DSS v The State of Western Australia
[2022] WASCA 128
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: DSS -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 128
CORAM: BUSS P
MAZZA JA
MITCHELL JA
HEARD: 3 AUGUST 2022
DELIVERED : 3 OCTOBER 2022
FILE NO/S: CACR 47 of 2021
BETWEEN: DSS
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: SWEENEY DCJ
File Number : BUN IND 154 of 2018
Catchwords:
Criminal law - Sexual offences against a child - Whether proposed new evidence establishes that the appellant is innocent or raises such a doubt that the court should be satisfied that the appellant should not have been convicted - Whether incompetence of trial counsel gave rise to a miscarriage of justice - Whether counsel failed to cross-examine prosecution witnesses on material matters - Whether there was a reasonable forensic basis for counsel's decision not to call a witness
Legislation:
Criminal Code (WA), s 329
Result:
Applications to adduce additional evidence granted in part
Application for an extension of time in which to appeal dismissed
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | L M Fox SC & T B L Scutt |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Beamish v The Queen [2005] WASCA 62
Gallagher v The Queen (1986) 160 CLR 392
Huggins v The State of Western Australia [2018] WASCA 61
Jeffery v The State of Western Australia [2018] WASCA 219
Morgan v The State of Western Australia [2019] WASCA 185
Rodi v The State of Western Australia [2017] WASCA 81; (2017) 51 WAR 96
Smith v The State of Western Australia [2014] WASCA 90
Contents
Summary
Relevant relationships
Prosecution case at trial
Defence case at trial
Prosecution evidence at trial
Evidence of complainant
CWI on 30 December 2015
CWI on 2 August 2018
CWI on 30 October 2018
Pre-recorded evidence
Evidence of the complainant's mother
Evidence of the complainant's sister
Evidence of the complainant's older brother
Evidence of Dr Tung
Evidence of investigating officer
Defence evidence at trial
Additional evidence in the appeal
Appellant's additional evidence in the appeal
Additional evidence of appellant's mother
Additional evidence of defence counsel
Ground of appeal 2: incompetence of counsel
General principles
Failure to allege complainant's older brother committed the charged offences
Failure to call the appellant's mother as a witness
Failure to call other witnesses
Failure to adduce evidence of Albany chalet booking records
Failure to seek an adjournment after death of the appellant's father
Complainant's reference to seeing parents have sex
Conclusion as to ground 2
Ground of appeal 1: new evidence
Orders
JUDGMENT OF THE COURT:
Summary
On 15 November 2019, the appellant was convicted, after trial by jury, of two counts of sexually penetrating a child who he knew to be his lineal relative and one count of indecently dealing with a child who he knew to be his lineal relative. In each case, the pleaded circumstance of aggravation was that the child was under 16 years of age. The charges all related to the same child complainant, who is the appellant's biological daughter. The offences allegedly occurred on the same occasion, when the complainant was 4 years old.
On 21 January 2020, the appellant was sentenced to a total effective sentence of 6 years' imprisonment, with eligibility for parole, in respect of these offences. The court also made a lifetime family violence restraining order against the appellant in respect of the complainant.
The offences with which the appellant was charged, and the outcomes of those charges, are indicated in the following table:
Count
Charged offence
(Criminal Code section)
Verdict
Sentence of imprisonment
Cumulative/ concurrent
1
Sexually penetrated the complainant, who he knew to be his lineal relative, by penetrating her mouth with his penis
(329(2))
Guilty by majority
4 years
Head sentence
2
Sexually penetrated the complainant, who he knew to be his lineal relative, by penetrating her vagina with his penis
(329(2))
Guilty by majority
2 years
Cumulative
3
Sexually penetrated the complainant, who he knew to be his lineal relative, by penetrating her anus with his penis (329(2))
Not guilty
-
-
Alternative to count 3
Indecently dealt with the complainant, who he knew to be his lineal relative (329(4))
Guilty by majority
2 years
Concurrent
Total Effective Sentence
6 years
The sentence was backdated to 15 November 2019 to take account of time spent in custody on remand.
The appellant appeals against his convictions on two grounds. Ground 1 in effect contends that a miscarriage of justice arose from the absence of new evidence at trial. Ground 2 contends that the incompetence of defence counsel resulted in a miscarriage of justice.
The appellant has sought an extension of time in which to appeal, having filed his appeal notice about 1 year 3 months after the expiry of the time to do so.
The appellant has applied to adduce additional evidence in the appeal in support of his grounds. The State has also applied to adduce additional evidence in the appeal in opposition to the appeal.
The application for leave to appeal, the application for an extension of time in which to appeal and the applications to adduce additional evidence in the appeal were all referred to the hearing of the appeal.
For the following reasons, there is no merit in either ground of appeal. While we would admit additional evidence in the appeal, the application for an extension of time should be dismissed. Leave to appeal should be refused on both grounds of appeal and the appeal should be dismissed.
Relevant relationships
The appellant's offending was alleged to have occurred on or about 21 December 2015 at a Western Australian country town (Town). At that time the appellant was married to the complainant's mother, and they lived together at a rented house in the Town.
The complainant's mother had two children from a previous relationship, the complainant's older brother born in 2002 and the complainant's sister born in 2004. The appellant and the complainant's mother then had two children together, the complainant in 2011 and the complainant's younger brother in 2013.
At all material times, the appellant's mother lived at a house in Mandurah.
Prosecution case at trial
The prosecution case at trial was that the charged offences occurred a few days before Christmas 2015, when the complainant was 4 years old. The complainant, her three siblings, her mother and the appellant travelled to Mandurah from the Town to do some Christmas shopping. They stayed with the appellant's mother, who lived in Mandurah. The appellant decided to return to the Town a day early and took the complainant and the complainant's older sister with him. The complainant's mother and the complainant's brothers remained in Mandurah for another night.[1]
[1] Trial ts 74 ‑ 75.
The appellant, while at home alone with the complainant and her older sister, penetrated the complainant's mouth, her vagina and her anus with his penis and then ejaculated onto a towel.[2]
[2] Trial ts 77, 79.
When the complainant's mother returned home the next day, she noticed that the appellant had put on a load of washing, which included the towels. This was odd behaviour of the appellant as he did not usually do the household laundry.[3] It was also notable that the appellant would clean himself up with a towel after he and the complainant's mother had sex.
[3] Trial ts 77 - 78.
A week after the appellant offended against the complainant, on 28 December 2015, the complainant told her mother what had happened. The complainant's mother confronted the appellant who then left the family home and did not return. The complainant was examined by a doctor at Princess Margaret Hospital on 29 December 2015 and was interviewed by police on 30 December 2015.
Defence case at trial
The defence case at trial was that the events alleged by the prosecution never occurred.[4]
[4] Trial ts 85.
The appellant accepted that the family went to stay with the appellant's mother in Mandurah just before Christmas in 2015. The appellant decided to drive home on Tuesday 22 December 2015 to take some stronger pain medication, which he took as the result of two workplace injuries to his back and neck which permanently disabled him. The appellant took the two girls with him, leaving the two boys and the complainant's mother at the appellant's mother's house. As soon as the appellant returned to the Town, he put a load of towels in the washing machine and put them in the dryer.[5]
[5] Trial ts 86.
The two girls were hungry, so the appellant asked the complainant's older sister to go to the shops across the road to buy some milk and bread. While she was at the shops, the complainant watched television and the appellant spoke with his mother on the telephone. When the complainant's older sister returned, the appellant made them something to eat. The pain medication that he had taken on his arrival at the Town had taken effect, so he went to bed and slept. He awoke during the night, took some more pain medication, and slept until morning.[6]
[6] Trial ts 86 ‑ 87.
When the complainant's mother confronted him with the complainant's allegations, he left the property so as to avoid being accused of anything further.[7]
[7] Trial ts 87.
Prosecution evidence at trial
The following is a summary of the evidence the State adduced at trial.
Evidence of complainant
The complainant participated in three child witness interviews (CWI), on 30 December 2015, 2 August 2018, and 30 October 2018. At the time of each CWI, the complainant was aged 4 years 8 months, 7 years 3 months, and 7 years 6 months, respectively.
CWI on 30 December 2015
In the CWI of 30 December 2015, the interviewer struggled to have the complainant stay on topic and she was often unable to do so. The complainant's answers to the interviewer's questions were often non‑responsive, and she was very easily distracted.
The following dialogue occurred in response to the interviewer asking who was in the complainant's family:[8]
A. But not daddy any more.
Q. Not daddy any more?
A. Mm.
Q. Why isn't daddy in your family?
A. Cos him put him's penis into my mouth.
[8] CWI, 30 December 2015, 10.
The complainant was then distracted, and the interviewer was unable to bring her back to the topic of the appellant's offending until she asked how many times the appellant had put his penis into the complainant's mouth. The complainant responded, 'One. Only one.'[9] The interviewer asked what else the appellant had done with his penis, and the complainant said 'put in my gina.'[10] The interviewer again asked the complainant what the appellant had done with his penis, and the complainant responded:[11]
[9] CWI, 30 December 2015, 17.
[10] CWI, 30 December 2015, 17.
[11] CWI, 30 December 2015, 21.
A. He put it in me(?).
Q.Sorry?
A. (Indistinct).
Q. What did he - he put it in?
A. (No audible answer).
Q. Put it in what?
A. Me.
Q. He put it in you. And where did he put it?
A. Um, in my gina and (indistinct) in me.
Q. In your gina.
A. And my mouth.
The interviewer asked what had happened to the complainant's clothes, and she responded that the appellant 'just put it on the towel. ... white stuff.'[12] The complainant said that the appellant put his penis in her mouth first, and then put it in her 'gina'.[13]
CWI on 2 August 2018
[12] CWI, 30 December 2015, 22.
[13] CWI, 30 December 2015, 22.
The interview on 2 August 2018 began with the interviewer asking the complainant whether there was anything about her dad that she wanted to tell the interviewer. The following then took place:[14]
A. He was rude.
Q. What did he do that was rude?
A. He forced me to put his penis inside of my mouth.
[14] CWI, 2 August 2018, 5.
The complainant then went on to say that the appellant had forced his penis into her mouth when they were in the Town. They were on the bed of the appellant and the complainant's mother, and the appellant started to 'pull down his pants, and then [the complainant's].'[15]
[15] CWI, 2 August 2018, 6.
The complainant then said:[16]
A. Um, and then he started to put his penis into my vagina, and then my bottom.
Q.So he put his penis into your vagina?
A. Yeah, and then my bottom.
Q. What did he put in your bottom?
A. His penis.
[16] CWI, 2 August 2018, 7.
The complainant stated that when he put his penis in the complainant's vagina, the appellant was 'on the bed, sitting up ... trying not to sit on [her].'[17] The complainant then went on to say:[18]
[17] CWI, 2 August 2018, 8.
[18] CWI, 2 August 2018, 9 ‑ 11, 13.
A. And then when it happened, when he told - um, forced me to put his penis inside of my mouth, I was sitting on the edge of the bed, cos he moved me.
Q. (Indistinct).
A. And then he pull - and then (indistinct) his pants were still down, and then he shoved it in my mouth.
...
Q. What happened when he put his penis in your vagina? Tell me what happened.
A. He just sat there silent - - -
Q. Mm.
A. - - - and moving.
Q. Mm hm. What sort of moving was he doing?
A. Um, back and forth.
Q. Okay. And where was his penis when he was going back and forth?
A. Um, in my vagina still.
The complainant stated that she 'tried to push him, but he was too heavy to push', and that she tried to push him with her 'hands, and then [her] feet.'[19] In answer to the interviewer asking what the appellant did in response to her pushing, the complainant answered that 'he just sat there. Keeped on doing the same thing.'[20]
[19] CWI, 2 August 2018, 13.
[20] CWI, 2 August 2018, 13.
The complainant went on to describe the appellant pushing her onto her stomach. When asked what happened to her when he pushed her over, the complainant stated that 'he took his penis out [of her vagina] and put it into [her] bottom.'[21] The complainant stated that she 'tried to get up, but it was too hard ... [because] his leg was kinda on [her] legs.'[22]
[21] CWI, 2 August 2018, 14.
[22] CWI, 2 August 2018, 16.
The interviewer asked the complainant what happened next, and the complainant stated: 'And then he pushed me up, and we moved to the side of the bed. And then he opened up my mouth.'[23]
[23] CWI, 2 August 2018, 16, 17.
After answering questions about where the appellant was positioned and whether he had any clothes on, the complainant stated that there 'was a towel with him so he can squirt this stuff on there.' The following dialogue then occurred:[24]
[24] CWI, 2 August 2018, 19 - 20.
A. ... - um, so when it happened it was - I was on the bed and he was on the ground, and when he fir - wait, when I was on - when he was putting his penis inside of my vagina and my bottom - not at the same time, but he had to squirt this thing out then.
Q. Okay. What did he have to squirt out?
A. Um, it was, like, a yellow thing. I don't remember.
Q. Where did it squirt out from?
A. Um, out of his penis.
Q. So when he was putting his penis in your vagina and your bottom - - -
A. Yeah.
Q. - - - stuff squirted out?
A. Yeah. And that's what happened when he put it in my mouth.
Q. Kay. Did you see stuff squirt out?
A. No, wait, he didn't put that stuff in my mouth. He just put it on the towel, but nothing came out.
Q. Okay. But when he was putting his penis in your vagina and your bottom, did stuff come out then that went on the towel?
The complainant described running off to her room after the offending, getting dressed and telling her mother, who was picking oranges and lemons in the back garden, that the appellant had been 'gross' to her. The complainant's mother then 'sent' the appellant away.[25]
[25] CWI, 2 August 2018, 24 - 27, 32.
Towards the end of the interview, the following exchange occurred:[26]
[26] CWI, 2 August 2018, 43.
Q.You've told me about the time that these things happened with dad.
A. Yeah.
Q. Who are we talking about? Who's dad? Do you know any other names for him?
A. Mm, no, I don't remember his real name.
Q. You don't remember his real name. That's okay. Is there anybody else that you call dad?
A. Mum calls him husband.
Q. Okay.
A. My mum.
Q. But is there any other people that you call dad?
A. No.
CWI on 30 October 2018
A third short interview took place on 30 October 2018. In that interview, the complainant said that there was never a time when someone showed her pictures or videos of anybody touching private parts or 'anything like that'.[27] When she was asked her dad's name, the complainant responded:[28]
A. Um, I don't remember cos it's been a long time since he was gone, yeah.
Q. It- it's been a long time since he was gone?
A. Yeah.
Q. Okay. Do you remember how old you were the last time you saw dad?
A. I think I was six or five or four.
Pre-recorded evidence
[27] CWI, 30 October 2018, 4 - 5.
[28] CWI, 30 October 2018, 6.
The complainant maintained her account of the offending under cross‑examination.
In cross-examination, defence counsel asked the complainant why she referred to a 'penis' rather than a word like 'doodle' in the child witness interviews. The effect of the complainant's answers was that she did not know.[29]
[29] Trial ts 25, 27 - 28.
During cross-examination, the complainant became confused when defence counsel kept referring to the appellant by his first name. After an objection by the prosecutor, and confirmation that the complainant called the appellant 'dad', defence counsel generally referred to the appellant in that way. The complainant denied that she used to call the appellant by his first name.[30]
[30] Trial ts 30 - 32.
The complainant said that she saw the appellant's penis but could not remember when or whether he had a ring through his penis.[31]
[31] Trial ts 36 - 37.
The complainant denied that her older brother had shown her rude pictures on his phone, showered or bathed with her or put his hand up her skirt.[32] The complainant said that she did not remember going to a hotel in Albany or seeing rude pictures on her older brother's phone there.[33] She denied ever seeing her mother and the appellant naked in bed.[34] The complainant said that her mother had not told her what to say to the interviewers or the court.[35]
Evidence of the complainant's mother
[32] Trial ts 38 - 40.
[33] Trial ts 38 - 39.
[34] Trial ts 40.
[35] Trial ts 40 - 41.
The complainant's mother's evidence was that, when she and the appellant had sex, the appellant would place a towel on the bed for her to lay on, so as not to make a mess on the bed, and would ejaculate onto the towel.[36] She said that the appellant had a penis ring, which he would sometimes take out.[37] She said that the complainant had never walked in on the complainant's mother and the appellant having sex.[38]
[36] Trial ts 162 - 163.
[37] Trial ts 165 - 166.
[38] Trial ts 166.
The complainant's mother's evidence was that the complainant called the appellant 'dad'.[39]
[39] Trial ts 166.
The complainant's mother said that she had never seen the complainant's older brother showing rude movies to the complainant on his phone, touching himself in front of the complainant or touching the complainant in a sexual way.[40] The complainant's mother denied having stayed in holiday accommodation in Albany in April 2015 when an incident of the complainant's older brother showing the complainant pornographic videos on his phone was said to have occurred. She also denied that the suggested conduct of the complainant's brother had occurred at all.[41]
[40] Trial ts 166 - 167.
[41] Trial ts 179 - 181.
When she was 4 years old, the complainant referred to her vagina as a 'gina' and a penis as a penis.[42]
[42] Trial ts 167.
The complainant's mother's evidence was that she stayed at the appellant's mother's house in Mandurah on 21 December 2015 to finish the Christmas shopping. The complainant's mother returned to the Town on the afternoon of 22 December 2015. When she returned, the complainant's mother noted that the appellant had done a load of washing, including sheets and towels. She found this odd as the appellant had never done anything around the house to help her out.[43]
[43] Trial ts 161 - 162.
The complainant's mother gave evidence that, on 28 December 2015, the complainant was complaining about a sore vagina. The complainant said that the appellant had pulled her knickers to one side, that he had put his penis in her mouth and near her vagina and that white stuff had come out onto a towel. She could not remember if the complainant had said that the appellant had put his penis in her vagina. The complainant said that this happened in the complainant's bed, when the complainant's mother was still at the appellant's mother's house.[44]
[44] Trial ts 159 - 160.
The complainant's mother then confronted the appellant about what the complainant had told her. He did not respond, and the complainant's mother told the appellant to get out of the house. The appellant followed her outside where the complainant's mother asked the complainant, 'Did dad really do all this stuff to you?' The complainant responded, 'Yes'. The appellant did not do anything.[45]
[45] Trial ts 163 - 164.
After that, the complainant's mother received a telephone call from the appellant's mother. The complainant then spoke with the appellant's mother. The complainant's mother was able to hear the conversation as the telephone was on loudspeaker. The complainant told the appellant's mother 'basically along the same lines of what she told [the complainant's mother],' that the appellant had 'put his penis in her mouth and white stuff had come on the towel.'[46]
[46] Trial ts 164.
The appellant grabbed his clothing and left pretty much straight away. That was the end of the complainant's mother's relationship with the appellant, and the end of his relationship with his children. The complainant's mother then took the complainant to the hospital in the Town. The next day, on 29 December 2015, the complainant's mother took the complainant to Princess Margaret Hospital. On 30 December 2015, the complainant's mother took the complainant to do an interview.[47] The complainant had her second and third interviews in 2018. The complainant's mother did not tell the complainant what to say in any of those interviews.[48]
Evidence of the complainant's sister
[47] Trial ts 164 - 165.
[48] Trial ts 169.
The complainant's sister participated in a CWI on 13 August 2018 when she was 14 years old and gave evidence at trial when she was 15 years old.
The effect of her evidence was that she, the complainant, and the appellant drove from Mandurah to the Town. When they arrived home, the appellant asked the complainant's sister to get some food from a shop across the road. When the complainant's sister left, the complainant was playing in her room and the appellant went out to the backyard for a smoke. When the complainant's sister returned about 25 minutes later, the complainant and the appellant were sitting on a couch in the lounge room. The appellant made the girls some food and the complainant's mother arrived home not long afterwards. The next day, after the complainant told her some things, the complainant's mother told the appellant to get out of the house and that he was disgusting.[49]
[49] CWI, 13 August 2018, 26 - 31, 39 - 41; trial ts 136 - 139.
The complainant's sister said that she never saw the complainant's older brother showing rude movies to the complainant, playing with himself in front of the complainant or touching the complainant in a sexual way.[50]
Evidence of the complainant's older brother
[50] Trial ts 133, 140.
The complainant's older brother gave evidence at trial when he was 17 years old. His evidence was that the complainant called the appellant 'dad'. He admitted having watched pornography on his phone prior to the time of the alleged offending and that the appellant broke his phone after it was found. However, the complainant's older brother denied ever showing the complainant pornography on his phone, playing with himself in front of the complainant or touching the complainant in an inappropriate way.[51]
[51] Trial ts 145 - 146.
The complainant's older brother recalled joining his three siblings, the complainant's mother and the appellant, at holiday villas in Albany in about April 2015. However, he denied showing pornographic videos to the complainant in the holiday villas.[52]
Evidence of Dr Tung
[52] Trial ts 148 - 149.
Dr Scarlette Tung was a consultant paediatrician at the Child Protection Unit at the Perth Children's Hospital. She reported the results of an examination of the complainant by Dr Alice Johnson at Princess Margaret Hospital on the morning of 29 December 2015. The genital examination showed the complainant's vagina and anus to be normal, which neither confirmed nor refuted the allegations of sexual penetration. Dr Tung would not necessarily expect to see injury to the vagina of a child penetrated by an adult penis with a metal ring. It was very unlikely that the examination would pick up any evidence of penetration on a child after a week had passed.
Defence counsel elicited from Dr Tung the contents of a note which Dr Johnson had made of the account given by the complainant's mother at the time of the examination, which differed in some respects from the evidence given by the complainant's mother at trial.[53]
Evidence of investigating officer
[53] Trial ts 120 - 122.
Detective First Class Constable Kristi McVee was the investigating officer. She described the police file being opened in 2015 and being closed for a period until it was reopened in July 2018. Constable McVee tendered a copy of the complainant's birth certificate. In cross-examination, she agreed that a police analysis of the appellant's electronic devices did not reveal any evidence of child sexual offences.[54]
[54] Trial ts 203 - 205.
Defence evidence at trial
The appellant elected to give evidence at trial. He was 35 years old at the time of giving evidence.[55]
[55] Trial ts 207.
In giving his account of the family relationships, the appellant described issues with the complainant's older brother playing pornography on his phone, including with the complainant, and playing with his penis, including in front of the complainant. There were also occasions on which the complainant's older brother was found in her bedroom.[56] The appellant described an incident of the complainant's older brother showing the complainant pornography on his phone during a family holiday at villas in Albany in the first week of the April 2015 school holidays.[57] The appellant also described an incident when the family went to his mother's house just before Christmas in 2015, when the complainant was sitting on her brother's lap and he had his hand 'up her skirt.'[58]
[56] Trial ts 211 - 219.
[57] Trial ts 211 - 214.
[58] Trial ts 219.
The appellant described driving back to the Town with the complainant and the complainant's sister on 22 December 2015, as his back hurt and he wanted to take his painkillers. They arrived home mid-afternoon. The appellant took some painkillers and put a load of towels in the wash, as the complainant's mother had asked him to do so. He sent the complainant's sister across the road to the shops to get some food. He was having a smoke in his backyard and speaking to his mother on the phone during the 10 minutes when the complainant's sister was away. After the complainant's sister returned, the appellant made some food before going to lie down on his bed. The appellant fell asleep and woke up the next morning.[59] The complainant's mother arrived home late on the afternoon of 23 December 2015.[60]
[59] Trial ts 220 - 222.
[60] Trial ts 223.
The appellant denied sexually penetrating the complainant or ejaculating on a towel in her presence.[61]
[61] Trial ts 222 - 223.
After approximately 9.00 am on 28 December 2015, the complainant's mother woke the appellant up and told him to speak to the complainant, who was saying 'weird stuff' and would not talk to her. He got up, got dressed and went out the back of their house. The complainant's mother twice said, 'Daddy touched your vagina' and each time the complainant did not reply. The complainant's mother told the complainant to focus, but the complainant tried talking about a Christmas toy. The complainant's mother asked the appellant whether he had touched the complainant, and he said he had not. The appellant said the complainant's name, and the complainant's mother told him not to talk to the complainant.[62]
[62] Trial ts 223.
The appellant called his mother and gave the phone to the complainant's mother so the complainant could talk to the appellant's mother. The phone was on loudspeaker. The complainant was chatting to the appellant's mother about stuff she got for Christmas. The complainant's mother was whispering something in the complainant's ear. The complainant then started to say to the appellant's mother 'at your house', and the complainant's mother said, 'No [the Town]'. The complainant's mother took the phone off the complainant and gave it to the appellant. The phone was hung up when it was passed to the appellant.[63]
[63] Trial ts 223 - 224.
The appellant then called his father, who advised him to go to the appellant's mother's house until things were sorted out. The appellant packed a few days' clothes and left. He told the complainant's mother where he was going and asked the complainant's mother to take the complainant to hospital to have her examined. He never returned to the house after that.[64]
[64] Trial ts 224.
The appellant said that there were a couple of occasions on which the complainant had walked in on him having sex with the complainant's mother.[65]
[65] Trial ts 225.
The appellant said that the complainant called him by his first name and did not call him 'dad'.[66]
[66] Trial ts 225, 245 - 246.
The appellant maintained this account under cross-examination.
Additional evidence in the appeal
As noted above, both parties have applied to adduce additional evidence in the appeal.
By application filed 18 August 2021, the appellant seeks leave to adduce the witness statement of his mother, dated 21 November 2018, which was annexed to the appellant's affidavit sworn 16 August 2021. By application filed 30 November 2021, the appellant seeks leave to adduce two affidavits of the appellant, both affirmed 29 November 2021, and two affidavits of the appellant's mother, one sworn 10 September 2021 and the other sworn 19 November 2021.
By application dated 11 April 2022, the respondent seeks leave to rely on two affidavits of defence counsel, both sworn 8 April 2022.
The court indicated that it would receive the evidence sought to be adduced by the parties provisionally and rule on its admissibility in these reasons.
Appellant's additional evidence in the appeal
The appellant's typewritten affidavit of 29 November 2021 contains a large amount of material which is inadmissible opinion, hearsay or argumentative statements. We would uphold the State's objections to the following parts of the affidavit:
Par 1 (last sentence) Opinion
Pars 2 - 4Opinion and argument
Par 5 (last two sentences) Hearsay
Par 6Opinion
Par 7 (last two sentences) Hearsay and argument
Par 8 (text after 'break') Opinion and argument
Pars 9 - 13Opinion and argument
Pars 14 - 17Hearsay.
We would also uphold the State's objection to the last sentence of the appellant's handwritten affidavit of 29 November 2021, on the basis that it is argument and opinion.
We would receive the balance of those two affidavits as additional evidence in the appeal. The evidence is to the following effect.
The appellant deposes that defence counsel refused to follow his instructions as to the evidence he wanted adduced and four witnesses whom he wanted to give evidence.[67] The appellant wanted his mother, father, stepmother and sister to give evidence. As the trial came up, defence counsel said that he was only going to call the appellant's mother as what the other three had to say was irrelevant. At a meeting on the night of the second day of trial, defence counsel said that the appellant's mother would be called. However, the next day, counsel said that the appellant's mother would be called 'if there's time'. However, counsel closed the defence case without calling the appellant's mother.[68]
[67] First affidavit, par 1.
[68] Second (handwritten) affidavit.
As to his own evidence, the appellant deposes:[69]
There was a lot I wasn't able to tell the jury. I was in a daze, I was using all my energy on the stand not to break down. I had no sleep the night before I took the stand as that evening before I found my father had passed away that morning. I wanted an adjournment for a few days to get myself together cos I was in shock but [defence counsel] already said before the trial started he would not go past the Friday or adjourn for any reason cause he had another trial to start on the Monday which is also a reason he didn't want my witnesses or do the questioning I asked.
[69] First affidavit par 5.
The appellant deposes that he gave defence counsel paperwork during the trial which showed the complainant's mother to be lying about staying at the Albany accommodation where he said the complainant's older brother had been caught showing the complainant pornography.[70] The appellant says that during the trial he kept being told that things he thought contradicted prosecution witnesses were irrelevant. The appellant says that defence counsel told him not to talk or pass him notes during the trial and he had to wait for breaks, which was too late to bring things up.[71]
[70] First affidavit, par 7.
[71] First affidavit, par 8.
In the appeal hearing, the appellant was cross-examined on his affidavit. The appellant said that during the trial he handed himself into the custody section before 8.30 am each day. The custody officers took his personal effects, and he did not take a phone with him. The appellant agreed that his father died on Wednesday 13 November 2019. The appellant said that defence counsel told him his father had died before court on the Wednesday morning, before he gave evidence. The appellant's evidence was that defence counsel told him that an adjournment would not be permitted.[72]
[72] Appeal ts 14 - 16.
The main controversial part of the appellant's evidence on appeal concerns the time he was informed of his father's death. We do not accept that aspect of the appellant's evidence. It is inconsistent with the objective evidence, noted below, that defence counsel was only informed of the death of the appellant's father by text message at 4.30 pm on Wednesday 13 November 2019. There is also an apparent element of reconstruction, as opposed to recollection, in the appellant's evidence. This is illustrated by the appellant's account in his affidavit of being informed of his father's death the evening before he gave evidence, and the variation of that account when he appreciated that this could not have been the timing.
The transcript does not reveal that the appellant was in a daze and could not respond to questions. The appellant began his evidence shortly after midday on 13 November 2013. With a lunch break between 1.00 pm and 2.15 pm, he gave evidence until just after 4.00 pm. His answers were consistent, coherent and generally responsive to questions.
We note that the appellant also seeks, by application filed on 18 August 2021, to adduce his mother's police statement as additional evidence in the appeal. As the statement is annexed to his mother's affidavit of 10 September 2021 and will be admitted as additional evidence in the appeal, there is no utility in admitting the second copy annexed to the appellant's affidavit sworn 16 August 2021.
Additional evidence of appellant's mother
The appellant's mother has sworn two affidavits dated 10 September 2021 and 19 November 2021.
In her affidavit of 10 September 2021, the appellant's mother annexes a police witness statement she signed on 21 November 2018 and says that the contents of that statement are true.
The State objected to the receipt of pars 11 - 18 of that witness statement on the ground that, so far as it is relied on as evidence of the truth of what is set out, the evidence infringes the rule against hearsay. We would uphold that objection, and not use those parts of the statement for that purpose. However, the whole of the statement should be received as additional evidence in the appeal.
In the statement, the appellant's mother recounts observing, on separate occasions, the complainant's older brother watch pornography on his phone with the complainant (pars 24 - 37), put his hand up the complainant's dress as she was sitting in his lap (pars 39 - 47), lock himself in the bathroom when the complainant was having a bath (pars 48 - 58) and put his hand down the complainant's bathers in a paddling pool at Christmas 2015 (pars 74 - 82).
The appellant's mother recounted the family coming to stay with her about a week before Christmas 2015, and the appellant returning home early so he could take pain medication. The appellant called his mother from the Town later that day and said that the complainant's sister had gone to the shop across the road to buy milk for milkshakes. The appellant's mother says that she spoke to the appellant until the complainant's sister returned home (pars 59 - 73).
A few days after Christmas 2015, the complainant's mother called the appellant's mother. The complainant's mother told the appellant's mother that the complainant had said that 'daddy' had touched her private parts. The complainant's mother put the complainant on the phone but the appellant's mother could not hear much. The appellant's mother was asking questions like, 'What happened?' and was trying to talk to the complainant (pars 83 ‑ 87). The appellant's mother said (par 88):
[The complainant's mother] was yelling and saying stuff in the background telling her what to say like, 'Say daddy touched you'.
In her affidavit sworn on 19 November 2021, the appellant's mother deposed that she and the appellant met with defence counsel on the evening of 'Tuesday 11 November 2019' (although 11 November 2019 was a Monday). Defence counsel said that he was going to call the appellant's mother as a witness, but later changed it to 'if there was time'. The appellant's mother was not called as a witness at the appellant's trial.
The appellant's mother maintained the above account in cross‑examination. She also said that she learned that the appellant's father had passed away at about 8.30 am one morning of the trial. She said that she saw defence counsel heading into court and asked him (in person) to let the appellant know that his father had died. She initially denied sending any text messages, but ultimately accepted that she sent defence counsel a text message at or before 4.30 pm on 13 November 2019 which read:[73]
Hi [defence counsel], I received a call today from [the appellant's] step mother to advise that his father passed away in his sleep this morning.
[73] Appeal exhibit R1.
Defence counsel responded with a message that, 'I won't say anything to him'.
There was nothing in the manner in which the appellant's mother gave evidence which caused us concern. However, there were two aspects of her evidence which lead us to conclude that her evidence is unreliable.
First, we cannot accept that the appellant's mother has this detailed recollection of the mundane regular telephone conversation which she had with the appellant on the day of his return home to the Town (referred to at [88] above). The appellant's mother recounted this conversation to police in November 2018, almost three years after the conversation took place. The appellant's mother accepted that this was an unremarkable conversation with a son with whom she spoke to on the telephone very regularly.[74] The appellant's mother accepted that she was trying to make it sound like the only time the appellant was alone with the complainant was when the complainant's sister was over at the shops and the appellant was talking to her.[75]
[74] Appeal ts 26 - 27.
[75] Appeal ts 27.
Secondly, the appellant's mother's account of having told defence counsel of the death of the appellant's father is inconsistent with the text message quoted at [91] above. That text message indicates that she was informing defence counsel of the event for the first time, and there would be no reason to send that message if she had told defence counsel of the death of the appellant's father in person that morning.
We would not find that the appellant's mother is a deliberately dishonest witness. However, we find that much of her evidence is a reconstruction of events in a manner which suits the interests of her son. In our view, the appellant's mother is not a reliable witness in relation to her evidence generally.
Additional evidence of defence counsel
The State seeks to adduce additional evidence from defence counsel contained in two affidavits sworn 8 April 2022: a main affidavit and a supplementary affidavit. The supplementary affidavit merely deciphers handwritten notes which counsel made on proofs of evidence which are annexed to the main affidavit.
Much of defence counsel's main affidavit consists of his responses to the appellant's complaints as to the conduct of the trial and sets out his subjective reasons for taking the approach which he did. However, as explained below, the test for determining whether counsel's conduct of the trial gives rise to a miscarriage of justice is objective and turns on whether there is an objectively rational forensic basis for the approach taken. Evidence of counsel's subjective reasons is not admissible. We would exclude pars 38, 42 - 73, 75 - 98, 103, 118 - 149, 157 - 167, 179, 183 and 188 - 198 of the main affidavit on that basis.
Defence counsel deposes as follows in the balance of his main affidavit.
Defence counsel commenced acting for the appellant after receiving a grant of legal aid on 17 August 2018. He received police disclosure in October 2018 and the prosecution brief on or about 14 February 2019 (pars 5 - 7).
Defence counsel conferred with the appellant, his mother, stepmother and father over a 3-hour period on 21 February 2019 (par 9).
On 18 September 2019, defence counsel drafted statements of the appellant, his mother and stepmother from information provided at the conference on 21 February 2019 (par 10).
Defence counsel had a 4-hour long conference with the appellant on 19 September 2019 at which he settled two statements of the appellant, the second responding to statements of the complainant's mother, which were emailed to the appellant on 22 September 2019 (pars 11 - 19).
The pre-recording of the complainant's evidence took place on 23 September 2019. There was no information in the material in counsel's possession at that time that the complainant and the complainant's older brother had been playing a 'mummy's and daddy's' game. The appellant had not given defence counsel any instructions about par 15 of the police statement of his mother, which referred to the complainant's mother saying that the complainant's brother insisted on the complainant calling him 'daddy' (pars 37, 39 - 41).
At the pre-recording, the appellant was wanting to interrupt defence counsel during cross-examination to tell him things. Defence counsel told the appellant that they could not speak while the trial was proceeding and that they could only speak during breaks in the evidence. Defence counsel told the appellant to write anything down that occurred to him and pass the note to defence counsel during the break. The appellant did this during the course of the trial (pars 199 - 206).
Defence counsel received further pre-trial disclosure, mainly arising from interviews with prosecution witnesses, on 8 November 2019. Counsel met with the appellant on that day and prepared a responsive witness statement (pars 20 - 30). At the conference on 8 November 2019, defence counsel advised the appellant that, as per his wishes and defence counsel's recommendation, the appellant would be called as a witness. Counsel advised that he would possibly be calling the appellant's mother. Counsel further advised that he would not be calling the appellant's father or stepmother as he did not consider they had any relevant evidence to give in the trial (pars 33 - 36, 104). Counsel advised that the appellant's mother should stay out of the courtroom and he would make a final decision as to whether to call her after the prosecution case had closed (pars 153).
Defence counsel had a conference with the appellant and the appellant's mother after court on 12 November 2019 (the second day of trial). He went through the evidence contained in the appellant's statement and made some handwritten notes on the statement. Defence counsel advised that the only witness he would be calling was the appellant and that he would not call the appellant's mother as a witness. He gave advice as to the strength of the prosecution case, which was a 'word against word' case. Counsel advised that he anticipated the appellant would give clear and strong evidence and counsel did not want there to be any potential for contradiction or inconsistency between the appellant and his mother in the defence case. The appellant did not object to this proposed course of action (pars 105 - 116, 154 - 156).
Defence counsel became aware of the death of the appellant's father when he turned on his phone at about 4.30 pm on 13 November 2019 and received the text message reproduced at [91] above. After reading the message, counsel went to the detention area and debriefed the appellant about his evidence. It did not appear to counsel that the appellant was aware of his father's death. Defence counsel did not say anything to the appellant about his father's death as he felt it was more appropriate for the appellant's mother to tell the appellant after he was released from detention (pars 184 - 187).
At 6.53 pm on 13 November 2013, the appellant emailed defence counsel a booking confirmation for chalets at villas in Albany from 3 - 7 April 2015. Counsel sent this email to the prosecutor indicating that he anticipated applying to reopen the defence case to call the appellant and produce these documents. The prosecutor responded indicating that the documents should have been put to the complainant's mother (pars 168 - 173).
Before court the next morning, 14 November 2019, defence counsel informed the prosecutor that he was not pursuing the application. Defence counsel spoke to the appellant in the detention centre and told the appellant that he was not going to put in the booking confirmation as he did not want to recall the complainant's mother to put the documents to her. In the course of the discussion, defence counsel said that, if the matter were pursued at trial, the trial may not finish within the allocated week. Defence counsel did not say that he had a trial commencing the following week. Counsel did not have a trial the following week and time considerations played no part in his decision on the issue (pars 174 - 182).
The appellant, who was self-represented in the appeal, cross-examined defence counsel with some assistance from the court. Defence counsel maintained the above account in cross-examination. There was nothing about the content of defence counsel's evidence or the manner in which it was given which causes us to doubt its reliability and accuracy.
We also note that, during cross-examination, defence counsel said that the appellant did not appear to be in a dazed state when he gave his evidence. Defence counsel formed the view that the appellant gave very good evidence and there was nothing affecting his ability to give that evidence. Defence counsel noticed a change in the appellant's demeanour on the following day, when he appeared to be withdrawn, quiet and subdued.[76] We accept that evidence.
[76] Appeal ts 50.
Ground of appeal 2: incompetence of counsel
It is convenient to begin by considering ground 2, which contends that incompetence of trial counsel resulted in a miscarriage of justice.
General principles
The relevant general principles as to when a miscarriage of justice may arise through incompetent representation were summarised by this court in Huggins v The State of Western Australia.[77] We adopt that comprehensive analysis without repeating it, noting the following passage of the reasons in that case:[78]
An appellant who seeks to demonstrate that the conduct of his or her counsel caused a miscarriage of justice undertakes a heavy burden which is not easily discharged. This is a consequence of the adversarial nature of a criminal trial and the role played by counsel. Ordinarily, an accused is bound by the way the trial is conducted by counsel even if that was not in accordance with the wishes of the client. It is not a ground for setting aside a conviction that decisions made by counsel were made without or contrary to instructions or involved errors of judgment or even negligence. It is not the province of appellate courts to review the wisdom or prudence of the conduct of a trial by trial counsel. For example, an apparently rational decision by trial counsel as to what evidence to call or not to call does not give rise to a miscarriage of justice simply because an appellate court thinks it worked to the probable disadvantage of the appellant. (citations omitted)
[77] Huggins v The State of Western Australia [2018] WASCA 61 [375] - [401].
[78] Huggins [376].
Further, as was reiterated in Jeffery v The State of Western Australia,[79] this court does not examine whether a decision taken by the appellant's counsel at the trial was, in fact, taken for the purpose of obtaining a forensic advantage or avoiding a forensic disadvantage. Rather, the 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.
Failure to allege complainant's older brother committed the charged offences
[79] Jeffery v The State of Western Australia [2018] WASCA 219 [104] (citing Buss P in Rodi v The State of Western Australia [2017] WASCA 81; (2017) 51 WAR 96 [115]).
The appellant makes a series of complaints about the failure of defence counsel to ask questions of witnesses which would elicit evidence that the complainant's older brother committed the charged offences. This included asking questions of witnesses as to whether the complainant would call her older brother 'daddy', whether they would play a 'mummy's and daddy's' game or whether the complainant's brother touched her inappropriately.[80]
[80] Appellant's submissions, pars 55 - 84.
A strength of the prosecution case was that the complainant had, as a 4‑year‑old, described sexual activity (including the appellant ejaculating on a towel) of which a child that age would not be expected to have any knowledge. The jury might well think that a child of that age could not give that description of events unless she had actually experienced them. The reasonable forensic basis for suggesting that the complainant's older brother had shown her pornography and otherwise acted in a sexually inappropriate manner towards her was to try and sow a doubt in the jury's mind as to whether the complainant might have gained knowledge of sexual matters from her older brother. That was the use which defence counsel suggested to the jury in closing submissions could be made of this evidence.[81]
[81] Closing ts 40 - 42.
However, in our view, there were very sound forensic reasons for defence counsel not to go further and contend that the charged offences were committed by the complainant's older brother, rather than the appellant.
First, defence counsel had no instructions or material which would form a proper forensic basis for putting to witnesses that the complainant called her brother 'daddy'. The only indication was a sentence in the police statement of the appellant's mother, referred to at [104] above, which appeared to be a statement of what the appellant's mother had been told by the complainant's mother.
Secondly, the complainant's evidence was very clear that the appellant was the person who offended against her. The evidence referred to at [24], [36], [37] and [40] above made it plain that the complainant was describing conduct by the appellant and not her older brother. Defence counsel could reasonably apprehend that the jury would regard as preposterous any argument that the complainant had mistaken her 13-year-old brother for her 32-year-old father.
Thirdly, the complainant's brother could not have committed the offences on the charged occasion as, on the evidence of all witnesses, he was in Mandurah rather than the Town at the time.
Fourthly, on 14 August 2007 the appellant was convicted of two counts of sexually penetrating a child over 13 and under 16 years of age. The appellant was imprisoned for that offending, which occurred on 19 August 2006. Defence counsel could reasonably be concerned that an allegation that the complainant's older brother was the offender, which would impugn the character of a prosecution witness, would prompt the prosecutor to seek to adduce evidence of the appellant's prior convictions under s 8(1)(e)(ii) of the Evidence Act 1906 (WA). Obviously, that evidence would be highly prejudicial to the defence case at trial if the trial judge permitted the prosecutor to adduce it.
The appellant's submissions also criticise defence counsel for failing to ask questions of child witnesses in an age-appropriate way, or to address matters which the appellant wanted counsel to address in questioning.
Having reviewed the transcript of the cross-examination, we are not persuaded that the manner in which questions were asked gave rise to any miscarriage of justice.
The appellant's submissions concerning the alleged failure by counsel to follow his instructions proceed on a misunderstanding of the role of defence counsel in a criminal trial. As this court noted in Morgan v The State of Western Australia:[82]
Counsel is not the mere mouthpiece of his or her client, who must follow 'instructions' as to the questions to be asked of witnesses or the details of the evidence to be adduced from those witnesses. Counsel is required to make an independent judgement about those matters, in a manner which is consistent with counsel's professional obligations both to the client and the court. The 'instructions' taken by counsel are not as to matters of that kind, but as to the relevant circumstances understood by the client and matters such as whether the client wishes to give or adduce evidence. The fact that [trial counsel] did not comply with requests to ask particular questions of particular witnesses, or produce particular photographs, does not establish a miscarriage of justice.
Failure to call the appellant's mother as a witness
[82] Morgan v The State of Western Australia [2019] WASCA 185 [217].
The appellant also complains about defence counsel's decision not to call his mother as a defence witness.[83] The decision as to whether or not to call the appellant's mother as a witness was also a matter within defence counsel's remit.
[83] Appellant's submissions, pars 88 - 92.
The appellant's mother's evidence would support aspects of the appellant's evidence, including the conduct of the complainant's older brother and the telephone conversation which the appellant had with his mother on the afternoon of his return to the Town. The appellant's mother's account of the telephone conversation on 28 December 2015 indicated that the complainant's mother was trying to put words in the complainant's mouth. There were, therefore, forensic advantages to calling the appellant's mother as a witness.
However, there were also forensic risks and disadvantages to calling the appellant's mother. In particular, there was a risk of the appellant's mother's evidence contradicting or being inconsistent with the appellant's evidence. There was at least one area of contradiction indicated by the material available to defence counsel when the decision was made, in relation to the phone call on 28 December 2015. The appellant's evidence was that the complainant's mother was whispering something to the complainant when the complainant was speaking to the appellant's mother on speakerphone (see [65] above). The appellant's mother's police statement indicated that the complainant's mother was yelling and saying stuff in the background telling the complainant, 'Say daddy touched you' (see [89] above). Counsel could reasonably be concerned that other inconsistencies and contradictions could emerge as the appellant's mother gave oral evidence and was cross-examined by the prosecutor.
The forensic value of the appellant's mother as a witness was limited by her natural interest in protecting the appellant. Defence counsel could reasonably apprehend that the credibility of the mother's evidence generally would be attacked by reference to her implausible account of being able to recall an unremarkable conversation between her and her son three years after the event (see [88] and [94] above).
It was open for defence counsel to reasonably take the view that the forensic risks of calling the appellant's mother as a defence witness outweighed the forensic advantages of doing so.
In reaching that conclusion, we recognise that one of a number of questions asked by the jury during the course of their deliberations was whether there was a statement from the appellant's mother.[84] The trial judge properly directed the jury not to speculate about what the appellant's mother would say.[85] The question suggests that there might have been some potential for the absence of the appellant's mother to have worked to the appellant's detriment. However, three matters should be noted about this jury question. First, the question of whether there was an objectively reasonable forensic decision is not to be judged with the benefit of hindsight. Secondly, the jury is presumed to have followed the trial judge's direction not to speculate about what the appellant's mother may have said. Thirdly, the fact that a reasonable forensic decision may actually work to an accused's disadvantage is not a basis for concluding that there has been a miscarriage of justice.
[84] Trial ts 346.
[85] Trial ts 351.
Having regard to the above matters, we are not persuaded that defence counsel's forensic decision not to call the appellant's mother as a witness gave rise to a miscarriage of justice.
Failure to call other witnesses
The appellant's affidavits also refer to the fact that defence counsel did not call his father, stepmother or sister as defence witnesses. However, there is nothing in the material before this court, or in the material which defence counsel had at the time of the trial, to indicate that there was any relevant and admissible evidence which these witnesses could have given.
Failure to adduce evidence of Albany accommodation booking records
The appellant's typewritten affidavit also refers to the fact that the records of the booking of Albany accommodation in April 2015 were not adduced in evidence. The appellant only provided these records to defence counsel on the evening of 13 November 2019 after the close of evidence. Producing the records would have required recalling the complainant's mother for further cross‑examination.
In our view it was a reasonable forensic decision not to pursue this course. While the complainant's mother had denied having a holiday in Albany in April 2015 (see [45] above), her evidence in that respect had been contradicted by the complainant's older brother (see [56] above). The significant question for the trial was not whether the family holidayed in Albany but whether the complainant's older brother was caught showing her pornography at that time. The showing of pornography was denied by the complainant, the complainant's older brother and the complainant's mother. The records of the accommodation booking were not probative of that question. Counsel could reasonably take the view that seeking to reopen the defence case and recall the complainant's mother for further cross‑examination was unnecessary.
Failure to seek an adjournment after death of the appellant's father
In assessing the additional evidence in this appeal, we have found that neither the appellant nor defence counsel were aware of the death of the appellant's father until after the conclusion of the appellant's evidence. The death of the appellant's father during the course of the trial could therefore not have affected the manner in which the appellant gave evidence. There was no miscarriage of justice arising from the trial proceeding to counsel's closing submissions and the trial judge's directions, which did not require any input from the appellant, after the appellant learned of his father's death.
Complainant's reference to seeing parents have sex
On appeal, it is common ground that there is a transcription error in the transcript of the complainant's CWI on 30 December 2015. A passage which is transcribed as partly indistinct can be heard as the complainant describing seeing the appellant put his penis in her mother's vagina.[86] Defence counsel was only able to hear this statement when the recording was played to the jury at high volume on the court's audio-visual system.[87] However, the evidence, which was the recording rather than the transcription, was before the jury.
Conclusion as to ground 2
[86] See appellant's submissions, par 86; respondent's submissions, par 40.
[87] See defence counsel's main affidavit, pars 99 - 102.
For the above reasons, in our view none of the appellant's criticisms of defence counsel's conduct of the trial are established. Leave to appeal should be refused on ground 2 which has no reasonable prospect of succeeding.
Ground of appeal 1: new evidence
Ground 1 contends that the failure to call 'new' evidence at trial resulted in a miscarriage of justice.
The principles to be applied in considering whether a miscarriage of justice arises from the absence of evidence at trial are well established.
The unavailability of fresh evidence at trial gives rise to a miscarriage of justice if the appellate court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant if the evidence had been before it at trial.[88] For this purpose, 'fresh' evidence is evidence which either did not exist at the time of the trial or which could not then, with reasonable diligence, have been discovered. 'New' evidence is evidence which was available at the trial or which could, with reasonable diligence, then have been discovered.[89] There is generally no miscarriage of justice in the failure to call evidence at trial if that evidence was then available, or, with reasonable diligence, could have been available, unless the new evidence establishes that the accused should not have been convicted.[90]
[88] Smith v The State of Western Australia [2014] WASCA 90 [159].
[89] Smith [158].
[90] Beamish v The Queen [2005] WASCA 62 [9] - [13]; Smith [160].
The ultimate question always remains whether a miscarriage of justice has occurred. As Gibbs CJ observed in Gallagher v The Queen:[91]
However, I would emphasize that no form of words should be regarded as an incantation that will resolve the difficulties of every case. No test can detract from the force of the fundamental principle that the appeal must be allowed if a miscarriage of justice is shown to have occurred.
[91] Gallagher v The Queen (1986) 160 CLR 392, 399.
In the present case, the evidence on which the appellant relies is that of his mother. That evidence, which was in the appellant's possession at the time of trial, is new evidence rather than fresh evidence. That evidence clearly does not establish that the appellant should not have been convicted of the offences. We have already concluded that no miscarriage of justice arose from defence counsel's tactical forensic decision not to adduce the evidence of the appellant's mother.
There is no merit in ground 1. Leave to appeal on that ground should be refused.
Orders
The appellant requires a significant extension of time in which to appeal. There is no adequate explanation for the delay in appealing, and the lack of merit in the appellant's grounds means that any grant of an extension of time would be futile. We would dismiss the application for an extension of time in which to appeal.
For the above reasons, we would make the following orders in the appeal:
1.The appellant's application in an appeal filed on 18 August 2021, seeking leave to adduce additional evidence in the appeal, is dismissed.
2.The appellant have leave to adduce the following evidence as additional evidence in the appeal:
(a)The appellant's typewritten affidavit affirmed 29 November 2021, other than paragraphs 1 (last sentence), 2 - 4, 5 (last two sentences), 6, 7 (last two sentences), 8 (text after 'break') and 9 - 17.
(b)The appellant's handwritten affidavit affirmed 29 November 2021, other than the last sentence.
(c)The affidavit of the appellant's mother sworn 10 September 2021.
(d)The affidavit of the appellant's mother sworn 19 November 2021.
3.The appellant's application in an appeal filed on 30 November 2021, seeking leave to adduce additional evidence in the appeal, is otherwise dismissed.
4.The respondent have leave to adduce the following evidence as additional evidence in the appeal:
(a)The main affidavit of the appellant's trial counsel sworn 8 April 2022, other than paragraphs 38, 42 - 73, 75 - 98, 103, 118 - 149, 157 - 167, 179, 183 and 188 - 198.
(b)The supplementary affidavit of the appellant's trial counsel sworn 8 April 2022.
5.The respondent's application in an appeal filed on 11 April 2022, seeking leave to adduce additional evidence in the appeal, is otherwise dismissed.
6.The appellant's application for an extension of time in which to appeal is dismissed.
7.Leave to appeal is refused on both grounds of appeal.
8.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JB
Associate to the Honourable Justice Mitchell
3 OCTOBER 2022
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