DKA v The State of Western Australia
[2019] WASCA 123
•23 AUGUST 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: DKA -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 123
CORAM: BUSS P
MAZZA JA
MITCHELL JA
HEARD: 6 MAY 2019
DELIVERED : 23 AUGUST 2019
FILE NO/S: CACR 159 of 2018
BETWEEN: DKA
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: DAVIS DCJ
File Number : IND 959 of 2015
Catchwords:
Criminal law - Appeal against conviction - Sexual offences - Error in trial judge's directions to the jury - Whether there was a real risk that, having listened to the directions as a whole, the jury might have misapprehended the way it could use the appellant's evidence about his sexual dysfunction - Whether a substantial miscarriage of justice occurred
Legislation:
Criminal Appeals Act 2004 (WA), s 30(3), s 30(4)
Criminal Code (WA), s 320(2), s 320(4), s 321(2), s 321(4), s 326
Result:
Appeal allowed
Judgments of conviction set aside
New trial ordered on those counts in respect of which the jury returned verdicts of guilty
Category: B
Representation:
Counsel:
| Appellant | : | Mr S Vandongen SC |
| Respondent | : | Mr L M Fox |
Solicitors:
| Appellant | : | Sam Vandongen |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
AJE v The State of Western Australia [2012] WASCA 185; (2012) 225 A Crim R 242
AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438
Alramadan v Director of Public Prosecutions (NSW) [2007] NSWCCA 322
Azarian v The State of Western Australia [2007] WASCA 249; (2007) 178 A Crim R 19
Beasley v The State of Western Australia [2012] WASCA 80
Buiks v The State of Western Australia [2008] WASCA 194; (2008) 188 A Crim R 362
Carney v The State of Western Australia [2010] WASCA 90; (2010) 201 A Crim R 537
Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358
Collins v The Queen [2018] HCA 18; (2018) 92 ALJR 517
Cooper v The State of Western Australia [2010] WASCA 190
Cox v The State of Western Australia [2011] WASCA 30; (2011) 205 A Crim R 503
Dailakis v The Queen [2018] VSCA 101
DKA v The State of Western Australia [2017] WASCA 44
Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237
Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47
Gassy v The Queen [2008] HCA 18; (2008) 236 CLR 293
Hiemstra v The State of Western Australia [2006] WASCA 70
Johnson v The State of Western Australia [2008] WASCA 164; (2008) 186 A Crim R 531
Kalbasi v The State of Western Australia [2018] HCA 7; (2018) 92 ALJR 305
KBT v The Queen [1997] HCA 54; (1997) 191 CLR 417
King v The Queen [2012] HCA 24; (2012) 245 CLR 588
KMB v The State of Western Australia [2010] WASCA 212
Koushappis v The State of Western Australia [2007] WASCA 26; (2007) 168 A Crim R 51
La Fontaine v The Queen (1976) 136 CLR 62
Lane v The Queen [2018] HCA 28; (2018) 92 ALJR 689
Liberato v The Queen (1985) 159 CLR 507
Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
MAS v The State of Western Australia [2012] WASCA 36
Murray v The Queen [2002] HCA 26; (2002) 211 CLR 193
OKS v The State of Western Australia [2018] WASCA 48; (2018) 52 WAR 482
OKS v The State of Western Australia [2019] HCA 10; (2019) 93 ALJR 438
Papadimitriou v The Queen [2011] WASCA 140; (2011) 214 A Crim R 50
Perara-Cathcart v The Queen [2017] HCA 9; (2017) 260 CLR 595
R v Anderson [2001] NSWCCA 488; (2001) 127 A Crim R 116
R v Dookheea [2017] HCA 36; (2017) 262 CLR 402
R v Serratore (1999) 48 NSWLR 101; [1999] NSWCCA 377
Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; (2009) 238 CLR 460
Romano v The Queen (a pseudonym) [2019] NSWCCA 49
Ruthsalz v The State of Western Australia [2018] WASCA 178
Shepherd v The Queen (1990) 170 CLR 573
Simic v The Queen [1980] HCA 25; (1980) 144 CLR 319
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
Table of Contents
Buss P & Mazza JA
The charged offences
The ground of appeal
The State's case and the appellant's case at trial
The ground of appeal: the first issue
The ground of appeal: the second and third issues
Conclusion
Mitchell JA
Summary
Family relationships
Charged offences
The State's case
The bath and bedroom incidents (counts 1 - 6)
Bath incident
Bedroom incident
The bedwetting incident (count 7)
The Bill incident (counts 8 and 9)
The Milo incident (counts 10 and 11)
The seeds incident (counts 12 - 14)
The whispering incident (count 15)
The jump camp incident (count 16)
The El Dorado flat incident (count 17)
Evidence as to appellant's sexual capacity and interest in the complainant
Direct evidence of the appellant's sexual capacity
The defence case
Denial of offending
Appellant's evidence as to sexual incapacity
K's evidence as to the appellant's sexual incapacity
Medical evidence as to the appellant's sexual dysfunction
The trial judge's direction
Onus and standard of proof
Elements of the offences
The appellant's evidence
Delay and the complainant's evidence
Inferences
Use of specific evidence
Sexual dysfunction
Restatement of earlier directions
Conclusion
The appellant's ground of appeal and submissions
First issue: proving the appellant was not impotent
Second issue: significance of doubts about the appellant's evidence
Third issue: inconsistency leading to confusion
Application of the proviso
Consideration of grounds
First issue: proving the appellant was not impotent
Second issue: significance of doubts about the appellant's evidence
Third issue: inconsistency leading to confusion
Disposition of the appeal
Orders
BUSS P & MAZZA JA:
This is an appeal against conviction.
The appellant was charged on indictment with 17 counts of sex offending against his step-granddaughter (R). The offending allegedly occurred between 1999 and 2002. At that time, R was aged between 10 and 13 years and the appellant was aged between 57 and 61 years.
On 13 March 2018, after a retrial in the District Court before Davis DCJ and a jury, the appellant was convicted of 15 counts and acquitted of two counts.
On 20 July 2018, the trial judge imposed a total effective sentence of 8 years' imprisonment. A parole eligibility order was made.
During her summing up, her Honour misdirected the jury on a significant issue at the trial. We are not satisfied that no substantial miscarriage of justice was occasioned by the misdirection.
We would therefore allow the appeal, set aside the judgments of conviction and order a new trial. Our reasons are as follows.
The charged offences
Details of the counts charged in the indictment and the verdicts of the jury are as follows:
| Count | Offence (Code section) | Conduct alleged | Verdict |
| 'Bath incident' (Unknown date between 1/1/99 and 31/5/00) | |||
| 1 | Indecent dealing child under 13 years (s 320(4)) | Rubbing his penis against her stomach and vagina area | Guilty |
| 2 | Indecent dealing child under 13 years (s 320(4)) | Rubbing his penis against her buttocks and back area | Guilty |
| 3 | Indecent dealing child under 13 years (s 320(4)) | Placing her hand on his penis | Guilty |
| 'Bedroom incident' (Same unknown date as counts 1 - 3) | |||
| 4 | Indecent dealing child under 13 years (s 320(4)) | Touching her vagina with his hand | Guilty |
| 5 | Indecent dealing child under 13 years (s 320(4)) | Sucking her breast | Guilty |
| 6 | Sexually penetrating child under 13 years (s 320(2)) | Penetrating her vagina with his thumbs | Guilty |
| 'Bedwetting incident' (Unknown date between 1/8/99 and 31/12/00) | |||
| 7 | Sexually penetrating child under 13 years (s 320(2)) | Penetrating her vagina with his finger | Not Guilty |
| 'The Bill incident' (Unknown date between 1/1/02 and 31/12/02) | |||
| 8 | Indecent dealing child 13 - 16 years (s 321(4)) | Placing her hand on his penis | Guilty |
| 9 | Sexually penetrating child 13 - 16 years (s 321(2)) | Introducing his penis into her mouth | Guilty |
| 'Milo incident' (Unknown date between 1/1/02 and 31/12/02) | |||
| 10 | Indecent dealing child 13 - 16 years (s 321(4)) | Removing her clothing | Guilty |
| 11 | Sexually penetrating child 13 - 16 years (s 321(2)) | Introducing his penis into her mouth | Guilty |
| 'Seeds incident' (Unknown date between 1/1/02 and 31/12/02) | |||
| 12 | Sexually penetrating child 13 - 16 years (s 321(2)) | Penetrating her vagina with his tongue | Guilty |
| 13 | Sexually penetrating child 13 - 16 years (s 321(2)) | Penetrating her vagina with his fingers | Guilty |
| 14 | Sexually penetrating child 13 - 16 years (s 321(2)) | Penetrating her vagina with a penis shaped object | Guilty |
| 'Whispering incident' (Unknown date between 1/1/02 and 31/12/02) | |||
| 15 | Sexually penetrating child 13 - 16 years (s 321(2)) | Engaging in cunnilingus | Not Guilty |
| 'Jump camp incident' (Unknown date between 1/1/02 and 31/12/02) | |||
| 16 | Indecent dealing child 13 - 16 years (s 321(4)) | Placing her hand on his penis | Guilty |
| 'El Dorado flat incident' (Unknown date between 1/1/02 and 31/12/02) | |||
| 17 | Aggravated sexual penetration without consent (s 326) | Penetrating her vagina with his penis | Guilty |
The ground of appeal
The appellant relies upon one ground of appeal. The ground raises three distinct issues.
The first issue is whether the trial judge made a wrong decision on a question of law by directing the jury that the prosecution was not required to prove that the appellant was not impotent, or that he was otherwise physically capable of achieving an erection and/or ejaculating, at the time he was alleged to have committed the offences charged (ts 1919), or whether a miscarriage of justice was occasioned by that direction.
The second issue is whether her Honour made a wrong decision on a question of law by directing the jury that the jury could not 'find an issue against [the appellant] and that includes the issue of sexual dysfunction if what he said in his evidence or any other evidence you heard in this case [had] given rise to a reasonable doubt on that issue' (ts 1920), or whether a miscarriage of justice was occasioned by that direction.
The third issue is whether her Honour made a wrong decision on a question of law by directing the jury that if the jury had 'a doubt about [the appellant's] evidence of being 100 per cent impotent, that he wasn't capable of an erection and couldn't ejaculate or you don't believe what he said about this in his evidence, you have to put that aside' (ts 1920), or whether a miscarriage of justice was occasioned by that direction.
On 10 December 2018, Mazza JA granted leave to appeal on the ground of appeal.
The State's case and the appellant's case at trial
The State's case and the appellant's case at trial are set out in Mitchell JA's reasons. We will not repeat them except to the extent necessary to explain our reasons.
The ground of appeal: the first issue
We agree with Mitchell JA, generally for the reasons he gives, that the trial judge was correct in directing the jury that the prosecution was not required to prove that the appellant was not impotent or that he was otherwise physically capable of achieving an erection and/or ejaculating at the time he was alleged to have committed the offences charged. Her Honour did not make a wrong decision on a question of law and the direction she gave the jury did not occasion a miscarriage of justice.
The ground of appeal: the second and third issues
The appellant was retried between 20 February 2018 and 13 March 2018.
The trial judge's summing up extended over three sitting days as follows:
(a)on Thursday 8 March 2018 between 4.20 pm and 4.28 pm;
(b)on Friday 9 March 2018 between 10.12 am and 3.54 pm; and
(c)on Monday 12 March 2018 between 9.40 am and 11.18 am.
On 9 March 2018, there were the usual adjournments including a morning and a luncheon adjournment. On 9 and 12 March 2018, there were interchanges between her Honour, the prosecutor and defence counsel in the absence of the jury.
At the trial, R gave evidence to the effect that the appellant had committed the incidents of indecent dealing and sexual penetration alleged in the indictment. R's evidence was uncorroborated.
At the trial, the appellant gave evidence to the effect that he had never engaged in any sexual conduct (including the conduct alleged in the indictment) in relation to R. The appellant also gave evidence that at the material time he was unable to have an erection or ejaculate.
A summary of R's evidence is set out in Mitchell JA's reasons. We merely note the following:
(a)As to counts 1, 2 and 3, being the 'Bath incident', R gave evidence that the offending the subject of those counts had occurred in the course of one incident. R said in relation to count 1 that the appellant had slid her up and down against his erect penis. She said in relation to count 2 that she had felt the appellant's erect penis touching her bottom and back. She said in relation to count 3 that the appellant held her hand on his penis and moved it up and down until he ejaculated.
(b)As to counts 4, 5 and 6, being the 'Bedroom incident', R gave evidence that the offending the subject of those counts had occurred immediately after the 'Bath incident'. R's description of counts 4, 5 and 6 did not include an assertion that the appellant had an erect penis or that he had ejaculated.
(c)As to count 7, being the 'Bedwetting incident', R's description of that count did not include an assertion that the appellant had an erect penis or that he had ejaculated. In any event, the jury returned a verdict of not guilty on count 7.
(d)As to counts 8 and 9, being 'The Bill incident', R gave evidence that the offending the subject of those counts had occurred in the course of one incident. R said in relation to count 8 that the appellant was lying naked on the bed in his bedroom; R went to kiss him goodnight from the side of the bed; the appellant grabbed her and pulled her onto the bed; the appellant pulled the covers back; and the appellant put R's hand on his erect penis. She said in relation to count 9 that the appellant then forced her head onto his penis and used his hand to move her head up and down until he ejaculated into her mouth.
(e)As to counts 10 and 11, being the 'Milo incident', R gave evidence that the offending the subject of those counts had occurred in the course of one incident. R's description of count 10 did not include an assertion that the appellant had an erect penis or that he had ejaculated. However, she said in relation to count 11 that the appellant grabbed the back of her head and forced her mouth onto his erect penis and he moved her head up and down for a few minutes before he ejaculated into her mouth.
(f)As to counts 12, 13 and 14, being the 'Seeds incident', R's description of those counts did not include an assertion that the appellant had an erect penis or that he had ejaculated.
(g)As to count 15, being the 'Whispering incident', R's description of count 15 did not include an assertion that the appellant had an erect penis or that he had ejaculated. In any event, the jury returned a verdict of not guilty on that count.
(h)As to count 16, being the 'Jump camp incident', R gave evidence that she went into the appellant's bedroom; the appellant pulled down his shorts and pulled her onto the bed; the appellant's penis was erect; and the appellant held her hand on his penis and moved it up and down until he ejaculated.
(i)As to count 17, being the 'El Dorado flat incident', R gave evidence that, after he applied lubricant to his penis, the appellant forcefully penetrated her vagina with his penis.
As we have mentioned, the appellant gave evidence at the trial to the effect that he had never engaged in any sexual conduct (including the conduct alleged in the indictment) in relation to R.
At the trial, the appellant, the appellant's wife (K) and Dr John Spencer (a general medical practitioner whom the appellant had consulted between May 1999 and April 2004) gave evidence as to the appellant's alleged sexual dysfunction.
The appellant's evidence as to his alleged sexual dysfunction was, in effect, as follows:
(a)After a workplace injury in 1971, the appellant suffered from constant debilitating headaches. The pain made it difficult for him to have sexual intercourse. After 1971 he completed sexual intercourse up to and including ejaculation on only two or three occasions. The appellant experienced 'too much pain' and he therefore '[gave] it away' (ts 1430 - 1432).
(b)After a heart attack and a stroke in 1999, the appellant became '100 per cent sexually impotent'. He was unable to have an erection or ejaculate. The last time he was able to ejaculate was close to 1974 (ts 1437, 1440 - 1441). He attempted to obtain treatment but it was unsuccessful (ts 1456 - 1457).
(c)The offending conduct alleged in the indictment could not have occurred because at that time it was impossible for him to have an erection or to ejaculate (ts 1489, 1497, 1500, 1515, 1525, 1657).
(d)In 2008 and 2013, he acquired pornographic material, at K's suggestion, but his exposure to that material did not enable him to obtain an erection or to ejaculate (ts 1527 - 1528, 1574 - 1577).
K's evidence as to the appellant's alleged sexual dysfunction was, in effect, as follows:
(a)After a workplace injury in 1971, the appellant 'couldn't really do anything anymore' because of his 'shocking headaches' (ts 1666).
(b)There was some sexual play from time to time before the appellant had a heart attack in 1999, but it 'didn't do any good' (ts 1667).
(c)Since the appellant's heart attack and stroke in 1999, they had not attempted to have sexual relations (ts 1666 - 1668, 1717 - 1718, 1722, 1728 - 1729, 1757 - 1758).
(d)Since about 2008, the appellant had acquired, at her suggestion, pornographic material because the appellant had wanted 'to see if things would … work again' (ts 1706 - 1707, 1765 - 1768).
Dr Spencer's evidence as to the appellant's alleged sexual dysfunction was, in effect, as follows:
(a)The appellant consulted Dr Spencer from time to time between May 1999 and April 2004 (ts 1463).
(b)The first occasion on which the appellant mentioned sexual dysfunction to Dr Spencer was in March 2000. The appellant said that he was 'having problems with sustaining erections long enough to be useful'. The appellant told Dr Spencer that K had asked him to mention this issue. The appellant indicated that he was not particularly concerned (ts 1466 - 1467, 1475 - 1476).
(c)The next occasion on which the appellant mentioned sexual dysfunction to Dr Spencer was in September 2002. The appellant told Dr Spencer that his erectile function was deteriorating and that his erections were not lasting long enough. Dr Spencer noted that other medication that had been prescribed for the appellant meant that the appellant was unable safely to use Viagra. Dr Spencer checked the appellant's testosterone level. His level was normal, but that outcome was not inconsistent with the appellant experiencing sexual dysfunction (ts 1466, 1468, 1469, 1476).
(d)The final occasion on which the appellant mentioned sexual dysfunction to Dr Spencer was in February 2003. The appellant had ceased for some months taking certain prescribed medication and, as a result, Dr Spencer gave him one Viagra tablet. The appellant never reported to Dr Spencer whether he had taken the tablet and, if so, whether it had assisted in resolving his sexual dysfunction (ts 1468, 1479).
(e)Dr Spencer said that erectile dysfunction is in essence a self‑reported condition and that medical tests were not undertaken to confirm its existence (ts 1477).
The trial judge gave the jury conventional directions in relation to the presumption of innocence, the burden and standard of proof, the separate consideration of each charge in the indictment, the elements of each alleged offence and the drawing of inferences.
Her Honour directed the jury that:
(a)The jury could not convict the appellant of a charge unless the State had proved beyond reasonable doubt that he was guilty of that charge (ts 1844).
(b)If the jury had a reasonable doubt as to whether the appellant was guilty of a charge it was the jury's duty to find him not guilty of that charge (ts 1844).
(c)The State had to prove each element of each charge beyond reasonable doubt (ts 1845).
The trial judge made these observations as to the critical issue in relation to each charge and the significance of R's evidence:
So what are the issues you have to decide in this case? For each of these counts, the real issue is whether [the appellant] did the acts of indecent dealing and sexual penetration alleged by [R].
[R's] evidence is fundamental to the State's case on each of these charges. You could not deliver a verdict of guilty on any of these counts unless you're satisfied beyond reasonable doubt, from the evidence of [R], that [the appellant] did the specific act, the subject of each count (ts 1860).
Her Honour gave the jury a warning in accordance with Longman v The Queen.[1] Her Honour instructed the jury, relevantly, that 'it would be dangerous to convict [the appellant] on [R's] uncorroborated evidence, unless having scrutinised her evidence with great care, having considered the circumstances relevant to that evidence to which I have referred and taking full account of the warning I have just given you, you are satisfied beyond reasonable doubt as to its truth and accuracy' (ts 1893).
[1] Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79.
On Friday 9 March 2018 at 11.00 am, the trial judge gave the jury this direction in relation to the jury's approach to the appellant's evidence generally:
The fact that [the appellant] chose to give evidence does not mean he has assumed a responsibility of proving his innocence. [The appellant] doesn't have to prove his innocence. He doesn't have to satisfy you that these offences did not occur. It's for the State to satisfy you beyond reasonable doubt that they did.
[The appellant] giving evidence does not, in any way, detract from the important principles of our system of law that I've explained to you that the onus is on the State to prove the charges it presents. [The appellant] is presumed to be innocent of each charge until it has been proved beyond reasonable doubt.
I'm going to give you some directions now about how you should process the evidence which [the appellant] gave, and these directions follow from those principles I've just summarised for you. It may be that you believe all of [the appellant's] evidence. If you do, you must acquit him. You may think that although his evidence was not convincing it leaves you in a state of reasonable doubt about what the true position was.
Even if you were not to believe his evidence, you cannot find an issue against [the appellant] contrary to his evidence if his evidence, or any other evidence, has given rise to a reasonable doubt on that issue. It's very important for you to remember that the question for you to consider for each charge is whether, on the evidence before you, the State has proved the charge against [the appellant] beyond reasonable doubt.
If his evidence has given rise to reasonable doubt or any other evidence has given rise to reasonable doubt, then he is entitled to the benefit of that reasonable doubt and you cannot find him guilty of any charge.
Finally, even if you were not to accept [the appellant's] evidence, it does not automatically follow that you should find him guilty. If you do not believe his evidence, then you need to put his evidence to one side, and the reason why you do that is because [the appellant] doesn't have to prove anything in this trial.
So the question remains: Has the State, on the basis of the evidence that you accept, proved his guilt on each charge beyond reasonable doubt? You cannot simply decide that you prefer [R's] evidence. You couldn't convict [the appellant] unless, based on her evidence, you're satisfied of [the appellant's] guilt beyond reasonable doubt (ts 1869 - 1870).
On Friday 9 March 2018 between 3.14 pm and 3.25 pm, her Honour directed the jury on the evidence as to the appellant's alleged sexual dysfunction.
The trial judge made this comment:
In this trial there has been quite an issue made about [the appellant's] sexual functioning at the time of these alleged offences. What I call the issue of sexual dysfunction has turned out to be of some significance to the issues on the charges in this case, because for many of these counts [R's] evidence has been that [the appellant] had an erect penis and ejaculated. The issue of sexual dysfunction is certainly very relevant for count 17 where there is the allegation of penile penetration of her vagina at the Eldorado Flats (ts 1917). (emphasis added)
Her Honour then summarised the evidence and the submissions of the prosecutor and defence counsel concerning the appellant's alleged sexual dysfunction.
Next, the trial judge explained to the jury that she would give two directions about the evidence as to the appellant's alleged sexual dysfunction. Her Honour said:
The first direction I need to give you arises out of the State's submission to you that [the appellant] was exaggerating or even lying when he said he was 100 per cent sexually impotent.
This is like the previous direction I gave you. You need to make up your own mind about whether [the appellant] was exaggerating or lying about his sexual dysfunction as the State has submitted to you, and whether he was doing so deliberately.
If you do find that [the appellant] has exaggerated or lied about the extent of his sexual dysfunction as the State suggested, you must not follow a process of reasoning that that is evidence of [the appellant's] guilt. The fact that he has exaggerated or lied about how impotent he was, if you find that he's done so, is not evidence that he's guilty of these charges. It's only relevant to your assessment of [the appellant's] credibility.
The second direction I'm giving you arises from something [defence counsel] suggested to you during his closing address to you. He suggested more than once that the State had to prove that [the appellant] was not impotent.
This is not something which the State has to prove. The onus is on the State to prove beyond reasonable doubt the elements of each offence and the onus is on the State to prove beyond reasonable doubt that [the appellant] had a sexual interest in [R].
The State does not have to prove [the appellant's] sexual potency and the question of impotency or sexual dysfunction is not a defence which the State has to disprove before you can convict [the appellant] (ts 1919).
Her Honour then continued:
Of course, while this issue of impotence has been raised by [the appellant], he does not have any onus to prove that he was impotent. I'll remind you he has no onus of proof in this trial but he has through his evidence and the other evidence adduced as part of the defence case raised this issue of his impotence.
The evidence you have on the issue of sexual dysfunction is relevant to your assessment of the State case based on [R's] evidence. It's relevant to whether or not you can be satisfied beyond reasonable doubt that [the appellant] is guilty of the charges.
Remember the direction I gave you about the evidence from [the appellant]. If you do accept his evidence in relation to any of these counts, you will acquit him. You may think that although what he said in his evidence was not convincing, it leaves you in a state of reasonable doubt as to what the true position was.
You cannot find an issue against [the appellant] and that includes the issue of sexual dysfunction if what he said in his evidence or any other evidence you heard in this case has given rise to a reasonable doubt on that issue.
Further, even if you were not to accept what [the appellant] has said in his evidence, that doesn't mean that you should find him guilty. It just doesn't automatically follow. If you don't believe [the appellant], if you don't believe his evidence that he was 100 per cent sexually impotent then you put that evidence to one side.
The question will remain for each charge, has the State on the basis of the evidence that you do accept proved beyond reasonable doubt that [the appellant] is guilty of that charge?
So this is the approach that you should apply when you're looking at the evidence you have about [the appellant's] sexual dysfunction.
If you have a doubt about his evidence of being 100 per cent impotent, that he wasn't capable of an erection and couldn't ejaculate or you don't believe what he said about this in his evidence, you have to put that aside.
But the State doesn't have to actually prove that [the appellant] was not impotent. The State doesn't have to actually prove that he had full sexual function. What the State must prove on the basis of the evidence that you do accept is whether [the appellant] is guilty of any of these offences (ts 1919 - 1920). (emphasis added)
The passage from the trial judge's summing up which we have reproduced at [32] above reveals that her Honour told the jury that the issue of the appellant's alleged sexual dysfunction was 'of some significance to the issues on the charges in this case, because for many of these counts [R's] evidence has been that [the appellant] had an erect penis and ejaculated' (ts 1917).
The passage from her Honour's summing up which we have reproduced at [35] above reveals that her Honour gave the jury, in substance, these directions in relation to the jury's approach to the evidence as to the appellant's alleged sexual dysfunction:
(a)the evidence on the issue of the appellant's alleged sexual dysfunction was relevant to the jury's assessment of the State's case based on R's evidence; in particular, it was relevant to whether the jury could be satisfied beyond reasonable doubt that the appellant was guilty of the charges;
(b)the jury could not make a finding adverse to the appellant on the issue of sexual dysfunction if his evidence or any other evidence gave rise to a reasonable doubt as to whether, at the material time, the appellant was unable to have an erection or ejaculate;
(c)if the jury did not believe the appellant's evidence that, at the material time, he was 100% sexually impotent, then the jury should put that evidence aside and consider whether, on the basis of the evidence that the jury did accept in relation to each charge, the State had proved the appellant's guilt of that charge beyond reasonable doubt;
(d)similarly, if the jury had a doubt about the appellant's evidence that, at the material time, he was 100% sexually impotent then the jury should also put that evidence aside;
(e)the State did not have to prove that, at the material time, the appellant was not impotent or that he had full sexual function; and
(f)what the State had to prove was that, on the basis of the evidence that the jury accepted in relation to each charge, the appellant was guilty of that charge.
On Monday 12 March 2018 at 9.43 am, the trial judge reiterated to the jury her earlier directions concerning the elements of each charge and the burden and standard of proof (ts 1934 - 1935).
Her Honour also reiterated that the appellant did not bear any onus. Her Honour added:
First, if you believe [the appellant] you will acquit him. Secondly, if you think that what [the appellant] said in his evidence was not convincing but it leaves you in a state of reasonable doubt as to what the true position was, you would also acquit him. That's because even if you don't believe him, you can't find an issue against [the appellant] if what he said in his evidence or if any other evidence in this trial has given rise to a reasonable doubt on that issue.
Finally, if you are not to accept what [the appellant] said in his evidence it doesn't automatically follow that you should find him guilty. If you don't believe him, you need to put his evidence to one side and the question that remains for each charge will be has the State on the evidence that you do accept proved that [the appellant] is guilty of the charge beyond reasonable doubt (ts 1936 - 1937). (emphasis added)
The trial judge mentioned but did not repeat her earlier directions on the evidence as to the appellant's alleged sexual dysfunction. Her Honour merely said:
Finally, I gave you directions about what I call the issue of sexual dysfunction, the evidence about [whether the appellant] was capable of an erection or ejaculation at the time of these alleged offences.
And I gave you some directions arising from counsel's submissions to you about this issue. Now, I'm not going to go through those particular directions again. If you don't know that I'm talking about or you would like to hear these things again, let me know as soon as you retire. Write me a note and I can give you those directions again (ts 1939).
The jury did not request that her Honour give those directions again.
On 12 March 2018 at 11.18 am the jury retired to consider its verdicts.
On 13 March 2018 at 3.03 pm the jury returned with its verdicts.
It is trite that an impugned passage in a trial judge's summing up cannot be read in isolation, but must be evaluated in the context of the summing up as a whole. See Murray v The Queen.[2] The critical issue is whether the words spoken by the trial judge in his or her summing up are such that the jury would have derived an erroneous perception in relation to a material matter of fact or law. An appellate court must decide that issue by taking the summing up as a whole and as a jury listening to it might understand it. The issue is not to be decided upon a subtle examination of the transcript of the summing up or by giving undue prominence to any part of the summing up. See R v Dookheea.[3]
[2] Murray v The Queen [2002] HCA 26; (2002) 211 CLR 193 [72] (Kirby J).
[3] R v Dookheea [2017] HCA 36; (2017) 262 CLR 402 [37] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Edelman JJ).
In the present case, the trial judge told the jury, correctly, that the evidence as to the appellant's sexual dysfunction was 'of some significance to the issues on the charges' against the appellant because R had given evidence in relation to many of the charged offences that the appellant had an erect penis and had ejaculated in the course of committing those offences. In our opinion, the evidence as to the appellant's alleged sexual dysfunction related to a material matter of fact in that the evidence was of significance in relation to the appellant's defence.
Her Honour's direction to the jury during the afternoon of Friday 9 March 2018, in the course of her Honour's summing up about the evidence as to the appellant's alleged sexual dysfunction, that '[i]f you have a doubt about [the appellant's] evidence of being 100 per cent impotent, that he wasn't capable of an erection or couldn't ejaculate … you have to put that aside' (ts 1920), was erroneous. In our opinion, the misdirection related to a material matter of law in that the misdirection wrongly directed the jury as to how the jury should approach evidence that was significant to the appellant's defence.
If the jury had a reasonable doubt about the appellant's evidence as to his alleged sexual dysfunction, then the jury could not find that, at all material times, he was not impotent or that he was capable of an erection and ejaculation. Although the jury was entitled to put aside the appellant's evidence as to his alleged sexual dysfunction if they positively disbelieved it, the jury was not entitled to put that evidence aside if they had a reasonable doubt about whether his evidence was true. If the jury had a reasonable doubt about whether, at the material time, the appellant was capable of an erection or of ejaculating, that doubt had to be taken into account in evaluating the credibility and reliability of R's evidence in relation to all of the counts on the indictment (in particular, those counts on which the jury returned verdicts of guilty).
We have examined the trial judge's misdirection about the appellant's evidence concerning his alleged sexual dysfunction in the context of the summing up as a whole.
In our opinion, there is a real and substantial (as distinct from a remote) risk that:
(a)the jury would not have appreciated, after listening to the whole of the summing up, that the impugned direction was erroneous; and
(b)the jury would have formed the erroneous perception, after listening to the whole of the summing up, that if it had a reasonable doubt about the appellant's evidence as to his alleged sexual dysfunction, then that evidence should be put aside.
We are not persuaded that:
(a)her Honour's correct directions on the burden and standard of proof;
(b)her Honour's correct directions on the presumption of innocence and the absence of any onus on the appellant to prove any fact or circumstance;
(c)her Honour's correct direction, shortly before she gave the misdirection, that the jury 'cannot find an issue against [the appellant] and that includes the issue of sexual dysfunction if what he said in his evidence or any other evidence you heard in this case [had] given rise to a reasonable doubt on that issue' (ts 1920); and
(d)her Honour's correct direction during the morning of Monday 12 March 2018 that 'even if you don't believe him, you can't find an issue against [the appellant] if what he said in his evidence or if any other evidence in this trial has given rise to a reasonable doubt on that issue' (ts 1936),
cured her Honour's misdirection.
We note that the misdirection occurred in the course of specific directions given by the trial judge, during the afternoon of Friday 9 March 2018, in relation to the manner in which the jury was bound to approach the evidence as to the appellant's alleged sexual dysfunction. Although her Honour correctly directed the jury, shortly before she gave the misdirection, that the jury 'cannot find an issue against [the appellant] and that includes the issue of sexual dysfunction if what he said in his evidence or any other evidence you heard in this case has given rise to a reasonable doubt on that issue' (ts 1920), that direction in combination with the misdirection gave rise to a real and substantial (as distinct from a remote) risk of confusion. See the passages from her Honour's summing up reproduced at [35] above.
We also note that although the trial judge correctly directed the jury, during the morning of Monday 12 March 2018, that 'even if you don't believe him, you can't find an issue against [the appellant] if what he said in his evidence or if any other evidence in this trial has given rise to a reasonable doubt on that issue' (ts 1936), that direction was general in nature and not specific to the evidence as to the appellant's alleged sexual dysfunction. Further, that general direction was given shortly before her Honour told the jury that she would not repeat her earlier directions on the evidence as to the appellant's alleged sexual dysfunction. See the passages from her Honour's summing up reproduced at [39] - [40] above.
Her Honour's directions on the evidence as to the appellant's alleged sexual dysfunction were intended to be, and would have been understood by the jury to be, directions of law that the jury was required to follow.
It is true that defence counsel (who was not counsel for the appellant in the appeal) did not draw her Honour's attention to the misdirection. However, we are not persuaded that an inference adverse to the appellant's case on appeal can be drawn from defence counsel's failure.
Section 30(1) of the Criminal Appeals Act 2004 (WA) provides that s 30 applies in the case of an appeal against a conviction by an offender.
By s 30(2), unless under s 30(3) this court allows the appeal, it must dismiss the appeal.
Section 30(3) provides:
The Court of Appeal must allow the appeal if in its opinion -
(a)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; or
(b)the conviction should be set aside because of a wrong decision on a question of law by the judge; or
(c)there was a miscarriage of justice.
By s 30(4), despite s 30(3), even if a ground of appeal might be decided in favour of the offender, this court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.
The statutory direction in s 30(3) that this court must allow the appeal is conditional upon this court forming the opinion specified in par (a), par (b) or par (c).
A 'wrong decision on a question of law' within s 30(3)(b) includes misdirections on matters of substantive law and, also, misdirections on matters of adjectival law. See Weiss v The Queen;[4] Filippou v The Queen.[5]
[4] Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [17] - [18] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan & Heydon JJ).
[5] Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47 [13] (French CJ, Bell, Keane & Nettle JJ).
In Simic v The Queen,[6] Gibbs, Stephen, Mason, Murphy and Wilson JJ said, in effect, that the phrase a 'wrong decision on a question of law' by the judge refers to a wrong decision on a material point of law.
[6] Simic v The Queen [1980] HCA 25; (1980) 144 CLR 319, 327 - 328.
If a trial judge fails to give a direction that is required by law and the failure may have resulted in the conviction of the accused, the trial has not been conducted according to law and the conviction constitutes a miscarriage of justice. See KBT v The Queen.[7]
[7] KBT v The Queen [1997] HCA 54; (1997) 191 CLR 417, 424 (Brennan CJ, Toohey, Gaudron & Gummow JJ).
The expression 'miscarriage of justice' within s 30(3)(c), having regard to its historical context, refers to 'any departure from trial according to law, regardless of the nature or importance of that departure': Weiss [18] (original emphasis). See also King v The Queen.[8] Section 30(3)(c) covers cases where, as a consequence of irregularity or otherwise, an accused has not received a trial according to law or has not received a fair trial. See Weiss [45]; Filippou [14]. When the expression 'miscarriage of justice' in s 30(3)(c) is understood in that manner, the word 'substantial', in the context of the expression 'substantial miscarriage of justice' in the proviso in s 30(4), has work to do. See Weiss [18]; King [53].
[8] King v The Queen [2012] HCA 24; (2012) 245 CLR 588 [53] (French CJ, Crennan & Kiefel JJ).
Section 30(3)(b) may overlap in some circumstances with s 30(3)(c). See AK v The State of Western Australia;[9] Gassy v The Queen.[10]
[9] AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438 [47] (Gummow & Hayne JJ), [86] (Heydon J).
[10] Gassy v The Queen [2008] HCA 18; (2008) 236 CLR 293 [19] (Gummow & Hayne JJ).
The proviso in s 30(4) applies to par (a), par (b) and par (c) of s 30(3). See Filippou [15].
By s 30(3) read with s 30(4), two questions arise for determination. First, whether the appellate court '[is of the] opinion' specified in par (a), par (b) or par (c) of s 30(3) and, secondly, whether the court 'considers that no substantial miscarriage of justice has occurred' within s 30(4). See Perara-Cathcart v The Queen.[11]
[11] Perara-Cathcart v The Queen [2017] HCA 9; (2017) 260 CLR 595 [38] - [40], [48] (Kiefel, Bell & Keane JJ).
In the present case, we are of the opinion that the trial judge's misdirection involved a 'wrong decision on a question of law' by her Honour within s 30(3)(b) of the Criminal Appeals Act and, also, constituted a 'miscarriage of justice' within s 30(3)(c) of that Act.
The misdirection was both contrary to law and a departure from the requirements of a fair trial according to law. See Kalbasi v The State of Western Australia.[12] As we have mentioned, the misdirection wrongly directed the jury as to how the jury should approach evidence that was significant to the appellant's defence. The possibility cannot be excluded beyond reasonable doubt that the appellant has been denied a chance of acquittal which was fairly open to him. See Filippou [15]. The prejudicial scope of the misdirection, from the appellant's viewpoint, was not confined to count 17, which alleged, relevantly, that the appellant had penetrated R's vagina with his penis without her consent. It extended to the evidentiary basis upon which the jury was
bound to consider the credibility and reliability of R's evidence in relation to the other counts of which the appellant was convicted. After reviewing the trial record we are not satisfied that no substantial miscarriage of justice was occasioned by the misdirection.
[12] Kalbasi v The State of Western Australia [2018] HCA 7; (2018) 92 ALJR 305 [57] (Kiefel CJ, Bell, Keane and Gordon JJ).
Conclusion
We would allow the appeal, set aside the judgments of conviction and order a new trial on those counts in respect of which the jury returned verdicts of guilty.
MITCHELL JA:
Summary
The appellant was charged with 17 counts of sexual offending against the complainant, his step-granddaughter. The offending was alleged to have occurred from 1999 to 2002, when the complainant was 10 to 13 years old. The appellant was convicted of 15 of those counts at a retrial. The retrial followed this court's 2017 decision setting aside his earlier convictions.[13] He was sentenced to a total effective sentence of 8 years' imprisonment. The appellant now appeals against those convictions.
[13] DKA v The State of Western Australia [2017] WASCA 44.
The State's case depended on the jury accepting the complainant's uncorroborated evidence that the sexual conduct particularised in the indictment occurred.
The appellant gave evidence at trial denying that he had engaged in any sexual conduct with the complainant. The appellant also gave evidence that he was unable to have an erection or ejaculate at the time when the offences were alleged to have occurred.
Only one count alleged that the appellant penetrated the complainant's vagina with his penis. However, the complainant's evidence was that the appellant had an erection and ejaculated on all but one of the occasions of the appellant's alleged offending.
Leave to appeal has been granted on the sole ground of appeal. The ground seeks to impugn the following three sentences of the trial judge's lengthy direction, which all concern how the jury should treat the appellant's evidence of his sexual dysfunction: [14]
The State does not have to prove [the appellant's] sexual potency and the question of impotency or sexual dysfunction is not a defence which the State has to disprove before you can convict [the appellant].
…
You cannot find an issue against [the appellant] and that includes the issue of sexual dysfunction if what he said in his evidence or any other evidence you heard in this case has given rise to a reasonable doubt on that issue.
…
If you have a doubt about his evidence of being 100 per cent impotent, that he wasn't capable of an erection and couldn't ejaculate or you don't believe what he said about this in his evidence, you have to put that aside. (emphasis added)
I shall refer to these statements as the First, Second and Third Impugned Sentences respectively. I shall refer to the emphasised words as the italicised part of the Third Impugned Sentence.
[14] Trial ts 1919 - 1920.
In my view, the First Impugned Sentence was correct. Any error in the Second Impugned Sentence was to the appellant's benefit. The italicised part of the Third Impugned Sentence was incorrect, as the jury could not put the appellant's evidence aside if they merely had a doubt about it.
However, the Impugned Sentences are not to be considered in isolation. Rather, the trial judge's direction should be taken as a whole and as a jury listening to it might understand the direction. Considered as a whole, the trial judge's direction clearly conveyed to the jury that:
(1)the jury could deliver a 'guilty' verdict on a count only if the complainant's evidence proved, beyond reasonable doubt, that the appellant had engaged in the charged conduct; and
(2)even if the jury found the appellant's evidence (including as to sexual dysfunction) to be unconvincing, they must deliver a 'not guilty' verdict if his evidence or any other evidence gave rise to a reasonable doubt as to whether he had engaged in that conduct.
In my view, there is no real risk that a reasonable jury, having listened to the whole of the trial judge's direction, might have apprehended that they could put the appellant's evidence as to his sexual dysfunction aside if they merely had a doubt about it.
I will assume in the appellant's favour (without deciding) that the italicised part of the Third Impugned Sentence constituted a wrong decision on a question of law or an irregularity in the trial constituting a miscarriage of justice. On that assumption, in the circumstances described at [75] - [76] above, I am satisfied, having regard to the evidence and giving weight to the jury's verdicts, that no substantial miscarriage of justice has occurred. I would therefore dismiss the appeal on that basis.
Family relationships
The appellant was married to a woman (to whom it is convenient to refer as 'K') at the time of the alleged offences. Their son was the partner of the complainant's mother. The complainant has a brother (to whom it is convenient to refer as 'B') who gave evidence at trial.
Charged offences
The offences against the complainant alleged in the particular counts are as follows:
Count Offence (Code section) Conduct alleged Verdict 'Bath incident' (Unknown date between 1/1/99 and 31/5/00) 1
Indecent dealing child under 13 years (s 320(4))
Rubbing his penis against her stomach and vagina area
Guilty
2
Indecent dealing child under 13 years (s 320(4))
Rubbing his penis against her buttocks and back area
Guilty
3
Indecent dealing child under 13 years (s 320(4))
Placing her hand on his penis
Guilty
'Bedroom incident' (Same unknown date as counts 1 - 3) 4
Indecent dealing child under 13 years (s 320(4))
Touching her vagina with his hand
Guilty
5
Indecent dealing child under 13 years (s 320(4))
Sucking her breast
Guilty
6
Sexually penetrating child under 13 years (s 320(2))
Penetrating her vagina with his thumbs
Guilty
'Bedwetting incident' (Unknown date between 1/8/99 and 31/12/00)
7
Sexually penetrating child under 13 years (s 320(2))
Penetrating her vagina with his finger
Not Guilty
'The Bill incident' (Unknown date between 1/1/02 and 31/12/02)
8
Indecent dealing child 13 - 16 years (s 321(4))
Placing her hand on his penis
Guilty
9
Sexually penetrating child 13 - 16 years (s 321(2))
Introducing his penis into her mouth
Guilty
'Milo incident' (Unknown date between 1/1/02 and 31/12/02)
10
Indecent dealing child 13 - 16 years (s 321(4))
Removing her clothing
Guilty
11
Sexually penetrating child 13 - 16 years (s 321(2))
Introducing his penis into her mouth
Guilty
'Seeds incident' (Unknown date between 1/1/02 and 31/12/02)
12
Sexually penetrating child 13 - 16 years (s 321(2))
Penetrating her vagina with his tongue
Guilty
13
Sexually penetrating child 13 - 16 years (s 321(2))
Penetrating her vagina with his fingers
Guilty
14
Sexually penetrating child 13 - 16 years (s 321(2))
Penetrating her vagina with a penis shaped object
Guilty
'Whispering incident' (Unknown date between 1/1/02 and 31/12/02)
15
Sexually penetrating child 13 - 16 years (s 321(2))
Engaging in cunnilingus
Not Guilty
'Jump camp incident' (Unknown date between 1/1/02 and 31/12/02)
16
Indecent dealing child 13 - 16 years (s 321(4))
Placing her hand on his penis
Guilty
'El Dorado flat incident' (Unknown date between 1/1/02 and 31/12/02)
17
Sexual penetration without consent (s 326)
Penetrating her vagina with his penis
Guilty
Counts 1 - 6 were alleged to have been committed at the appellant and K's house. The balance of the counts were alleged to have been committed after the appellant and K moved into a 'granny flat' behind the complainant's house. Count 7 was alleged to have been committed at the complainant's house. Counts 8 - 16 were alleged to have been committed in the granny flat. Count 17 was alleged to have been committed at a vacant flat in a set of units at which the appellant collected rent money.
The State's case
The complainant gave the following evidence as to the charged conduct.
The bath and bedroom incidents (counts 1 - 6)
Counts 1 - 6 concerned events which were alleged to have occurred on the same occasion at the appellant's house on an unknown date between 1 January 1999 and 31 May 2000. Counts 1 - 3 were referred to as the 'bath incident', and counts 4 - 6 were referred to as the 'bedroom incident'.
Bath incident
The complainant said that K gave her a purple towel, which she wrapped herself in, and pushed her into the bathroom. K told the complainant she was having a bath with the appellant, who was already in the bath. He pulled the towel down and put her in the bath. The complainant said that the appellant slid her up and down his erect penis for about 30 seconds, and she felt his penis against her stomach and vagina (count 1). He then turned her around and moved her up and down against him for about 30 seconds. She felt his erect penis touching her bottom and back (count 2). The appellant then held the complainant's hand on his penis and moved it up and down until he ejaculated (count 3).[15]
Bedroom incident
[15] Trial ts 216 - 221, 228 - 230.
The appellant put the towel around the complainant and took her to the main bedroom. He opened the towel, placed it on the bed and laid her upon the towel. The appellant started to dry the complainant with the towel on her vagina area and nipples. The appellant touched the outside of the complainant's vagina with his fingers as he did so (count 4). The appellant then dried her legs, lent up and began sucking her breast saying 'it will help them grow' (count 5). The appellant then put some moisturiser on his hands, forced her legs open and touched her vagina with his hands. He put his thumbs inside her vagina (count 6).[16]
The bedwetting incident (count 7)
[16] Trial ts 231 - 234.
Count 7 concerned what was referred to at trial as the 'bedwetting incident'.
The complainant said that, when she was 12 years' old, the appellant came into her bedroom after she had been woken by dogs barking. The appellant put his hand over her mouth and lifted up her nightie after pulling back the sheets. He put his hand into her underwear and tried to put his fingers into her vagina, putting the whole of a fingertip past the lips of her vagina (count 7). He was interrupted by hearing the complainant's maternal grandmother going to the toilet, and left the room. The complainant then wet her bed. She was smacked by her maternal grandmother when she came into the room and told to clean it up.[17]
[17] Trial ts 239 - 241.
Evidence was led at trial which went to the issue of whether the 'bedwetting incident' occurred before the complainant turned 13 years old. As the appellant was acquitted of count 7 it is unnecessary to summarise this evidence.
The Bill incident (counts 8 and 9)
Counts 8 and 9 concerned what was referred to at trial as 'The Bill incident'. It allegedly occurred after the complainant had watched a television program, 'the Bill', with the appellant and K at the granny flat. The appellant went to his bedroom and K told the complainant to give him a kiss goodnight.[18]
[18] Trial ts 270 - 271.
When the appellant went into the bedroom, the appellant was lying naked on the bed. As she went to give him a kiss from the side of the bed, the appellant grabbed her and pulled her onto the bed. He pulled the covers back and put the complainant's hand on his erect penis (count 8). The appellant then touched the complainant's breast and vagina, putting his hand down her pants.[19]
[19] Trial ts 270 - 271.
The appellant then forced the complainant's head onto his penis, and used his hand to move her head up and down until he ejaculated into her mouth (count 9).[20]
The Milo incident (counts 10 and 11)
[20] Trial ts 271 - 272.
Counts 10 and 11 concerned what was referred to at trial as the 'Milo incident', on an occasion when the complainant visited the granny flat to have breakfast with the appellant, K and B.
The complainant's evidence was that, while they were at the table, the appellant tipped hot Milo onto her, and then took all of her clothes off with K and B present (count 10). The appellant then took the complainant to the shower and watched her shower. The appellant put K's dressing gown on the complainant and took her to the main bedroom where he put some pornography on the television. The appellant grabbed the back of the complainant's head and forced her mouth onto his erect penis. He moved her head up and down for a few minutes before ejaculating into her mouth (count 11).[21]
The seeds incident (counts 12 - 14)
[21] Trial ts 259 - 264.
Counts 12 - 14 related to what was referred to at trial as the 'seeds incident'.
The complainant's evidence was that she was outside gardening with K, who asked the complainant to get some seeds from the granny flat. The appellant was in the bedroom when the complainant was looking for the seeds. He pulled the curtains closed and came around to the bed. He put the complainant against the bed on her back, pulled down her pants and touched her breast. The appellant then put his tongue deep into her vagina (count 12).[22]
[22] Trial ts 272 - 274.
The appellant then placed the complainant on the bed with a pink towel under her bottom. The appellant took a green penis, which she had seen him make in the garage, and put lubricant on it. He forced it near, but not, into her vagina. The appellant pressed two fingers into her vagina, which caused bleeding (count 13). He then inserted the green penis into her vagina and pushed it in and out for a few minutes (count 14). The appellant stopped when the complainant heard a noise on the verandah. She put her pants on after the appellant wiped her vagina with the pink towel, and gave K the seeds.[23]
The whispering incident (count 15)
[23] Trial ts 274 - 277.
Count 15 involved what was referred to at trial as the 'whispering incident'.
The complainant's evidence was that she was lying on the bed in the granny flat on a weekend afternoon before her 14th birthday when she was in year 9. The next thing she remembered, the appellant was on top of her. She told him she could not breathe, and he responded 'I love it when people say that'. The appellant pulled down her jeans and underwear and licked her vagina with his tongue for a couple of minutes (count 15). She was able to push the appellant off her and get away.[24]
[24] Trial ts 267 - 269.
As noted above, the appellant was acquitted of count 15.
The jump camp incident (count 16)
Count 16 concerned the 'jump camp incident' which occurred the Friday night before the complainant was due to go to a junior netball umpiring training camp.
The complainant's mother told her to go the granny flat as her grandparents had some money for her to take to camp. When she arrived, K sent the complainant into the bedroom indicating that the appellant had some money for her. In the bedroom, the appellant pulled down the boxer shorts he was wearing and pulled the complainant onto the bed. She could see that his penis was erect. The appellant grabbed the complainant's hand, wrapped it around his penis and moved it up and down his penis (count 16). After a few minutes he ejaculated sperm over the complainant's hand.[25]
The El Dorado flat incident (count 17)
[25] Trial ts 265 - 267.
Count 17 was referred to at trial as the 'El Dorado flat incident', and allegedly occurred on a Sunday shortly before the complainant's 14th birthday.
The complainant's evidence was that the appellant took her to a unit and placed her on a bare mattress. The appellant bound her wrists with cable ties and gagged her by putting a singlet in her mouth. After putting lubricant on his penis, he forcibly penetrated her vagina with his penis (count 17). The complainant was struggling to breathe and was passing in and out of consciousness.[26]
Evidence as to appellant's sexual capacity and interest in the complainant
[26] Trial ts 279 - 288.
The complainant's brother, B, gave evidence of one occasion on which he observed the appellant watching a pornographic video with the complainant in the bedroom of the granny flat.[27] He gave evidence of another occasion when he saw the appellant and complainant in bed together, with the appellant wearing no shirt, under the sheet and moving up and down on top of the complainant.[28] Later that day, the appellant held a rifle to B's head and said that he would shoot B and his family if he told anyone what he had seen.[29] The appellant was subsequently convicted of threatening to unlawfully kill B.[30]
[27] Trial ts 442 - 444.
[28] Trial ts 444 - 445.
[29] Trial ts 446 - 447.
[30] Trial ts 1314.
B gave evidence that he had found a pornographic video tape and a large packet of condoms in the granny flat when he was 11 or 12 years old.[31] The appellant's son gave evidence that he located pornographic magazines under the appellant's side of his bed in about 2002.[32] Police officers located pornographic videos at various locations in the granny flat during a search on 31 March 2015.[33]
Direct evidence of the appellant's sexual capacity
[31] Trial ts 448 - 450.
[32] Trial ts 1165, 1172, 1206, 1214.
[33] Trial ts 1357 - 1362.
The complainant described the appellant having an erect penis and ejaculating on all of the occasions described above, other than the 'bedwetting incident' (count 7), the 'seeds incident' (counts 12 - 14) and the 'whispering incident' (count 15). While the complainant did not describe the appellant having an erection during the 'bedroom incident' (counts 4 - 6), it immediately followed the 'bath incident' (counts 1 - 3), in which she described him having an erection and ejaculating.
The appellant was acquitted of counts 7 and 15, so that the 'seeds incident' was the only occasion on which the appellant was convicted of offences without any evidence of him having an erect penis and ejaculating.
The defence case
Denial of offending
The appellant gave evidence at trial in which he denied ever engaging in any sexual conduct with the complainant.
The appellant also gave evidence indicating that some of the occasions the complainant described either could not have occurred, or did not occur in the manner the complainant described. He was supported to some extent by K's evidence at trial.
Both K and the appellant denied that the appellant used the bath, or that the complainant ever shared a bath with the appellant.[34] Both the appellant and K said that they would not have allowed the complainant or B to watch 'The Bill' as they were growing up.[35] K said that she never allowed the complainant to be alone with the appellant in the bedroom of the granny flat for any purpose.[36] Both the appellant and K gave evidence of an incident where the complainant spilled some Milo on herself. Both gave evidence that K rather than the appellant took the complainant's clothes off and washed her in the bathroom.[37] Both the appellant and K gave evidence that K did not keep anything required for her gardening needs in their bedroom.[38] K gave evidence that, rather than involving the appellant, she directly gave the complainant some money before the netball camp weekend.[39] K gave evidence that, particularly after the complainant's mother said she was not happy about her children going to see tenants in the flats, the children would sit in the car with K whenever the appellant went to collect rent.[40]
Appellant's evidence as to sexual incapacity
[34] Trial ts 1486, 1563 - 1564, 1671 - 1672, 1673 - 1674.
[35] Trial ts 1496 - 1497, 1675.
[36] Trial ts 1675.
[37] Trial ts 1497 - 1499, 1616 - 1617, 1676 - 1677.
[38] Trial ts 1507, 1512, 1681.
[39] Trial ts 1685 - 1687.
[40] Trial ts 1687 - 1688.
The appellant's evidence was to the effect that, following a workplace injury in 1971 and treatment for that injury, he suffered from constant debilitating headaches. The pain from those headaches made it difficult for him to have sexual intercourse, and he only completed sexual intercourse two or three times after 1971. The appellant said that 'it was too much pain' so he 'gave it away'.[41]
[41] Trial ts 1430 - 1432.
The appellant's evidence was that, following a heart attack and stroke which he suffered in 1999, he became '100 per cent sexually impotent'. After that time, he was unable to get erections or achieve ejaculation at all. He said that the last time he had been able to achieve ejaculation was close to 1974.[42] His attempts to seek treatment were unsuccessful.[43]
[42] Trial ts 1437, 1440 - 1441.
[43] Trial ts 1456 - 1457.
At various points in his evidence, the appellant said that the alleged conduct could not have occurred as it was impossible for him to have had an erection or ejaculate.[44]
[44] Trial ts 1489, 1497, 1500, 1515, 1525, 1657.
The appellant accepted that he bought pornographic material in 2008 and 2013 at K's suggestion, but said that it didn't have any effect.[45]
K's evidence as to the appellant's sexual incapacity
[45] Trial ts 1527 - 1528, 1574 - 1577.
K's evidence was that, after the appellant's work injury in 1971, he 'couldn't really do anything anymore' due to 'shocking headaches'. While there was sexual play from time to time before his heart attack, it 'didn't do any good'. They had not tried to have sexual relations after the appellant's heart attack.[46] She said that the appellant had pornographic material from about 2008.[47]
Medical evidence as to the appellant's sexual dysfunction
[46] Trial ts 1666 - 1668, 1717 - 1718, 1722, 1728 - 1729, 1757 - 1758.
[47] Trial ts 1706 - 1707, 1765 - 1768.
Dr Spencer is a general practitioner who the appellant consulted between May 1999 and April 2004.
The first time the appellant mentioned sexual dysfunction to Dr Spencer was at an appointment in March 2000, when the appellant reported that he was 'having problems with sustaining erections long enough to be useful'. The appellant told Dr Spencer that his wife told him to mention this, and that he was not that concerned.[48]
[48] Trial ts 1466 - 1467, 1475 - 1476.
The next time the appellant mentioned sexual dysfunction to Dr Spencer was at an appointment in September 2002. The appellant indicated that his erectile function was deteriorating and that his erections were not lasting long enough. Dr Spencer noted that other medication being taken by the appellant meant that he was unable to be prescribed Viagra safely. Dr Spencer decided to check the appellant's testosterone level, which proved to be normal (which was not inconsistent with the appellant suffering from sexual dysfunction).[49]
[49] Trial ts 1468, 1469, 1476.
The final consultation on which the issue of sexual dysfunction arose was in February 2003. The appellant reported that he had been off a certain medication for some months and so Dr Spencer gave him a single Viagra tablet. The appellant never reported the results of taking that tablet.[50]
[50] Trial ts 1468, 1479.
Dr Spencer indicated that erectile dysfunction was essentially a self-reported condition and medical tests were not performed to confirm the existence of dysfunction.[51]
[51] Trial ts 1477.
The trial judge's direction
The trial judge gave a lengthy direction to the jury. It began with a short direction at the end of the sitting on Thursday 8 March 2018, and occupied the whole of Friday 9 March 2018. It resumed at 9.40 am on Monday 12 March 2018 and concluded when the jury retired at 11.18 am on that day. The direction runs from pages 1843 to 1972 of the transcript.
Onus and standard of proof
In her short direction on 8 March 2018, the trial judge referred to the presumption of innocence and explained:[52]
The burden of proving each charge is on the State. The standard to which it must do so is beyond reasonable doubt. You cannot convict [the appellant] of any charge, unless the State has satisfied beyond reasonable doubt, that he's guilty of that charge.
Beyond reasonable doubt is a high standard, it is the highest standard known to the law. For each charge or count, you cannot return a verdict of guilty unless you are satisfied beyond reasonable doubt, that evidence has been produced in this trial that proves [the appellant] is guilty of the offence as charged.
If you have a reasonable doubt as to whether he is guilty, he gets the benefit of that reasonable doubt and it is your duty to find him not guilty and return a verdict of acquittal.
[52] Trial ts 1844.
After referring to the need to separately consider each charge, the trial judge said:[53]
[The prosecutor] said to you, quite correctly, in his closing addresses, that the State doesn't have to prove everything in this trial beyond reasonable doubt. The State does have to prove each element of each charge, beyond reasonable doubt.
So I'll explain what it is the State has to prove beyond reasonable doubt, tomorrow.
[53] Trial ts 1845.
The trial judge then outlined the topics to be addressed after her Honour had 'gone through the elements'.[54]
Elements of the offences
[54] Trial ts 1845.
When the trial judge's directions resumed on 9 March 2018, her Honour gave the jury directions about the elements of the offences.
The trial judge instructed the jury that the State did not need to prove beyond reasonable doubt that the offence was committed in the date range or the place specified in the indictment. The trial judge then referred to the identity of the appellant as the person said to have offended against the complainant, and that the complainant was a child of a certain age, as elements common to all offences which the State had to prove beyond reasonable doubt. The trial judge noted that there was no issue with identity or, except in relation to count 7, with the age of the complainant at the time of the alleged offences.[55]
[55] Trial ts 1853 - 1855.
The trial judge then identified two elements of the indecent dealing charges which the State had to prove beyond reasonable doubt:[56]
(1)that the appellant dealt with the complainant; and
(2)that the dealing was indecent.
[56] Trial ts 1855.
After explaining those concepts, the trial judge said:[57]
It's going to be a matter for you to decide whether you're satisfied beyond reasonable doubt, from the evidence, that each act, the subject of these counts, occurred as [the complainant] has alleged, and if they did, whether that was indecent.
[57] Trial ts 1856.
The trial judge then directed the jury that, for each of the sexual penetration counts, the State had to prove that the appellant sexually penetrated the complainant.[58] The trial judge explained what was involved in each of the kinds of sexual penetration charged in the indictment.[59] Her Honour then said:[60]
Now, [the appellant] has denied that there was any sexual penetration, as alleged, in any of these counts. The defence case is that these things not only just did not happen but also could not have happened.
It’s going to be a matter for you to decide whether [you're] satisfied beyond reasonable doubt that a penetration, the subject of these counts, occurred as [the complainant] alleged. If you are so satisfied, you would return a verdict of guilty for [counts 6, 9, and 11 - 15].
[58] Trial ts 1856.
[59] Trial ts 1856 - 1857.
[60] Trial ts 1857 - 1858.
The trial judge identified two elements of count 17 which the State had to prove beyond reasonable doubt:[61]
(1)the appellant sexually penetrated the complainant, by penetrating her vagina with his penis; and
(2)the sexual penetration took place without the complainant's consent.
The trial judge noted that there was no issue as to the circumstances of aggravation alleged in relation to count 17 - that the complainant was a child of or over the age of 13 and under the age of 16 years.[62]
[61] Trial ts 1858 - 1859.
[62] Trial ts 1859.
The trial judge concluded her directions on the elements of the offences with the following observations:[63]
So what are the issues you have to decide in this case? For each of these counts, the real issue is whether [the appellant] did the acts of indecent dealing and sexual penetration alleged by [the complainant].
[The complainant's] evidence is fundamental to the State's case on each of these charges. You could not deliver a verdict of guilty on any of these counts unless you’re satisfied beyond reasonable doubt, from the evidence of [the complainant], that [the appellant] did the specific act, the subject of each count.
The appellant's evidence
[63] Trial ts 1860.
The trial judge then turned to give directions about various aspects of the evidence. Her Honour gave the following directions, of the kind contemplated in Liberato v The Queen,[64] in relation to the appellant's evidence at trial:[65]
[64] Liberato v The Queen (1985) 159 CLR 507, 515.
[65] Trial ts 1869 - 1870.
The fact that [the appellant] chose to give evidence does not mean he has assumed a responsibility of proving his innocence. [The appellant] doesn't have to prove his innocence. He doesn't have to satisfy you that these offences did not occur. It's for the State to satisfy you beyond reasonable doubt that they did.
[The appellant] giving evidence does not, in any way, detract from the important principles of our system of law that I've explained to you that the onus is on the State to prove the charges it presents. The [appellant] is presumed to be innocent of each charge until it has been proved beyond reasonable doubt.
I'm going to give you some directions now about how you should process the evidence which [the appellant] gave, and these directions follow from those principles I've just summarised for you. It may be that you believe all of [the appellant's] evidence. If you do, you must acquit him. You may think that although his evidence was not convincing it leaves you in a state of reasonable doubt about what the true position was.
Even if you were not to believe his evidence, you cannot find an issue against [the appellant] contrary to his evidence if his evidence, or any other evidence, has given rise to a reasonable doubt on that issue. It's very important for you to remember that the question for you to consider for each charge is whether, on the evidence before you, the State has proved the charge against [the appellant] beyond reasonable doubt.
If his evidence has given rise to reasonable doubt or any other evidence has given rise to reasonable doubt, then he is entitled to the benefit of that reasonable doubt and you cannot find him guilty of any charge.
Finally, even if you were not to accept [the appellant's] evidence, it does not automatically follow that you should find him guilty. If you do not believe his evidence, then you need to put his evidence to one side, and the reason why you do that is because [the appellant] doesn't have to prove anything in this trial.
So the question remains: Has the State, on the basis of the evidence that you accept, proved his guilt on each charge beyond reasonable doubt? You cannot simply decide that you prefer [the complainant's] evidence. You couldn't convict [the appellant] unless, based on her evidence, you're satisfied of [the appellant's] guilt beyond reasonable doubt.
Delay and the complainant's evidence
The trial judge gave the jury a direction of the kind contemplated by the High Court of Australia in Longman v The Queen.[66] After referring to the passage of time since the events the subject of the charges, and the complainant's young age at that time, the trial judge said:[67]
[The complainant] is the only witness against [the appellant] as to the happening of the specific incidents, the subject of these counts. While there has been other evidence as to occasion and opportunity, no other witness has confirmed or corroborated [the complainant's] evidence as to the offences themselves.
[66] Longman v The Queen (1989) 168 CLR 79, 90 - 91.
[67] Trial ts 1887.
The trial judge referred to B's evidence, noted at [103] above, and said that it did not appear that what B saw was any one of the charged incidents. Her Honour said:[68]
It’s a matter for you, but the evidence of [B] probably does not amount to corroboration of [the complainant's] evidence as to any of the offences as charged. So that's why I say, while there's evidence of occasion and opportunity and lots of evidence - you've heard about dates and times, people move to Orana Drive, things that children generally did, where they generally stayed, that sort of thing - no other witness has confirmed or corroborated [the complainant's] evidence as to the offences themselves.
The delay which has occurred since the incidents alleged in each count and the age which [the complainant] was at the time means that you must be very careful when you are evaluating her evidence. Because of the crucial nature of [the complainant's] evidence in this case and because of the seriousness of the allegations she makes, you should scrutinise her evidence with special care.
[68] Trial ts 1887.
The trial judge directed the jury as the manner in which delay could affect the reliability of the complainant's evidence, and the forensic disadvantages which delay occasioned the appellant, including:[69]
Finally, had a prompt complaint been made, relevant to all the counts where it is alleged that [the appellant] had an erect penis, or ejaculated, [the appellant] may have been able to provide - or obtain, further medical evidence in relation to either or both, of his sexual dysfunction, or the headaches he suffered from as he described in his evidence, from any doctor he consulted in relation to those two issues, before he began seeing Dr Spencer after his heart attack and stroke in 1999.
[69] Trial ts 1892.
The trial judge concluded the Longman warning by instructing the jury that:[70]
Because of the delay it is particularly important you scrutinise [the complainant's] evidence with special care.
You are at liberty to act on her evidence to convict [the appellant] of any of these counts, if you are satisfied of the truth and accuracy of her evidence.
But it would be dangerous to convict him on her uncorroborated evidence, unless having scrutinised her evidence with great care, having considered the circumstances relevant to that evidence to which I have referred and taking full account of the warning I have just given you, you are satisfied beyond reasonable doubt as to its truth and accuracy.
Inferences
[70] Trial ts 1892 - 1893.
The trial judge gave the jury standard directions as to how they could draw inferences from other facts established by the evidence.[71] Her Honour referred to a number of issues on which the State invited the jury to draw inferences, including:[72]
[The appellant's] sexual dysfunction and what you can conclude about various items that were found at different times in [the appellant's] home: the pornographic movies, the magazines, the lubricant, condoms.
[71] Trial ts 1894 - 1896.
[72] Trial ts 1894.
After explaining the process of drawing inferences, the trial judge directed the jury:[73]
So when the State has asked you to draw an inference on a particular issue, in this case, you don't consider the facts in isolation. You consider them as a whole and you determine whether the inference the State has asked you to draw is the only inference reasonably available on the facts, whatever you find those facts to be.
If there’s another inference reasonably available, on the facts as you find them, then you should not draw the inference that the State has asked you to draw. So that's the approach you should use when the State has asked you to draw an inference.
As a matter of fact, acceptance of the complainant's evidence would carry with it a conclusion that the appellant must have been capable of sustaining an erection and ejaculating in the manner the complainant described. However, the jury did not need to be satisfied beyond reasonable doubt that the appellant was impotent before deciding whether it was satisfied beyond reasonable doubt that the accused engaged in the charged conduct.
In these circumstances, the trial judge was correct to direct the jury that the State did not have to prove the appellant's sexual potency and the question of impotency or sexual dysfunction was not a defence which the State had to disprove before the jury could convict the appellant.
Second issue: significance of doubts about the appellant's evidence
Looked at in isolation, the italicised part of the Third Impugned Sentence is a wrong direction. That part of the Third Impugned Sentence, looked at in isolation, indicates that the jury could put the appellant's evidence that he was '100 per cent impotent' aside if they merely had a doubt about that evidence (as opposed to disbelieved it). The State did not have to prove absence of impotence and sexual dysfunction. However, the jury could take the appellant's evidence as to those matters into account in determining whether or not they were satisfied that he engaged in the charged conduct. The jury could do so even if, although they did not positively believe that evidence, they thought it might be true.
The direction Brennan J contemplated in Liberato, a rape case where there were conflicting accounts on the issue of consent and the state of mind of the accused persons as to consent, was as follows:[104]
When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue. (515) (emphasis added)
[104] Liberato (515).
This court recently summarised the principles governing the giving of this direction in Ruthsalz v The State of Western Australia:[105]
It is well-established that a Liberato direction is not required as a matter of law. … Such a direction should be given, however, if, in the circumstances of the particular case, there is a real (as distinct from a fanciful) risk that the jury may otherwise have the impression that disbelief of an accused's evidence, or preference for a complainant's evidence, means that the State has proved its case beyond reasonable doubt.
In Koushappis v The State of Western Australia,[106] Roberts Smith JA (McLure & Buss JJA agreeing) approved this form of direction suggested by Kirby J (Sheller JA & Dowd J agreeing) in R v Anderson:[107]
First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you find difficulty in accepting the evidence of the accused, but think that it might be true, then you must acquit.
Third, if you do not believe the accused, then you should put his testimony to one side. The question will remain; has the Crown, upon the basis of evidence that you do accept, proved the guilt of the accused beyond reasonable doubt? [26]
(emphasis added)
[105] Ruthsalz v The State of Western Australia [2018] WASCA 178 [191] - [192].
[106] Koushappis v The State of Western Australia [2007] WASCA 26; (2007) 168 A Crim R 51 [100], [104].
[107] R v Anderson [2001] NSWCCA 488; (2001) 127 A Crim R 116. See also Azarian v The State of Western Australia [2007] WASCA 249; (2007) 178 A Crim R 19 [114] (Miller JA); Johnson v The State of Western Australia [2008] WASCA 164; (2008) 186 A Crim R 531 [27] ‑ [31] (Buss JA).
The italicised part of the Third Impugned Sentence is inconsistent with the emphasised parts of the passages quoted at [176] and [177] above. Those emphasised parts recognised that an accused person's evidence may give rise to a reasonable doubt as to an element of the offence even if the jury does not positively believe it. Considered in isolation, the italicised part of the Third Impugned Sentence requires the jury to discount the appellant's evidence that he was '100 per cent impotent', even if they thought it might have been true. That would incorrectly preclude the jury from taking that evidence into account when considering whether they were satisfied, beyond reasonable doubt, that the appellant engaged in the charged sexual conduct.
However, that part of the trial judge's direction is not to be considered in isolation. As Barwick CJ noted in La Fontaine v The Queen:[108]
[A] time-honoured view is that the adequacy of a summing up ought not to be judged upon a subtle examination of its transcript record or by undue prominence being given to any of its parts. It should be taken as a whole and as a jury listening to it might understand it.
[108] La Fontaine v The Queen (1976) 136 CLR 62, 73. See also, to similar effect, Gibbs J at 81, Mason J at 87. The High Court endorsed this approach in R v Dookheea [2017] HCA 36; (2017) 262 CLR 402 [37].
This court has adopted that approach on many occasions, including in relation to an allegedly deficient Liberato direction in Cooper v The State of Western Australia.[109] In that case Pullin JA, with whom Jenkins J agreed, said:[110]
It has been said on many occasions that appellants should not seek to isolate just a few words in a lengthy summing up, and seek to establish error by reference only to those words. It is necessary to read the summing up as a whole. Having read the whole of the judge's summing up, including the answer given to the jury's question, no error is revealed. The trial judge did not err in directions to the jury in relation to the standard and burden of proof. The directions did not suggest to the jury that their task was to determine the guilt of the appellant solely by deciding which evidence they preferred and did not suggest at all that the appellant bore any onus of proof.
[109] Cooper v The State of Western Australia [2010] WASCA 190.
[110] Cooper [23].
In the same case Buss JA,[111] with whom Jenkins J also agreed, adopted the following passage of Kirby J in Murray v The Queen:[112]
[111] Cooper [54].
[112] Murray v The Queen [2002] HCA 26; (2002) 211 CLR 193 [72].
[I]t is a cardinal principle of appellate scrutiny of judicial instructions to a jury that regard must be had to:
(1)The character of the communication. It obliges a real contact by the judge with the collective mind of the jury fresh from having heard the evidence. It does not call for a convoluted legal essay whose only merit is that it might protect the judge from appellate reversal; and
(2)The entirety of the communication. Particular passages in the instructions must be read and understood in the light of ‑
(a)the issues actually fought at the trial;
(b)the addresses to the jury by trial counsel that immediately preceded the judge's instructions;
(c)any consideration and discussion between the judge and counsel prior to the instructions as to their content; and
(d)the entire content of the instructions, taken as a whole. It is a basic mistake to isolate any judicial (or other) utterances and to consider them out of context. But it is especially mistaken to take parts of a judicial communication with a jury in a criminal trial in isolation from the context. (citations omitted)
In Cooper Buss JA identified the critical question in the following terms:[113]
The critical question raised by the ground of appeal is whether, in the context of the trial judge's summing up as a whole, there was a real (as distinct from a fanciful) risk that the four sentences complained of by the appellant may have been understood by the jury as suggesting that:
(a)their task included deciding who, as between the complainant and the appellant, was to be believed and, if that question was answered adversely to the appellant, concluding that the State had proved its case against him beyond reasonable doubt; or
(b)the appellant bore an onus of proof. (emphasis added)
[113] Cooper [53].
As the decision in La Fontaine, and this court's decision in Cox v The State of Western Australia,[114] illustrate, a misstatement of the applicable legal principle on one occasion may be corrected by other parts of the direction. It is the overall effect of the direction that is to be considered.
[114] Cox v The State of Western Australia [2011] WASCA 30; (2011) 205 A Crim R 503 [58] - [63].
It is well established that an appellate court must act upon the assumption that jurors understand and obey directions of law given by a trial judge.[115] However, consistently with the above authorities, that assumption must be applied to the direction as a whole, as a reasonable jury listening to the direction would have understood it.
[115] Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237 [28] - [29].
In my view, when the direction of the trial judge in the present case is considered as a whole, there is no real (as distinct from fanciful) risk that a reasonable jury might have understood that they could put the appellant's evidence as to his impotence to one side if they merely had a doubt about that evidence. That is so for the following reasons, considered in combination.
First, the trial judge repeatedly emphasised the onus on the State to satisfy the jury beyond reasonable doubt of each element of the charged offences before the appellant could be convicted.
Secondly, the trial judge's direction made it clear to the jury that their satisfaction of those elements depended on their acceptance of the complainant's evidence, which they must scrutinise with special care in light of the delay and attended forensic disadvantage suffered by the appellant.
Thirdly, both before and after the impugned passage the trial judge gave Liberato directions which contained statements to the effect that:[116]
You may think that although his evidence was not convincing it leaves you in a state of reasonable doubt about what the true position was.
Even if you were not to believe his evidence, you cannot find an issue against [the appellant] contrary to his evidence if his evidence, or any other evidence, has given rise to a reasonable doubt on that issue.
and that:[117]
Secondly, if you think that what he said in his evidence was not convincing but it leaves you in a state of reasonable doubt as to what the true position was, you would also acquit him. That's because even if you don't believe him, you can't find an issue against [the appellant] if what he said in his evidence or if any other evidence in this trial has given rise to a reasonable doubt on that issue.
[116] See [131] and [151] above.
[117] See [131] and [151] above.
Fourthly, while the impugned direction dealt specifically with the appellant's evidence that he was '100 per cent impotent', it was presented as a repetition of the Liberato direction previously given. The trial judge began the impugned passage by inviting the jury to:[118]
Remember the direction I gave you about the evidence from [the appellant].
Therefore, the direction did not indicate that the principles which had been stated in relation to the use of the appellant's evidence operated differently in relation to evidence about impotence. Rather, the trial judge was indicating that those previously stated principles applied to that evidence.
[118] See [148] above.
Fifthly, shortly before the incorrect statement in the impugned passage the trial judge said:[119]
You may think that although what he said in his evidence was not convincing, it leaves you in a state of reasonable doubt as to what the true position was.
You cannot find an issue against [the appellant] and that includes the issue of sexual dysfunction if what he said in his evidence or any other evidence you heard in this case has given rise to a reasonable doubt on that issue.
[119] See [148] above.
Sixthly, the impact of the italicised part of the Third Impugned Sentence would have been lessened by the combination of the misstatement with the correct statement that the jury could put aside the appellant's evidence about impotence if they did not believe it. As noted above, the direction must be considered as the jury would have heard it. A jury will not analyse the components of the sentence as it appears in the transcript in the manner in which the appellant's submissions address the difficulties with the Third Impugned Sentence. As the plurality noted in Radio 2UE Sydney Pty Ltd v Chesterton,[120] the answer to the question as to how a jury would have understood a judge's direction is not provided by a close examination of the words appearing in the transcript of directions, with a lawyer's eye for fine distinctions.
[120] Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; (2009) 238 CLR 460 [58].
When the trial judge's direction is considered as a whole, considering how the jury would have heard the oral direction, it was made clear that:
(1)the jury could deliver a 'guilty' verdict only if the complainant's evidence proved, beyond reasonable doubt, that the appellant had engaged in the charged conduct; and
(2)even if the jury found the appellant's evidence (including as to sexual dysfunction) to be unconvincing, they must deliver a 'not guilty' verdict if his evidence or any other evidence gave rise to a reasonable doubt as to whether he had engaged in that conduct.
In my view, there was no real risk that a reasonable jury, having listened to the whole of the trial judge's direction, might have apprehended that they could put the appellant's evidence as to his sexual dysfunction aside if they merely had a doubt about it. Nor is there any real risk that a reasonable jury would have apprehended that their task was to choose which of the competing accounts of the complainant and appellant they preferred, as opposed to determining whether the State had proved the commission of the offences beyond reasonable doubt.
I note one matter on which I do not rely in reaching the conclusions set out in the previous paragraph. In some circumstances, absence of objection by trial counsel may be a cogent consideration in assessing the possible impact of a misstatement.[121] However, in the present case, the direction as to sexual dysfunction had been debated with counsel and the trial judge ruled that a direction (which included the terms of the Third Impugned Sentence) would be given.[122] When the trial judge asked counsel if there was any matter of law counsel wished to raise at the conclusion of her charge, the appellant's trial counsel responded:[123]
Nothing I haven't already said, your Honour.
Counsel could reasonably be taken to have assumed that the Third Impugned Sentence had already been the subject of a ruling. In these circumstances, I do not attach any weight to trial counsel's failure to take issue with the specific statement that the jury could put aside the appellant's evidence as to sexual dysfunction if they had a doubt about it.
[121] Dookheea [37].
[122] Trial ts 1832 - 1835.
[123] Trial ts 1972 - 1973.
I shall turn to address the significance of the above conclusions for the disposition of the appeal after addressing the third submission advanced by the appellant's counsel.
Third issue: inconsistency leading to confusion
The appellant's third submission is to the effect that inconsistency between the Impugned Sentences gave rise to a risk of confusing the jury.
I have already concluded that the direction, taken as a whole, made it clear that the jury could not put aside the appellant's evidence if they merely had a doubt about it. In my view, when the direction is taken as a whole as the jury would have heard it, there was no real risk that the jury would be confused as to that matter. Therefore, I do not accept the appellant's submission that the inconsistencies alleged in the submissions summarised at [163] and [164] above gave rise to a real risk of confusion.
It remains to consider whether the jury might have been confused as to the onus of proof, by reason of inconsistency between the First and Second Impugned Sentences, as alleged in submissions summarised at [162] above.
Counsel for the State submits that the Second Impugned Sentence was unduly generous to the appellant.[124] Brennan J in Liberato referred to 'an issue' which the jury could not find against an accused if his or her evidence gave rise to a reasonable doubt 'as to that issue'. However, Brennan J had previously identified the 'issues' to which he was referring as issues which the prosecution bears the onus of proving.[125] The State says that the second statement was overly generous, because erectile functioning was not an issue which the prosecution bore the onus of proving.
[124] Appeal ts 26.
[125] Liberato (515).
It may have been more accurate if the Second Impugned Sentence stated that the jury must find the appellant not guilty if his evidence as to sexual dysfunction, or any other evidence, gave rise to a reasonable doubt as to whether the appellant had engaged in the charged conduct. The State did not bear the onus of disproving sexual dysfunction. However, it is difficult to see how the jury could be satisfied beyond reasonable doubt on the basis of the complainant's evidence that the appellant engaged in the charged conduct if it thought there was a reasonable possibility that the appellant was incapable of having an erection or ejaculating. This is because, as noted at [105] ‑ [106] above, most of the conduct occurred at or close to the time the complainant described the appellant as having an erection and ejaculating.
In any event, any error involved in this aspect of the trial judge's direction would favour the appellant. The court would not be justified in upholding the appeal on the basis that the direction was unduly favourable to the appellant.[126]
[126] R v Serratore (1999) 48 NSWLR 101; [1999] NSWCCA 377 [133], [246]; Hiemstra v The State of Western Australia [2006] WASCA 70 [1], [54], [59], [115]; Dailakis v The Queen [2018] VSCA 101 [90]; Romano v The Queen (a pseudonym) [2019] NSWCCA 49 [31] - [32], [35].
For a lawyer or judge considering the direction in light of a correct understanding of Liberato and related cases, there may be a degree of inconsistency between saying that:
(1)the State does not have to disprove impotency or sexual dysfunction; and
(2)the jury could not find against the appellant on that issue if his evidence or any other evidence gave rise to a reasonable doubt on that issue.
That is because, as noted above, the second direction should only relate to those issues which the prosecution bears the onus of proving. If (as I have concluded) the State does not have to disprove impotency or sexual dysfunction, then the jury could find against the appellant on that issue even if his evidence gave rise to a reasonable doubt on that issue. The two directions would then indicate, to someone who correctly understands Brennan J's comments in Liberato, that the prosecution both had and did not have the onus of proof in relation to the issue of impotency.
However, an appreciation of that inconsistency is unlikely to arise outside 'the calm and inquisitive atmosphere of a court of appeal'.[127] I see no real risk that a lay juror would appreciate any tension between the two statements, or become confused as a result. I am not satisfied that there is any real risk that the directions taken as a whole would have confused the jury as to how it might deal with the appellant's evidence as to his sexual dysfunction.
[127] To use the phrase adopted in La Fontaine (73).
Disposition of the appeal
For the reasons explained above, the italicised part of the Third Impugned Sentence was incorrect when considered in isolation but, in the context of the direction as a whole, there was no real risk that it would have led the jury into error or confused the jury. I turn to consider the significance of these conclusions under the Criminal Appeals Act.
Section 30(3) and s 30(4) of the Criminal Appeals Act relevantly provide:
(3)The Court of Appeal must allow the appeal if in its opinion -
…
(b)the conviction should be set aside because of a wrong decision on a question of law by the judge; or
(c)there was a miscarriage of justice.
(4)Despite subsection (3), even if a ground of appeal might be decided in favour of the offender, the Court of Appeal may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.
Counsel for the appellant submitted that the italicised part of the Third Impugned Sentence necessarily involved a 'wrong decision on a question of law by the judge,' and an irregularity in the trial that amounted to a 'miscarriage of justice'. He submitted that the question of whether the misstatement could have affected the verdict arose only under the 'proviso' in s 30(4) of the Criminal Appeals Act, when the court decided whether 'no substantial miscarriage of justice' has occurred.[128]
[128] Appeal ts 7 - 8.
I accept, for the reasons explained by Beech JA (with whom Pritchard JA agreed) in OKS v The State of Western Australia,[129] that a wrong direction of law to the jury will be a 'wrong decision on a question of law' irrespective of whether objection is taken to the direction or a redirection is sought. I also accept that a 'miscarriage of justice' for the purposes of s 30(3)(c) comprehends any departure from trial according to law, regardless of the nature and importance of that departure.[130]
[129] OKS v The State of Western Australia [2018] WASCA 48; (2018) 52 WAR 482 [188] - [253], [255].
[130] Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [18]; Kalbasi v The State of Western Australia [2018] HCA 7; (2018) 92 ALJR 305 [12].
However, it is at least arguable that any 'wrong decision on a question of law' or 'miscarriage of justice' must arise from the trial judge's direction taken as a whole.[131] It may be said that, if the direction taken as a whole is correct, and carries no risk of misleading the jury, a misstatement in one part of the direction will not constitute a 'wrong decision on a question of law' or a 'miscarriage of justice'. Further, it is at least arguable that the question of whether a trial judge's direction constitutes a departure from a trial according to law is also to be assessed by reference to the direction taken as a whole, as a jury listening to the direction might understand it. That is consistent with the approach illustrated by the decision in La Fontaine, referred to above.
[131] See, for example, Mule v The Queen [2005] HCA 49; (2005) 221 ALR 85 [24].
Even if the misstatement in the present case, considered in isolation, constitutes a 'wrong decision on a question of law', it is at least arguable that the court would only allow the appeal under s 30(3)(b) if in its opinion the convictions should be set aside because of that decision.[132] This at least arguably imports a requirement of materiality at this stage of the inquiry. A wrong decision on a question of law, where there is no reasonable possibility that the decision could have had any effect on the jury's deliberations, will be immaterial and will not justify setting aside the convictions. On that view, the materiality of the wrong decision arises under s 30(3)(b) as well as s 30(4) of the Criminal Appeals Act.
[132] Papadimitriou v The Queen [2011] WASCA 140; (2011) 214 A Crim R 50 [75] (Pullin JA).
While the italicised part of the Third Impugned Sentence was in error, the direction taken as a whole was not. For the reasons I have explained, there was no real risk that the direction would deflect the jury from their proper task. On the view suggested at [208] - [209] above, in those circumstances, the court would not reach the opinion that the appellant's convictions should be set aside because of a wrong decision on a question of law by the trial judge, constituted by the misstatement. Nor, on that view, would the misstatement constitute or give rise to any miscarriage of justice.
However, the ultimate result in this appeal does not turn on the acceptance or rejection of the propositions summarised at [208] - [210] above. Counsel for the appellant accepted that his submission on the second issue would fail if the only reasonable way the jury could have understood the direction, taken as a whole, was that they could not simply put aside the appellant's evidence if they had a doubt about it. Counsel accepted that, if the court rejected the appellant's submissions on the first issue (summarised at [156] - [158] above) and the third issue (summarised at [161] - [164] above) the proviso could be applied in those circumstances.[133] I have rejected the appellant's submissions on the first and third issues. I have concluded that the only reasonable way the jury could have understood the direction taken as a whole was that they could not simply put aside the appellant's evidence if they merely had a doubt about it.
[133] Appeal ts 12.
In these circumstances, it is unnecessary to determine whether the approach suggested at [208] - [210] above should be adopted, as such a determination would not affect the ultimate result in this appeal. Cases dealing with materiality in this context do not always consistently and clearly distinguish between the operation of s 30(3) and s 30(4) of the Criminal Appeals Act or their equivalents.[134] The absence of any detailed submissions dealing with the manner in which materiality of an error may be considered under s 30(3) of the Criminal Appeals Act in the circumstances of this case makes it undesirable to resolve that question here.
[134] Compare Simic v The Queen (1980) 144 CLR 319, 328, 332; Alramadan v Director of Public Prosecutions (NSW) [2007] NSWCCA 322 [9] - [13]; Buiks v The State of Western Australia [2008] WASCA 194; (2008) 188 A Crim R 362 [173]; Carney v The State of Western Australia [2010] WASCA 90; (2010) 201 A Crim R 537 [2], [41] - [47], [201]; Papadimitriou v The Queen [2011] WASCA 140; (2011) 214 A Crim R 50 [75], [99], [254] - [256], [323] - [329]; Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47 [15], [84]; OKS v The State of Western Australia [2018] WASCA 48; (2018) 52 WAR 482 [77], [205] - [206].
I will therefore proceed assuming (without deciding) that the italicised part of the Third Impugned Sentence would lead the court to allow the appeal under s 30(3)(b) and/or s 30(3)(c) of the Criminal Appeals Act, subject to the application of the proviso in s 30(4) of that Act. On that assumption, favourable to the appellant, I would accept the concession made by counsel for the appellant at [166] and [211] above and apply the proviso in s 30(4) of the Criminal Appeal Act.
The High Court has considered the application of the proviso in four recent cases: Kalbasi v The State of Western Australia,[135] Collins v The Queen,[136] Lane v The Queen,[137] and OKS v The State of Western Australia.[138] At least a majority of the court have accepted the following propositions in those decisions:
(1)The task of determining whether, notwithstanding an error, there has been no substantial miscarriage of justice within the meaning of s 30(4) of that Act is committed to the appellate court.[139]
(2)It cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is satisfied that the guilt of the appellant was proved, beyond reasonable doubt, on the admissible evidence on the trial that was had.[140] That is because the conviction of a person whose guilt has not been proved, beyond reasonable doubt, on admissible evidence will always be a substantial miscarriage of justice.[141]
(3)The appellate court is required to consider the nature and effect of the error in every case, as some errors will prevent the appellate court from being able to assess whether guilt was proved to the criminal standard. In such cases, Weiss does not disavow the utility of the concepts of lost chance of acquittal or inevitability of conviction: regardless of the apparent strength of the prosecution case, the appellate court cannot be satisfied that guilt has been proved.[142]
(4)The appellate court's satisfaction that guilt has been proved to the criminal standard on the admissible evidence will in many instances support the conclusion that there has been no substantial miscarriage of justice notwithstanding a wrong decision on a question of law or a miscarriage of justice. (This confirms the negative proposition in Weiss as a necessary but not sufficient condition for the application of the proviso.) It is not possible to describe the metes and bounds of those wrong decisions of law or failures of trial process that will occasion a substantial miscarriage of justice notwithstanding the cogency of proof of the accused's guilt.[143]
(5)A misdirection that is apt to prevent the performance by the jury of its function, without more, will result in a substantial miscarriage of justice. The proviso is cast in terms which permit the appellate court to dismiss an appeal from a judgment of the court which gives effect to the verdict of the jury. The proviso does not permit the appellate court to exercise the function of the jury. The language of the proviso cannot be understood as if it were to the effect that an appeal in which the possibility that the jury has not performed its function of reaching a unanimous verdict may be dismissed on the basis that the appellate court is satisfied of the guilt of the accused.[144]
(6)Where proof of guilt is wholly dependent on acceptance of a complainant's evidence and a misdirection may have affected that acceptance, the court cannot accord the weight to the verdict of guilty which it otherwise might.[145]
(7)The fundamental question remains whether there has been a substantial miscarriage of justice. That question is not answered by trying to identify some classes of case in which the proviso can be or cannot be applied. Classifications of that kind are distracting and apt to mislead.[146]
[135] Kalbasi [15].
[136] Collins v The Queen [2018] HCA 18; (2018) 92 ALJR 517.
[137] Lane v The Queen [2018] HCA 28; (2018) 92 ALJR 689.
[138] OKS v The State of Western Australia [2019] HCA 10; (2019) 93 ALJR 438.
[139] Kalbasi [12].
[140] This is the negative proposition stated in Weiss [44].
[141] Kalbasi [12] - [13].
[142] Kalbasi [15]; see also Gassy v The Queen [2008] HCA 18; (2008) 236 CLR 293 [34]; Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358 [126] - [127] and Collins [36] - [37].
[143] Kalbasi [13], [16].
[144] Lane [48].
[145] Collins [36]; OKS [31].
[146] Kalbasi [16].
The complainant's evidence, if accepted, established that the appellant committed the offences of which he has been convicted. It was open to the jury to reject the appellant's denials of the offending conduct. It was also open to the jury to reject the appellant's evidence that he was not capable of having an erection or ejaculating at all. That evidence was inconsistent with the complainant's observations, and the appellant's statements to Dr Spencer. Evidence as to the appellant's possession of pornographic material, and B's evidence of the appellant's sexual activity with the complainant, also counted against acceptance of the appellant's evidence that he was '100 per cent impotent'.
Given the conflict between the evidence of the complainant and the appellant as to the occurrence of the sexual conduct, this court can only be satisfied that guilt was proved to the criminal standard on admissible evidence by giving significant weight to the jury's verdicts. In the circumstances of this case, it would not be possible to give any significant weight to the jury's verdict if the italicised part of the Third Impugned Sentence misdirection may have affected the jury's acceptance of the complainant's evidence. However, significant weight can be accorded to the jury's verdicts where, having regard to the direction as a whole, there was no real risk that the misstatement would have affected the jury's verdict. That is so where, as I have concluded above:
(1)there is no real risk that a reasonable jury, having listened to the whole of the trial judge's direction, might have apprehended that they could put the appellant's evidence as to his sexual dysfunction aside if they merely had a doubt about it, and
(2)where no real risk of confusion arose from the directions considered as a whole.
These conclusions distinguish the present case from OKS. In that case, the impugned erroneous direction qualified other directions which the trial judge in that case had given.[147] The High Court held that the proviso could not be applied where the prosecution case was dependent on the credibility of the complainant in OKS, and the jury's assessment of her credibility was wrongly circumscribed by directions of law which precluded the jury from adopting a process of reasoning, favourable to the accused, that was open to it.[148] In the present case the trial judge's direction, taken as a whole, did not have that effect. When the direction is considered as a whole, the misstatement in the italicised part of the Third Impugned Sentence did not qualify other directions and could have had no effect upon the jury, acting reasonably, in its verdict.
[147] OKS [28].
[148] OKS [30] - [31], [39].
Therefore, the misstatement in the italicised part of the Third Impugned Sentence is not such as to prevent this court from being able to assess whether the appellant's guilt was proved beyond reasonable doubt. Having regard to the evidence led at trial, and giving weight to the jury's verdict, I am satisfied that the appellant's guilt of the offences of which he was convicted was proved beyond reasonable doubt. There is nothing about the misstatement that would occasion a substantial miscarriage of justice, notwithstanding the cogency of proof of the accused's guilt. In those circumstances, assuming (without deciding) that the italicised part of the Third Impugned Sentence constituted a wrong decision on a question of law or a miscarriage of justice, I am satisfied that no substantial miscarriage of justice has occurred.
Orders
For the above reasons, in my view the appeal should be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DT
Associate to the Honourable Justice Mazza23 AUGUST 2019
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