DPB v The State of Western Australia

[2014] WASCA 17

DPB -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 17

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2014] WASCA 17
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:124/2013	Heard:	18 OCTOBER & 2 DECEMBER 2013
Coram:	McLURE P BUSS JA MAZZA JA	Delivered:	24/01/14
No of pages:	18	Judgment Part:	1 of 1
Result:	Application to adduce additional evidence in the appeal dismissed Leave to appeal refused Appeal dismissed
Category:	B
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Parties:	DPB THE STATE OF WESTERN AUSTRALIA
Catchwords:	Criminal law Appeal against conviction Appellant convicted after trial of five counts of sexually penetrating a child Failure of defence counsel to adduce evidence of good character Tactical decisions by defence counsel Leave to appeal refused
Legislation:	Criminal Appeals Act 2004 (WA), s 39, s 40 Criminal Code (WA), s 320(2), s 321(2) Evidence Act 1906 (WA), s 8(1)(e)
Case References:	Attwood v The Queen [1960] HCA 15; (1960) 102 CLR 353 Donaldson v The State of Western Australia [2007] WASCA 216; (2007) 176 A Crim R 488 DPJB v The State of Western Australia [2010] WASCA 12 Durani v The State of Western Australia [2012] WASCA 172 Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392 KLM v The State of Western Australia [2009] WASCA 73; (2009) 194 A Crim R 503 Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659 McMahon v The State of Western Australia [2010] WASCA 143 Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1 Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259 R v Birks (1990) 19 NSWLR 677 R v Rowton (1865) Le & Ca 520; 169 ER 1497 R v Taufahema [2007] HCA 11; (2007) 228 CLR 232 Rinaldi v The State of Western Australia [2007] WASCA 53 Stanoevski v The Queen [2001] HCA 4; (2001) 202 CLR 115 TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : DPB -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 17 CORAM : McLURE P

BUSS JA
MAZZA JA

HEARD : 18 OCTOBER & 2 DECEMBER 2013 DELIVERED : 24 JANUARY 2014 FILE NO/S : CACR 124 of 2013 BETWEEN : DPB

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : DAVIS DCJ

File No : IND BUS 11 of 2012

Catchwords:

Criminal law - Appeal against conviction - Appellant convicted after trial of five counts of sexually penetrating a child - Failure of defence counsel to adduce evidence of good character - Tactical decisions by defence counsel - Leave to appeal refused

Legislation:

Criminal Appeals Act 2004 (WA), s 39, s 40

Criminal Code (WA), s 320(2), s 321(2)
Evidence Act 1906 (WA), s 8(1)(e)

Result:

Application to adduce additional evidence in the appeal dismissed

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Mr T M Petherick (18 October 2013) No appearance (2 December 2013)
Respondent : No appearance

Solicitors:

Appellant : Trent Petherick Lawyers
Respondent : Director of Public Prosecutions (WA)

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

Attwood v The Queen [1960] HCA 15; (1960) 102 CLR 353
Donaldson v The State of Western Australia [2007] WASCA 216; (2007) 176 A Crim R 488
DPJB v The State of Western Australia [2010] WASCA 12
Durani v The State of Western Australia [2012] WASCA 172
Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392
KLM v The State of Western Australia [2009] WASCA 73; (2009) 194 A Crim R 503
Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659
McMahon v The State of Western Australia [2010] WASCA 143
Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1
Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259
R v Birks (1990) 19 NSWLR 677
R v Rowton (1865) Le & Ca 520; 169 ER 1497
R v Taufahema [2007] HCA 11; (2007) 228 CLR 232
Rinaldi v The State of Western Australia [2007] WASCA 53
Stanoevski v The Queen [2001] HCA 4; (2001) 202 CLR 115
TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124



1 McLURE P: I agree with Buss JA.

2 BUSS JA: The appellant has applied for leave to appeal against conviction.

3 On 23 May 2013, the appellant was convicted, after a trial in the District Court before Davis DCJ and a jury, on five counts of sexually penetrating a girl, M. Count 1 involved offending contrary to s 320(2) of the Criminal Code (WA) (the Code) when M was under the age of 13 years. Counts 2, 3, 4 and 5 involved offending contrary to s 321(2) of the Code when M was of or over the age of 13 years and under the age of 16 years.

4 Count 1 alleged that, on a date unknown between 31 December 2003 and 1 January 2006, at a Western Australian country town, the appellant penetrated M's vagina with his finger.

5 Count 2 alleged that, on a date unknown between 31 October 2009 and 1 January 2010, at the country town, the appellant penetrated M's vagina with his finger.

6 Count 3 alleged that, on a date unknown between 31 December 2009 and 17 July 2010, at the country town, the appellant penetrated M's vagina with his finger.

7 Count 4 alleged that, on the same unknown date and at the same place as count 3, the appellant penetrated M by engaging in cunnilingus.

8 Count 5 alleged that, on a date unknown between 15 July 2010 and 1 October 2010, at the country town, the appellant penetrated M's vagina with his penis.

The procedural history of the application for leave to appeal

9 The procedural history of the application for leave to appeal was unsatisfactory.

10 Initially, the appellant acted in person.

11 On 26 June 2013, Trent Petherick Lawyers filed a lawyer's notice of acting in which the firm informed the court that it was acting for the appellant in the appeal.

12 On 22 August 2013, Trent Petherick Lawyers filed the appellant's case.

13 On 4 September 2013, the acting Court of Appeal Registrar informed Trent Petherick Lawyers that the appeal had been listed before the court on 18 October 2013 at 10.30 am to consider the application for leave to appeal.

14 On 18 October 2013, Mr T M Petherick appeared at the hearing as counsel for the appellant. Mr Petherick applied for an adjournment of the hearing to enable the appellant to file an application in the appeal for leave to adduce additional evidence. The court granted the adjournment and ordered the appellant to file any additional evidence in support of his application for leave to appeal within 21 days.

15 On 11 November 2013, Trent Petherick Lawyers filed an affidavit sworn 14 October 2013 by the appellant's cousin, Noel Wallam, and an affidavit sworn 7 November 2013 by the appellant's daughter, JPS.

16 By letter dated 11 November 2013, a law clerk employed by Trent Petherick Lawyers apologised to the court for the late filing of the affidavits.

17 On 14 November 2013, the acting Court of Appeal Registrar informed Trent Petherick Lawyers that the appeal had been relisted before the court on 2 December 2013 at 10.30 am to consider the application for leave to appeal.

18 On 2 December 2013, there was no appearance at the hearing by or on behalf of the appellant. The court reserved its decision on the application for leave to appeal.

The proposed ground of appeal

19 The proposed ground of appeal alleges that defence counsel failed to adduce evidence of good character and, 'when considered in light of admission of prior history of the [appellant] during cross-examination and social context', this failure led to a material irregularity and occasioned a miscarriage of justice.

20 The appellant is Aboriginal.

21 The particulars of the proposed ground allege that:

(a) defence counsel failed to adduce 'substantive character evidence' (particular (a));

(b) defence counsel failed to adduce 'relevant evidence of cultural issues in relation to the [appellant's] Aboriginality, and in particular his cultural relationship with adolescents' (particular (b));

(c) defence counsel failed to take steps to rebut 'a negative impression of the [appellant's] relationship with adolescent children' (particular (c)); and

(d) the appellant was 'insufficiently briefed on evidence and admitted to prior criminal history while under cross-examination' (particular (d)).

People associated with the appellant and M

22 The appellant's former wife, Erica, was a defence witness.

23 The appellant's daughter, JPS, was Erica's child and a friend of the complainant, M. JPS was not a witness at the trial.

24 Sonya became the appellant's partner after his marriage to Erica disintegrated. Sonya was a prosecution witness at the trial. She is M's mother.

The affidavit of Mr Wallam

25 Mr Wallam deposes in his affidavit that the appellant is his cousin and he knows the appellant on 'a professional and personal level'. He has had regular meetings with the appellant over many years. They discussed 'issues within the family including with the children'. According to Mr Wallam, the appellant is 'a caring, loving person who wanted to help his family and people'.

26 Mr Wallam also deposed:

3. It is very important for the adults and elders of the Aboriginal Community to be involved in the lives of our young people. These days it takes no time at all for them to get caught up in trouble; drugs and alcohol, fighting with other groups or mixed up in the wrong mob. I have experienced this in my work and personally within my own family. From time to time [the appellant] and I discussed this.

4. [The appellant] was interacting with the young people around him as a father figure and mentor, this would include talking to them and caring for them. [The appellant] spent a lot of time driving people around to ensure they were safe and got to where they needed to be. This behaviour should not be misconstrued; it is an important part of our culture.

JPS's affidavit

27 JPS deposes in her affidavit that the appellant is her father and she never witnessed any 'inappropriate behaviour' by the appellant towards M.

28 JPS also deposes:

7. My father has always been involved with trying to assist troubled Aboriginal youths. He would go to [a country location] which is a place specifically for troubled young people. I would say there would be 14 - 15 kids out there at a time. I think the organisation is run through the Courts; my father's father is also involved. [The appellant] would go and help out.

8. My father also generally tried to help young people in our community. He was always giving people lifts in the car, taking them to where they needed to be or getting them out of trouble. My father is well known by many of the Aboriginal families in our community. This is an important role to our people. Aboriginal people expect elders to help other families, we hold the value that it takes the community to help raise and hold our families together. We face many difficulties and the young people especially need assistance to stay on the right track. I believe my father considers these to have been the reasons why he spent so much time driving all us kids around.

…

11. When [the appellant's partner] Sonya and my father separated my father continued to care for the children. He received a court order for primary care of the children a couple of days prior to the complaint being made by [M] against him.

12. [M] was staying with my mum and I the day she made the allegations against my father. She had snuck out to see a boy and was in trouble with … my mum, Sonya and her grandmother. I believe this is what instigated her making the allegations against my father, to turn the attention from her.

13. I was never questioned by my father's defence counsel, Mr Laurino, prior to his trial. I sat through the trial and am concerned that the way in which he was presented is not an accurate reflection of the circumstances at the time.

Good character evidence

29 In R v Rowton (1865) Le & Ca 520; 169 ER 1497, it was held that a witness called to give evidence of an accused's character can speak only of the accused's general reputation.

30 In Attwood v The Queen [1960] HCA 15; (1960) 102 CLR 353, Dixon CJ, McTiernan, Fullagar, Taylor and Menzies JJ said:

The expression 'good character' has of course a known significance in relation to evidence upon criminal trials; for it denotes a description of evidence in disproof of guilt which an accused person may adduce. He may adduce evidence of the favourable character he bears as a fact or matter making it unlikely that he committed the crime charged. The limitations upon the description of evidence admissible under this head are the subject of the much discussed decision of Reg v Rowton (1865) Le & Ca 520 [169 ER 1497]. Probably the limitations are not observed in practice but that is not the aspect of the case that concerns us here. What does concern us is that the reasons of the judges show clearly enough that evidence of good character is regarded as really bearing on the probability or improbability of guilt (359).

31 Good character evidence is admissible in relation to the credibility of an accused who denies his or her guilt and, also, the unlikelihood of the accused having committed the offence.

32 In Durani v The State of Western Australia [2012] WASCA 172, Mazza JA (McLure P & Buss JA agreeing) pointed out that the assumptions which underpin these accepted areas of relevance are:

(a) as to guilt, a person of good character is assumed to be less likely to commit an offence and therefore less likely to have committed the offence in question; and

(b) as to credibility, a person of good character is assumed to be more likely to be an honest witness and therefore a person whose evidence should be accepted [107].

33 Each of these assumptions is dubious. See Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1 [47] - [48] (McHugh J), [109] (Kirby J).

34 Cross on Evidence (9th Aust ed, 2013) at [19110] comments, in relation to the rule in Rowton, that '[t]here is much to be said for abandoning a rule which is difficult to apply and widely ignored'. Stephen, Digest of the Law of Evidence (12th ed, 1936) at 201, criticised the rule because:

A witness may with perfect truth swear that a man who, to his knowledge, has been a receiver of stolen goods for years, has an excellent character for honesty if he has the good luck to conceal his crimes from his neighbours.

35 Despite these criticisms, the common law continues to recognise the right of an accused to adduce evidence of his or her good character.

36 In Donaldson v The State of Western Australia [2007] WASCA 216; (2007) 176 A Crim R 488, I noted (McLure & Pullin JJA agreeing) that the rule in Rowton, which restricts the scope of character evidence to evidence of an accused's general reputation, is often not complied with, and in this State evidence is often adduced beyond the scope of general reputation.

The incompetence of defence counsel

37 An offender who appeals against his or her conviction on the basis of an allegation that defence counsel was incompetent must demonstrate that defence counsel's conduct caused a miscarriage of justice. It is a heavy burden which is not easily discharged. See TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 [74] (McHugh J).

38 This issue was examined in McMahon v The State of Western Australia [2010] WASCA 143. McLure P (Buss JA agreeing & Mazza J relevantly agreeing) said:

In this context, miscarriage of justice has two aspects, process and outcome. If the conduct of counsel has deprived the accused of a fair trial according to law, that will give rise to a miscarriage of justice without regard to whether counsel's conduct might have affected the outcome: TKWJ [76] (McHugh J); Nudd v The Queen [2006] HCA 9 [3] - [7] (Gleeson CJ). This corresponds with that limb of the proviso where there is a serious breach of the pre-suppositions of a trial: Weiss v The Queen (2005) 224 CLR 300 [46]; Wilde v The Queen (1988) 164 CLR 365, 373. A complete failure to cross-examine a complainant or a complete failure to address the jury may result in an unfair trial: TKWJ [76]. So too may wrong advice that an accused is not entitled to give evidence: Nudd [17].

In the majority of cases, irregular conduct of counsel will not deprive the appellant of a fair trial. In such circumstances, the ultimate question of whether a miscarriage of justice has occurred raises two issues. First, did counsel's conduct result in a material irregularity in the trial. Secondly, is there a significant possibility that the irregularity affected the outcome: TKWJ [79] (McHugh J); Ali v The Queen (2005) 79 ALJR 662 [18] (Hayne J).

The test of whether there is a material irregularity is objective: TKWJ [17], [27] - [28], [107]. Ordinarily, it is difficult to establish a material irregularity when the alleged error of counsel concerned forensic choices upon which competent counsel could have differing views: TKWJ [81]. However, if the error of counsel plainly affected the result of the trial, there will be a miscarriage even though the error involved a forensic choice or judgment. Where the error involves the failure to adduce evidence, there are parallels with the test for the admission of new or fresh evidence: TKWJ [32] (Gaudron J) [25] - [27].

See also KLM v The State of Western Australia [2009] WASCA 73; (2009) 194 A Crim R 503 [47] - [55] (Martin CJ, Le Miere AJA agreeing).

Tactical decisions by defence counsel

39 The Australian criminal justice system involves a contest between the State or the Crown and the accused. In general, the accused is bound by the conduct of his or her counsel. The accused's counsel has a broad discretion in the conduct of the defence. As Gleeson CJ (McInerney J agreeing) noted in R v Birks (1990) 19 NSWLR 677:

Decisions as to what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics. The authorities concerning the rights and duties of counsel are replete with emphatic statements which stress both the independent role of the barrister and the binding consequences for the client of decisions taken by a barrister in the course of running a case (683).

See also TKWJ [8] (Gleeson CJ); R v Taufahema [2007] HCA 11; (2007) 228 CLR 232 [168] (Kirby J).

40 An apparently rational decision made by the accused's counsel in the course of the trial will not result in an unfair trial or a miscarriage of justice merely because it may appear then or later on appeal that the decision was not carefully considered, was unwise, or produced consequences which operated to the disadvantage of the accused. See Stanoevski v The Queen [2001] HCA 4; (2001) 202 CLR 115 [21] (Gaudron, Kirby & Callinan JJ); TKWJ [16] - [17] (Gleeson CJ), [95] (McHugh J), [107] (Hayne J, Gummow J agreeing).

41 An appellate court does not examine whether a decision taken by the accused's counsel at the trial was, in fact, taken for the purpose of obtaining a forensic advantage or avoiding a forensic disadvantage. Rather, the appellate court is concerned only with whether counsel's decision is capable of explanation on that basis. That is, could there be any reasonable explanation for the decision? The test is objective in character. See TKWJ [17] (Gleeson CJ), [27] (Gaudron J, Gummow J agreeing), [107] (Hayne J, Gummow J agreeing).

This court's power to admit additional evidence in the appeal

42 Section 39(1) of the Criminal Appeals Act 2004 (WA) provides that an appeal court must decide an appeal on the evidence and material that were before the lower court. By s 39(3), however, s 39(1) does not affect the power of an appeal court to admit evidence pursuant to s 40 of the Act. Section 40(1) provides, relevantly:

For the purposes of dealing with an appeal, an appeal court may do any or all of the following -

(a) order the production of any record or thing, whether or not an exhibit, that is or may be relevant to the appeal;

(b) order a witness who would have been compellable at the trial in the lower court, whether or not called at the trial, to attend and be examined before the appeal court;

…

(d) subject to the Evidence Act 1906 section 9, admit the evidence of a witness, including a convicted appellant, who is a competent but not compellable witness;

(e) admit any other evidence.

43 In Rinaldi v The State of Western Australia [2007] WASCA 53, Steytler P said, in relation to s 40(1)(a), (b), (d) and (e):

While these provisions afford the Court a discretion, which is not expressed to be limited in any way, to do any of the things provided for, it is most improbable that the legislature intended that they 'should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction': CDJ v VAJ (1998) 197 CLR 172 at [111] per McHugh, Gummow and Callinan JJ (dealing with the provisions of s 93A(2) of the Family Law Act 1975 (Cth)) and see also De La Espriella-Velasco at [150] per Pullin JA. The common law principles have, of course, been developed over many years in order to meet the ends of justice and the considerations giving rise to them will plainly be material to the exercise of the statutory discretion, which must be exercised judicially. While the common law principles touching upon the distinction between new and fresh evidence are not necessarily determinative of the manner of exercise of the statutory discretion, the considerations giving rise to those principles will ordinarily be weighty, so much so that it will be a rare case in which an exercise of the statutory discretion produces a different outcome to that produced by application of the common law principles [84].

44 Where an accused has been convicted, an appellate court will not allow an appeal, on the basis of new as distinct from fresh evidence, unless the new evidence establishes that the appellant is innocent or the new evidence raises such a doubt that the court is satisfied that the appellant should not have been convicted. See Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659, 675 - 676 (Mason J); DPJB v The State of Western Australia [2010] WASCA 12 [66] (Owen JA, McLure P relevantly agreeing).

45 Where an accused has been convicted, an appellate court will not allow an appeal, on the basis of fresh as distinct from new evidence, unless there is a significant possibility that, on the basis of all of the admissible evidence (that is, the fresh evidence and the evidence given at trial) a fact finding tribunal, acting reasonably, would have acquitted the accused. See Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392, 399 (Gibbs CJ), 402 (Mason & Deane JJ); Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259, 273 (Mason CJ), 301 - 302 (Toohey & Gaudron JJ).

The State's case at trial

46 M's credibility was fundamental to the State's case.

47 The trial judge directed the jury that the State could not satisfy it beyond reasonable doubt that the appellant was guilty of any of the counts in the indictment unless it was satisfied beyond reasonable doubt of the truthfulness, accuracy and reliability of M's evidence (ts 185). Her Honour said the jury should scrutinise M's evidence with special care (ts 185). She added it would be dangerous to convict the appellant on M's uncorroborated evidence unless, having scrutinised her evidence with great care, having considered the circumstances relevant to her evidence and having taken full account of her Honour's warning, it was satisfied beyond reasonable doubt as to its truth and accuracy (ts 187 - 188).

48 On the State's case, the counts were not isolated incidents. The prosecutor adduced evidence of other alleged incidents of sexual misconduct by the appellant towards M. The appellant had not been charged in relation to these other incidents. The State relied on them to show the appellant had a sexual interest in M.

49 The prosecutor did not adduce evidence of any sexual misconduct, grooming behaviour or other discreditable conduct by the appellant towards any other adolescent. The propensity or relationship evidence was confined to the appellant's dealings with M.

The defence case at trial

50 The appellant gave sworn evidence at trial in his defence. He said none of the acts of sexual penetration alleged against him in the indictment had occurred. He also denied having engaged in any form of sexual misconduct towards M at any time.

51 Defence counsel submitted M was not a truthful witness and she was motivated to fabricate the allegations against the appellant. Defence counsel relied on alleged inconsistencies in M's evidence and an alleged lack of plausibility in her account of some events. He argued the jury could not be satisfied beyond reasonable doubt that the appellant had committed any of the alleged offences.

The appellant's sworn evidence

52 The appellant was born on 12 May 1968. He was aged 45 at the time of the trial.

53 The appellant gave extensive evidence-in-chief about his relationship with Erica, Sonya, his children and M. He said he was shocked when informed of M's allegations (ts 122). He had never put his hands on any of his children or M, and he had never sexually interfered with M in the way she described or at all (ts 123 - 124).

54 The appellant referred in cross-examination to a restraining order against him. He explained he could not visit M at a particular address because he 'had a restraining order' (ts 126). A little later he agreed with the prosecutor that 'there was a restraining order stopping [him] going to [a particular address]' once he had separated from Erica (ts 127).

55 There was some reference in the appellant's cross-examination to his having driven children and other people in his motor vehicle:

During the years that you were in a relationship with Sonya … and you were able to drive different kids all over the place and - - -?---No, it was only - it wasn't only kids, it was everybody.

All right?---And I still do it today.

…

Well, Sonya has given evidence this afternoon that - that - that, in her opinion, that -­ that you spoilt [M]; what would you say to that?---Not true.

So you - - -?---I didn't - I didn't treat [M] any different than I did from any of the other kids, not any of them, not one time.

But you liked to drive her around, didn't you?---Sorry?

You liked to drive her around in the silver car, did you not?---It wasn't a case of I liked to drive her around. It was a case of I drove her and everybody else around.

By the way, that car had an automatic transmission, didn't it?---Yes.

Yes?---A lot of the cars I drove had autos.

Well, what - wasn't there an occasion when you told [M] that Sonya wanted to talk to [M] about [M] buying Sonya a birthday gift. You've heard [M's] evidence about that, haven't you?---Yep.

Do you say that that just never happened?---No, and I don't know how that come about. I just - I never - no. Why didn't I do it every birthday or whatever? I drove hundreds of kilometres every day

…

Well, when - when you were driving [M] alone in the little silver car, you were in a position to - to control where - where you were going to take her, weren't you?---I was driving me car (ts 128 - 129, 131 - 132, 136).

The relevance of the appellant having driven M in his motor vehicle

56 The relevance of the appellant having driven M in his motor vehicle is that count 2 was said to have occurred during a journey in the appellant's silver car. M's evidence was that, while driving along a road near a beach, the appellant put his left hand down her pants and penetrated her vagina with at least one of his fingers.

57 M gave evidence of other sexual misconduct which was not the subject of any count in the indictment. M said she had been with the appellant on another occasion, while he was driving his vehicle, and he had placed his hand on her leg and threatened to have forceful sex with her. M also said she would sometimes be with the appellant, while he was driving his vehicle, and he would put his hands down her pants and touch her vagina.

The trial judge's summing up

58 During her summing up, the trial judge instructed the jury about the appellant's evidence concerning the restraining order, as follows:

Now, during the cross-examination of [the appellant] yesterday, transcript page 126, Mr Hunter asked this question:

And [M] couldn't - could continue to have sleepovers at … Street but you couldn't go to … Street, could you?

And [the appellant] answered:

No, I had a restraining order.

Now, a restraining order may be made for any number of reasons following the breakdown of a relationship. And the relationship here is of course the breakdown of the relationship between [the appellant] and his wife, Erica … For reasons which I'll explain when I take you through the elements of the offence and the evidence in this case, whether or not there was a restraining order and the terms of any restraining order between [the appellant] and his wife, Erica … is really not going to help you in determining this case.

Further, you should not reason that because there was a restraining order preventing [the appellant] going to … Street that, therefore, he was the type of person likely to have committed the offences with which he has been charged in this case. That would involve a process of reasoning which would be quite wrong because you would be reasoning on your assessment of [the appellant's] character rather than on the basis of the relevant evidence.

Your duty is to decide each charge on the basis of the relevant evidence not on any assessment of [the appellant's] character. The fact that there was a restraining order is not direct evidence that he committed the offences with which he has been charged. You could not find [the appellant] guilty of any of the offences with which he has been charged unless you're satisfied beyond reasonable doubt, by direct evidence - that is evidence from [M] - that he is guilty of that charge (ts 171).

59 Her Honour gave orthodox directions in relation to M's evidence of the 'uncharged acts' and the appellant's evidence generally (ts 188 - 191, 192 - 193). She explained the significance attached by the prosecutor to the appellant having driven M in his vehicle and defence counsel's arguments on that issue (ts 194 - 195, 197 - 198).

60 Defence counsel, who is a competent and experienced criminal defence lawyer, did not request the trial judge to give any redirection or additional direction (ts 201, 203).

The appellant's prior criminal record

61 The appellant has a prior criminal record.

62 On 20 May 2008, the appellant was convicted of having breached a violence restraining order on 5 May 2008.

63 On 27 March 2007, he was convicted of three offences of breaching a violence restraining order, the breaches having occurred on 13 November 2006, 16 November 2006 and 13 February 2007.

64 On 27 March 2007, the appellant was also convicted of having done unlawful damage on 13 February 2007.

65 On 3 January 2006, he was convicted of aggravated assault occasioning bodily harm, the offence having occurred on 31 August 2005.

66 Between 1984 and 1997, the appellant was convicted of a number of offences for which fines were imposed. These offences included traffic offences, breach of bail, disorderly conduct and the use of threatening words.

The merits of the ground of appeal

67 None of the particulars of the proposed ground of appeal has any merit.

68 As to particular (a), it is apparent, on an objective analysis, that although the appellant did not, of course, bear any legal or evidential burden or onus, defence counsel called the appellant to give sworn evidence at trial in the hope his evidence would raise a doubt as to the truth, accuracy and reliability of M's evidence.

69 If defence counsel had adduced 'substantive character evidence' it would have been open to the prosecutor to cross-examine the appellant on his prior criminal record and otherwise endeavour to establish that he was a person of bad character. See s 8(1)(e) of the Evidence Act 1906 (WA).

70 On the assumption that credible evidence was available as to the appellant's alleged good character, the only reasonable objective inference is that defence counsel made a rational tactical decision not to adduce 'substantive character evidence'. As I have mentioned, if such evidence had been adduced the prosecutor would have been entitled to cross-examine the appellant on his prior criminal record and otherwise endeavour to establish that he was of bad character. Defence counsel's decision is capable of explanation on the basis of a legitimate concern to avoid this forensic disadvantage.

71 As to particulars (b) and (c), which allege that defence counsel failed:

(a) to adduce 'relevant evidence of cultural issues in relation to the [appellant's] Aboriginality, and in particular his cultural relationship with adolescents'; and

(b) to take steps to rebut 'a negative impression of the [appellant's] relationship with adolescent children',

the issues at trial, as between the State and the defence, concerned, relevantly, the appellant's relationship with M.

72 The State's case was not based, to any extent, on the appellant's 'cultural' or other relationships with any other adolescents.

73 There is overlap between the allegations in particulars (b) and (c), on the one hand, and the allegation in particular (a), on the other. Evidence of the kind contemplated by particulars (b) and (c) is in substance a specific kind of evidence as to the appellant's alleged good character.

74 If defence counsel had adduced the evidence referred to in particular (b), and taken the steps referred to in particular (c), this would have involved the giving of evidence as to the appellant's alleged good character, within s 8(1)(e)(ii) of the Evidence Act. Defence counsel's decision not to adduce the evidence or take the steps in question is capable of explanation on the basis of a legitimate concern to avoid the forensic disadvantage I have identified in the course of considering particular (a).

75 As to particulars (a), (b) and (c), the affidavits of Mr Wallam and JPS contain substantial chunks of inadmissible material. It is unnecessary to specify them. To the extent the affidavits contain evidence of the appellant's alleged good character or evidence as to the appellant's 'cultural' or other relationships with M or other adolescents, the evidence is without doubt 'new' as distinct from 'fresh' evidence. The appellant could, by the exercise of reasonable diligence, have obtained the additional evidence before the trial.

76 I am satisfied, on my perusal of the additional evidence in the context of the trial record, that it is not reasonably arguable the additional evidence establishes the appellant's innocence or raises such a doubt that it is reasonably arguable he should not have been convicted.

77 As to particular (d), the 'prior criminal history' which the appellant admitted under cross-examination was the existence of the violence restraining order. In my opinion, the trial judge's directions to the jury, in her summing up, adequately guarded against any impermissible prejudice to the appellant arising from the evidence he gave about the restraining order. It is of significance that defence counsel did not request her Honour to give any redirection or additional direction on the point.

78 In my opinion, it is not reasonably arguable that the performance of defence counsel at the trial was incompetent. On my appraisal of the trial record, defence counsel's decision as to what evidence to call or not to call as part of the defence case, and his approach generally to the conduct of the defence, did not occasion a miscarriage of justice. His forensic performance was adequate. In his closing address he advanced a plausible basis on which the jury might fail to be satisfied beyond reasonable doubt that the appellant was guilty of the counts in the indictment. Defence counsel's conduct of the defence case did not occasion a material irregularity at the trial. There is no significant possibility that any deficiencies in his performance occasioned an unfair trial or affected the outcome.

79 The proposed ground of appeal does not have a reasonable prospect of success.

Conclusion

80 The additional evidence does not materially advance the appellant's case. I would therefore dismiss the application to adduce the additional evidence in the appeal. Leave to appeal should be refused and the appeal dismissed.

81 MAZZA JA: I agree with Buss JA.