ChJ v Taylor
[2020] WASC 81
•13 MARCH 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: CHJ -v- TAYLOR [2020] WASC 81
CORAM: CORBOY J
HEARD: 16 AUGUST 2019 & 1 OCTOBER 2019
DELIVERED : 13 MARCH 2020
FILE NO/S: SJA 1131 of 2018
BETWEEN: CHJ
Appellant
AND
BENJAMIN ROBERT TAYLOR
Respondent
ON APPEAL FROM:
Jurisdiction : CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE M FLYNN
File Number : CCKA 489 of 2017
Catchwords:
Criminal law - Appeal against conviction and sentence - Appellant convicted of indecent dealing - Whether magistrate erred in admitting evidence of recent complaint - Whether magistrate erred in making credibility findings and other findings of fact - Whether intensive youth supervision order manifestly excessive - Whether appellant could have been referred to a juvenile justice team
Legislation:
Criminal Code (WA) s 320(4)
Young Offenders Act 1994 (WA) s 25(4), s 28
Result:
Leave to appeal against conviction and sentence refused
Appeal dismissed
Representation:
Counsel:
| Appellant | : | Ms C McKenzie (16 August 2019); Mr W Reid (1 October 2019) |
| Respondent | : | Ms G Beggs (16 August 2019); Ms K Cook (1 October 2019) |
Solicitors:
| Appellant | : | McKenzie & McKenzie |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Ascic v Bedworth [2013] WASCA 174
Azarian v The State of Western Australia [2007] WASCA 249
Badran v Public Transport Authority of Western Australia [2017] WASCA 28
CHJ v Taylor [2019] WASC 435
DS v The State of Western Australia [2008] WASCA 185
KSN v The State of Western Australia [2017] WASCA 156
Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507
Libke v the Queen [2007] HCA 30; (2007) 230 CLR 559
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
R v Freeman (1980) VR 1
Riley v The State of Western Australia [2005] WASCA 190; (2005) 30 WAR 525
Rundle v Innerd [2015] WASC 340
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Smart v Power [2019] WASCA 106
Strahan v Brennan [2014] WASC 190
Suresh v The Queen [1998] HCA 23; (1998) 72 ALJR 769; 153 ALR 145
The State of Western Australia v Rayney [2013] WASCA 219; (2013) 46 WAR 1
Wark v The State of Western Australia [2020] WASCA 19
WS v Gardin [2015] WASC 97
CORBOY J:
The appeal
The appellant was charged that between 15 December 2016 and 23 April 2017, at South Kalgoorlie, he indecently dealt with [AB], a child under the age of 13 years, contrary to s 320(4) of the Criminal Code (the First Charge). He was convicted following trial and sentenced to an intensive youth supervision order for a period of 6 months (the First IYSO). He appealed from his conviction and sentence (SJA 1121/18).
The appellant was also charged that on 15 October 2017, at South Kalgoorlie, he indecently dealt with [CD], a child under the age of 13 years, contrary to s 320(4) of the Criminal Code (the Second Charge). He was convicted following trial (each charge was separately tried before a different magistrate). He was sentenced to an intensive youth supervision order for a period of 5 months and 2 days (the Second IYSO). The Second IYSO was ordered to be served concurrently with the First IYSO. The appellant appeals from his conviction and sentence on the Second Charge (SJA 1131/18).
The appeals were heard together. I allowed the appeal from conviction on the First Charge.[1] For the reasons that follow, I would refuse the appellant leave to appeal against his conviction of the Second Charge and against his sentence and dismiss the appeal.
[1] CHJ v Taylor [2019] WASC 435.
The prosecution case
CD was aged approximately 4 years 6 months when the events the subject of the Second Charge allegedly occurred. The appellant was aged 15 years.
Mr N is the father of CD. He is married to Ms N, having previously separated from CD's mother, Ms O. The appellant is the younger brother of Ms N.
In summary, the prosecution alleged that:
(a)The appellant and his mother, Ms P, visited Mr and Ms N at their house in South Kalgoorlie. Ms O was also at the house at the time of the appellant's visit.
(c)During the visit, CD and the appellant were alone in a bedroom used by Mr N's children. Mr and Ms N, Ms P and Ms O were outside the house at the time.
(d)CD and the appellant played a computer game. They were sitting on a mattress on the floor of the children's bedroom while playing the game. The appellant was sitting with his legs apart and straight in front of him. CD was sitting between the appellant's legs with her back leaning against his chest. Her legs were inside the appellant's legs and they were both facing forward watching a television screen on which the computer game was displayed. The appellant placed his hand under CD's shorts and underpants and touched the outside of her vagina while they were seated in that position.
The appellant's case
The appellant gave evidence in which he stated that he had played a computer game with CD. They sat on a mattress to play the game. However, they were sitting in the middle of the mattress and not on its edge. He was sitting cross‑legged while playing the game. There was a point at which CD sat on his crossed legs and lent slightly back onto his chest. He denied touching CD in the manner alleged or in any way that was inappropriate.
Summary of the evidence
A visually recorded interview was conducted by a police officer with CD on 16 October 2017. The recording was admitted as CD's evidence‑in‑chief pursuant to s 106HB of the Evidence Act (the Visually Recorded Interview). The prosecution also called Mr and Ms N, Ms O and a forensic scientist, Mr Fuller. The appellant and Ms P gave evidence.
The following exchange occurred early in the Visually Recorded Interview:
Q.Okay. Well, thanks for telling me all about, um, the ladder and the swing. Now, tell me what you've come to talk - tell me - let's talk about what you're here for today. So tell me what you've come to talk about today?
A.From [Ms N's] brother?
…
Q.[Ms N's] brother? Yeah?
A.Yeah. Yes.
Q.Okay. Well, tell me about [Ms N's] brother?
A.Um, when I was showing [Ms N's] brother how to play Lego batman, um - and he touched my bum.
Q.He touched your bum?
A.Yeah. Like, here but not here.
In giving the last answer, CD first pointed towards her vagina to indicate where she alleged the appellant had touched her and then pointed to her bottom to indicate where he had not touched her.
CD then stated that the appellant had touched her once and later in the Visually Recorded Interview, she stated that she did not say to the appellant that he could touch her bum. Later still in the interview, she was asked if she had another name for 'bum' and she replied, 'vagina'. She stated that the appellant touched her under her clothing with his hand. She was wearing shorts but not underpants. She and the appellant were sitting on the mattress and she was sitting on his lap when the appellant allegedly touched her.
In cross‑examination, CD agreed that her father had said that the appellant had touched her on the bum. The questions that elicited that answer were obviously designed to cast doubt on the credibility of CD's allegations and to lay the foundation for opposing the admission of any evidence of recent complaint. However, the questions were put in general terms:
Now, [CD], when you spoke to the man on the video in this matter, you told us - you told him about your dad coming into the room; is that right? --- Yes.
Do you remember that happening? --- No.
Can't remember? --- No.
No. So if I said to you when - just before you talked to the man, your dad came into the room in his house - the bedroom. Do you remember that? --- Yes.
Do you remember that? --- No.
No. Okay. And if I was to say to you that when dad came into the bedroom he was angry, he growled at you; do you remember that? ---Yes.
Yes. You remember that? --- Yes.
Him growling at you? --- Mmm
And am I right that Dad said to you that [the appellant] had touched you; is that right? --- Yes.
That's what Dad told you, is it? --- Mmm
Yes? --- Yes.[2]
[2] 2 July 2018, ts 16 ‑ 17.
CD was asked further questions about her father growling at her. She denied thinking that she was in trouble as a result of Mr N's growling and said she did not know why her father was growling. The cross‑examination continued:
No. So who told you, [CD], that [the appellant] had touched your bum? --- I don’t know.
You don't know? --- Yes.
Was it your dad that told you? --- Yes.
The reference in this exchange to the 'man on the video' was to Matthew Hallsworth, the police officer who questioned CD in the Visually Recorded Interview. The events the subject of the Second Charge occurred late on the afternoon of 15 October 2017. The Visually Recorded Interview was conducted on the afternoon of 16 October 2017. Accordingly, questions about what Mr N may have said to CD 'just before [CD] talked to the man' did not identify with any precision CD's understanding of when the conversation about which she was being questioned occurred. In particular, the questions and CD's answers did not establish that the conversation occurred prior to CD making a complaint about the appellant's conduct.
The questions and answers were also ambiguous – was CD agreeing that Mr N had made a suggestion to her about what might have happened or was she merely agreeing that she had made a complaint to her father and he had accepted and repeated what she had told him? The ambiguity is further compounded by Mr N's evidence, which was accepted by the magistrate, that he had asked CD whether the appellant had touched her and she had responded by saying 'yes' and in answer to the question 'where', she had pointed to her vagina. In fairness to the appellant’s counsel, Mr N gave evidence after CD but CD's answers to the questions reproduced above might have amounted to no more than general agreement with what were, in fact, several separate propositions. The position was not further clarified in subsequent questions about conversations that CD had, or may have had, with Mr and Ms O.[3]
[3] 2 July 2018, ts 22 and 24.
Later in cross‑examination, CD stated she had thought she was in trouble. She agreed she had told her mother that what had occurred was an accident and, towards the end of her cross‑examination, the following exchange occurred:
And you were having a bit of a laugh - you were having a laugh about it, because sometimes you wouldn't do it right and sometimes he didn't do it right [that is, playing the game]. Isn't that right? --- Yes.
…
And you were telling him you were better than him at it. Is that right? --- Mmm.
Mmm. Okay. And [CD], when you were playing Lego batman with [Ms N's] brother, you sat on his lap and you played with the controller. Is that right? --- Yes.
Yes. And he played with it as well? Yes? --- Yes.
And at some stage [Ms N] came into the room and [the appellant] went outside with her. Do you remember that? --- Yes.
You can remember that? --- Yes.
Yes. And [the appellant] didn't touch you on your vagina, did he? --- No.
And you were just - you just played the Lego batman game together; is that right? --- Yes.
And you were just – you just played the Lego Batman game together; is that right? --- Yes.
Yes. Okay. So when you talked to [Ms N] and said it was an accident, was that talking about --- ? --- Yes.
--- You sitting on his lap? Obviously he was touching your mum [bum] --- Yes.
Yes. Okay. And he didn’t touch you inside your pants at all, did he? --- No.
And he didn’t touch you, if you like, on your rude part in front? --- No.[4]
[4] ts 25 ‑ 26.
However, in re‑examination CD was asked, 'what happened in the room' and CD replied, 'he touched my bum'.[5]
[5] ts 26.
CD used the word 'vagina' at one point in the Visually Recorded Interview. However, she consistently used the word 'bum' to refer to her vagina and that is the word that she voluntarily used in re‑examination. It was apparent from the Visually Recorded Interview that she also understood the word 'bum' could be used to refer to her bottom. In the exchanges reproduced above, the word 'bum' was apparently used to refer to CD's vagina (in questions about what Mr N might have told her) and to her bottom (in questions about sitting on the appellant's lap). Further, the word 'vagina' was used in a question designed to elicit an admission and the expression 'your rude part in front' was used in another question asked for the same purpose.
Mr N gave evidence that Ms O came to his house late in the afternoon of 15 October 2017 to collect CD.[6] The appellant and Ms P arrived shortly afterwards and the adults went outside to smoke. Mr N subsequently came inside and he saw CD sitting between the appellant's legs as he walked past the children's bedroom. She was sitting in the appellant's lap, leaning back on his chest with both of them facing a TV screen. CD was playing with the controller for an X-box.
[6] 15 October 2017 was a Sunday.
Mr N asked Ms N to request the appellant leave the bedroom and he then spoke to CD. He asked her whether the appellant had touched her and she replied, 'yes'. He then asked her where and she pointed towards her vagina.[7] He told Ms N to get the appellant out of the house and there followed a confrontation between himself and Ms P.
[7] 2 July 2018, ts 36.
In cross‑examination, Mr N agreed that the appellant and CD were probably sitting towards the middle of the mattress when he entered the children's bedroom. He denied that the appellant was sitting with his legs crossed and stated he felt uncomfortable with the way in which the appellant was sitting when he asked Ms N to request the appellant leave the bedroom.[8] He denied that he had said goodnight to CD and she had got up to kiss him. He agreed CD had made no complaint but rather, he had asked her whether the appellant had touched her. However, he denied having suggested to CD that the appellant had touched her inappropriately.
[8] 2 July 201, ts 58.
Ms O gave evidence that Ms P and the appellant were at the house of Mr and Ms N when she arrived. They were sitting in the lounge room and they moved outside to smoke after about 10 minutes. Subsequently, Mr N went inside and Ms O heard yelling, with Mr N demanding Ms N get the appellant out of the house. She went inside and took CD to the bedroom of Mr and Ms N. Ms N also came into the bedroom. She asked CD to 'show me on mummy what he did'. According to Ms O:
[CD's] grabbed the front of my pants and pulled them outwards and went to put her hands down my pants and I stopped her and she said, 'like this.' I, like, moved her hand away and she then pulled it out on herself and on the outside of her pants she put her hands in between her legs and said, 'like this'.[9]
[9] 2 July 2018, ts 79.
Ms N gave evidence that Ms O had arrived after Ms P and the appellant. The adults moved outside to smoke about five minutes after Ms O had arrived. Subsequently, Mr N went inside and then came out and asked Ms N to tell the appellant to leave the children's bedroom. She went to the bedroom and saw the appellant sitting with his legs straight out. CD was sitting between his legs, leaning back on him, 'like in a chair'.[10] She appeared normal and Ms N asked the appellant to leave. She then accompanied Ms O and CD into her bedroom. Ms O asked CD, 'did that boy touch you'. CD replied, 'yes'. CD demonstrated what had occurred by going to put her hands down her mother's pants. Ms N then accompanied CD to the lounge room where CD told Ms N that she was sorry and that it was an accident. Ms N commented that CD thought she was in trouble.[11]
[10] 3 July 2018, ts 166.
[11] 3 July 2018, ts 171.
Ms N was cross‑examined about some inconsistencies between her evidence and her witness statement and also about different aspects of her evidence. However, in cross‑examination, Ms N maintained that the appellant was sitting with his legs straight out and with CD sitting between his legs. She accepted that the appellant was sitting in the middle of the mattress with CD. Ms N also agreed that when CD was questioned in Ms N's bedroom, Ms O had asked CD 'what did that boy do' and not 'did something happen to you'.
Mr Fuller is employed by PathWest Laboratories as a forensic scientist. He gave evidence about tests performed on items submitted by the police: a SAR kit, from which smears were made by PathWest, and CD's shorts and underpants. Mr Fuller's report on the tests that were performed was received as an exhibit.
The report and Mr Fuller's evidence disclosed that:
(a)there was no positive result from a presumptive test for the presence of semen in the smears made by PathWest;
(b)DNA profiles were recovered from tape lift samples taken from CD's shorts and underpants;
(c)a mixed DNA profile was recovered from some of the samples but the profiles were too complex to analyse or could only be partially analysed;
(d)the respondent was excluded as a contributor to one of the mixed DNA profiles and his DNA reference profile was not positively matched to any of the profiles recovered from the samples taken by PathWest.
As noted, the appellant denied in his evidence that he had touched CD in the manner alleged or in any way that was inappropriate. He stated in an electronic record of interview conducted with detectives on 15 October 2017 (the EROI) that he had only touched CD in the course of passing the X-box controller to her. In his evidence, he admitted that she had sat on his legs - on his calves - at one point while they were playing the video game. However, he maintained that he had sat cross‑legged throughout the time that he was playing the game with CD. He was questioned by Ms P immediately after CD alleged he had touched her and he had denied the allegation to his mother. He had also been questioned by Ms P and his father at home and he had again denied inappropriately touching CD. He voluntarily went to the police station to make a statement.
Ms P also gave evidence on behalf of the appellant. Much of her evidence concerned the confrontation between herself and Mr N immediately after CD made her allegation.
The magistrate's reasons
The magistrate commenced his reasons by directing himself in conventional terms on matters such as the burden and standard of proof. Those directions included a Liberato direction in respect of the appellant's evidence.[12] His Honour identified the elements of the offence and briefly summarised the prosecution case and that of the appellant.
[12] Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507.
His Honour made a series of factual findings from what was characterised as 'uncontradicted evidence that I considered to be reliable':[13]
(1)CD and the appellant were in the children's bedroom for less than 30 minutes. Mr and Ms N, Ms O and Ms P were outside the house during that time.
(2)Mr N entered the house while CD and the appellant were still in the children's bedroom. He saw CD and the appellant sitting on the mattress in the bedroom. He asked Ms N to request the appellant leave the children's bedroom. Ms N did as asked and she and the appellant left the children's bedroom and went outside the house.
(3)Mr N then spoke to CD alone. Mr N said, 'did that boy touch you?' and CD replied, 'yes'. Mr N asked, 'where?' and CD pointed to her vagina and said 'there'.
(4)Mr N left the children's bedroom, went into the lounge room and commenced yelling loudly and angrily. Ms N came inside and Mr N told Ms N what CD had said to him. Mr N demanded that the appellant and Ms P leave immediately. Ms P then came inside and there was a 'verbal and physical clash' between Mr N and Ms P. Ms N told Ms P that CD had said that the appellant had touched her inappropriately.
(5)Mr and Ms N and Ms O took CD from the children's bedroom to the main bedroom. Ms O spoke to CD, asking 'did that boy touch you?' CD replied, 'yes' and Ms O asked, 'show me on mummy what [the appellant] did'. CD then used her hands to pull the pants that Ms O was wearing away from her stomach and went to put her hand down the front of Ms O's clothing. Ms O stopped her and CD then continued the demonstration on herself, by starting to put her own hand inside the front of her shorts.
(6)Subsequently, CD said to Ms N, 'it was an accident, I am sorry. Am I in trouble?'[14]
[13] 5 July 2018, ts 5.
[14] 5 July 2018, ts 5 ‑ 6.
Having made those findings, his Honour considered a submission that the statements made by CD to Mr N and Ms O, and her actions when making the statements immediately following the alleged incident, were inadmissible on the ground that the statements and actions were not freely and voluntarily made. It was submitted by the appellant's counsel that CD's statements and actions were induced by suggestive questions from Mr N and Ms O. It was also submitted that CD may have been sensitive to Mr N's apparent anger immediately after speaking to her in the children's bedroom and had sought to give answers that pleased him and the other adults with whom she was familiar.
The prosecutor submitted that the evidence given by Mr N and Ms O of CD's statements and actions immediately following the alleged incident were admissible as evidence of a complaint about a sexual offence made at the first reasonable opportunity. His Honour noted that the evidence, if admitted, could only be used to support CD's credibility as demonstrating consistency in her conduct.[15] He applied the observations of the Court of Appeal in DS v The State of Western Australia[16] to determine whether CD's statements to Mr N and Ms O, and her actions, were admissible.
[15] ts 6.
[16] DS v The State of Western Australia [2008] WASCA 182 [22] ‑ [25] (Miller JA, with whom Wheeler JA and Murray AJA agreed).
Ground 2 of the appeal alleges that the magistrate erred in law in receiving evidence of CD's complaint to Mr N immediately following the incident. Oddly, the ground does not refer to what CD said to Ms O and to CD's actions in demonstrating what she said had occurred. There were no submissions on this ground and it is not clear whether it was contended that his Honour erred in identifying the principles to be applied in determining the admissibility of CD's statements and actions or whether it is alleged that he misapplied those principles.
His Honour concluded that the statements made by CD to Mr N and Ms O were freely and voluntarily made. In summary, his Honour held:
(a)A question to the effect, 'did somebody else touch you?' was an odd question that would only be asked because the person making the enquiry had a concern. Mr N was concerned because of the incident that had occurred about six months earlier and which was the subject of the First Charge. Ms O was concerned because she had just been told that CD had made a complaint against the appellant.
(b)However, the fact that Mr N and Ms O had a motive for asking the question did not mean that they put the answer into CD's mouth and it did not mean that they had asked a 'suggestable question'.
(c)There was no evidence indicating that CD had a suggestable mind or that she would take the questions asked by Mr N and Ms O as anything other than a literal question. A child aged four and a half years would, in the position of CD, take the question to mean 'did he touch you anywhere?'
(d)There was no indication that CD was fearful about answering the questions - she was responding to questions from her parents.[17]
[17] 5 July 2018, ts 8.
His Honour also considered that CD's actions when speaking to Ms O were spontaneous gestures. Ms O's evidence on CD's actions when questioned about the incident was also permissible as evidence of recent complaint.
His Honour reminded himself of the use that could be made of the evidence of recent complaint and the fact that the complaint was repeated did not add to the evidence. His Honour then turned to consider the evidence given by CD in the Visually Recorded Interview. After reciting some of the evidence given by CD in the interview, his Honour observed, 'What I have just quoted is representative of [CD's] answers to the questions in the interview and it reveals a cogent, plausible, coherent account of what took place in the bedroom, and it supports the prosecution case as I summarised it.'[18]
[18] 5 July 2018, ts 11.
His Honour next recounted parts of the appellant's evidence and observed that, '[the appellant's] evidence in this court and indeed in his interview [the EROI] was also cogent, plausible and coherent.'[19]
[19] 5 July 2018, ts 11.
The magistrate then considered, and rejected, various submissions made by the prosecutor regarding the credibility of the appellant's evidence. However, his Honour noted that the appellant's evidence that he had sat cross‑legged on the mattress was inconsistent with the evidence given by Mr and Ms N. Their evidence was that they observed the appellant to be siting with his legs out straight and with CD sitting between his legs.
The magistrate considered submissions made by the appellant's counsel on why the evidence of Mr and Ms N should be rejected. However, his Honour was not persuaded by those submissions and concluded that:
Given the consistency between [Mr N] and [Ms N] evidence about the location of [the appellant's] legs, I am satisfied that his legs were straight and that [the appellant] was wrong when he described his legs as being cross-legged. I do not believe [the appellant] on that point. The fact that I do not believe him on that point has led me to have doubts about his evidence on other crucial issues.[20]
[20] 5 July 2018, ts 13.
The magistrate then turned to an assessment of CD's evidence. His Honour began by noting that her evidence was unsworn and that:
[t]he effect of evidence being unsworn was considered in a case of RPM v The Queen [2004] WASCA 174 at paragraphs 92, 130 and 186. The Court of Criminal Appeal said obiter that it is not necessary to warn myself that the unsworn evidence of a child is of a lesser quality than evidence given on oath. That said, it is also said by Wheeler J in the same case, for the reasons given at paragraphs 131 to 137, that I do need to consider the reliability of a young child's evidence and I now set out the way I consider that evidence.[21]
[21] 5 July 2018, ts 13.
His Honour then made a number of observations about the assessment of CD's evidence:
(a)It was necessary to bear in mind that some young children, because of their natural deference to authority, may be inclined to give answers which they believe the questioner seeks or may too readily agree with suggestions they believe had been made by the questioner.
(b)It was also necessary to carefully scrutinise the circumstances in which the Visually Recorded Interview was made and the answers given by CD in cross‑examination and re‑examination.
(c)He had to be satisfied that CD understood that it was important to be accurate and to tell the truth and that her evidence was not prompted by a desire to please or agree with any adult.
(d)There were points in the Visually Recorded Interview where it was obvious that CD was distracted and not listening to the questions that were being asked.
(e)Evidence had been elicited from CD in the Visually Recorded Interview and in re-examination by non‑leading questions. Further, 'the consistency between the answers given for the most part in the [Visually Recorded Interview] and in re-examination reveal evidence of a high level of quality such that I can have a high level of confidence about the reliability and the credibility of [CD]'.[22]
[22] 5 July 2018, ts 15.
However, the magistrate also noted that CD's evidence was 'far from flawless'. His Honour identified what were described as 'deficiencies' in her evidence and also noted that it was necessary to consider parts of CD's cross‑examination in which she had answered either 'no' or 'yes' to questions which were to the effect that the appellant had not touched her as alleged by the prosecution. His Honour observed that the answers were given in response to leading questions and this effected the weight to be given to the answers. His Honour concluded, 'the fact that [CD] agreed to those propositions did not lead me to question the overall significance of the evidence which I have summarised. I would not place weight on her answers to those questions.'[23] Further, other examples of either 'deficiencies' or obviously erroneous statements made by CD in her evidence did not lead his Honour to doubt the overall reliability and quality of CD's evidence. The errors were small in number and inconsequential in context given the length of the Visually Recorded Interview.[24]
[23] 5 July 2018, ts 16.
[24] 5 July 2018, ts 17.
Finally, the magistrate considered the DNA evidence. His Honour noted that there was no DNA sample profile that matched the appellant's reference profile. However, there was no expectation that DNA would be found on any item seized by the police for reasons explained in the report provided by Mr Fuller. His Honour concluded that, 'the DNA report did not assist the prosecution's case. Its weight is negligible'.[25]
[25] 5 July 2018, ts 17.
The grounds of appeal against conviction– an overview
The magistrate identified the elements of the offence as:
(a)The appellant dealt with CD. His Honour directed that the term 'deals with' included indirect touching over clothing.
(b)The dealing was indecent. His Honour directed that the expression 'indecent' carried its ordinary meaning according to what the community would regard as indecent. In this case, the appellant would have indecently dealt with CD if he had directly or indirectly touched her vagina.
(c)CD was under 13 years of age at the time that the offence was allegedly committed.
The appellant did not contend that the magistrate had misdirected himself on the elements of the offence, including as to the meaning of 'indecent'. There was no question concerning CD's age and accordingly, the issue his Honour was required to decide was whether he was satisfied beyond a reasonable doubt that the appellant had directly or indirectly touched CD's vagina.
As has been noted, the magistrate rejected various submissions made by the prosecutor concerning the credibility of the appellant's evidence. His Honour characterised the appellant's evidence as 'cogent, plausible and coherent'. However, he did not accept one part of the appellant's evidence: that the appellant had sat cross legged throughout the time that he was with CD. His Honour found that the appellant had sat with his legs straight out and with CD sitting between his legs leaning back on his chest. He added that the rejection of the appellant's evidence on that matter had led him to doubt the appellant's evidence on other 'crucial issues'.
The appellant's outline of submissions dated 4 July 2019 (the Appellant's Submissions) on Ground 1.4 complain that the magistrate did not make any findings about the 'crucial issues' on which he doubted the appellant's evidence.[26] However, most obviously, his Honour rejected the appellant's evidence that he had not directly or indirectly touched CD on her vagina. The essential issue in this appeal is whether the magistrate erred in holding that he was satisfied beyond a reasonable doubt that the appellant had indecently dealt with CD despite the appellant's evidence.
Ground 1.1
[26] See also, the Appellant's Submissions, par 125 - 128.
Ground 1.1 of the appeal notice alleges that the magistrate's reasons 'did not adequately reveal that he properly considered the evidence adduced by the [appellant]'. The Appellant's Submissions did not separately address this ground. However, the appellant made a number of submissions under the heading 'Ground 1'. I have assumed that those submissions are primarily directed to ground 1.1, although the submissions also deal with some issues raised by the remaining grounds. No doubt that reflects the overlap between the grounds of appeal.
In summary, the Appellant's Submissions under the heading 'Ground 1' contend that:
(a)The magistrate could only have been satisfied beyond a reasonable doubt of the appellant's guilt if he accepted the evidence of CD and rejected the appellant's evidence and the statements he made in the EROI; alternatively, the magistrate had to find that the appellant's evidence and his statements in the EROI did not give rise to a reasonable doubt.[27]
(b)The magistrate was required to set out his findings as to why he had rejected the appellant's denials.[28]
(c)The question of whether the appellant had sat at some point while he was with CD with his legs out straight was not 'a matter crucial to a determination of credibility' and was not sufficiently material to the issues to be decided as to provide a 'proper' basis for a finding of guilt.[29]
(d)The magistrate did not identify what evidence given by the appellant was rejected; that is, on what other 'crucial issues' the appellant's evidence was not accepted.[30] Further, the magistrate failed to make findings in relation to 'the crucial evidence' in circumstances where he had accepted that the appellant's evidence was 'cogent, plausible and coherent'.[31]
(e)The magistrate adopted a different approach to the evidence of CD and the evidence given by the appellant. His Honour accepted CD's evidence that the appellant had touched her vagina notwithstanding that CD had agreed in cross‑examination that the appellant did not touch her and despite problems with the statements she made in the Visually Recorded Interview. On the other hand, the appellant's evidence was found to be unreliable on the basis of the finding that he had sat with his legs straight while he was with CD.[32]
Grounds 1-2 ‑ 1.8
[27] Appellant's Submissions, par 119.
[28] Appellant's Submissions, par 121.
[29] Appellant's Submissions, par 124.
[30] Appellant's Submissions, par 127.
[31] Appellant's Submissions, par 132.
[32] Appellant's Submissions, par 129 ‑ 130.
The Appellant's Submissions on grounds 1.2 to 1.8 repeat some of those matters. In summary, the submissions on those grounds complain that:
(a)The magistrate did not 'display an adequate application of what findings of fact [his Honour]… relied upon to determine the guilt of the appellant' beyond rejecting his evidence that he had sat with his legs crossed while with CD.[33]
(b)The finding that, contrary to his evidence, the appellant did not sit with his legs crossed could not provide a proper basis for rejecting his evidence on other 'crucial issues' and, in any event, it was open to infer that the appellant's legs were crossed some of the time that he was with CD even if his legs were straight at other times.[34]
(c)The magistrate failed to make necessary findings concerning all of the appellant's evidence, including the 'crucial issues' on which his evidence was doubted. Further, his Honour did not deal with whether the appellant's evidence had given rise to a reasonable doubt.[35]
(d)The magistrate erred in accepting the evidence of CD having regard to the inconsistencies in her evidence, the fact that she gave unsworn evidence and her age.[36]
(e)The magistrate gave undue weight to the finding that the appellant had not sat with his legs crossed; did not give sufficient weight to CD's evidence in cross‑examination that the appellant had not touched her vagina; and did not give 'proper' weight to the DNA evidence.[37]
Ground 2
[33] Ground 1.2; Appellant's Submissions, par 133.
[34] Ground 1.3; Appellant's Submissions, par 134 and 135.
[35] Grounds 1.4 and 1.5; Appellant's Submissions, par 136 ‑ 138.
[36] Ground 1.8.
[37] Grounds 1.6, 1.7 and 1.9; Appellant's Submissions, par 139 ‑ 142.
Ground 2 of the appeal pleads that the magistrate erred in law in determining that CD's complaint to Mr N immediately following the alleged incident was admissible as evidence of recent complaint. It is convenient to deal with that ground when considering grounds 1.1 to 1.9 given the use that was made by the magistrate of the evidence of CD's complaint.
The amended appeal notice
The appeal notice of initially contained a third ground of appeal which alleged that the magistrate erred in law and/or fact 'when he determined the evidence adduced at trial by the prosecution was capable of establishing guilt beyond a reasonable doubt'. The appeal notice was subsequently amended to delete that ground.[38] However, the Appellant's Submissions include a reference to the ground, albeit no submissions were specifically directed to the ground. The respondent, rightly in my view, concluded, in effect, that the reference to the ground in the Appellant's Submissions was a mistake.
[38] Minute of Proposed Amended Grounds of Appeal, 12 June 2019.
There was, nevertheless, indications in the grounds of appeal and in the Appellant's Submissions that the appellant contended, in effect, that the magistrate’s decision was against the weight of the evidence or was otherwise unreasonable. I have dealt with those matters to ensure that there is no issue arguably arising in the appeal that has not been considered and determined.
Relevant legal principles
The Criminal Appeals Act
Section 8(1) of the Criminal Appeals Act 2004 (WA) (CAA) provides that an appeal may be made from a court of summary jurisdiction on grounds that include that the court made an error of law or of fact, or of both law and fact. Section 9 stipulates that leave of the court is required for each ground of appeal. The proposed ground must have a reasonable prospect of success to justify leave being granted: Samuels v The State of Western Australia.[39]
[39] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473.
Section 14(1) CAA permits the court, in deciding an appeal to, among other things, dismiss or allow the appeal. Section 14(2) further provides that even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice occurred.
Section 39(1) CAA provides that an appeal court must decide an appeal on the evidence and material that was before the lower court.[40] Consequently, the appeal is by way of a rehearing on the evidence that was received in the Magistrates Court, subject to a power to admit evidence in the appeal conferred by s 40.
The obligation to give reasons
[40] Section 39 appears in Pt 4 of the CPA – that part contains provisions applicable to any appeal.
In the appeal from the appellant's conviction of the First Charge, I explained my understanding of the law relating to the obligation of a magistrate sitting as a member of the Children's Court of Western Australia to give reasons: CHJ v Taylor.[41] The obligation is imposed by s 120 of the Criminal Procedure Act 2004 (WA) (CPA).
[41] CHJ v Taylor [2019] WASC 435.
I will not repeat what was stated in CHJ v Taylor. However, it is relevant to note that I referred to the reasons of Steytler P in Riley v The State of Western Australia on the requirement that a judicial officer provide reasons for preferring one set of evidence over a conflicting set of evidence:
While it is true that overly elaborate reasons are not required from a trial Judge, especially so in criminal trial proceedings in which a prompt outcome is necessary, where one set of evidence is accepted over a conflicting set of significant evidence a trial Judge is required to set out his or her findings as to how it is that one has been accepted over the other …[42]
[42] Riley v The State of Western Australia [2005] WASCA 190; (2005) 30 WAR 525 [32] and see WS v Gardin [2015] WASC 97.
The obligation to give reasons otherwise requires the judicial officer to adequately disclose the 'intellectual processes' that have resulted in the decision and the reasons must be sufficient to give effect to the right of appeal. As Mitchell J observed in WS v Gardin, the reasons must demonstrate that the judicial officer discharged his responsibility to 'engage with, or grapple or wrestle with, the cases presented by each party'.[43] Nevertheless:
Having regard to … The context in which the magistrate of this State conduct their judicial business it is not appropriate to scrutinise the reasons for decision given by magistrates with a fine-tooth comb or an eye keenly attuned to the identification of error. Nor is it appropriate for the court to infer from infelicity of language that error is thereby demonstrated. That is because of necessity, magistrates are required to perform their important functions in a different time frame to that which applies in the superior courts and in that context is to be expected that some infelicity language is likely to occur from time to time.[44]
Alleged errors of fact
[43] WS v Gardin [2015] WASC 97 [169].
[44] Strahan v Brennan [2014] WASC 190 [90] (Martin CJ).
Grounds .1 to 1.5 of the appeal notice do not expressly allege that the magistrate made errors of fact. However, it is apparent from the Appellant's Submissions that the allegation that his Honour failed to give adequate reasons is, in substance, a complaint about the findings of fact that were made and the process by which the facts were found. Grounds 1.5 to 1.9 allege weighting errors in the way in which the facts were found.
In Smart v Power, the Court of Appeal explained the principles to be applied by an appellate court in reviewing findings of fact:
An appellate court, in an appeal by way of rehearing, is obliged to conduct a 'real review' of the trial and of the judge's reasons, and 'cannot excuse itself from the task of weighing conflicting evidence and drawing its own inferences and conclusions.'
In conducting its review of the case, the appellate court must observe the 'natural limitations' that exist in the case of any appellate court proceeding wholly or substantially on the record. The law recognises that, compared to the trial judge, an appellate court has disadvantages that include, but are not limited to, not having seen and heard the witnesses. In Fox v Percy, Gleeson CJ, Gummow and Kirby JJ observed that the limitations of the appellate court, in proceeding on the record, include:
'[T]he disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the 'feeling' of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.' (footnotes omitted)
Because of this, the discernment of appellable error requires attention, at the outset, to the nature of the findings said by an appellant to be erroneous. The nature of the finding, and the reasoning by which it was made, affects what is required in order to demonstrate appellable error. The nature and extent of the trial judge's advantage(s) informs what is required in order to reach, and the extent of any appellate restraint in reaching, a conclusion of error. In this respect, as the appellants acknowledge, it is necessary to distinguish between the reasoning of a trial judge which is based on a credibility determination, and the reasoning of a trial judge based on inferences drawn from facts that were undisputed or found. This distinction, and its significance, has long been recognised.
In the case of a finding that is based, at least to any substantial degree, on an assessment of the credibility of one or more witnesses, an appellate court will not interfere with the finding unless it is demonstrated to be wrong by reference to incontrovertible facts or uncontested testimony, or because the finding is glaringly improbable or contrary to compelling inferences, or because the trial judge failed to use, or has palpably misused, their advantage as trial judge.
By contrast, an appellate court is, in general, in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding the proper inference to be drawn, the appellate court gives respect and weight to the conclusion of the trial judge. However, if it reaches a different conclusion, in other words, it concludes that error is shown because the trial judge was wrong as to the inference drawn, it must give effect to that conclusion. (footnotes omitted)[45]
[45] Smart v Power [2019] WASCA 106 [101] ‑ [105].
Similarly, in Ascic v Bedworth,[46] Buss JA (as his Honour then was) observed (in an appeal from conviction by a magistrate) that:
[46] Ascic v Bedworth [2013] WASCA 174.
Where there has been a trial before a judge alone or a magistrate, the reasoning of the court which is based on a credibility determination must be distinguished from the reasoning of the court which is based on inferences drawn from facts that were undisputed or found by the court.
Normally, the court's credibility‑based conclusions will not be reversed on appeal unless it is demonstrated that such conclusions are flawed by reference to incontrovertible facts or uncontested testimony. However, as Kirby J observed in CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458:
Even in the case of expressed credibility findings, the statutory duty to conduct a real "rehearing" remains. It may sometimes justify reversal of a decision by a primary judge who has "failed to use or has palpably misused his advantage or where "incontrovertible facts or uncontested testimony" demonstrates the findings to be erroneous; or where they are "glaringly improbable" and "contrary to compelling inferences" [21] (footnotes omitted)
Although an appellate court is obliged to "give the judgment which in its opinion ought to have been given in the first instance" …, it must necessarily observe the "natural limitations" that exist where the appellate court proceeds wholly or substantially on the record in Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549, 561, Isaacs J said:
The mere words used by the witnesses when they appear in cold type may have a very different meaning and effect from that which they have when spoken in the witness box. A look, a gesture, a tone or emphasis, a hesitation or an undue or unusual alacrity in giving evidence, will often lead a Judge to find a signification in words actually used by a witness that cannot be attributed to them as they appear in the mere reproduction in type. And therefore some of the material, and it may be, according to the nature of the particular case, some of the most important material, unrecorded material but yet most valuable in helping the judge very materially in coming to his decision, is utterly beyond the reach of the Court of Appeal (561).[47]
Alleged weighting errors
[47] Ascic v Bedworth [64] – [66]. See also The State of Western Australia v Rayney [2013] WASCA 219; (2013) 46 WAR 1 [372] – [426].
The appellant in Rundle v Innerd had been convicted of offences against the Misuse of Drugs Act 1981 (WA). He appealed from his conviction on numerous grounds including that the magistrate had failed to give sufficient weight to particular parts of the evidence; that a finding that the appellant had given evidence in an unsatisfactory manner on a particular topic had been made in error; that an inference adverse to the appellant had been drawn when other inferences were reasonably open; and that the magistrate did not provide sufficient reasons in circumstances where it was not open to convict the appellant of the offences charged. Justice Jenkins observed in relation to those grounds:
I agree with the respondent's submission that the grounds of appeal 1(b) ‑ (f) are particulars of a general complaint that the magistrate did not make findings of fact in favour of the appellant and did not accept the evidence called in her defence. Complaints that the magistrate did not make findings of fact in favour of the appellant, did not accept defence evidence or did not place significant weight on defence evidence are not appellable errors unless incontrovertible facts or uncontested evidence demonstrate that the magistrate was wrong or the decision was 'glaringly improbable' or 'contrary to compelling inferences'. Further, where, as in this case, the decision under appeal was affected by the magistrate's impressions about the credibility of witnesses, the appellate court must bear in mind and pay respect to the advantage of the magistrate in having seen and heard the witnesses …[48]
As can be seen, her Honour's approach to an allegation that insufficient weight was given to parts of the evidence was consistent with the principles that apply to an appeal against a finding of fact.
[48] Rundle v Innerd [2015] WASC 340 [89].
The same approach is to be taken insofar as the appellant seeks to contend across all of his grounds of appeal that the magistrate's decision was against the weight of the evidence. In Badran v Public Transport Authority of Western Australia,[49] the appellant alleged that the trial judge had erred in law and in fact in finding that a warning sufficient to enliven the power to arrest under s 53(3) of Public Transport Authority Act 2003 (WA) had been communicated to the appellant. The Court of Appeal observed:
Contrary to the assertion in the ground of appeal, the issue is not one of law but solely of fact. The essence of the ground is that the finding of the primary judge was against the weight of the evidence. The principles relevant to such a challenge are well known.
An appellant who appeals against a trial judge's findings of fact must do more than show that an alternative finding was available on the facts. The appellant must show that a factual error was made by the trial judge … An appellate court should not interfere with a judge's findings of fact unless they are demonstrated to be wrong by 'incontrovertible facts or uncontested testimony', or they are 'glaringly improbable' or 'contrary to compelling inferences'.[50]
Evidence of recent complaint
[49] Badran v Public Transport Authority of Western Australia [2017] WASCA 28.
[50] Badran v Public Transport Authority of Western Australia [64] ‑ [65] (citations omitted).
The admissibility and use of evidence of complaint in a prosecution for an alleged sexual assault was explained in Suresh v The Queen:
Evidence of prior complaint is admissible in sexual offence cases by way of exception to the rule against hearsay. It is admissible because of the tendency of people to assume, at least in earlier times, that the victim of a sexual offence will complain at the first reasonable opportunity and that, if complaint is not then made, a subsequent complaint is likely to be false. It follows that evidence of complaint is only admissible if it is evidence of early complaint or, as is usually said, of "recent complaint". And it is admitted not as evidence of the facts in issue, but as evidence of consistency which buttresses the credit of the complainant.
As Gaudron J explained in M v The Queen, the assumption that the victim of a sexual offence will complain at the first reasonable opportunity is an assumption of doubtful validity, particularly in cases of child sexual assault [6]. And it is an assumption that is now frequently called into question, including by directions to the effect that there may be good reason why a person would delay in making a complaint. Where a direction of that kind is given, a jury may well take the view that evidence of a prior consistent complaint enhances the credit of the complainant even though the complaint was not made until well after the events in issue.
Where, as here, the jury is instructed that there may be good reason why a person might delay in making complaint and the prosecution case depends on the credibility of the complainant with respect to events which are largely uncorroborated and which, of their nature, are not likely to be witnessed by other persons, it is difficult to envisage circumstances in which it might be said that wrongful admission of evidence of a prior consistent complaint could not enhance his or her credibility.[51]
[51] Suresh v The Queen [1998] HCA 23; (1998) 72 ALJR 769; 153 ALR 145 [4] ‑ [6] (Gaudron & Gummow JJ).
Buss P summarised the relevant propositions in KSN v The State of Western Australia:[52]
(a) Recent complaint evidence is an exception to the rule against prior consistent statements and the rule against hearsay.
(b)Recent complaint evidence is not admissible as evidence of the facts in issue. Rather, it is admissible to buttress the complainant's credit as a witness by demonstrating consistency of conduct.
(c)The notion of 'recent' refers to the temporal proximity between the occurrence of the alleged offence and the making of the complaint. A condition of admissibility is that the complaint was made at the first reasonable opportunity after the occurrence of the alleged offence.
[52] KSN v The State of Western Australia [2017] WASCA 156 [39] ‑ [41]. See also Azarian v The State of Western Australia [2007] WASCA 249 [22] ‑ [27] (Pullin JA) and [119] ‑ [136] (Miller JA).
As the magistrate recognised, evidence of recent complaint will be excluded if the complaint was not made voluntarily. The decision of the Full Court of the Supreme Court of Victoria in R v Freeman[53] is often cited for the factors relevant to determining whether a complaint was voluntary. The decision of the Court of Appeal in DS v The State of Western Australia, to which the magistrate referred in his reasons, adopts what was stated by the Full Court in R v Freeman.[54]
[53] R v Freeman (1980) VR 1.
[54] See also Azarian v The State of Western Australia [2007] WASCA 249.
The Full Court in R v Freeman identified four matters to be considered in determining whether a complaint had been made voluntarily, although it was also recognised that the 'ultimate question' was always whether the complaint, in the circumstances in which it was made, tended to buttress the complainant's credit as a witness.[55] The matters identified by the Full Court were:
(a)how approximate was the complaint, when first made, to the incident;
(b)what happened in the interval between the incident and the making of the complaint;
(c)what was the likelihood that the complaint was not spontaneous either because it had been put into the complainant's mind and mouth by questions of such a character as to have suggested to the complainant the answer, in fact, given or an answer that the questioner desired or that the circumstances indicated that the answer given was the product of a suggestive question to a suggestible mind;
(d)whether the complaint could have been induced as a consequence of the relationship existing between the complainant and the person to whom the complaint was made so that it was not spontaneous but contrived or induced.
Unreasonable or unsupported verdict
[55] R v Freeman [1980] VR 1, 5.
Ground 1.2 alleges that the magistrate's reasons do not 'adequately reveal that his Honour properly considered each of the elements of the offence and the evidence that support (sic) prove beyond a reasonable doubt'. I am not certain what issue the second part of that pleading is intended to raise. It does not appear to be an allegation that the finding of guilt was unreasonable or unsupported by the evidence (and the appeal notice was amended to delete an allegation to that effect). However, as earlier indicated, I later consider the question of whether the magistrate's decision was against the weight of the evidence or otherwise unreasonable so that all issues possibly arising in the appeal are fully determined.
The test for determining whether a verdict is unreasonable or unsupported by the evidence is whether it was open to the magistrate to be satisfied of guilt beyond a reasonable doubt; that is, whether his Honour must, as distinct from might, have entertained a doubt about the appellant's guilt. As Buss P observed in Wark v The State of Western Australia: '[t]he ultimate question for the appellate court must always be whether the appellate court thinks that upon the whole of the evidence it was open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty.'[56]
[56] Wark v The State of Western Australia [2020] WASCA 19 [490] (Buss P). See M v The Queen [1994] HCA 63; (1994) 181 CLR 487and Libke v the Queen[2007] HCA 30; (2007) 230 CLR 559.
The question is one of fact not law. The appellate court must make an independent assessment of the sufficiency and quality of the evidence to decide whether, notwithstanding that there is evidence upon which the tribunal of fact might convict, it would nevertheless be dangerous to permit the verdict to stand. The court must weigh the whole of the evidence but 'must not disregard or discount either the consideration that the [tribunal of fact] is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the (tribunal of fact) has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.'[57]
[57] Wark v The State of Western Australia [489] (Buss P, citing M v The Queen (493)). See also Wark v The State of Western Australia [493] (Buss P) on the nature and extent of the appellate court's task.
Disposition – appeal against conviction
The recent complaint evidence (ground 2)
I do not consider that the magistrate erred in admitting evidence of CD's complaints to Mr N and Ms O following the incident in which the appellant was alleged to have indecently touched her. Plainly, the complaints satisfied the requirement of being 'recent' - they were made within minutes of the incident.
As to the allegation that CD's complaints were the product of suggestion by Mr N:
(a)The magistrate correctly identified the principles to be applied in determining whether CD's complaints to Mr N and Ms O were made voluntarily and spontaneously.
(b)The magistrate found that Mr N and Ms O asked CD 'did [the appellant] touch you' rather than assuming that the appellant had touched CD and asking where he had touched her. CD responded to those questions with gestures that indicated that the appellant had touched her vagina. The question was, in context, sufficiently open-ended and did not suggest the response that was given by CD – especially given CD’s age. In my view, the question 'did the appellant touch you' did not suggest to CD the answer which, in fact, she gave by gesture or that either Mr N or Ms O desired the answer that was given by CD or that the circumstances indicated that her answer was the product of a suggestive question to a suggestable mind.[58]
(c)Mr N's question was prompted by his observation of how the appellant and CD were sitting on the mattress in the children's bedroom. Ms O's questions were prompted by Mr N's response. No doubt Mr N's concern, at least in part, reflected the incident that had occurred earlier that year and which was the subject of the First Charge. However, as the magistrate observed, the fact that Mr N and Ms O may have had a motive for asking CD whether the appellant had touched her did not mean that they had put words into her mouth.
(d)CD was asked whether the appellant had touched her by both her parents. There was nothing in the circumstances or CD's relationship with each of her parents that would indicate that her complaints might have been contrived or induced.
(e)Ms N's evidence that CD subsequently said to her 'it was an accident, I am sorry. Am I in trouble?' was not inconsistent with CD's evidence and her complaints. The statement 'it was an accident' indicates that an incident had occurred and the balance of what CD said to Ms N suggests that CD was uncertain about the consequences of her complaints to her parents (as might be expected of a young child making a complaint about indecent touching). There was nothing in the evidence to suggest that CD would fabricate an allegation that the appellant had touched her vagina because she may have thought that her father was angry (‘growling’).
[58] Refer R v Freeman [1980] VR 1, 5.
Accordingly, in my view, the complaint made in ground 2 of the appeal notice should be rejected and the appellant will be denied leave to appeal on that ground. It follows that the allegations made in grounds 1.1 to 1.9 are to be determined on the basis that the evidence of recent complaint was properly admitted.
The positioning of the appellant's legs
It was open to the magistrate to accept the evidence of Mr and Ms N, and to reject the appellant's evidence, on the position in which the appellant and CD were sitting on the mattress. That was notwithstanding his Honour's observations about the appellant's evidence as a whole. It is always open to a trier of fact to accept and reject different parts of a witness's evidence, including evidence given by an accused person.
As the magistrate noted, both Mr and Ms N stated that they had observed the appellant sitting with his legs out straight in front of his body and with CD sitting between his legs. In accepting their evidence, his Honour considered the submissions made on behalf of the appellant regarding the credibility of Mr and Ms N.
I have, as required, reviewed the trial transcript and exhibits and, in doing so, carefully considered the differences in the evidence given by the appellant and Mr and Ms N on the position of the appellant's legs while he was with CD. I have also taken into account the evidence given by CD concerning how she was positioned while playing the game of Lego Batman with the appellant.
CD stated in the Visually Recorded Interview that the appellant was sitting behind her while they were playing the game and that she was sitting on his lap when he touched her vagina.[59] She was then asked, 'so tell me more about the part where you were sitting on his lap' and she replied 'um, don't know'.
[59] 2 July 2018, ts 18.
In cross‑examination, CD stated that she was sitting on the appellant's lap with her back leaning against him.[60] It was not put to her that she had been sitting on the appellant's calves but rather, her statement that she was sitting on his lap was accepted by the appellant's counsel. The question of whether she was sitting on his lap with his legs crossed or with his legs straight was not explored by further questioning.
[60] 2 July 2018, ts 24.
Having reviewed the evidence and the magistrate's reasons, I am satisfied that the finding that the appellant had been sitting with his legs straight, and with CD positioned between his legs and leaning back against his chest, was not glaringly improbable. Further, I do not consider that his Honour misused, or failed to use, his advantage as the trier of fact and it has not been demonstrated that the finding was wrong by reference to incontrovertible facts or uncontested testimony. Rather, the proposition that CD was sitting on the appellant's calves was not put to her and it was apparently accepted that she had sat on his lap. I also note that the appellant apparently accepts CD's evidence that she had been sitting between the appellant's legs in his submissions on the next issue considered below.[61]
The significance of the position of the appellant's legs
[61] Appellant's Submissions, par 124.
Mr N stated that he was concerned when he observed how the appellant and CD were positioned on the mattress. That is not surprising and there is, in my view, a relevant difference between CD and the appellant being positioned in the manner described by Mr and Ms N and CD sitting on the appellant's calves while his legs were crossed as the appellant stated.
It may be that the precise positioning of CD and the appellant was not critical to a finding of guilt given the appellant's apparent acceptance that CD was sitting on his lap at the time that he allegedly touched her. Nevertheless, the magistrate was entitled to conclude that his rejection of the appellant's evidence on this aspect was significant for the purpose of assessing the credibility of the appellant's evidence on matters that were critical to a finding of guilt. Evidence about the positioning of the appellant and CD was obviously directly relevant to the circumstances in which the offence occurred and differences in the evidence about that matter were, in my view, material to the issues to be decided and to the assessment of the credibility of the appellant.
CD's credibility
The magistrate carefully considered the submissions made on behalf of the appellant concerning CD's credibility. In particular, his Honour considered the manner in which she gave evidence during the Visually Recorded Interview; the fact that her statements in the Visually Recorded Interview were unsworn; the apparent inconsistencies in her evidence; the way in which she was questioned and her age. Further, his Honour expressly considered the answers given by CD in cross‑examination and provided reasons why he accepted CD's evidence that the appellant had touched her vagina despite her answers in cross-examination and after considering the other matters identified by counsel for the appellant as being relevant to an assessment of CD's credibility.
Again, I am satisfied that the magistrate's findings were not glaringly improbable nor were they the result of any failure to use his position as the trier of fact or any palpable misuse of his position. CD's credit was bolstered by the evidence of her complaints which, in my view, was rightly admitted. Further, the answers she gave in cross‑examination had to be seen, as the magistrate observed, in light of all of her evidence, including that given in re-examination. It was open to the magistrate to conclude ‘'the consistency between the answers given for the most part in the [Visually Recorded Interview] and in re‑examination reveal evidence of a high level of quality such that I can have a high level of confidence about the reliability and the credibility of [CD]'.[62]
The appellant's evidence
[62] 5 July 2018, ts 15.
In my view, in the complaint that the magistrate impermissibly applied a different approach to assessing the credibility and evidence of the appellant and CD cannot be sustained. As I have already concluded, it was open to his Honour to accept the evidence of CD and Mr and Ms N and to reject the appellant's evidence on his positioning while he was playing the computer game with CD. Further, that was a matter that his Honour was entitled to take into account in assessing the appellant's evidence.
The complaint that the magistrate did not identify, and make findings about, the 'crucial issues' on which he doubted the appellant's evidence is also without substance. Plainly, the magistrate's comment was a reference to his rejection of the appellant's denial that he had touched CD’s vagina. The fact that the magistrate rejected the appellant’s evidence is obvious from the finding of guilt, read with the reasons as a whole. Relevantly, his Honour gave himself a Liberato direction.
Similarly, there is no merit in the allegation that the magistrate did not consider, and make sufficient findings about, the appellant's evidence and his case generally. It is apparent from the reasons, read as a whole, that his Honour carefully considered all of the evidence and made all necessary findings of fact given the issue that he was required to decide.
Reasonable doubt
The magistrate fully and properly directed himself on the onus and standard of proof, including on the effect of the appellant's evidence and the EROI. It was apparent from the reasons that his Honour applied those directions. In particular, he determined, as he was required to do, whether he was satisfied of the appellant's guilt beyond a reasonable doubt on evidence that he had accepted as being truthful and reliable; that is, whether he was satisfied that the charge had been proven beyond a reasonable doubt despite the evidence given by the appellant and his mother. It was not necessary for the magistrate to separately refer to whether the appellant's evidence had given rise to a reasonable doubt.
The adequacy of the magistrate's reasons
I noted earlier that grounds 1.1 to 1.5 are concerned with the substance of the magistrate's findings rather than challenging his Honour's decision on the ground that the reasons did not satisfy the requirement imposed by s 120 CPA. However, for the sake of completeness and to avoid any doubt, I should add that, in my view, there is no basis for a complaint that the reasons did not fully satisfy the obligation to identify the principles of law that were applied and the findings of fact that were made and to disclose the intellectual processes by which his Honour reasoned to a finding of guilt.
Ground 1.1
Ground 1.1 of the appeal notice alleges that the magistrate's reasons 'do not adequately reveal that his Honour properly considered the evidence adduced by the defence'. In my view, that ground has not been made out.
The primary issue the magistrate was required to decide was whether the appellant had touched CD's vagina. That issue substantially turned on credibility findings. The magistrate fully identified the findings of fact that he had made and adequately explained how he had made those findings. In doing so, his Honour engaged with each party's case; in particular, he considered and made findings about the appellant's defence.
Ground 1.2
Ground 1.2 alleges that the magistrate's reasons 'do not adequately reveal that his Honour properly considered each of the elements of the offence and the evidence supported proof beyond a reasonable doubt'.
The Appellant's Submissions on that ground were:
The reasons in summary were that because the Magistrate did not believe [the appellant] in relation to the location or position of his legs that led him to have doubts about this evidence. This reasoning does not display an adequate application of what findings of fact he has relied upon to determine the guilt of the appellant.[63]
[63] Appellant's Submissions, par 133.
As previously noted, the appellant does not contend that the magistrate erred in identifying the elements of the offence. The magistrate made findings about the circumstances in which the offence was allegedly committed and made credibility based findings by which he accepted CD's evidence that the appellant had touched her vagina and rejected the appellant’s denial, having accepted the evidence of Mr and Ms N on the position of the appellant while he was with CD and rejecting the appellant's evidence on that matter. Those findings were open to his Honour for the reasons given above. Further, the path taken by his Honour to reach a finding of guilt was clearly and sufficiently explained.
In my view, it was open to the magistrate to be satisfied beyond a reasonable doubt that the appellant was guilty of the charge alleged on a consideration of the whole of the evidence. I do not consider that it would be dangerous to permit the verdict to stand based on my independent assessment of the evidence and having regard to the advantage that the magistrate had in assessing the witnesses and the evidence as a whole in a case that substantially turned on credibility.
Ground 1.3
Ground 1.3 alleges that the magistrate's reasons 'do not adequately reveal that his Honour properly considered whether there were any inferences reasonably open that were favourable to the appellant that support his acquittal'.
The submissions in support of that ground contended that the position of the appellant's legs was not significantly material to the question of whether the appellant had indecently touched CD and a finding that his legs were straight and not crossed could not provide a basis for doubting his evidence on other issues. It was also alleged that it could be reasonably inferred that the appellant had his legs crossed for some time while he was with CD and straight at other times.
The significance of the positioning of the appellant's legs and the differences in his evidence and that given by Mr and Ms N on that matter have already been considered. Further, the appellant's evidence was that his legs were crossed at all times while he was in the bedroom with CD. That was also the effect of the statements he made in his EROI. It was never part of the appellant's case that he had at some point straightened his legs.
Grounds 1.4 and 1.5
Ground 1.4 alleges that the magistrate's reasons 'do not adequately reveal that his Honour properly considered the evidence of the appellant in his account in the video record of interview'. The Appellant's Submissions in support of this ground contend that:
(a)the magistrate did not make any findings about what were the crucial issues on which he doubted the appellant's evidence;
(b)the magistrate did not make 'a determination of what findings he has made in relation to the appellant's evidence';
(c)the magistrate did not deal with the issue of whether the appellant's evidence had given rise to a reasonable doubt.[64]
[64] Appellant's Submissions, par 136 ‑ 138.
Ground 1.5 alleges that the magistrate's reasons 'do not adequately reveal that his Honour properly considered whether the account of the appellant in the electronic record of interview together with his evidence did not give rise to a reasonable doubt about the truthfulness of the complainant's evidence'. No separate written submission was made in respect of ground 1.5.
The issues raised in these grounds have already been considered. There is no merit in the allegations that the magistrate failed to fully and properly consider the appellant’s evidence or that he did not apply the directions that he gave about the onus and standard of proof, including the Liberato direction.
Ground 1.6
Ground 1.6 alleges that the magistrate's reasons 'indicate that undue weight was given by the magistrate to the discrepancy between the evidence of the appellant about whether his legs were crossed or straight in contrast to the evidence of other witnesses'.
No separate submission was made in support of this ground. The ground alleges only a weighting error. As I have already explained, I consider that it was open to the magistrate to make an adverse finding about the appellant’s credit based on the findings his Honour made about the positioning of the appellant and CD. In my view, the difference in the evidence of Mr and Ms N and the appellant was not inconsequential.
To the extent that this ground was intended to form part of a wider submission that the verdict was not supported by the evidence, I have concluded that it was open to the magistrate to be satisfied beyond a reasonable doubt that the appellant was guilty of the charge alleged against him on an independent assessment of the evidence having regard to the issue to be decided and bearing in mind his Honour's advantage as the trier of fact in assessing the witnesses and the evidence as a whole.
Grounds 1.7 and 1.8
Ground 1.7 alleges that the magistrate did not 'place adequate weight on the fact that the child stated in cross‑examination that the appellant had not touched her'. This ground, and ground 1.8, should be considered together. Ground 1.8 alleges that the magistrate erred 'in accepting the evidence of [CD] having regard for the very significant inconsistencies in her evidence, the fact that she gave unsworn evidence and her age'.
For the reasons that have already been given, it was open to the magistrate to accept CD's evidence that the appellant had touched her on her vagina notwithstanding the answers she gave in cross‑examination and the other matters to which ground 1.8 referred.
Ground 1.9
Ground 1.9 alleges that the magistrate 'did not give proper weight to the DNA evidence'. The Appellant's Submissions noted that the magistrate found that the 'DNA report did not assist the prosecution case. Its weight is negligible'.[65] The appellant submitted that:
The difficulty with the magistrate's reasons is that it is now not possible to conclude what weight the magistrate has placed on this evidence. By stating that it is negligible is not sufficient (sic). Clearly it must have had some weight and that weight in the context of these proceedings was a matter that the magistrate necessarily had to take into account. It could not simply be discounted as being negligible and no weight being placed on it at all.[66]
[65] 5 July 2018, ts 17.
[66] Appellant's Submissions, par 141.
In my view, that submission reflected an approach to the language employed by the magistrate that Martin CJ cautioned against in Strahan.[67] His Honour noted that there were a number of reasons why a DNA profile might not be recovered and referred to examples for why that may be so that were provided in Mr Fuller's report. It is plain that the magistrate disregarded the DNA evidence for the reasons that he provided. It was open to the magistrate to conclude that the DNA evidence neither assisted the prosecution nor raised a reasonable doubt about the appellant’s guilt given the evidence of Mr Fuller that there was no expectation that DNA would be found on any seized item and having regard to the evidence as a whole.
[67] Strahan v Brennan [2014] WASC 190.
The appeal against sentence
Grounds 3 to 5 of the appeal notice allege that the magistrate erred in making the Second IYSO. In particular, it is alleged that:
(a)the magistrate erred in concluding that the Second IYSO was the only appropriate sentence;
(b)the magistrate erred in failing to consider whether a team referral or a youth supervision order was the appropriate sentence having regard to the appellant's age, his antecedents and the presentence and psychological reports;
(c)the sentence was excessive any regard to the appellant's age, antecedents in the circumstances of the offence.
The appellant made no written submissions on these grounds of appeal or in respect of the appeal against sentence generally other than to add in the Appellant’s Submissions a supposed ground of appeal that was not pleaded in either the initial or amended notice of appeal: that the magistrate erred in failing to exercise his discretion with a predisposition towards referring the appellant to a juvenile justice team.
The appellant was sentenced on 19 October 2018 with the period of the Second IYSO the 5 months and 2 days. Consequently, the appellant had completed the Second IYSO well before the hearing of the appeal (there being no suggestion that he had not successfully completed the order). That may explain why no submissions were made by the appellant on the appeal against sentence.
The respondent dealt with the appeal against sentence in his written submissions. In summary, it was submitted that:
(a)at the sentencing hearing, the appellant’s counsel had submitted that the appropriate sentence was a youth community based order; no submission was made to the effect that the appellant should be referred to a juvenile justice team;
(b)the magistrate observed that a youth community‑based order and an intensive youth supervision order were 'eventually analogous' and counsel for the parties did not demur from that proposition;
(c)the magistrate concluded that an intensive youth supervision order was the appropriate disposition having regard to the age of CD;
(d)the appellant's offending was opportunistic and not of long duration but was, nevertheless, serious offending having regard to the difference in the ages of the appellant and CD and the vulnerability of CD;
(e)the Second IYSO was ordered to be served concurrently with the First IYSO and the sentence could not be characterised as manifestly excessive in those circumstances;
(f)the magistrate was not required to sentence on a predisposition to referring the appellant to a juvenile justice team;
(g)in any event, the appellant had not accepted responsibility for the offending, including by denying the offending to the report writers so that he was not eligible to be referred to a juvenile justice team under s 25(4) of the Young Offenders Act 1994 (WA); the appellant had been found guilty of the offence and so could not be referred to a juvenile justice team by the magistrate under s 28 of the Young Offenders Act; the conviction was not the appellant's first conviction for sex offending and he had been found guilty of a serious offence.
There is no merit in the appeal in sentence for the reasons submitted by the respondent, to which I would add that there were some matters in the reports reviewed by the court that indicated that the appellant would have benefitted from some personal counselling. An intensive youth supervision order was an appropriate sentence having regard to the nature and seriousness of the appellant's offending and his age. That would be so even if the appellant's conviction for the Second Charge was his first conviction. The appellant could not be referred to a juvenile justice team in light of s 25(4) and s 28 of the Young Offenders Act.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LW
Associate to the Honourable Justice Jenkins13 MARCH 2020
0
21
2