Di Stefano v The State of Western Australia

[2017] WASCA 187

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   DI STEFANO -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 187

CORAM:   BUSS P

MAZZA JA
BEECH JA

HEARD:   14 SEPTEMBER 2017

DELIVERED          :   14 SEPTEMBER 2017

PUBLISHED           :  19 OCTOBER 2017

FILE NO/S:   CACR 123 of 2017

BETWEEN:   GAETANO DI STEFANO

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :STEVENSON DCJ

File No  :IND 1856 of 2016

Catchwords:

Criminal law - Evidence of distress exhibited by complainant - Distress relied on by prosecution as bolstering complainant's credibility but not as corroboration - No evidence of alternative explanation for distress - Whether trial judge erred in not referring to the possibility of alternative explanations - Turns on own facts

Legislation:

Nil

Result:

Leave to appeal refused
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Mr D J McKenzie

Respondent:     No appearance

Solicitors:

Appellant:     Patti Chong Lawyer

Respondent:     Director of Public Prosecutions (WA)

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

Eades v The Queen [2001] WASCA 329

Grubisic v The State of Western Australia [2011] WASCA 147; (2011) 41 WAR 524

R v Gulliford [2004] NSWCCA 338; (2004) 148 A Crim R 558

Vo v The State of Western Australia [2010] WASCA 24

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

1. REASONS OF THE COURT:   The appellant was convicted following trial before a jury of one count of robbery and two counts of indecent assault.  He applies for leave to appeal against conviction on the ground that there was a miscarriage of justice when the trial judge failed to fairly direct the jury that the complainant's distress may have been attributable to a cause other than the alleged offending.

2. At the hearing of the application, we ordered that leave to appeal be refused and the appeal be dismissed.  These are our reasons for making those orders.

The State's case

1. The State's case was, in essence, that following the complainant pulling over to the side of the road, the appellant stole her car with violence and in the course of the robbery indecently assaulted her by grabbing her breast and her groin.

2. In more detail, the State's case may be summarised as follows:

   (1)The complainant was driving her fiancé's Commodore.  She became lost, and so pulled over in order to use Google Maps to look for directions.[1]

   (2)After pulling over she put the window down so that she could smoke.  She looked up and saw the appellant standing by the driver's door of her car.  The appellant was wearing blue latex gloves.[2]

   (3)The appellant reached in and took the keys from the ignition.  They struggled for the keys.  In the course of the struggle the appellant put one hand over her mouth and put his other hand on her breast, squeezing it for a couple of seconds.[3]  That is the conduct the subject of count 2.

   (4)He grabbed at her shirt as though trying to tear it.  While one hand was still over her mouth, he put his other hand down to her groin, moving his fingers over her vaginal area.[4]  That is the conduct subject of count 3.

   (5)The appellant then dragged the complainant out of the car by her hair.  He threw her to the ground and ran to the car, jumped in and drove away.[5]  That is the conduct the subject of count 1.

   (6)The complainant telephoned 000 and reported the matter to the police.[6]

   (7)Police officers saw the appellant in the complainant's Commodore.  The appellant parked the Commodore, got out and then sprinted away.[7]  He was apprehended by police officers.

   (8)The two gloves were located, one in the area where the appellant had sprinted and the other in the pocket of the appellant's pants.  The appellant's DNA was located on the inside of one of the gloves, and the DNA of the complainant and the appellant were located on the outside of the glove.[8]

   [1] ts 30 - 31.

   [2] ts 31.

   [3] ts 31.

   [4] ts 32.

   [5] ts 32.

   [6] ts 33.

   [7] ts 34.

   [8] ts 34 - 35.

The defence case at trial

1. The defence did not dispute that the person who interacted with the complainant was the appellant, and that the appellant was found by police driving the complainant's car.[9]

   [9] ts 37 - 38.

2. In opening, the appellant's experienced counsel highlighted to the jury that the central issue would be the competing credibility of the very different versions of events to be advanced by the complainant and the appellant.[10]

   [10] ts 37.

3. The appellant's case at trial was that when he came across the complainant's car on the side of the road, she was slumped over the wheel and she had passed out, or that was what he thought.[11]  The appellant said that he saw a syringe in the car.

   [11] ts 37.

4. The appellant's case was that he carried the gloves with him in order to administer medication regarding his knee.  When he saw the syringe he put one glove on and retrieved the syringe.  The appellant said that when the complainant woke up there was an altercation between them because she wanted to get her syringe back.[12]

   [12] ts 38 - 39.

The evidence of distress

1. Given the narrow focus for a single ground of appeal, it is not necessary to canvass the evidence at trial in detail.  Generally speaking, the complainant gave evidence to the effect of the State's case as we have summarised it.[13] 

   [13] ts 43 - 57.

2. The complainant gave evidence of her distress during[14] and after[15] the events involving the appellant.  In cross‑examination the genuineness of her distress was not challenged and no alternative explanation for her distress was put to her.

   [14] ts 46, 57 ‑ 58, 65.

   [15] ts 69, 92.

3. The State led evidence that when police officers first attended the scene, the complainant was distressed.  Detective Senior Constable Chiles, gave evidence that when he and Detective Sergeant Lewis attended Lathlain they saw the complainant standing next to a public phone box.  Detective Senior Constable Chiles said, without objection:

   She appeared very distressed as when we got out of the vehicle and approached her I could hear her voice, very shaky, very emotional, very upset.  I do recall some tears, but she was and she did appear very emotional and upset.[16]

   [16] ts 98.

4. A little later in his evidence, Detective Senior Constable Chiles said that when he attempted to take a statement from her back at the police station she was exhausted and on a couple of occasions fell asleep.[17]  By the time she was dropped home at about 6.00 am he said, without objection, that she was 'very exhausted very tired still emotional'.[18]

   [17] ts 102.

   [18] ts 103.

5. None of that evidence was directly challenged in the brief cross‑examination of Detective Senior Constable Chiles.[19]  Counsel for the appellant asked Detective Senior Constable Chiles whether he had asked the complainant whether she had consumed any drugs in the course of the evening.  Detective Senior Constable Chiles said that he did not ask that question but had asked if there was any reason why she was so exhausted to which she had said that she was just tired and the whole thing was very stressful.[20]

   [19] ts 104 - 105.

   [20] ts 105.

The State's closing address

1. In the course of addressing the jury, the prosecutor referred to Detective Senior Constable Chiles' evidence that when he came across the complainant at the telephone box she was very distressed and tearful.  The prosecutor suggested that that was consistent with the account of what had just happened to her and that the fact that she was still distressed, tearful and exhausted at the police station was consistent with that account.[21]

   [21] ts 7 - 8, 17 May 2017.

The defence closing address

1. In the course of his address to the jury, counsel for the appellant  did not say anything specifically about the evidence of the complainant's distress, including Detective Senior Constable Chiles' evidence of the distressed condition of the complainant at the time Detective Senior Constable Chiles first saw her.  Counsel for the appellant referred to police evidence as to the complainant's tiredness at the police station, suggesting that that evidence was consistent with and supportive of the appellant's evidence that when he came upon the complainant in her car she was asleep.[22]

   [22] ts 27 - 28, 17 May 2017.

The trial judge's direction

1. The appellant complains about the trial judge's direction as to the relevance of evidence of the complainant's distress after the incident.  Relevantly, the judge's direction was as follows:

   The State also relies upon the evidence of the police officers with respect to how she appeared to them when they arrived and in the hours following after the searches had been conducted and she had been taken back to the police station.

   The State relies upon this part of the evidence not as independent evidence to corroborate her version of events … but that [the police officers' description] of her appearance to them … after the events about which she had explained occurred the State relies upon the evidence to say that you can use it when you come to assess her credibility.

   That is that it is consistent with the way in which you would expect somebody in her position, knowing what you do about her with respect to her age at the time given that she is now 20, and the circumstances in which she was and what she had happened to her.

   So the evidence is relied upon when you come to discuss and consider and assess her credibility.  That is whether she was telling the truth honestly and whether she is a reliable witness.

   It is not relied upon as separate independent evidence to corroborate her evidence so the distress is only relied upon by the State in that way.[23]

   [23] ts 242 - 243.

Ground of appeal

1. The sole ground of appeal is that there was a miscarriage of justice when the trial judge failed to fairly direct the jury in relation to the complainant's distress, in that he failed to direct that it may have been attributable to a cause other than the alleged offending.

Disposition of the appeal

1. The appellant's central complaint is that the judge failed to tell the jury that the complainant's distress may have been caused by something other than the alleged offences.[24]  The appellant submits that the judge should have told the jury that the complainant's distress may have been caused by the fact that, as was admitted by the appellant in his evidence, her fiancé's car had been stolen.[25]  The appellant further submits that, in circumstances where the credibility of the complainant and the appellant was central to the jury's assessment of their verdicts, the failure to refer to the fact that the distress may have been caused by something other than the alleged offending gave rise to a miscarriage of justice.[26]

   [24] Appellant's submissions [26] - [28].

   [25] Appellant's submissions [29].

   [26] Appellant's submissions [30] - [32].

2. For the reasons that follow, the proposed ground of appeal has no merit and should not have been argued, and as it was the sole ground of appeal, no appeal should have been instituted.  In essence, that is because the evidence and submissions at trial did not give rise to any plausible alternative explanation for the complainant's distress as described by the prosecution witnesses. 

3. There is a distinction between using distress as corroboration, that is as independent evidence tending to confirm that the events described by the complainant in fact occurred, and using it as supportive of the complainant's credibility.[27]

   [27] See, for example, Vo v The State of Western Australia [2010] WASCA 24 [36], [41], [42]; Grubisic v The State of Western Australia [2011] WASCA 147; (2011) 41 WAR 524 [107], [131], [132].

4. It is well established that before a complainant's distress can constitute corroboration, the distress must be reasonably explicable only on the basis of the alleged sexual assault.[28]

   [28] R v Gulliford [2004] NSWCCA 338; (2004) 148 A Crim R 558 [151]; Grubisic v The State of Western Australia [70], [107].

5. In the present case, the judge's direction made it clear that the complainant's distress was not independent evidence corroborating her version of events, but was relied on by the State as evidence capable of bolstering her credibility.[29]

   [29] ts 242 - 243.

6. It is not necessary to decide whether a direction that it is necessary to exclude other potential causes for the distress is required where distress is not relied on as corroboration but only to bolster credibility.[30]  That is because, as we will explain, the submissions and evidence at trial did not raise any other reasonable explanation for the distress.

   [30] That issue was also left open in Walsh v The State of Western Australia [2011] WASCA 119 [68].

7. The judge's direction on the complainant's distress was given in the context of and as an element of his Honour's summary of the State's case.  His Honour did not instruct the jury how they should or must reason in relation to the distress; rather, he outlined how the State invited them to bring the complainant's distress to bear on their deliberations. 

8. A trial judge's direction as to how a jury might use evidence of a complainant's distress must be crafted by reference to what is necessary in the interests of justice to best assist the jury in their fact-finding process, having regard to the evidence and circumstances of the case.[31]  It is not always necessary for a trial judge to say anything to the jury about the possibility of alternative explanations of a complainant's distress.  In a case where the evidence of distress is not contested, and no other possible reason for the distress is put to the complainant in cross‑examination or otherwise raised on the evidence, there would often be very good reason for the trial judge not to refer to alternative explanations for the distress.[32]  For example, to do so may involve an element of speculation.[33]

   [31] Eades v The Queen [2001] WASCA 329 [34]; Vo v The State of Western Australia [39] - [40]; Grubisic v The State of Western Australia [72], [111] - [112].

   [32] Grubisic v The State of Western Australia [126] - [139].

   [33] Grubisic v The State of Western Australia [129].

9. As the appellant's submissions concede,[34] no alternative explanation for the complainant's distress was raised in the course of her cross‑examination.  Nor was any submission to that effect made by defence counsel to the jury.  On appeal, the appellant contends that his evidence that he had stolen the complainant's fiancé's car provides an alternative explanation for her distress.  That assertion is speculative; in circumstances where no such thing was put to the complainant, it lacked any evidentiary foundation.  It would have been wrong for the judge to have invited the jury to embark upon an exercise in speculation:  to consider whether the complainant's distress was caused by her fiancé's car having been stolen.  Moreover, and in any event, in our view, the complainant's distress, of the intensity and duration described in the evidence of Detective Senior Constable Chiles, outlined above, was not reasonably explicable on the basis that she was upset by the taking of her fiancé's car, which was promptly recovered by the police. 

   [34] Appellant's submissions [29].

10. In oral submissions, counsel for the appellant appeared to accept that the suggestion the complainant's distress arose from the stealing of her fiancé's car was impermissible speculation unsupported by evidence.[35]  He reformulated the complaint as a failure to refer, in general terms, to the possibility of an alternative explanation and to tell the jury that if they considered there was an alternative explanation they would not use the distress to bolster the complainant's credibility.[36]   In the circumstances of this case, the judge was under no obligation to do so.  No perceptible risk of a miscarriage of justice arose.  Indeed, it would have been confusing for the judge to have referred to alternative explanations when, on the evidence, none arose. 

    [35] Appeal ts 5 - 6.

    [36] Appeal ts 9.

11. In summary, for the reasons we have given, the evidence and submissions at trial did not call for any reference to possible alternative explanations for the complainant's distress:  none was raised.

12. These conclusions are reinforced by the fact that experienced counsel for the appellant at trial did not raise any objection to the failure of the trial judge to refer to alternative explanations for the complainant's distress.

Conclusion

1. For these reasons, the sole ground of appeal does not have any reasonable prospect of succeeding.  Consequently, we ordered that leave to appeal be refused and the appeal dismissed.