DWG v The State of Western Australia
[2022] WASCA 45
•22 APRIL 2022
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: DWG -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 45
CORAM: BUSS P
BEECH JA
HALL J
HEARD: 23 NOVEMBER 2021
DELIVERED : 23 NOVEMBER 2021
PUBLISHED : 22 APRIL 2022
FILE NO/S: CACR 85 of 2021
BETWEEN: DWG
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: STEVENSON DCJ
File Number : IND 2666 of 2019
Catchwords:
Criminal law - Appeal against conviction - Whether evidence admissible either as propensity evidence or context evidence - Evidence admitted for context only - Evidence not admissible for that purpose - Evidence also not admissible as propensity evidence as did not meet significant probative value test - Evidence highly prejudicial - Miscarriage of justice
Criminal law - Appeal against conviction - Whether Longman direction adequate - Direction given that evidence of appellant's memory loss irrelevant - Failure to refer to memory loss in context of forensic disadvantage arising from delay - Miscarriage of justice
Legislation:
Evidence Act 1906 (WA), s 31A
Result:
Leave to appeal granted
Appeal allowed on grounds 1 and 3
Convictions set aside
Retrial ordered
Category: B
Representation:
Counsel:
| Appellant | : | S Vandongen SC & S Nigam |
| Respondent | : | L M Fox SC |
Solicitors:
| Appellant | : | Nigams Legal Pty Ltd |
| Respondent | : | The Director of Public Prosecutions (WA) |
Cases referred to in decision:
Hughes v The Queen [2017] HCA 20; 263 CLR 338
JEL v State of Western Australia [2022] WASCA 32
Karszniewicz v The State of Western Australia [2020] WASCA 121
LNN v The State of Western Australia [2021] WASCA 39
LNV v The State of Western Australia [2019] WASCA 180
Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
MB v The State of Western Australia [2016] WASCA 160
McPhillamy v The Queen [2018] HCA 52
MNA v The State of Western Australia [2020] WASCA 84
Osborne v The State of Western Australia [2013]WASCA 106
The State of Western Australia v Jackson [2019] WASCA 118
REASONS OF THE COURT:
The appellant was convicted after trial of 24 sexual offences. He appealed his conviction. In essence, the grounds were that there had been a miscarriage of justice due to inadmissible evidence being adduced at the trial and because the trial judge failed to give adequate directions to the jury on an issue that was relevant to the appellant's ability to defend himself.
The respondent conceded that the appeal should be allowed. At the hearing of the appeal, we were satisfied that that concession was properly made. We therefore allowed the appeal, set aside the convictions and ordered a retrial. These are our reasons for making those orders.
Prosecution case
The prosecution case was that the appellant had sexually abused three boys between about 2003 and 2014. The offences were alleged to have occurred at the appellant's home in Morley, as well as in his car and at his parents' house in Mandurah.
Counts 1 to 17 on the indictment were alleged to have occurred between 30 October 2003 and 31 October 2004 and related to a complainant, SB, who was 14 years of age at the time. Those offences were alleged to have arisen in the context of the appellant helping the complainant with an interest in go‑kart racing. The appellant was acquitted of one of those charges (count 15) and convicted of the remainder.
Counts 18, 19 and 20 were alleged to have occurred between 2 April 2013 and 7 June 2014 and related to another complainant, BB, who was 16 years of age at the time. BB was the appellant's nephew. These offences were said to have arisen in the context of the appellant assisting BB with an application to join the police service and with obtaining a driver's licence.
Counts 21 to 25 were alleged to have occurred between 31 December 2008 and 1 January 2010 and related to a third complainant, JW, who was 11 or 12 years of age at the time. JW was the son of the appellant's stepdaughter and knew the appellant as his grandfather. The offences were alleged to have occurred on occasions when JW was visiting the appellant's home.
Defence case
The defence case was that the appellant had suffered severe mental health issues from at least 1989 and was diagnosed with severe post‑traumatic stress disorder and major depression in June 2002. Over the next 15 years, he suffered numerous major breakdowns including several suicide attempts resulting in hospitalisation. From around 2014 the appellant commenced having serious memory lapses. This was compounded by a mini stroke that he suffered in December 2017 and electro‑convulsive therapy that he received in 2018. The appellant consulted medical specialists who concluded that he suffers from dissociative amnesia.
The defence case was that as at the date of the trial the appellant had no memory of his private life and, in particular, no memory of the alleged incidents. The effect of this was said to be that the appellant was not in a position to give any direct evidence of the periods when the offences were alleged to have occurred. The appellant was, therefore, unable to adduce any positive evidence that the offences did not happen, including by giving evidence amounting to an express denial.
The defence was limited to putting the prosecution to proof of the offences. Defence counsel said in opening that he would attempt to show, by cross‑examination and by reference to some of the surrounding circumstances, that the prosecution evidence was not sufficiently reliable in each instance to prove beyond reasonable doubt that an offence had occurred.
Grounds of appeal
The grounds of appeal are as follows.
1.A miscarriage of justice was occasioned by the admission into evidence of the evidence of TB, that she had seen the words, 'how much come (sic) does a 14‑year‑old boy have' on the appellant's computer screen.
2.A miscarriage of justice was occasioned by the trial judge's directions to the jury as to the uses to which TB's evidence about the words that she had seen on the appellant's computer screen could be put, and his failure to instruct, or adequately instruct, the jury about the issues to which that evidence must not be put.
3.The learned trial judge made a wrong decision on a question of law by failing to direct the jury about the relevance of evidence adduced in the appellant's case concerning the state of the appellant's memory to the issue of whether, and to what extent, the appellant had suffered a forensic disadvantage occasioned by the delay, or otherwise, or that the directions that were given occasioned a miscarriage of justice.
Grounds 1 and 2
Grounds 1 and 2 - relevant evidence
The appellant's wife, TB, was called as a defence witness. During cross‑examination by the prosecutor, she was asked questions about an office area in the house. TB said that the office had been set up for the appellant but that she did a lot of her computing work in that room, even though she had her own office. She was asked whether there was an occasion that she went into the office and saw some child pornography on the computer. No evidence about child pornography had been adduced by the prosecution as part of its case.
TB denied seeing any child pornography on the computer. She was then shown a witness statement and asked to refresh her memory. She agreed that in 2010 she had walked into the appellant's office and his computer was on. She had typed in the word, 'how' and the phrase 'how much come does a 14‑year‑old boy have' came up at the top of the screen.
The implication of the evidence was that TB had been using a search engine, had typed in the word 'how' and the search engine had offered a previous search starting with the same word. The implicit, but unmistakeable, suggestion was that the appellant was responsible for that previous search. The appellant's counsel did not object to the evidence and in re‑examination sought to clarify what had occurred. The following exchange occurred.
So just describe what happened. You walked into [the appellant's] office?‑‑‑I walked into [the appellant's] office. I sat down at the computer. I went to type in something and across the top of the screen came some words, yes. That's what happened.
All right. And they're the words that the prosecutor just read out?‑‑‑Yes, they are correct.
Grounds 1 and 2 - closing addresses and trial judge's directions
At the conclusion of the prosecutor's closing address, and in the absence of the jury, the prosecutor said that she had overlooked making submissions on the evidence of TB regarding the computer search. She asked to be allowed to make further submissions to the jury and was permitted to do so.
Although the transcript records the prosecutor as telling the trial judge that the State did rely on the evidence as propensity evidence, it is evident that this is a misprint or a misstatement. The exchange that immediately follows between the trial judge and the appellant's counsel proceeds on the basis that the evidence was not sought to be relied on as propensity evidence. The prosecutor did not dispute this and later in the trial made submissions that make it clear that the prosecution did not rely on the evidence for propensity purposes.
Later in the discussion, the trial judge drew a distinction between the cross‑admissibility of evidence relating to each of the counts on the indictment as propensity evidence and the use that could be made of the evidence of TB regarding the computer. In that regard, his Honour said in discussion with the prosecutor:
STEVENSON DCJ: [i]t would require a very clear distinction in relation what [TB] said she found on the computer of the accused with respect to 14‑year‑old boys and the way in which that evidence can be used which is not for the same purpose, it's just part of the context ---
BOOTS, MS: Accepted, your Honour.
STEVENSON DCJ: and circumstantial ---
BOOTS, MS: Yes.
STEVENSON DCJ: evidence.
BOOTS, MS: Yes.[1]
[1] ts 407.
In his directions to the jury, the trial judge said that the State relied on certain aspects of the evidence as being capable of supporting an inference that the appellant had a sexual interest in young boys. In particular, his Honour said that if the jury were satisfied beyond reasonable doubt in relation to two or more of the counts on the indictment, they could make a finding of fact that the appellant had a sexual interest in young boys and was prepared to act upon it when he had an opportunity to do so. His Honour then referred to the evidence of TB in the following terms:
And as part of the circumstantial evidence with respect to the alleged tendency of the accused with respect to young boys, the State relies upon the evidence of [TB] with respect to what she uncovered on the computer of the accused in his study on the occasion that she mentioned.[2] (emphasis added)
[2] ts 473.
At the conclusion of the directions, and in the absence of the jury, the prosecutor raised a concern that the directions may have indicated that the evidence of TB could be used by the jury as propensity evidence. The trial judge said that was not his intention and that the evidence was 'part of the context and circumstances'.[3] The prosecutor said that the State accepted that the evidence could be used as circumstantial evidence but not as propensity evidence. His Honour said that the propensity direction that he gave was limited to the cross‑admissibility of evidence relating to each of the counts. Counsel accepted this and a redirection was not given at that point.
[3] ts 498.
The jury continued deliberating into a second day. On the morning of that day, the trial judge said he had had an opportunity to read the transcript of his directions and considered that he should redirect the jury to clarify that the evidence of TB regarding the computer could not be used as propensity evidence. His Honour then gave a redirection to the jury concerning this evidence given by TB that included the following:
When I was summarising the State's case, I referred to that as part of my summary of the State's case. And I indicated to you that it was part of the circumstantial evidence with respect to the alleged tendency of the accused, with respect to young boys, that the State relied upon.
I'm going to ask you to disregard what I said. The State does not rely upon the evidence of [TB] with respect to what she found on the computer for any finding of any tendency on the part of the accused.
And you remember, I gave you a direction yesterday about how there were two different tendencies, one with respect to [JW] in particular, and a general tendency arising out of any verdicts that you might find in the course of your deliberations.
So that evidence of [TB] is simply part of the context and circumstances of all the evidence that's put before you for the purpose of your deliberations. It's not relied upon by the State for any tendency finding.
Grounds 1 and 2 - relevant legal principles
Evidence of an accused's criminal or discreditable conduct which is not the subject of a charge may be admitted for a variety of different purposes. Evidence may be admissible to show that the accused has a particular propensity to act in the manner alleged in the charges. Evidence sought to be used in this way is admissible if it meets the requirements of s 31A of the Evidence Act 1906 (WA), including that it must have significant probative value.
Evidence that shows only a particular sexual interest, but not any disposition to act upon it, will usually not meet the test of significant probative value.[4] Generally, it is the tendency to act on a sexual interest that gives propensity evidence in sexual cases its probative value. Evidence that only shows such a sexual interest, for example things said or written by the accused, will generally not make it significantly more likely that the accused would have committed a particular sexual act. There can be exceptions. For instance, where the evidence shows an interest that has strikingly specific features that are common to the offences.[5]
[4] McPhillamy v The Queen [2018] HCA 52; Hughes v The Queen [2017] HCA 20; 263 CLR 338; The State of Western Australia v Jackson [2019] WASCA 118; MNA v The State of Western Australia [2020] WASCA 84.
[5] Karszniewicz v The State of Western Australia [2020] WASCA 121 [159].
In some cases, evidence of uncharged criminal or discreditable conduct may be relevant on a different basis. Although the evidence may not go to establishing the accused's guilt of the charged offence, it may be relevant to the evaluation of other evidence on which the prosecution relies. This use is often referred to as context evidence.
In LNN v The State of Western Australia,[6] this court noted that the phrase 'context evidence' can cover a variety of different uses of evidence including:
1.the evidence may enable a complainant to give a full account so that their evidence of the accused's conduct on the day of the offence in a familial setting would not appear to be 'out of the blue' and inexplicable on that account;
2.the evidence may show grooming of the complainant from a young age, or otherwise explain the complainant's compliance with the offending and his or her failure to complain;
3.the evidence may explain why an accused might feel able to act with impunity, having gotten away with similar offending before;
4.the evidence may explain why the complainant is unable to give details of a specific incident which formed part of regular, repeated sexual offending by the accused; and
5.the evidence may form an integral part of an account of a connected series of events and may be necessary to render the complainant's account complete and intelligible.[7]
[6] LNN v The State of Western Australia [2021] WASCA 39.
[7] LNN [175].
The court in LNN went on to say that where evidence is admitted for the limited purpose of providing context rather than going towards proof of the prosecution case, and there is a risk that the jury may otherwise apply propensity reasoning to the evidence, a direction will ordinarily be required to avoid a miscarriage of justice. This was also referred to in LNV, in which Beech JA said:
Generally speaking, where evidence is admissible for one purpose but inadmissible for another, the trial judge should direct the jury that they must not use the evidence for the purpose for which it is inadmissible, at least where the use of the evidence for the impermissible or irrelevant purpose would be adverse to the accused. Where evidence is relevant and admissible for other reasons, but incidentally discloses the accused's propensity, a warning to the jury not to engage in propensity reasoning is ordinarily required. That will be all the more so if, as occurred here, evidence that was admissible for other purposes is used by the prosecution to invite propensity reasoning in circumstances where the evidence could not properly be used for such a purpose. [8]
[8] LNV v The State of Western Australia [2019] WASCA 180 at [103] and see to similar effect Buss P and Sofronoff AJA at [78].
There is a risk that, in some cases, evidence that is only capable of being used for propensity purposes is mischaracterised as context evidence. That is, evidence that is only relevant to show that the accused has a particular tendency or disposition may be wrongly described as context evidence. The consequence of such an error is that admissibility is determined on the lower standard of relevance, rather than the more stringent standard of significant probative value. There is also a risk that evidence mischaracterised in this way will not be the subject of the necessary warnings and directions that are given in relation to propensity evidence. For these reasons, it is of the greatest importance to carefully consider, and identify with precision, the use (if any) to which proposed evidence can be put and not to be distracted from that task by a suggestion that the evidence is context evidence.
As will be seen, these risks materialised in the present case.
Grounds 1 and 2 - the merits
In this case, the evidence of TB did not fall within any of the categories of context evidence referred to in LNN. Whilst that list of categories is not exhaustive, the evidence had no apparent relevance other than to proof of a disposition on the part of the appellant. It was not relevant to any other fact in issue at the trial. Nor did it assist in the evaluation of other evidence adduced at the trial. That is, regardless of references to it being context evidence, the only possible use that could be made of this evidence was to prove that the appellant had a propensity that made it more likely that he would have committed the offences.
However, the evidence was not admitted as propensity evidence. Nor could it have been admitted on that basis, as it did not meet the significant probative value requirement. It was not evidence of any act on the part of the appellant but, at its highest, evidence of a general sexual interest in teenaged boys. There was nothing about it that revealed a strikingly specific feature that was reflected in the offences. It thus was not evidence that had significant probative value; see [21] above. That is a conclusion that was accepted by the State, both at trial and on appeal.
The evidence not being admissible as propensity evidence, there was no other legitimate basis upon which it could be admitted. Furthermore, it was evidence that, by its nature, was highly prejudicial to the appellant. There is a real possibility that the jury used that evidence in reaching the conclusion that the appellant was guilty of the offences. A miscarriage of justice was occasioned by the admission of that evidence. For those reasons, ground 1 succeeded.
Since the evidence of TB as to the computer was inadmissible as context evidence, it is unnecessary to determine ground 2. Directions to the jury not to use the evidence for propensity purposes, but permitting the evidence to be used for context, could not undo the miscarriage of justice caused by admitting the evidence.
However, it should be noted that the initial direction given by the trial judge effectively invited propensity reasoning and the final direction, whilst ostensibly excluding such reasoning, failed to explain in clear terms how the evidence could be used. To describe evidence as context or circumstantial evidence is so vague as to be essentially meaningless. As this court has recently observed, the specific use(s) to which the evidence may be put must be identified with precision.[9] Where evidence is admissible only for context purposes, and there is a danger that it could be used as propensity evidence, it is important to not only clearly exclude propensity reasoning but to explain to the jury what relevance the evidence has and how it can be used in their deliberative process. This will usually require explaining to the jury (i) how it might assist in the evaluation of other evidence - the other evidence being identified - or (ii) perhaps more unusually, what facts in issue the evidence relates to.
[9] JEL v State of Western Australia [2022] WASCA 32 [218] - [219].
We turn to explain why ground 3 was also made out.
Ground 3
Ground 3 - relevant evidence
The appellant gave evidence that he had been the victim of sexual abuse as a young man. He also said that he had experienced incidents of a traumatic nature in the course of his work which had an adverse effect upon him. These incidents included some which required him to deal with a suicide and car accidents. Those incidents had impacted on his mental health. By 1990, he was suffering from post-traumatic stress disorder, depression and anxiety. He also gave evidence about having been involved in a motor bike accident. He was admitted to various psychiatric hospitals over the course of 15 years from 2002.
The appellant said that from about seven or eight years prior to the trial he had started to lose his long‑term memories. This condition had gradually become worse. This had led to him signing a power of attorney in favour of his wife. He also had a stroke in 2017 and had undergone electro‑convulsive therapy. Those events also had an adverse effect on his memory.
The appellant gave evidence that he did not recall any of the sexual offences that he had been charged with. His only memory of the past was getting married to his wife. He could not recall his personal life but he could recall things that had happened in his work.
Three expert witnesses were also called by the defence. Dr Alvaro, a neurologist, gave evidence that he did not think that the appellant had neurodegenerative pathology but that, based on his consultations with the appellant, he had referred him to a specialist behavioural neurologist, Dr Orr.
Dr Orr gave evidence that, in her opinion, the appellant was suffering from 'a fairly clear‑cut case of dissociative amnesia'. She said that this was a psychiatric diagnosis which related to a traumatic event or series of events. She said that dissociative amnesia was a disease of the mind that results in a sufferer losing their long‑term memory. She said that the appellant's short‑term memory loss was related to depression, anxiety, stress and PTSD.
Dr Roberts, a psychiatrist, gave evidence that when he first saw the appellant he had been diagnosed with an adjustment disorder with depressed and anxious mood. He later diagnosed the appellant with anxiety, depression and PTSD. He said that he had seen a report from Dr Orr that confirmed what he thought about the appellant's inability to remember large blocks of his life.
Ground 3 - trial judge's directions
After summarising the evidence of the appellant and the expert witnesses on the issue of memory loss, his Honour directed the jury in the following terms:
As a matter of law consistent with what I have said to you, you do not have to decide if you accept or reject the evidence of the accused that he has no memory of the alleged offending because he cannot say whether it did or did not happen.
This factual issue will not assist you because, as a matter of law, as I have told you, there is no onus on [the appellant] to prove anything and because, as a matter of law, he is presumed to be innocent of each charge.
So his evidence is, at best, neutral and this factual controversy cannot assist you to reach your verdicts in relation to the counts on the indictment according to law.
The position on each count will remain has the State proved the guilt of [the appellant] beyond reasonable doubt on the basis of the evidence which you do have and which you do accept.
You may, if you want, in your deliberations accept the evidence of [the appellant] that he has no memory of committing any alleged offence and the medical explanation for this possibility but, as I have said, it will not assist you to reach your verdicts because the position is neutral to the critical issue of whether or not you are satisfied beyond reasonable doubt of his guilt on the evidence that you do have of the alleged offending conduct.
…
Equally, you must be careful if you consider this aspect of the accused's evidence and if you think he genuinely and honestly has no memory of the factual matters in issue that you do not allow any sympathy you might feel for him to distract you from the critical issue which you must decide as to his guilt or otherwise of the alleged offence you are considering.
The issue of his alleged lack of relevant memory of personal matters of an intimate nature involving each of the complainants you might think is interesting but you must not allow it to excite any sympathy for him in your fact finding on the evidence that you do have.
As I have said, it is in effect an irrelevant consideration and just because he says he has no relevant memory proves nothing one way or the other because there is no onus on him to prove anything in a criminal trial.
Later in his directions to the jury, the trial judge gave a warning in accordance with the principles in Longman v The Queen.[10] This was necessary due to the delay between the occurrence of the alleged offences and the appellant being informed of the allegations. Those directions included the following passage:
[10] Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79.
Members of the jury, you will also appreciate that delay caused by the passage of time makes it difficult for the accused person to examine in detail the circumstances of the alleged offence.
The delay places the accused at a disadvantage.
By disadvantage, I would suggest that the usual way of testing a complainant's evidence is very often by reference to the surrounding circumstances at the time and to details which, while not necessarily of significance in themselves, may help to indicate whether the complainant is or is not being truthful and accurate and reliable.
You must, as a direction of law, therefore bear in mind the forensic disadvantage suffered by the accused in not being able to challenge what the complainant says because the incident occurred some time ago and he was not made aware of the allegation until 2018.
Obviously, in those circumstances, it is very difficult by reason of the passage of time for the accused to know the surrounding circumstances and to therefore challenge the allegations made by the complainant.
The accused has lost the opportunity in this regard to bring forward matters of defence that may or might not have existed in order to test the evidence of the complainant.
And to that extent, the accused has therefore been forensically disadvantaged.
…
So, members of the jury, by reason of the delay, the accused has been denied a chance to assemble, soon after the alleged incident, any forensic enquiry or evidence that might have been available to him.
Because of this forensic disadvantage, he has suffered that disadvantage by reason of the delay and, therefore, a lost opportunity to fully and adequately test each complainant's evidence, and to that extent to, prepare a defence.
Ground 3 - relevant legal principles
In Longman,[11] the accused was convicted on two counts of indecently dealing with his stepdaughter after a trial that occurred more than 20 years after the alleged commission of the second offence. The High Court considered the directions given by the trial judge to be inadequate. The plurality expressed their view in the following terms:
[T]here is one factor which may not have been apparent to the jury and which therefore required not merely a comment but a warning be given to them. That factor was the applicant's loss of those means of testing the complainant's allegations which would have been open to him had there been no delay in prosecution. Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant's story or confirming the applicant's denial. After more than twenty years that opportunity was gone and the applicant's [sic] recollection of them could not be adequately tested. The fairness of the trial had necessarily been impaired by the long delay and it was imperative that a warning be given to the jury. The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice. The jury were told simply to consider the relative credibility of the complainant and the appellant without either a warning or a mention of the factors relevant to the evaluation of the evidence. That was not sufficient. (citations omitted).
[11] Longman(91).
A Longman warning must be tailored to the specific circumstances of the case and it will usually be necessary for a trial judge to give examples of the forensic disadvantages suffered by an accused in that case.[12] There is no requirement that as a matter of law a trial judge must in every case state specific examples of forensic disadvantage.[13] The significance of an omission to refer to a specific forensic disadvantage will depend on the circumstances of the particular case.
Ground 3 - the merits
[12] MB v The State of Western Australia [2016] WASCA 160 [50].
[13] Osborne v The State of Western Australia [2013]WASCA 106 [46].
The overall effect of the trial judge's directions was to convey to the jury that the evidence of the appellant's loss of memory was irrelevant to the question of whether the charges had been proved. The likely consequence of these directions is that the jury would completely discount that evidence and not take it into account at all in their deliberations.
The Longman direction was in standard terms and referred generally to forensic disadvantages arising from delay but made no reference to the appellant's lack of memory. Given the judge's directions that the memory evidence was irrelevant, there is no reasonable possibility that the jury would have taken that evidence into account as being relevant to the forensic disadvantage suffered by the appellant.
In this case the memory loss evidence, if accepted, would necessarily have amounted to a significant forensic disadvantage. Indeed, that was its primary relevance. The loss of memory would have impaired the appellant's ability to marshal a defence and to adequately test and rebut the evidence of the complainants. Thus, in the context of this case, it was a specific and important example of forensic disadvantage arising from the delay.
If the trial judge had not told the jury that the memory loss was irrelevant there might have been a question as to whether it would have been apparent to the jury that this was relevant to the disadvantage referred to in the Longman direction. The compounding effect of telling the jury that the evidence was irrelevant and not referring to it as an aspect of the forensic disadvantage suffered by the appellant is significant. The direction to treat the memory loss evidence as irrelevant when taken together with the failure to link the memory loss evidence to the forensic disadvantage component of the Longman direction gives rise to a miscarriage of justice in the context of this case.
Conclusion
For the reasons given, at the conclusion of the hearing of the appeal we made orders granting leave to appeal, allowing the appeal on grounds 1 and 3, setting aside the convictions and ordering a retrial.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JS
Associate to the Honourable Justice Hall
22 APRIL 2022
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