Costa v The State of Western Australia - [2019] WASCA 200

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   COSTA -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 200
CORAM:   BUSS P
MAZZA JA
MITCHELL JA

HEARD:   13 AUGUST 2019
DELIVERED          :   6 DECEMBER 2019
FILE NO/S:   CACR 17 of 2018
BETWEEN:   PETER RAYMOND COSTA
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   GETHING DCJ
File Number            :   IND 795 of 2016

Catchwords:

Criminal law - Appeal against conviction - Sexual penetration without consent - Whether copies of text messages properly admitted - Whether a miscarriage of justice arose from a State witness giving evidence by video link from South Korea - Alleged failure of prosecution to comply with disclosure obligation - Whether prosecution is obliged to disclose a document or object which casts doubt on the credit or reliability of a defence witness only - Whether conduct of trial by defence counsel gave rise to a miscarriage of justice - Whether verdicts unreasonable or unsupported by the evidence

Legislation:

Criminal Appeals Act 2004 (WA), s 30(3)(a)
Criminal Code (WA), s 325, s 611B (repealed)
Criminal Procedure Act 2004 (WA), s 3, s 42(1), s 95
Evidence Act 1906 (WA), s 73A, s 120, s 121
Interpretation Act 1984 (WA), s 5

Result:

Applications dismissed
Leave to appeal refused
Appeal dismissed

Category: A

Representation:

Counsel:

Appellant	:	In person
Respondent	:	J A Scholz

Solicitors:

Appellant	:	In person
Respondent	:	Director of Public Prosecutions (WA)

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

Alphapharm Pty Ltd v H Lundbeck A/S [2014] HCA 42; (2014) 254 CLR 247
Bevan v The State of Western Australia [2010] WASCA 101; (2010) 202 A Crim R 27
Bevan v The State of Western Australia [2012] WASCA 153; (2012) 43 WAR 233
Carney v The State of Western Australia [2010] WASCA 90; (2010) 201 A Crim R 537
Craig v The Queen [2018] HCA 13; (2018) 92 ALJR 390
D v The State of Western Australia [2007] WASCA 272; (2007) 179 A Crim R 377
Davis v The State of Western Australia [2007] WASCA 267
Easterday v The Queen [2003] WASCA 69; (2003) 143 A Crim R 154
Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503
Gibbs v The State of Western Australia [2018] WASCA 68
Hobby v The Queen (unreported WASCA; Lib No 990013, 22 January 1999)
Huggins v The State of Western Australia [2018] WASCA 61
Jeffery v The State of Western Australia [2018] WASCA 219
Morgan v The State of Western Australia [2019] WASCA 185
PAH v The State of Western Australia [2015] WASCA 159; (2015) 253 A Crim R 250
R v Brown (Winston) [1994] 1 WLR 1599
R v Brown (Winston) [1998] AC 367
R v Farquharson [2009] VSCA 307; (2009) 26 VR 410
R v Garofalo [1998] VSCA 145; [1999] 2 VR 625
R v H [2004] UKHL 3; [2004] 2 AC 134
R v Hennessey (Timothy) (1978) 68 Cr App R 426
R v Keane [1994] 1 WLR 746
R v Livingstone [2004] NSWCCA 407; (2004) 150 A Crim R 117
R v Melvin (Unreported, Queen's Bench Division, High Court of Justice, 20 December 1993)
R v Reardon (No 2) [2004] NSWCCA 197; (2004) 60 NSWLR 454
R v Spiteri [2004] NSWCCA 321; (2004) 61 NSWLR 369
R v Ward (Judith) [1993] 1 WLR 619
Rodi v The State of Western Australia [2017] WASCA 81; (2017) 51 WAR 96
Suresh v The Queen [1998] HCA 23; (1998) 72 ALJR 769
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362
The Queen v A2 [2019] HCA 35; (2019) 93 ALJR 1106
Wells v The State of Western Australia [2017] WASCA 27

BUSS P & MAZZA JA:

This is an appeal against conviction.
The appellant was convicted, after a trial before Gething DCJ and a jury, of three counts of sexually penetrating the complainant without her consent, contrary to s 325 of the Criminal Code (WA) (the Code). Each offence occurred during a single episode on or about 8 March 2015. Count 1 alleged that the appellant engaged in cunnilingus with the complainant, count 2 alleged that the appellant penetrated the complainant's vagina with his penis and count 3 alleged that the appellant again penetrated the complainant's vagina with his penis.
The appellant relies on nine grounds of appeal.
We would refuse leave to appeal on each ground. The appeal must be dismissed.

The background facts, the State's case at trial, the defence case at trial, the grounds of appeal, the appellant's submissions on the appeal and the State's submissions on the appeal

The background facts, the State's case at trial, the defence case at trial, the grounds of appeal, the appellant's submissions on the appeal and the State's submissions on the appeal are set out in the reasons of Mitchell JA.

Grounds 1, 2, 3, 4, 6, 7, 8 and 9

We agree with Mitchell JA, generally for the reasons he gives, that each of grounds 1, 2, 3, 4, 6, 7, 8 and 9 is without merit.

Ground 5: general

Ground 5 alleges, in essence, that a miscarriage of justice occurred at the trial as a consequence of the State's failure to comply with its disclosure obligations.
The appellant submitted, in effect, that the State was obliged to disclose, and had failed to disclose, relevant evidence, including the following:
(a)photographs taken by Detective Senior Constable Vaucher of the inside of the appellant's house;
(b)a page of notes made either by Mr Park (a State witness at the trial) or by a police officer about Mr Park; and
(c)information in the prosecution's possession which formed the basis of the cross-examination of Dr Arun (a defence witness at the trial).
We agree with Mitchell JA, generally for the reasons he gives, that the appellant's complaints about the non-disclosure of the photographs taken by Detective Vaucher of the inside of the appellant's house, and the page of notes made by or about Mr Park, are without merit.
We agree with Mitchell JA that the appellant's complaint about the non‑disclosure of the information which formed the basis of Dr Arun's cross‑examination is without merit. However, we will state our own reasons for arriving at that conclusion.
We agree with Mitchell JA, generally for the reasons he gives, that the appellant's other complaints about non-disclosure are without merit.
We agree with Mitchell JA, generally for the reasons he gives, that the State's application to adduce additional evidence in the appeal in relation to ground 5 should be dismissed.

Ground 5: Dr Arun's evidence

Dr Arun was called as an expert witness by defence counsel. He is a medical practitioner with a specialty in obstetrics and gynaecology. Dr Arun has worked in the United Kingdom. As a gynaecologist, he has assisted with cases involving sexual assault.
Dr Arun said in evidence-in-chief that it was possible that an injury to the complainant's vagina could have been caused by a digital or speculum examination of her vagina or by a fingernail or by an infection. It was also possible that the complainant's injury may have been caused by the complainant climbing over a barbed wire fence. Dr Arun said that pain reported by the complainant could have been associated with the onset of menstruation.
Dr Arun conceded in cross-examination that the only reference he could find in the literature to support his assertion that a digital examination of a vagina could cause a laceration was a study concerning injuries resulting from forced digital penetration. Dr Arun also conceded that if a medical forensic assessment showed the complainant's bacterial levels to be normal, the injury to her vagina would not have been caused by an infection. Dr Arun said he was aware of one other case, in which he was not personally involved, where a vaginal injury was caused by the female climbing over a barbed wire fence, but that case was associated with other injuries. Dr Arun refused to accept that the pain reported by the complainant was more likely to be attributable to the vaginal laceration she suffered than by the onset of menstruation.
The following exchange occurred between the prosecutor and Dr Arun towards the end of cross-examination (ts 537 - 538):
Dr Arun, were you the subject of proceedings in the United Kingdom relating to you inappropriately touching a patient's breasts?---It's not relevant to this case.
It's not relevant to this case?---Not - it is - you are insulting me. I object to it.
Well, Dr Arun, when the High Court of Justice, Queen's Bench Division, case number CO1272014, dealt with your appeal in that matter, did they not say this about you:
It's extremely unfortunate, to say the least, that he left patient A feeling the way that he did. He compounded the situation by not being entirely frank throughout the investigation and the proceedings.
That's what they said about you?---I have no comments. It is not related today. I come as an expert witness. I stick to it. I have no, absolutely no comments on that.
And you are not being frank - - -?---It's beyond your remit.
You are not being frank in these proceedings either, are you?---What - what [has] it got to do with this?

Ground 5: the prosecution's common law duty of disclosure

At common law, the prosecution's duty of disclosure is an inseparable part of an accused's right to a fair trial. See R v Brown (Winston);[1] Easterday v The Queen;[2] and D v The State of Western Australia.[3]
[1] R v Brown (Winston) [1994] 1 WLR 1599, 1606 (Steyn LJ reading the judgment of the Court of Appeal of England and Wales).
[2] Easterday v The Queen [2003] WASCA 69; (2003) 143 A Crim R 154 [194] (Steytler J; Roberts-Smith J relevantly agreeing).
[3] D v The State of Western Australia [2007] WASCA 272; (2007) 179 A Crim R 377 [4] (Buss JA).
In R v Ward (Judith),[4] Glidewell, Nolan and Steyn LJJ adopted the words of Lawton LJ in R v Hennessey (Timothy),[5] where his Lordship said that the courts must 'keep in mind that those who prepare and conduct prosecutions owe a duty to the courts to ensure that all relevant evidence of help to an accused is either led by them or made available to the defence'. Glidewell, Nolan and Steyn LJJ then observed that 'all relevant evidence of help to the accused' is not confined 'to evidence which will obviously advance the accused's case' (645). It is of help to the accused to have 'the opportunity of considering all the material evidence which the prosecution have gathered, and from which the prosecution have made their own selection of evidence to be led' (645).
[4] R v Ward (Judith) [1993] 1 WLR 619, 645.
[5] R v Hennessey (Timothy) (1978) 68 Cr App R 426.
In R v Keane,[6] Lord Taylor of Gosforth CJ (reading the judgment of the Court of Appeal of England and Wales) held that, subject to any issue of public interest immunity, the prosecution must disclose to the accused all information that is 'material'. His Lordship adopted the test of 'materiality' suggested by Jowitt J in R v Melvin.[7] Jowitt J said:
I would judge to be material in the realm of disclosure that which can be seen on a sensible appraisal by the prosecution: (1) to be relevant or possibly relevant to an issue in the case; (2) to raise or possibly raise a new issue whose existence is not apparent from the evidence the prosecution proposes to use; (3) to hold out a real (as opposed to fanciful) prospect of providing a lead on evidence which goes to (1) or (2).
[6] R v Keane [1994] 1 WLR 746, 751 - 752.
[7] R v Melvin (Unreported, Queen's Bench Division, High Court of Justice, 20 December 1993) 376.
In R v Brown(Winston), Steyn LJ also adopted the test of 'materiality' suggested by Jowitt J in Melvin. His Lordship commented that the phrase 'an issue in the case' in Jowitt J's test 'must not be construed in the fairly narrow way in which it is used in a civil case', but must be given 'a broad interpretation' (1606).
On appeal in R v Brown (Winston),[8] the House of Lords affirmed the decision of the Court of Appeal. Lord Hope of Craighead (Lord Goff of Chieveley, Lord Slynn of Hadley, Lord Clyde and Lord Hutton agreeing) referred to the speech of Lord Taylor of Gosforth CJ in Keane (750) and noted that, in the context of the common law duty of disclosure, 'the great principle is that of open justice' (374). Lord Hope elaborated:
It would be contrary to that principle for the prosecution to withhold from the defendant material which might undermine their case against him or which might assist his defence (374).
[8] R v Brown (Winston) [1998] AC 367.
Lord Hope then said that those were the rules upon which s 3 and s 7 of the Criminal Procedure and Investigations Act 1996 (UK) were based, but 'they had already found their expression in decisions by the courts' (374).
Section 3(1)(a) of the Criminal Procedure and Investigations Act, as originally enacted, provided, relevantly, that the prosecutor must disclose to the accused any material which 'in the prosecutor's opinion might undermine the case for the prosecution against the accused'. Section 7(2), as originally enacted, provided, relevantly, that if the accused had given a statement setting out, amongst other things, in general terms the nature of the accused's defence, the prosecutor must disclose to the accused any material which 'might be reasonably expected to assist the accused's defence as disclosed by the defence statement'.
Lord Hope expressly agreed with the view taken by the Court of Appeal in Brown (Winston) that the phrase 'an issue in the case', in Jowitt J's test, must be given a broad interpretation and that the phrase 'all relevant evidence of help to the accused', in the passage from Lawton LJ's judgment in Hennessey (Timothy) (426) which was adopted in Ward (Judith) (645), must also be given a broad interpretation (377).
However, Lord Hope held that the prosecution did not have to disclose material that related only to the credibility of defence witnesses. His Lordship explained that an accused is entitled to a fair trial, 'but fairness does not require that his witnesses should be immune from challenge as to their credibility' (379). Also, fairness does not require that the accused be provided with 'assistance from the Crown in the investigation of the defence case or the selection, on grounds of credibility, of the defence witnesses' (379). A little later, his Lordship said:
The common law rules which I have described are designed to ensure the disclosure of material in the hands of the prosecutor which may assist the defence case. But, once that duty has been satisfied, the investigation and preparation of the defence case is a matter for the defence. That includes the tracing, interviewing and assessment of possible defence witnesses. And material which may assist the defence case can be distinguished from material which may undermine it or may expose its weaknesses. The adversarial system under which trials in this country are conducted applies to the examination of witnesses in support of the defence case in the same way as it does to the examination of the witnesses for the Crown. No witness enters the witness box with a certificate which guarantees his credibility. Every witness can expect to be cross-examined upon the veracity or reliability of his evidence. Cross-examination which is directed only to credibility may lose much of its force if the line is disclosed in advance. This weakens the opportunity for the assessment of credibility by the jury or, in a summary case, by the justices. To insist on such disclosure would, sooner or later, undermine the process of trial itself. It would protect from challenge those who were disposed to give false evidence in support of a defence which had been fabricated. That would be to tip the scales too far. Justice would not have been done (379 - 380).
Section 3(1) of the Criminal Procedure and Investigations Act was amended by the Criminal Justice Act 2003 (UK). Section 3(1)(a) was amended so as to require primary disclosure of any previously undisclosed material 'which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused'.
In R v H,[9] Lord Bingham of Cornhill, who gave the judgment of the House of Lords, referred to s 3(1)(a) of the Criminal Procedure and Investigations Act and said [17]:
Whether in its amended or unamended form, section 3 does not require disclosure of material which is either neutral in its effect or which is adverse to the defendant, whether because it strengthens the prosecution or weakens the defence.
[9] R v H [2004] UKHL 3; [2004] 2 AC 134.
The common law principles stated in Keane and Brown (Winston) have been applied in Australia. See, for example, R v Reardon;[10] R v Spiteri;[11] and R v Livingstone.[12] Those principles have also been referred to with apparent approval in other cases, including R v Garofalo;[13] Easterday [194]; and R v Farquharson.[14]
[10] R v Reardon (No 2) [2004] NSWCCA 197; (2004) 60 NSWLR 454 [48], [54] (Hodgson JA).
[11] R v Spiteri [2004] NSWCCA 321; (2004) 61 NSWLR 369, 373 - 375 (Simpson J; Grove and Shaw JJ agreeing).
[12] R v Livingstone [2004] NSWCCA 407; (2004) 150 A Crim R 117 [44] - [45] (Simpson J; Kirby and Bell JJ agreeing).
[13] R v Garofalo [1998] VSCA 145; [1999] 2 VR 625 [58] - [63] (Ormiston JA; Tadgell JA substantially agreeing and Charles JA agreeing).
[14] R v Farquharson [2009] VSCA 307; (2009) 26 VR 410 [213] - [215] (Warren CJ, Nettle and Redlich JJA).
In Hobby v The Queen,[15] Pidgeon J (Wallwork J relevantly agreeing and Steytler J relevantly agreeing generally) referred to Lord Hope's statement in Brown (Winston) that the prosecution is not under a duty at common law to disclose material relevant only to the credibility of a defence witness (54). His Honour cited the passage from Lord Hope's speech which we have reproduced at [25] above. His Honour then said that Lord Hope's observations in that passage were 'compelling as to what is the common law and as to what is required for a fair trial' and that the decision of the House of Lords in Brown (Winston) should be followed in Western Australia (54).
[15] Hobby v The Queen (unreported WASCA; Lib No 990013, 22 January 1999).

Ground 5: the prosecution's statutory duty of disclosure

Prior to the enactment of the Criminal Law (Procedure) Amendment Act 2002 (WA), the prosecution's duty of disclosure in this State in relation to indictable offences occurred at three stages. First, early in the prosecution, the police were required to provide the accused with a statement of the material facts and copies of any confessional material. Secondly, if the accused did not plead guilty before a magistrate, the police were required to provide the accused with a 'hand-up brief', which comprised copies of the written witness statements that the prosecution proposed to use or to tender in evidence. Thirdly, if the accused was committed to the Supreme Court or District Court for trial, the Director of Public Prosecutions (WA) (the Director) was required to serve on the accused a copy of the prosecution brief, which contained copies of all written witness statements and exhibits that had been made available by the police to the Director. The disclosure obligation at the third stage arose from the combined operation of the common law and the Director's commitment through the Director's Statement of Prosecution Policy and Guidelines 1999 that full disclosure would be given by his or her office to the accused. See the Second Reading Speech of the Attorney General in relation to the Criminal Law (Procedure) Amendment Bill 2002 (WA).[16]
[16] Western Australia, Parliamentary Debates, Legislative Assembly, 27 March 2002, p 9026c - 9030a (Mr JA McGinty, Attorney General).
The Attorney General said in his Second Reading Speech that the Act would 'reform the law relating to pre-trial disclosure by introducing an onerous and ongoing statutory disclosure requirement of the police and the Director of Public Prosecutions and limited formal pre-trial disclosure requirements for defendants' (p 9026c - 9030a).

The Criminal Law (Procedure) Amendment Act 2002 commenced on 27 September 2002. The new statutory disclosure obligation of the prosecution, where an indictment has been presented to a court, was contained in s 611B of the Code.
Section 611B provided, relevantly:
(1)If an indictment has been presented to a court against a person, the prosecution is required to file and serve on the person -
(a)a copy of every statement or deposition, obtained by the prosecution, or any person who may be able to give relevant evidence at the trial;
(b)notice of the name and, if known, the address of any person from whom no statement, report or deposition has been obtained but who the prosecution thinks may be able to give relevant evidence at the trial and a description of the relevant evidence concerned;
(c)notice of any person whom the prosecution proposes to call as a witness at the trial;
(d)a copy of every other document or exhibit that the prosecution proposes to adduce at the trial or, if it is not practicable to copy the document or exhibit, a description of it and notice of where and when it can be inspected;
(e) a copy of the criminal history of the accused; and
(f) any other document prescribed by rules of court.
(2)The requirements of subsection (1) must be complied with as soon as practicable after the prosecution has obtained the document.
Section 611B was repealed by s 24 of the Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004 (WA) with effect from 2 May 2005.
Since 2 May 2005, the prosecution's statutory duty of disclosure, where, relevantly, an accused is prosecuted in a superior court (that is, the Supreme Court or the District Court), has been contained in the Criminal Procedure Act 2004 (WA).
Section 95 of the Criminal Procedure Act provides, relevantly:
(1)In this section, unless the contrary intention appears -
confessional material has the meaning given by section 42;
evidentiary material has the meaning given by section 42;
lodge means to lodge with the superior court concerned;
serve, an accused, means to serve the accused in accordance with Schedule 2 clause 2, 3 or 4.
…
(6)Within the prescribed period after an accused is committed for trial on a charge, the relevant authorised officer must lodge the following and, if any of the following has not already been served on or received by the accused, serve the accused with it -
(a)        a statement of the material facts of the charge;
(b)any confessional material of the accused that is relevant to the charge;
(c)        any evidentiary material that is relevant to the charge;
(d)        a copy of the accused's criminal record;
(e)a copy of the certificate given to the officer under section 45;
(f)        any other document that is prescribed.
Section 42(1) of the Criminal Procedure Act provides, relevantly:
In this section, unless the contrary intention appears -
confessional material of an accused charged with an offence, means -
(a)a copy of any material referred to in the definition of confessional material in section 35; and
(b)a copy of any electronic recording, other than a recording that is part of the material referred to in paragraph (a), of a conversation between the accused and a person in authority that is relevant to the charge and that is in the possession of the organisation that investigated the offence; and
(c)if the accused said anything that is relevant to the charge to a person employed in the organisation that investigated the offence and that was not so recorded, a written version of the substance of what was said;
evidentiary material relevant to a charge, means -
(a)a copy of -
(i)every statement that has been made in accordance with Schedule 3 clause 4 by; and
(ii)every recording that has been made in accordance with Schedule 3 clause 6 of evidence given by; and
(iii)every recording that has been made under the Evidence Act 1906 of; and
(iv)every other recorded statement, whether oral or written, by,
any person who may be able to give evidence that is relevant to the charge, irrespective of whether or not it assists the prosecutor's case or the accused's defence; and
(b)if there is no statement of recording referred to in paragraph (a) of a person who the prosecutor intends to call as a witness, a written summary of the evidence to be given by the person; and
(c)a copy of any document or object to which a statement or recording referred to in paragraph (a) refers; and
(d)a copy of every other document or object that the prosecutor intends to tender in evidence at trial; and
(e)a copy of every other document or object that may assist the accused's defence,
that is in the possession of the organisation or person who investigated the offence. (emphasis added)
Section 95(6) read with s 42(1) of the Criminal Procedure Act is materially different from the former s 611B(1) of the Code in that, relevantly:
(a)the material which must be disclosed to the accused under s 95(6) read with s 42(1) of the Criminal Procedure Act includes 'a copy of every other document or object that may assist the accused's defence' that is 'in the possession of the organisation or person who investigated the offence' (see, in particular, par (e) of the definition of 'evidentiary material' in s 42(1)); and
(b)s 611B(1) of the Code did not include a provision to that effect.
It is unnecessary, in the present case, to consider whether, and if so to what extent, the provisions of the Criminal Procedure Act which contain the prosecution's statutory duty of disclosure have abrogated or altered the prosecution's common law duty of disclosure. See Davis v The State of Western Australia;[17] Carney v The State of Western Australia;[18] and PAH v The State of Western Australia.[19]
[17] Davis v The State of Western Australia [2007] WASCA 267 [36] (Steytler P; Buss JA agreeing).
[18] Carney v The State of Western Australia [2010] WASCA 90; (2010) 201 A Crim R 537 [4] (Owen JA).
[19] PAH v The State of Western Australia [2015] WASCA 159; (2015) 253 A Crim R 250 [142] (Buss JA; McLure P and Hall J agreeing).
In the present case, the prosecutor put to Dr Arun in cross-examination a passage from the reasons for decision of a judge of the High Court of Justice in the United Kingdom. The reasons related to proceedings against Dr Arun in connection with an allegation that he had inappropriately touched a patient's breasts. The passage from the reasons included a statement that Dr Arun had not been 'entirely frank throughout the investigation and the proceedings'. The prosecutor put the passage to Dr Arun solely for the purpose of undermining his credibility as a defence witness at the appellant's trial. The prosecution had not served the appellant with a copy of the reasons for decision.
In our opinion, it is plain that under the common law duty of disclosure the prosecution was not obliged to disclose to the appellant the High Court judge's reasons for decision or to serve a copy of the reasons on the appellant. It is well established at common law that the prosecution does not have to disclose to the accused material or other information that relates solely to the credibility of a defence witness.
We turn to consider whether the prosecution was obliged to make disclosure in respect of the reasons for decision under s 95(6) read with s 42(1) of the Criminal Procedure Act.
In SZTAL v Minister for Immigration and Border Protection,[20] Kiefel CJ, Nettle and Gordon JJ summarised the general principles of statutory construction as follows:
The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 - 382 [69] - [71]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46 - 47 [47]). Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense (CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408). This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected [14].
See also The Queen v A2.[21]
[20] SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362.
[21] The Queen v A2 [2019] HCA 35; (2019) 93 ALJR 1106 [32] - [37] (Kiefel CJ & Keane J; Nettle & Gordon JJ relevantly agreeing generally).
However, legislative history and extrinsic materials cannot displace the meaning of statutory text. Further, the examination of legislative history and extrinsic materials is not an end in itself. See Federal Commissioner of Taxation v Consolidated Media Holdings Ltd;[22] Alphapharm Pty Ltd v H Lundbeck A/S.[23]
[22] Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 [39] (French CJ, Hayne, Crennan, Bell & Gageler JJ).
[23] Alphapharm Pty Ltd v H Lundbeck A/S [2014] HCA 42; (2014) 254 CLR 247 [121] (Kiefel & Keane JJ).
In the present case, the only provision of s 95(6) read with s 42(1) of the Criminal Procedure Act that might arguably have obliged the prosecution to make disclosure in respect of the High Court judge's reasons for decision is s 95(6)(c) read with par (e) of the definition of 'evidentiary material' in s 42(1). By those provisions, the prosecution is obliged, relevantly, to serve on the accused 'a copy of every other document or object that may assist the accused's defence' that is 'in the possession of the organisation or person who investigated the offence'.
The word 'document' is defined in s 3(1) of the Criminal Procedure Act to mean 'a record that is on paper or that is capable of being put on paper'.
The word 'record' is defined in s 3(1) of the Criminal Procedure Act to mean 'any thing or process':
(a)on or by which information is recorded or stored; or
(b)by means of which a meaning can be conveyed by any means in a visible or recoverable form,
whether or not the use or assistance of some electronic, electrical, mechanical, chemical or other device or process is required to recover or convey the information or meaning.
In PAH, Buss JA made the following observations (McLure P and Hall J agreeing) about the phrase 'that is in the possession of the organisation or person who investigated the offence', at the conclusion of the definition of 'evidentiary material', in s 42(1):
The phrase 'that is in the possession of the organisation or person who investigated the offence', at the conclusion of the definition of [evidentiary material], in s 42(1), is not defined in the Criminal Procedure Act. In my opinion, when s 95 is read with s 42, and in the context of the evident purpose or object of the prosecutor's disclosure obligation under s 95, it is apparent that the reference to 'the organisation or person who investigated the offence' has a broad connotation. Those words are not confined to the police service. They include the Director and [his or her] officers and employees where, for example, the Director or any officer or employee has inquired into or examined the offence in the course of preparing the State's case against the accused for trial [138].
In our opinion, having regard to the nature and purpose of the prosecution's duty of disclosure as an incident of an accused's right to a fair trial, the phrase 'every other document or object that may assist the accused's defence', in par (e) of the definition of 'evidentiary material', should be given a liberal and not a restrictive construction.
However, there is a distinction, for the purposes of par (e) of the definition, between a document or object that may assist the accused's defence, on the one hand, and a document or object that may strengthen the prosecution's case or undermine the defence case, on the other.
A document or object that may strengthen the prosecution's case or undermine the defence case does not assist the accused's defence for the purposes of par (e).
The prosecution's duty of disclosure under s 95(6)(c) read with par (e) of the definition applies to documents or objects that may assist the accused's defence, but does not apply to documents or objects that may strengthen the prosecution's case or undermine the defence case.
The phrase 'every other document or object that may assist the accused's defence', within par (e) of the definition, is not confined to documents or objects that may assist the accused in negating any of the elements of a charged offence. The phrase includes any document or object that may assist the accused in undermining the prosecution's case

or in making out a defence. For example, a document or object may assist the accused in undermining the prosecution's case or in making out a defence if the document or object casts doubt on the credit or reliability of a prosecution witness.

However, the phrase 'every other document or object that may assist the accused's defence', within par (e) of the definition, does not oblige the prosecution to disclose a document or object which casts doubt on the credit or reliability of a defence witness. A document or object of that character strengthens the prosecution's case or undermines the defence case. It does not assist the accused's defence within par (e).
We are therefore of the opinion that, in the present case, the statutory duty of disclosure did not oblige the prosecution to disclose to the appellant the High Court judge's reasons for decision or to serve a copy of the reasons on the appellant.

Conclusion

We agree with the orders proposed by Mitchell JA.

MITCHELL JA:

Summary

The appellant was convicted of three counts of sexually penetrating the complainant without her consent, contrary to s 325 of the Criminal Code (WA). The three offences all allegedly occurred on or about 8 March 2015 at the appellant's winery in Chidlow, where the complainant was working. The appellant was sentenced to a total effective sentence of 6 years' imprisonment, with eligibility for parole. He now appeals against his convictions on nine grounds. The application for leave to appeal on those grounds was referred to the hearing of the appeal.
For the following reasons, none of the grounds have any reasonable prospect of succeeding. Leave to appeal should be refused on all grounds and the appeal should be dismissed.

Background facts

The following background facts were not controversial, either at the trial or on appeal.
The complainant was 24 years old at the date of the alleged offending. She was travelling in Australia on a working holiday visa. She had been working on the appellant's winery, called Chidlow's Well, for a few weeks before the alleged offending. The complainant was not paid for her work at the winery, but received meals and board at a bedroom at the farmhouse. The appellant's wife also lived at the farmhouse. They were joined by a second worker, a 24-year-old South Korean man referred to as Anthony Park, about a week before the alleged offending. He had a separate bedroom at the farmhouse.
At the end of each working day, the appellant, his wife, the complainant and Mr Park would typically eat dinner together and share a bottle of wine. However, on the evening of 7 March 2015, the appellant's wife was not at home. The appellant, the complainant and Mr Park sat down to dinner together on that evening, and at least two bottles of wine were opened. After a time, Mr Park excused himself and went to bed, leaving the appellant and the complainant at a table on the verandah of the farmhouse.

The State's case at trial

The alleged offending occurred on the night of 7 - 8 March 2015, after Mr Park had gone to bed.
The State alleged that, once Mr Park had gone, the appellant's behaviour toward the complainant changed. He began complimenting her, telling her that she was beautiful. He also put his hand onto her hand and held it. She withdrew her hand and got up from the table.[24]
[24] Trial ts 345.
The State said that the details of what happened after this point were not precise. This was because the complainant became overwhelmed by alcohol. She began drifting in and out of consciousness at various points during the night. The State alleged that the appellant either took or followed the incapacitated complainant to her bedroom and repeatedly sexually penetrated her without her consent.[25]
[25] Trial ts 345.
The State alleged that the complainant drifted in and out of consciousness to find the appellant with his head between her legs licking her vagina (count 1) and lying on top of her with his penis in her vagina on two occasions. The first occasion was the subject of count 2, while the last was the subject of count 3. There was a further period when the appellant again licked the complainant's vagina, which was not the subject of a count on the indictment.[26]
[26] Trial ts 345 - 346.
The State alleged that, during these periods when she was conscious, the complainant felt pain in her vagina from the appellant's penis. She struggled against the appellant, told him 'no', kicked him to try and get him off her and even vomited on the bed at one stage. The appellant persisted, telling her 'sshh' when she cried out. It only came to an end when the complainant called out to Mr Park, whose room was a short distance away, for help.[27]
[27] Trial ts 346.
When Mr Park heard the complainant calling out for help, he got up and he went to investigate. He found the complainant lying on her back on the bed with her dress pulled up around her stomach and no underwear on. She was crying. Mr Park saw the appellant lying in the bed next to her with his underwear down and his penis exposed. Mr Park removed the appellant from the complainant's room and took him to the master bedroom on the other side of the house. Mr Park did not know what to do, and left the complainant alone. Mr Park went back to his bed where he lay awake during the rest of the night.[28]
[28] Trial ts 346.
The State alleged that the complainant passed back out of consciousness and did not wake up until the morning. When she woke up, the appellant and Mr Park had already left the winery. The appellant had taken Mr Park to the train station on his own way to the airport. The complainant then contacted her friend, Ms Merino, who was at her home in West Perth, by text message. Ms Merino and her husband, Mr Sydenham, went to collect the complainant from the winery. During the course of text messages, the complainant reported that her boss had attacked and raped her.[29]
[29] Trial ts 346 - 347.
Ms Merino and Mr Sydenham arrived at the winery to find the gate locked. Mr Sydenham climbed over the gate and walked up to the house, where he found the complainant with her luggage visibly upset. When the complainant reached Ms Merino at the gate, she began sobbing. They drove away to Ms Merino's apartment, then to the police station, then to Royal Perth Hospital and then to the Sexual Assault Resource Centre (SARC).[30]
[30] Trial ts 347.
At SARC, Dr Sluchniak, a specialist forensic examiner, performed an external genital examination and found an injury at the entrance of the complainant's vagina, indicating a recent vaginal penetration. Dr Sluchniak could not say from her examination whether the penetration was with a penis, a finger or an object, or whether it was consensual or non-consensual.[31]
[31] Trial ts 347 - 348.

The State contended that the sexual penetrations took place without the complainant's consent. When the complainant was awake and conscious, she did not consent. Rather, she actively resisted and called out for help. When the complainant was asleep or in a drunken stupor, she was incapable of consenting.[32]
[32] Trial ts 351.

The defence case at trial

Mr Rice represented the appellant at trial and made an opening statement at the beginning of the trial.
In that opening, Mr Rice emphasised that the onus of proving each element of the three charges beyond reasonable doubt rested on the State, and the appellant did not have to prove anything.[33]
[33] Trial ts 355 - 356, 358.
After referring to the amount of alcohol drunk on 7 March 2015, Mr Rice invited the jury to consider whether alcohol affected the reliability of the evidence of the complainant and Mr Park. He said:[34]
[Y]ou also need to consider when you consider her evidence and the evidence of Mr Park that they certainly did consume, on their terms, a lot of alcohol, they appeared to be affected by alcohol and to what extent was their memory affected.
Was their memory so badly affected by having consumed alcohol that their recollections are now unreliable, unbelievable or are they accurate? These are things that you need to consider.
And the fact that Mr Park hears something and goes into a room and he says that sees [the appellant], and it's dark but there's a light on somewhere else, what does he see? Now, that's something that you need to consider whether he saw anything which would indicate the commission of the offence or would indicate some suggestion that something had happened. That's something that you will need to consider when you consider his evidence.
You will need to consider the evidence of [the complainant] herself. She seems to be have been so affected by alcohol that she's - she has - when I've asked her a lot of questions, she can't remember. She can't remember, because presumably she's had too much alcohol to drink. That's something that you need to consider.
[34] Trial ts 357.
Mr Rice invited the jury to consider whether the sexual penetrations had occurred at all. He said:[35]
Now, what you also need to consider is whether something did happen, or it's something that she just thought happened when she woke up in the middle of the night and she's got memory flashes, but she can't remember a lot of things. Some things she can remember.
Is her evidence … accurate? Is it reliable? Or is it so affected by alcohol that you can't - that you do have trouble understanding it?
But you need to be satisfied beyond reasonable doubt that sexual penetration did take place in one of the matters that [the appellant] is charged, that it was he that did it, and that she didn't consent …
[35] Trial ts 357 - 358.
Mr Rice asked the jury to consider whether there were any significant differences between what the complainant told Ms Merino and the SARC doctor and what she told the court. He also asked the jury to consider whether it was the complainant who wanted to go to the police, or whether it was simply Ms Merino who thought something had happened. Mr Rice also invited the jury to consider the relevance of the complainant not undertaking a forensic procedure that she could have consented to.[36]
[36] Trial ts 358.
Mr Rice then identified the following matters that the jury should consider:[37]
And what you've first of all got to decide is whether [the appellant] did anything at all as described, whether there was consent, given the amount of alcohol that had been drunk, or what had happened.
Or you may also want to consider whether this is a story that's something that Mr Park and [the complainant] may have put together to allege that he - that [the appellant] had sexually abused her because it was a way, perhaps, of making a complaint that would get them out of working for a very, very hard work in the middle of summer for a winery, and they needed a good reason to get out of that job and move on.
As I say, the defence doesn't have to prove that, but these are matters which the defence ask you to consider.
So when you consider all the evidence, as I said, [the appellant] has pleaded not guilty. He doesn't have to prove anything. It's for the State to prove beyond reasonable doubt.
[37] Trial ts 359.
By these submissions, Mr Rice raised three possibilities inconsistent with the appellant's guilt for the jury to consider:
(1)that the complainant and Mr Park had concocted their story in order to avoid having to work at the winery;
(2)that the complainant and Mr Park may, in their intoxicated state, have imagined what they now recalled; and
(3)that the sexual penetrations occurred, but the complainant consented to them.

Evidence of witnesses called by the State at trial

The following is a summary of the evidence adduced by the State at trial, so far as it relates to the controversial issues of whether the alleged sexual penetrations occurred and, if so, whether they occurred without the complainant's consent.

Complainant's evidence-in-chief

The complainant described the appellant, Mr Park and her having dinner and drinking wine on the verandah of the farmhouse. After they finished one bottle of wine, the appellant asked the complainant and Mr Park if they would have another. They said that they were fine, but that they would help the appellant drink another bottle if he opened one (which he did). The three continued eating and drinking and, after cleaning up the dishes, came back to the verandah and continued drinking.[38]
[38] Trial ts 82 - 83.
The complainant could not remember when, but recalled Mr Park saying he wanted to go back to his bedroom, and leaving. She said:[39]
Then [the appellant] changed a little bit. Like he's start saying, like, 'I' - 'you're beautiful', or like, 'you're' - 'you're really nice', or something like that. And I wasn't comfortable with this. And - but he still doing that and I tried to - he's to remember [the appellant's wife], so I start talk about [the appellant's wife].
[39] Trial ts 83.
The complainant continued:[40]
And - and he was holding my hand. But I didn't want to, so I stand up from the chair because I want to stop him doing that. But then we are talking - like, talking and working around the table. And after that I don't remember everything. I only remember, like, picture.
[40] Trial ts 84.
The complainant gave evidence that the next 'picture' she remembered was the appellant licking her vagina in her bedroom. The complainant was on the bed, but could not remember how she was positioned. The appellant was on the floor. The complainant was wearing a blue dress which had risen up. She was not wearing the underwear she had been wearing at dinner.[41] This was the conduct which was the subject of count 1 on the indictment.
[41] Trial ts 84 - 85.
The complainant said that the next thing she remembered was the appellant's penis in her vagina and feeling pain. She was lying on her back on the bed and the appellant was on her. The complainant had the following exchange with counsel:[42]
Yes?---I was saying, 'No', and I - I tried to like -(Through interpreter) I tried to get his penis out of me.
How did you do that?---(Direct) But - and I - I kicked him and I twist my body, but he didn't do - he didn't stop it.
Now, you said he didn't stop it. I want to ask you about that. Was - was [the appellant] moving or was he still?---His penis was in my vagina still, but he didn't move and he was just - got my kick and didn't do anything. Then I - I scream and I - I say, 'No. No, no', and - and he say to me, 'Shh.'
This conduct was the subject of count 2 on the indictment.
[42] Trial ts 85.
The complainant then said:[43]
Next thing I remember is he's licking my vagina again. And it was one picture. And another picture, he was put his penis in my vagina again.
The complainant said that on the second occasion when the appellant's penis was in her vagina, she felt pain again. She and the appellant were in the same position as the first occasion. She twisted her body, kicked him and screamed 'no'. She vomited on the bed while this was happening, and screamed for Mr Park to help.[44] The second occasion on which the appellant put his penis into the complainant's vagina was the subject of count 3 on the indictment.
[43] Trial ts 85.
[44] Trial ts 86.
Mr Park then came into the room and asked the appellant to leave. The appellant went out of the room with Mr Park. The next thing the complainant remembered was waking up in the morning with no-one else in the house. She texted her friend, Ms Merino.[45]
[45] Trial ts 86 - 88.
The complainant's evidence was that she texted Ms Merino because she needed to move out of the place as soon as possible. She told Ms Merino that she needed to move because the owner had raped her. She took a shower and packed her things, and waited in her bedroom for Ms Merino, who had texted that she and her husband, Mr Sydenham, would come and pick the complainant up. They exchanged text messages while the complainant waited.[46]
[46] Trial ts 88 - 89; 94 - 95.
The complainant identified printouts of text message exchanges between her and Ms Merino. The printouts were tendered, and became exhibits 2 and 3.[47]
[47] Trial ts 89 - 94.
At 8.25 am, the complainant texted:
I really need to move soon. I was attacked in my house from my boss.
I don't know how can I do …
Help me!!!!!
(ellipses in original)
Later in the exchange, at 8.58 am, the complainant texted:
Last night we drink wine after dinner. I was drank.
Then after that boss came to my bed room
Because there was no wife here just last night
At 9.47 am, in response to a question as to whether the complainant's boss touched or hit her, the complainant texted:
Then no only touched.
He rape me
After receiving a number of texts from Ms Merino to the effect that she should make a report to the police, the complainant texted the following message at 9.59 am:
For sure, of course I didn't want to it but I don't remember exactly.
Because I was drank…
(ellipses in original)
The complainant gave evidence that, when they arrived at the winery, Ms Merino and Mr Sydenham could not open the gate. Mr Sydenham jumped over the fence to pick the complainant up from the front of the house. They drove to the gate with the complainant's luggage in a small car she used for her work. The complainant and Mr Sydenham climbed over the gate and drove away. They went to Ms Merino's house, then to the hospital where the complainant got a pill to stop pregnancy, and to SARC where a doctor examined the complainant.[48] The complainant gave evidence that she spoke to Ms Merino and told her what had occurred, but could not remember when she did this.[49]
[48] Trial ts 95 - 97.
[49] Trial ts 97 - 98.
The complainant gave evidence that she had not seen Mr Park since the night of the alleged offence.[50] She said that she had not had sex with anyone before the night of the alleged offence.[51]

Cross‑examination of complainant

[50] Trial ts 97.

[51] Trial ts 98.

In cross‑examination, the complainant accepted that she was in Australia on a working visa which required her to spend a certain period on a farm to continue to stay in Australia. She expected to have worked for three months with the appellant, and had done about three weeks at the date of the offence. She accepted that the work was hot hard work, but denied wanting to leave the job. It was put to the complainant, and she denied, that she made up the incident that the appellant attacked and raped her so she could move to another job with her working visa.[52] She also denied colluding with Mr Park for this purpose.[53]
[52] Trial ts 100 - 103.
[53] Trial ts 135.
Also in cross‑examination, the complainant said that the appellant's wife was away from the farm overnight. Although there had previously been times when the appellant's wife did not join them for dinner, this was the first evening on which she was not at the house.[54] The complainant confirmed she drank wine from the first two bottles, but could not remember if a third bottle was opened or how much she had to drink that night.[55]
[54] Trial ts 104 - 105.
[55] Trial ts 105 - 106.
It was put to the complainant that the appellant was just making a joke when he said she was beautiful, to which the complainant responded 'I wouldn't say so'. The complainant accepted that the appellant was a good employer, who did not do or say anything that made the complainant feel afraid or threatened.[56]
[56] Trial ts 106.
The complainant confirmed that she remembered being at the table with the appellant and then her memory went blank. She could not recall going to bed or how she got into bed. She could not recall her position on the bed when the appellant was first licking her vagina, but remembered the appellant being on the floor on his knees.[57]
[57] Trial ts 107.
The following exchange then occurred in cross‑examination:[58]
Do you have a - I mean you don't remember how you got to bed but do you have a clear - do you have a - a real memory of what - what happened when you - of your next memory of you being on the bed and [the appellant] kneeling down?---I don't remember everything on order but I remember the - like a picture of my mind.
Yes. Do you - do you agree that you would have - because of the amount of wine that you'd had to drink that night, that you were very drunk?---Yes.
Do you think you could have been dreaming what had happened?---I don't think so.
Or had a nightmare, so you thought something bad was happening?---No.
And you say that [the appellant] was licking your vagina?---Yes.
Do you have a clear recollection of that or is that something that you think you remembered later in the morning, next morning?---I remember but my mind - mind was still really drunk.
[58] Trial ts 107 ‑ 108.
The complainant was asked the following question about the first penile penetration (count 2):[59]
Did - do you - do you really remember that happening or do you - - -?---Yes.
- - - or could it be that because of the amount of alcohol you'd had to drink that night that you only thought that it might have happened or - - -?---No, I don't think so.
[59] Trial ts 108.
The complainant said she could not remember if she could see the appellant's penis, and could not remember what he was wearing.[60] She was asked about how she could kick the appellant given his position on top of her.[61] She denied that the pain she felt could be due to her period, which began that morning.[62] She could not recall where the appellant was, or what he was doing, when Mr Park came into the room. She could not remember whether she was still screaming when Mr Park came into the room. She could not remember whether she saw the appellant leave the room.[63] She had no idea what time Mr Park came into her room, and did not know when the appellant had come into her room.[64]
[60] Trial ts 108 - 109, 111.
[61] Trial ts 109.
[62] Trial ts 108 - 109, 115.
[63] Trial ts 111.
[64] Trial ts 112.
The complainant said that the next thing she remembered was waking up in the morning and texting Ms Merino after about 20 ‑ 30 minutes.[65] The complainant was asked the following questions:[66]
And do you think you were still drunk when you woke up in the morning?---I don't think so.
But you were – you were confused about what had happened that night?---Yeah, I was confused. Yeah.
And you had a poor memory of what had happened? I mean, you didn't recall everything that happened?---Yes, I – I didn't remember everything.
…
Were you so confused that you - about [the appellant] coming into your room and doing what you've told us, licking your vagina, putting his penis in you vagina, that these things didn't happen at all?---I got confused because it shouldn't happen. But it - it actually happened. So my - my - my feeling was really confused why - why it happened and - - -
[65] Trial ts 112 - 113.
[66] Trial ts 113 - 114.
Mr Rice referred the complainant to the text messages, and asked why the complainant did not immediately tell Ms Merino that her boss had raped her. The complainant said that she wanted to, but was using a translator to do the text messages from Japanese to English.[67]
[67] Trial ts 115.
The complainant said she did not suffer any physical injuries, but felt pain in her vagina.[68]
[68] Trial ts 115.
The complainant was further cross-examined about the text messages, including a text where she estimated the appellant's age as '[m]aybe 50 something'.[69] It was put to the complainant:[70]
That you might have – because you were drunk you might have agreed to have had sex with [the appellant], but when you woke up the next morning and thought about it you regretted it because [the appellant] was so much older than you?---(Through interpreter) Then why would I yell out for help from [Mr Park].
[69] Trial ts 115 - 116.
[70] Trial ts 118.
Mr Rice adduced evidence from the complainant that she had to climb over the gate to leave the farm, and that there was barbed wire on the gate and fence.[71] He asked whether it was possible that the complainant might have caught barbed wire in her vaginal area in straddling or climbing the barbed wire fence. She denied this was possible.[72]
[71] Trial ts 118 ‑ 122.
[72] Trial ts 122, 129.
The complainant accepted in cross-examination that it was Ms Merino and Mr Sydenham's idea rather than her idea to go to the police station and the hospital (where she was not physically examined).[73] She said that she did not remember telling the doctor at SARC that she did not want samples taken from her vagina for a police investigation and did not want an internal examination.[74] The complainant said that she knew there was an injury to her vagina because she could feel stinging when she urinated.[75] The complainant denied that she might have scratched herself when applying a sanitary pad that morning.[76]
[73] Trial ts 123 ‑ 124.
[74] Trial ts 125 - 126.
[75] Trial ts 128.
[76] Trial ts 128.
The main part of the cross‑examination concluded as follows:[77]
I again put to you that because of the alcohol that you drank that night and the effects of alcohol had on you that night, that you're confused about whether, in fact, [the appellant] did anything to you, as you describe, namely, licking your vagina, putting his penis inside your vagina on at least one or more occasions. But that you - that this simply just didn't happen at all?---(Through interpreter) It's reality.

Re‑examination of complainant

[77] Trial ts 129.

In re-examination, the complainant gave evidence that she did not agree to have sex with the appellant or have him lick her vagina.[78]
[78] Trial ts 136.
After her shower at the farmhouse, the complainant put on long pants, underwear and a t-shirt. These were the same clothes she wore when attending SARC. She did not notice any tearing or holes in the vaginal area of her pants.[79]

Mr Park

[79] Trial ts 136 - 137.

Mr Park gave evidence that he 'went to the dinner [with the appellant and complainant] in the middle of the dinner'. He had one or two glasses of wine, and saw the appellant and complainant drink 'quite a lot' before he left the dinner table. When he left, the appellant and complainant kept drinking and had not finished their dinner yet.[80]
[80] Trial ts 385 - 386.
Mr Park went to his room and went to sleep straight away. He woke up at about 11.50 pm (checking the time on his mobile phone) and heard the complainant crying. He thought the complainant was missing her family and so did not do anything. He went back to sleep again.[81]
[81] Trial ts 386.
Mr Park woke up again and heard a woman crying, calling his name and saying '[n]o; no; no' and 'help me'. He turned on the lamp on the side table by his bed, put on a jumper and went out of his room. He went to the complainant's room, which was next to his. The door of the complainant's room was open. The light was not on, but he could see clearly in the light from the lamp in his room.[82]
[82] Trial ts 386 - 387.

Mr Park saw the complainant and appellant on the bed. She was hiding her face in her hands, had a dress on above her waist and nothing on below her waist. The appellant was lying on his side, facing towards the complainant, with his eyes closed. The appellant was wearing underpants that were just below his hips, and Mr Park could see the appellant's penis, which was not erect.[83]
[83] Trial ts 388 - 390, 404.
Mr Park went to the appellant and called his name. The appellant said 'it's okay' and Mr Park said 'it's not okay'. The appellant woke up and Mr Park took him to the appellant's room. Mr Park saw the appellant enter the appellant's room. Mr Park left and returned to his own room. He could not sleep for two or three hours. He did not go back into the complainant's room.[84]
[84] Trial ts 391.
At about 6 or 7 am the next morning, the appellant took Mr Park to the train station on his way to the airport. He asked Mr Park whether the complainant was okay. Mr Park left the winery the following weekend. Mr Park had not seen the complainant since the incident.[85]
[85] Trial ts 391 - 392.
Mr Park maintained this account under cross-examination. He accepted that he had a holiday visa and expected to work at the winery for over 3 months to get a second visa.[86] He denied discussing with the complainant leaving the winery and going to some other place to work.[87] He said he left the dinner table at about 10 pm because he felt that, if he had any more to drink, he would vomit. The appellant and complainant were drinking from the second bottle of wine when he left.[88] Mr Park said it was about 2 or 3 am when he woke the second time.[89]
[86] Trial ts 393.
[87] Trial ts 394.
[88] Trial ts 395 - 396.
[89] Trial ts 397.
Mr Park was cross-examined at length about the light in the complainant's bedroom and what he could see. He said that there was light from the lamp on his bedside table and some outside lights, and that he could see clearly.[90] He said that he thought that the appellant may have been 'pretending sleeping', but that he could have been asleep.[91]
[90] Trial ts 397 - 402.
[91] Trial ts 403.
Mr Park was asked about the gates and fences at the winery, but could not remember.[92]

Ms Merino

[92] Trial ts 406 - 408.

Ms Merino gave evidence of receiving the text messages referred to above using an application called LINE, which, on her evidence, was popular with Asian people. She identified the photos that were exhibit 2 as coming from her phone, which she had given police.[93] The images comprising exhibit 3 were messages she downloaded herself using the application and sent to police.[94]
[93] Trial ts 491 - 496.
[94] Trial ts 500 - 501.
When Ms Merino and her husband arrived at the winery, Mr Sydenham jumped over the gate while Ms Merino waited outside. Mr Sydenham brought the complainant out with her things. The complainant was sobbing and very tense, upset and nervous.[95]
[95] Trial ts 496 - 497.
When they got back to Ms Merino's apartment in West Perth, the complainant told her what had happened the previous night. As she did so, the complainant was crying, shaking and 'really in a bad state'.[96]
[96] Trial ts 498.
Ms Merino described then attending the police station at her instigation, followed by Royal Perth Hospital and SARC.[97]
[97] Trial ts 499 - 500.
Ms Merino was cross‑examined about the text messages. She agreed that the first time the complainant mentioned anything about rape was in a message sent at 9.47 am.[98] She denied altering the messages in exhibit 3 in any way, and said that police took the screenshots in exhibit 2 when she gave them her phone.[99]
[98] Trial ts 502.
[99] Trial ts 502 - 503, 510.
Ms Merino was also cross-examined about whether there was barbed wire on top of the farm gate. She said there was not.[100] Ms Merino said that it was her idea to go to the police, and that the hospital directed the complainant to SARC.[101]

Mr Sydenham

[100] Trial ts 506.

[101] Trial ts 507 - 508.

Mr Sydenham gave evidence of his wife receiving text messages and their travelling to the winery.[102] He described jumping the gate and finding the complainant at the farmhouse. He observed that she seemed 'sort of scattered' and that:[103]
[S]he was stressing, she was looking round for stuff. And I don't know she just didn't seem a hundred per cent sort of switched on.
[102] Trial ts 419 - 422.
[103] Trial ts 423.
Mr Sydenham described using a golf buggy to take the complainant and her luggage to the bottom of the driveway, where the complainant and Ms Merino embraced and 'there was a bit of sobbing and tears'.[104] Mr Sydenham gave the following evidence‑in‑chief:[105]
Okay. How did [the complainant] get from inside the property to outside the property?---So, with great difficulty. It was - so, I jumped over the gate which is sort of a steel sort of frame, so, it was easy, you could just put yourself over. But [the complainant] being quite a bit smaller, she went for the - just to the side of the gate on the fence which is a little -which is a little lower but - but there's like a wire sort of style fence and it bends, so, she had some problems getting over. We were trying to help her, me and my wife, but, yeah, but she got through.
[104] Trial ts 423.
[105] Trial ts 424.
Mr Sydenham described taking the complainant to their West Perth apartment, to the police, Royal Perth Hospital and SARC.[106]
[106] Trial ts 424 - 426.
In cross-examination, Mr Sydenham said he first became aware of the complainant texting his wife at about 8 am.[107] He could not recall any barbed wire on the gate he climbed over.[108] He confirmed that the complainant had to climb over a fence, rather than getting out through a gap between the gate and fence. He could not recall whether there was barbed wire in the vicinity.[109] He 'just sort of held her hand' to help the complainant get over the fence.[110] Mr Sydenham was not sure if the complainant ripped her clothing getting over the fence, and could not recall what she was wearing.[111]

DSC Vaucher

[107] Trial ts 428.

[108] Trial ts 430.

[109] Trial ts 431.

[110] Trial ts 434.

[111] Trial ts 434 - 435.

The State called Detective Senior Constable Stephen Vaucher as a witness to be available for Mr Rice to cross-examine.
DSC Vaucher said that he took a statement from the complainant on 15 May 2015, and statements from Ms Merino and Mr Sydenham in June 2015.[112] He went to the winery but did not carry out any forensic testing, in part because it was so long after the event. He did take photographs inside the house, but had been unable to locate them.[113]
[112] Trial ts 438.
[113] Trial ts 438 - 439.
DSC Vaucher said that he took the photos in exhibit 2 from Ms Merino's phone.[114] Ms Merino emailed the messages in exhibit 3 to him.[115] He was unsure as to whether police attempted to download messages from the complainant's phone.[116] He said the complainant was hard to contact, before she was eventually located working in a country area with poor cell phone coverage.[117]

Dr Sluchniak

[114] Trial ts 440.

[115] Trial ts 441.

[116] Trial ts 442.

[117] Trial ts 443.

Dr Sluchniak is a medical doctor specialising in forensic medicine working at SARC, who conducted an examination of the complainant on 8 March 2015. She saw the complainant at about 7.40 pm at SARC's premises in Subiaco. The complainant consented to an external genital examination at that time, and subsequently consented to a report of that examination being prepared. She did not consent to a general physical examination or any collection of forensic swabs.[118]
[118] Trial ts 452 - 453.
Dr Sluchniak performed only an external genital examination of the complainant.[119] She noted a superficial laceration of the posterior forchette (the posterior aspect of the vaginal opening) measuring 0.5 cm by 0.2 cm.[120] A laceration is a split or tear in the skin or the mucosa caused by a blunt force (as opposed to an incised wound caused by a sharp force).[121]
[119] Trial ts 456.
[120] Trial ts 457; exhibit 4.
[121] Trial ts 461.
The injury indicated that there had been a vaginal penetration within a matter of days. Dr Sluchniak's could not say from her examination alone whether or not the penetration happened by penis, finger or object, or whether it happened consensually or non-consensually. [122] The injury was not consistent with a straddle type injury, which would be expected to result in other external injuries (other bruising, laceration, or grazes particularly on the labia) that Dr Sluchniak did not observe.[123]
[122] Trial ts 462 - 463.
[123] Trial ts 466.
After Dr Sluchniak's forensic examination of the complainant, medical swabs were taken to conduct screening for infections.[124]
[124] Trial ts 466 - 467.
Under cross‑examination, Dr Sluchniak:
(1)said that the complainant was referred to SARC by Royal Perth Hospital rather than the police, and that she understood that the complainant had declined to come at the suggestion of police and was at SARC for a medical reason;[125]
(2)said that the complainant declined to have an internal vaginal identification, saying that she had never been sexually active before and did not want to have an examination;[126]
(3)said that the injury showed penetration to that point of the labia, but she could not tell whether penetration occurred beyond that point;[127]
(4)maintained her evidence as to the nature of the wound;[128]
(5)accepted that the laceration could have been caused by a fingernail;[129]
(6)said that injury from straddling barbed wire would be a remote possibility, but that it was very unlikely that a single injury would be sustained with that sort of mechanism;[130]
(7)said that it was not possible for the laceration to be caused by something like an allergy or eczema or a condition known as atropic vaginitis;[131]
(8)said that her observations of blood in the low vagina was consistent with the complainant's report that she had begun her period;[132]
(9)accepted that the onset of menstruation could cause pain (most commonly low pelvic or low abdominal pain) in some women;[133] and
(10)said that reports on the medical swabs taken from the complainant indicated that spermatozoa was not seen under limited microscopic examination.[134]
[125] Trial ts 468 - 471.
[126] Trial ts 473.
[127] Trial ts 475.
[128] Trial ts 475 - 477.
[129] Trial ts 477.
[130] Trial ts 477 - 479.
[131] Trial ts 479 - 480.
[132] Trial ts 481.
[133] Trial ts 481.
[134] Trial ts 482 - 483.
In re-examination, Dr Sluchniak said that period pain was not normally associated with urination. However, it was well recognised that genital injuries can cause a stinging sensation when urinating.[135]
[135] Trial ts 484 - 485.

Evidence of witnesses called by the appellant at trial

The State closed its case at about 12.57 pm on 9 August 2017. After the jury retired for lunch, Mr Rice indicated that he would be calling an expert witness after lunch provided his instructions were that the appellant did not want to give evidence.[136]
[136] Trial ts 512 - 513.
According to the transcript, court did not resume until about 2.26 pm.[137] There was a discussion about certain housekeeping matters, after which the trial judge adjourned for a short time to allow certain matters to be resolved. The jury returned at 2.57 pm, and Mr Rice indicated that the appellant would not be giving evidence, but would adduce evidence.[138]

Dr Arun

[137] Trial ts 514.

[138] Trial ts 516 - 517.

The first witness called by the appellant was Dr Angamuthu Arunkalaivanan, who was referred to at trial as 'Dr Arun'. It will be convenient to refer to him as Dr Arun in these reasons. Dr Arun is a medical practitioner registered in Australia with a speciality in obstetrics and gynaecology, who qualified in India and had worked in the United Kingdom. He had experience as a gynaecologist dealing with sexual assault cases.[139]
[139] Trial ts 518 - 520.
The effect of Dr Arun's evidence was that it was possible that the injury to the complainant's vagina could have been caused by digital or speculum examination of the vagina, fingernail injury and certain infections.[140] It was also possible for an isolated injury of that kind to be caused by a female getting over a barbed wire fence.[141]
[140] Trial ts 523 - 524.
[141] Trial ts 524 - 525.
Dr Arun also gave evidence about pain that could be associated with the onset of periods.[142]
[142] Trial ts 530 - 531.
In cross‑examination, Dr Arun agreed that the only reference he could find in support of the proposition that digital examination could cause a vaginal laceration was a study about injuries from forced digital penetration.[143] He reluctantly but eventually conceded that if the medical sample showed bacterial levels to be normal, the injury could be ruled out as being the result of an infection.[144] He accepted that causes such as use of a tampon, speculum or sporting injuries could be ruled out from information the complainant did not experience these things.[145]
[143] Trial ts 531 - 533.
[144] Trial ts 533 - 534.
[145] Trial ts 534 - 535.
Dr Arun said he was aware of only one other case (in which he was not personally involved) in which vaginal injury resulted from contact with barbed wire, which was associated with other injuries.[146]
[146] Trial ts 535 - 536.
Dr Arun did not accept that the pain reported by the complainant was far more likely to be from the laceration than to be period pain.[147]
[147] Trial ts 536 - 537.
Near the end of the prosecutor's cross‑examination of Dr Arun, the following exchange occurred:[148]
[148] Trial ts 537 - 538.
Dr Arun, were you the subject of proceedings in the United Kingdom relating to you inappropriately touching a patient's breasts?---It's not relevant to this case.
It's not relevant to this case?---Not - it is - you are insulting me. I object to it.
Well, Dr Arun, when the High Court of Justice, Queen's Bench Division, case number CO1272014, dealt with your appeal in that matter, did they not say this about you:
It's extremely unfortunate, to say the least, that he left patient A feeling the way that he did. He compounded the situation by not being entirely frank throughout the investigation and the proceedings.
That's what they said about you?---I have no comments. It is not related today. I come as an expert witness. I stick to it. I have no, absolutely no comments on that.
And you are not being frank - - -?---It's beyond your remit.
You are not being frank in these proceedings either, are you?---What - what had it got to do with this?

Mr Duwe

Mr Duwe gave evidence that he had worked on Chidlow's Well winery while on a working visa in 2011. He had installed barbed wire on the gate to the winery while he was there, which had been not altered based on his visit to the winery in 2017.[149]

Ms Wiani

[149] Trial ts 539 - 547.

Bessy Wiani is Mr Duwe's wife, who had been to the appellant's winery with her husband two to three times.[150] She described the difficulty she experienced in climbing over the front gate with its barbed wire.[151]
[150] Trial ts 548 - 549.
[151] Trial ts 549 - 551.
Ms Wiani also gave evidence to the effect that, two days prior to the trial, she had visited the farmhouse at night and looked in the bedrooms in which the complainant and Mr Park had slept. She went into the bedroom which had been occupied by the complainant with the lamp in the other bedroom switched on, and could not really see anything because it was dark.[152]
[152] Trial ts 551 - 554, 563 - 570.
In cross‑examination, Ms Wiani accepted that she had not been to the winery in March 2015, and did not know if the light globe in the lamp was the same.[153] She was also cross-examined as to whether photographs she produced, taken from her phone, reflected how the bedroom appeared to a person actually in the room.[154]
[153] Trial ts 572 - 573.
[154] Trial ts 573 - 575.

Grounds 1 - 3: admission of copies of text messages

Grounds 1 - 3 of the appellant's appeal in effect complain about the admission of the copies of the text messages between the complainant and Ms Merino.[155]
[155] Ground 1 is in the form of a complaint about the trial judge's direction. However, the submissions in support of that ground make it clear that the appellant's concern is with the admission of the evidence rather than the trial judge's direction.
The most relevant parts of the text messages are set out at [89] ‑ [92] above. As noted above, the documents became exhibits 2 and 3. Exhibit 2 was the screenshot of some of the messages taken by DSC Vaucher using Ms Merino's phone. Exhibit 3 was the printout of texts that Mr Merino had downloaded using the LINE application and emailed to DSC Vaucher. Some of the messages passing between the complainant and Ms Merino appear on exhibit 3 but not exhibit 2, apparently because the police did not take screenshots of all of the messages.
The appellant objected to the admission of exhibits 2 and 3. In a pre‑trial ruling, Parry DCJ ruled that the documents were admissible.[156]
[156] Trial ts 193 - 202.
On appeal, the appellant complains that there are 'chain of custody issues' with Ms Merino's mobile phone, which give rise to a miscarriage of justice. He points to the delay between the text messages being sent and Ms Merino sending an email to police with exhibit 3 attached. He also points to the text messages shown on exhibit 3 but not exhibit 2. The appellant submits that when the complainant's phone was sent to a 'qualified technician', 'only irrelevant data was extracted because the complainant had deleted text messages'. The appellant says that these considerations 'lead to the conclusion that the text messages are likely to be an unreliable source of evidence and should be inadmissible'. He says the fact that Ms Merino lacked technical qualifications meant that the download of exhibit 3 may not have been properly performed and should not have been admitted.[157]
[157] Appellant's submissions, par 15 - 30.
If the text messages were admissible, they were admissible as 'recent complaint' evidence. Gaudron and Gummow JJ explained the limited purposes for which statements of that kind may be used in Suresh v The Queen:[158]
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. (citations omitted)
[158] Suresh v The Queen [1998] HCA 23; (1998) 72 ALJR 769 [4].
That is, the text messages were not evidence that the complainant had been sexually assaulted, but were merely evidence of the consistency of the complainant's conduct in alleging that had occurred. Evidence of complaint made at the first reasonable opportunity after the offence occurred was admissible for that purpose. It could not be doubted that any disclosure by the complainant to Ms Merino of sexual offending against her by the appellant made on the morning of 8 March 2015 was made at the first reasonable opportunity.
The trial judge directed the jury as to the manner in which they could use the recent complaint evidence in a manner consistent with these well-established principles.[159]
[159] Trial ts 606 - 608.
The complainant gave direct evidence that she texted and told Ms Merino that the appellant had raped her.[160] Ms Merino gave direct evidence of receiving text messages and hearing an account to that effect.[161] The copies of the text messages corroborated that evidence, but were not necessary to prove the making of a recent complaint by the complainant.
[160] Trial ts 88, 98.
[161] Trial ts 494 - 495, 498.

Parry DCJ held that the copies of the text messages were admissible under s 73A of the Evidence Act 1906 (WA). Section 73A(1) provides:
A document that accurately reproduces the contents of another document is admissible in evidence before a court in the same circumstances, and for the same purposes, as that other document, whether or not that other document still exists.
A printed copy of a text message is clearly a 'document' for the purposes of s 73A(1) of the Evidence Act. In my opinion, an original text message appearing on the screens of a phone can be 'another document' for the purposes of s 73A(1). In reaching that conclusion, I am conscious that the only applicable express definition of the term 'document' in the Evidence Act is in s 3, which provides that 'document includes a part of a document'.[162]
[162] The definition of 'document' in s 79B of the Evidence Act is expressed only to apply to s 79B - s79G of the Evidence Act.
However, there is a general definition of 'document' in s 5 of the Interpretation Act 1984 (WA). Section 5 in part provides that a document includes any 'publication'. Section 5 in part defines 'publication' to mean any 'contrivance by means of which any words or ideas may be … electronically produced, reproduced, represented or conveyed'. At least under these parts of s 5 of the Interpretation Act, a text message sent or received on a phone is a 'publication', and therefore a 'document'.
The definitions in s 5 of the Interpretation Act apply to any written law unless the contrary intention appears.[163] In my view, no relevant contrary intention appears in relation to s 73A of the Evidence Act. Further, the references in s 73A(3)(b) to the contents of a document being recorded by electronic means tends to confirm that electronic documents are 'documents' for the purposes of s 73A of the Evidence Act. The general definition of 'document' in s 5 of the Interpretation Act applies to s 73A(1) of the Evidence Act. A text message sent or received on a mobile phone is therefore a 'document' for the purposes of s 73A(1) of the Evidence Act. A printed copy of a text message will be admissible under s 73A(1) if the court is satisfied that the copy is an accurate reproduction.
[163] See s 3 of the Interpretation Act.
In the present case, the complainant and Ms Merino gave evidence as to the accuracy of the copies of text messages in exhibits 2 and 3. They identified the messages as the texts they sent. Further, it was DSC Vaucher's evidence that he took the screenshots, which became exhibit 2, from Ms Merino's phone. The existence of this evidence meant that it was not necessary to rely on s 73A(2) and determine whether the document accurately reproduced the electronic messages by the means provided for in that sub-section. Evidence of the sending and receiving of text messages can be given directly by the persons who sent and received the messages, who may identify the messages that they sent and received and thereby verify the accuracy of the printed copies of those messages.[164]
[164] This distinguishes the present case from cases such as Bevan v The State of Western Australia [2010] WASCA 101; (2010) 202 A Crim R 27. It is unnecessary to consider whether that case would be decided in the same manner in 2019. See also, Bevan v The State of Western Australia [2012] WASCA 153; (2012) 43 WAR 233.

Ground 4: permitting Mr Park to give evidence from South Korea

Mr Park gave his evidence in the appellant's trial by video link from South Korea. Ground 4 in effect contends that a miscarriage of justice arose from the trial judge's decision to allow Mr Park to give evidence from South Korea. The appellant submits that Mr Park should not have been allowed to give evidence 'beyond the reach of any form of judicial or statutory control when he was at liberty to say as he pleased'.[165]
[165] Appellant's submissions, par 32.
There is no merit to this ground. Section 121(1) of the Evidence Act provides:
Subject to this section, a WA court may, on its own initiative or on the application of a party to a proceeding in or before the court, direct that in that proceeding evidence be taken or a submission be received by video link or audio link from a person at a place, whether in or outside this State, that is outside the courtroom or other place where the court is sitting.
Section 120(1) of the Evidence Act relevantly provides for a 'WA court' to mean 'a court … established in this State under a written law'. The District Court, established by s 7 of the District Court of Western Australia Act 1969 (WA), is clearly a 'WA court' for these purposes. By s 120(2) of the Evidence Act, the reference in s 121(1) to a 'place outside this State' shall be taken to refer to a place outside the State whether within or outside Australia.
Under s 121(2) of the Evidence Act, the court shall not make a direction under s 121(1) unless satisfied the video link or audio link is available or can reasonably be made available. That requirement was clearly satisfied in the present case.
By s 121(2a), the court shall not make such a direction if satisfied the direction is not in the interests of justice. There was nothing about the nature of Mr Park's evidence which compels a conclusion that it was not in the interests of justice for his evidence to be taken by video link. I also note that the use of the video link avoided the consequence of an earlier procedural ruling permitting Mr Park's statement to be read into evidence. This ruling was given at a time when it was thought Mr Park was not willing to give evidence voluntarily.[166] The consequence of that ruling, if implemented, was the loss of any opportunity for the appellant's counsel to challenge Mr Park's evidence by cross‑examination. The use of the video link avoided that consequence. Any difficulty which might be experienced in extraditing Mr Park to face a charge of perjury would not justify refusing to order that his evidence be given by video link in these circumstances.
[166] See trial ts 302 - 310.
Taking Mr Park's evidence by video link from South Korea was authorised by the above provisions of the Evidence Act, and did not give rise to any miscarriage of justice.

Ground 5: alleged prosecutorial non-disclosure

Ground 5 contends that a miscarriage of justice has occurred through the 'failure of the DPP to fully comply with its obligations to disclose all of the relevant evidence'.
Submissions in support of this ground principally concern the photographs which DSC Vaucher took of the inside of the appellant's house, which he was unable to subsequently locate (see [131] above).[167] There is no merit in this point. The obligations of disclosure, either at common law or under the Criminal Procedure Act 2004 (WA), do not relate to material that is not available to the prosecution because it has been accidentally lost or destroyed. The prosecution cannot disclose what they do not have. The fact that the prosecution was not in a position to provide the photos taken by police in the appellant's house - because they had been lost or deleted - does not give rise to a miscarriage of justice.
[167] Appellant's submissions, par 35.
The appellant also refers to 'confusion in testimony when [DSC Vaucher] was asked whether one of his pages of notes was missing'.[168] This submission appears to relate to the following passage of cross‑examination of DSC Vaucher by Mr Rice:[169]
And when you - I think you - you - you also obtained a statement from a Mr Park who's a Korean student or holiday visa holder?---That's correct.
And I think there were some notes from Mr Park that come at a couple of pages?---Yes.
Was there - was one of those pages - did they go missing or - - -?---No, not - not to my recollection, no.
[168] Appellant's submissions, par 36.
[169] Trial ts 439.
The appellant submits that he believes that DSC Vaucher is referring to notes made by Mr Park. The appellant says, in effect, that notes disclosed to him show that a page of notes made by police about Mr Park is missing.
The question of whether a page of interview notes concerning Mr Park was missing was raised at a directions hearing on 16 February 2017, and denied by the prosecutor.[170] Before this court, there is no evidence of any missing notes either made by or about Mr Park. There is no evidence of any material non-disclosure by the prosecution in this respect.
[170] Trial ts 36 - 37.
The appellant also complains that the prosecution did not disclose the material in its possession which formed the basis of the cross‑examination of Dr Arun quoted at [147] above. However, that material went only to the credibility of a defence witness.
At common law, a distinction is drawn between material that might assist the defence case, which must be disclosed, and material that relates only to the credibility of a defence witness. The prosecution's common law duty of disclosure does not extend to disclosing material relevant only to the credibility of defence (as distinct from prosecution) witnesses.[171] Material going only to the credibility of Dr Arun was not material that the prosecution was required to disclose under the common law.
[171] R v Brown (Winston) [1998] AC 367; R v Spiteri [2004] NSWCCA 321; (2004) 61 NSWLR 369 [23] (cited in R v Farquharson [2009] VSCA 307; (2009) 26 VR 410 [213] - [214]); Hobby v The Queen (unreported WASCA; Lib No 990013, 22 January 1999) 54 - 55 (Pidgeon J, Steytler and Wallwork JJ agreeing on this point).
Nor, in my view, did an obligation to disclose the material arise under the Criminal Procedure Act. The only category of 'evidentiary material' under that Act into which it might be argued the material fell was 'a copy of every other document … that may assist the accused's defence'.[172] However, that reference is, in my view, to be understood in light of the distinction drawn at common law, noted in the previous paragraph, between material that assists the defence and material only relevant to the credibility of defence witnesses. The documents which formed the basis of the cross‑examination of Dr Arun, being relevant only to the credibility of a defence witness, were not documents 'that may assist the accused's defence'. It was not 'evidentiary material' which had to be disclosed under the Criminal Procedure Act.
[172] Criminal Procedure Act, s 42(1) (par (e) of the definition of 'evidentiary material').
The State sought to adduce additional evidence in the appeal to the effect that the information about Dr Arun was publicly available. As it is unnecessary for the State to rely on that evidence in the circumstances of this case, given the principles noted above, the State's application to adduce additional evidence in the appeal should be dismissed.
The appellant's submissions also identify certificates of compliance with the Criminal Procedure Act and other documents which it is said were not disclosed.[173] However, there is no evidence that there exist documents which may have assisted the appellant's defence that were not disclosed.
[173] Memorandum of Submissions, page 23.

Ground 6: incompetence of counsel

Ground 6 contends that:
[T]hrough the weight of counsels' aggregation of errors, 13 of which are described in this appeal (there are more) verdicts of guilt should be set aside as being unsafe, unsatisfactory and not supported by the evidence.
The list of 13 errors is expanded to 32 in a memorandum of submissions which the appellant referred to at the hearing of the appeal. Many of the matters raised concern the conduct of the prosecutor rather than the appellant's trial counsel. I have dealt with complaints about alleged prosecutorial non-disclosure above. There is no substance to the other allegations made in relation to the conduct of the prosecutor, which need not be separately addressed. I address the concerns relating to the conduct of the appellant's own trial counsel below.

General principles

The relevant general principles as to when a miscarriage of justice may arise through incompetent representation were recently summarised by this court in Huggins v The State of Western Australia.[174] I adopt that comprehensive analysis without repeating it, noting the following passage of the reasons in that case:[175]
An appellant who seeks to demonstrate that the conduct of his or her counsel caused a miscarriage of justice undertakes a heavy burden which is not easily discharged. This is a consequence of the adversarial nature of a criminal trial and the role played by counsel. Ordinarily, an accused is bound by the way the trial is conducted by counsel even if that was not in accordance with the wishes of the client. It is not a ground for setting aside a conviction that decisions made by counsel were made without or contrary to instructions or involved errors of judgment or even negligence. It is not the province of appellate courts to review the wisdom or prudence of the conduct of a trial by trial counsel. For example, an apparently rational decision by trial counsel as to what evidence to call or not to call does not give rise to a miscarriage of justice simply because an appellate court thinks it worked to the probable disadvantage of the appellant. (citations omitted)
[174] Huggins v The State of Western Australia [2018] WASCA 61 [376] - [401].
[175] Huggins [376].
Further, as was recently reiterated in Jeffery v The State of Western Australia,[176] this court does not examine whether a decision taken by the accused's counsel at the trial was, in fact, taken for the purpose of obtaining a forensic advantage or avoiding a forensic disadvantage. Rather, the court is concerned only with whether counsel's decision is capable of explanation on that basis. That is, could there be any reasonable explanation for the decision? The test is objective in character.
[176] Jeffery v The State of Western Australia [2018] WASCA 219 [104] (citing Buss P in Rodi v The State of Western Australia [2017] WASCA 81; (2017) 51 WAR 96 [115]).
I turn to address the particular matters of concern raised by the appellant.

Failure to adduce evidence of anti-depressant medication

The appellant's submissions assert that Mr Rice was informed and asked to adduce evidence that the appellant had been prescribed anti‑depressant medication - LEXAPRO or its generic equivalent - since 2010. The appellant submits:[177]
The side effects of the medication are impotence and weight gain. The consequence of this is that penile penetration as pertains to the appellant's charges is impossible.
[177] Appellant's submissions, par 40.
In support of this contention the appellant seeks to adduce, as additional evidence in the appeal, a product information sheet for LEXAPRO tablets. The document indicates that data from short term placebo controlled studies showed that, of 2632 patients treated, 22 (or 2.2%) reported symptoms of 'impotence', which was a 'statistically significant' difference from the 0.6% of patients taking a placebo. He also seeks to adduce evidence of medical records showing he was prescribed LEXAPRO.[178]
[178] Appellant's affidavit sworn 13 June 2019.
However, there is no evidence (as opposed to assertive submissions) either at trial or on appeal that the appellant suffered from impotence, or as to any instructions he gave Mr Rice in relation to that issue. The appellant's submissions appear to proceed on the basis that the product information sheet proves that he was impotent. That ignores the very small percentage of patients treated with LEXAPRO who reported symptoms of 'impotence'. There is nothing to suggest that there would have been any forensic advantage to the appellant adducing evidence of his prescriptions and the product information sheet.

Text messages

The appellant complains that Mr Rice did not ask the complainant why she deleted text messages from her phone before it was given to police. He also failed to ask questions of the complainant and Ms Merino as to 'fabrication and falsification of text messages'. He also expressed a concern that Mr Rice 'ineffectively challenged chain of custody issues'.[179]
[179] Appellant's submissions, par 42 - 43.
There is no substance in these complaints. Neither the complainant nor DSC Vaucher gave evidence that the complainant deleted messages from her phone. The notion that she did is a matter of speculation on the part of the appellant. Ms Merino was asked by Mr Rice whether she altered the messages in exhibit 3 and denied doing so.[180] There was no reason to think that asking the complainant whether she altered messages on Ms Merino's phone would obtain an answer helpful to the appellant's case. Mr Rice did object to the evidence of text messages being adduced at trial. The trial judge noted that it had not been put to the complainant or Ms Merino that there was any tampering or falsification of text messages.[181] However, there is no evidence that Mr Rice had any legitimate forensic basis which would allow him to put such an allegation of fraud to those witnesses.

Mr Park's evidence

[180] Trial ts 503.

[181] Trial ts 516.

The appellant asserts that Mr Rice 'overlooked testing the competency' of Mr Park. He asserts that a comparison of Mr Park's evidence and deposition 'shows he is prone to embellishment and exaggeration'.[182]
[182] Appellant's submissions, par 44.
There is no evidentiary basis for these assertions. There is nothing to suggest that Mr Park was not competent to give evidence at trial, and his evidence was consistent with his deposition. Mr Rice did challenge Mr Park's evidence in cross-examination (see [117] - [119] above).
The appellant also complains that Mr Rice did not challenge the use of a video link for Mr Park's evidence.[183] For the reasons explained in dealing with ground 4, there was no basis for Mr Rice to have challenged the use of the video link. Any objection which Mr Rice might have raised would properly have been overruled. In any event, Mr Park giving evidence worked to the appellant's forensic advantage as it enabled the evidence (which would otherwise have been read from his deposition) to be challenged by cross‑examination.

Appellant's interview with police

[183] Appellant's submissions, par 45.

The appellant complains that Mr Rice 'failed to request a voir-dire in relation to the record of police interview of the [appellant]'.[184] However, the recorded interview was not adduced in evidence at the trial, so the occasion for challenging its admission into evidence in a voir-dire did not arise.

Questions about coaching

[184] Appellant's submissions, par 45.

The appellant contends that Mr Rice:[185]
[O]verlooked asking each of the witnesses if they had been told to or asked to say anything. Were they led into saying 'I don't remember' when it suited their or the prosecution story?
[185] Appellant's submissions, par 46.
There is nothing beyond the appellant's speculation to suggest that any of the witnesses called by the State were improperly coached in giving evidence. It was an objectively reasonable view for Mr Rice to have taken that asking the questions proposed by the appellant would not have assisted the defence case.

Police running sheet

The appellant says that a police running sheet makes a record of a telephone conversation between a police officer and someone purporting to be the complainant and Mr Sydenham.[186] The running sheet and the conversation it records were not adduced in evidence at trial. I can see no potential forensic advantage that might have been gained by Mr Rice asking any questions about this conversation.

Dr Sluchniak's evidence

[186] Appellant's submissions, par 47.

The appellant complains that Mr Rice failed to 'satisfactorily discredit the prosecution's expert witness using the paper by Dr T Speedie'.[187] The effect of the appellant's submissions is that the paper demonstrates that the complainant's vaginal injury could have been caused by an examination (conducted against her will) with a 'modern speculum'.[188] The paper itself was not in evidence at trial and has not been placed before this court. In the absence of this evidence, the complaint is unsustainable.
[187] Appellant's submissions, par 48.
[188] Appellant's submissions, par 48.

Further, even assuming that the appellant has accurately described the effect of Dr Speedie's paper, a difficulty with this submission remains. The only evidence was that the examination was conducted with the complainant's consent. The evidence was that a speculum was not used prior to the time when Dr Sluchniak observed the laceration. Even assuming that the appellant has given an accurate account of what the paper by Dr Speedie says about the potential for an examination to lead to vaginal injury, it would not have assisted the appellant in the absence of evidence that an examination of the kind described was performed.
The appellant also makes entirely unsubstantiated assertions about Dr Sluchniak's professionalism, which Mr Rice would have had no reasonable forensic basis for putting to the doctor.[189]
[189] Appellant's submissions, par 49 - 50.
The appellant also submits, in effect, that Mr Rice focused on whether the complainant's vaginal injury could have been caused by a barbed wire prong pricking her vagina, rather than as a result of stretching over the fence.[190] The appellant submits that a miscarriage arose from Mr Rice presenting an argument for which there was no evidence. However, Dr Arun did give evidence that the injury could have been caused by barbed wire. There is no evidence, either at trial or before this court, to suggest that it could have been caused by stretching (which would be inconsistent with Dr Sluchniak's evidence that it was a blunt force injury).

Advice as to the appellant giving evidence

[190] Memorandum of Submissions, page 28.

The appellant makes the following statement in his Memorandum of Submissions:[191]
A tenth area of concern was the failure of defence counsel to explain to the appellant that by not taking the stand to testify the jury could not have sworn or unsworn evidence from the appellant refuting the 'Complainant's' testimony. The question of whether or not to the appellant should testify was canvassed only for a fleeting moment while he was in the dock. The was no discussion of the of [sic] the merits or how the prosecutor might cross-examine the appellant. (Jeffery v State of WA)
[191] Memorandum of Submissions, page 28.
In Jeffery,[192] it was held that a miscarriage of justice occurred because inadequate advice was given to Mr Jeffery by his legal advisers about his choice of whether or not to give evidence. Relevantly, defence counsel spoke to Mr Jeffery while he was in the dock, after the prosecutor in that case had closed the State's case and shortly before the trial was to resume after the lunch adjournment. It was found that they did not discuss the factors which caused counsel to advise Mr Jeffery not to testify, all of which (in the court's view) were debateable and one of which was incorrect. That occurred in circumstances where the court was satisfied that, on an objective assessment of the relevant facts and circumstances, there was, in substance, no forensic reason to not call Mr Jeffery as a witness.
[192] Jeffery [189] - [194].
In contrast to the position in Jeffery, in the present case there is no evidence as to the advice that Mr Rice gave to the appellant as to whether he should give evidence at trial. There is no evidence as to the instructions which the appellant gave, or the evidence which the appellant would have given if he had elected to give evidence at trial. Further, in this case there would have been an objective forensic disadvantage to the appellant giving evidence. At trial he had challenged the prosecution case on two mutually inconsistent bases: (1) the sexual conduct alleged did not occur; and (2) the complainant consented to sex with the appellant. The breadth of that challenge is maintained on appeal. If the appellant had given evidence then, for the evidence to assist his case, he would have had to say either that the sexual conduct did not happen at all or say that it happened but with the complainant's consent. An election to give evidence would, in practical terms, mean giving away one of the bases on which the appellant sought to challenge the prosecution case at trial (bases that are maintained on this appeal).
The submission that a miscarriage of justice arose from the appellant receiving limited advice as to whether he should elect to give evidence at trial lacks any factual foundation in the evidence. There is no evidence that the appellant's trial was unfair because the exercise of his right to give evidence in his defence was effectively foreclosed by the receipt of incorrect advice.[193]

Failure to request an adjournment

[193] See Craig v The Queen [2018] HCA 13; (2018) 92 ALJR 390 [26] - [27], [32] - [33]; Morgan v The State of Western Australia [2019] WASCA 185 [207] - [208].

The appellant submits that Mr Rice received a grant of legal aid only a few days before the pre-recording of the complainant's evidence, and that he should have sought an adjournment.[194] Again, the complaint is made by assertive submission in the absence of any substantiating evidence. Further, Mr Rice was able to cross-examine the complainant in a competent manner, and the appellant's submissions do not point to any questions which were not asked that could be expected to have materially improved the appellant's position. There is no basis for concluding that an adjournment was required, or that any miscarriage of justice arose from the failure to request an adjournment of the complainant's pre-recorded evidence.

Failure to visit the scene of the alleged offences

[194] Memorandum of Submissions, page 28.

The appellant says that Mr Rice did not visit the site where the alleged offences occurred and so was 'unable to appreciate the relevance of the blackout blinds, the rooms and more'.[195] However, Mr Rice was neither a witness nor a decision-maker in the case. His role was to take instructions, adduce evidence and test the State's witnesses. There is no proper basis for asserting that Mr Rice could not properly fulfil that role without himself going to see the appellant's house, which he could only have done about 2 years after the alleged events occurred.

Conclusion as to ground 6

[195] Memorandum of Submissions, page 28.

None of the matters that the appellant raises, considered either in isolation or in combination, establish that Mr Rice's conduct resulted in any material irregularity in the appellant's trial that might have affected the outcome. There is no arguable basis in the evidence for contending that a miscarriage of justice arose from Mr Rice's conduct.

Grounds 7 - 9: unreasonable verdicts

Grounds 7 - 9 raise different particulars of a single contention: that the verdicts of guilty should be set aside because, having regard to the evidence, they were unreasonable or cannot be supported.[196]

General principles

[196] Section 30(3)(a) of the Criminal Appeals Act.

The general principles governing an appeal on this ground are well‑established.[197] In summary:
[197] See Wells v The State of Western Australia [2017] WASCA 27 [13] and cases there cited; Gibbs v The State of Western Australia [2018] WASCA 68 [28] - [34].
(1)The appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence. It is not simply a matter of deciding whether as a matter of law there was evidence to support the verdict. The appeal court must determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand.
(2)The question for the appeal court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
(3)That question requires consideration of whether the jury must, as distinct from might, have entertained a reasonable doubt about the accused's guilt.
(4)In answering that question, the appeal court must pay full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the jury had of seeing and hearing the witnesses.
(5)A doubt experienced by an appellate court would be a doubt which a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt.
(6)If the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the appellate court must set aside the verdict.
(7)The setting aside of a jury's verdict on the ground that it is unreasonable within the meaning of s 30(3)(a) of the Criminal Appeals Act 2004 (WA) is a serious step, not to be taken without regard to the advantage enjoyed by the jury over an appellate court which has not seen or heard the witnesses called at trial.

Disposition

My review of the whole of the evidence adduced at trial does not give rise, in my mind, to a reasonable doubt as to the appellant's guilt of the offences of which he was convicted.
The complainant's evidence, if accepted, establishes that the appellant sexually penetrated her in the manner alleged in the indictment, without her consent.
Clearly, it was necessary for the jury to be satisfied, beyond reasonable doubt, that the complainant's evidence was accurate and reliable before returning a verdict of guilty on any of the charges. The complainant's limited recollection of the events after dinner on 7 March 2015, and her memory being in 'pictures', provides grounds for approaching the complainant's evidence with some caution. That is so despite the evidence of recent complaint and the complainant's distressed state when collected at the farm by Ms Merino and Mr Sydenham.
However, the complainant's evidence was corroborated in important respects by the evidence of Mr Park and Dr Sluchniak.
The theory advanced at trial that, in her drunken state, the complainant simply imagined the sexual conduct was inconsistent with the evidence of both Mr Park and Dr Sluchniak. Mr Park's evidence of seeing the appellant and the complainant in the complainant's bed showed that the sexual activity was not simply a figment of the complainant's imagination. Dr Sluchniak's evidence of the vaginal injury was evidence that sexual penetration had occurred, in circumstances where the evidence of the complainant's activities since the alleged offence did not disclose any other potential cause of the injury. The suggestion that the injury might have been caused when the complainant climbed over barbed wire was inconsistent with the absence of any tearing of the complainant's pants and the location and isolated nature of the injury. Dr Sluchniak's evidence was that the injury was not consistent with a straddle type injury, which would be expected to result in other external injuries. Dr Arun could find only one reported example of a vaginal injury associated with barbed wire, and that was accompanied by other injuries.
Mr Park's evidence also corroborated the complainant's evidence that she did not consent to the appellant's sexual conduct. He heard the complainant crying when he first woke at about 11.50 pm. He heard the complainant crying, calling his name and saying '[n]o; no; no' and 'help me' when he woke on the second occasion.
The theory advanced at trial that the complainant and Mr Park had concocted a story in order to leave the winery was far-fetched. Mr Park had known the complainant for only about a week, and did not see her after the night of the alleged offences. It was inherently implausible that he would lie to police and the court about what occurred, for the complainant's benefit. There was no evidence that there was anything preventing the complainant or Mr Park from leaving the winery if they wanted to. A desire to leave the winery (the existence of which was inconsistent with the complainant's and Mr Park's evidence) did not provide a motivation for them to lie about the appellant sexually assaulting the complainant.
In my view, it was well open to the jury to be satisfied beyond reasonable doubt that the complainant's recollection of being sexually penetrated by the appellant, without her consent, in the manner charged, was accurate.
The appellant's submissions identify what he describes as '35 items of circumstantial evidence which point to consent'.[198] Many of those submissions proceed by way of material not admitted in evidence at trial. None of the matters referred to,[199] either alone or in combination, detract from the force of the evidence referred to above.
[198] Memorandum of Submissions, pages 3 - 6.
[199] See also Appellant's submissions, par 63 - 83.
There was no evidence suggesting that the appellant honestly and reasonably, but mistakenly, believed that the complainant was consenting to the charged sexual conduct.
In my view, it was well open to the jury to be satisfied, beyond reasonable doubt upon the whole of the evidence, that the appellant was guilty of all three charged offences. My review of the evidence led at trial and the appellant's submissions does not leave me with a reasonable doubt as to the appellant's guilt of those offences. In my view, the evidence at trial, taken as a whole, does not admit of any significant possibility that an innocent person has been convicted.

Orders

For the above reasons, none of the appellant's grounds of appeal are even arguably established. There is no proper basis for admitting any additional evidence in the appeal, or for making other orders sought by the appellant in applications in the appeal. I would make the following orders:
(1)The respondent's application in an appeal filed on 14 January 2019 (seeking to adduce additional evidence in the appeal) is dismissed.
(2)The appellant's applications in the appeal filed on 19 June 2019 (seeking to adduce additional evidence in the appeal) and 3 July 2019 (seeking various orders) are dismissed.
(3)Leave to appeal is refused on all of the grounds contained in the appellant's case.
(4)The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ET
Associate to the Honourable Justice Mitchell
6 DECEMBER 2019