Criddle v The State of Western Australia
[2017] WASCA 17
•1 FEBRUARY 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: CRIDDLE -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 17
CORAM: MARTIN CJ
MAZZA JA
MITCHELL JA
HEARD: 14 JUNE 2016
DELIVERED : 14 JUNE 2016
PUBLISHED : 1 FEBRUARY 2017
FILE NO/S: CACR 92 of 2015
BETWEEN: ERRON JAMES CRIDDLE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :SCHOOMBEE DCJ
File No :IND 908 of 2014
Catchwords:
Criminal law - Appeal against conviction - Sexual penetration of a child under 13 years - Incompetence of counsel - Failure to adduce evidence and miscarriage of justice - Trial judge’s statement on admissibility of evidence and miscarriage of justice - Voice recognition evidence - Smell recognition evidence - Whether trial judge erred in failing to give a Domican warning - Whether trial judge erred in failing to give a Longman direction
Legislation:
Criminal Appeals Act 2004 (WA), s 30(3)(a), s 30(4), s 40(1)(e)
Criminal Code (WA), s 320(2)
Result:
Appeal allowed
Conviction set aside
Retrial ordered
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Mr L M Fox
Solicitors:
Appellant: In person
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438
Anderson v The Queen (1991) 53 A Crim R 421
Anderson v The State of Western Australia [2014] WASCA 137; (2014) 46 WAR 363
Aravena v The Queen [2015] NSWCCA 288; (2015) 91 NSWLR 258
Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50
Bulejcik v The Queen [1996] HCA 50; (1996) 185 CLR 375
Burns v The Queen [1975] HCA 21; (1975) 132 CLR 258
Cleland v The Queen (1982) 151 CLR 1
Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; (1984) 154 CLR 627
Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555
Durani v The State of Western Australia [2012] WASCA 172
EAGD v The State of Western Australia [No 2] [2014] WASCA 68
FGC v The State of Western Australia [2008] WASCA 47
Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024
Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
McMahon v The State of Western Australia [2010] WASCA 143
Omar v The State of Western Australia [2009] WASCA 198
R v Evan [2006] QCA 527; (2006) 175 A Crim R 1
R v Taufahema [2004] HCA 11; (2007) 228 CLR 232
Smith v The State of Western Australia [2014] WASCA 90
SPB v The State of Western Australia [2012] WASCA 136
TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124
Winmar v The State of Western Australia [2007] WASCA 244; (2007) 35 WAR 159
TABLE OF CONTENTS
The charge
The trial
The appeal
Overview of the State case
The defence case
The evidence at trial
E's evidence
Evidence of Ms T
Evidence of Mr T
Evidence of Detective Senior Constable Abdul Sharif
Evidence of Susan Boyett
Evidence of I
The evidence of the appellant
Closing addresses
The State
The appellant
The summing up
Grounds 3 and 5 - E's recognition evidence
Submissions
Admissibility
Domican warning
Ground 1 - voir dire?
Ground 2 - miscarriage of justice by reason of defence counsel's alleged failure to obtain weather information for the night of 3 February 2012
Additional evidence - the temperature on the night of 3 February 2012
Ground 2 - submissions
Ground 2 - legal principles
Ground 2 - disposition
Ground 4 - E's post‑offence behaviour
Ground 4 - disposition
Ground 6 - was a Longman direction required?
Ground 7 - was her Honour's summing up unbalanced?
Ground 8 - was the verdict of guilty unreasonable?
Legal principles
Appellant's submissions
Ground 8 - disposition
The proviso
Other matters
Retrial or acquittal?
REASONS OF THE COURT: At the conclusion of the hearing of this appeal against conviction on 14 June 2016, the court made the following orders:
1.the appeal is allowed;
2.the conviction is quashed; and
3.that there be a retrial (appeal ts 121).
What follows are our reasons for making these orders.
The charge
The appellant was charged on indictment in the District Court with one offence, contrary to s 320(2) of the Criminal Code (WA), as follows:
On or about 3 February 2012 at [a suburb of Perth] [the appellant] sexually penetrated [E], a child under the age of 13 years, by penetrating her vagina with his finger (BAB 1).
The trial
The appellant's trial before Schoombee DCJ and a jury commenced on 3 March 2015. The appellant was represented during the first day of the trial by counsel, Ms S Monck, who cross‑examined E and her mother. On 4 March 2015, the appellant dispensed with Ms Monck's services because of concern about her level of preparation and the content of her cross‑examination of E. He applied for an adjournment of the trial to obtain alternative counsel, but the application was refused. Her Honour allowed the appellant time to prepare for the rest of the trial and spoke to him in open court with a view to giving him basic knowledge of how to conduct his defence. For the rest of the trial the appellant represented himself. On 10 March 2015, he was found guilty by the jury and was duly convicted (ts 357). On 7 May 2015, the appellant was sentenced to 3 years' immediate imprisonment with eligibility for parole (BAB 2).
The appeal
On 28 May 2015, the appellant filed his notice of appeal. Throughout these proceedings, he has represented himself.
On 8 February 2016, the appellant filed a document dated 3 February 2016 which was ordered to stand as the appellant's case in this appeal: WAB 4.
The appellant sought to rely, in his appellant's case, on eight grounds of appeal. Grounds 1 ‑ 3 allege a miscarriage of justice predominantly because of the alleged incompetence of defence counsel. Ground 4 alleges a miscarriage of justice by reason of inadmissible evidence being adduced at trial. Ground 5 alleges that the trial judge erred by failing to direct the jury with respect to evidence led from E that she identified the appellant as the offender by recognising his voice. The respondent concedes this ground, but seeks to invoke the proviso pursuant to s 30(4) of the Criminal Appeals Act 2004 (WA). Ground 6 alleges that her Honour erred by not giving a Longman direction. Ground 7 alleges that the trial judge's summing up was unbalanced and unduly favoured the prosecution. Ground 8 alleges that the verdict of guilty was unreasonable and cannot be supported on the evidence. The question of leave to appeal in respect of all of these grounds was referred to the hearing of the appeal.
In support of grounds 1 ‑ 3, the appellant filed several applications to adduce additional evidence in the appeal pursuant to s 40(1)(e) of the Criminal Appeals Act. At the hearing of the appeal, the appellant sought to rely on only two of those applications, being an application dated 3 February 2016 in which the appellant sought leave to adduce evidence contained in an affidavit sworn by him on 3 February 2016 (WAB 8 ‑ 11); and a further application made on 4 March 2016 to produce another affidavit sworn by the appellant on 2 March 2016 (WAB 30 ‑ 40).
The State sought leave to adduce additional evidence by way of an application filed 24 February 2016 being an affidavit sworn by Ms Monck on 24 February 2016: WAB 24 ‑ 29.
At the hearing of the appeal, this court heard oral evidence from Ms Monck and from the appellant. Each was cross‑examined.
Overview of the State case
The alleged victim in this case is a female child, E. At the time of the alleged offence she was 11 years old and less than one week away from her 12th birthday. E is the child of Mr and Ms T. E's older brother, who we will refer to as I, is about four years older than his sister (ts 80).
The appellant and Mr T first met in 1987 (ts 146). The appellant and Mr T became very close friends. The appellant was a frequent visitor to Mr and Ms T's house, often staying overnight in the guest bedroom which was close to E and I's bedrooms (ts 147, 146).
On 31 January 2012, E went on a school camp. She returned on 3 February 2012 and went to bed at about 9.00 pm. I, who had also gone on a school camp, did not return until the afternoon of 4 February 2012 (ts 193 ‑ 194).
According to E, the night of 3 February 2012 was a hot night. As a consequence, she slept naked. She woke up during the night to find an adult male in her bed lying next to her, positioned directly behind her. While in that position, the male penetrated E's vagina with his finger. E yelled at the male, 'Go away'. The male whispered 'Shh. Don't tell your parents' and left E's room (ts 37).
E did not see the appellant, but she identified him as the offender because she recognised the voice as his voice when he spoke to her and because he had a smell which she recognised as his from previous occasions.
E did not make an immediate complaint because the appellant and her father were best friends and she did not want to upset him (ts 40). However, on the morning of 4 February 2012 she made an entry in her diary for 3 February 2012 which read: 'Erron did something last night'. E later crossed this entry out. The State relied on the diary entry to fix the offence as being committed on 3 February 2012.
In about September 2013, E disclosed what had happened to her to a friend.
On 14 September 2013, E told her brother and then her parents what the appellant had done to her. E's parents searched her bedroom and found E's 2012 diary.
On 15 September 2013, Mr T met with the appellant outside some business premises in Malaga where they had a conversation. Mr T accused the appellant of doing 'something' to E. According to Mr T the appellant responded: 'I don't know why I am doing these things and I can't remember' (ts 154). The State alleged that the appellant's response constituted an admission.
The defence case
The appellant elected to give evidence in his defence.
The appellant testified that he had searched his telephone records for 3 February 2012 and while they showed him to be in the vicinity of E's house, he stated that he had other friends living in the area whom he may have been visiting (ts 237). While he accepted that he could have been at Mr and Ms T's house, he said that he did not know whether he was or was not. Whatever the position, he denied committing the alleged offence. He also denied making an admission to Mr T on 15 September 2013.
The evidence at trial
E's evidence
E's evidence comprised two visually‑recorded interviews made on 23 September 2013 and 8 May 2014 as well as her sworn evidence on 3 March 2015.
In the visually‑recorded interview of 23 September 2013, E told the interviewer that she had come to talk about what the appellant did on 3 February 2012 (BAB 260). She said that she knew that the incident had occurred on that day because she wrote it in her diary (BAB 263). She said that she had just got back from her school orientation camp (BAB 268). She said that the night in question was 'quite hot', 'one of those heatwave sort of things', 'getting 50 degree days' (BAB 272). She said that because of the heat she was 'completely naked' (BAB 272). She said that she awoke to find the appellant 'right beside me in the bed' (BAB 260) and that he was touching her. When she was asked to elaborate on this she said that the appellant 'had his finger on my front part' and that 'he kept licking his finger and putting it there' (BAB 269). E said that she yelled 'go away' (BAB 261) and that the appellant responded by whispering to her 'Shh. Don't tell your parents' (BAB 261).
E told the interviewer that on 4 February 2012, she wrote in her diary 'Erron did something last night' but that she later crossed it out because she did not want to remember the incident (BAB 264).
E said that the appellant gave her some 'really expensive earrings' for her twelfth birthday on 8 February 2012 (BAB 266 ‑ 267).
E said that the first person she told what had happened to her was her best friend, L (BAB 261, 275). L advised E to tell her parents (BAB 261). Approximately a week or two after this, E told her parents and her brother (AB 261, 276 ‑ 278). In the visually‑recorded interview on 8 May 2014, the appellant described what occurred on 3 February 2012 in this way:
Q. … And what happened, happened on 3 February 2012?
A. Yep.
Q. At your home address?
A. Yes.
Q. Okay. And you were in your bedroom and you were sleeping naked?
A. Yeah.
Q. Okay. Tell me everything that happened when you were sleeping naked in as much detail as you can, and just start at the beginning?
A. Okay. Well, I'd gone to bed and it was ‑ ‑ would be about ‑ ‑ late at night, cos my parents' were asleep. And he had gone to bed, and I heard ‑ ‑ like, I was ‑ ‑ I was asleep and I felt someone like, get in to the bed.
Q. Mm hm?
A. And he licked his finger and wiped it on my vagina. And he does this for a while. I was terrified so I didn't move or do anything. A little while later, I tell him to stop.
Q. Mm hm?
A. And at that time, my brother who is usually in the bedroom next to me was actually on a school camp.
Q. Mm hm?
A. So ‑ ‑ cos my parents' bedrooms are a way down the hall. And he whispered in my ear, 'Shh, don't tell your parents,' and went back to his own ‑ ‑ the spare bedroom. And I didn't sleep for the rest of that night.
Q. What happened when he wiped his finger on your vagina?
A. He wiped it down near the hole and a bit into the hole, and ‑ ‑ yeah.
Q. Tell me more about the part where he went a bit into the hole?
A. Like, it hurt so I ‑ ‑ that's when I told him to stop because I was really terrified, and ‑ ‑ yeah.
Q. And what went into the hole?
A. His finger.
Q. And tell me more about the part where it hurt?
A. Well, I felt like pain, and that's when I told him to stop.
Q. And where did you feel the pain?
A. In my vagina.
Q. And then what happened?
A. He kept doing that and then I told him to stop, and he whispered in my ear, and that's when he went back (BAB 285 ‑ 286).
In her sworn evidence E confirmed that what she had said in her visually‑recorded interviews was true (ts 33).
She confirmed that on the night in question she wore nothing because it was summer and there was a heatwave (ts 35). E said that there was a pedestal fan in her room at the time (ts 36). She said that she woke up because she felt a pain in her vagina (ts 36). She said that she knew that the appellant was next to her because of his 'stench' (ts 36). She said that she heard the appellant lick his finger after he had taken it out of her vagina and that, after doing so, he wiped it on her vagina (ts 36 ‑ 37). E confirmed that the appellant whispered 'Shh. Don't tell your parents' (ts 37). E said that she recognised the appellant's voice, having heard his voice on previous occasions (ts 37).
E said she did not tell her parents what happened that night because she 'was scared about the outcome'. She explained that she realised her father 'was best friends with the appellant' (ts 40). E testified that after the alleged offence the appellant contacted her via FaceTime and that he sent text messages to her mobile telephone (ts 41). She also said that the appellant called her 'his little princess' (ts 41).
Under cross‑examination by defence counsel, E was questioned about the diary in which she wrote the words 'Erron did something last night'. Although it was not directly put to her, the cross‑examination insinuated that the entry had not been made at about the time of the alleged offence.
Defence counsel cross‑examined E about her failure to make a recent complaint, and particularly why she did not tell her mother and her friend about what had occurred. E repeated the evidence she gave in examination‑in‑chief, that she did not tell her parents because the appellant was best friends with Mr T. She said that she did not tell her friend because she was unsure whether she could trust her at the time (2012). She explained that she did not tell her mother because her mother would have told her father (ts 49 ‑ 50). In the course of the cross‑examination, E confirmed that the night of 3 February 2012 was hot (ts 50). E said, in effect, that she only slept naked at home if it was 'very hot' (ts 52).
E was asked what caused the pain in her vagina. She replied that it was the appellant's fingernail (ts 54). E said she was unaware that the appellant bit his fingernails (ts 54). She also said that she was unsure of whether she felt the appellant's chest hair on her back when he was lying next to her (ts 55).
Defence counsel put to E that the alleged act 'didn't happen', to which E responded 'I'm sure he did what I'm alleging' (ts 56; see also ts 58, 66). E was cross‑examined about her contact with the appellant between 2012 and 2013. E agreed that she sent text messages to him and that the appellant had given her a 3D bracelet in July 2013 that she wore to school.
When asked by defence counsel about the appellant's 'stench', E said that 'everyone has a particular scent to them' (ts 76). She elaborated in this way:
[S]o my brother's got a aftershave that I know it's him cos of his aftershave. Mum's got perfume. Dad's got his own aftershave. Friends, well, I don't know how I would tell them, but yeah (ts 76).
Defence counsel did not suggest to E that the temperature on the night of 3 February 2012 was in fact cooler than she had stated. E was not questioned by either the prosecutor or defence counsel about any change in her demeanour between the commission of the alleged offence and when she told her parents about it. However, in cross‑examination, questions were asked about her loss of colour vision in 2013. E confirmed that this happened and she volunteered that this was due 'to stress' (ts 67).
In re‑examination E said that she crossed out the words she had written in her diary because 'they were horrid things to have in a diary' (ts 79).
E said that after the alleged incident she 'disliked [the appellant]', but she continued to speak to him because she 'didn't want my dad to worry about it - anything' (ts 79).
Evidence of Ms T
In her evidence‑in‑chief, Ms T said that on the night of 3 February 2012, she was at home with her husband, E and the appellant (ts 83). She said that by reference to her diary, she knows that her son, I, was, at the time, at a school camp (ts 83). Ms T recalled that the appellant bought E earrings for her birthday on 8 February 2012, and that he had not previously bought her a birthday gift (ts 84).
Without objection from defence counsel, Ms T testified as to changes in E's demeanour following February 2012. Ms T said that E's behaviour and language deteriorated. She observed that E engaged in secret eating and that she put on weight. Ms T described E as being 'intolerant' and that her usually very good school work also deteriorated (ts 84).
Ms T was asked whether she observed any change in E's behaviour after E disclosed the alleged offence (ts 85). Ms T answered:
Well, actually leading up to telling her she lost her eyesight and she just like completely stressed and we didn't know what was wrong. And then that was about August [2013]. And then September she was like - had a hot bath and then - yeah just leading up to the 14th. And then … after she told us she was a lot - she seemed happier (ts 85).
Ms T said that after E disclosed the alleged offence 'she calmed down' and 'didn't swear as much' (ts 85).
In cross‑examination, Ms T said that the only thing that she recalled about the night of 3 February 2012 was that E had returned from camp. Ms T said that there was nothing remarkable about the evening that she could recall (ts 87).
Defence counsel questioned Ms T about E 'losing' her eyesight. Ms T confirmed that, as a result, E was hospitalised on 9 August 2013, and that E was diagnosed with a condition called Irlen Syndrome (ts 88). Ms T agreed that, at around the time that E's eyesight 'failed', her performance at school had declined (ts 89). Ms T volunteered that E's condition 'can be caused by stress' (ts 89).
Evidence of Mr T
Mr T gave evidence on the afternoon of 5 March 2015. At this point, the appellant was no longer represented by Ms Monck and was acting for himself.
Mr T testified in examination‑in‑chief that he first met the appellant in 1987 (ts 146), and that, in time, he became Mr T's closest friend (ts 147). Mr T described the appellant as a regular visitor, and that he would stay overnight once or twice a month (ts 147).
Mr T described how, on 14 September 2013, E disclosed to him and his wife what had occurred. E said that she had written a note in her diary when the incident occurred (ts 153). Mr T testified that he and his wife went to E's bedroom and located the diary (ts 153).
Mr T said that on 15 September 2013, he saw the appellant outside a business in Malaga where he had a conversation with him (ts 153). Mr T accused the appellant of doing 'something to her' (ts 153). He said that the appellant replied 'I wouldn't do that', but later he said 'I don't remember doing anything', after which the appellant also said 'I don't know why I am doing these things and I can't remember' (ts 154).
The State prosecutor asked Mr T whether he noticed anything about E after February 2012, to which Mr T said:
Yes, her behaviour started to change, she had eye problems, she was stealing money and just generally far more moody and aggressive than she had been (ts 154).
The State prosecutor then asked Mr T if he had noticed any change in E's behaviour after September 2013, to which Mr T said:
Yes, she - it was like a burden had come off her. She was - started to respond, we - we found help for her and that's for these things, and she progressively returned more to the - the girl she had been. And she's a very gregarious outgoing sort of person (ts 154).
During cross‑examination by the appellant, Mr T confirmed that E had worn a 3D bracelet that the appellant had given her (ts 158).
The appellant cross‑examined Mr T at some length about the events of 14 September 2013. The effect of the cross‑examination was to insinuate that E's diary had been fabricated (ts 167 ‑ 171).
Mr T was also cross‑examined with the evident purpose of establishing that any stress that E exhibited after February 2012 was for reasons other than the commission of the alleged offence (ts 178 ‑ 179).
The appellant challenged that part of the conversation he had with Mr T, on 15 September 2013, in which it was alleged he said 'I don't know why I'm doing these things' (ts 180 ‑ 182). Mr T confirmed that the appellant had made the statement (ts 182).
The appellant asked Mr T about E developing Irlen Syndrome (ts 182 ‑ 183). Mr T testified that the development of the syndrome can be related to stress. At this point, her Honour intervened, ruling that only a medical expert could give evidence to the effect that Irlen syndrome was stress related (ts 183).
Mr T agreed that in the conversation he had with the appellant on 15 September 2013, he told the appellant that the alleged offence had been committed on 4 February 2011. Mr T explained that he had given the appellant the wrong date and that later on the evening of 15 September 2013, he sent a text message to the appellant informing him of the correct date (ts 187, exhibit 13).
Evidence of Detective Senior Constable Abdul Sharif
Detective Sharif interviewed the appellant. The date on which the interview took place was not the subject of evidence, but it may be inferred that it was after 14 September 2013. The State prosecutor did not examine Detective Sharif. Under cross‑examination by the appellant, Detective Sharif said that when he interviewed the appellant, he did not notice any 'stench' about the appellant (ts 190).
Evidence of Susan Boyett
Ms Boyett was not required to give evidence at the trial. By consent, her witness statement was read to the jury. In that statement, she confirmed that E's brother, I, attended a school camp in south Western Australia, departing at approximately 9.00 am on 31 January 2012 and returning at approximately 3.00 pm on 4 February 2012 (ts 193).
Evidence of I
In examination‑in‑chief, I described the events of 14 September 2013. He said that E had a conversation with him that night, as a result of which his parents searched for, and found, a diary belonging to his sister (ts 210 ‑ 211).
In evidence led by the State prosecutor, I said that he noticed changes in E 'after 2012' (ts 211). He said that E became 'essentially lazy and put on a lot of weight'. He noticed that she was irritable and that she spent most of her days by her computer. This latter observation was, according to I, 'out of character' (ts 211).
I recalled that the appellant gave E a pair of earrings on her birthday in 2012. I confirmed that, as far as he was aware, the appellant had not given E anything else prior to that occasion (ts 211).
In cross‑examination, I said that in mid‑2013, E was banned from seeing her friend, L, because she (E) had stolen some money (ts 218).
The evidence of the appellant
The appellant did not dispute that he and Mr T were close friends, and that he was a frequent visitor to Mr and Ms T's house (ts 229 ‑ 230).
The appellant said that he FaceTimed E, but only on one occasion in 2011 (ts 231). He said that he and the appellant played an online game called 'Hanging with Friends'. He accepted that he gave presents to E, including earrings for her 12th birthday, but added that he also gave presents to I (ts 235).
The appellant testified that Mr T had told him that he was thinking of divorcing his wife (ts 236). The apparent relevance of this was to show that there were stresses in E's life which may have explained her demeanour in 2012 and 2013.
The appellant testified that he was in the wheat belt town of Koorda between 28 January and 2 February 2012 (ts 238). He said that he had searched his telephone records and found that on 3 February 2012, he was in the vicinity of Mr and Ms T's house. The appellant tendered those records. However, he said that he had other friends whom he would visit from time to time who lived in that area, as well as a 'female acquaintance' who he met at the local bowling club. As to whether he was at Mr and Ms T's on the night of 3 February 2012, the appellant said:
I couldn't really say if I was there or not. So I could have been, I don't know. I honestly don't know, but I know I didn't do what I've been accused of (ts 237 ‑ 238).
The appellant testified as to his personal hygiene to the effect that he does not have a 'stench' (ts 251). He said that he was a 'chronic nail biter' (ts 251), and that he had a hairy chest (ts 254).
In cross‑examination, the appellant agreed that insofar as E and I were concerned, he was a trusted figure in their lives (ts 261). He said that he got on well with E, and that she had no animosity towards him (ts 262).
He denied that he had any improper interest in E (ts 269).
The appellant admitted that his recollection of his conversation with Mr T on 15 September 2013 was vague, but he denied making any admission (ts 270 ‑ 271). The appellant said that he did not know whether it was hot on the night of 3 February 2012 (ts 274).
The appellant denied committing the offence, and when asked whether he whispered not to tell E's parents, he denied that he would use the word 'parents'. Instead, he said that he would use the expression 'mum and dad' (ts 275).
Closing addresses
The State
The prosecutor, in his closing address, submitted that the case was 'largely about [E's] credibility' (ts 294). He submitted that she came across as 'forthright' and 'cautious' (ts 294). The prosecutor said that E had an 'eye for detail' (ts 294). For example, E was able to say exactly when the offence had allegedly occurred because she made a note of it in her diary the next day (ts 294). The prosecutor asserted that E appeared, in cross‑examination, to be 'very sincere' (ts 295), and that her evidence had the ring of truth (ts 296). The prosecutor observed that E had no grudge against the appellant (ts 294).
The prosecutor emphasised that the appellant had the opportunity to commit the offence and, it was said, the appellant had an interest in E (ts 296). The prosecutor pointed to E's evidence that the appellant FaceTimed her, sent her text messages and purchased earrings for her birthday, just days after the alleged offence was committed (ts 296 ‑ 297).
The prosecutor submitted that the appellant FaceTimed an admission to Mr T on 15 September 2013. The prosecutor submitted that Mr T's testimony on this point should be accepted. It was submitted that if Mr T had fabricated the alleged admission, he would have 'done a better job' of it (ts 298).
The prosecutor noted that although the appellant insinuated that the diaries of E and her mother had been fabricated, no proposition to that effect had been put directly to them. The prosecutor argued that if the entry in E's diary had been a fabrication, she would not have crossed it out (ts 299).
As to the question of identification, the prosecutor relied upon E's voice recognition of the appellant and his 'smell', adding that 'the most definitive identifier' was E's recognition of the appellant's voice when he whispered, 'Shh. Don't tell your parents' (ts 301). The prosecutor also relied upon the telephone records tendered by the appellant, which suggested that he was in the area of E's home on 3 February 2012, and that the appellant admitted that he might have been in the area that day.
The prosecutor drew to the jury's attention the evidence adduced from the State's witnesses to the effect that E's behaviour deteriorated after February 2012, but improved after she disclosed the alleged offence to her parents. The prosecutor addressed the matter in this way towards the conclusion of his closing address:
In her first interview [E] said:
'Um, well, the time just went on and it started eating away at me.'
That is what's happened to her. It's eating away at her. And you've heard from her family about certain changes in her behaviour after February 2012, where she affected - she became lazy, she was swearing, she became irritable, she put on weight. These changes happened to her but after she got this load off her mind and told people what had happened and reported the incident she seems to have improved somewhat.
And having said that, it's a matter for you that I suggest to you that when you watch the interviews versus her appearance when she gave evidence, I suggest to you that she does appear to be more - a lighter disposition than she did in her interviews (ts 303).
The appellant
In his closing address to the jury, the appellant denied committing the offence (ts 305).
The appellant drew to the jury's attention matters which, in substance, made E's allegations against him implausible. For example, E said that a fingernail caused pain in her vagina, however, he had no fingernails because he chewed them. He argued that if he had been the perpetrator, E would have felt the hair on his chest rubbing against her (ts 314). He asserted that if the offence had occurred at night in E's dark room, he would have had to navigate his way around her pedestal fan and that 'there'd be crashing and banging' (ts 313).
The appellant submitted that having known E all her life without incident, it was unlikely that he had 'turned into a monster' (ts 316).
He addressed the question of E's demeanour changing after the alleged offence and, in particular, the claim that her stress levels increased. He submitted that E's change in demeanour was attributable to her colour blindness (ts 312) or the alleged breakdown of her parents' marriage (ts 316).
The appellant called into question the authenticity of E's diary and that of her mother (ts 311). The appellant submitted to the jury that whether he was at Mr and Ms T's house on 3 February 2012 or not, someone else entered E's room and committed the offence. That person, unlike the appellant, had fingernails and did not have a hairy chest (ts 316).
The appellant drew the jury's attention to certain alleged inconsistencies in E's evidence, most significantly that she did not mention in either of the visually‑recorded interviews the appellant's 'scent' or 'stench'.
The appellant submitted that E's behaviour towards him in 2012 and 2013 was inconsistent with the demeanour of someone who had been the victim of a sexual offence at his hands (ts 311). In particular, he referred to E wearing the 3D bracelet he had given her, and that she behaved in a friendly way towards him (ts 311 ‑ 312).
The summing up
Her Honour instructed the jury that before it could find the appellant guilty of the charged offence, the State needed to prove beyond reasonable doubt the three elements of the offence, namely:
1.the element of identity, that is, that the offender was the appellant;
2.that the appellant sexually penetrated E; and
3.that at the time of the offence, E was under the age of 13 years.
Her Honour expressly instructed the jury that the date and place set out in the indictment were not elements. About these, her Honour said:
The State just provides them as particulars so that the defence knows what occasion is being talked about. So if you think 'oh, maybe it wasn't that date' or 'maybe it's an adjoining suburb', you don't have to concern yourself about that. The State does not have to prove the exact place and date (ts 327).
Her Honour told the jury that the main issues in the case were whether the alleged act of sexual penetration occurred and whether it was the appellant 'who did it' (ts 328).
As to the element of identity, her Honour directed the jury that the State's case relied on E recognising the appellant's voice when he whispered in her ear, 'Shh. Don't tell your parents', and on E's recognising the appellant by his 'stench' (ts 327). Her Honour at this point in her direction, reminded the jury that the appellant denied the offence; said that he would never use the expression 'your parents' when speaking to E; and referred to Detective Constable Sharif's evidence that the appellant had no bad smell about him (ts 327 ‑ 328). Her Honour was not asked to give, and did not give, a warning with respect to this evidence of the type mandated by the High Court in Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555, 562.
Her Honour gave routine and correct directions as to the absence of recent complaint by E and in respect of E's delay in complaining. Her Honour was not asked to give, and did not give, a warning in accordance with the High Court case of Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79. In the course of directing the jury as to the explanations given by E for the delay in complaining about the offence, her Honour referred to the events of 14 September 2013, in the course of which she said:
It was then that she eventually told her parents and her brother. [E] as well as her parents and her brother gave evidence that her behaviour had changed during 2012 and until she told her parents in September 2013 when these matters got better.
So, members of the jury, that is another piece of evidence that you can take into account when you decide whether it explains or supports why there was this delay in [E] telling her parents.
So, members of the jury, taking into account the explanations given by [E] for the delay it is entirely up to you what degree of significance you want to attach to this delay (ts 334).
Her Honour instructed the jury that the complaint that was ultimately made by E did not constitute 'additional or separate evidence that the incident happened' (ts 334). Her Honour continued:
[W]hen you consider whether this incident happened and what exactly happened, you have to rely on what [E] told the child interviewers and what she said in her evidence in court about it. The fact that she later told other people about it cannot support her evidence of what happened during that incident (ts 334).
Her Honour instructed the jury that it could not take into account the diary entry of 4 February 2012 as being any 'proof or corroboration that the incident in fact occurred' (ts 335). She instructed the jury that the diary entry was only referred to by the State because 'it served to refresh [E's] memory as to the date when the alleged incident occurred' (ts 335).
Her Honour instructed the jury that it must take into account the appellant's evidence and, in particular, his evidence that 'he never did anything like that or if anything like that occurred it wasn't him' (ts 335).
Her Honour directed the jury as to the alleged admission made by the appellant to Mr T on 15 September 2013. The appellant makes no specific complaint about this direction. Her Honour made it clear that the appellant denied making the alleged admission (ts 336).
Although the evidence in the trial took up comparatively little time, her Honour summarised it in some detail. She also summarised, again in some detail, the closing arguments of the parties (ts 337 ‑ 346).
We will now turn to the grounds of appeal. It is convenient to deal first with grounds 3 and 5 and then we will deal with grounds 1, 2, 4, 6, 7 and 8.
Grounds 3 and 5 - E's recognition evidence
Grounds 3 and 5 concern E's evidence that, although she did not see the person who sexually penetrated her, she was able to identify him as the appellant because she recognised him by his voice when he whispered 'Shh. Don't tell your parents' and by his 'stench'. Ground 3 concerns the evidence of the appellant's smell. Count 5 concerns E's voice recognition evidence.
Both grounds allege a miscarriage of justice because, although no objection was taken to the evidence at trial, it was inadmissible. Further, her Honour did not give a Domican warning in relation to it.
In relation to ground 3, the appellant alleged other miscarriages of justice. As we will discuss later in these reasons, it is unnecessary to decide these claims.
Submissions
The appellant's submissions on admissibility were, in truth, an attack upon the reliability of the evidence. He submitted that, if the evidence was admissible, the circumstances were such as to require a Domican warning in respect of it.
The respondent submitted that E's evidence was admissible. However, at least with respect to E's voice recognition, the respondent conceded that her Honour erred by failing to give a Domican warning. To this extent, the respondent accepted that ground 5 had been made out. However, the respondent submitted that her Honour's error did not constitute a substantial miscarriage of justice and sought to invoke the proviso pursuant to s 30(4) of the Criminal Appeals Act.
The respondent did not make the same concession with respect to ground 3. The State submitted that there was no requirement for a Domican warning in respect of this evidence (appeal ts 106).
Admissibility
It is trite to observe that identification or recognition evidence comes in various forms. The most common form is visual. A less common form is sound. Identification by smell is very rare, but is possible: AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438 [66] (Heydon J). In whatever form the evidence takes, generally it can only be given as a result of something experienced by the witness through one of the five senses: AK v The State of Western Australia [67].
E had known the appellant all her life, during which time she had frequent contact with him. It may be inferred that she was familiar with his voice and it appears that, from her perspective, he had a distinctive smell. It may be that, by one or other or a combination of both of these factors, E was able to recognise the appellant.
The appellant clearly put in issue E's recognition evidence. Questions were raised as to its reliability. With respect to the voice recognition, the words allegedly spoken by the appellant were whispered and fleeting in duration. With respect to the evidence of identification by smell, it was unclear if E identified the appellant on the basis of his having a bad smell or on the basis of his particular deodorant or aftershave. Further, imprecise evidence was led from E as to how the appellant had smelt on prior occasions, enabling her to compare the smell she experienced on the night of the alleged offence with how the appellant had smelt in the past.
The question of the reliability of E's recognition evidence is different from its admissibility. It was not for her Honour to decide the reliability of the evidence. The reliability of evidence of this kind was a matter for the jury: Bulejcik v The Queen [1996] HCA 50; (1996) 185 CLR 375, 382 (Brennan CJ). In our opinion, E's recognition evidence was admissible. The appellant suffered no miscarriage of justice by its admission.
Domican warning
We now turn to the issue of the absence of a Domican warning.
E's evidence was essentially recognition evidence - that is, evidence where a witness recognises an accused previously known to him or her - as opposed to identification evidence, where a witness identifies an accused after having first encountered them at the scene of a crime: Omar v The State of Western Australia [2009] WASCA 198 [42] (Buss JA). Nevertheless, E's evidence in a qualitative sense resembled identification evidence: in the case of the voice evidence, the statement allegedly made by the appellant was fleeting and whispered; in the case of the evidence of smell, the basis for comparison was imprecise.
It is well‑recognised by the law that identification witnesses may be honest and convincing, but nevertheless unreliable. Such evidence has frequently led to proven miscarriages of justice. As a result, in Domican v The Queen, Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ said:
[T]he seductive effect of identification evidence has so frequently led to proven miscarriages of justice that courts of criminal appeal and ultimate appellate courts have felt obliged to lay down special rules in relation to the directions which judges must give in criminal trials where identification is a significant issue.
Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed. The terms of the warning need not follow any particular formula. But it must be cogent and effective. It must be appropriate to the circumstances of the case. Consequently, the jury must be instructed 'as to the factors which may affect the consideration of [the identification] evidence in the circumstances of the particular case': Smith v The Queen (1990) 64 ALJR 588, 588. A warning in general terms is insufficient. The attention of the jury 'should be drawn to any weaknesses in the identification evidence': Kelleher v The Queen (1974) 131 CLR 534, 551. Reference to counsel's arguments is insufficient. The jury must have the benefit of a direction which has the authority of the judge's office behind it. It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence (561 ‑ 562).
Later, their Honours said:
A trial judge is not absolved from his or her duty to give general and specific warnings concerning the danger of convicting on identification evidence because there is other evidence which, if accepted, is sufficient to convict the accused. The judge must direct the jury on the assumption that they may decide to convict solely on the basis of the identification evidence. If a trial judge has failed to give an adequate warning concerning identification, a new trial will ordinarily be ordered even when other evidence makes a very strong case against the accused. Of course, the other evidence in the case may be so compelling that a court of criminal appeal will conclude that the jury must have convicted on that evidence independently of the identification evidence. In such a case, the inadequacy of or lack of a warning concerning the identification evidence, although amounting to legal error, will not constitute a miscarriage of justice. But unless the Court of Criminal Appeal concludes that the jury must inevitably have convicted the accused independently of the identification evidence, the inadequacy of or lack of a warning concerning that evidence constitutes a miscarriage of justice even though the other evidence made a strong case against the accused (565 ‑ 566).
While Domican v The Queen concerned visual identification, in our opinion, analogous dangers arise in other forms of identification which rely on sensory perception. Accordingly, where disputed voice identification is led, a Domican warning should be given: Bulejcik v The Queen (397 ‑ 399); R v Evan [2006] QCA 527; (2006) 175 A Crim R 1 [73] (Keane JA) and J D Heydon AC, Cross on Evidence (10th ed) [1445]. So, too, should a Domican warning be given in the case of disputed identification by smell.
In the present case, the State chose to run its case on identification based on E's evidence that she recognised the appellant's voice and recognised his smell. There was other identification evidence which may well have been sufficient to convict the appellant. If, as the State alleged, the offence occurred on the night of 3 February 2012, it appears that the only two males in E's house were the appellant and Mr T. It was no part of the defence case that Mr T was the offender. Thus, it may be inferred that if E was sexually penetrated by a male, the only other male in the house was the appellant. However, the State did not put its case to the jury on identification in this way and it was not accepted by the appellant that it was certain he stayed at E's house on the night of 3 February 2012 (ts 316). We are unable to conclude that the jury inevitably convicted the appellant on this basis. There was also Mr T's evidence that, on 15 September 2013, the appellant, in effect, admitted committing the offence. However, that evidence was disputed. Again, we are unable to conclude that the jury inevitably convicted on this basis. E's evidence represented a significant part of the proof of the alleged offence, her Honour was obliged to give the jury a Domican warning. No such warning was given. Accordingly, her Honour erred. In our opinion, ground 3, to the extent that it complains of the absence of a Domican warning with respect to the evidence of smell, and ground 5, in its entirety, has been made out.
Ground 1 - voir dire?
Ground 1 alleges that the appellant suffered a miscarriage of justice because defence counsel failed to seek a voir dire to exclude Mr T's evidence of the alleged admission made by the appellant on 15 September 2013.
Defence counsel did not seek a voir dire. However, the appellant's submission that defence counsel's failure to seek a voir dire constituted a miscarriage of justice cannot possibly succeed if the question to be decided was incapable of being resolved in that way.
The purpose of a voir dire is to determine the admissibility of evidence: for example, where the voluntariness of a confession is disputed. Such an issue involves a resolution of a question of law, which is exclusively a matter for judicial determination. Where the issue in question is whether the alleged confession was made at all, that is a question for the finder of fact to decide: Burns v The Queen [1975] HCA 21; (1975) 132 CLR 258, 261.
In this case, as the appellant conceded in his oral submissions in this court, the issue to be decided was whether the alleged admission had, in fact, been made by him and not whether the statement, if it was made, was admissible (appeal ts 85). Therefore, it was not a matter capable of being resolved by a voir dire. As a result, on no account can it be said that the appellant suffered a miscarriage of justice by reason of defence counsel's 'failure' to seek a voir dire.
Ground 1 has no reasonable prospect of succeeding. Leave to appeal on this ground must be refused.
Ground 2 - miscarriage of justice by reason of defence counsel's alleged failure to obtain weather information for the night of 3 February 2012
It will be recalled that the State's case was that the offence was committed on the night of 3 February 2012. E testified that she slept naked on the night in question because it was a very hot night. Ground 2, as framed, concerns the failure of defence counsel to obtain official weather information from the Bureau of Meteorology for the night in question. It is said by the appellant that, had counsel done so, she would have found that 'contrary to E's testimony', it was not a hot night. Rather, it was a cool night for February. The appellant alleges that, as a result of this failure, he has suffered a miscarriage of justice.
Additional evidence - the temperature on the night of 3 February 2012
Part of the additional evidence sought to be adduced in this appeal by the appellant comprised an extract from the records of the Bureau of Meteorology taken at a weather station in the vicinity of E's residence which shows that 3 February 2012 was the coldest day in the month that year, with a maximum temperature of 22.1 degrees Celsius and an overnight minimum of 11 degrees Celsius (WAB 137A and 137B). The State does not dispute this evidence (appeal ts 82). The records do not reflect 'heatwave' conditions in the days preceding or following 3 February 2012.
According to the appellant, prior to a meeting with defence counsel on 28 August 2014, he conducted an internet search which revealed that the maximum temperature on 3 February 2012 was 22.1 degrees Celsius. The appellant said that he alerted defence counsel to this fact. He stated that defence counsel told him that she would obtain the relevant records from the Bureau of Meteorology for the trial (appellant's affidavit sworn 2 March 2016, pars 23 to 29, WAB 34).
According to the appellant, on 26 February 2015, defence counsel told him that she had not obtained the weather information from the Bureau of Meteorology. The appellant said that he advised her that he would obtain the information himself. The appellant deposed that he was unable to find the relevant link on the Bureau's website. He said that on 2 March 2015, the day before the trial was due to commence (a public holiday), he advised defence counsel by email that he had been unable to find the information. He said that he expected defence counsel to obtain it (appellant's affidavit sworn 2 March 2016, pars 31 and 32, WAB 34). In this court, under cross‑examination, the appellant did not resile from the evidence we have just described (appeal ts 85 ‑ 86).
In defence counsel's affidavit sworn 24 February 2016, she agreed that, prior to trial, there had been a discussion between her and the appellant about 'obtaining some official document to show what the temperature was on the night the incident (allegedly) occurred'. She said that initially she thought the matter might be 'of some assistance' to the appellant. She said that she left it to the appellant to obtain this information and she directed him to the Bureau of Meteorology website. Defence counsel stated that she later considered such information would not assist the appellant because 'whatever the temperature was that night, E, in her interview with the police, stated that she had slept naked that night' (Ms Monck's affidavit sworn 24 February 2016, pars 20 ‑ 21, WAB 27).
Defence counsel went on to state in her affidavit that she made a forensic decision not to press E in cross‑examination about the temperature on the night of the alleged offence because 'even if I put it to [E] that she could not have slept naked because it was the coldest night in February, she undoubtedly would have maintained that she did sleep naked that night, and I was of the view that the jury did not need to hear such being repeated yet again' (Ms Monck's affidavit sworn 24 February 2016, par 24, WAB 28).
Defence counsel did not explain in her affidavit nor in her evidence in this court, why she thought E 'undoubtedly would have maintained' her stated position if confronted with the information obtained from the Bureau of Meteorology. Significantly, under cross‑examination, defence counsel added that she considered that it was 'irrelevant' whether 3 February 2012 'was the coldest night or the hottest night [in February]' (appeal ts 65).
Ground 2 - submissions
The appellant submitted that the State's case was that he committed the offence on the night of 3 February 2012, which was, according to the prosecutor's opening address, 'a very hot day' (ts 27). The appellant submitted that E's credibility would have been 'severely impacted' if defence counsel had confronted her with the evidence from the Bureau of Meteorology that 3 February 2012 was the coldest day in February that year, with an overnight minimum of 11 degrees Celsius (appellant's submissions, par 31). He submitted that the evidence not only undermined E's credibility, but had 'a domino effect' that also undermined matters of fact such as:
(a)the likelihood of the 'stench' of the appellant being apparent;
(b)E's evidence that she slept naked on the night in question; and
(c)the authenticity of the entry in E's diary that 'Erron did something last night' (appellant's submissions, par 31).
The appellant submitted that the failure of defence counsel to obtain the Bureau of Meteorology records could not be justified on the basis of a reasonable forensic judgment. He submitted, in effect, that counsel's failure affected the fairness and outcome of the trial.
The State submitted that defence counsel's decision not to pursue the calling of evidence as to the official weather conditions on the night of the alleged offence was a reasonable forensic decision for defence counsel to make because the real issue was not the temperature of the night in question, but whether E slept naked at the time of the offence (respondent's submissions, par 36).
Ground 2 - legal principles
The legal principles relevant to this ground were described by McLure P in McMahon v The State of Western Australia [2010] WASCA 143 in these terms [24] ‑ [27]:
The appellant has to demonstrate that the conduct of his counsel caused a miscarriage of justice, a task which constitutes a heavy burden: TKWJ v The Queen (2002) 212 CLR 124 [74] (McHugh J). That is a consequence of the adversarial nature of a criminal trial and the role and function of counsel. Ordinarily, an accused is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and 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: TKWJ [74], [79] (McHugh J); R v Birks (1990) 19 NSWLR 677, 685 (Gleeson CJ).
In this context, miscarriage of justice has two aspects, process and outcome. If the conduct of counsel has deprived the accused of a fair trial according to law, that will give rise to a miscarriage of justice without regard to whether counsel's conduct might have affected the outcome: TKWJ [76] (McHugh J); Nudd v The Queen [2006] HCA 9 [3] ‑ [7] (Gleeson CJ). This corresponds with that limb of the proviso where there is a serious breach of the pre-suppositions of a trial: Weiss v The Queen (2005) 224 CLR 300 [46]; Wilde v The Queen (1988) 164 CLR 365, 373. A complete failure to cross-examine a complainant or a complete failure to address the jury may result in an unfair trial: TKWJ [76]. So too may wrong advice that an accused is not entitled to give evidence: Nudd [17].
In the majority of cases, irregular conduct of counsel will not deprive the appellant of a fair trial. In such circumstances, the ultimate question of whether a miscarriage of justice has occurred raises two issues. First, did counsel's conduct result in a material irregularity in the trial. Secondly, is there a significant possibility that the irregularity affected the outcome: TKWJ [79] (McHugh J); Ali v The Queen (2005) 79 ALJR 662 [18] (Hayne J).
The test of whether there is a material irregularity is objective: TKWJ [17], [27] ‑ [28], [107]. Ordinarily, it is difficult to establish a material irregularity when the alleged error of counsel concerned forensic choices upon which competent counsel could have differing views: TKWJ [81]. However, if the error of counsel plainly affected the result of the trial, there will be a miscarriage even though the error involved a forensic choice or judgment. Where the error involves the failure to adduce evidence, there are parallels with the test for the admission of new or fresh evidence: TKWJ [32] ([sic] [33]) (Gaudron J).
The last sentence requires some clarification because, in TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 [33], Gaudron J referred only to fresh evidence and not new evidence: see also Durani v The State of Western Australia [2012] WASCA 172 [114].
The alleged miscarriage of justice in this ground was not of the 'process' kind.
Ground 2 - disposition
Although the State's case did not depend on the date of the offence, based on the entry made in E's diary, the State alleged that the offence occurred on the night of 3 February 2012. An important feature of E's account of the offence was that it was a very hot night and, because of this, E slept naked. E's evidence was that she only slept naked on hot nights. Evidence capable of undermining the fact that the offence occurred on a hot or very hot night (and, in fact, the night could not reasonably have been characterised in this way) was capable of significantly undermining E's account of events. Moreover, if the alleged events did not occur on the evening of 3 February 2012, a further question arose as to the veracity of the diary entry said to have been made on 4 February 2012.
It is clear that the appellant instructed his counsel, well prior to trial, about the existence of meteorological records which showed that the night of 3 February 2012 could not, on any view, be characterised as hot. That was the effect of both the appellant's and Ms Monck's evidence.
At least generally speaking, defence counsel in a criminal trial is engaged as an advocate, not an investigator. Counsel acts on instructions provided by the client. However, in the present case, defence counsel was instructed as to the existence of meteorological records which were inconsistent with an important aspect of the prosecution evidence. As the State's appeal counsel properly conceded (appeal ts 98), evidence of those records was easily obtainable. The appellant's instructions were given in a context which made it clear that he wanted the issue pursued, and in which there was no forensic disadvantage to doing so. In those circumstances, it was incumbent on counsel to take steps, or ensure that steps were taken, to obtain evidence of those records in admissible form.
In the present case there was some conflict between the evidence of the appellant and Ms Monck as to who undertook to obtain evidence of the records from the Bureau of Meteorology. Given the following conclusions, it is unnecessary to resolve that conflict in the evidence.
Irrespective of whether Ms Monck held evidence of the records in admissible form, her instructions provided a legitimate forensic basis for challenging E's evidence about the temperature in cross-examination. Ms Monck did not fail to challenge E's evidence about the temperature on 3 February 2012 because she did not hold meteorological records in admissible form. Rather, she decided not to cross-examine on that issue because she took the view that 'to press the complainant any further on the point of the temperature would not have assisted' the appellant's case. Prior to trial, she had also formed the view that the meteorological information would not assist 'because despite whatever the temperature was that night, the complainant, in her interview with police, stated that she slept naked that night'. (Par 21 and 24 of Ms Monck's affidavit).
In our view, this was an error of judgment on defence counsel's part which was incapable of being justified as a reasonable forensic judgment. E may or may not have maintained she slept naked, but it cannot be said she would have inevitably said she had. Regardless of whether she maintained that position, her evidence that it was a hot or very hot night in the midst of a heatwave would have been difficult to maintain. A cross‑examination of E, based on the Bureau of Meteorology records almost certainly would have been very advantageous to the appellant. In our view, there was no potential for adverse consequence to the appellant of such a line of cross‑examination.
As we have indicated, it appears that the appellant was dissatisfied with the performance of defence counsel. At some point, after proceedings concluded on 3 March 2015, the appellant sent documentation directly to her Honour expressing dissatisfaction with defence counsel's preparation of his case, including that defence counsel had not obtained the Bureau of Meteorology records for 3 February 2012. The appellant requested an adjournment of the trial so that these records could be obtained.
At the commencement of the proceedings on 4 March 2015, the trial judge addressed the appellant in open court, in the absence of the jury in respect of the matters he raised in the material he had sent to her Honour. Her Honour said that based on everything that she had read, she did not have any concern about the manner in which the appellant's defence had been conducted (ts 94). Her Honour went on to state, in substance, that the weather records were inadmissible. Her Honour put it this way:
I can understand that you perhaps want to present certain bits of evidence but there are some very firm, rigid rules as to what evidence one can present. So for example, if a witness says it was 40 degrees that day then that is only a matter that goes to her credibility. It doesn't go to the facts of the case so you can't bring in witnesses who are going to say it was only 20 degrees that day.
In any event, it's not really going anywhere because in this particular case whether [E] thought it was hot or not is not really the point. The point is she said she slept naked. So whereas you might think certain evidence is important it may (a) not be admissible in the framework of our legal rules or (b) your lawyer may have taken a sensible approach in terms of saying 'look, it's not really going anywhere' (ts 94).
It is clear from this passage that her Honour was of the view that E's evidence as to the temperature on the night of the alleged offence could not be contradicted by other evidence as a consequence of the rule that a cross‑examiner is bound by the answer to a question that goes only to facts collateral to the issues in the case: see Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024.
In this court, the appellant said that, based on her Honour's statement, he 'got the impression' that he could not adduce any evidence concerning the temperature on the night of the alleged offence (appeal ts 88 ‑ 89). The court asked the appellant whether ground 2 should be read as encompassing an allegation of error by the trial judge with respect to the admissibility of the evidence in relation to the temperature on the night of the alleged offence (appeal ts 88). The appellant said that, in effect, he wished the court to read the ground in that way (appeal ts 89). Counsel for the State did not oppose this course (appeal ts 89).
With great respect to the trial judge, the evidence as to the temperature on the night of the alleged offence was not only relevant to E's credibility, but it was also relevant to the facts in issue in the case. Without wishing to be repetitive, the temperature on the night of the alleged offence, in the circumstances of this case, was an important part of E's narrative of events.
It is not clear on the material before this court whether the appellant actually had the Bureau of Meteorology records on 4 March 2012. However, as we have already mentioned, it is not in dispute that they could have been easily obtained. What is significant is that, as a result of what he was told by the trial judge, the appellant believed that there would be no point pursuing the matter further (appeal ts 87). This is understandable in light of what her Honour told him. The appellant took no steps to obtain the evidence.
The meteorological records about the temperature on the night of 3 February 2012 were an important aspect of the defence which the appellant wanted to run at trial. They had the potential to significantly undermine E's evidence. On the prosecution case E's diary note, written on the morning of 4 February 2012, related to the offence which had happened 'last night'. This fixed the date of the offence, as there is little opportunity for a person to be mistaken about the date of an event when writing a diary entry on the following morning. E described the offence as occurring while she slept naked with a pedestal fan because it was a hot night. With a minimum temperature of 11oC, following a maximum temperature of 22oC during the day, the night of 3 February 2012 was not hot. The meteorological records raised more than an issue as to the particulars of date of the offence. The records strongly suggested that offence could not have been committed on 3 February 2012 in the manner E described. E's evidence about the diary note was inconsistent with the offence having been committed on a different night.
Defence counsel's error of judgment meant that the inconsistent meteorological records were never put to the complainant. This occurred in a context where appellant had instructed his counsel about the existence of the records, the records were easily obtainable, the evidence was clearly relevant and the appellant wanted to raise the issue as an important aspect of his defence. There was no forensic disadvantage in pursuing the issue. The trial judge's erroneous comments discouraged the appellant, then acting without legal assistance, from seeking to obtain or tender evidence of the temperature on 3 February 2012. Counsel's and the trial judge's error as to the relevance of the meteorological records had the practical effect of depriving the appellant of the opportunity to run an important aspect of his defence. These unusual circumstances combined to constitute a material irregularity in the trial which could well have affected its outcome, and a miscarriage of justice.
For these reasons, we would grant leave to appeal with respect to ground 2 and uphold the ground.
Ground 4 - E's post‑offence behaviour
Ground 4 concerns the evidence that was led from E's parents and her brother as to E's behaviour after the commission of the alleged offence, and her Honour's direction in respect of this behaviour. The appellant's primary contention is that her Honour failed to direct the jury, but should have done so, with regard to the law that evidence of E's post‑offence conduct could not be used to corroborate E's testimony.
As may be seen from our summary of the evidence led at trial, E's parents and brother testified, without objection, to the effect that after the commission of the alleged offence, E's behaviour, personal appearance and school work deteriorated. E also developed Irlen Syndrome. For convenience, we will refer to this testimony as evidence of E's post‑offence behaviour. Her Honour's directions in respect of this evidence is set out at [88] of these reasons. Earlier in the summing up, her Honour reminded the jury of the submissions made by the appellant to the effect that this behaviour may well have been caused by events in E's life other than the alleged offence.
In substance, the appellant submitted that her Honour's directions were insufficient to guard against the danger that the evidence of E's post‑offence behaviour would be misused by the jury as corroborating E's testimony as to the commission of the offence. In order to obviate that risk, her Honour was obliged to direct the jury that the evidence of E's post‑offence behaviour could not be used in that way.
The respondent submitted that the State did not rely upon the evidence of E's post‑offence behaviour as corroboration. Rather, the evidence was led for the 'very narrow purpose' of explaining, in part, E's delay in complaining (appeal ts 110).
Ground 4 - disposition
A judge is required to give warnings that are appropriate and necessary in a particular case, including warnings against following impermissible paths of reasoning: Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50 [49] (Gaudron, Gummow, Kirby & Hayne JJ). In Winmar v The State of Western Australia [2007] WASCA 244; (2007) 35 WAR 159, a bench of five judges, comprising Wheeler, McLure, Pullin, Buss and Miller JJA, considered the question of how a court determines whether a particular warning is required. Their Honours held that two factors must be present before a warning is necessary. First, there must be some aspect of the evidence which gives rise to 'a perceptible risk of miscarriage of justice', and secondly, the risk of miscarriage of justice must be one which is not necessarily obvious to the lay mind [21] ‑ [22].
It is true that, at trial, the State did not expressly claim that the evidence of E's post‑offence behaviour constituted corroboration. In this appeal, the State does not submit that the evidence was admissible for this purpose.
The prosecutor's submissions on this evidence in his closing address (which are set out in [76] of these reasons), to our mind, are ambiguous and may well have been understood by the jury as a submission to the effect that E's post‑offence behaviour was caused by the offending and was additional proof that the appellant had committed the alleged offence. In his closing address, the appellant sought to disassociate himself from aspects of E's post‑offence behaviour by submitting that it was caused by stressors other than the commission of the alleged offence (ts 316). Although not determinative of the issue, it appears that the appellant, at least, thought that the evidence was adduced by the State as corroboration.
Her Honour's direction on E's post‑offence behaviour was given in the context of her directions concerning E's delay in complaining. Her Honour instructed the jury that they could take the evidence into account 'when you decide whether it explains or supports why there was … delay in [E] telling her parents' (ts 334). Her Honour did not instruct the jury that the evidence did not constitute corroboration. The question is, was her Honour required to go further than she did and give the jury a direction that the evidence could not be used in this way? To our mind, her Honour was obliged to go further than she did and instruct the jury that it could not use the evidence of E's post‑offence behaviour as corroboration. Our reasons for this conclusion are as follows.
First, although the State did not expressly rely on E's post‑offence behaviour as corroboration, its position was unclear. As we have said, the submissions he made in his closing address were ambiguous and, in our opinion, susceptible of being understood as urging the jury to use the evidence as corroboration.
Secondly, there was a danger which may not have been apparent to the lay mind: that is, adopting a chain of reasoning along the lines that E was a normal child until around the time of the alleged offence, but afterwards she underwent changes for the worse, meaning the changes must have been attributable to the charged offence. While this chain of reasoning is seductive, it is not necessarily logical because the changes in E's behaviour might be attributable to other events in her life which were occurring, such as the onset of adolescence. Thirdly, contrary to the submission of the respondent, we do not think that her Honour's direction would have been understood by a reasonable jury as conveying that E's post‑offence behaviour could only be used in their consideration of the issue of delay. For these reasons, we would uphold ground 4.
Before leaving ground 4, we wish to make an observation concerning the evidence to the effect that E developed Irlen Syndrome in August 2013, and that the syndrome was caused by stress. We do so in the knowledge that a retrial has been ordered. Care should be taken at the retrial concerning this evidence. The cause of this condition is not a matter for speculation by lay witnesses.
Ground 6 - was a Longman direction required?
Ground 6 alleges that the appellant has suffered a miscarriage of justice by reason of her Honour's failure to give a Longman direction. The appellant submitted that her Honour was obliged to give a Longman direction because the appellant suffered significant forensic disadvantage by reason of the delay between the occurrence of the alleged offence and the laying of the charge by the police. It appears that he was charged in November 2013. The claimed significant forensic disadvantages were explained by the appellant in his oral submissions in this way:
For example, if a complaint of this type is promptly made then (1) bedsheets can be forensically examined for DNA, or (2) clothes can be tested for bed fibres, or (3) a medical examination can take place to establish if there was an internal scratches [sic] or scarring from the alleged assault, or (4) fingernails could be viewed to confirm if they are sharp or very blunt and bitten down to the quick, or (5) the exact whereabouts of the accused could be established, or (6) it could be determined who exactly was around at the time, or (7) the exact date would be known (appeal ts 96).
It is unnecessary to canvass in detail the voluminous jurisprudence which has developed in light of the High Court's decision in Longman v The Queen. For present purposes, it is enough to say this. A Longman warning is to be given in cases of alleged sexual offending against children which rely on the uncorroborated evidence of the complainant, and where there is a substantial delay between the occurrence of the alleged offence and the accused being informed of it. In such cases, the accused will have suffered a forensic disadvantage by losing the chance to adequately test the complainant's evidence and the chance to adequately marshal a defence. Because a jury may not appreciate such matters and may fail to take them into account when assessing the complainant's evidence, a jury must be warned to do so. The whole purpose is to ensure a fair trial of the accused and avoid a perceptible risk of miscarriage of justice in the particular case: Smith v The State of Western Australia [2014] WASCA 90 [111].
In SPB v The State of Western Australia [2012] WASCA 136, Buss JA explained the rationale for the giving of a Longman direction in these terms [51]:
So, the rationale for giving a Longman warning is that a jury might fail to appreciate that, as a result of a substantial delay between the occurrence of the alleged offence and the accused being informed of the complaint, the accused will have suffered forensic disadvantage by losing the chance adequately to test the complainant's evidence and the chance adequately to marshal a defence. For example, after a substantial delay, the complainant may be unable to recall or ascertain the precise date of the alleged offence or the detailed facts of the alleged offending; the accused may be unable to investigate whether the complainant's evidence is contradicted by or inconsistent with the surrounding circumstances at the time; and the complainant, the accused and potential witnesses are likely to have a diminished recollection of relevant events at the time. As McLure P noted in FJL v The State of Western Australia [2010] WASCA 8, the forensic disadvantage is actual even if it is confined to the loss of a chance [2]. (original emphasis)
It is true that, over time, out of an abundance of caution, Longman warnings have been given after relatively short delays: Anderson v The State of Western Australia [2014] WASCA 137; (2014) 46 WAR 363 [41]. However, the fact that Longman warnings are frequently given in such cases does not mean that, as a matter of law, a Longman warning must be given even when the delay is relatively short, less so when it may be characterised as short. It is not the law that any delay must result in the giving of a Longman warning.
In our opinion, a Longman warning was not required in this case. We observe immediately that E's evidence was not uncorroborated. Mr T's evidence that the appellant made an admission to him on 15 September 2013 was capable of constituting corroboration. But even if the jury was not prepared to act on this admission, a Longman warning was not required.
In the present case, the delay between the alleged occurrence of the offence and the appellant being confronted with the accusation was 21 months. We do not regard this delay as substantial. The appellant, relying on the authority of FGC v The State of Western Australia [2008] WASCA 47, contended that delays as short as one year will give rise to the requirement of a Longman warning. A reading of that case does not bear out this submission.
Further, in the present case, the rationale behind the giving of a Longman warning was largely absent. Contrary to the appellant's submissions:
1.The appellant was aware of the date of the offence, and he was able to account, with some degree of certainty, for his whereabouts.
2.The relevant witnesses present in the house at the time of the alleged offence testified at trial.
3.The appellant gave evidence that he habitually chewed his nails.
4.No complaint was made by E that she was physically injured as a result of the alleged act of digital penetration, so therefore a medical examination was unlikely to disclose any injury.
5.The appellant's submissions concerning DNA and other forensic evidence were speculative.
Leave to appeal should be refused on ground 6.
Ground 7 - was her Honour's summing up unbalanced?
By this ground, the appellant alleges that her Honour did not give a balanced summing up to the jury. The appellant alleges, in effect, that the summing up 'unduly favoured the prosecution' (appellant's submissions, par 91).
The relevant legal principles were explained in Cleland v The Queen (1982) 151 CLR 1, where Gibbs CJ said, at [10]:
It is clear in principle that a trial judge, when directing a jury in a criminal trial, must hold an even balance between the cases of the prosecution and the accused and must fairly direct the consideration of the jury to the matters raised by the accused in his defence. In what manner, and in what detail, this should be done must of course depend on the circumstances of each case.
In Domican v The Queen, Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ said, at (56):
Nevertheless, the requirement of fairness means that ordinarily the respective cases for the prosecution and the accused must be accurately and fairly put to the jury. But that requirement does not oblige the judge to put to the jury every argument put forward by counsel for the accused. This Court has said that it 'is hardly necessary to say that as a reason for granting a new trial, after a conviction in a criminal case, it is not enough that the presiding judge has not mentioned to the jury all the matters which were set up on behalf of the accused as affecting probabilities' (Basto v The Queen [1954] HCA 78; (1954) 91 CLR 628, 637). Whether the trial judge is bound to refer to an evidentiary matter or argument ultimately depends upon whether a reference to that matter or argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence.
See also Aravena v The Queen [2015] NSWCCA 288; (2015) 91 NSWLR 258 [105] ‑ [109].
The appellant's main submissions in support of this ground allege that:
1.In the course of giving directions with respect to the elements of the offence, her Honour failed to instruct the jury that the appellant was a nail biter and that he did not have a fingernail sharp enough to cause pain to E in the act of penetration and that E did not mention that the appellant had a hairy chest.
2.Her Honour's Liberato direction was 'unbalanced', it 'unduly favoured the prosecution's case'.
3.When her Honour summarised the appellant's evidence concerning his telephone records, she failed to mention that the appellant may have been in the area of Mr and Ms T's house on the day of the alleged offence as he commonly visited the area for other purposes.
4.Her Honour's comments concerning E's post‑offence conduct were unduly favourable to the prosecution.
5.Her Honour did not give a balanced summary of the evidence concerning the alleged admission made by the appellant to Mr T.
These submissions appear to be predicated on the erroneous impression that the trial judge was obliged to mention in her summing up all of the matters which could support the appellant's defence. They are simply not sustained by a fair reading of the summing up and cannot be accepted.
When considered as a whole, there was nothing unbalanced about the summing up and, in particular, there was nothing unbalanced about what her Honour said about the issues specifically raised by the appellant. She accurately, fairly and comprehensively summarised the evidence the appellant gave and the arguments he made in his closing address to the jury.
Leave to appeal should be refused in respect of ground 7.
Ground 8 - was the verdict of guilty unreasonable?
Ground 8 alleges that the verdict of guilty should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported: s 30(3)(a) Criminal Appeals Act.
Legal principles
The legal principles applicable to this ground are well established. In EAGD v The State of Western Australia [No 2] [2014] WASCA 68, Buss JA described those principles as follows [32] ‑ [36]:
By s 30(3)(a) of the Criminal Appeals Act 2004 (WA), in the case of an appeal against conviction, the Court of Appeal must allow the appeal if, in its opinion, the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported.
In M v The Queen [1994] HCA 63; (1994) 181 CLR 487, Mason CJ, Deane, Dawson and Toohey JJ said, in relation to s 6(1) of the Criminal Appeal Act 1912 (NSW) (which is in substance identical to s 30(3) of the Western Australian Criminal Appeals Act):
Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently does so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory (492).
See also Jones v The Queen [1997] HCA 12; (1997) 191 CLR 439, 450.
In Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559, Hayne J (Gleeson CJ & Heydon J relevantly agreeing) said that where it is alleged that a conviction is unsafe or unsatisfactory, the question for an appellate court is:
[W]hether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt (M v The Queen (1994) 181 CLR 487 at 492 ‑ 493). It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. In the present case, the critical question for the jury was what assessment they made of the whole of the evidence that the complainant and the appellant gave that was relevant to the issue of consent to the digital penetration that had occurred in the park. That evidence did not require the conclusion that the jury should necessarily have entertained a doubt about the appellant's guilt [113]. (original emphasis)
See also Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [41] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan & Heydon JJ).
It is a question of fact whether a conviction is unsafe or unsatisfactory. This court must decide the question by making its own independent assessment of the sufficiency and quality of the evidence, and determining whether, notwithstanding that there is evidence upon which a tribunal of fact might convict, nevertheless it would be dangerous in the circumstances to permit the verdict to stand. See SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 [14] (French CJ, Gummow & Kiefel JJ).
However, this court, in assessing whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty, 'must not disregard or discount either the consideration that the [tribunal of fact] is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the [tribunal of fact] has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations': M (493); R v Nguyen [2010] HCA 38; (2010) 242 CLR 491 [33] (Hayne, Heydon, Crennan, Kiefel & Bell JJ); SKA [13].
This ground is to be decided having regard to the evidence adduced at trial and not the additional evidence sought to be adduced by the parties in this appeal.
Appellant's submissions
Earlier in these reasons we summarised the evidence adduced by the parties at trial. We have considered the trial record, including the exhibits tendered by the parties.
The key arguments of the appellant in support of this ground of appeal are:
1.The diary used by E which assisted her to nominate the date of the offence was not contemporaneous and was fabricated.
2.The identification evidence was unreliable.
3.E's evidence generally was unreliable because her version of events changed over time and contained 'embellishments' (appellant's submissions, par 113).
4.E's conduct towards the appellant after the commission of the alleged offence was friendly and inconsistent with him having sexually penetrated her.
5.Evidence that the appellant demonstrated 'an unhealthy interest' in E was distorted or fabricated (see appellant's submissions, par 121).
Ground 8 - disposition
It was not open to the jury to convict the appellant unless it was satisfied beyond reasonable doubt that E had been sexually penetrated by the appellant in the manner that she described. In order to arrive at this conclusion, the jury was required to reject the appellant's denial.
It was open to the jury to conclude that the appellant stayed at E's house on the night of 3 February 2012. E's diary constituted an aide‑memoire of the date of the alleged offence. It is difficult to conclude the diary was fabricated, particularly as that allegation was not put directly to E. The appellant's telephone records established that he was in the vicinity of the house that day and, given the unchallenged evidence that he frequently stayed overnight at E's house, it was open to the jury to conclude that the appellant was in the house and had the opportunity to commit the offence on the night in question.
E's account of the alleged offence was, in large measure, consistent throughout her two visually‑recorded interviews and in her evidence before the jury. There were minor inconsistencies between E's accounts, but we do not regard any of them as significant. A potentially more important inconsistency arose from the failure of E to refer to the appellant's smell in either of her visually‑recorded interviews. As it was not put to E in cross‑examination that her evidence of the appellant's smell was a recent invention, it is not known why E only mentioned this matter in her evidence to the jury. However, the inconsistency is obvious and is a matter we have considered.
The appellant makes much of E's evidence that the appellant's fingernail caused her pain when he withdrew his finger from her vagina. He argues that, as he habitually bites his fingernails, he could not have been the person who inflicted the pain. We have viewed the photographs which were tendered in evidence of the appellant's fingernails. The photographs were taken after the alleged offence (BAB 49 and 50; exhibit 19). Accepting that the appellant bit his fingernails at the time of the alleged offence and that they were in a similar state to that shown in the photographs, we do not think it can be said that it was impossible for the appellant's fingernail to have caused the pain of which E complained. The photographs revealed that the appellant's fingernails are not smooth. Rather, they are uneven and somewhat jagged. It is possible that the jagged edges could have inflicted the pain E said she experienced.
The appellant also argued that had the appellant been lying, as E stated, with the front of his body against her back, she would inevitably have felt the hair on his chest and stomach. The appellant tendered a photograph of his chest and stomach which show hair on those areas (BAB 53; exhibit 21). The appellant submitted that E's failure to testify that the person who sexually penetrated her had body hair excludes him as the offender. E testified that she had no recollection of feeling any body hair against her back at the time of the alleged offence. The fact that E has no recollection of feeling any body hair does not mean that the offender did not have body hair on his chest and stomach. It may well be, in the context of a sudden sexual penetration of an 11‑year‑old girl, this was not a detail which E might reasonably be expected to sense or, if she did sense it, to recall.
The element of identity was disputed. E did not visually identify the appellant as the offender. Her evidence on this issue relied upon, as has already been pointed out, E's voice recognition and recognition of the appellant's smell. There were weaknesses in respect of this evidence, more so, in our view, with the evidence of smell. However, E's evidence of identity did not stand alone. There was Mr T's evidence of the admission made by the appellant at their meeting on 15 September 2013. That evidence was, in our opinion, well capable of belief despite the appellant's denials. Further, if the alleged offence occurred on 3 February 2012, the appellant was the only male in the house apart from Mr T. As we observed earlier in these reasons, it was never alleged that Mr T had committed the alleged offence.
E did not make an immediate complaint, nor did she tell anyone about what had occurred until September 2013, some 19 months after the alleged offence. The failure by E to make a recent complaint was readily explained by her knowledge that the appellant was her father's best friend and that disclosure of what occurred would hurt her father. Her reluctance to complain to her mother may also be explicable for this reason as it is reasonable to expect that disclosure to E's mother would have been conveyed to E's father. As to delay, the same considerations apply. In this context, it cannot be overlooked that E was young and, after the commission of the alleged offence, the appellant continued to visit Mr T and attend at the family home. In these circumstances, it is not unreasonable for E to have hesitated about making a complaint. Moreover, according to her, she did not have, at the time, a friend that she felt she could trust.
We do not think that E's apparently friendly contact with the appellant after the commission of the alleged offence indicates that the offence did not occur. E's behaviour is explicable by the friendship the appellant had with E's father and her desire not to upset her father. On the other hand, some weight (perhaps not much weight) could be given to the appellant giving E a pair of earrings for her twelfth birthday some days after the commission of the alleged offence. According to Mrs T, the appellant had not given E such a gift in the past. We are unable to conclude that this evidence was 'distorted' (see appellant's submissions, par 21).
The appellant's evidence must be considered. He denied the offence, emphasising that he had known E all her life and would have no reason to engage in sexual activity with her. He, like E, did not materially change his evidence under cross‑examination.
Of course, in considering the credibility of all of the witnesses who gave evidence, but particularly the credibility of E and the appellant, the jury had the benefit of having seen and heard the witnesses.
Our own assessment of the sufficiency and quality of the evidence adduced at trial is that it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt. We have not been persuaded that E's evidence was unreliable or inconsistent to the point where it was not open to the jury to be satisfied beyond reasonable doubt of its truth. We are satisfied that it was open to the jury to be satisfied that the offender was the appellant and that his evidence should be rejected. We are satisfied that it was open to the jury to find, beyond reasonable doubt, that the appellant was guilty of the offence. The evidence did not require the conclusion that the jury must necessarily have entertained a doubt about the appellant's guilt.
Leave to appeal on ground 8 should be refused.
The proviso
The State submitted that, if ground 5 was upheld, the proviso in s 30(4) of the Criminal Appeals Act should be applied. It is unnecessary to deal with this submission, given that, in addition to ground 5, grounds 2, 3 and 4 have also been upheld. Particularly having regard to the nature of grounds 2 and 4, it would not be appropriate to apply the proviso. In fairness to the State, it made no submission to the contrary. In any event, had ground 5 been the only ground that was upheld, we would not have applied the proviso because we are not satisfied that no miscarriage of justice has actually occurred.
Other matters
Earlier in these reasons, we mentioned that ground 3 alleged other miscarriages of justice relating to the evidence of the appellant's smell. These complaints were to the effect that the appellant suffered various miscarriages of justice flowing from the State's late disclosure of its intention to adduce evidence from E identifying the appellant by his smell. The appellant alleged that:
1.He did not have sufficient time to call rebuttal evidence.
2.Defence counsel acted incompetently by failing to apply for an adjournment of the trial.
3.The trial should have been adjourned by reason of the late disclosure.
Given that this appeal has succeeded on other grounds which justify a retrial, it is unnecessary to decide these matters. They do not involve any point of principle and were not matters which, if established, would have resulted in an acquittal and are not matters which will have any bearing on the conduct of the appellant's retrial.
Retrial or acquittal?
In our opinion, the interests of justice favour an order for a new trial rather than an order for an acquittal. We are not satisfied that the State has no reasonable prospect of success at a new trial. It appears at the new trial that E may be confronted with the evidence the appellant has obtained from the Bureau of Meteorology as to the temperature on the night of 3 February 2012. How E responds to this evidence is unknown. Further, there is evidence that the appellant made material admissions. One of the principal considerations in ordering a new trial is that there is a public interest in the due prosecution and conviction of an offender and it is desirable, if possible, for the guilt or innocence of an accused to be finally determined by trial: Anderson v The Queen (1991) 53 A Crim R 421, 453, cited with approval in R v Taufahema [2004] HCA 11; (2007) 228 CLR 232 [49]. The facts and circumstances of this case do not render it unjust to make the appellant stand trial again. See Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; (1984) 154 CLR 627, 630 (Gibbs CJ, Murphy, Wilson, Deane & Dawson JJ).
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