De Rosa v Western Australia - [2006] WASCA 57

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: DE ROSA -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 57

CORAM: ROBERTS-SMITH JA
MCLURE JA
BUSS JA

HEARD: 14 MARCH 2006

DELIVERED : 5 APRIL 2006

FILE NO/S: CACR 72 of 2005
CACR 99 of 2005

BETWEEN: CLAUDE OLIVIER DE ROSA
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :WILLIAMS DCJ
File No  :IND 152 of 2004

Catchwords:

Appeal - Conviction - Criminal law and procedure - Sexual penetration of child under 16 - Accused giving evidence - Direction on evaluation of a witness' testimony - Jury should consider witness' interest in outcome of case - Whether error

Appeal - Sentence - Obligation of Judge to state the fact that reduction made for mitigating factors - Section 8(4) Sentencing Act 1995 (WA) - Whether any allowance made for mitigation at all

Legislation:

Criminal Code (WA), s 321(2), s 321(4)
Sentencing Act 1995 (WA), s 8(4)

Sentencing Legislation Amendment and Repeal Act 2003 (WA)

Result:

Appeal against conviction allowed
Conviction quashed
Retrial ordered

Category: A

Representation:

Counsel:

Appellant: Ms G A Archer
Respondent: Mr K P Bates

Solicitors:

Appellant: Max Crispe
Respondent: State Director of Public Prosecutions

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

Bishop v The Queen [2003] WASCA 79
Dempsey v The Queen, unreported; CCA SCt of WA; Library No 960059; 9 February 1996
Etherton v The State of Western Australia (2005) 30 WAR 65
R v Chilvers [2003] WASCA 87
R v Haggag (1998) 101 A Crim R 593
R v Leggett [2000] WASCA 327
R v Major [2001] WASCA 46
R v Podirsky (1989) 43 A Crim R 404
R v Smith [2004] WASCA 44
R v Taylor (1977) 64 Crim App Rep 182
Ramey v The Queen (1994) 68 ALJR 917
Robinson v The Queen (1991) 180 CLR 531
Rowbottom v The Queen (2003) 13 NTLR 197
Stafford v The Queen (1993) 67 ALJR 510
Trescuri v The Queen [1999] WASCA 172
"VIM" v The State of Western Australia [2005] WASCA 233
Whalley v The State of Western Australia [2005] WASCA 213

Case(s) also cited:

AB v The Queen (1999) 198 CLR 111
Chamberlain v The Queen (No 1) (1983) 153 CLR 514
Elkington v The Queen [2002] WASCA 34
Houghton v The Queen [2002] WASCA 363
R v Allen [1994] 1 Qd R 526
R v GP (1997) 18 WAR 196
R v Petchell, unreported; CCA SCt of WA; Library No 939346; 16 June 1993
R v Whittaker (1993) 68 A Crim R 476
Stalker v The Queen [2002] WASCA 364
Wilde v The Queen (1988) 164 CLR 365
Wong v The Queen (2001) 207 CLR 584

ROBERTS-SMITH JA: These are appeals against conviction and sentence.
Between 20 ‑ 22 April 2005, the appellant was tried before Williams DCJ and a jury in the District Court at Perth on an indictment charging 2 counts. The first was that on or about 26 December 1997, he sexually penetrated the complainant ("JD"), a child between the ages of 13 to 16 years, by penetrating her vagina with his penis, contrary to s 321(2) of the Criminal Code (WA). The second count was that on 26 December 1997, he indecently dealt with JD, a child between the ages of 13 to 16 years, by touching her bottom, contrary to s 321(4) of the Code.
The appellant was convicted on count 1, but the jury returned a verdict of not guilty on count 2. On 26 May 2005 the appellant was sentenced in respect of count 1. The Judge said he was sentencing the appellant to 5 years 8 months' imprisonment. However, in so doing, his Honour made it clear that he was imposing a sentence which, prior to the coming into effect of the Sentencing Legislation Amendment and Repeal Act 2003 (WA) on 31 August 2003, would have been a sentence of 8 years' imprisonment. His Honour then purported to reduce that by the statutory one‑third in compliance with that amendment, in arriving at his sentence of 5 years 8 months. Of course, if 8 years is reduced by one‑third, the result is a term of 5 years 4 months. It is not clear quite by what process it occurred, but the error was corrected and the warrant upon which the appellant was then imprisoned reflected a sentence of 5 years 4 months. Counsel accepted before us that was the sentence in fact imposed upon the appellant and which he was required to serve. No point is now taken about that.
The appellant filed an appeal notice against conviction on 3 May 2005 and against sentence on 2 June 2005. Wheeler JA granted leave to appeal on 28 July 2005.
There is only one ground of appeal against conviction. It is that:
"1.The learned trial judge erred in law in directing the jury that
In weighing the testimony of a witness you should consider that witness's relationship to the complainant or to the accused, that witness's interest, if any, in the outcome of the case…[At page 203 of the transcript]"
There are two grounds of appeal against sentence, they being that:
"Ground 1
2.The learned judge erred in fact in finding that the offence involved a gross breach of trust.
Ground 2
3.The learned judge erred in law in failing to treat the [appellant's] prior good antecedents as a mitigating factor."

The State Case

At the time of trial, JD was 21 years old. Over the Christmas period 1997, she was aged 14. She was living with her father and his girlfriend at their home. At the time, she was a college student, having just finished year 9 and was about to go into year 10.
On Christmas Day there was a family barbeque and a large number of friends and relatives attended. During the course of the day and evening there were probably about 20 people celebrating. One of those who attended was a friend of JD's father's girlfriend. That was the appellant. At the time, he was 26 or 27 years old.
The family and guests socialised during the afternoon and into the evening. There were a number of children present, including A, who was a young cousin of JD, to whom she was quite close. A was 12 years old at the time.
The children swam in the swimming pool, watched television, listened to music and generally enjoyed themselves. The appellant spent quite a lot of time socialising with both A and JD that afternoon and in the early evening. He went for a swim with them in the pool and at one stage asked if they would like to go with him to the shops to get some chocolate. They declined.
That evening A and JD watched television in JD's bedroom, listened to music and eventually went to bed. As it was her bedroom, JD slept in her own bed; A, who did not normally live at that house, slept on a mattress on the floor next to JD's bed.
A few other people slept over that night. One of them was the appellant. He had been drinking all afternoon and he was described as being drunk.
Later in the night, JD and A were woken by the appellant opening the door to their room. The door banged open because JD had a dresser next to the doorway which was slightly larger than the space available and so the door could only be opened half way. Accordingly, when the appellant opened the door it hit the dresser and the noise woke the girls. They both saw him standing in the doorway. JD said he was wearing what she thought was shorts or speedos. It was late at night and dark. A got up and closed the door. A few minutes later it happened again, and again the girls saw the appellant standing there. A got up again and closed the door. The two girls decided to pretend to be asleep if it happened again. It did. JD pretended to be asleep, but on this occasion the appellant came inside the bedroom. It was dark and he stumbled his way across around the bottom of the bed and grabbed JD's legs. She tried to kick him away but he then pulled on her nightie and grabbed her by the wrists. She whispered loudly at him to get out and leave her alone, but he pulled her off the bed and then out the door.
She tried to prevent being dragged out of the room by pulling on the door frame and making herself a dead weight, but she was unable to resist him and she was pulled out of the bedroom. She did not scream because she was worried about waking up her father and, because of an exchange she and her father had earlier, she thought he might be angry with her and think that she was in some way responsible for leading the appellant on.
The appellant pulled her to the dining area by her wrists. She was continually telling him to let her go, trying to make herself heavy and not co‑operating with him. Nonetheless, he pulled her into the lounge where she saw there was some bedding which was apparently where he was to spend the night. He pushed her on her back, sat on top of her and used his knees to pin her arms to the floor. She said that he smelt heavily of alcohol and she thought he was drunk. She told him to get off her. He told her to be quiet and that she could trust him. He sat on her stomach, still trapping her wrists with one hand and using his other to remove her underwear. He managed to push his body weight between her legs to separate them and he put his erect penis inside her vagina. She said that was not long, maybe in and out three times. She described it as very painful, just like a stabbing pain. She said it was the first time she had had sexual intercourse. He asked her to promise him that if he "gave her head" she would not run away. She kept saying no, as she had been the whole time. She said she did not know what he meant. He kept telling her to promise that she would not run away and eventually she said she would not, to get him to move. As he did so, she quickly rolled to her side onto her knees, grabbed her underwear, told him he was "an arsehole" and ran to her bedroom and went back to bed. As she did this he told her "Don't worry, I didn't come".
When she got back to the bedroom A appeared to be asleep. JD was confused, in pain and shocked and apprehensive about what her father's reaction might be. She did not sleep again that night. She heard her cousin get out of the bedroom and join the family for breakfast about 7.30 am. JD stayed in bed until about 10 am when her father came in and told her to get out of bed and stop being so unsociable. She got dressed and went to the kitchen where people were cooking. The appellant was still there in the kitchen with the family. She took her breakfast and went outside near the pool to eat it. The appellant came out and had a cigarette and sat directly opposite her and made some comment to the effect "Thanks for last night. I really enjoyed it." He then put his cigarette out and went back inside.
Later, the family was getting ready to go to an aunt's house for lunch. While they were doing that, the children went back into the pool. They asked JD to join them, so she did. She was wearing bikini bathers. She sat down the deep end on the step in the pool. About 10 minutes later the appellant came out and dived into the shallow end while JD was talking to an older cousin who was sitting next to the pool at the deep end. The appellant swam under water to JD and tried to put his hand down the back of her bikini pants, but because she was sitting on the step he could not really do much. She described him touching "the back of my bum". She said it was very quick and when it happened she pulled away and jumped out of the pool. She said he did touch her inside her bathers. That was the subject of count 2, of which the appellant was acquitted.
The appellant gave evidence. He denied either event had occurred. He did say that he had been in JD's room with her and A during the afternoon, when they were showing him their Christmas presents. They denied that. He said that at one stage JD surprised him by suddenly kissing him on the mouth. She denied that.
In her evidence, A said that after the appellant opened the bedroom door the first couple of times, she pretended to be asleep and then he opened it again. He stood in the doorway and walked up to the end of JD's bed, grabbed her leg and was whispering to her. JD was whispering something back to him which A could not hear. Then the appellant grabbed both of JD's legs, pulled her off the bed and they both went out the door. A remained lying on the ground pretending to be asleep. The next thing she knew JD returned a short while later, got straight back into her bed and told A to go to sleep.
It was the appellant's evidence that he attended the complainant's house at Christmas 1998, so that she was in fact not 14 but 15 years old at the time. He said JD was wrong about the year. That was one of the matters upon which the appellant's trial counsel attacked her credibility.
The appellant's father gave evidence that the appellant was living at home with him and the appellant's mother over Christmas 1998 and was with them there most of Christmas Day that year. He lived with them for some months from August 1998 and into 1999, but apart from that period, lived independently. In cross‑examination the appellant's father said the appellant would have been with them at home for Christmas 1997. He said that would have been so because it was their custom, but he had no specific memory of that Christmas.
JD's father also gave evidence. Amongst other things, he said that during the day the appellant was spending time with both the adults and the children. Later in the evening, when he was walking past JD's bedroom, the father saw A and JD sitting on JD's bed in her bedroom and the appellant standing in the room talking to them. He suggested to the appellant that the party was outside, not in his daughters' bedroom. Later still, as a result of something another person said to him, the father went again to the bedroom where he again saw the appellant. He then suggested "rather tersely" once again that the party was not in the bedroom and he asked the appellant to move out and join the main group.
Later on in the evening he told the appellant that if the appellant laid a hand on his daughter he would "… tear his fucking throat out." The foregoing brief summary is sufficient for the purposes of this appeal.
The direction referred to in the ground is said to contravene the rule articulated by the High Court in Robinson v The Queen (1991) 180 CLR 531. It was given towards the conclusion of his Honour's summing up, when he was explaining what the evidence was and that it included not only what the witnesses had said but also their demeanour and how they answered questions. The Judge then went on to say (T203):
"You are the sole judges of the credibility or believability of each witness and the weight to be given to that witness's testimony. In weighing the testimony of a witness you should consider that witness's relationship to the complainant or to the accused, that witness's interest, if any, in the outcome of the case, that witness's manner of testifying, that witness's opportunity to observe or acquire knowledge concerning the facts about which that witness has testified, that witness's candour, fairness and intelligence and the extent to which that witness has been supported or contradicted by other credible evidence. You may, in short, accept or reject the testimony of any witness in whole or in part." (My emphasis)
Earlier in his directions, his Honour had correctly explained the onus and burden of proof on more than one occasion. He made it clear the burden of proof was on the prosecution and that a criminal trial is not a contest between the State's assertions and an accused's defences. He emphasised the presumption of innocence, that the burden of proof on the State was proof beyond reasonable doubt, and that there was no onus upon the appellant "in any way" to prove innocence. He explained, correctly, that the jury may or may not accept the appellant's version of the facts in full, in part, or at all, but he was still entitled to be acquitted unless every element of the State case (sic each charge) had been proved beyond reasonable doubt. He pointed out there was a clear conflict between the evidence of prosecution witnesses – the complainant in particular – and the appellant, and the jury would have to consider who was to be believed, but that even if the jury concluded that adversely to the appellant, they could not find an issue against him contrary to his evidence, if his evidence gave rise to a reasonable doubt about that issue. He directed the jury that the State case depended upon their acceptance beyond reasonable doubt that the evidence of JD was true, notwithstanding the appellant's sworn denial, and reiterated that they did not have to believe the appellant was telling the truth before he was entitled to be acquitted.
Later, the Judge told the jury that when considering the complainant's evidence, they needed to bear in mind she was 14 years old when the events occurred, but was 21 years old when she gave evidence. He reminded them she did not tell anyone about what happened at the time other than to say to her brother (sic cousin) on the following day, something to the effect that the appellant had "slept with her" the previous night, and that she did not say anything further about the incidents until she went to the police in August 2002, almost five years later.
His Honour gave appropriate warnings about recent complaint (or the lack of it) and the effect of delay. He referred to an apparent suggestion by defence counsel that JD and her cousin may have "got their heads together" in relation to the matter.
In dealing with the prosecution case and what had been put forward on behalf of the defence, his Honour reminded the jury of an argument by defence counsel that "truth was central to the case" and that "somebody was telling a pack of lies". In relation to that, he said (T198):
"What he said to you was that really the defence in this case, Mr Derosa, is saying that two or three of the state's witnesses have concocted a pack of lies. In other words, they have got their heads together in relation to this matter, but of course you need to also remember that against the concept of no obligation arises upon the accused Mr Derosa to prove anything in relation to this case."
Another issue pointed to by the Judge as one on which there was a suggestion of concoction or collusion was the evidence of A, which was said to give general support to JD's account.
Having dealt with a number of other matters, his Honour concluded (T204):
"Having said all that to you, how do you go about your task? If you believe what the accused has said to you, if you accept his evidence, then obviously you would acquit him. If you are unable to make up your mind about the matter, if you can't decide, then obviously in accordance with the principles that I have stated you would acquit the accused.
If you do not believe the accused, if you don't accept what he says, then that does not mean that you convict him. Before you can convict the accused, you have to look at the whole of the evidence and you have to be satisfied beyond reasonable doubt of the guilt of the accused. In the context of this case that means being satisfied beyond reasonable doubt of the truth of the complainant's evidence, that is, the truth of the evidence of [JD].
The reason for that is that in relation to the two offences, only she and Mr Derosa give evidence. It's an oath on oath situation, so you have to be satisfied beyond reasonable doubt of the truth of her evidence. Of course in arriving at that you can take into account all of the other evidence that you have heard from other witnesses as well, but you need to be satisfied beyond reasonable doubt of the truth of her evidence in relation to this matter."
It is apparent that the credibility of the complainant and the appellant was crucial to the outcome of the trial, and it is against that background that the impugned direction is to be considered.
In Robinson, the complainant gave evidence that she was raped, saying that although she consented to intercourse, that was only because of threats made to her by the appellant. For his part, the appellant maintained that consent was freely given. The trial judge initially gave the following direction in relation to witnesses:
"Still on the subject of witnesses, you might think that some of them have an interest in the outcome of this case. Indeed you might think that one witness above all others has a greater interest than all the others in the outcome of the case. You might say, 'Well, this witness has a particular interest in the outcome of his case. We should look at his or her evidence closely, more closely than perhaps we would look at others.' That is a matter you have to bear in mind when scrutinizing a particular witness's evidence."

Towards the end of his summing up, the trial Judge said:
"Another test was what interest does a witness have in the outcome of a case? If you thought a witness had a large interest in the outcome you, as the judges of the facts, might well conclude that you should scrutinize that witness's evidence closely. You might think - it is a matter solely for you - that the accused had the greatest interest of all the witnesses you saw and heard and that, therefore, you should scrutinize his evidence closely."
The appellant's counsel asked for a further direction, but only to make it clear the complainant also had an interest in the outcome of the case. The trial judge gave such a direction, saying further that:
"I didn't intend to lead you to believe that you apply only the interest in the outcome of the case test to the accused only. You apply it to all the witnesses if you believe that test is applicable."
In a joint judgment (Mason CJ, Brennan, Deane, Toohey and McHugh JJ) the High Court set out passages from the trial Judge's directions concerning the onus and standard of proof, which their Honours described as "unexceptionable". Nonetheless, they said that notwithstanding the correctness of those directions it was impossible to escape the conclusion that the fairness of the trial was seriously impaired by the effect of the trial Judge's directions concerning the interest of a witness in the outcome of the case. As to that, their Honours said (at 535):
"The jury could hardly escape the conclusion that the appellant had 'the greatest interest of all the witnesses' in the outcome of the case. Indeed, his Honour had suggested to the jury that they might think that the appellant had a greater interest than any other witness in the outcome of the case. If the jury accepted that suggestion, as they almost certainly would have, his Honour's directions had the effect that the evidence of the appellant had to be scrutinized more carefully than the evidence of any other witness, including the complainant, for no reason other than that he was the accused. The unfairness of such a direction is manifest, particularly when the outcome of the trial inevitably turned upon the jury's preference for the evidence of the complainant against that of the accused. Moreover, the directions virtually had the effect that the appellant was to be treated as a 'suspect witness' in the same way as an accomplice, a complainant in a sexual case and a young child have been treated as 'suspect witnesses', that is, as witnesses whose evidence is to be accepted only after the most careful scrutiny (Reg v Hester [1973] AC 296, at pp 324‑325; Longren v The Queen (1989) 168 CLR 79, at pp 85, 104‑105). An express direction which had the effect of his Honour's directions would have been a clear misdirection, as Mr Butler, counsel for the Crown, readily accepted. Furthermore, his Honour's directions on the point do not sit well with the presumption of innocence which is the consequence of a plea of not guilty. If that presumption is to have any real effect in a criminal trial, the jury must act on the basis that the accused is presumed innocent of the acts which are the subject of the indictment until they are satisfied beyond reasonable doubt that he or she is guilty of those acts. To hold that, despite the plea of not guilty, any evidence of the accused denying those acts is to be the subject of close scrutiny because of his or her interest in the outcome of the case is to undermine the benefit which that presumption gives to an accused person."
The Court went on to say that none of what they said was intended to suggest the evidence of an accused is not subject to the tests generally applicable to witnesses in a criminal trial, including whether some particular interest or purpose of the witness would be served or promoted by giving evidence in the proceedings:
"But to direct a jury that they should evaluate evidence on the basis of the interest of witnesses in the outcome of the case is to strike at the notion of a fair trial for an accused person. Except in the most exceptional case, such a direction inevitably disadvantages the evidence of the accused when it is in conflict with the evidence for the Crown.
It follows that, if, as we think was the case, the jury would have understood his Honour's directions as meaning that the evidence of the appellant had to be scrutinized more carefully than that of any other witness, there was a serious misdirection in the summing up which went to the fairness of the trial of the appellant and which undermined the presumption of innocence." (536)
In Etherton v The State of Western Australia (2005) 30 WAR 65, the trial Judge directed the jury that:
"In weighing the testimony of a witness you can take into account his or her relationship to the complainant … his or her interest insofar as the outcome of the trial is concerned, their manner of testifying, the opportunity which each witness had to acquire knowledge concerning the facts about which that witness has given evidence, and you might have regard also to the extent to which a witness has either been supported by or contradicted by other credible evidence."
In upholding the appeal on the ground that this direction contravened the principle in Robinson, Steytler P (with whom Roberts‑Smith and McLure JJA agreed on this point) noted (at [29] – [32]) that an apparent lack of consistency by courts in applying the principle had subsequently led to two reiterations of it by the High Court in the course of dealing with applications for special leave. His Honour set out the following passages:
"30In Stafford v The Queen (1993) 67 ALJR 510, Deane, Dawson and Toohey JJ said:
'It follows from a decision of this Court in Robinson v The Queen … that a trial Judge should not direct the jury that the 'interest' of an accused in the outcome of his or her trial is a 'factor' to be taken into account in assessing his or her evidence. Nor should a trial Judge direct the jury to the effect that, in assessing the evidence of all the witnesses, they should take account of their relative interests in the outcome. Any direction which directly or indirectly requires or invites an assessment of the reliability of the evidence of the accused or the relative reliability of the evidence of the accused and other witnesses by reference to interest or lack of interest in the outcome of the trial is likely to be understood by the jury as a direction or invitation to discount the evidence of the accused who will inevitably be seen as having a greater interest in the outcome of the trial than any other witness. That is what the decision in Robinson was directed against.
Ordinarily … it is preferable that a trial judge refrains from directing attention to the interest of the accused in the outcome of the trial as a relevant factor in assessing the reliability of his or her evidence. If the circumstances of a particular case are exceptional and require some reference to the accused's interest in the outcome as a matter of fairness to the accused, it should suffice to inform the jury that they must approach the case on the basis that the accused is presumed innocent of the acts which are the subject of the indictment and that it would be wrong and unfair for the jury to discount the evidence of the accused simply for the reason that, as the accused, he or she has a particular interest in the outcome of the trial.'
31Then, in Ramey v The Queen (1994) 68 ALJR 917, Brennan, Dawson and McHugh JJ said:
'There can, and should, be no mistake as to the application of the principle laid down by this Court in Robinson v The Queen … . It is not to be eroded by Courts of Criminal Appeal nor, a fortiori, by trial judges by failing faithfully to apply the prohibition against the giving of a direction to evaluate the evidence of an accused on the basis of the accused's interest in the outcome of the case'." (My emphasis)
His Honour went on to refer to R v Haggag (1998) 101 A Crim R 593, and Rowbottom v The Queen (2003) 13 NTLR 197. In Haggag, Callaway JA (Phillips CJ and Kenny JA concurring) identified three points arising from the judgments of the High Court in Robinson, Stafford v The Queen (1993) 67 ALJR 510 and Ramey. They were first, that the injunction is directed not against evaluation of the evidence of an accused solely or even mainly on the basis of their interest in the outcome of the case, but against doing so even on the basis it is a factor to be taken into account. The second is that the prohibition is not confined to directions the jury must, or must not, do something; it extends to a mere invitation to the jury to evaluate the evidence of the accused by reference to his or her interest in the outcome of the trial. The third is that Robinson did not depend upon its unusual facts: it stands for "a rigorous principle to be faithfully applied". In Rowbottom, the Court of Criminal Appeal of the Northern Territory thought Robinson was based on the notion that the evidence of an accused was not to be treated in any way differently from that of other witnesses "because of the fact alone that it is the evidence of the accused".
Steytler P expressly agreed (at [35]) with the Victorian Court of Appeal in Haggag, that the effect of the High Court cases is that, ordinarily at least, a trial Judge should not direct a jury that the interests of the accused in the outcome of the trial is even a factor to be taken into account in assessing his or her evidence.
In my own remarks in Etherton, I pointed out (at [101]) that in the passage at 536 of Robinson, the High Court was not confining its injunction to a direction which was directly or only referable to an accused, but rather to one that a jury could evaluate the evidence of witnesses in the outcome of the trial, where the accused had been a witness:
"Thus, even if such a direction were expressed generally and not specifically by reference to an accused, it would still carry unfair prejudice because inevitably it would be the accused who was seen to have the greatest interest in the outcome of the case. The mischief is to speak in terms, not of particular interests which may be had by particular witnesses, including the accused, but to speak of an interest in the outcome of the case." (Emphasis in original)
The principle is that to direct a jury that they should evaluate evidence on the basis of the interest of witnesses in the outcome of the case is to strike at the notion of a fair trial for an accused.
The rationale for the principle is that other than in the most exceptional case, such a direction inevitably unfairly disadvantages the accused when his or her evidence is in conflict with that of prosecution witnesses.
The following propositions may be extracted from the authorities referred to above:
(1)Where an accused gives evidence, even a direction that a jury might take into account the interest of witnesses generally, in the outcome of the case, will infringe the principle, because the accused will always be seen as having the greatest interest in the outcome of the case.
(2)The unfairness lies in the notion that the evidence of an accused may have to be given particular scrutiny because he or she is the accused. That approach undermines the presumption of innocence.
(3)The unfairness will be manifest where there is a conflict between the evidence of an accused and that of prosecution witnesses, and particularly so where the outcome turns on the jury's preference for the evidence of the complainant against that of the accused.
(4)The prohibition applies to a direction about the interest of a witness in the outcome of the trial; it does not preclude reference to any other interest or motive which a witness (including the accused) may have when giving evidence in the proceedings.
(5)The unfairness flowing from such a direction may not be overcome by otherwise impeccable directions on the onus and standard of proof.
(6)In an exceptional case, where the circumstances require some reference to the accused's interest in the outcome as a matter of fairness to the accused, it should be sufficient to direct the jury they must approach the case on the basis the accused is presumed innocent of the acts the subject of the charge and that it would be wrong and unfair for them to discount the accused's evidence, simply because he or she has a particular interest in the outcome of the trial.
(7)The principle is to be rigorously applied and not to be eroded by Courts of Appeal or trial Judges failing to faithfully apply the prohibition against the giving of a direction to evaluate the evidence of an accused on the basis of his or her interest in the outcome of the case.
I return to the instant case.
The Judge gave his summing up on 22 April 2005. That was prior to the delivery of judgment in Etherton on 10 May 2005, but of course after the judgment of the High Court in Robinson which was given in October 1991.
The first submission advanced in support of the direction given by the trial Judge is that, properly understood, his Honour was referring to witnesses other than the accused having an interest in the outcome of the case, and the jury would have so understood the direction. It is said to be apparent from the Judge's reference to the "… witness' relationship to the complainant or to the accused" that he was excluding the appellant (and indeed the complainant) as the subjects of the direction that the jury should consider the witnesses' interest in the outcome of the case.
I am unable to accept that submission.
In his directions, the trial Judge was working to a logical structure. There were five components. The first, his Honour described as "standard directions". They covered such matters as the onus and standard of proof, the presumption of innocence, the role of the jury and the like. The second concerned the elements of the offences charged. The third were what his Honour described as "special directions" arising out of the evidence. The fourth was observations on the evidence and the fifth component was his Honour's concluding remarks. That was where he gave the direction with which this ground is concerned. It was therefore virtually the last thing his Honour told the jury.
There was no clear statement to the jury that they must not discount the appellant's evidence simply because he had a particular interest in the outcome of the trial.
The critical paragraph in the trial Judge's directions contained three sentences, namely:
(a)"You are the sole judges of the credibility or believability of each witness and the weight to be given to that witness's testimony."
(b)"In weighing the testimony of a witness you should consider that witness's relationship to the complainant or to the accused, that witness's interest, if any, in the outcome of the case, that witness's manner of testifying, that witness's opportunity to observe or acquire knowledge concerning the facts about which that witness has testified, that witness's candour, fairness and intelligence and the extent to which that witness has been supported or contradicted by other credible evidence."
(c)"You may, in short, accept or reject the testimony of any witness in whole or in part."
(My emphasis).
The second sentence would probably have been understood by the jury as follows:
"In weighing the testimony of a witness you should consider":
(a)"that witness's relationship to the complainant or the accused";
(b)"that witness's interest, if any, in the outcome of the case …"
In other words, the jury would probably have understood that the direction in relation to a witness's interest, if any, in the outcome of the case applied to all witnesses including the accused.
What his Honour said did not, in my view, even impliedly, exclude the appellant from the effect of the direction. His Honour was listing factors which the jury could consider in respect of witnesses generally. Although the reference to witnesses with a relationship to the complainant or the appellant obviously enough could not apply to the complainant or the appellant themselves, all of the other factors mentioned could do so. That necessarily included each witness' interest in the outcome of the case.
The direction given here was very similar in content and structure to that in Etherton. It appears to be in a standard form which (at the time of this trial at least) had apparently not been revised to take account of Robinson. There were six factors covered. They were:
(1)the witnesses' relationship to the complainant or the accused;
(2)the witnesses' interest in the outcome;
(3)the witnesses' manner of testifying;
(4)the witnesses' opportunity to observe or acquire knowledge about the facts the subject of their testimony;
(5)the witnesses' candour, fairness and intelligence, and
(6)the extent to which the witness is supported or contradicted by other credible evidence.
Of those six factors, five were applicable to the appellant.
When a direction is given that a jury may evaluate the evidence of a witness by reference to that witness' interest in the outcome of the trial, it is essential for the trial Judge to make it clear that does not apply to the accused, by way of a direction in accordance with Stafford. Here the jury would most likely have taken the Judge's direction as intended to apply to the appellant as well as to other witnesses. The structure of the direction pointed that way and there was nothing said by his Honour to exclude the appellant. The direction embodied the very same flaw which was fatal in Robinson and Etherton. This Court is obliged "faithfully to apply the prohibition". This ground has been made out.
The respondent conceded that if this ground were to succeed, there would have been a substantial miscarriage of justice demonstrated and it would not be possible to apply the proviso (s 30(4) Criminal Appeals Act 2004 (WA)). That concession was properly made. I would accordingly allow the appeal against conviction on this ground, quash the conviction and order a retrial.
Strictly, that makes it unnecessary to deal with the appeal against sentence, but the respondent also conceded error in respect of that, and as there is to be a retrial, it is as well to do so briefly.

Appeal against sentence

In his sentencing remarks the Judge first recounted the facts. He observed that during the course of the barbecue and social activities at the complainant's home, the appellant had been seen to swim in the pool and socialise with JD and A and that on one occasion during the course of the day the complainant's father had to "say something" to the appellant about the matter. His Honour noted that in the evening some people slept over and that included the appellant. During the night, JD was in her usual bedroom and A was sleeping in the same room, when they were both woken by the appellant opening the door, which hit the dresser. That happened three times and on the last the complainant pretended to be asleep but the appellant grabbed her by the leg, pulled on her nightdress and pulled her off the bed and out the door. His Honour then described the offence and then turned to the appellant's antecedents. He noted the appellant had no record apart from minor traffic convictions, that he had been a sales consultant with Harvey Norman for three years and that he was only about 12 months away from being offered a franchise. It had been submitted on behalf of the appellant that all of that was now lost. His Honour made some other observations about the appellant's background and the submission of his counsel that there was no evidence of ejaculation, that the offence seemed to have lasted for a very short time and that the appellant was affected by alcohol. He noted that the appellant was said to understand the seriousness of the matter and that an immediate term of imprisonment was inevitable. His Honour said he agreed with the State's submission that the offence was at the higher end of the level of offending for that type of offence. He then went on to say (AB 46 ‑ 48):
"You were premeditated in a persistent way. You effectively pursued these two children, or at least the company of these two children all day. As I have said, on one occasion you were warned off by the father. On three occasions you went to [JD's] bedroom. The state [sic] emphasised the difference between ages. The complainant was 14. I think the state [sic] said that you were 28. I think you were 26 or 27 at the time.
You were a guest in the house and clearly a friend of the parents. The complainant was removed from her own bedroom and in my view the whole matter was a gross abuse of trust. There is a victim impact statement in relation to this matter. The complainant obviously went off the rails following this offence. Eventually it appears she has benefited from treatment and seems to have got her life back in order.
In my view this is a very serious offence. The maximum penalty for this offence is a term of imprisonment of 14 years. The chief justice in Podirsky's case said that a sentence of eight years is commonly imposed with respect to this offence. I see no reason to differ in that respect.
It was premeditated in a persistent way. As I have said, you were warned off by the father; you went three times to the bedroom; you dragged the complainant out of her own bedroom and you were a guest at the house and the whole matter constituted a gross breach of trust. In my view, the age difference was very substantial. As I have said, in my view the appropriate sentence is one of eight years; that is, before the amendment to the legislation last year.
Pursuant to the amendment I am required to reduce that sentence by one third. That reduces the sentence to five years and eight months. So in respect of this matter you are sentenced to a term of imprisonment of five years and eight months. I direct that you are eligible for parole. …" (My emphasis).

Ground 1 asserts that his Honour was in error in finding that the offence involved a gross breach of trust.
Ms Archer submitted it was an error for his Honour to characterise the offence as a breach of trust because the indicia for sentencing an offender on that basis were lacking here. Alternatively, she submitted the Judge's remarks and the sentence in fact imposed, indicated that he had characterised this offending as falling within those cases in which condign sentences were necessary because of the abuse of trust they involved.
The factors listed by Murray J in Dempsey v The Queen, unreported; CCA SCt of WA; Library No 960059; 9 February 1996 for consideration in sentencing in cases of sexual offences against children, have since been frequently referred to. They relevantly included the relative ages of the offender and the victim; whether the offender was in a position of trust or authority with respect to the victim, thus better enabling the commission of the offence; and whether there was, apart from such position of trust or authority, any element of coercive or forceful behaviour on the part of the offender.
In R v Leggett [2000] WASCA 327, in allowing a Crown appeal against sentence, Wheeler J (with whom Pidgeon and Ipp JJ agreed) said (at [21]) that offences involving penetration of a young child are of the utmost seriousness and less weight should be given to mitigating factors where there is an abuse of trust.
Likewise, in Bishop v The Queen [2003] WASCA 79, Parker J (Malcolm CJ and Murray J concurring) observed (at [24]) that offences of a sexual character upon young children by an adult within a family environment, involved an abuse of trust and are very serious.
The fact that a child who is the victim of an offence of sexual penetration (s 321(2) of the Code) or indecent dealing (s 321(4) of the Code) was under the care, supervision or authority of the offender, is a circumstance of aggravation which increases the statutory maximum punishment (s 321(7) and (8)). Those are the "classic" circumstances of breach of trust in respect of sexual offences against children (see for example R v Taylor (1977) 64 Crim App Rep 182, 185). In Trescuri v The Queen [1999] WASCA 172, Anderson J (with whom Ipp and White JJ agreed) said (at [21]):
"Cases of intra-family sexual assaults on young children generally attract heavy sentences. The reasons for this have been stated in this Court many times. Sexual assaults by an adult upon young children within the family environment involving the taking advantage of a position of trust and authority is very serious and the law demands the protection of young children from it. The dominant sentencing considerations are punishment and general and personal deterrence, as well as retribution for the victims who are invariably grossly traumatised. …"
But the notion of breach of trust is not confined only to intrafamilial situations nor positions of power, supervision or authority; a situation or relationship of trust may arise factually in other ways.
In R v Chilvers [2003] WASCA 87, the fact that the offences were committed upon the young daughters of the offender's de facto partner of some years, while he was earning the mother's trust, was regarded as an aggravating factor.
There is a distinction between a relationship of trust and a situation of trust. In Whalley v The State of Western Australia [2005] WASCA 213, the offences occurred when the victim's mother, who was living in a de facto relationship with the 51 year old applicant, went overseas, leaving the applicant to care for the victim and her siblings. Pullin JA (with whom Malcolm CJ and Murray AJA agreed) said (at [7]) that the added aggravating features in the case included the disparity in age between the applicant and the victim and the fact that the applicant was acting as guardian and was therefore supposed to be looking after the welfare of the victim at the time. The judgment points out the distinction between an adult acting as guardian as distinct from an adult merely entrusted with the company of a child; the difference being the expectation upon the guardian to attend to the welfare of the child.
However, what is clear is that for breach of trust to be a factor making a sexual offence more serious than it would otherwise be, it must actually be a situation or relationship which does in fact involve a trust that is breached by the offence. The fact that the 27 year old offender and the 17 year old complainant were housemates, was held in R v Smith [2004] WASCA 44 to not give rise to a "position of trust" as had been asserted as an aggravating feature by the Crown. The complainant and her boyfriend were sharing a house with the respondent and his partner. They were alone in the house, their respective partners having gone to work. The respondent followed the complainant into her bedroom and after some mutual horseplay, committed four offences of indecent assault and one of sexual penetration without consent.
Wheeler JA said (at [5]):
"So far as the 'position of trust' is concerned, I agree with what has been written by McLure J. I would add that an abuse of a position of trust will generally be of significance for one of two reasons. It may be that it involves an abuse of a position of power or authority which one person has over another, such as a school teacher and a pupil. The aggravating factor is the misuse of that position. Alternatively, it may be that because of some relationship between them the complainant reposed actual trust and confidence in the offender, so that the effect upon the complainant is likely to be more serious because the offender's conduct would, in addition to its other ramifications, tend to cause her to lose confidence in her own judgment and to cause difficulties in her relationships with others whom she might be disposed to trust. The two types of breach of trust may overlap. In the present case, there was no position of authority which the respondent occupied in relation to the complainant. Nor did the complainant repose actual trust and confidence in him; indeed, it appears from the papers before us that she had not particularly liked him, even before these offences."
For her part, McLure J said (at [20]):
"The language used by the Crown is suggestive of an abuse by a person in a position of power or authority or of a relationship of trust or confidence. Such a characterisation is not supported by the evidence. In the particular circumstances of this case the disparity in age between the complainant and the respondent and their shared domestic circumstances is an inadequate foundation for an inference of a relationship of authority or trust and confidence."
In Smith the respondent had no position of supervision, care or authority over the complainant and neither she nor her boyfriend reposed actual trust in him, even though they shared the same house. There was neither a relationship nor a situation of trust, breach of which would have exacerbated the offences.
The trust of a victim's family was used as a means of gaining access to her home, in R v Major [2001] WASCA 46. The offender was an old family friend of the complainant's parents, to the extent that the victim called him "Uncle Arthur". Knowing her parents were out, he went to her house and she let him in, whereupon he committed the offences. The sentencing Judge described him as a "trusted family friend" who knew that her parents were out. In upholding an appeal by the Crown against sentence, Malcolm CJ (Pidgeon and Wallwork JJ concurring) said (at [29]):
"In the present case the seriousness of the offence of digital penetration should be measured, not only in terms of the nature of the offence itself, but also by combination of the breach of trust involved and the disparity in ages between the offender and his victim, as well as the other circumstances referred to …"
The element of breach of trust is generally significant not only where it is a means by which the offending is facilitated, or because of its tendency to destroy that trust upon which parents, families and the community generally must rely, but also because of its effect upon the victims themselves. That last was adverted to by this Court in "VIM" v The State of Western Australia [2005] WASCA 233 at [291] and [293]:
"291 In the light of those experiences, courts now understand much more clearly the destructive effect of all such offending (whether accompanied by overt violence or not) upon a child's capacity to trust others and to form relationships, and upon the child's sense of self-worth. Particularly in cases of frequent or prolonged abuse, an inability to form adult relationships, or an inability to maintain them, exaggerated doubts and fears in relation to the parenting of the complainant's own children, and disrupted schooling which adversely affects the complainant's future educational and employment prospects, are very common. Also frequently encountered in such cases are drug or alcohol abuse, self‑harm, and attempted suicide.
292…
293In cases where the offender is not a family member or trusted adult, even in a loose sense, the effect upon family relationships and the child's sense of trust is not such a significant factor, but, depending upon the circumstances, there can nevertheless be very serious consequences in terms of loss of confidence in dealing with others, and damage to self-esteem, even where there are not overt threats, force or violence."
In the present case it could only be said "in a loose sense" that the appellant was a trusted adult. The complainant was not in his care, even temporarily. However, he was trusted to stay overnight in the same house as the complainant and her family, as were a number of other people. It was only because of that he was able to gain physical access to her. Further, because he had been a guest in the house that day and was staying overnight, JD was inhibited in her response to his assault upon her in a way she never would have been had he been a stranger. The offending was clearly facilitated by the trust reposed in the appellant by the complainant's parents as an overnight guest in their house. That is the way the trial Judge saw it. He did not describe it as a "relationship" of trust, but regarded it as a situation in which trust had been placed in the appellant. I do not think he was wrong to describe it in that way. The real question, it seems to me, is whether his Honour gave inordinate weight to that factor. That brings me to ground 2, which was conceded by the respondent.
Section 8(4) of the Sentencing Act 1995 provides that:
"If because of a mitigating factor a court reduces the sentence it would otherwise have imposed on an offender, the court must state that fact in open court."
There is no requirement for a sentencing court to state the amount or percentage by which a sentence is reduced because of a particular mitigating factor. Nonetheless, the section does impose an obligation upon a court to state the fact that a reduction of sentence has been made on account of a particular factor. In this case, his Honour did refer to the appellant's antecedents and lack of any previous criminal convictions, but at no point did he say he had made any reduction of sentence because of the appellant's good antecedents. Accordingly, if he had made such a reduction, he failed to comply with s 8(4). However, I am persuaded by Ms Archer's submission that his Honour appears to have given the appellant's antecedents no weight whatsoever. That conclusion comes from his failure to say so, together with his Honour's reference to what had been said by Malcolm CJ in R v Podirsky (1989) 43 A Crim R 404.
What was actually said by his Honour in that case (at 411) was:
"While I agree with the comment by Burt CJ that a 'tariff' in relation to sexual offences remains as elusive as ever, it is the case that for a single act of sexual assault under s 324D of the Code by penile penetration (still commonly called rape) a sentence of about six years is commonly imposed. It is possible that such a sentence could be reduced by mitigating factors. In the case of a single act of aggravated sexual assault by penile penetration, much depends on the circumstances of aggravation, but where the relevant circumstances is that the complainant is under the age of 16 years, a sentence of about eight years is commonly imposed. Again, this could be reduced by particular mitigating factors …
… there is so much room for individual variation in terms of the kinds of sexual penetration and other sexual acts and the circumstances of aggravation, quite apart from personal and other factors of mitigation." (My emphasis).
His Honour appears to have taken 8 years as the sentence to be imposed, but it was plain from what the former Chief Justice was saying, that 8 years was "about" the term which would commonly be imposed in the absence of particular mitigating factors. His Honour appears to have imposed it without any regard whatsoever to any mitigating factors in this case.
In my view the appellant has demonstrated specific error in the exercise of the trial Judge's sentencing discretion, in that he gave disproportionate weight to what he described as a "gross breach of trust", and concomitantly failed to have any regard to the appellant's good antecedents and other factors in mitigation, so imposing what was in the end, a manifestly excessive sentence. It follows that a different sentence ought to have been passed (s 31(4)(a) of the Criminal Appeals Act).

Ordinarily, this conclusion would mean that the sentence should be quashed and this Court should impose that sentence which ought to have been passed by the primary court, but as the appellant's conviction has to be quashed, that is neither necessary nor appropriate.
MCLURE JA: I have had the advantage of reading in draft form the reasons to be published by Roberts‑Smith JA. I agree that the appeal against conviction should be allowed. My preliminary view was that the direction relating to the witnesses' interest in the outcome of a trial was ambiguous and may have been understood by the jury as excluding reference to the complainant and the accused, particularly bearing in mind defence counsel's failure to object to that part of the direction. However, I am persuaded that a reasonable jury would be likely to conclude that the trial Judge was referring to all witnesses, including the accused (and the complainant). Under the law as stated by the High Court in Robinson v The Queen (1991) 180 CLR 531 and clarified in Stafford v The Queen (1993) 67 ALJR 510 and Ramey v The Queen (1994) 68 ALJR 917 (as detailed in Etherton v The State of Western Australia (2005) 30 WAR 65), a direction that goes no further than referring in general terms to the witnesses' interest in the outcome of the trial is an error to which the proviso has no application. Accordingly, I would allow the appeal against conviction, quash the conviction and order a retrial. In those circumstances it is unnecessary to deal with the appeal against sentence.
BUSS JA: I agree with Roberts‑Smith JA.