, in effect, contends that the guilty verdicts are unreasonable or unsupported by the evidence.
For the following reasons, the appellant's application for leave to withdraw the discontinuance notice should be dismissed.
Withdrawal of discontinuance notices: general principles
It is established that this court may permit the withdrawal of a discontinuance notice that is a nullity or, where the notice is not a nullity, in the exercise of its discretionary power pursuant to s 40(1)(l) of the Criminal Appeals Act 2004 (WA) (CAA). In Shah v The Queen,[2] this court distilled the following principles from its earlier decision in Ponnambalamv The State of Western Australia:[3]
[2] Shah v The Queen [2019] WASCA 110 [22]. This distillation was also adopted by the court in YNT v The State of Western Australia [2020] WASCA 80 [31] - [34], from which the following summary is taken.
[3] Ponnambalamv The State of Western Australia [2015] WASCA 185 [17] - [32].
(1)An appeal is solely a creature of statute. Save for limited exceptions (which were inapplicable in Ponnambalam and to the present case), there is nothing in the text, context or purpose of the CAA which provides this court with power to re-open an appeal in which the merits were considered and determined and the order of the court, pursuant to that determination, has been perfected.
(2)The CAA provides for but one appeal (with leave) and an appellant is not entitled to commence multiple appeals from the same decision.
(3)Prior to the commencement of the CAA (and the [Supreme Court (Court of Appeal) Rules 2005 (WA) (Rules)]), under the former legislative regimes applicable to criminal appeals, where an appellant filed a notice of abandonment or a notice of discontinuance, an appeal was deemed or taken to be dismissed.
(4)Under the current legislative regime, r 59 of the Rules permits an appellant to discontinue an appeal by filing and serving a form 16 (a discontinuance notice). Rule 62 of the Rules provides that, when an appeal is concluded, the registrar must issue a certificate of conclusion (form 17) which is the formal record of the Court of Appeal and forms part of the record of the Supreme Court. The term 'concluded' is defined in the Rules to mean, in a Court of Appeal matter, 'decided, dismissed or discontinued'. In contrast to the previous legislative regime, there is no express provision in the CAA or the Rules which provides that the filing of a discontinuance notice is a deemed dismissal of the appeal.
(5)Under the previous legislative regimes, this court's predecessor, the Court of Criminal Appeal, in Bridges v The Queen, following the decision of the Court of Appeal of England and Wales in R v Medway, recognised that it had the power to grant leave to withdraw a notice of abandonment if satisfied that it was a nullity, but rejected the existence of a discretion to allow a notice of abandonment to be withdrawn.
(6)A notice of abandonment was a nullity if the abandonment was not as a result of a deliberate and informed decision by the appellant.
(7)It is, at least, implicit from the reasons in Ponnambalam that the nullity doctrine which existed under the previous legislative regimes remains under the CAA and the Rules.
(8)Further, in the absence of a provision in the CAA or the Rules to the effect that a discontinued appeal is taken to have been dismissed and where:
(a)the discontinuance notice is not a nullity;
(b)there has been no determination of the appeal on the merits; and
(c)the appeal has been concluded by the appellant filing the discontinuance notice and not by court order,
this court has the discretionary power to permit the withdrawal of the discontinuance notice in an appeal by reason of s 40(1)(l) of the CAA, which allows this court to exercise any power that the Supreme Court may exercise in a civil case. In Ponnambalam, the [c]ourt noted that the Supreme Court has the power to permit a plaintiff in a civil action, at first instance, to withdraw a notice of discontinuance, there having been no determination on the merits.
(9)The exercise of the discretionary power to permit an appellant to withdraw a discontinuance notice is informed by the strong public interest in the finality of litigation. The extent and reason for any delay between the discontinuance and the application to withdraw must be taken into account. Further, the merits of the appeal will always be relevant and often determinative. If there has been a significant delay after the discontinuance, the appellant must establish that a miscarriage of justice would occur if the applicant was not permitted to withdraw the discontinuance notice.
(citations omitted)
The court in Shah also referred to the following summary of Ipp J in Bridges v The Queen:[4]
To summarise, it is the essence of a null notice of abandonment that it was executed or served by an applicant who did not thereby intend to abandon the appeal, or did not understand the nature or effect of the notice, or misunderstood the nature or effect of the appeal itself. It is only then that the mind of the applicant can be said not to go with the act of abandonment, or that the service of the notice is not the applicant's true act.
[4] Bridges v The Queen (1998) 20 WAR 59, 66, cited in Shah [25].
In Shah, the court also noted:[5]
As is illustrated by the decision of the court in Johnson v The Queen[6] (one of the cases to which Ipp J referred[7]), an appellant may misunderstand the nature or effect of a discontinuance notice for these purposes when he or she signs and files it under the misapprehension that there was a right to reinstate the appeal later.
In Bridges, Ipp J went on to explain that a notice of abandonment filed on the basis of legal advice as to the prospects of the appeal is not a nullity, even if that advice is mistaken.[8]
[5] Shah [26] - [27].
[6] Johnson v The Queen (1992) 57 A Crim R 290, 292 - 293.
[7] Bridges (64 - 65); see also R v Tabe [1983] 2 Qd R 60 referred to in Bridges (65).
[8] Bridges (66 - 67).
The appellant in Shah filed a discontinuance notice in the belief that he could continue his appeal at a later date, once he had gathered together sufficient funds to instruct lawyers to act on his behalf. It did not appear that Mr Shah filed the discontinuance notice because he had been given legal advice or believed that his appeal against conviction was unlikely to succeed. He misapprehended the effect of the discontinuance notice in that he did not appreciate that, by filing the notice, his appeal against conviction was concluded and that he could not, by filing the notice, put a hold on his appeal or file the appeal notice again, when he had the money to afford legal representation. The court held that, by reason of that misunderstanding, the discontinuance notice was a nullity and did not have the legal effect of bringing the appeal to an end.[9]
[9] Shah [28] - [31].
Similarly, the appellant in YNT was given leave to withdraw discontinuance notices on the basis that they were nullities, in circumstances where he instructed his solicitors to file the discontinuance notices intending to progress the appeals on his own and without appreciating that filing the notices would prevent him from doing so.
Circumstances of filing discontinuance notice in this case
The appellant had previously attempted to file an appellant's case which was defective in various respects and which was not accepted for filing. In a directions hearing before Mazza JA on 7 May 2019, the appellant explained the difficulty he was having in acting for himself and his unsuccessful attempts at gaining legal aid. The matter was adjourned to a directions hearing on 19 June 2019 to allow the appellant to appeal against the refusal of legal aid.
On 5 June 2019, the matter again came before Mazza JA for directions. It appears from the transcript of that hearing that the court had contacted the Legal Aid Commission to attempt to obtain some assistance for the appellant in preparing an appellant's case, and that assistance had been provided. An order was made for the appellant to file a substituted appellant's case by 19 June 2019.
An appellant's case was filed on 11 June 2019. There were three grounds of appeal:
1. Additional evidence establishes that that [sic] a miscarriage of justice occurred.
2. Counsel for the appellant not calling witnesses at trial resulted in a miscarriage of justice.
3. The verdict of the jury was unreasonable and [sic] not supported by the evidence at trial.
The appellant's written submissions in support of these grounds were very brief. Omitting numbered paragraphs that have no text, they read:
GROUND 1. AND 2. ADDITIONAL EVIDENCE AND COUNSEL NOT CALLING RELEVANT WITNESSES
l. In the present case the appellant is applying for leave to adduce additional evidence in the appeal on the basis that the evidence supports that there was a miscarriage of justice.
2. The additional evidence establishes that I did not live at the address in Yokine and did not cross the Nullarbor with the complainant.
3. The failure of counsel to call relevant witnesses resulted in an unfair trial.
GROUND 3.UNREASONABLE VERDICT
5.The verdict of the jury was not supported by the evidence at trial.
The appellant also filed an application to adduce additional evidence in the appeal. The application was supported by an affidavit sworn by the appellant on 10 June 2019, which attached:
(1)a short handwritten letter of a Mr David Small, addressed 'to whom it may concern' and signed and dated 29 April 2019. It stated that the appellant and his wife took another named person's daughter, not the complainant, to Western Australia in 1992. The appellant's affidavit indicated that Mr Small was a family friend.
(2)A handwritten, and only partly decipherable, affidavit by a person with the surname 'Cane' stating that 'this is to confirm that [the appellant] has never lived at [an address in Yokine] at any time'. The appellant's affidavit indicated that Ms Cane was a person who took the appellant's daughter to work at the Yokine address.
(3)A largely indecipherable certificate of title which is said to show that the appellant was not the registered proprietor of the Yokine property.
On 18 July 2019, the matter was again called on for directions before Mazza JA. His Honour explained to the appellant that, if the appellant wanted to adduce additional evidence from Mr Small and Ms Cane, he needed to file separate affidavits of those witnesses. Mazza JA also indicated that, while it was a matter for the appellant, it seemed to his Honour that the affidavits would need to be far more detailed. He also indicated that usually in a case of this kind there would be an affidavit explaining why the witnesses' evidence was not led at trial, what measures were taken to find them or, if they were unavailable, why that was the case. The appellant indicated the difficulties he was having in preparing documents and his inability to access legal assistance. Mazza JA said that, having informed the appellant of the above matters, he was not going to make any orders in respect of the appeal at that hearing.
The discontinuance notice signed by the appellant was filed on 2 August 2019.
In his affidavit sworn on 27 January 2021 in support of his application to withdraw the discontinuance notice, the appellant deposes:
1.When I last attended Court on the 18 July 2019 I was unable to obtain any legal representation due to Legal Aid refusing to fund me for any lawyers.
2.As I was unable to get legal representation, I was under the impression I could not go further with any subsequent appeals without legal representation.
3.As I do not understand the process of the law and what is required to lodge an appeal against my conviction, I did not have the confidence or knowledge of the law to defend the charges I was convicted of.
In a subsequent affidavit sworn on 12 February 2021 pursuant to directions of the court, the appellant relevantly deposes as follows:
Why the appellant filed the discontinuation notice
I tended [sic] the discontinuation notice at the time due to being unable to obtain any legal representation to act for me in a court of law.
Any belief or understanding of the appellant, as at the time he filed the discontinuation notice, as to the effect of the discontinuation notice;
As I do not understand the process of the law and what is required to lodge an appeal against my conviction, I did not have the confidence or knowledge of the law to appeal the charges I was convicted of. I tendered the discontinuation notice at the time thinking all avenues to appeal were no longer available.
Whether the discontinuance notice was a nullity
The affidavits filed by the appellant do not establish that the discontinuance notice is a nullity. The appellant does not depose that he did not understand that the effect of filing the discontinuance notice was to bring his appeal against conviction to an end. Nor does his affidavit reveal that he misunderstood the nature of an appeal.
Rather, the appellant appears to have apprehended (not unreasonably) that he was not going to be able to progress his appeal to a successful conclusion without legal assistance, which he could not obtain.
The success of the application therefore depends on this court exercising its discretionary power to give leave to an appellant to withdraw a discontinuance notice which is not a nullity.
Prosecution case at trial
A significant consideration in the exercise of the court's discretion will be whether the appellant has an arguable ground of appeal against his convictions. We turn to address that question by first examining the prosecution case and supporting evidence led at trial.
Complainant's evidence
The complainant was born in March 1987 and was 30 years old when she gave her evidence on 5 December 2017. The appellant was her maternal grandfather. The complainant alleged that the appellant sexually abused her in 1993 and 1994, when she was 6 and 7 years old.[10]
[10] Trial ts 157 - 158.
In 1993 and 1994, the complainant was living in a house in Koondoola with her mother, her mother's boyfriend B, her older brother C, her younger brother J and her baby sister S.[11]
[11] Trial ts 158.
Prior to living in the Koondoola house, the complainant and her family travelled across the Nullarbor Plain from New South Wales to Western Australia when the complainant was 5 or 6 years old.[12] The complainant travelled with the appellant and the complainant's grandmother in the appellant's light blue car. The complainant's first recollection of the appellant sexually abusing her was one night on this trip when the complainant was sleeping between the appellant and her grandmother in the car. She woke up to feel the appellant's fingers inside her vagina. The appellant told her not to wake her grandmother and to be quiet.[13] This conduct was not the subject of any charge (as it was not clear whether it had occurred in Western Australia) but was relied on by the prosecution as placing the charged offending in context.[14]
[12] Trial ts 159.
[13] Trial ts 160 - 161.
[14] See the trial judge's direction at trial ts 399 - 400.
When the complainant's family moved to Western Australia, the appellant and his wife were living in a house facing a park in Yokine.[15] The complainant described two incidents of sexual abuse occurring in the Yokine house:
(1)The appellant was looking after the complainant and her older brother C. The appellant sent C over to the park and took the complainant into his bedroom. Once there, the appellant placed the complainant on his bed, took her underpants off and inserted his penis into her vagina while he was on top of her (count 1). Afterwards, the appellant told the complainant that she was a good girl, that it was their secret and that the complainant could have a Cherry Ripe because she had done good.[16]
(2)On another occasion when the complainant and C were staying the night at the Yokine house, the complainant was told to have a shower after they ate her grandmother's goulash for dinner. The appellant took the complainant to the bathroom, undressed her and placed her on the floor before the water was turned on. The complainant told the appellant that her back was cold and he put a towel underneath her. Her head was near the toilet bowl. The appellant put his penis in the complainant's vagina (count 2). After he was finished, the appellant told the complainant that it was their little secret and, because she had been so quiet, she was allowed to have two Cherry Ripes.[17]
[15] Trial ts 161 - 165.
[16] Trial ts 165 - 167.
[17] Trial ts 167 - 168.
The complainant described two occasions where the appellant drove his blue car into the Gnangara Pine Plantation when they went on a trip to pick strawberries nearby. On the first occasion, American Pie by Don McLean was playing on the radio. The appellant told the complainant to take her underpants off, turned her on an angle in the front passenger seat so that one of her legs was on him and put his fingers in her vagina (count 3). On the second occasion, the appellant picked the complainant up and placed her on the bonnet of the car, took her underpants off, undid his pants and put his penis in the complainant's vagina (count 4). After each occasion the appellant told the complainant that she was a good girl and they could go and pick strawberries (which they did).[18]
[18] Trial ts 169 - 170.
Another incident occurred at a shopping centre. The complainant had had a wart cut from the bottom of her foot. The complainant was staying with the appellant, who took her to the shops and asked if she wanted a 'special piggyback ride'. While they were walking around the shops, the complainant was on the appellant's back holding her hands around his neck. The complainant was wearing a long dress at this time, and the appellant was holding her up under her dress. The appellant had his hands behind his back holding around the complainant's vagina and bum. He pulled her underpants to one side and played with the outside of her vagina. The complainant said that it tickled at first but hurt when he put his fingers in her vagina (count 5).[19]
[19] Trial ts 170 - 171, 189.
On another occasion, the complainant went camping with her mother, B, her brothers, and the appellant. The appellant and her older brother C shared a green-blue tent with the appellant in the middle and one of the children on each side. The complainant was wearing a nightie and underpants. She woke up to find the appellant's fingers inside her vagina. The appellant took his fingers out, lay the complainant on her right side and put his penis into the complainant's vagina from behind (count 6). The appellant told the complainant that she had better be quiet and not wake up C or he would leave them in the bush.[20]
[20] Trial ts 171 - 172.
The last occasion on which the appellant sexually abused the complainant was shortly after a visit from 'Constable Care' to the complainant's school. Constable Care was 'teaching us about stranger danger and how your body is your body'. After this visit, the appellant and his wife were looking after the complainant, C, J and baby S at the Koondoola house. The complainant was told to go to bed. She went into her mother's bedroom and laid on her waterbed because she thought that the appellant might not do anything to her in there. The appellant came into the room to say goodnight. He lay on the bed next to the complainant and put his fingers into the complainant's vagina (count 7). He told the complainant that he loved her, that she was a good girl and it was their little secret.[21]
[21] Trial ts 173.
The complainant said that the appellant had sexually assaulted her many times, but that she could not remember the specific details of the other occasions.[22]
[22] Trial ts 175.
After the Constable Care visit, the complainant made a complaint to her teacher, who told the complainant to tell her mother about it when she got home that day. When the complainant got home, she told her mother and B that the appellant had been playing with her vagina and her teacher had told her to tell them what he was doing. Two or three days afterwards, the complainant sat at the kitchen table with her mother, B, her grandmother and the appellant. She was questioned by her mother and B, and told them that the appellant had been putting his fingers and penis in her vagina. She said that these were the words that she used as a young child.[23]
[23] Trial ts 175 - 176.
After this, the complainant was pulled out of class one day by two child protection workers and placed in foster care. She was taken to Princess Margaret Hospital where a medical examination of her vagina occurred.[24]
[24] Trial ts 176.
When the complainant was about 10 years old and had been in foster care for a couple of years, her case manager asked the complainant whether she wanted to have the appellant charged for what he had done to her. The complainant told her mother, at a supervised access visit, what the case worker had said about charging the appellant. The complainant's mother said that she would disown the complainant and never speak to her again if she had the appellant charged for what he did. The complainant was 'really upset' and crying. They went outside, and her mother handed the complainant a cigarette and told her to have it as it would calm her nerves.[25]
[25] Trial ts 177.
The complainant first reported the matter to police in January 2015, and made a formal statement on 2 February 2015.[26]
[26] Trial ts 176 - 177.
The complainant maintained the above account under cross‑examination.
When asked, the complainant said that she understood that her father had been murdered when she was 8 months old. She accepted that, in December 2014, she sent a message to the appellant accusing him of having something to do with her father's murder. She believed this to be the case based on what her mother had told her.[27]
[27] Trial ts 191 - 192, 202.
The complainant said that when she turned 18 years of age she inherited $109,227.36 from her deceased father. She said that she had spent a lot of the money at the casino, as well as buying a 'little bit' of methylamphetamine and 'a lot' of marijuana. The complainant stated that she had used drugs for around 5 - 6 years but stopped when she fell pregnant with her daughter. She had no convictions for drugs but did have a conviction for criminal damage when she 'keyed' her boyfriend's car during an argument.[28]
[28] Trial ts 192 - 194, 201.
The complainant accepted that she knew there was a fund from which she could claim compensation if the case was proven against the appellant, but stated she found out about the fund after she had made her complaint to the police. She denied making up the abuse to obtain compensation or because she thought that the appellant had something to do with her father's murder.[29]
Evidence of B
[29] Trial ts 195, 203.
B gave evidence that in 1992 he was living in New South Wales with the complainant's mother, the complainant, C and J. They decided to move to Western Australia and subsequently drove from New South Wales to Western Australia. B drove alone in his car, and the complainant's mother drove her car with C and J accompanying her. B stated that the appellant and his wife had left about a week earlier, with the complainant, in the appellant's 'very turquoisey, green-looking car' which was 'like a Datsun'. The family stayed with the appellant and his wife for about two weeks until they found a house of their own and moved into it. They remained in that house for about two years.[30] B and the complainant's mother had a daughter together, S, who was born in March 1994.[31]
[30] Trial ts 205 - 207.
[31] Trial ts 211.
B said that the appellant and his wife would often look after the children at both their own house and the family's house, and the appellant would pick up the children and take them to the park. He described the complainant telling him about the appellant engaging in sexual conduct with her. On one occasion B noticed that the complainant was wearing multiple pairs of underpants, which she said was to 'make it harder for poppy' and to 'stop poppy'. B informed the complainant's mother of his concerns, who laughed and called the complainant a 'little liar'. B raised his concerns with the complainant's mother three or four times over a couple of months.[32]
[32] Trial ts 207 - 209.
B gave an account of another occasion when the appellant was looking after the children at the house of B and the complainant's mother while they went shopping. When B and the complainant's mother returned to the house, C and J were locked out and were sitting on the outside step. The appellant opened the door and, in response to B asking why they were locked outside, said that the boys had being playing up. When they were standing with the complainant by the front door of the house, B asked the complainant what she and the appellant were doing inside. The complainant walked to a bedroom window and used her finger to write 'sex' in the dust. B told the complainant's mother that she should do something.[33]
Evidence of Janine Mendelow
[33] Trial ts 209 - 210.
In 1994, Janine Mendelow was a child protection worker at the Department of Community Development. On 9 September 1994, B made a complaint, by phone, to the Department regarding the complainant. On 20 September 1994, B made further contact, this time in person, with the Department. On 28 September 1994, Ms Mendelow conducted an interview with the complainant and took the complainant into care on the same day.[34]
Evidence of Jason Garratt
[34] Trial ts 228 - 230.
Detective First Class Constable Jason Garratt was assigned to arrest the appellant in Coffs Harbour, New South Wales. He made the arrest on 6 November 2015, and accompanied the appellant back to Western Australia.[35]
[35] Trial ts 231 - 232.
Detective Garratt also produced a vehicle registration certificate from the Western Australian Department of Transport. It showed that the appellant was registered as the owner of a blue 1972 Mitsubishi sedan which was acquired by him on 3 July 1992. The registration expired on 2 July 1997.[36]
Evidence of Glenn Burley
[36] Trial ts 232 - 234; exhibit D.
Detective First Class Constable Glenn Burley was the investigating officer in relation to this matter. He was allocated the file on 15 January 2015, after the original complaint was made to police on 8 January 2015.[37] He produced the complainant's birth certificate and the complainant's school admission card dated 27 July 1993 in which she was recorded as living at the Koondoola address.[38] He also produced photographs of the exteriors of the Koondoola house and the Yokine house which he had taken in the course of his investigation.[39]
[37] Trial ts 234 - 235.
[38] Trial ts 235 - 237.
[39] Trial ts 237 - 239.
Detective Burley gave evidence that the police database recorded the appellant as living at the Yokine address from 17 August 1992 until 8 August 1995.[40] Detective Burley accepted that the police records did not necessarily mean that the appellant was occupying the house at that time.[41]
Evidence of Dr Alice Johnson
[40] Trial ts 239 - 240.
[41] Trial ts 240, 242.
Dr Alice Johnson was a consultant paediatrician and head of the Child Protection Unit at Princess Margaret Hospital. She was experienced in dealing with children who had been brought to the unit for concerns relating to sexual abuse.[42] She had reviewed a report, notes and genital photographs relating to an examination of the complainant on 7 November 1994.[43]
[42] Trial ts 247 - 248.
[43] Trial ts 248 - 249.
Dr Johnson found that the genital examination of the complainant was normal.[44]
[44] Trial ts 252 - 253.
The following exchange then occurred between the prosecutor and Dr Johnson in the examination-in-chief:[45]
In your practice in which you consider children with allegations of sexual abuse, are there many findings that are diagnostic?---No, they're not and there's quite a bit of published evidence on this subject and essentially the vast majority of children, 85 to 95 per cent, with clear histories of sexual abuse, have normal or non-specific genitalia examinations.
Is there anything in the literature which tells you why that's the case?---So there's two reasons why that can be the case. Either that what happened didn't cause any injuries or that injuries did occur which have healed completely by the time the medical examination takes place.
How quickly does the genital area of a prepubertal child heal in the case where there has been trauma?---The genital tissues are rather like the inside of your mouth and it – and it heals fairly quickly. It depends on the type of injury. If it is a minor injury like a scratch or a minor tear that would generally heal within a matter of days. A bigger tear would take longer than that, perhaps weeks. And large tears would not heal completely and would heal with evidence of scaring [sic] but it's not something we see often.
In this case the allegations are that there were incidences of digital penetration of the vagina of the complainant and also incidences of penile penetration of the complainant's vagina. Can you give us an opinion based on your expertise about whether either of those types of penetration would have caused injury?---Well, again the – the published studies on this subject include many children who have reported digital or penile penetration and that the overwhelming outcome of those studies is that most children don't have any evidence of injuries when they've experienced those sort of events.
[45] Trial ts 253 - 254.
The prosecutor indicated to Dr Johnson that it was alleged that the latest time anything could have happened to the complainant was 28 September 1994. Dr Johnson was asked whether she would expect to see any injury at the time of the examination of the complainant on 7 November 1994. Dr Johnson responded:[46]
Well, as I said before it's possible that no injury was present at all. If there had been minor injuries that occurred in September I would expect them to have healed within the sort of four to five week time frame before examination. A more significant injury I would expect still to be present.
[46] Trial ts 254.
Dr Johnson was asked whether, if the last penetration was a digital penetration, that would have any bearing on the likelihood of finding injuries in that time frame. Dr Johnson responded:[47]
That doesn't really change – it's still possible to have minor or more significant injuries with digital penetration. Either is possible but if there were scratches, perhaps like fingernail scratches, I would expect them to have healed within four to five weeks.
[47] Trial ts 254.
Dr Johnson also accepted that there could be an injury present that was not seen, either in the photographs or at the time of the medical examination.[48]
[48] Trial ts 255.
Dr Johnson was cross-examined by the appellant's trial counsel as follows:[49]
The – the general – the general examination was – revealed that the genitalia was normal?---Yes.
And the – the fact that it's normal neither confirms nor refutes sexual abuse?---Yes, that's correct.
And you mentioned two – you mentioned two things, that there can be abuse and injuries caused and – and then there can be abuse and those injuries have healed and the – sorry, there can be abuse and there's no – no injuries caused, there can be abuse where injuries have been caused but healed - - - ?---Yes.
- - - and the third thing of course, is that there was no abuse?---Yes, based on - - -
It was just a normal genitalia, with simply no abuse and you've referred to studies with confirmed abuse which – which – and even – even then, seven out of 10 – well, 77 per cent appear normal?---Yes.
[49] Trial ts 255.
Defence case at trial
The appellant gave evidence at his trial and adduced the evidence of his daughter (the complainant's mother).
The appellant's evidence
The appellant gave evidence that he was born in June 1941 and was 76 years old when giving evidence on 6 December 2017. He was born in Germany and came to Australia in 1966. He moved with his wife from Coffs Harbour in New South Wales to Western Australia in 1991. They lived in Perth from 1991 until August or September 1993. While in Perth, he and his wife were living in a house in Girrawheen for about 18 months. They then lived in a flat in a suburb he could not recall for about 8 or 9 months. They went to Queensland in August or September 1993 and flew to Germany at the end of 1993, where they stayed until 1998. His wife died in 1999.[50]
[50] Trial ts 258 - 262.
The appellant said that the Nullarbor incident did not occur, and that he had not travelled with the complainant or her family when they came across the Nullarbor Plain in 1993. The appellant denied that he and his wife had slept in the same car as the complainant. When the family arrived in Western Australia they stayed with the appellant and his wife at their Girrawheen house for about 2 weeks, until they found their own accommodation.[51]
[51] Trial ts 263 - 264, 266 - 267.
The appellant's evidence was that he had never lived at the Yokine address and did not recognise photographs of the Yokine house. He never had a car registered in Western Australia. He had a blue Galant which he kept registered in New South Wales. He denied sexually penetrating the complainant with his penis on two occasions in the Yokine house.[52]
[52] Trial ts 265 - 266.
The appellant also denied the allegations about his sexual offending in the Gnangara Pine Plantation, saying that he had never been there and that a strawberry farm never existed there.[53]
[53] Trial ts 267 - 268.
The appellant denied the offending involving a 'special piggyback ride' at a shopping centre, saying that he did not know of any shopping centre he went to with the complainant.[54] He recalled a camping trip to the State forest with various family members but said that the kids slept in tents while he slept in his car. He denied the alleged offending that the complainant said occurred when the appellant was lying between her and C in their tent on that occasion.[55]
[54] Trial ts 268.
[55] Trial ts 268 - 270.
The appellant said that the last incident described by the complainant, that he had sexually abused her in her mother's waterbed, could not have happened because S was said to be there. He said that S was born in May 1994, after the appellant had left Western Australia.[56]
[56] Trial ts 271.
The appellant said that he first became aware of the allegations of sexual offending made against him in 2015.[57]
[57] Trial ts 271 - 272.
In cross‑examination, the appellant accepted that S was born in March 1994 but denied being in Western Australia when she was born in 1994.[58] He admitted driving with his wife to Western Australia in a blue car but denied stopping to sleep, saying that he could make the trip in 24 hours.[59] He denied ever having had a car registered in Western Australia. He said that he was not aware of taking the children to play in a park, denied having the complainant's family over to his house after they had found their own accommodation and denied looking after the children at the Koondoola house. He was not aware of any occasion on which he looked after the children while the complainant's mother and B were out.[60] He only visited the Koondoola house on one occasion, for a birthday party.[61]
[58] Trial ts 275.
[59] Trial ts 275 - 276.
[60] Trial ts 277 - 278.
[61] Trial ts 280.
The appellant denied being aware of the complainant alleging sexual abuse in 1994 and denied being present at a family meeting where the complainant said that he had been sexually abusing her.[62]
[62] Trial ts 280.
The prosecutor put questions to the appellant about court proceedings on 28 September 1993 in which he was involved. He said he could not recall the proceedings.[63] The prosecutor tendered an extract of a transcript of court proceedings on 5 October 1992 in which the appellant's counsel told the court that he had recently moved to the Yokine address.[64]
Evidence of the complainant's mother
[63] Trial ts 293 - 294, 313.
[64] Trial ts 333 - 336; exhibit J.
The complainant's mother gave evidence that her family, including the complainant but not including the appellant and his wife, drove from New South Wales to Western Australia in two vehicles. They stayed with the appellant and his wife at their house in Girrawheen for approximately two weeks before moving to the Koondoola house. She remained in Perth for about 9 years before returning to New South Wales.[65]
[65] Trial ts 339 - 342.
The complainant's mother said she did not see much of her parents following the first few weeks after her arrival in Western Australia. The only address which she recalled her parents staying at was in Girrawheen. The appellant and his wife left Western Australia in the end of 1993 to 1994, and did not return to Western Australia. Her parents never babysat the children.[66]
[66] Trial ts 344 - 345, 347.
For about 4 years the complainant's mother provided one-on-one care to an elderly lady, Beverley Clarke, who lived at the Yokine address. The complainant's mother would attend the address daily, and sometimes take her children to that address while she did that work. Mrs Clarke died two years prior to the appellant's trial.[67]
[67] Trial ts 347 - 349.
The complainant's father died in New South Wales in November 1987, when he was shot by a boarder in the presence of the complainant's mother.[68]
[68] Trial ts 339, 366, 372 - 373.
The complainant's mother said that the complainant was taken into State care when she was 5 or 6 years old,[69] but later said it would have been when she was about 7 years old.[70] The complainant's mother was not aware of anything unusual about the complainant, and was not aware of any allegation of sexual abuse at that time.[71]
[69] Trial ts 343 - 344.
[70] Trial ts 349, 355.
[71] Trial ts 350, 355 - 356, 358.
The appellant's mother maintained the above account in cross‑examination. She at one point said that she was not aware of any allegations of sexual abuse even after the complainant was taken into State care.[72]
[72] Trial ts 371 - 372. Cf trial ts 349, where the complainant's mother indicated that she knew, at least by the time of trial, that the complainant was taken into care 'cos of the allegations'.
The appellant's proposed ground of appeal
On 20 January 2021, Buss P made programming orders requiring the appellant to file an affidavit which, among other things, sets out in detail the ground or grounds of appeal on which the appellant would rely if this court were to make an order granting the appellant leave to withdraw the discontinuance notice. The appellant's affidavit, sworn on 12 February 2021, identifies the following ground:
The jury erred when deliberating their decision to acquit or convict, did not take into account the medical evidence provided at the trial by Dr. Alice Johnson which she stated in her professional opinion, the evidence of penile penetration was inconclusive and therefore the conviction of guilty was not beyond reasonable doubt.
This proposed ground may be taken to allege that the guilty verdicts, at least in relation to the counts alleging penile penetration, were unreasonable or unsupported by the evidence.
General principles
The principles governing a ground of appeal that the verdict is unreasonable or cannot be supported by the evidence, derived from M v The Queen,[73] are well known. They were summarised by this court in Wells v The State of Western Australia,[74] as follows:
[73] M v The Queen [1994] HCA 63; (1994) 181 CLR 487.
[74] Wells v The State of Western Australia [2017] WASCA 27 [13].
(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; [and]
(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. (citations omitted)
Merits of the proposed ground of appeal
The focus of the proposed ground and submissions in support of that ground on the evidence of Dr Johnson is misplaced. That evidence was not contended by either party at trial to be anything other than neutral.
In opening, the prosecutor made the following observations about the evidence of Dr Johnson:[75]
The effect of her evidence I anticipate will be that the findings are neutral; that is, that they neither confirm nor refute that the complainant was a victim of the alleged offences. And as Dr Johnson will explain, that is a common finding in cases of this type.
[75] Trial ts 150.
In closing submissions, the prosecutor observed:[76]
Ultimately Dr Johnson cannot tell from her observation of the photos and notes taken whether or not the incidents that the complainant describes happened to her.
It is tempting in this sort of case to want some sort of physical evidence or injury to support the complainant's evidence, to support her story. But the effect of Dr Johnson's evidence is that the kind of neutral findings that you have in this case are very common.
However, what you should remember is that you are in a superior position to Dr Johnson. All she has to go on is some photos and notes, but you have heard the complainant give evidence, and you've seen her give evidence. You have heard [B] give evidence[.]
[76] Closing ts 2 - 3.
In his closing submissions, the appellant's trial counsel made the following observations in submitting to the jury that there was no objective evidence supporting the complainant's account:[77]
Medical evidence; well, we know what the medical evidence is. There was a normal examination which neither confirmed sexual abuse, nor refuted sexual abuse. And basically you heard that the examination was normal, and so I can't derive anything from that. But that examination was made not at the time of the alleged offending. The examination was made, and that was the evidence. You remember Dr Johnson.
[77] Closing ts 16.
The trial judge made the following observations about the medical evidence in her Honour's direction to the jury:[78]
The State accepts the medical evidence is neutral. It neither confirms nor refutes [the complainant's] allegations. But the State says what is most interesting and informative about it is that studies show that, perhaps contrary to what you might have imagined, the vast majority of children who have been proven to have been sexually abused do not show signs of injury or signs that one can necessarily say indicate some past injury and that the genital region heals quickly. And that one of the studies said that 77 per cent of children with a proven sexual abuse history had no diagnostic sign of injury.
[78] Trial ts 409.
The prosecution case was not based on the medical evidence of the examination of the complainant in November 1994. Having regard to the terms in which the evidence was given, the absence of medical indicators of sexual penetration was not evidence that sexual penetration did not occur. While the medical evidence did not corroborate the complainant's account, it did not, on its own or in conjunction with other evidence adduced at trial, require the jury to have a reasonable doubt as to whether the charged sexual penetration occurred. The evidence simply was neutral, as the trial judge and both trial counsel correctly recognised.
Ultimately, the prosecution case depended on the jury accepting the complainant's uncorroborated evidence as sufficiently credible and reliable as to satisfy them, beyond reasonable doubt, that the appellant sexually penetrated the complainant in the manner alleged. As the trial judge put the question in the Longman direction which she gave:[79]
The State's case depends upon your accepting and acting upon [the complainant's] evidence alone in relation to each allegation. There's no other eyewitness who saw anything sexual occur.
You are entitled to act upon her evidence alone to convict the [appellant] if you are satisfied of the truth and accuracy of it, but it would be unsafe to convict the [appellant] in relation to the allegations she makes unless, having looked at her evidence carefully, having considered all the factors I've just mentioned and taken full account of this warning I am giving you, you are satisfied beyond a reasonable doubt both as to its truth and as to its accuracy.
[79] Trial ts 392.
Allowing for the delay in making a complaint to police, and the attendant forensic disadvantage that delay occasioned the appellant, it was open to the jury to be satisfied beyond reasonable doubt as to the truth and accuracy of the complainant's evidence.
The complainant's evidence as to the appellant's sexual penetration of her was consistent throughout the trial and was not contradicted by any evidence other than the oral evidence of the appellant and, to a limited extent, the complainant's mother. The evidence of B and the fact of the examination at Princess Margaret Hospital justified a finding that the complainant had complained about the sexual abuse when she was seven years old. The credibility of the complainant's evidence of sexual abuse was supported by the fact that, at that age, the complainant made allegations of sexual abuse by the appellant which led to her being placed in foster care and medically examined at Princess Margaret Hospital. The complaints made at that stage also negated the appellant's suggestion that the complainant had invented the allegations as revenge for what she believed to be the appellant's involvement in her father's murder, or in order to obtain criminal injuries compensation.
In oral submissions the appellant pointed to the discrepancy between the complainant's evidence, which implied that the appellant's vehicle and the complainant's mother's vehicle travelled across the Nullarbor in convoy, and B's evidence that the appellant travelled across about a week before the rest of the family.[80] However, that difference of recollection between different witnesses, in relation to a matter which was peripheral to an alleged offence that was not the subject of a charge, did not require the jury to have a reasonable doubt as to whether the appellant committed any of the charged acts.
[80] Appeal ts 28.
It was well open for the jury to positively reject the evidence of the appellant and the complainant's mother.
The jury could conclude, based on police records and the transcript of the proceedings from 1992 and 1993, that the appellant lived at the Yokine address in 1992 and 1993. They could reasonably conclude that the appellant could not be mistaken about living at that address, and that his evidence that he had never lived at the Yokine address must have been a lie. The jury could also conclude that the complainant's mother could not have mistaken her father's residence for an address where she worked as a carer for an elderly woman. The jury could therefore conclude that the complainant's mother was lying about the Yokine address in an attempt to exonerate the appellant. If they were satisfied that the appellant and the complainant's mother had lied about the Yokine address, then the jury could reasonably regard the whole of their evidence as unreliable and reject it on that basis.
Similarly, the jury could be satisfied that the appellant and the complainant's mother lied about being unaware of the complainant's allegations of the appellant's sexual abuse in 1994. Not only was that evidence inconsistent with the evidence of the complainant and B, it may be regarded as implausible that the appellant and the complainant's mother would be unaware of allegations of sexual abuse which the jury might infer were the reason for the complainant being placed in State care.
In our view it was open to the jury, considering the evidence as a whole, to:
(1)positively reject the evidence of the appellant and the complainant's mother;
(2)accept the account given by the complainant and B as truthful and reliable;
(3)be satisfied, beyond reasonable doubt, that the complainant was sexually penetrated by the appellant when she was 6 and 7 years old in the manner described in the complainant's evidence; and
(4)having reached that conclusion, be satisfied beyond reasonable doubt that each of the elements of the charged offences were established.
Having reviewed the transcript of the trial and the exhibits, we are not left with any reasonable doubt as to the appellant's guilt of the offences of which he has been convicted. In our view, it was well open for the jury to be satisfied, beyond reasonable doubt, that the appellant committed the offences of which he was convicted. In our view, the appellant's proposed ground of appeal is not reasonably arguable.
Merits of the original grounds of appeal
At the hearing of the application, the appellant indicated that he still sought to pursue the original grounds of appeal, which are set out at [14] above.[81]
[81] Appeal ts 29.
The appellant's original ground 3 contended that the verdict of the jury was unreasonable or not supported by the evidence at trial. The merits of that ground have been dealt with above.
The appellant's original grounds 1 and 2 in effect contended that a miscarriage of justice arose from the absence at trial of the additional evidence referred to at [16] above.
The unavailability of fresh evidence at trial gives rise to a miscarriage of justice if the appellate court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant if the evidence had been before it at trial.[82] For this purpose, 'fresh' evidence is evidence which either did not exist at the time of the trial or which could not then, with reasonable diligence, have been discovered. 'New' evidence is evidence which was available at the trial or which could, with reasonable diligence, then have been discovered.[83] There is generally no miscarriage of justice in the failure to call evidence at trial if that evidence was then available, or, with reasonable diligence, could have been available, unless the new evidence establishes that the accused should not have been convicted.[84]
[82] Smith v The State of Western Australia [2014] WASCA 90 [159].
[83] Smith [158].
[84] Beamish v The Queen [2005] WASCA 62 [9] - [13]; Smith [160].
The principles governing an appeal on the ground that counsel's conduct gave rise to a miscarriage of justice are also well-established, and were summarised in Huggins v The State of Western Australia.[85] As was noted in that discussion, where a miscarriage of justice is said to arise from counsel's failure to adduce evidence, there are parallels with the test for the admission of new evidence. It is necessary for the appellant to show that there was a material irregularity in the trial arising from counsel's conduct, and that there is a significant possibility that the irregularity affected the outcome.
[85] Huggins v The State of Western Australia [2018] WASCA 61 [375] - [383].
The material before this court does not disclose any arguable basis for contending that the absence at the appellant's trial of the evidence noted at [16] above gave rise to a miscarriage of justice. The statements of Mr Small and Ms Cane are so lacking in detail as to deprive them of any cogency. The basis of the two proposed witness statements is not disclosed, so that it is not possible to make any assessment of the reliability of the proposed evidence or even whether the proposed witnesses had personal knowledge of the circumstances they describe so as to make their proposed evidence admissible at trial.
It may also be noted that the proposed additional evidence relates to matters which were not central to the question of whether the evidence proved the charged offences beyond reasonable doubt. Mr Small's statement relates to the occasion of an alleged offence of sexual penetration which was not the subject of any charge on the indictment. Ms Cane's statement relates to the location at which some of the charged offences were said to have occurred. While the evidence indicating the appellant lived at the Yokine address was one of the reasons why the jury could conclude that both he and the complainant’s mother were lying, it was not the only reason. Further, the location was a particular rather than a critical element of the charges which the State had to prove beyond reasonable doubt.
In light of the evidence adduced at trial, the material before this court does not establish any significant possibility that the jury might have acquitted the appellant if the statements of Mr Small and Ms Cane had been in evidence at trial. Further, there is nothing to suggest that the appellant was not aware of what Mr Small or Ms Cane could say at the time of trial, or could not with reasonable diligence have discovered the evidence they could give. Nor is there any evidence indicating why those witnesses were not called at trial, and whether the appellant gave any instructions to his trial counsel about their existence. There is no basis for thinking that this evidence is to be characterised as fresh, rather than new, evidence. Plainly the additional evidence does not establish that the appellant should not have been convicted of the charged offences.
We also note that the appellant said, in oral submissions, that in 1992 he had lied to the court about living at the Yokine address.[86] That statement in oral submissions, which was not in evidence, was inconsistent with the appellant's evidence at trial that he could not recall the 1992 proceedings. If the appellant had said at trial that he had lied in previous court proceedings, it could not have enhanced the jury's assessment of the credibility of his evidence.
[86] Appeal ts 27 - 28, 36 - 37.
The certificate of title referred to at [16](3) above does not advance the appellant's case, even on the assumption that it shows that he was not the registered proprietor of the Yokine address. There was no evidence at trial suggesting that the appellant owned, rather than rented, the Yokine address.
For the above reasons, we do not consider that any of the appellant's original grounds of appeal had any reasonable prospect of succeeding.
Exercise of discretion
We see no basis for this court to exercise its discretion to give leave to the appellant to withdraw his discontinuance notice. It would be futile to do so as the appellant's original grounds of appeal, and proposed new ground of appeal, have no reasonable prospect of succeeding. In addition, there was a delay of nearly 18 months between the filing of the discontinuance notice and the filing of the application to withdraw the discontinuance notice, which has not been adequately explained. This is in a context where there was a delay in instituting and progressing the appeal. The public interest in the finality of litigation, particularly in cases of alleged child sexual abuse where the uncertainty of ongoing litigation is apt to have an adverse effect on victims, counts against the granting of leave to withdraw the notice of discontinuance. In our view, the application should be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JB
Associate to the Honourable Justice Mitchell
25 AUGUST 2021
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