JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: DE-ABREU -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 145
CORAM: BUSS P
MURPHY JA
MAZZA JA
HEARD: 1 OCTOBER 2019
DELIVERED : 16 SEPTEMBER 2020
FILE NO/S: CACR 218 of 2018
BETWEEN: JADE DE-ABREU
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: EATON DCJ
File Number : IND 588 of 2014
Catchwords:
Criminal law - Practice and Procedure - Application by appellant for an adjournment of the hearing of the appeal against conviction - Whether offender established proper basis for court to exercise its discretion - Whether adjournment necessary to ensure appellant given a reasonable opportunity to properly present his case on appeal
Criminal law - Appeal against conviction - Appellant convicted of deprivation of liberty, multiple sexual offences and multiple assault offences - Whether the State failed to comply with its duty of disclosure - Whether there was a wrong decision on a question of law when orders were made granting special witness status to the complainants - Whether the trial judge was required to identify to the jury that the complainants knew each other - Whether the State and defence counsel failed to adduce relevant evidence - Whether the trial judge failed to direct the jury in respect of a comment made by a complainant in evidence - Whether evidence relevant and admissible - Whether the guilty verdicts are unreasonable or unsupported by the evidence - Whether the trial judge failed to direct the jury in respect of alternative verdicts for lesser charges open on the evidence
Legislation:
Criminal Appeals Act 2004 (WA), s 30(3)(a), s 30(5)
Criminal Code (WA), s 1, s 313, s 317, s 326, s 333
Criminal Procedure Act 2004 (WA), s 45(5), sch 1 div 2 cl 7(1), sch 1 div 2 cl 7(2)
Evidence Act 1906 (WA), s 106M, s 106R, s 106R(3a), s 106R(7)
Result:
Leave to appeal on grounds 1, 2 and 4 granted
Leave to appeal on ground 3 refused
Appeal allowed in part
Conviction on count 3 set aside
Alternative verdict on count 3 entered
Appellant resentenced on count 3
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | R G Wilson |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Blum v The State of Western Australia [2011] WASCA 73
Costa v The State of Western Australia [2019] WASCA 200
Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427
Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555
Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593
Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414
Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024
Hall v Braybrook [1956] HCA 30; (1956) 95 CLR 620
Kitto v The State of Western Australia [2018] WASCA 161
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Pell v The Queen [2020] HCA 12; (2020) 94 ALJR 394
R v Bricola [2017] QCA 51
Rankins v The State of Western Australia [2018] WASCA 138
Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650
The State of Western Australia v Silich [2011] WASCA 135; (2011) 43 WAR 285
JUDGMENT OF THE COURT:
Before the court is the appellant's application for an extension of time to appeal and, if granted, his appeal against conviction.
On 16 March 2015, the appellant was arraigned in the District Court on an indictment which contained 13 counts relating to offences allegedly committed by the appellant in respect of two adult complainants who we will refer to in these reasons as S and F.
Counts 1 to 4 concerned S. Counts 1 to 3 were all alleged to have occurred on 6 July 2013 at a house in Attadale. Count 1 alleged that the appellant sexually penetrated S without her consent by introducing his penis into her mouth, in circumstances of aggravation contrary to s 326 of the Criminal Code (WA) (the Code). Count 2 alleged that the appellant unlawfully and indecently assaulted S by urinating in her mouth, in circumstances of aggravation contrary to s 324 of the Code. Count 3 alleged that the appellant unlawfully assaulted S and thereby did her bodily harm, in circumstances of aggravation contrary to s 317(1)(a) of the Code. Count 4 was alleged to have occurred on 10 July 2013, also at the house in Attadale. It alleged that the appellant again unlawfully assaulted S and thereby did her bodily harm in circumstances of aggravation. The alleged circumstance of aggravation in each count was that S was a person with whom the appellant was in a family and domestic relationship.
Counts 5 to 13 concerned F. All the offences were alleged to have occurred on or about 25 August 2013 at a disused function centre situated at 109 Caledonia Avenue in Maylands (Maylands premises). Counts 5 and 6 alleged that the appellant sexually penetrated F without her consent by introducing his penis into her mouth, in circumstances of aggravation contrary to s 326 of the Code. Count 7 alleged that the appellant sexually penetrated F without her consent by penetrating her vagina with his penis, in circumstances of aggravation contrary to s 326 of the Code. Count 8 alleged that the appellant sexually penetrated F without her consent by penetrating her anus with his penis, in circumstances of aggravation contrary to s 326 of the Code. Count 9 alleged that the appellant unlawfully detained F, contrary to s 333 of the Code. Count 10 alleged that the appellant unlawfully and indecently assaulted F by forcing her to lick his anus, in circumstances of aggravation contrary to s 324 of the Code. Counts 11 and 12 alleged that the appellant compelled F to engage in sexual behaviour, namely to penetrate his anus with a torch, in circumstances of aggravation contrary to s 328 of the Code. Count 13 alleged that the appellant unlawfully assaulted F and thereby did her bodily harm, in circumstances of aggravation contrary to s 317(1)(a) of the Code. The alleged circumstance of aggravation in counts 5 to 8 and 10 to 13 was that F was a person with whom the appellant was in a family and domestic relationship.
Upon his arraignment, the appellant pleaded guilty to count 13 and not guilty to the rest of the counts.
On 25 March 2015, after a trial before Eaton DCJ and a jury, the appellant was found guilty as charged of counts 3, 5, 6, 7, 8, 9, 10, 11, and 12. Judgments of conviction were entered accordingly. The appellant was found not guilty of counts 1, 2 and 4.
In summary, the appellant was convicted after trial of four counts of aggravated sexual penetration without consent on F (counts 5, 6, 7 and 8), one count of unlawful detention of F (count 9), one count of aggravated unlawful and indecent assault of F (count 10), two counts of compelling F to engage in sexual behaviour in a circumstance of aggravation (counts 11 and 12) and one count of aggravated assault occasioning bodily harm on S (count 3).
On 13 August 2015, Eaton DCJ imposed a total effective sentence of 10 years' imprisonment, backdated to commence on 26 August 2013, with parole eligibility.
The appellant has, throughout the proceedings in this court, represented himself. On 19 November 2018, the appellant filed his appeal notice dated 30 October 2018, approximately 3 years and 2 months out of time. The appellant's affidavit in support of an extension of time is brief.[1] In it, the appellant states:
(a)He attempted to file an appeal notice against conviction within the 21‑day time limit, but the appeal notice was rejected because of technical deficiencies.
(b)He has found the appeal process 'very difficult' because he suffers from unspecified 'mental disabilities' and he is not legally trained.
(c)Because of limitations in prison and other unspecified limitations, he had been unable to file his appeal notice earlier.
(d)He had been unable to obtain a grant of legal aid.
[1] WAB 7.
We will return to the merit of the appellant's application for an extension of time after we decide the grounds of appeal.
The grounds of appeal
The grounds of appeal as written by the appellant are as follows:
First Ground of Appeal
The verdict of guilty on which the conviction is based should be set aside because, the State did not act appropriately or fairly according to law and led evidence that was factually incorrect.
Second Ground of Appeal
The verdict of guilty on which the conviction is based should be set aside because, the Judge made errors at law throughout trial and especially during summing up His Honour gave inadequate directions and warnings to the jury.
Third Ground of Appeal
The verdict of guilty on which the conviction is based should be set aside because, His Honour made several errors at law in his discretion on the way in which the trial was conducted and on the evidence.
Fourth Ground of Appeal
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.
The question of leave to appeal on these grounds has been referred to the hearing of the appeal.[2]
[2] Order 28 February 2019, Mazza JA; WAB 5.
Overview
The State's case
The State's case at trial was as follows.
S had been in a relationship with the appellant for about five weeks. In the early hours on 6 July 2013, she and the appellant were at S's home in Attadale. The owner of the home, Ms Deanna Tolcon, was also present. S and the appellant had been using illicit drugs throughout the night. At the relevant time, they were together in the upstairs bathroom.
According to S, the appellant became angry with her because she showed no interest in the pornography that the appellant was viewing on his mobile telephone.
At some point, S and the appellant sat facing each other in the bathtub. The appellant demanded that S grab his penis. S refused this demand. According to S, the appellant then assaulted her and forced her head into his groin and then his penis into her mouth (count 1).[3]
[3] ts 98
According to S, the appellant continued to physically assault her. At some stage, he grabbed her around the throat with his hands and strangled her.
Later, the appellant got out of the bathtub and watched more pornography on his mobile telephone. He also changed his clothes so that he was wearing a black sequined dress and a black mid-waist negligee. At some point, the appellant urinated into S's mouth (count 2).[4]
[4] ts 98 - 99.
Eventually, the appellant and S left the bathroom and entered a bedroom. There, the appellant bit her on the lower back and on other parts of her body.
The State case with respect to count 3 was that the assault was constituted by a number of acts which took place on 6 July 2013.[5] In her opening address, the prosecutor did not identify the injury or injuries said to amount to bodily harm.
[5] ts 99.
At about mid‑morning on 10 July 2013, the appellant and S were once again at S's home. So too was the owner of the house, Ms Tolcon.
At some point, the appellant became angry with S. Over a period of time, the appellant kicked and punched her. Ms Tolcon demanded that he leave. The appellant again punched and kicked S. Eventually, he left the premises (count 4).[6]
[6] ts 99.
It will be recalled that counts 5 to 12 concerned offences allegedly committed by the appellant upon F.
F had known the appellant for about 10 years. In the past, they had shared drugs and, while doing so, had consensual sex. Prior to 24 August 2013, F had not seen the appellant for a long time, but they arranged to catch up that night.
At about 11.00 pm, on 24 August 2013 the appellant picked F up at the Joondalup train station in his red Holden Barina sedan. They then drove to a location where the appellant purchased drugs, using money provided by F. After doing so, the appellant's demeanour changed. He drove erratically and took F to a disused function centre at 109 Caledonia Avenue, Maylands, arriving there some time after midnight.[7]
[7] ts 100.
Once inside, the appellant took some drugs and immediately asked F for sex.
The State case was that, for most of 25 August 2013, the appellant detained F against her will, sexually assaulted her and physically assaulted her, as the result of which she sustained numerous injuries.
F alleged that, while they were in the kitchen, the appellant forced her to suck his penis. During this incident, the appellant complained that F 'wasn't doing it right'. He demanded that she look at him in a certain way and, when she did not, he hit her (count 5).[8]
[8] ts 101.
The appellant then moved F to another area of the premises. There, he again forced her to suck his penis. At one point, the appellant grabbed F's hair because she was not performing this act in the 'right' way (count 6).[9]
[9] ts 101.
Upon moving back to the kitchen, the appellant pushed F to the floor, punched and kicked her. He also grabbed her around the throat with his hands and started to strangle her.
At another point, the appellant demanded that F take her clothes off. After she did so, the appellant put her underpants on and placed her pink singlet top over the purple singlet he was wearing.
Eventually the appellant and F went into a carpeted room. The appellant put on a purple wig. He then got on top of F and, without her consent, penetrated her vagina with his penis (count 7).[10] The appellant then demanded that F get on all fours. While F was in this position, the appellant penetrated her anus with his penis without F's consent (count 8).
[10] ts 101.
At some point during the day, the appellant and F left the building to get more drugs. F was so scared of the appellant and what he might do if she tried to escape that she did not try to get away from him.
After their return to the building, the appellant forced F to wear a large brown dildo between her legs and told her to rub the dildo on his anus. The appellant unsuccessfully attempted to get F to insert the dildo into his anus. The appellant grabbed some talcum powder and put it on himself and F. He then told F to lick his anus, which she did (count 10). The appellant then twice demanded F insert a silver and blue torch into his anus, which she did (counts 11 and 12).[11]
[11] ts 102.
Mr Ahmed Mohammad Abugeras, the owner of the premises, entered the kitchen area with his two sons shortly after the commission of the offences described to in the previous paragraph. Mr Abugeras told the appellant and F to leave. The appellant and F left the premises and went into the carpark. F ran away from the appellant across the road, but was pursued by the appellant, who grabbed her and forced her into his red Holden Barina. The appellant then drove out of the carpark.[12]
[12] ts 102 - 103.
The appellant and F eventually walked to a McDonald's restaurant in Tuart Hill after the appellant's car ran out of petrol. There, F ran inside and locked herself in the women's toilet. The appellant stood in the area outside the toilet, demanding money from F. One of the restaurant managers, Ms Martina Ladbrook, managed to get the appellant to leave by obtaining F's bankcard from which Ms Ladbrook withdrew $20 with F's permission, and gave that sum to the appellant.[13] Shortly after the appellant left the premises, F emerged from the women's toilets. Ms Ladbrook saw that F had blood on her face and bruises on her arms.[14]
[13] ts 103 - 104.
[14] ts 104.
The State's case with respect to count 9 was that F was unlawfully detained by the appellant for a period of approximately 24 hours, beginning at her arrival at the function centre and ending at the McDonald's restaurant.[15]
[15] ts 102, 108.
On the morning of 26 August 2013, F was examined at the Sexual Assault Referral Centre (SARC) by Dr Maire Kelly. She observed multiple bruises and abrasions on F's body. Later that day, F was examined by Dr Hazel Batten at the Joondalup Health Campus. Dr Batten described F as being extensively bruised.
The State adduced DNA evidence from a forensic scientist employed at PathWest, Ms Penny Cooper, and other witnesses including the principal investigating officer, Detective Lisa Benington. No record of interview between the police and the appellant was adduced at trial.
Among the exhibits tendered during the State's case were numerous photographs taken of the complainants and of the alleged crime scenes, a record of SMS messages exchanged between the appellant and F, and some CCTV footage which the police obtained from the McDonald's restaurant in Tuart Hill.
It was conceded by defence counsel that the evidence given by S and F was cross‑admissible.
The defence case
The appellant elected not to testify in his defence. He adduced evidence from Mr Peter Hughes, who, in essence, alleged that sometime after the commission of the alleged offences on F, she attempted to blackmail him.
The defence case was conducted on the basis that S and F were each unreliable or untruthful witnesses who could not be believed on their oath or affirmation. With respect to S the appellant's defence was conducted on the basis that count 1 was consensual, count 2 did not occur, in count 3 the appellant's biting of S was 'playful' and the injuries S sustained in count 4 occurred accidentally while they were 'wrestling'. With respect to F the appellant's defence was conducted on the basis that F was not detained against her will and that the appellant did not engage in any sexual conduct with her. The defence case was conducted on the basis that the appellant and F only kissed and cuddled.
The real issues in the trial
The real factual issues for the jury to determine were whether the State had proved beyond reasonable doubt that the appellant committed the acts or engaged in the conduct the subject of each count. While there was some evidence capable of supporting the testimony of S and, particularly, F, the State's case on each charge essentially depended upon the jury being satisfied beyond reasonable doubt of their honesty and reliability.
The appellant's application to adjourn the hearing of the appeal
By application dated 22 August 2019, but filed on 20 September 2019, the appellant applied to have the hearing of the appeal, which was listed on 1 October 2019, adjourned 'for as far as may be necessary for the purpose of justice'. The application was supported by an affidavit sworn by the appellant on 16 September 2019. The affidavit in its entirety, omitting formalities, is as follows:
Seeking to have appeal of 1 Oct 2019 adjourned until such time as I am able to access all of the documents, files, etcetera, pertinent to my appeal of which I will be relying upon, and all witnesses and evidence has been summoned and accepted by the court. For the last eight months I have been [sic] denied access to my files, medical records, including but not limited to been [sic] denied to send legal faxes in relation to my appeal, or for as far as may be necessary for the purpose of justice.
I am also seeking an expert witness for the examination of the DNA evidence of which is in dispute. Criminal Appeals Act 2004, section 40(1)(g).
As per directions hearing of 22 August 2019, DPP was present.
The application to adjourn the hearing of the appeal was opposed by the respondent.[16]
[16] Appeal ts 57.
After hearing oral submissions from the appellant and the respondent, the court unanimously dismissed the application, with reasons to be published later. It is convenient to now set out those reasons.
The appellant's application to adjourn the hearing of the appeal must be decided against the following background.
As already stated, the appellant's appeal against conviction was filed just over three years and two months out of time.
On 20 November 2018, the Court of Appeal Registrar sent a letter by facsimile to the appellant, dated 19 November 2018, advising him that he was required to comply with the timelines for an appeal and the procedure for service of documents as set out in the Supreme Court (Court of Appeal) Rules 2005 (WA) (the Rules). In the letter, the appellant was advised that it was his responsibility to secure legal representation and, if he intended to seek legal aid, he should submit an application to the Legal Aid Commission of Western Australia immediately.
At a directions hearing before Mazza JA on 20 December 2018, the appellant said that he had been detained in separate confinement in Acacia Prison without access to photocopying, the legal library, computers or his legal documents. He said that he had been working on his case for the last two years or so and in the last couple of months he had been denied access to the legal library.[17]
[17] Appeal ts 3 - 5.
At a further directions hearing on 12 February 2019, the appellant advised Mazza JA that he was still being denied access to his legal documents, the legal library and his computer.[18] His Honour observed that the appellant had prepared and sent to the court an appellant's case dated 26 October 2018 which had not been accepted for filing. His Honour asked the appellant if he wished to rely on this document as his appellant's case. The appellant answered in the affirmative.[19] His Honour directed that the document signed by the appellant on 26 October 2018 stand as his appellant's case, notwithstanding that it did not comply with the Rules.[20]Other procedural orders were made on 18 February 2019 which are irrelevant for present purposes.[21]
[18] Appeal ts 11 - 12.
[19] Appeal ts 14.
[20] Appeal ts 15.
[21] WAB 5.
The written submissions prepared by the appellant are 23 pages in length. The submissions make reference to various statutory provisions, including the Criminal Procedure Act 2004 (WA), the Criminal Appeals Act 2004 (WA) and the Interpretation Act 1984 (WA). There is also extensive reference to the trial transcript and to case law.
On 15 May 2019, the appellant wrote to the court, attaching five witness summonses to produce a record or thing, and 12 applications for witness summonses, accompanied by 12 witness summonses to give oral evidence. By r 54(1) of the Rules, pt 5 div 7 and sch 4 of the Criminal Procedure Act and the Criminal Procedure Rules 2005 (WA) apply for the purpose of compelling a witness to attend the Court of Appeal. The five witness summonses to produce a record or thing were not accompanied by applications for witness summonses as required by r 38(1) of the Criminal Procedure Rules.
The applications for the court to give leave to issue witness summonses to give oral evidence were addressed to:
(1)The complainant F.
(2)Shawn/Sean Brodon.
(3)Peter J Hughes.
(4)Amanda Jones.
(5)Lean Tolkan [sic].
(6)Lisa Monroe.
(7)Maria Danjanovick.
(8)Each of the appellant's trial lawyers, David John McKenzie and Samantha McKenzie.
(9)Security staff (man) from United Care West/Tranby's Perth.
(10)Detective Sergeant Paul Shurbert and team.
(11)Two police officers of Dog Swamp incident 2013.
The applications for witness summonses to issue to produce a record of thing comprised:
(1)Summons addressed to the WA Police, seeking 'universal physical material list, decision log, diary notes and running sheets'.
(2)Two summonses addressed to the DPP/the State of Western Australia, seeking 'all' mobile text messages to F's phone.
(3)Further and separate summons directed to the DPP/the State of Western Australia seeking 'full disclosure from DPP in particular, photos from mobile phone of motorbike'.
(4)A further summons addressed to the DPP/the State of Western Australia seeking record of interview - police video.
On 4 June 2019, the Associate to the acting Court of Appeal Registrar sent a letter by facsimile to the appellant, advising him that all of the witness summonses had not been accepted for filing. The letter explained the reasons for the refusal. Four of the applications for witness summonses to produce a record or thing were rejected because they were either too broad in scope or too vague in the description of the thing sought to be produced and they did not, on their face, appear to relate to any ground of appeal. The fifth application for a witness summons to produce a record or thing sought 'record of interview - police video'. This application was rejected because it was unnecessary in that the appellant's record of interview with police was tendered in evidence at his trial and was before the court as a record or document that was relevant to the appeal. All 12 applications for witness summonses and the accompanying witness summonses to give oral evidence were rejected because they did not contain sufficient details of the witnesses sought to be summonsed and the appellant had failed to explain what relevant evidence each witness could give, having regard to the grounds of appeal.
On 19 June 2019, a further directions hearing was conducted by Mazza JA. On this occasion, his Honour reminded the appellant that any application to issue a witness summons either to produce a document or thing or to give oral evidence must identify the relevant ground of appeal and why the summons is required.[22]
[22] Appeal ts 19 - 21.
On 2 July 2019, the court sent to the parties a notice stating that the hearing of the appeal was listed on 1 October 2019. By a letter addressed to the court, dated 23 July 2019, the appellant acknowledged receipt of the listing notice.
On 22 August 2019, at another directions hearing before Mazza JA, the appellant stated that he could not proceed with the appeal until witnesses were summonsed and all other evidence was acquired and accepted. The appellant advised his Honour that his legal documents and files were 'sitting somewhere in reception in another part of the prison'.[23] He claimed that it was 'impossible' to carry on with proceedings without these files and other documents.[24] He did not explain what measures he had taken to obtain his files and other documents or why they had not been provided to him. The appellant said that he wanted an adjournment of the hearing of the appeal. The appellant also mentioned that he had spoken to a lawyer who was 'willing to have a look at my case'.[25]
[23] Appeal ts 32.
[24] Appeal ts 32.
[25] Appeal ts 41.
Mazza JA emphasised to the appellant that the appeal would proceed on 1 October 2019 unless an application to adjourn the hearing was made and that application was granted.[26] His Honour repeated the advice that had previously been given to the appellant, that if he wished to summons a witness to produce a document or thing or give oral evidence, he had to explain the nature of the evidence sought to be obtained and how it was relevant to a ground or grounds of appeal.[27]
[26] Appeal ts 45.
[27] Appeal ts 43.
On 2 September 2019, the court received a letter from the appellant, dated 22 August 2019, which again requested that the court issue five witness summonses to produce a record or thing and 12 witness summonses to give oral evidence. The letter did not explain why the summonses were required; in particular, the nature of the evidence sought to be obtained and how it was relevant to a ground or grounds of appeal. On 9 September 2019, the court sent a letter to the appellant advising him that the applications would not be accepted for filing without an affidavit explaining why the summonses were required.
On 23 September 2019, after the court received the appellant's application to adjourn the hearing, the court wrote to the appellant informing him that:
In the event that the Court of Appeal does not grant the application for an adjournment on 1 October 2019, you must be prepared to proceed with the hearing of the appeal and to make your submissions in relation to the appeal on that date.
On 1 October 2019, the appellant made lengthy oral submissions in support of his application for an adjournment.[28]
[28] Appeal ts 48 - 56.
The appellant offered a number of reasons why he believed the hearing of the appeal should be adjourned. The main reason for the adjournment was to allow him time to issue and serve the various witness summonses referred to earlier in these reasons. The purpose of the witness summonses was to put before this court evidence designed to show three things. First, that sometime in early 2013, the appellant was the victim of a violent assault, including that he fell or was thrown from a four‑storey building in Highgate, as a result of which he sustained serious injuries including, he said, a broken neck. As we understood the appellant's submissions, he wished to put before this court medical evidence to show that he was physically incapable of committing the offences alleged by S and F. Second, the appellant claimed that F (and perhaps S) had an ulterior motive for falsely accusing him of committing the alleged offences. Third, the appellant asserted that there were text messages on F's mobile telephone which the prosecution did not disclose to his lawyer prior to trial which support the existence of this ulterior motive.
Other reasons offered by the appellant in support of the application for an adjournment were:
(a)He had not had access to any of his documents 'for the last 12 months'.[29]
(b)He had not been able to properly prepare for the hearing.
(c)He wanted this court to make an order for the appointment of an assessor, pursuant to s 40(1)(g) of the Criminal Appeals Act, in relation to the forensic and DNA evidence which was adduced at the trial.
(d)Finally, the appellant said that he had spoken to a lawyer who said that he would have a look at his case, but the lawyer had been unable to do so.
[29] Appeal ts 51.
In the course of his oral submissions, the appellant accepted that he had received copies of his appellant's case and the respondent's answer some months prior to the hearing. He also acknowledged receiving copies of the appeal books, but claimed that he had not received them until the day before the hearing. He did not bring the appeal books to the video room at Casuarina Prison from which he made submissions on 1 October 2019. He said that there was no point in bringing the appeal books to the video room because he did not have the documents that he wished to obtain under the witness summonses.
The legal principles applicable to an application for an adjournment of a criminal appeal were explained by Buss JA in The State of Western Australia v Silich,[30] as follows:
The court's power to grant an adjournment to an offender who is appealing against conviction is broad and flexible. The purpose of the power is to enable the court to achieve justice in the particular case. This is not, of course, confined to justice from the offender's perspective. There is a public interest in the prompt disposition of proceedings on appeal. However, the overriding consideration is whether an adjournment is necessary to ensure that the offender is given a reasonable opportunity properly to present his or her case on appeal. This is fundamental to the proper administration of justice in the criminal jurisdiction. Compare, in the different context of an application by an accused for the adjournment of a criminal trial, the observations of Hunt CJ at CL, Grove and Dunford JJ in Alexandroaia v The Queen (1995) 81 A Crim R 286, 289 and Gummow J in HG v The Queen [1999] HCA 2; (1999) 197 CLR 414 [126].
In general, four factors of relevance in determining whether to grant an application for an adjournment by an offender who is appealing against conviction are these. First, the nature and extent of the delay if the adjournment is granted. Secondly, the reasons for the adjournment. Thirdly, the prejudice (if any) to the offender if the adjournment is not granted. Fourthly, the prejudice (if any) to the State or the public interest if the adjournment is granted. This is not intended to be an exhaustive statement. In a particular case, there may be other factors.
Although the court's discretion is broad and flexible, the offender must establish a proper basis for its exercise. The court will, in general, require cogent reasons before granting an adjournment.
[30] The State of Western Australia v Silich [2011] WASCA 135; (2011) 43 WAR 285 [111] ‑ [113].
In our opinion, there were no cogent reasons for granting an adjournment of the hearing of the appeal. Our reasons for arriving at this conclusion are as follows:
(1)The appeal notice was filed, as we have already observed, approximately 3 years and 2 months out of time. By the time of the hearing of the appeal, some 4 years and 2 months had elapsed. The appellant sought an adjournment of the appeal for an unspecified but apparently lengthy period of time.[31] While we appreciate that the appellant is a serving prisoner and is representing himself, the appellant has had ample opportunity to prepare and present his case.
(2)Despite being informed by the court on multiple occasions prior to the hearing of the appeal that, before the court grants leave to issue a witness summons, he was required to identify the relevant ground of appeal and the reason why the summons is required, the appellant has persistently failed to do so. Apart from generalised and unhelpful assertions made by the appellant from the bar table, this court remains uninformed of what the evidence the various persons and organisations sought to be summonsed (insofar as they could be identified) could give to this court and how it related to any of the grounds of appeal.
(3)There is no material before the court to suggest that S or F had any ulterior motive for falsely accusing the appellant of the offences he allegedly committed. Nothing to that effect was put to S or F in cross‑examination by defence counsel at trial.
(4)None of the persons sought to be summonsed appear to be medical practitioners who could attest to the appellant's alleged incapacity to commit the offences alleged against S and F.
(5)The existence of text messages on F's mobile telephone said to show that she had an ulterior motive for falsely accusing the appellant of the offences she alleged is entirely speculative. Evidence was adduced at trial from Detective Benington to the effect that text messages from the appellant's mobile telephone were downloaded by detectives.[32] Detective Benington was not asked in cross‑examination about any text messages which showed that F had any ulterior motive for falsely accusing the appellant of any offence.
(6)Assuming that the appellant's statement to the effect that he had been in contact with a lawyer who said that he would look at the appellant's appeal is accepted, such a statement falls a long way short of establishing that counsel would appear on his behalf if the hearing was adjourned. No evidence was provided by the appellant as to what steps he had taken to secure legal representation or when he had taken those steps. We also note that, in the appellant's application for an extension of time, he stated that he had been unable to obtain a grant of legal aid.
(7)There is reason to doubt the appellant's statement that he was unable to access to his papers for 12 months, given that he accepted that he had copies of his appellant's case and the respondent's answer. There is nothing before this court to support the appellant's bald assertions that he has been prevented from accessing the materials required for him to properly prepare for his appeal.
(8)There is no basis for this court to appoint an assessor, pursuant to s 40(1)(g) of the Criminal Appeals Act. As will be seen, the only forensic evidence of any note was DNA evidence given by Ms Cooper, a forensic scientist employed at PathWest. She was cross‑examined by defence counsel as to the possibility, which she acknowledged, of secondary transfer of DNA. Her expertise and findings were not disputed.
[31] After the application was dismissed, the appellant said that he wanted an adjournment for six months: appeal ts 62.
[32] ts 620 - 624.
Having regard to the matters referred to in [69] the appellant has failed to demonstrate any proper basis for the grant of an adjournment, including a failure to demonstrate that he would suffer any material prejudice if the adjournment was not granted. The adjournment of the hearing of the appeal was not in the interests of justice and was therefore refused.
The appellant made no oral submissions in support of the grounds of appeal
After the application for an adjournment of the appeal was refused, the appellant declined to make any oral submissions in support of the grounds of appeal, despite being given ample opportunity to do so. Accordingly, the court has dealt with the grounds of appeal on the basis of the parties' written submissions.
Ground 1
Ground 1 is in these terms:
The verdict of guilty on which the conviction is based should be set aside because the State did not act appropriately or fairly according to law and led evidence that was factually incorrect.
The written submissions in support of this ground[33] go beyond the scope of the ground which is focused only upon the conduct of the State in its prosecution of the appellant. Having had regard to the written submissions in support of ground 1, we take the appellant to allege that:
(1)He suffered a miscarriage of justice by reason of the State's failure to comply with its duty of disclosure.
(2)There was a wrong decision on a question of law when orders were made granting special witness status to S and F.
(3)The trial judge erred in law by failing to identify to the jury in his summing up that S and F knew each other.
(4)He suffered a miscarriage of justice because relevant evidence was not adduced either by the State or by his trial counsel.
(5)He suffered a miscarriage of justice as a result of the statement by F under cross‑examination in which she described the appellant as 'a sex offender'.
(6)He suffered a miscarriage of justice because the jury was not directed that alternative verdicts for lesser charges were open on the evidence.
Did the State fail to comply with its duty of disclosure?
[33] Appellant's case, WAB 12 ‑ 21.
The appellant asserted that the State did not comply with its duty of disclosure. The appellant's written submissions focus on the State's common law duty of disclosure but it may be assumed that the appellant also asserts that the State failed to discharge its duty of disclosure under the Criminal Procedure Act.
In his written submissions the appellant claims that the State 'was well aware of the issue of non-disclosure' and accused it of taking 'positive steps to ensure that the appellant was tried by ambush'.[34] We observe that, during the trial, the appellant in person made similar assertions in the absence of the jury.[35]
[34] Appellant's case, par 1; WAB 12.
[35] ts 187, 191, 748.
At trial, defence counsel made no submissions to the effect that the State had failed to comply with its disclosure obligations. Neither at trial nor in this court has the appellant identified the material which he says the State had a duty to disclose but failed to do so. The only specific claim made by the appellant is that no disclosure certificate pursuant to s 45(5) of the Criminal Procedure Act was provided to the defence.
The legal principles with respect to a prosecutor's obligation of disclosure were recently described in Costa v The State of Western Australia[36] by Buss P and Mazza JA. We adopt that statement of principles. It is unnecessary to repeat it. For present purposes it is enough to acknowledge that a prosecutor's duty of disclosure is an inseparable part of the appellant's right to a fair trial.
[36] Costa v The State of Western Australia [2019] WASCA 200 [17] - [39].
The alleged failure by the State to serve upon the appellant's lawyers a certificate issued under s 45(5) of the Criminal Procedure Act is of no moment. The appellant does not allege that no such certificate was issued. Section 45(5) of the Criminal Procedure Act requires that a disclosure certificate be signed by a person who was involved in, and has knowledge of, the investigation of the charge and that the certificate certify that:
(a)section 35 and, if the case requires, s 42 (in relation to disclosure to the accused) have been complied with; and
(b)the relevant authorised officer (in the present case, the Director of Public Prosecutions (WA)) is being given a copy of all confessional material and evidentiary material that is relevant to the charge and that has been served on or made available to the accused.
There is no requirement that the disclosure certificate be served on the accused or his or her lawyers.
This complaint has no merit.
Was there a wrong decision on a question of law when orders were made granting special witness status to S and F?
Section 106R of the Evidence Act 1906 (WA) permits a judge to make an order declaring a person who is giving, or is to give, evidence in any proceeding a special witness. Pursuant to s 106R(3a) of the Evidence Act, where the proceedings involve an allegation of a serious sexual assault (an offence contrary to s 326 of the Code is such an offence), an order declaring the victim of the offence a special witness must be made, subject to certain exceptions which are not presently relevant. The arrangements that may be made for the giving of evidence by a special witness include giving evidence by video‑link: s 106M of the Evidence Act.
In the present case, the State made applications to have each of S and F declared a special witness and for their evidence to be given by video‑link. The appellant, through his counsel, consented to the orders sought in each application. This was the appropriate course given that, having regard to s 106R(3a) of the Evidence Act, the orders sought by the State were bound to be made. The judges who made the orders declaring each of the complainants a special witness and to permit each of them to give their evidence by video‑link were correct to do so. The trial judge gave the jury directions which complied with the requirement in s 106R(7) of the Evidence Act, to the effect that the giving of evidence by video‑link was an entirely routine procedure and that no adverse inference could be drawn against the appellant because of the use of this routine procedure.[37]
[37] ts 121, 250.
This complaint has no merit.
Was the trial judge required to identify to the jury that the complainants knew each other?
The appellant alleges that S and F colluded with each other to falsely accuse him of the offences. He also alleges collusion between the police and the complainants. He submitted that the trial judge ought, in his summing up, 'to have clearly identified to the jury the fact that the complainants knew each other and had given multiple statements to the police or struck inadmissible the evidence contained in later statements'.[38]
[38] Appellant's submissions, par 14; WAB 17.
At trial, S was not asked, either in examination‑in‑chief or cross‑examination, whether she knew or had met F. F testified to the effect that, prior to the alleged offences against her, she met a woman, who had the same first given name as S, on one occasion. F said that on the one occasion they met, the woman told her that a person named Jade had moved into her house and that she was scared to go back there. F said that she did not know at the time whether this woman was an acquaintance of the appellant. F said that she was unaware of S's complaint against the appellant.[39]
[39] ts 295.
The evidence adduced at trial falls well short of supporting any allegation of collusion between S and F to falsely accuse the appellant of the alleged offences. In his closing address, defence counsel conceded that there was no evidence of collusion between S and F.[40] While the jury may have inferred that F met S, this is an insufficient basis upon which to allege that they colluded.
[40] Defence closing address ts 39.
Whether a trial judge refers to a matter or argument in his or her summing up depends upon whether a reference to that matter or argument is necessary to ensure that the jury has a sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence.[41] In the present case, as there was no evidence capable of supporting an allegation that S and F had colluded against the appellant, a point which had been conceded by defence counsel in his closing address, there was no obligation upon the trial judge to refer to any knowledge that F may have had of S, let alone any allegation of collusion.
[41] Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555, 561.
Further, there is no evidence that the investigating police officers colluded with S or F to make false allegations against the appellant. The appellant relied on unsubstantiated allegations that the investigating police officers engaged in a process of 'reworking the [witness] statements' and possibly offered each of the complainants discounts or immunity for charges that they faced themselves.[42] In his written submissions, the appellant pointed out that at the time that S gave evidence she was herself a remand prisoner facing charges of a sexual nature to which she had pleaded not guilty.[43] Neither S nor F were cross‑examined on the basis that the police had colluded with them to make false allegations against the appellant, or that they had 'reworked' their statements with the help of the police, or that they had been offered any discount or immunity in respect of charges they faced if they testified against the appellant. Nor is there any evidence before this court capable of supporting any of these allegations.
[42] Appellant's case, par 13; WAB 16.
[43] ts 157 - 158.
In his written submissions, the appellant is critical of what he describes as 'personal contact' between 'prosecutors and witnesses prior to and during the trial'.[44] The appellant pointed to S acknowledging in her evidence that she had met the prosecutor before the trial[45] and Detective Benington's testimony in re‑examination that a few weeks before the trial she took a further statement from S.[46] Without more, none of this conduct gives rise to any impropriety on the part of the prosecutor or Detective Benington.
[44] Appellant's case, par 13; WAB 16.
[45] ts 122.
[46] ts 645.
This complaint has no merit.
Did the appellant suffer a miscarriage of justice because relevant evidence was not adduced at his trial by the State or his counsel?
The appellant appears to assert that there was evidence that would have assisted the defence case which was not called by either the State or his own counsel and that, as a consequence, he suffered a miscarriage of justice.
It is unclear precisely what evidence the appellant says should have been adduced. The appellant's written submissions refer to Ms Tolcon,[47] the appellant's medical records from Royal Perth Hospital,[48] information from Ms Maria Dejanovic,[49] and alleged police assaults and harassment leading up to the time the appellant was charged.[50]
[47] Appellant's case, par 11; WAB 10.
[48] Appellant's case, par 30; WAB 11.
[49] Appellant's case, par 30; WAB 16; ts 748.
[50] Appellant's case, par 30; WAB 11; ts 747.
The onus is upon the appellant to establish that he has suffered a miscarriage of justice by reason of the failure to adduce evidence, whether by the State or defence counsel. In order to decide whether the appellant has suffered a miscarriage of justice, it is necessary for the court to be provided with the evidence said to give rise to a miscarriage of justice. In the present case, the appellant despite having ample opportunity to do so, has failed to provide the court with such evidence. In these circumstances, it is impossible for the court to conclude that the appellant has suffered a miscarriage of justice as alleged by him.
This complaint has no merit.
Did the appellant suffer a miscarriage of justice as a result of F's statement under cross‑examination that the appellant is 'a sex offender'?
This allegation of a miscarriage of justice is, in substance, the same as the complaint made in ground 2, which we will deal with below. As will be seen, the allegation has not been made out.
Did the appellant suffer a miscarriage of justice because the jury was not directed that alternative verdicts for lesser charges were open on the evidence?
The appellant submitted that there were 'many' lesser alternative charges which were open on the evidence and that those alternative charges should have been included in the indictment or the trial judge was obliged to leave to the jury those alternative charges for their verdict.[51] The appellant does not specify the charges in the indictment that should have been subject to an alternative verdict direction nor does he say what alternative charges should have been left to the jury.
[51] Appellant's case, pars 25 - 26; WAB 20 - 21.
In cases which do not involve homicide, there is no general rule that a trial judge is obliged to leave an alternative verdict to the jury. Whether a judge does so is a matter for the discretion of the trial judge, depending on the particular circumstances of the case.[52]
[52] See Blum v The State of Western Australia [2011] WASCA 73 [45].
All of the charges in the indictment save for count 9 carried statutory alternative offences. But this does not mean that the State is obliged to charge an accused person, and there is nothing in the Criminal Procedure Act which compels the State to charge an accused person, with each and every offence that may, theoretically, be an alternative offence.
In each count which charged the aggravating circumstance that the appellant was in a family and domestic relationship with the complainant, there existed a statutory alternative offence which alleged the same charged conduct but not accompanied by a circumstance of aggravation. Thus:
(1)The offence contrary to s 325 of the Code is a statutory alternative offence to s 326 of the Code.
(2)The offence contrary to s 323 of the Code is a statutory alternative offence to s 324 of the Code.
(3)The offence contrary to s 327 of the Code is a statutory alternative offence to s 328 of the Code.
(4)The offence contrary to s 317(1)(b) of the Code is a statutory alternative offence to s 317(1)(a) of the Code.
We observe that the offence of common assault in s 313 of the Code is a statutory alternative offence to s 317 of the Code. Thus, where an accused is charged with an offence contrary to s 317 of the Code but the element of bodily harm is not proved beyond reasonable doubt the accused may be convicted of common assault.
In respect of each count on the indictment which alleged the circumstance of aggravation, his Honour directed the jury that if it was not satisfied that the circumstance of aggravation had been proved beyond reasonable doubt but that all of the other elements had been so proved, it could deliver a verdict of guilty to an alternative offence which did not include the circumstance of aggravation.[53] This was appropriate, given that, particularly with F, there was some contest as to whether the appellant had been in a family and domestic relationship with the complainants.[54] His Honour foreshadowed giving the jury these directions. Defence counsel agreed that the foreshadowed course was appropriate.[55] Ultimately defence counsel took no exception to the directions given to the jury. His Honour was not otherwise asked to exercise his discretion to leave any other alternative offence to the jury.
[53] ts 733 - 738.
[54] ts 733.
[55] ts 707 - 708.
Subject to what we have to say about count 3 below, his Honour did not err as alleged by the appellant. In respect of those counts which alleged a circumstance of aggravation, his Honour left to the jury the only appropriate alternative being an offence that was committed without the circumstance of aggravation. On the evidence, no other alternative offences were open.
However, a difficulty arises with count 3. As will be seen later in these reasons when we deal with ground 4, it was not open to the jury to find on the evidence that S had suffered bodily harm. Given the paucity of evidence with respect to this element, his Honour should have directed the jury that an offence of common assault contrary to s 313 of the Code was an alternative offence. We realise that defence counsel did not seek such a direction from his Honour, however it appears that the direction was called for given the unsatisfactory state of the evidence concerning the alleged bodily harm suffered by S. His Honour's failure gives rise to a miscarriage of justice. It is in this respect and this respect only that the appellant's complaint concerning alternative offences has been made out.
Conclusion - ground 1
Ground 1 has only been made out in respect of the miscarriage of justice identified at [102] above.
Ground 2
Ground 2 reads:
The verdict of guilty on which the conviction is based should be set aside because the judge made errors at law throughout trial and especially during summing up his Honour gave inadequate directions and warnings to the jury.
The nature of the alleged 'inadequate directions and warnings to the jury' is not particularised in the ground. However, when the ground is read with the appellant's written submissions,[56] it is clear that the appellant alleges that he suffered a miscarriage of justice because of evidence given by F that the appellant is 'a sex offender' (the impugned comment) and that his Honour erred or the appellant suffered a miscarriage of justice by reason of his Honour's failure to direct the jury in respect of the impugned comment.
[56] Appellant's case, WAB 22 - 23.
The impugned comment was made by F in cross-examination towards the end of proceedings on 18 March 2015 in the following exchange:[57]
[57] ts 355 - 356.
McKENZIE, MR: And really that is what had happened, isn't it, he physically assaulted you?--- Yeah, he physically assaulted me, of course.
Yes?--- You saw the photos.
Yes. He didn't sexually assault you?--- So you think that - that - that I wanted sex under those conditions, that it's good to have sex with all that violence? Maybe that's your cup of tea but it ain't mine.
Right. But what I'm putting to you is that?‑‑‑ You think we didn't have sex at all?
Yes, that's what I'm suggesting?‑‑‑ He did - you're talking about Jade here, he's a sex offender. (emphasis added)
EATON DCJ: No, no, let's ---
McKENZIE, MR: Right?‑‑‑ Which I didn't realise that he was but I now I know why he is.
EATON DCJ: No, wait, wait, wait, don't say anymore, just answer the questions.
Yes, Mr McKenzie?
THE WITNESS: Yes, he had sex with me all the ways that I described and there's more but what's the point, we haven't got all year.
McKENZIE, MR: Is - is the - are the things that you told the police?‑‑‑Yep.
- - - about him having sex with you in certain ways was - did you make that up?‑‑‑ No.
You didn't make it up?‑‑‑ No.
- - - to - to - to make the whole matter more serious against Jade?‑‑‑ No, I don't even hate were very angry at Jade at that time, weren't you?‑‑‑ No, I wasn't very angry at Jade, I was fucking terrified of Jade and I don't know why he done it and I'm scared that he's going to do it somebody else and I feel it's my duty, because I'm an older person and he hangs around younger girls, to make sure that he doesn't do this again.
Wait, wait, just wait?‑‑‑ I would rather see Jade get help.
EATON DCJ: Wait, just wait for the next question please.
McKENZIE, MR: So what I'm suggesting to you is you've made up all those sexual allegations because you were angry at Jade?‑‑‑No, no, that's not true. You don't make up sexual allegations of people because you're angry at them otherwise you'll doing it every five minutes of the day.
A short time later, after the jury retired for the day, defence counsel raised the impugned comment with his Honour. Defence counsel said:[58]
McKENZIE, MR: Obviously, [F] mentioned that [the appellant's] a sex offender, but - and I'll have a think about what submission I'll make about that, and what that means for your Honour's direction at the end. I'll have a - I'll ponder that issue.
[58] ts 359.
Defence counsel did not, at any stage in the trial, apply to discharge the jury or request that his Honour give a direction designed to remediate the impugned comment.
The trial judge raised the issue some days later, on 23 March 2015, when, towards the end of the evidence, his Honour sought submissions from both counsel as to any particular directions he should give in his summing up. His Honour and defence counsel then engaged in the following discussion concerning the impugned comment:[59]
[59] ts 653 - 654.
EATON DCJ: Okay. Look, Mr McKenzie, while I'm thinking about these matters there was the outburst about sex offender - what would you have me do about that?
McKENZIE, MR: Well, it wouldn't be the first matter that this sort of thing has happened and I - can I think about that overnight. I---
EATON DCJ: Sure. I'm happy to - I mean there's two quite distinct approaches, isn't there? One is, for Heaven's sake, don't highlight it. Let it go through to the keeper and the other one is it's of such importance that it actually needs to have - there needs to be a comment by the judge.
McKENZIE, MR: Yes.
EATON DCJ: To the effect that they must not misuse that piece of information which was gratuitously provided, I think, wasn't it? It's not as though you - you deliberately led it. It just came out.
McKENZIE, MR: Yes, yes.
EATON DCJ: And it can mean many things but it could mean some things that are quite prejudicial. I mean sex offender might just simply refer to her belief that she was being offended against sexually.
McKENZIE, MR: It could do. It could do, yes.
EATON DCJ: Yes. So I'll hear what you have to say about that tomorrow.
Neither counsel raised the issue with the trial judge again. The impugned comment was not mentioned in either the prosecutor's or defence counsel's closing address to the jury, nor did his Honour make any reference to it in the course of his summing up, which he delivered over two days on 24 and 25 March 2015.[60]
[60] ts 670 - 744.
While the jury were deliberating, the trial judge drew to defence counsel's attention that he, defence counsel, had not raised the impugned comment.[61] Defence counsel agreed that he had not raised the issue, explaining, in essence, that the comment was a 'throwaway line' by F and that any discussion of it in the presence of the jury 'might just reinforce what was said'.[62] Defence counsel said that he was content to leave it at that.[63] His Honour was not asked by defence counsel and he did not recall the jury to provide them with further instruction in respect of the impugned comment. Presumably, if any direction was required, it was to the effect that the jury should ignore it.
[61] ts 752.
[62] ts 752.
[63] ts 753.
No evidence was adduced before the jury of the appellant's criminal history. However, in the course of the sentencing proceedings, it became evident that the appellant in fact had been convicted in 2009 of three counts of sexually penetrating a child between the age of 13 and 16 years.[64] There is no evidence to suggest that F was aware of these prior convictions. F made no specific reference to the convictions in her testimony.
Submissions
[64] ts 891.
The appellant submitted that, notwithstanding the position adopted by defence counsel that his Honour should not give a direction concerning the impugned comment because any direction may only serve to emphasise it, the trial judge was obliged to give a direction in order to secure for the accused a fair trial according to law. The appellant submitted, in effect, in the absence of a direction from the trial judge to ignore the evidence, there was a risk that the jury would have understood the comment to mean that the appellant had been previously convicted of a sexual offence and, as a result, reason that he was therefore more likely to have committed the offences charged.
The respondent submitted that there was no perceptible risk that the impugned comment would have been understood by the jury to mean that the appellant had previously been convicted of a sexual offence. The respondent submitted that the jury would have understood the impugned comment to be an expression of opinion based upon what the appellant had done to her during the incident about which she was testifying.
Disposition
The statutory basis for this ground of appeal is s 30(3)(c) of the Criminal Appeals Act which provides that this court must allow an appeal against conviction if, in its opinion, there has been a miscarriage of justice. Section 30(3) is subject to the proviso in s 30(4) of the Criminal Appeals Act which provides that even if a ground of appeal might be decided in favour of the appellant, this court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred. The respondent did not submit that if the appellant made out the allegation of a miscarriage of justice, this court should apply the proviso.
As explained by the High Court in Weiss v The Queen,[65] 'any departure from trial according to law, regardless of the nature and importance of that departure' constitutes a miscarriage of justice. If F's reference to the appellant being a sex offender could reasonably have been understood as meaning that the appellant had previously been convicted of sex offences, it may be concluded that the appellant had suffered a miscarriage of justice because a jury may reason that he was a person of prior bad character and that prior convictions for sex offences would make it more likely that the appellant committed the offences in the indictment.
[65] Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [18].
In Hall v Braybrook,[66] Dixon CJ said that the general rule that a tribunal of fact responsible for determining the guilt or innocence of an accused should not be informed of his or her criminal record, bad character or antecedents before the tribunal pronounces a finding of guilt has become a principle which pervades the law governing the conduct of criminal proceedings. His Honour added that all concerned in the criminal law are highly sensitive to any infringement of this principle because of 'the prejudice to the issue of guilt which is thought inevitably to ensue'.[67] See Rankins v The State of Western Australia[68] and Kitto v The State of Western Australia.[69]
[66] Hall v Braybrook [1956] HCA 30; (1956) 95 CLR 620, 627 ‑ 628.
[67] Hall 628.
[68] Rankins v The State of Western Australia [2018] WASCA 138 [29].
[69] Kitto v The State of Western Australia [2018] WASCA 161.
Whether there was a miscarriage of justice requires this court to objectively assess all of the relevant circumstances. This court must be satisfied that a miscarriage of justice actually occurred in the trial.[70]
[70] Rankins [134].
There is a very real issue in this case as to whether the impugned comment could reasonably be understood as meaning that the appellant had previously been convicted of sex offences or whether, by the impugned comment, F was saying no more than she believed that the appellant had committed sexual offences against her. If there was no perceptible risk that the jury would have taken the impugned comment to mean that the appellant had previously been convicted of sexual offences, no miscarriage of justice occurred.
In our opinion, when considered in its proper context, the impugned comment did not give rise to a miscarriage of justice. This is because there is no perceptible risk that as a result of the impugned comment the jury would have taken the comment to mean that the appellant had previously been convicted of sexual offences. We have arrived at this conclusion having regard to the following factors:
(1)F was not a police officer or a person that the jury might expect would have access to the appellant's criminal history.
(2)F gave no evidence suggesting any prior knowledge of the appellant's criminal history.
(3)At the time she made the impugned comment, the jury would not know or assume that F had sufficient knowledge of the appellant to be aware of his criminal history.
(4)No evidence was adduced which indicated that the appellant had prior convictions.
(5)The context was that counsel for the appellant was putting to F that the appellant had not sexually assaulted her. The response, evidently with indignation, was to the effect that 'he [is] a sex offender'. F's evidence continued that she 'didn't realise he was' - prima facie, a reference to the time she met up with him on 24 August 2013. The phrase 'I now I know why he is' is grammatically obscure, but the jury would not be expected to carefully parse the language in the course of the flow of the evidence as it was being given. The effect of the evidence, in the context in which it was given, is that (1) the appellant did sexually assault her and is thereby a sexual offender - contrary to the proposition put by counsel for the appellant, (2) she did not realise that at the time that she met up with him on 24 August 2013, and (3) she has discovered from the events of 24/25 August 2013 that he is.
The conclusion that the impugned comment did not give rise to a perceptible risk that the jury would have considered that the appellant had previously been convicted of sexual offences is reinforced by the fact that defence counsel made no application to discharge the jury, described it as 'a throwaway line' and, when pressed by the trial judge, submitted that no direction should be given. The impugned comment was only made once, one week before the jury retired to deliberate, and was not the subject of any comment by either counsel in their closing addresses.
It also appears that the trial judge was of the view that the impugned comment was an expression of F's belief that she had been offended against sexually.[71] The trial judge, with the apparent consent of defence counsel, approached the matter on the basis that the appellant's interests would be protected and a fair trial would be ensured if nothing was said about the matter in his Honour's summing up.
[71] ts 653.
In our opinion, this was a prudent approach to take in all of the circumstances. As the majority said in Crofts v The Queen,[72] much leeway must be allowed to the trial judge to evaluate considerations relevant to the fairness of the trial.
[72] Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427, 440 - 441; see also R v Bricola [2017] QCA 51 [61].
As there was no perceptible risk that the impugned comment might be misused by the jury, he has suffered no miscarriage of justice.
While we would grant leave to appeal, ground 2 has not been made out.
Ground 3
Ground 3 reads as follows:
The verdict of guilty on which the conviction is based should be set aside because his Honour made several errors at law in his discretion on the way in which the trial was conducted and on the evidence.
The ground does not specify the alleged errors of law made by the trial judge. As explained in the appellant's written submissions,[73] this ground focuses on four areas of 'prejudicial' evidence which he alleges were irrelevant or which, if relevant, should have been excluded by the trial judge on the basis that its prejudice was disproportionate to its evidentiary value.
[73] Appellant's case, WAB 24 - 28.
The four areas of evidence as expressed by the appellant[74] are:
•The allegations relating to the appellant purportedly wearing women's clothing at various times during the assaults.
•The alleged foul language and noises the appellant purportedly made during the assaults.
•The degrading evidence about the appellant's appearance, hygiene and socio‑economic status.
•The description of his driving as being aggressive and at high speeds. In any event, this claim is particularly dubious as they were in a small old Holden Barina which was laden with property and clothing which is not capable of going fast through traffic, clothes worn by the parties were stored in the car at the time of the event.
(The impugned evidence.)
[74] Appellant's case, par 32; WAB 24.
The appellant submitted that the impugned evidence was not relevant to the matters being tried, but if it was relevant it had little probative value and was likely to lead to the jury being, as he put it, appalled and disgusted by his conduct and engender in the jury bias against him.
Evidence is relevant if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings: Goldsmith v Sandilands.[75]
[75] Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024 [2].
If evidence is irrelevant, it is inadmissible. Only if the evidence is relevant do questions about its admissibility arise: Smith v The Queen.[76]
[76] Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650 [6].
A trial judge has a discretion to exclude otherwise relevant and admissible evidence on the ground that its prejudicial effect exceeds its probative value. The nature and scope of this discretion has been explained in many cases. For example in Festa v The Queen,[77] McHugh J said:
But the weakness of relevant evidence is not a ground for its exclusion. It is only when the probative value of evidence is outweighed by its prejudicial effect that the Crown can be deprived of the use of relevant but weak evidence. And evidence is not prejudicial merely because it strengthens the prosecution case. It is prejudicial only when the jury are likely to give the evidence more weight than it deserves or when the nature or content of the evidence may inflame the jury or divert the jurors from their task.
[77] Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593 [51].
No objection was made to the impugned evidence at trial. Accordingly, it cannot be said that his Honour made a wrong decision on a question of law by failing to exclude it. Ground 3 can only succeed if the appellant demonstrates that he has suffered a miscarriage of justice by reason of the admission of the impugned evidence.
It is difficult to establish a miscarriage of justice when evidence is admitted without objection. This is because, generally, an accused is bound by the way defence counsel conducts their trial. When it is alleged that evidence admitted without objection produced a miscarriage of justice, at least two matters must be considered. First, was the evidence admissible? Second, if it was inadmissible, was the failure to object for a rational, forensic purpose? In any event, the appellant must establish that there is a significant possibility that the admission of the inadmissible evidence affected the outcome of the trial.
In our opinion, all of the impugned evidence was relevant and admissible.
Evidence of the appellant wearing women's clothing was relevant because it showed a common feature of the appellant's offending in respect of both S and F and therefore tended to support the allegations made by them. It was also relevant to the defence case relating to F, as the wearing of her underpants was offered as an explanation for the presence of F's DNA on the head of his penis.
The descriptions of the language used and noises made by the appellant were relevant to show the intimidating and degrading circumstances in which the offences were allegedly committed and to show the absence of consent. They were another common feature between the offences alleged by both S and F.
It is unclear from the appellant's submissions what it is about his appearance which he says was so prejudicial that it ought to have been excluded. The only reference to the appellant's hygiene in the trial came from F in her description of count 10. F's evidence in this respect tended to prove the fact that she had been made to lick his anus. We can find no evidence which could fairly be said to be degrading that related to the appellant's asserted socio‑economic status.
As for F's description of the appellant driving in an aggressive way, this evidence was relevant to show his demeanour, particularly after he had used methylamphetamine. The aggressive manner of his driving is consistent with the aggressive way F said he treated her during the 24 hours or so in which he committed the alleged offences against her.
There were features of the evidence in this case, particularly as to the nature and circumstances of the offences concerning F, which jurors may have found unsettling or even disturbing. Both counsel in their closing addresses told the jury, in effect, that prejudice and sympathy played no part in their deliberations.[78]
[78] State closing address ts 2; defence closing address ts 40.
His Honour appropriately directed the jury to take a clinical approach to the evidence and not have regard to any sympathy, prejudice or emotional response engendered by the evidence.[79] The jury is assumed to have obeyed this direction.[80] Further, in our opinion, it should not be readily assumed that a contemporary jury will be unable to bring an impartial mind to a case by reason of evidence which is unsettling or disturbing. We do not regard the evidence in the present case as being of such a nature that a jury could not have obeyed his Honour's direction to decide the case on the evidence without sympathy or prejudice.
[79] ts 726.
[80] Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414 [13].
We would refuse leave to appeal on ground 3.
Ground 4
Ground 4 reads:
The verdict of guilty on which the conviction was based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported.
Although the ground of appeal does not specify which convictions are challenged, it appears from the written submissions that the appellant alleges that all of the convictions were unreasonable or cannot be supported on the evidence.
The appellant's submissions in support of this ground allege that the accounts given by S and F are 'illogical, flawed and without factual foundation'.[81] The appellant submitted that the verdicts are unreasonable or cannot be supported on the evidence, stating that:[82]
The dubious character of both complainants, the fact that they know one another, the fact that they had sex many times with the appellant on previous occasions and the fact that they both made several statements to police to improve the case against the appellant leaves flaws in the State's case that are now exposed.
[81] Appellant's case, par 38; WAB 29.
[82] Appellant's case, par 39; WAB 29.
In respect of S, the appellant points to evidence that she gave in cross‑examination to the effect that when the appellant bit her on the back he did so playfully.[83] In respect of F, he claims that F voluntarily left the Maylands premises with the appellant in his car during the period she was allegedly unlawfully detained and that she could easily have escaped from the appellant when he withdrew cash from an ATM, but did not do so.
[83] ts 172.
The appellant also points to the evidence given by Dr Kelly to the effect that there were no physical signs that F had been sexually assaulted, as she alleged. Further, Dr Kelly noted that some of the bruising on F had turned yellow which,[84] the appellant claims, indicated that the bruises were old and could not have been inflicted during her encounter with the appellant on or about 25 August 2013.
Summary of evidence
[84] ts 591 - 592.
In order to properly decide this ground it is necessary to set out in some detail the evidence adduced at trial.
Evidence of S
S was the complainant in the offences alleged in counts 1 ‑ 4 in the indictment. S had been declared a special witness, pursuant to s 106R of the Evidence Act, and gave her evidence from a remote room via CCTV.[85]
[85] ts 120.
S testified that in around July 2013 she and the appellant had been in a boyfriend/girlfriend relationship for about three weeks.[86] They were living together in the main bedroom of a home unit situated on Stock Road in Attadale.[87] S and the appellant were sharing the house with its owner, Ms Tolcon.[88] S testified that, in the early hours of 6 July 2013, she and the appellant had been 'taking some drugs and having sex'.[89] While they were together in the ensuite bathroom to the main bedroom, the appellant was watching pornography on his mobile telephone. He asked S to watch it, but S refused to do so. S said that the appellant 'got angry'.[90]
[86] ts 123.
[87] ts 123, 124.
[88] ts 126.
[89] ts 126.
[90] ts 127.
S described the appellant as wearing three‑quarter stockings, lacy lingerie and a black G‑string.[91] Although he was clothed, each of them got into the bathtub. S said that the appellant pulled his G‑string aside and told her that he wanted oral sex. S said that she laughed a little bit because 'he couldn't get it up'. S testified that the appellant yelled at her, then placed her hand on his penis and made her perform an act of fellatio upon him. As he did so, S said that the appellant made 'a lizard sound'.[92] She said, in effect, that she did not consent to the act of fellatio, adding that she felt 'degraded' by it.[93] This is the act which constituted count 1 on the indictment for which the appellant was acquitted.
[91] ts 128.
[92] ts 130.
[93] ts 130.
S said that the appellant was not happy with the way she was performing the act of fellatio and became angry. She said that he kicked her in the chest and strangled her. She also alleged that the appellant urinated into her mouth.[94] This act was the subject of count 2 for which the appellant was acquitted.
[94] ts 131.
S also said that the appellant forced her into a headlock and kicked her a few times.[95]
[95] ts 132.
A short time later, S said that she and the appellant left the bathroom and entered the main bedroom. S said that somehow they ended up on the bed. S said that the appellant bit several places on her body including her back, upper thigh and vagina.[96] The bodily harm the subject of count 3 was, on the State's case, inflicted by the bites to the back and leg.[97] S gave no specific evidence concerning any injury she received as a result of these bites, but the State relied upon photographs taken of the injuries on 14 July 2013.
[96] ts 133.
[97] ts 177, State closing address ts 28.
S described another incident involving the appellant which occurred on 10 July 2013 which was the subject of count 4. It is unnecessary to set out the facts and circumstances of this offence, given that the appellant was acquitted, other than to say that S alleged that the appellant, in a fit of anger, punched her in the face, splitting her lip.[98] She fell to the floor and, while there, the appellant kicked her. S said she sustained cuts to her forehead, but she was unable to remember how she got them.[99] S did not seek medical treatment after the incidents on 6 and 10 July 2013. S's allegations were reported to the police.
[98] State closing address ts 28.
[99] ts 135.
On 14 July 2013, photographs of S's injuries were taken by Detective Davis.[100] These were tendered at trial.[101]
[100] ts 205.
[101] Exhibit 3.1 - 3.7; ts 210.
In cross‑examination, S agreed that when she met the appellant she was homeless. She became aware that the appellant had recently been hospitalised for injuries he sustained in a fall from a balcony. She agreed that the appellant was having a few problems as a result of his injuries.[102]
[102] ts 163.
In cross‑examination, S admitted that, on 6 July 2013, she had used 'a half weight' of methylamphetamine which she agreed was quite a lot of the drug.[103] She said that, as a result, she experienced a sensation like blurred vision and that she felt 'spiritual in a way, like a sexual spiritual'.[104] S agreed that her memory of the events on 6 July 2013 was very patchy.[105] She also agreed that, when she took methylamphetamine, she became paranoid.[106]
[103] ts 167.
[104] ts 168.
[105] ts 172.
[106] ts 174.
Defence counsel sought and was given leave to cross‑examine S as to whether she was a sex worker.[107] When asked in cross‑examination, S denied that she was a sex worker.[108]
[107] ts 159 - 160.
[108] ts 180.
In respect of the events of 6 July 2013, defence counsel put to S, and she denied, that the sexual acts that occurred that day were consensual. She denied the proposition that the appellant had not urinated into her mouth. Defence counsel put to S that the events which occurred that day were playful. As to the appellant biting S on the back, S said that he was 'basically' being playful with her.[109]
[109] ts 181.
As to the alleged assault on 10 July 2013, the effect of the cross‑examination was that the appellant and S got into an argument, during which they wrestled to the floor and that any injuries S sustained occurred accidentally rather than as a result of deliberate punches or kicks by the appellant.
Evidence of Deanna Kelly Tolcon
Ms Tolcon testified that, in 2013, she shared her house, a home unit in Attadale, with S and the appellant.[110]
[110] ts 197.
Dr Kelly's conclusion as to F's general physical examination was as follows:[223]
On my conclusion on general physical examination [there] were multiple large and small bruises, some of which are soft tissue swelling. Multiple abrasions to virtually every aspect of her body and that was a significant finding. These findings indicate that blunt force [had] been applied to these areas of her body by different mechanisms. And as I said, it's highly suggestive of an assaultive or inflicted cause. The finding of multiple bruises and abrasions to both breasts, both inner arms and both inner thighs is uncommon, as they are uncommon [sites] for accidental injury. The finding of multiple 1 centimetre diameter bruises on the left breast, left inner upper arm, back, flank and inner thighs is suggestive of resulting from the pressure by fingertips. The findings of multiple bruises and abrasions on the central neck and on both sides of the neck is highly suggestive of attempted manual strangulation. When you consider all these together it is highly suggestive of being caused by a violent physical assault.
Evidence of Dr Hazel Francis Erica Batten
[223] ts 578.
Dr Batten is a duly qualified medical practitioner. At about 4.00 pm on 26 August 2013, F presented at the emergency department at the Joondalup Health Campus.[224] At 6.45 pm, Dr Batten examined F.[225]
[224] ts 597.
[225] ts 598.
Dr Batten said that F presented with right rib pain. She said that it was 'quite obvious' that F was extensively bruised 'everywhere else'.[226]
[226] ts 598.
Dr Batten said that 'quite a few x‑rays' were taken of F, which revealed that she had not suffered any fractures.[227]
[227] ts 600.
Dr Batten said that the physical injuries suffered by F were consistent with the history F had given, to the effect that she had been kicked and punched repeatedly over the two days prior to being admitted into the emergency department.[228]
Evidence of Senior Constable Donald Arthur Kendall
[228] ts 601.
Senior Constable Kendall is an experienced crime scene examiner.[229]
[229] ts 611.
On the morning of 26 August 2013, he conducted a forensic examination of the appellant's vehicle. He located a small black torch within the centre console, a purple wig above the centre wheel hump just behind the shift column and a piece of black lingerie, which he described as 'a lace black teddy‑type garment', on the back seat of the car.[230] Constable Kendall found a second torch on the rear passenger floor behind the front passenger seat.[231]
Evidence of Detective Senior Constable Lisa Monique Benington
[230] ts 612.
[231] ts 613.
On 26 August 2013, Detective Senior Constable Benington was attached to the sex assault squad.
That day, Detective Benington took F, first, to SARC and then to the Joondalup Health Campus.[232]
[232] ts 620.
Detective Benington downloaded text messages exchanged between the appellant and F between 22 and 24 August 2013. A summary of the messages was tendered in evidence. In the course of the text messages, the appellant and F made arrangements to meet at the Clarkson station on 24 August 2013.[233]
[233] Exhibit 9; ts 622 - 624.
The State tendered, through Detective Benington, a collection of photographs taken at the Maylands premises.[234] A number of the photographs depicted a purple lacy singlet found at the rear of the Maylands premises[235] and a bottle of talcum powder found inside those premises.[236]
[234] Exhibits 4.13, 4.18, 4.24, 4.26 - 4.33, 4.35; ts 622 - 632.
[235] ts 629.
[236] ts 629 - 632.
Detective Benington testified that after she took over the investigation involving F, she had cause to consider the investigation into offences involving S. She said that police records showed that on 8 July 2013, S complained to police that she had been physically and sexually assaulted by the appellant.[237]
[237] ts 633.
In cross‑examination, Detective Benington said that the two torches found in the appellant's car were not forensically examined.[238]
[238] ts 640.
In cross-examination, Detective Benington said that at the Maylands premises a letter was found with S's name on it. She then looked into the police system and found S's complaint. As a result, S's police statement was reviewed and investigated. In this process, a further statement was taken from S.[239]
Close of State's case
[239] ts 643 - 644.
Late on the afternoon of 23 March 2015, the State closed its case.[240] At the request of defence counsel, the trial judge agreed to delay asking defence counsel if the appellant intended to adduce evidence in his defence to the following day.[241] In the absence of the jury, defence counsel told his Honour that it was likely that the appellant would elect not to give evidence, but evidence would be adduced from Peter Hughes.[242]
[240] ts 648.
[241] ts 649 - 650.
[242] ts 650 - 651.
At the commencement of proceedings on 24 March 2015, defence counsel announced in open court that the appellant elected not to give evidence.[243] As foreshadowed, defence counsel adduced evidence from Peter Hughes.
Evidence of Peter William Hughes
[243] ts 656.
In examination‑in‑chief, Mr Hughes testified that:
(a)In August of 2013 he knew F as 'a friend'.[244]
(b)Mr Hughes recalled a Sunday evening when F asked him to pick her up from a McDonald's restaurant on Wanneroo Road. When he did so, he saw that she was 'obviously upset'.[245] Mr Hughes eventually took her back to her home.[246]
(c)Subsequently, they became involved in a sexual relationship which lasted for a period of three or four months.[247]
(d)There were 'quite a few problems' in the relationship, including an occasion when F 'tried to blackmail' him.[248] F 'hit' him up for $50 by threatening to tell her friend Paul that Mr Hughes had been trying to chat up his (Paul's) girlfriend.[249] Mr Hughes refused to give in to the demand.[250]
[244] ts 657.
[245] ts 657.
[246] ts 658.
[247] ts 658.
[248] ts 658.
[249] ts 658 - 659.
[250] ts 659.
In cross‑examination, Mr Hughes testified that:
(a)When he had seen F on the day before he picked her up from McDonald's she did not appear to be bruised or in any other way injured.[251]
(b)When Mr Hughes picked her up from McDonald's she was 'distressed'.[252]
(c)F's attempt to blackmail him occurred after F had been allegedly assaulted.[253]
The relevant law
[251] ts 660.
[252] ts 660.
[253] ts 662.
Section 30(3)(a) of the Criminal Appeals Act provides that this court must allow an appeal against conviction 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.
The principles governing a ground of appeal that the verdict is unreasonable or cannot be supported by the evidence are well known. They were recently summarised by this court in Wells v The State of Western Australia,[254] as follows:
[254] Wells v The State of Western Australia [2017] WASCA 27 [13].
(1)the appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence. It is not simply a matter of deciding whether as a matter of law there was evidence to support the verdict. The appeal court must determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand;
(2)the question for the appeal court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty;
(3)that question requires consideration of whether the jury must, as distinct from might, have entertained a reasonable doubt about the accused's guilt;
(4)in answering that question, the appeal court must pay full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the jury had of seeing and hearing the witnesses;
(5)a doubt experienced by an appellate court would be a doubt which a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt;
(6)if the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the appellate court must set aside the verdict;
(7)the setting aside of a jury's verdict on the ground that it is unreasonable within the meaning of s 30(3)(a) of the Criminal Appeals Act 2004 (WA) is a serious step, not to be taken without regard to the advantage enjoyed by the jury over a Court of Appeal which has not seen or heard the witnesses called at trial. (citations omitted)
These principles were primarily derived from M v The Queen.[255]
[255] M v The Queen [1994] HCA 63; (1994) 181 CLR 487.
In some appeals, the fact that this court has not seen or heard the witnesses at trial may be a significant factor in deciding whether a verdict of guilty is unreasonable or cannot be supported. In M v The Queen,[256] Mason CJ, Deane, Dawson & Toohey JJ said:
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. (citations omitted)
[256] M v The Queen (494 - 495).
In the recent case of Pell v The Queen, the High Court formulated the function of this court in determining an appeal on the ground that the verdict was unreasonable or cannot be supported having regard to the evidence, as follows: [257]
The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt. (citations omitted)
[257] Pell v The Queen [2020] HCA 12 [39].
We will turn first to the appellant's conviction on count 3. It will be recalled that, of the four counts that concerned S, count 3 was the only one the subject of a guilty verdict.
It is obvious from the jury's verdicts, with respect to the offences against S, that the jury was not satisfied beyond reasonable doubt of the appellant's guilt on counts 1, 2 and 4. It is to be assumed that the jury regarded the evidence of the complainant as being insufficiently credible or reliable on those counts to satisfy it beyond reasonable doubt of guilt. However, it must be assumed that, in respect of count 3, the jury accepted S's evidence to be credible and reliable. In particular, it may be assumed that the jury accepted the evidence of S that the appellant bit her back and leg and that the jury was satisfied beyond reasonable doubt that, by biting S, the appellant had unlawfully assaulted S in circumstances of aggravation.
S gave no evidence that she suffered any bodily injury as a result of the bites inflicted by the appellant. She did not seek medical attention in respect of them. On 14 July 2013, eight days after the assault alleged in count 3 and four days after the alleged assault on 10 July 2013 the subject of count 4, photographs were taken of S showing certain injuries. These photographs were tendered in evidence as exhibit 3 during the testimony of Detective Davis. They had not previously been identified by S.
Exhibits 3.4 and 3.5 show S's left outer thigh, while exhibits 3.6 and 3.7 show the right side of her lower back. The photographs are of poor quality. No obvious bite marks can be seen. There appears to be some faded bruising in those areas. In exhibits 3.6 and 3.7 there are no obvious bite marks, but there are appears to be some faint redness or bruising.
The doing of bodily harm is an element of an offence contrary to s 317 of the Code. The term 'bodily harm' is defined in s 1 of the Code to mean 'any bodily injury which interferes with health or comfort'. A bruise may constitute bodily harm.
In our opinion, notwithstanding that, at the relevant time on 6 July 2013 S was under the influence of methylamphetamine which, she accepted, resulted in her memory being 'patchy', it was well open to the jury to accept that the appellant subjected her to numerous assaults, including kicking, and a headlock and bites to her leg and back. It was also open to the jury to conclude that the appellant and S were in, or had been in, a family and domestic relationship. The evidence, which the appellant did not contest, was that he and S had been in a short relationship as girlfriend and boyfriend and that he had been staying with S at the unit in Attadale. However, in our view, it was not open to the jury to find that S had suffered bodily harm as a result of being bitten by the appellant.
In the absence of any evidence from S that as a result of being bitten she suffered an injury which amounted to bodily harm, the State case relied upon the photographic evidence tendered through Detective Davis, being exhibits 3.4, 3.5, 3.6 and 3.7. While it was open to the jury to find that S was bruised on 14 July 2013, it must be remembered that, according to S, on 10 July 2013 she had been assaulted by the appellant, including being kicked by the appellant. Further, she and the appellant wrestled on the floor of the kitchen area in the unit at Attadale. The injuries depicted in the photographs could reasonably have occurred in this incident.
There was no evidence either from S or from any other source which was capable of establishing that the injuries shown in the photographs were attributable to the assault upon S which occurred on 6 July 2013 and not 10 July 2013. In these circumstances, we do not think it was open to the jury to be satisfied beyond reasonable doubt that the injuries shown in the photographs were inflicted by the appellant during his assault upon her on 6 July 2013. In our opinion, the verdict of guilty on count 3 for an offence of aggravated assault occasioning bodily harm is unreasonable or cannot be supported on the evidence adduced at the appellant's trial. We would allow the appellant's appeal in respect of the conviction on count 3.
As stated earlier in these reasons, s 317 of the Code provides that an alternative offence on a charge of assault occasioning bodily harm is common assault, contrary to s 313 of the Code.
Section 313(1) of the Code provides that any person who unlawfully assaults another is guilty of a simple offence and is liable, if the offence is committed in circumstances of aggravation, to imprisonment for 3 years and a fine of $36,000.
Section 30(5) of the Criminal Appeals Act sets out the powers of this court in the event that an appeal against conviction is allowed. It relevantly states:
(5)If the Court of Appeal allows the appeal, it must set aside the conviction of the offence (offence A) and must -
(a)order a trial or a new trial; or
(b)enter a judgment of acquittal of offence A; or
(c)if -
(i)the offender could have been found guilty of some other offence (offence B) instead of offence A; and
(ii)the court is satisfied that the jury must have been satisfied or, in a trial by a judge alone, that the judge must have been satisfied of facts that prove the offender was guilty of offence B,
enter a judgment of conviction for offence B and impose a sentence for offence B that is no more severe than the sentence that was imposed for offence A[.]
In our opinion, s 30(5)(c) of the Criminal Appeals Act should be applied. We would set aside the conviction in respect of count 3 and enter a conviction for an offence of common assault committed in a circumstance of aggravation, namely that the appellant was in a family and domestic relationship with the victim, contrary to s 313 of the Code. We have arrived at this conclusion because an offence contrary to s 313 of the Code is the statutory alternative to an offence contrary to s 317 of the Code and we are satisfied that the jury must have been satisfied of all the facts that prove that the appellant was guilty of an offence of common assault committed in a circumstance of aggravation. Specifically, we are satisfied that the jury must have been satisfied that the appellant assaulted S and that, at the time of the assault, the appellant was in a family and domestic relationship with her.
It will be necessary to impose a sentence for the offence of common assault committed in a circumstance of aggravation, which we will deal with later in these reasons.
We now turn to a consideration of whether the verdicts of guilty in respect of counts 5 to 12 were unreasonable or cannot be supported on the evidence.
As F herself accepted in her evidence, she had been a sex worker and was a user of methylamphetamine. She admitted using that drug on 25 August 2013. She and the appellant had previously been in a consensual sexual relationship and, in the context of that relationship, had consumed drugs and engaged in sexual activity. She agreed that in 2000 or 2001 she had been convicted of attempting to pervert the course of justice. She also agreed that, sometime in afternoon of 25 August 2013, she left the Maylands premises with the appellant and allowed him to use her ATM card to withdraw money and purchase more drugs.
However, contrary to the appellant's submissions, we do not accept that these matters, whether individually or in combination, must have led the jury to have had a reasonable doubt as to F's honesty and reliability in material respects.
Unlike this court, which must determine ground 4 upon a review of the transcript and exhibits, the jury had the very significant advantage of seeing and hearing F give evidence, including under cross‑examination. It was open to the jury to be impressed by F's candour about her history as a sex worker, her drug use and prior conviction. As to her drug use on 25 August 2013, she testified that it was not such as to adversely affect her ability to recall the circumstances in which an offence was committed. Her conviction for attempting to pervert the course of justice occurred some 14 or 15 years before she testified at the appellant's trial and involved falsely telling the police that she possessed drugs which, in fact, belonged to someone else. It was open to the jury to conclude that the circumstances of her prior conviction were not so serious as to render her a witness whose evidence was inherently incredible or incapable of acceptance.
There was evidence which tended to support F's evidence. The testimony of Dr Kelly and Dr Batten, to the effect that, when F presented to each of them, she was extensively bruised over all parts of her body, was consistent with F's evidence that she had been frequently assaulted by the appellant. It was evidence that was inconsistent with the appellant's case which was that all that occurred was kissing and cuddling and that nothing untoward happened. Dr Kelly's evidence concerning how bruises change in appearance in the period after they are inflicted is not inconsistent with and did not negate F's evidence. Approximately 34 hours passed between the time (on F's evidence) when F first met the appellant on the night of 24 August 2013 and the time when F saw Dr Kelly on 26 August 2013. In this regard, it is significant that on the day prior to him picking up F from the McDonald's restaurant, Mr Hughes saw F and did not observe any bruises or injuries on her.
It is also significant that, consistently with F's evidence that she was in fear of the appellant, Mr Abugeras observed F run away from the Maylands premises, only to have the appellant run after her and pull her back towards his car. Mr Abugeras also observed that F was confused and scared. F's attempt to escape from the appellant is consistent with her testimony that she was in fear of him and inconsistent with the appellant's case that F was not in fear of him.
The recent complaint evidence of Ms Ladbrook and her observations as to F's injuries and demeanour at the McDonald's restaurant were consistent with F's testimony that she had been sexually assaulted, without her consent, by the appellant. Ms Ladbrook's testimony spoke eloquently of F's fear of the appellant and of the appellant's highly aggressive attitude towards F.
The evidence of Ms Cooper that she found a mixed DNA profile consistent with having coming from the appellant and F on a penile head swab taken from the appellant provided some confirmation that the appellant had engaged in an act or acts in which his penis had come into contact with F. It was open to the jury to infer that such contact occurred during an act of sexual penetration of F by the appellant's penis. At the very least, the presence of F's DNA on the penile head swab is inconsistent with the appellant's case that he did not engage in any sexual activity with F. The evidence of Ms Cooper given under cross-examination and summarised at [208] was capable of providing some support to F's evidence that, at some point, the appellant put on F's underpants.
Another aspect of the evidence which provided some support to F's testimony was the discovery of the dildo in the carpark of the Maylands premises.
F's testimony that the appellant demanded that she insert a small torch into his anus finds some support from the discovery of two small torches by police and in the appellant's vehicle.
The appellant claims, in effect, that it was not open to the jury to be satisfied that F was held against her will, having regard to her testimony that she was left unattended in his car while the appellant withdrew cash from an ATM. In our opinion, given F's evidence as to the appellant's forceful and threatening conduct in the hours prior to the trip to the ATM, it was open to the jury to accept F's evidence to the effect that she felt that, if she had run from the car, he would have pursued and then recaptured her.
The appellant points to Dr Kelly's evidence to the effect that she saw no injuries to the appellant's anogenital area and thus was unable to positively confirm that F had been sexually penetrated in her vagina and anus. It will be recalled that Dr Kelly testified that it is not uncommon for a person who is a victim of an act of sexual penetration of the vagina or anus to have no physical signs of penetration. The absence of physical injury was a neutral fact and does not cast doubt on F's testimony or indicate that F could not have been sexually assaulted as she alleged.
A feature of F's evidence which the jury may well have found compelling is that she displayed no general animosity towards the appellant and, notwithstanding what he had allegedly done to her, she believed that 'he really cared' about her and she expressed real surprise at his behaviour. Further, there was no evidence of any collusion with S or with anyone else.
We have not overlooked the appellant's submission that F could not be believed, having regard to her alleged threat to blackmail Mr Hughes. In this regard, the jury had the distinct advantage of seeing and hearing Mr Hughes' evidence. It was open to the jury to reject it, having regard to F's denial that she had threatened to blackmail Mr Hughes.
Finally, although the appellant's written submissions do not deal with this point, we have considered whether the evidence was capable of satisfying the jury beyond reasonable doubt of the aggravating circumstance that the appellant was in a family and domestic relationship with F. F testified that she met the appellant a long time ago and had reconnected in 2012. At that time, their friendship, she said, grew into a relationship that lasted 'a few months'. This evidence was unchallenged by the appellant. In our opinion, it was open to the jury to be satisfied that the pleaded circumstance of aggravation in respect of counts 5, 6, 7, 8, 10, 11 and 12 was established on the evidence. Moreover, the appellant pleaded guilty to count 13 in the presence of the jury, including as to the circumstance of aggravation that he had been in a family and domestic relationship with F.
For all of the reasons above, our examination of the trial record does not require the conclusion that the jury must necessarily have entertained a reasonable doubt about the appellant's guilt on each of counts 5 to 12. It was open to the jury, acting reasonably, to be satisfied that F was an honest and reliable witness as to the circumstances of each of the counts which related to her. None of the verdicts of guilty were unreasonable. After paying full regard to the consideration that the jury was the tribunal of fact entrusted with the primary responsibility of determining guilt or innocence, and after paying full regard to the consideration that the jury had the very significant advantage of having seen and heard the witnesses, we do not have a reasonable doubt as to the appellant's guilt on the charged offences in respect of F. It would not be dangerous, in the circumstances, to permit the verdicts of guilty to stand.
Insofar as the verdicts of guilty on counts 5 to 12 are concerned, ground 4 fails.
Resentencing on count 3
As the appellant was sentenced in respect of count 3 more than 5 years ago, before proceeding to resentence the appellant, he and the respondent were given the opportunity to provide this court with submissions as to the appropriate sentence on count 3, on the basis that the conviction for aggravated assault occasioning bodily harm was set aside and substituted with a conviction for common assault committed in circumstances of aggravation. The appellant was twice given an opportunity to provide the court with written submissions. The second opportunity was given after the appellant sought an extension of time to file submissions. Ultimately, no submissions were filed by the appellant. The respondent submitted that a fine was appropriate.
The maximum penalty for an offence contrary to s 313 of the Code that is committed in a circumstance of aggravation is 3 years' imprisonment and a fine of $36,000.
The appellant's background was set out in the sentencing remarks. His Honour had the benefit of psychiatric reports from Dr Adam Brett, Dr Victoria Pascu and an older report from Dr Mark Hall, written on 7 December 2008.[258] These reports provided no mitigation to the appellant. The appellant has a lengthy record of prior convictions which was referred to in his Honour's sentencing remarks.[259] We note that his Honour imposed a sentence of 12 months' imprisonment for count 3[260] and ordered that that term be served cumulatively with the term of 7 years he imposed on count 7 and the term of 2 years that he imposed on count 9.[261] While the respondent's submissions as to the appropriate sentence are a relevant consideration, we are of the view that, having regard to the facts of the offending, the absence of any real mitigation and the need for personal and general deterrence, the only appropriate sentence to be imposed was a term of immediate imprisonment. We would impose a sentence on count 3 of 6 months' imprisonment and order that it be served cumulatively upon the sentences imposed on counts 7 and 9 to reflect the fact that the offence was committed separately upon the other offences. Thus, the total effective sentence the appellant has to serve is reduced by 6 months to 9 years 6 months' imprisonment.
[258] ts 886 - 887.
[259] ts 888 - 891.
[260] ts 893.
[261] ts 894 - 895.
Application for extension of time
As the appellant's appeal has been successful, albeit to a limited extent, we would grant an extension of time, notwithstanding the very long delay in instituting this appeal.
Orders
The orders we would make are:
(1)The appellant's application for an extension of time to appeal is granted.
(2)Leave to appeal is refused on ground 3.
(3)Leave to appeal is granted on grounds 1, 2 and 4.
(4)The appellant's appeal against conviction on count 3 is allowed, the conviction is set aside and, pursuant to s 30(5)(c) of the Criminal Appeals Act, a judgment of conviction for an offence of common assault committed in a circumstance of aggravation (namely that the appellant was in family and domestic relationship with S) contrary to s 313 of the Code is entered.
(5)The appellant's appeal against conviction in respect of counts 5 to 12 is dismissed.
(6)The appellant is sentenced to 6 months' imprisonment in respect of the offence contrary to s 313 of the Code. This sentence is to be served cumulatively upon the sentences imposed by Eaton DCJ on counts 7 and 9. All of the other sentences and other orders for concurrency and cumulacy stand. Thus, the total effective sentence the appellant must now serve is 9 years 6 months' imprisonment. The orders made by Eaton DCJ as to parole eligibility and backdating remain.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LT
Associate to the Honourable Justice Mazza16 SEPTEMBER 2020
- AGLC
- De-Abreu v The State of Western Australia [2020] WASCA 145
- Case
- [2020] WASCA 145
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the offender had established a proper basis for the court to exercise its discretion to grant an adjournment, whether the State had failed to comply with its duty of disclosure, and whether there had been errors in the trial judge's directions to the jury, including the failure to identify that the complainants knew each other and the failure to direct the jury in respect of a comment made by a complainant in evidence. The court also considered whether the evidence was relevant and admissible, and whether the guilty verdicts were unreasonable or unsupported by the evidence.
In determining the appeal, the court held that the appellant had not established a proper basis for the court to exercise its discretion to grant an adjournment. The court found that the State had complied with its duty of disclosure and that there had been no errors in the trial judge's directions to the jury. The court held that the evidence was relevant and admissible and that the guilty verdicts were not unreasonable or unsupported by the evidence. The appeal was therefore dismissed.
The court made no orders for costs.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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