Conquista v Pennuto

Case •

[2021] WASC 73

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   CONQUISTA -v- PENNUTO [2021] WASC 73

CORAM:   MCGRATH J

HEARD:   12 OCTOBER 2020

DELIVERED          :   19 MARCH 2021

FILE NO/S:   SJA 1096 of 2019

BETWEEN:   RENATO DICIERTO CONQUISTA

Appellant

AND

TARYN LEIGH PENNUTO

Respondent

ON APPEAL FROM:

Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram:   MAGISTRATE TAVENER

File Number            :   MI 6095 of 2018


Catchwords:

Criminal law - Magistrates Court - Appeal against conviction - Whether Magistrate erred in fact by excluding possibility of secondary transfer of DNA material - Whether appellant prejudiced by failure of prosecution to call a witness

Legislation:

Criminal Appeals Act 2004 (WA), s 8, s 9
Criminal Code (WA), s 323

Result:

Leave to appeal not granted on grounds 1 and 2
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant : Mr F P Merenda
Respondent : Mr T B L Scutt

Solicitors:

Appellant : Paxman & Paxman
Respondent : Director of Public Prosecutions (WA)

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

Nguyen v The Queen [2020] HCA 23

R v Apostilides (1984) 154 CLR 563

Richardson v The Queen (1974) 131 CLR 116

Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

Shepherd v The Queen (1990) 170 CLR 573

Walsh v The State of Western Australia [2011] WASCA 119

Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657

MCGRATH J:

  1. On 26 June 2019, the appellant was convicted, after trial in the Magistrates Court, of one offence of unlawful and indecent assault contrary to s 323 of the Criminal Code (WA).

  2. The appellant appeals the conviction on two grounds.  First, the appellant contends that there has been a miscarriage of justice in the conduct of the trial arising from the failure of the prosecution to call a witness.  Second, that the learned magistrate made an express error in his reasoning in respect of the DNA evidence by not properly determining whether there was a secondary transference of the forensic material.

  3. For the following reasons, I have determined that leave to appeal should not be granted and that the appeal should be dismissed.

  4. In these reasons for decision I will consider the following:

    1.The Magistrates Court proceedings.

    2.The grounds of appeal.

    3.The evidence received at trial.

    4.An assessment of the merits of the appeal.

Magistrates Court proceedings

  1. On 10 May 2018 the appellant was charged that on 15 January 2018 he unlawfully and indecently assaulted a 17‑year‑old female (the Complainant), contrary to s 323 of the Criminal Code.[1]

    [1] Prosecution Notice charge number MI 6095/2018.

  2. The prosecution's case was that the Complainant was employed as a shop attendant.  The appellant, the father of the manager of the retail business, approached the Complainant at the shop and put his open hand on her right thigh.  The appellant then moved his hand up her leg and touched the Complainant's vagina for a few seconds.  The appellant then used the Filipino word for delicious and asked the Complainant if he could touch her again.  The appellant again reached towards the Complainant's vagina.  The Complainant resisted by using both hands.  The Complainant immediately made a complaint and was taken to the police who then commenced an investigation.

  3. On 22  May 2018 the appellant appeared in the Midland Magistrates Court and pleaded not guilty to the charge of unlawful and indecent assault.  On 27 February 2019, 29 March 2019, 7 May 2019 and 23 May 2019 the trial was held. 

  4. On 26 June 2019 the learned magistrate convicted the appellant of the offence.  The learned magistrate found that the Complainant was a credible and reliable witness who acted after the incident in a manner consistent with being indecently assaulted.  The learned magistrate accepted that the evidence of recent complaint made immediately after the incident 'buttresses her credibility'.[2]  The learned magistrate stated that the finding of the DNA of the appellant on the crotch area of the Complainant's leggings 'confirmed the evidence' of the Complainant.

    [2] ts 14 (26/06/2019).

  5. On 3 July 2019 the learned magistrate imposed an $8,000 fine for the offending. 

Grounds of appeal

  1. The appellant relies upon two grounds of appeal in the following terms:[3]

    [3] Appellant's Further Amended Appeal Notice filed 7 October 2020.

    1.The prosecutor's failure to call the witness, Ms Melanie Massey, occasioned a miscarriage of justice.

    2.The Magistrate erred in fact by finding that the possibility of secondary transfer of the Appellant's DNA to the Complainant's leggings could be excluded.

    Particulars

    (a)The Magistrate approached the DNA evidence on the basis that he needed to exclude the possibility of secondary transfer in order to rely on it.

    (b)The Magistrate found that the possibility of secondary transfer of the Appellant's DNA to the Complainant's leggings could be excluded and, in so doing, found that the DNA came to be deposited to the Complainant's leggings by way of the Appellant touching the Complainant.

    (c)Having regard to the evidence as a whole, it was not open to the Magistrate to find that the possibility of secondary transfer could be excluded.

    (d)Having excluded the possibility of secondary transfer, the Magistrate's reliance on the DNA evidence then became an integral piece of evidence for the purposes of finding that the prosecution case had been proved beyond reasonable doubt.

  2. This is an appeal under pt 2 of the Criminal Appeals Act 2004 (WA), which means that leave to appeal is required.[4]  An appeal may be made on the basis that the court of summary jurisdiction made an error of law or fact, or both law and fact, acted without or in excess of jurisdiction, imposed a sentence that was inadequate or excessive, or that there has been a miscarriage of justice.[5]

    [4] Criminal Appeals Act 2004 (WA), s 9(1).

    [5] Criminal Appeals Act 2004 (WA), s 8.

  3. The court must not grant leave to appeal unless a ground has a reasonable prospect of success.[6]  A reasonable prospect of success means that the ground has a real, rational and logical prospect of succeeding and is more than arguable.[7]  The court may dismiss or allow the appeal.[8]

    [6] Criminal Appeals Act 2004 (WA), s 9(2).

    [7] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler & Roberts‑Smith JJA).

    [8] Criminal Appeals Act 2004 (WA), s 14.

Evidence at trial

  1. The prosecution called five witnesses being Mr Kynan Rhys Fuller,[9] a Pathwest DNA expert; Mr AD,[10] the father of the Complainant; the Complainant;[11] First Class Constable James Alan Pearce;[12] Ms AD, the mother of the Complainant;[13] Constable Finn Alan Cunningham;[14] and Constable Tarryn Lee Pennuto.[15]  The defence called two witnesses being Ms Annalise Stevens,[16] an employee, and Ms Melanie Massey,[17] the appellant's daughter.

    [9] ts 6 - 26 (27/02/2019).

    [10] ts 27 - 36 (27/02/2019); Affidavit of Ms Elissa Ann Cesari affirmed 26 March 2020, Annexure A, B, 5 - 8.

    [11] ts 4 - 37 (29/03/2019); Affidavit of Ms Elissa Ann Cesari affirmed 26 March 2020, Annexure C, D, 9 - 21.

    [12] ts 2 - 10 (07/05/2019).

    [13] ts 11 - 25 (07/05/2019).

    [14] ts 25 - 31 (07/05/2019).

    [15] ts 31 - 39 (07/05/2019).

    [16] ts 46 - 59 (07/05/2019).

    [17] ts 60 - 78 (07/05/2019).

  2. The evidence-in-chief of the Complainant and the cross‑examination of Mr AD were not transcribed due to a failure with the court's recording equipment.  The parties agreed that the affidavit of the prosecutor, Ms Elissa Ann Cesari, affirmed 26 March 2020, provides an accurate outline of the evidence of both witnesses.[18] Further, the parties agreed that the report provided by the learned magistrate pursuant to s 40(1)(h) of the Criminal Appeals Act was also an accurate outline of the evidence of both witnesses.  Accordingly, I will accept the outline of evidence provided by Ms Cesari and the learned magistrate as accurate and will rely upon the respective outlines in determining this appeal.

    [18] Affidavit of Ms Elissa Ann Cesari affirmed 26 March 2020.

  3. I will now outline the scope of each of the respective witnesses' testimony at trial.

Prosecution case - witnesses

The Complainant

  1. The Complainant gave evidence that she had been employed at the shop for approximately four years, working three to four shifts a week.[19]  At 2.00 pm on 15 January 2018 the Complainant commenced her working shift.  The Complainant was wearing her shop shirt and black pants which she washed after every shift.[20]  The Complainant stated that earlier in her shift she had a conversation with the appellant, who she knew as 'Mengboy', concerning the fact that he and his daughter, Ms Massey, were buying an island.[21]

    [19] ts 7 (29/03/2019).

    [20] Affidavit of Ms Elissa Ann Cesari, 17.

    [21] Affidavit of Ms Elissa Ann Cesari, 18.

  2. The Complainant stated that at approximately 6.00 pm a new employee at the store, Ms Annalise Stevens, commenced her shift.  At that time the Complainant took a meal break in the backroom where she sat on a chair facing the wall.  At that time the appellant sat on a bucket with a cushion which was his normal seating preference.  There was discussion at that time about the appellant and Ms Massey buying an island.

  3. The Complainant stated that the appellant slid over on his bucket and told her that there was a hole in her leggings, which he touched.  The Complainant stated that she felt uncomfortable and accordingly went to help Ms Stevens before returning to finish her meal.[22]  The Complainant returned to her seat in the backroom.  At that time the appellant slid his bucket over and put his hands on her thigh, and moved one hand upwards to her inner thigh to the outer wall of her vagina.  At that time the appellant stated 'ooh' and rubbed the outer area of her vagina.  The Complainant stated that she pushed him off and he said the word 'sarap' which means delicious in the language Tagalog.  The Complainant stated that the appellant asked if he could 'feel it again'.  As he uttered those words the Complainant stated that he touched her again by holding her wrist and moving his other hand towards her vagina by touching her inner thigh and moving towards that area.  The Complainant pushed him away and moved towards the door.[23]

    [22] Affidavit of Ms Elissa Ann Cesari, Annexure D, 18 ‑ 19.

    [23] Affidavit of Ms Elissa Ann Cesari, Annexure D, 19.

  4. The Complainant then moved away from the area at which time the appellant said it was soft and 'tambok' which she understood to mean her private parts were soft and perky.[24]  The Complainant stated that the appellant further stated that 'he wouldn't be able to sleep' that night because he had touched her.

    [24] Affidavit of Ms Elissa Ann Cesari, Annexure D, 21.

  5. The Complainant stated that she retrieved her phone and telephoned Ms Massey and said the words 'Mengboy'.  Ms Massey asked what Mengboy did, to which the Complainant could not answer.

  6. The Complainant then telephoned her father and told him that the appellant had touched her.[25]  The parents of the Complainant arrived at the premises whilst the Complainant was still inside the toilet.  The parents then took the Complainant by vehicle to the police station and made the complaint.  The Complainant recalled that when she was in the vehicle the appellant approached the vehicle and knocked on the window.[26]

    [25] Affidavit of Ms Elissa Ann Cesari, Annexure D, 20.

    [26] Affidavit of Ms Elissa Ann Cesari, Annexure D, 21.

  7. In cross‑examination counsel for the appellant put to the Complainant that the touching did not occur at all.[27]  Further, the evidence of the Complainant was challenged on the basis that she was untruthfully making allegations in order to seek monetary compensation.  The Complainant denied that allegation.  The Complainant was cross‑examined about an application made for compensation on her behalf.[28]  She was shown a document headed 'Australian Human Rights Commission making claim for lost wages, payment of ongoing medical expenses and for emotional stress, pain and suffering.'[29]  The Complainant stated that her parents and the person representing her made the claim.[30]  The Complainant denied being motivated to seek compensation.  Rather, she provided a statement to a friend who was assisting with the application at the request of her parents.[31]  The Complainant maintained she did not understand that the application was for monetary compensation.[32]

    [27] ts 20 (29/03/2019).

    [28] ts 30 ‑ 34 (29/03/2019).

    [29] Exhibit 11 tendered at the trial.

    [30] ts 32 ‑ 33 (29/03/2019).

    [31] ts 31 - 33 (29/03/2019).

    [32] ts 31 (29/03/2019).

  8. During cross‑examination counsel for the appellant examined the Complainant in respect of contended discrepancies concerning her statement to the police and the account given during her evidence‑in‑chief.  This included the fact she had not mentioned anything in her written statement to the police about her mother having gone into the store to yell at the appellant or that the appellant had approached her parents' vehicle while she was inside the vehicle.[33]

    [33] ts 26 - 27 (29/03/2019).

  9. The Complainant was further challenged about the fact that she did not say anything to Ms Stevens about the allegation before she went into the toilet.  That is, there was a failure to complain.[34]  The Complainant stated that she did not tell Ms Stevens but did tell the appellant that she was going to telephone her father.[35]  The Complainant stated that she telephoned Ms Massey crying stating that Mengboy had done something.[36]

    [34] ts 23 (29/03/2019).

    [35] ts 24 (29/03/2019).

    [36] ts 24 (29/03/2019).

  10. Further, the Complainant did not recall her mother making threats to the appellant upon her arrival at the premises. 

Mr AD (father of the Complainant)

  1. Mr AD gave evidence that at approximately 6.00 pm on 15 January 2018 he received a telephone call from the Complainant.  The Complainant was crying and stated 'Daddy, Mengboy touched my vagina'.[37]  Mr AD stated that Mengboy was the name by which he knew the appellant.  The Complainant told her father that she was in the toilet at her work.  Mr AD then travelled to the premises with his wife and other daughter. 

    [37] ts 29 (27/02/2019).

  2. Mr AD stated that upon arriving at the premises he observed the Complainant upset and crying.[38]  At that time the Complainant was speaking on her mobile phone to Ms Massey, the daughter of the appellant.[39]  Mr AD then walked his daughter to his vehicle.  The appellant followed and knocked on the driver's window.  There was no conversation.  Mr AD took the Complainant directly to the police station, arriving approximately six or seven minutes later.[40]

    [38] ts 33 (27/02/2019).

    [39] ts 33 (27/02/2019).

    [40] ts 35 (27/02/2019).

  3. In cross-examination, Mr AD stated that the appellant did not speak.[41]  He gave evidence that his wife was shouting but denied that she stated 'you raped my daughter' or that 'you will pay big money'.  Further, he did not accept that his wife and other daughter told the Complainant what to tell the police.[42]  He stated that the Complainant did not claim workers' compensation. 

Mrs AD (the Complainant's mother)

[41] Affidavit of Ms Elissa Ann Cesari, Annexure B, 7.

[42] Affidavit of Ms Elissa Ann Cesari, Annexure B, 8.

  1. Mrs AD gave evidence that at approximately 6.30 pm on 15 January 2018 her husband received a telephone call from the Complainant.  As a result of the telephone call she immediately travelled to the premises.  Mrs AD stated that the Complainant was locked in the toilet crying.  Mrs AD stated that she 'cursed' the appellant upon arrival stating that he was trusted and that he was going to be reported to the police.  The mother took the Complainant to the vehicle, whilst awaiting the arrival of a woman friend, before going to the police station.  Whilst inside the vehicle the Complainant said 'Mum, it's Mengboy.'[43]  At that time the Complainant looked scared.[44]

    [43] ts 12 (07/05/2019).

    [44] ts 19 (07/05/2019).

  2. In cross-examination, Mrs AD stated that she did not give answers when the police were speaking to the Complainant.  The Complainant gave answers.  She stated that she was unaware of whether the Complainant sought compensation.  Her husband and a person named Mr Rays, a Human Resources Professional, had a meeting with the Complainant.[45]  Mrs AD was shown the Human Rights Commission claim form but confirmed that she had never seen the document before and that she had no input into the content of the document.

Mr Kynan Fuller

[45] ts 21 ‑ 22 (07/05/2019).

  1. Mr Kynan Fuller, a forensic scientist with the PathWest Forensic Biology Laboratory,[46] received a reference DNA from the appellant.  In addition, the PathWest laboratory received the Complainant's leggings.[47]  A sample was taken from the outside crotch surface of the leggings and analysed for DNA.  From that sample a mixed DNA profile, which was consistent with coming from two individuals, was recovered.

    [46] ts 7 (27/02/2019).

    [47] ts 7 (27/02/2019).

  2. Mr Fuller stated that two hypotheses were then compared.  The first hypothesis was that the Complainant and the appellant were both contributors to the mixed DNA profile.  That hypothesis was then compared to the second hypothesis that the Complainant and an unknown individual were both contributors.  Following this comparison between the two hypotheses, the DNA evidence was that it was 51 million times more likely to have occurred if the Complainant and the appellant were both contributors.[48]

    [48] ts 9 (27/02/2019).

  3. During his examination‑in‑chief Mr Fuller stated that DNA can be transferred by two methods, the first being the direct method which is a primary transfer and the second being the indirect or secondary transfer.[49]  Mr Fuller stated there are a number of factors that can affect transfer.  For example, smooth shiny surfaces are shown to retain less DNA than rough abrasive surfaces.  The strength and duration of the contact is also a relevant factor.  The individual handler's characteristics is also a relevant consideration.  For example, at any given time a person may have more or less DNA on their hands than at other times.  Mr Fuller was asked whether DNA located on a seat could be transferred to a person by secondary transfer.  Mr Fuller stated that if 'DNA was present on a seat and the - and any area that was sampled came into contact with the seat transfer is possible'.[50]  Mr Fuller stated that he could not say the likelihood of such a secondary transfer given that there are many factors that will affect whether there will be a secondary transfer of DNA.

    [49] ts 10 (27/02/2019).

    [50] ts 12 (27/02/2019).

  4. In cross‑examination Mr Fuller accepted that secondary transfer could occur when one part of the leggings comes into contact with another part of the leggings.  This secondary transfer of DNA could occur when the leggings were placed into or removed from the bag for analysis.[51]

    [51] ts 19, 23 (27/02/2019).

  5. With respect to the possibility of secondary transfer from a cotton item of clothing, such as the leggings, Mr Fuller stated there was scientific research that found that cotton was a good conduit for deposited DNA to be subject to secondary transfer.[52]  During cross‑examination Mr Fuller was shown a photograph of a cushion from the rear of the shop.  Mr Fuller agreed that DNA would be more likely to transfer to such a surface.[53]  Mr Fuller qualified that statement by stating that DNA would be less likely to be removed from such a surface.  He agreed that a pair of cotton pants would have 'better qualities than a smooth shiny surface' for removing DNA from such a surface.[54]  Mr Fuller agreed that the more contact a person had with a surface and the more pressure that was exerted, for example sitting on a cushion, the more likely the event of DNA transfer would occur.[55]

First Class Constable James Pearce

[52] ts 21 (27/02/2019).

[53] ts 24 (27/02/2019).

[54] ts 24 (27/02/2019).

[55] ts 24 (27/02/2019).

  1. First Class Constable James Pearce gave evidence that at approximately 7.00 pm on 15 January 2018 the Complainant presented at the Midland Police Station.[56] First Class Constable Pearce stated that the Complainant was very upset and 'almost hysterical where she couldn't - she couldn't really talk to me'.[57]  At that time the Complainant gave an initial account to the police being that the appellant had touched her in the crotch area.  The word used by the Complainant was 'crotch'.[58]  First Class Constable Pearce recalled that he understood that the Complainant stated that it happened a second time and that the appellant put his hand on the crotch and rubbed her in the crotch area.[59]  Constable Cunningham took the statement of the Complainant.

    [56] ts 3 (07/05/2019).

    [57] ts 3 (07/05/2019).

    [58] ts 4 (07/05/2019).

    [59] ts 4 (07/05/2019).

  2. First Class Constable Pearce stated that he seized the leggings that the Complainant was wearing when she entered the police station for DNA purposes.  First Class Constable Pearce seized the leggings 15 minutes after the Complainant presented at the police station for the reason that he had commenced taking the initial complaint.[60]  First Class Constable Pearce stated that he used fresh gloves and a clean brown paper bag and requested that the Complainant enter the female toilets at which time she took off the leggings and placed them in the brown paper bag and gave it to the officer.

    [60] ts 5 (07/05/2019).

  3. In cross‑examination First Class Constable Pearce stated that the Complainant did not wear gloves at the time that she removed her leggings.  Further, that the Complainant put the pants into the bag and it was subsequently sealed.[61]

Constable Finn Cunningham

[61] ts 9 ‑ 10 (07/05/2019).

  1. Constable Finn Cunningham gave evidence that at approximately 7.00 pm on 15 January 2018 the Complainant presented at the Midland Police Station.  Constable Cunningham met with the Complainant who presented as distraught.[62] Constable Cunningham took the statement from the Complainant over a period of approximately an hour and a half.[63]  During the taking of the statement the Complainant's mother and an adult female, who were present for support purposes, did not provide any input except when the mother clarified some words.

Constable Tarryn Pennuto

[62] ts 27 (07/05/2019).

[63] ts 27 (07/05/2019).

  1. On 17 January 2019 Constable Tarryn Pennuto asked Ms Melanie Massey, the daughter of the appellant, whether she wished to provide a statement to police.[64]

    [64] ts 33 (07/05/2019).

  2. On 30 January 2019 Constable Pennuto received an email from Ms Massey requesting that the officer telephone her.  Subsequently on 30 January 2019 Constable Pennuto telephoned Ms Massey who stated that she did not wish to give a statement and that she had been advised by her lawyer not to make any contact or speak with the police.[65]

    [65] ts 33 (07/05/2019).

  3. On 5 February 2019 Constable Pennuto received communication from Ms Massey stating that she had typed her own statement which she handed to Constable Pennuto on 5 February 2019.[66]  Constable Pennuto then arranged for the statement to be typed into standard 'police format' but in using the exact words that Ms Massey provided in her statement.

    [66] ts 33 (07/05/2019).

  4. In cross‑examination Constable Pennuto stated that she became aware that there was another employee working at the premises but was never provided with any details concerning that person.[67]  Accordingly, Constable Pennuto did not speak to the other employee.

Defence case - witnesses

Annalise Stevens

[67] ts 38 (07/05/2019).

  1. Ms Annalise Stevens gave evidence that she was 16 years of age and an employee at the shop.[68]  On 15 January 2018 Ms Stevens commenced her working shift at 6.00 pm.  This was Ms Stevens' first shift since commencing employment at the shop.

    [68] ts 46 (07/05/2019).

  2. Ms Stevens stated that she recalled that the appellant was seated on a bucket near the doorway leading to the backroom.  The Complainant was seated in the back room further away from the appellant.  Ms Stevens stated that whilst she could observe where the Complainant was seated she did not have a line of sight at all times.  Ms Stevens said that she did not notice anything unusual whilst the appellant and the Complainant were eating dinner in the backroom area.[69]  Ms Stevens could not recall whether the appellant moved from his position in the doorway leading into the backroom.[70]

    [69] ts 50 (07/05/2019).

    [70] ts 51 (07/05/2019).

  3. Ms Stevens gave evidence that she observed the Complainant go towards the toilet and about 10 minutes later she observed the Complainant in the corridor outside of the store.  The Complainant was speaking on her mobile phone and was crying.[71]  Ms Stevens said a short time later other people arrived at the store including the Complainant's mother.  In cross‑examination, Ms Stevens stated that she was not focused on what was occurring in the backroom but rather learning her new role as an employee of the store.  Ms Stevens stated that it was possible that the appellant moved places in the backroom without her noticing.[72]

Melanie Massey

[71] ts 51 (07/05/2019).

[72] ts 55 ‑ 56 (07/05/2019).

  1. Ms Melanie Massey gave evidence that she was the daughter of the appellant who is known as 'Mengboy'.[73]  Ms Massey stated that she was the manager of the business and that the Complainant had been working with her as an employee for approximately four years.  Ms Massey stated that on 15 January 2018 the appellant was seated on a tub at the back of the premises and fell backwards and hit his head on a back cupboard.  At the time that that happened the Complainant was standing at the entrance door and she inquired whether the appellant was okay.[74]  At the time that the appellant was seated on the tub, in the presence of the Complainant, there was a discussion about the purchase of an island in the Philippines.  The Complainant was sitting down at the time that the discussion occurred concerning the purchase of the island.[75]

    [73] ts 60 (07/05/2019).

    [74] ts 61 (07/05/2019).

    [75] ts 63 (07/05/2019).

  2. Ms Massey stated that at approximately 6.30 pm she received a call from the Complainant during which the Complainant addressed her as 'Tita' which means 'aunty'.  At that time the Complainant stated 'Tita, it's Mengboy'.  Ms Massey was concerned that the appellant was ill and inquired as to how her father was.[76]  The Complainant did not respond because Ms Massey kept speaking.  However, the Complainant then stated 'it's actually me that Mengboy - he's ok'.[77]  At that time the Complainant then stated 'Menboy's ok.  It's just Mengboy touch my leg'.  To that statement Ms Massey asked 'why he's touching your leg?'.[78]

    [76] ts 64 (07/05/2019).

    [77] ts 64 (07/05/2019).

    [78] ts 64 (07/05/2019).

  3. Counsel for the appellant at trial asked whether the Complainant said anything more at that time, to which Ms Massey stated 'No, because I said to her, look, just hang up.  I'm coming there.  I'm - me and Chris and Shaun will be there.'[79]

    [79] ts 64 (07/05/2019).

  4. Ms Massey stated that at approximately 6.44 pm, whilst in her vehicle travelling to the premises, she called the Complainant and told her that she was 10 minutes away from the store and that she should stay where she was.  Ms Massey stated that the Complainant's voice at that time was 'like, scared'.[80]  Further, the Complainant was crying.  Ms Massey asked the Complainant why she was crying but she was unable to hear the answer because of background noise.  At that time the Complainant stated that her mother was with her.[81]  Ms Massey stated that she told the Complainant to stay where she was, that she was on the way and 'if you're really that scared, we will call the police right there'.[82]

    [80] ts 65 (07/05/2019).

    [81] ts 65 (07/05/2019).

    [82] ts 66 (07/05/2019).

  5. Upon arrival Ms Massey stated that the appellant was shocked, and that the Complainant had left the premises.[83]  Ms Massey gave evidence that the appellant normally sat on a white bucket with a tan coloured cushion at the back of the premises.[84]

    [83] ts 66 (07/05/2019).

    [84] ts 68; (07/05/2019); Exhibit 3, white bucket with a tan-coloured cushion on it.

  6. In cross‑examination Ms Massey stated that she was told that Mengboy had touched the Complainant's leg.  Further, in the subsequent telephone call, she could not understand what was being stated by the Complainant.

  7. In cross‑examination Ms Massey stated she did not recall whether she declined to give a statement on 17 January 2019 but that ultimately she provided her own statement on 5 February 2019.[85]

    [85] ts 70 (07/05/2019).

  8. In cross‑examination Ms Massey did not accept that she had knowledge of the evidence that the prosecution was relying upon.  However, she was aware that DNA had been located on the Complainant's leggings.  Ms Massey said that after her father fell backwards he stood up and that at that time the Complainant walked in and sat on the bucket from which he had just fallen.[86]  In cross‑examination Ms Massey denied that the only person who ever sat on the bucket was her father.  Further, Ms Massey denied that she gave evidence concerning the appellant falling from the bucket and then the Complainant immediately sitting on it as evidence to explain away the DNA being found on the Complainant's leggings.[87]

    [86] ts 71 (07/05/2019).

    [87] ts 72 (07/05/2019).

  9. Ms Massey was further asked in cross-examination how she could remember the change in the positions on the bucket when she first gave a written statement over a year after the event.  To that answer Ms Massey stated 'I know what happened that day'.[88]

    [88] ts 73 (07/05/2019).

Assessment of the merits of the appeal

Ground 1

  1. By ground 1 the appellant contends that the prosecutor's failure to call a witness, namely Ms Melanie Massey, occasioned a miscarriage of justice.

Legal principles

  1. In R v Apostilides[89] the High Court stated that the following principles are applicable to the responsibility of the prosecution to call witnesses at trial:[90]

    (1)The Crown prosecutor alone bears the responsibility of deciding whether a person will be called as a witness for the Crown.

    (2)The trial judge may but is not obliged to question the prosecutor in order to discover the reasons which lead the prosecutor to decline to call a particular person.  He [or she] is not called upon to adjudicate the sufficiency of those reasons.

    (3)Whilst at the close of the Crown case the trial judge may properly invite the prosecutor to reconsider such a decision and to have regard to the implications as then appear to the judge at that stage of the proceedings, he [or she] cannot direct the prosecutor to call a particular witness.

    (4)When charging the jury, the trial judge may make such comment as he [or she] then thinks to be appropriate with respect to the effect which the failure of the prosecutor to call a particular person as a witness would appear to have had on the course of the trial.  No doubt that comment, if any, will be affected by such information as to the prosecutor's reasons for his [or her] decision as the prosecutor thinks it proper to divulge.

    (5)Save in the most exceptional circumstances, the trial judge should not himself [or herself] call a person to give evidence.

    (6)A decision of the prosecutor not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice.

    [89] R v Apostilides (1984) 154 CLR 563.

    [90] R v Apostilides (1984) 154 CLR 563, 575.

  2. The prosecution bears the responsibility of deciding whether a person will be called as a prosecution witness.[91]  In general the prosecution should call all available witnesses whose evidence is necessary to unfold the narrative and give a complete account of the events upon which the prosecution is based.[92]  There may be legitimate reasons why the prosecution does not call a witness.  The failure to call a witness does not necessarily mean that there has been a miscarriage of justice.  The particular circumstances of the trial in question must be examined.

    [91] R v Apostilides (1984) 154 CLR 563, 575 (Gibbs CJ and Mason, Murphy, Wilson and Dawson JJ).

    [92] Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657, 674 (Dawson J

  3. If the prosecution does not call a material witness a number of consequences may follow.  The trial may be adjourned to enable the witness to attend and to give evidence.  The decision by a prosecutor whether or not to call a witness does not involve the exercise of a discretionary power which is in some way reviewable by the court.[93]  A decision of a prosecutor not to call a person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice.[94]

    [93] Richardson v The Queen (1974) 131 CLR 116, 119.

    [94] R v Apostilides (1984) 154 CLR 563, 575.

  4. In Nguyen v The Queen[95] the High Court affirmed these principles and held that the principles concerning prosecution decisions to call witnesses apply by analogy to mixed inculpatory and exculpatory statements made by an accused when interviewed by the police.[96]

The scope of Ms Massey's proposed evidence

[95] Nguyen v The Queen [2020] HCA 23.

[96] Nguyen v The Queen [2020] HCA 23 [37].

  1. At the close of the prosecution case counsel for the appellant submitted to the learned magistrate that the prosecution should call Ms Massey as a material witness for the reason that the evidence was one of recent complaint.[97]  The prosecutor determined not to call Ms Massey for the reason that, in her assessment, the evidence of Ms Massey was not admissible.  The prosecutor submitted to the learned magistrate that the evidence was not recent complaint and therefore hearsay.  The prosecutor contended that Ms Massey recalled only being told by the Complainant that the appellant had touched her leg without any further detail.[98]  Therefore the prosecutor did not call Ms Massey as a witness in the prosecution case.

    [97] ts 40 (07/05/2019).

    [98] ts 42, 45 (07/05/2019).

  2. The appellant submitted on appeal that the prosecutor, in stating that the 'witness was not a probative witness for the prosecution', was contending that Ms Massey's evidence was not favourable to the prosecution's case.[99]  There is no basis for that contention.  It is abundantly clear that the prosecutor advanced only one reason in court for not calling Ms Massey being that the evidence was inadmissible hearsay. 

    [99] ts 42 (07/05/2019).

  3. The prosecutor did not address the question of whether the prosecution considered that the witness was a witness of truth, rather indicated that given the determination as to relevance it had been unnecessary to do so.[100]  The learned magistrate, during discourse, told the prosecutor that he did not wish to receive submissions concerning Ms Massey's credibility prior to hearing her evidence.  The prosecutor did not address the court regarding whether the prosecution considered Ms Massey to be a witness of truth.  Given that the prosecutor had formed the view that the evidence of Ms Massey regarding the complaint was inadmissible, it was not necessary for the prosecutor to address the issue of whether Ms Massey was a witness of truth.

    [100] ts 45 (07/05/2019).

  4. Therefore the appellant contended to the learned magistrate that Ms  Massey was a material witness on the singular basis that she provided complaint evidence.  On appeal counsel for the appellant contended that Ms Massey was a material witness for two additional reasons.  First, that the witness was able to give direct evidence concerning her attendance at the shop after receiving a telephone call from the Complainant.  Second, the appellant contended that Ms  Massey was able to provide testimony as to whether the Complainant and the appellant sat on the same bucket.  That evidence was relevant to the possibility of the transference of the appellant's DNA onto the leggings of the Complainant.

  5. In respect of the contention that Ms Massey was able to give direct evidence, she was not a direct witness to the allegation.  Certainly, Ms  Massey observed the attendance of the Complainant at the workplace, the demeanour of the Complainant and the presence of the Complainant's parents.  To that extent Ms Massey was able to give material evidence. 

  6. In respect of the contention that Ms Massey was able to give evidence concerning the Complainant sitting on the bucket, when Ms Massey was called by the defence the appellant's counsel did not adduce or attempt to adduce any evidence from Ms Massey in respect of the Complainant sitting on the bucket on the relevant day.[101]  The prosecutor did ask questions in cross-examination concerning whether the Complainant sat on the bucket.

    [101] ts 60 - 69 (07/05/2019).

  7. The Complainant gave evidence that at the time the conversation concerning the buying of an island occurred she was standing, Ms Massey was seated on a chair, and the appellant was seated on his bucket.[102]  This evidence was not challenged in cross-examination.  Counsel for the appellant in cross-examination did not ask the Complainant whether she sat on the bucket on the relevant date.  In cross‑examination the Complainant did accept that during the four years of working at the shop, though not on the relevant day, the appellant and others had sat on the white chair in which she sat during the incident and that she had sat on the bucket, in each case 'from time to time'.[103]

    [102] Affidavit of Ms Elissa Ann Cesari, 18, Annexure D.

    [103] ts 7, 13 - 14 (29/03/2019).

  8. As I have observed the appellant's counsel at the trial did not advance this line of inquiry to the learned magistrate as a reason why Ms  Massey was a material witness.  This submission was wholly consistent with the line of questioning adopted by counsel at trial when examining the Complainant and Ms Massey.

The obligation of the prosecutor to call Ms Massey as a witness

  1. The respondent submitted that Ms Massey had given a contrived statement and that it was open to the prosecution not to call Ms Massey as a witness in the prosecution case.  Ms Massey refused to assist the police investigation.  She declined to provide a witness statement when  requested two days after the offending.  Some 12 months later Ms Massey again refused to assist the investigation and provide a statement. 

  2. Subsequently Ms Massey presented her own statement to the police.  Ms Massey's written statement confirms that she was not present during the incident and that after asking the appellant one question she stated that 'I didn't continue asking my dad, I know he didn't do it.'[104]  It is clear by that statement that Ms Massey had immediately refused to entertain that her father had offended and aligned herself with her father.  Ms Massey in her statement referred to the Complainant sitting on the bucket 'but I've notice that [the Complainant] was sitting differently compared to how she normally sits before on my dad's chair.  But since she's like a family to us, I ignored it.'[105]  The respondent contended that this statement was clearly an attempt to provide an explanation as to how the appellant's DNA might have been transferred to the front crotch area of the Complainant's leggings.[106]  There is strong merit in that contention.

    [104] Affidavit of Mr Paxman sworn 12 June 2020, Annexure A, Statement of Ms Massey [60] - [61], [67].

    [105] Affidavit of Mr Paxman sworn 12 June 2020, Annexure A, Statement of Ms Massey [21].

    [106] Respondent's Written Outline of Submissions filed 10 September 2020 [34].

  3. I am of the view that it was open to a reasonable prosecutor to form the view that Ms Massey had aligned herself with her father and  his interests, was unwilling to assist the police investigation and that she was not a credible witness.  From the scope of the cross‑examination of Ms Massey it is clear that the prosecutor had  formed this view.  The cross‑examination focused, in part, on Ms Massey's knowledge of the DNA evidence and whether her memory of the seating arrangements was contrived.[107]  The prosecution, in closing, submitted that the evidence of Ms Massey was either unreliable or not truthful. [108]  The prosecution contended that Ms Massey was unreliable for the reason that she declined to assist the prosecution and in particular, give a statement to the police. 

Was there a miscarriage of justice by the prosecution not calling Ms Massey?

[107] ts 70 - 73 (07/05/2019).

[108] ts 10 (23/05/2019).

  1. In any event, when viewed against the conduct of this trial as a whole, it is not possible to find that the failure to call Ms Massey occasioned a  miscarriage of justice.  It is necessary to focus on the objective consequences that the failure to call the witness has had on the course of the trial and its outcome.[109]  The critical question is not whether the prosecutor's decision not to call a witness was erroneous or constitutes misconduct, but whether in all the circumstances the verdict is unsafe or unsatisfactory.

    [109] Walsh v The State of Western Australia [2011] WASCA 119 [69].

  2. Ms Massey did give evidence at trial having been called as part of the defence case.  That could not have come as a surprise to the appellant given that Ms Massey is the appellant's daughter and attended court to be called as part of the defence case.  The scope of the  examination of Ms Massey by defence counsel at trial was comprehensive.  Ms Massey gave detailed answers to the questions asked of her by defence counsel.  It is clear that defence counsel had methodically prepared the examination-in-chief and that the answers provided were anticipated. 

  3. The appellant contends that the defence was 'left in the invidious position' of having to call Ms Massey, without the benefit of being permitted to cross-examine her.  Instead, the prosecution obtained that forensic advantage.  The contention is without merit.  The appellant did not particularise in respect of what issues it was necessary to cross‑examine Ms Massey.  That is understandable given that the examination-in-chief comprehensively covered all factual issues.  I do not accept that the defence was disadvantaged by not being able to cross‑examine.  Ms Massey was not a direct witness to the alleged offending. 

  4. Further, I do not accept that the prosecution gained some unfair forensic advantage by having the right to cross-examine Ms Massey. The prosecution's examination of Ms Massey did question her credibility. I have outlined the scope of the cross-examination of Ms Massey at [67]. In particular, the prosecutor examined Ms Massey concerning the circumstances in which she refused to provide a statement to the police and then over a year later drafted her own statement which was accepted by the police. The prosecution raised that Ms Massey had declined to provide a statement to the police during the evidence of Constable Pennuto. Ms Massey did refuse to assist the police in the investigation. She presented her own statement to the police.

  5. The second issue subject of cross-examination was whether Ms Massey was giving evidence tailored to explain how the DNA of the Complainant had been found located on the appellant.

  6. The scope of the cross-examination did not permit the prosecution to gain some unfair forensic advantage that amounts to a miscarriage of justice.

  7. I find that there was no forensic disadvantage to the appellant by him calling his own daughter in support of his defence that amounts to a miscarriage of justice. 

  8. When viewed against the conduct of this trial as a whole it is not possible to find that the prosecutor's failure to call Ms Massey occasioned a miscarriage of justice.  Accordingly, I find that ground 1 is without merit and therefore, leave to appeal is not granted.

Ground 2

  1. By ground 2 the appellant contends that the learned magistrate erred in fact by finding that the possibility of secondary transfer of his DNA to the Complainant's leggings could be excluded.

  2. The appellant contends that the learned magistrate in his reasons approached the evidence in relation to the DNA evidence on the basis that he needed to exclude the possibility of secondary transfer and did not properly determine that issue. [110]

    [110] Appellant's Written Outline of Submissions filed 3 June 2020 [57].

  3. In his reasons for decision the learned magistrate outlined the evidence of Mr Fuller without error.  His Honour stated that the mixed DNA profile taken from the one centimetre swab from the leggings was 51 million times more likely to have occurred if the appellant and the Complainant were the contributors.[111]  His Honour observed that the evidence established that there could be a transfer of DNA material by direct or primary transfer or indirect or secondary transfer.[112]  Further, the transfer is less likely on smooth shiny surfaces because it is more easily removed and that there is always the possibility of mishandling.[113]  His Honour stated that the leggings were a 'good candidate for DNA transfer'. 

    [111] ts 3 (26/06/2019).

    [112] ts 3 (26/06/2019).

    [113] ts 3 (26/06/2019).

  4. The learned magistrate made a number of findings concerning the DNA evidence. His Honour found that the Complainant would wear fresh clothing each day,[114] and that on the relevant day the Complainant did wear fresh clothing.[115]  His Honour accepted that the mixed DNA profile was that of the Complainant and the appellant and that it was 51 million times more likely that they were the two contributors rather than other persons.[116]  His Honour then made this finding:[117]

    The possibility of transfer always arises and I've considered that.  She said he touched him in an area which the DNA was found.  That is when it was sampled they found DNA in the way I've described and her story is strongly supported by the DNA.  It's located on the front part of her leggings.  I don't accept it came from her sitting on the kitchen, on a cushion, and I don't accept it was due to transfer.  The particular part of the clothing it was found on is very unlikely it came from her sitting.

    [114] ts 14 (26/06/2019).

    [115] ts 14 (26/06/2019).

    [116] ts 14 (26/06/2019).

    [117] ts 14 (26/06/2019).

  5. His Honour then returned to his findings concerning the DNA observing that the Complainant was a credible and reliable witness and that she behaved after the incident in a manner consistent with a young girl who had been assaulted.  His Honour then observed that the DNA evidence confirmed what she described: 'the touching by the defendant on the crotch'.[118]  His Honour then stated that the appellant's 'DNA is found on that particular area of the leggings where she said he touched her and I believe that's the - I consider that's the only reasonable explanation.  It came about as a result of him touching her.'[119]

    [118] ts 15 (26/06/2019).

    [119] ts 15 (26/06/2019).

  6. The appellant contends that it was necessary that the learned magistrate be satisfied beyond a reasonable doubt that the DNA was not deposited by secondary transfer.  The appellant states that the issue of whether the DNA was deposited on the leggings by secondary transfer was an indeterminate fact on the learned magistrate's reasoning. 

  7. Further, the appellant contends that the learned magistrate could not have been satisfied beyond a reasonable doubt that the DNA was not deposited by secondary transfer for the reason that both the Complainant and the appellant were frequently in the same area 'with the possibility of transfer endless' including from seats and the toilet.[120] The appellant also submitted that his Honour did not expressly make a finding as to whether he was satisfied that there was no secondary transference of the DNA from another part of the Complainant's clothing to the leggings. 

    [120] ts 10 (appeal hearing 12/10/2020).

  8. I do not accept the appellant's contention that it was necessary for the prosecution to prove beyond a reasonable doubt that the DNA deposited on the Complainant's leggings did not occur by secondary transfer.  That issue was not an indispensable link in the reasoning towards guilt.   The DNA evidence was not the only evidence relied upon by the prosecution.  The DNA evidence was circumstantial evidence that formed part of the prosecution case.  The prosecution case relied upon the direct testimony of the Complainant.  The learned magistrate was not required to treat the DNA evidence in a piecemeal manner rather that evidence was considered in light of the evidence as a whole.[121]

    [121] Shepherd v The Queen (1990) 170 CLR 573, 579 ‑ 580.

  9. I do not accept that the magistrate was required to specifically consider each possible means by which the DNA could have been transferred by secondary means.  His Honour did expressly consider this issue by accepting that 'there's always the possibility of mishandling' and then stated that 'the possibility of transfer always arises and I've considered that.'[122]  His Honour expressly considered one possible means of secondary transfer being the transfer by the Complainant having sat in the appellant's seat in the backroom.  That was the means of secondary transfer that was primarily relied upon by the appellant at the trial.  It was not necessary for the learned magistrate to expressly consider each and every possible means of secondary transfer.  In any event, the learned magistrate stated that 'I don't accept it came from her sitting on the kitchen, on a cushion, and I don't accept it was due to transfer'.[123]  By so doing the learned magistrate did consider secondary transfer by other means. 

    [122] ts 3 (26/06/2019).

    [123] ts 14 (26/06/2019).

  10. I accept the respondent's submission that the DNA evidence was merely circumstantial evidence that supported what was otherwise a strong prosecution case. 

  11. Accordingly, ground 2 is without merit and leave to appeal will not be granted.

Conclusion

  1. Accordingly, leave is not granted on grounds 1 and 2 and the appeal is thereby dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

AS

Associate to the Honourable Justice McGrath

19 MARCH 2021


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Samuels v The State of Western Australia [2005] WASCA 193
Re Rules Of the Supreme Court 1971 (WA); Ex Parte Gates [2018] WASC 213
R v Apostilides [1984] HCA 38