Eio v The State of Western Australia
[2024] WASCA 42
•29 APRIL 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: EIO -v- THE STATE OF WESTERN AUSTRALIA [2024] WASCA 42
CORAM: MAZZA JA
MITCHELL JA
VANDONGEN JA
HEARD: 8 APRIL 2024
DELIVERED : 29 APRIL 2024
FILE NO/S: CACR 43 of 2023
BETWEEN: EIO
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: MASSEY DCJ
File Number : IND 1226 of 2021
Catchwords:
Criminal law - Appeal against conviction - Sexual penetration without consent - Whether miscarriage of justice arose from editing of visually recorded interview, pre-recorded evidence and recording of search - Whether miscarriage of justice arose from defence counsel's use of language in closing address to jury - Whether trial judge's answer to question from jury as to the standard of proof constituted a miscarriage of justice or a wrong decision on a question of law - Whether guilty verdict is unreasonable and cannot be supported having regard to the evidence
Legislation:
Criminal Appeals Act 2004 (WA), s 30(3)
Criminal Code (WA), s 325
Evidence Act 1906 (WA), s 106HB, s 106M
Result:
Application for leave to adduce additional evidence dismissed
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | G N Beggs |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Calabro v The State of Western Australia [2024] WASCA 10
Clarke v The State of Western Australia [2018] WASCA 14
Do v The State of Western Australia [2014] WASCA 218
DSS v The State of Western Australia [2022] WASCA 128
Huggins v The State of Western Australia [2018] WASCA 61
Jeffery v The State of Western Australia [2018] WASCA 219
MEN v The State of Western Australia [2020] WASCA 118
Morgan v The State of Western Australia [No 2] [2019] WASCA 185
NYL v The State of Western Australia [2022] WASCA 41
Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123
Pezzano v The State of Western Australia [2020] WASCA 181
R v Dookheea [2017] HCA 36; (2017) 262 CLR 402
Rodi v The State of Western Australia [2017] WASCA 81; (2017) 51 WAR 96
Sturniolo v The State of Western Australia [2023] WASCA 147
JUDGMENT OF THE COURT:
Introduction
On 4 November 2022, the appellant was convicted after trial by jury of one count of sexually penetrating the complainant without the complainant's consent. The offence was alleged to have been committed on an unknown date between 15 November 2007 and 6 March 2015 at Armadale. It was alleged that the appellant penetrated the complainant's anus with the appellant's penis. This offence was count 1 on the appellant's indictment. The appellant was found not guilty of two other counts of sexual offending relating to the same complainant.
On 31 March 2023, the appellant was sentenced to 2 years' immediate imprisonment for the offence charged in count 1 of the indictment. That sentence was reduced for totality. It is to be served cumulatively upon a previous total effective sentence of 10 years 1 month's imprisonment which had been imposed for other offending. The new total effective sentence of 12 years 1 month's imprisonment took effect from 9 January 2020. The appellant is eligible for parole.
The appellant, who is self-represented, now appeals against his conviction of the sexual penetration offence charged in count 1 of the indictment on three grounds. For the following reasons, there is no merit in any of the appellant's grounds of appeal. Leave to appeal should be refused on all grounds and the appeal should be dismissed.
Uncontentious factual background
The following facts were established by uncontentious evidence at trial.
The appellant was born in May 1958 and the complainant was born in November 1977. The appellant is 19 years older than the complainant. The appellant and complainant met through the complainant's stepmother, who was a long-term friend of the appellant, when the complainant was about 10 or 11 years old and the appellant was in his late 30's. The complainant referred to the appellant as his uncle. The complainant has an intellectual disability, which was known to the appellant. The complainant had a job, managed his own finances and was able to look after himself, to some extent.
In 1998, the complainant moved out of his parents' home and moved in with the appellant at the appellant's rental property, which he shared with other persons including the appellant's brother P. The complainant was 21 years old at the time whilst the appellant was around 40 years old. In 2001, the appellant and the complainant purchased a house in Armadale together where they both resided. The appellant and complainant were initially the only persons living at the Armadale house. P moved in after a couple of years and lived at the Armadale house since that time. The appellant and P slept in separate bedrooms in the main part of the house while the complainant slept in a 'sleep-out' at the rear of the house. The appellant was registered as the complainant's carer and received carer payments and allowances from Centrelink from 2008.
The evidence of both the complainant and the appellant was that sexual conduct regularly occurred in the appellant's bedroom at the Armadale house, at times when no-one else was at the house. Although P lived in the Armadale house, he was unaware of any sexual conduct between the two men until the appellant was arrested on 9 January 2020. While the fact of this regular sexual conduct was common ground, the character of the conduct was contentious. The complainant's evidence was that the appellant engaged in this sexual conduct without the complainant's consent. The appellant's evidence was that he and the complainant were in a loving consensual sexual relationship.
The appellant was arrested on 9 January 2020, and participated in an electronic record of interview (EROI) on that day. In the EROI the appellant denied asking the complainant for sexual favours or exchanging cigarettes with the complainant for sexual favours.
Visually recorded interviews (VRIs) were conducted with the complainant under s 106HB of the Evidence Act 1906 (WA) on 10 January 2020 (first VRI) and 19 February 2020 (second VRI). The complainant did not disclose the sexual penetration offence of which the appellant was convicted in the first VRI but did so in the second VRI. The complainant's evidence was pre-recorded on 22 December 2021.
Prosecution case on count 1 at trial
The prosecution case in relation to count 1 on the indictment was that the offence occurred in the appellant's bedroom at the Armadale house sometime after the complainant had turned 30, on an evening when the complainant was to go on a social outing with the Southern District Support Association (Support Association). The appellant was on the computer in his bedroom at the Armadale house and told the complainant that he wanted to 'do him up the arse'. The complainant said, 'No'. The appellant said that it would be quick. The appellant pulled the complainant's shorts down and forced himself onto the complainant. The complainant ended up face down on the appellant's bed and the appellant put his penis into the complainant's anus. When this came to an end, the appellant told the complainant 'not to tell anyone about this'.[1] The prosecution case was that this sexual penetration of the complainant's anus occurred without the complainant's consent.
[1] Trial ts 122.
In the second VRI, the complainant described the appellant repeatedly forcing him to engage in sexual activity. He gave the following description of the last occasion on which that occurred:[2]
[I]t's the night when I was going on my social group. And that's a Friday night. And everyone - [P] went to work and that, and [the appellant's] and - he was in his room. And he - he was a bit horny. He was looking up boys on the oh, he was looking at something on the Internet. And basically, his dick got hard for some reason. He said, 'Pull yours down. I want to do you up the arse', la la la. And I said, 'No. I'm getting ready to go out'. 'It will be quick'. Cos that's when he did it. And I had a shower, had the cigarette and then he didn't touch me after that. He asked me anymore. I said, 'No, that's the last time. That's it'. So basically, that's the last time we did it.
[2] VRI ts 19/2/20 at 8 (Blue/Green AB 213).
When asked what he was doing 'before you had sex', the complainant responded:[3]
I was just standing there. Didn't know what he was doing, till he pulled my shorts down or something. And he was stroking me enough to get hard. And then he was getting hard. And then he just put it in my arse and just, um, going for it, with the lube. He buys a tube of lube and he just puts it on there and just, um, going for it, that's all.
…
And I was just going there, oh, never ends, never eds [sic]. And I just then my noises and (indistinct) - nah, let me just, um - I let him do what he had to do and I would just, um, stand there as I - yeah, that's enough. And I just got up, have a shower, had a smoke and then didn't talk to him after that. So I went on my social group, then came back and then had a drink and said, 'No (indistinct) happen. I don't even want to talk about it'.
[3] VRI ts 19/2/20 at 8 (Blue/Green AB 213).
The complainant clarified that when he said the appellant 'put it in my arse', he meant that the appellant 'put his dick in my arse and started going off'. The appellant told the complainant 'not to tell anyone else'. The incident took place in the afternoon in the appellant's bedroom at the Armadale house when the complainant was in his 30's. The complainant said that, after he had a shower, he 'just went in there and played my music and had a drink before I went' out with the Support Association.[4] The complainant was asked further questions about this offending, but his answers did not materially add to the account summarised above.[5]
[4] VRI ts 19/2/20 at 11 - 12 (Blue/Green AB 216 - 217).
[5] VRI ts 19/2/20 at 15 - 17 (Blue/Green AB 220 - 222).
In his pre-recorded evidence-in-chief, the complainant said that the appellant had told the complainant to keep his mouth shut. The appellant told the complainant that if he told anyone:[6]
I'll be kicked out of my own home. I'll be kicked out and he'll be taking all my wages and all that off me and I'll be kicked out of my own home.
[6] Trial ts 36.
The complainant adopted the contents of his second VRI as true. The complainant said that he 'froze' at the first VRI, by which he meant:[7]
I wasn't ready to talk at the time and I was a bit shaken up and it was - trying to sink in my head what - what was going on at the time.
[7] Trial ts 37 - 38.
The complainant maintained this account in cross-examination. In the course of cross-examination, the complainant gave some confused and inconsistent answers as to when he first disclosed the offending, but ultimately accepted that he 'opened up' to his parents and younger brother at his parents' house on 9 January 2020.[8]
[8] Trial ts 65 - 67, 80.
The complainant also accepted in cross-examination that he does things early and when he was waiting for the Support Association he would often go out and sit on the letterbox at the front of the Armadale house and wait for the bus to come. The complainant agreed that he was a man who sticks to a routine and, if the routine became upset, that could cause problems for him.[9]
[9] Trial ts 83.
The prosecution also read into evidence a statement of an employee of the Support Association as to records that the complainant first engaged with the Support Association in 1997 and attended fortnightly Friday meetings at the Association's centre until 21 December 2012.[10]
[10] Trial ts 141 - 142.
The investigating officer, Detective Tucker, produced a video recording of a walk-through of the Armadale house on 9 January 2020 (at which the appellant was shown to be present) (search video).[11] Detective Tucker said that the complainant and P were also present at the house during the search of the Armadale house.[12]
[11] Trial ts 150 - 151.
[12] Trial ts 153.
Detective Tucker also produced the appellant's EROI of 9 January 2020.[13] In that interview, when asked to tell the officers about his relationship with the complainant, the appellant said that the complainant was 'like me nephew'.[14] After the appellant described the living arrangements and his role as the complainant's carer, the following exchange occurred:[15]
DET S/CON TUCKER: And, okay. So, whilst being [the complainant's] carer, have you ever asked [the complainant] for sexual favours?
[APPELLANT]: No.
DET S/CON TUCKER: Have you ever exchanged cigarettes with [the complainant] for sexual favours?
[APPELLANT]: I've given him cigarettes but not for sexual favours.
DET S/CON TUCKER: Not for sexual favours?
[APPELLANT]: No.
[13] Trial ts 149 - 151.
[14] EROI ts 25.
[15] EROI ts 26; see also EROI ts 27.
Detective Tucker also produced a Centrelink certificate which showed that the appellant was recorded as the complainant's carer and received payments between 1 August 2008 and 11 January 2020.[16]
[16] Trial ts 152 - 153.
Defence case on count 1 at trial
The appellant elected to give evidence and to adduce the evidence of P.
The appellant's evidence was that he had a consensual sexual relationship with the complainant which started a couple of years after they moved into the Armadale house and ended when the appellant was arrested in January 2020. The appellant said that the relationship was 'definitely consensual'. The appellant said that 'It wasn't anything which we told the world about but [the complainant] and I had a great relationship'. The appellant accepted that he penetrated the complainant's anus with his penis perhaps a dozen times over the years. The appellant said that, as far as he was aware, nobody knew of his sexual relationship with the complainant: 'It was something we just had between ourselves'. The appellant said that 'whatever happened would be finished before people got home'. The appellant denied threatening the complainant and said that they had a loving and caring relationship.[17]
[17] Trial ts 160 - 163.
When asked whether he could remember the incident which was the subject of count 1, the appellant responded:[18]
I can't exactly remember an incident like that, but I can say when [the complainant] was getting ready to go out on his [Support Association] we never, ever had any sexual contact. Once [the complainant] got his shower and got dressed and had his one can of drink and gone out and sat on the letterbox, that's it, there was never anything that happened that night.
The appellant said that he never pushed himself onto the complainant at any stage.
[18] Trial ts 166.
The appellant said that, during the EROI, he did not know what the police officer meant by referring to 'smokes for favours'. The appellant gave the following evidence:[19]
Why didn't you tell the - the - the police officers that you had a sexual relationship with [the complainant]?---In hindsight, I wish I had just been straight-up with him.
Why weren't you?---I don't know. I don't know. I was quite flustered and quite confused. I don't know.
[19] Trial ts 161.
The appellant maintained the above account in cross-examination. The appellant re-affirmed that there was never an occasion on which he had sex with the complainant when the complainant was going to the Support Association.[20]
[20] Trial ts 172.
Also in cross-examination, the appellant accepted that he never told the complainant's parents about the sexual relationship, avoided being affectionate with the complainant in any way in social settings, never told P of the relationship and was careful not to have any sort of sexual contact with the complainant while P was in the house. However, he denied concealing the relationship because he was forcing the complainant to have sex.[21]
[21] Trial ts 176 - 181, 185.
P's evidence was that he was not aware that the appellant and the complainant had a sexual relationship, and only found out about it after the appellant was arrested on 9 January 2020.[22] For the entire period he lived at the Armadale house, P was not aware that the appellant and complainant were involved in a sexual relationship with one another. P gave evidence that the complainant would often tell the appellant he loved him, but in a 'platonic family way'. The complainant would kiss the appellant all the time, but not with the kind of affection sexual lovers would share.[23]
[22] Trial ts 190.
[23] Trial ts 195.
Case left for the jury on count 1
Count 1 on the indictment charged an offence contrary to s 325 of the Criminal Code (WA), which provides that a person who sexually penetrates another person without the consent of that person is guilty of a crime.
The trial judge directed the jury that to establish the appellant was guilty of count 1 the State had to prove beyond reasonable doubt that:[24]
1.The appellant was the person who did the things that the State says constitute the offence.
2.The appellant sexually penetrated the complainant by penetrating the complainant's anus with his penis.
3.The appellant sexually penetrated the complainant without the complainant's consent freely and voluntarily given.
[24] Trial ts 235 - 237.
Although the trial judge directed the jury about honest and reasonable mistake as to consent in relation to the other counts on the indictment (of which the appellant was acquitted), his Honour did not leave that 'defence' in relation to count 1.
The trial judge directed the jury that, if they found the appellant lied in his EROI with police, that may be a factor in their assessment of the appellant's credibility but was not evidence of his guilt of the charged offences.[25]
[25] Trial ts 228.
The trial judge directed the jury as to how they could use evidence of unlawful conduct of the appellant which was not the subject of a charge. The direction excluded the use of that evidence for propensity purposes.[26] The trial judge also gave the jury a Longman direction in relation to delay and the consequent forensic disadvantage suffered by the appellant.[27]
[26] Trial ts 254 - 258.
[27] Trial ts 266 - 270.
The appeal to this court
The appellant appeals against his conviction of count 1 on the indictment on three grounds identified in the appellant's case. The grounds reflect the fact that the appellant is self-represented, and the issues which it appears the appellant is trying to raise by the grounds overlap to an extent. The grounds are expressed in the following terms:
| Ground 1: wrongful editing of evidence probative to defence | Ground 2: incompetence of counsel | Ground 3: unreasonable verdict |
| 1.1: Error of law; wrongful editing of evidence. | 2.1: Homophobic comments. 2.2: Homophobic behaviour. 2.3: Legal requirements, directions and consultations not followed. Acting against best interest of client. | 3.1: Beyond reasonable doubt. 3.2: Confirmed doubts by jury. 3.3: Jury not provided with evidence probative to defence. 3.4: A case of consent. 3.5: Evidence probative to 'fear' of appellant edited from defence case. |
| 3.6: Motive, influence, vindictive intent confirmed in edited content with probative value to defence. |
Rather than deal with each ground individually, we shall address the issues which the appellant seeks to raise by the grounds (having regard to the submissions) placed in the framework of s 30(3) of the Criminal Appeals Act 2004 (WA).
By application in an appeal filed on 24 August 2023, the appellant seeks leave to adduce his own affidavit sworn on 6 July 2023 as additional evidence in the appeal. In essence, the appellant deposes that he had a consensual relationship with the complainant and the complainant was influenced by his family to believe the appellant was using him and stealing his money, soon after the appellant was arrested and the complainant moved back home.
The appellant's affidavit is largely a reiteration of his evidence given at trial and, as such, adds nothing to his case on appeal. To the limited extent that the affidavit deposes to new matters, the evidence does not establish any proper basis for contending that its absence at trial constituted a miscarriage of justice. The evidence is not relevant to any other issue sought to be raised by the grounds of appeal. As there is no proper basis on which this court might receive the additional evidence on well-established principles,[28] the appellant's application in an appeal filed on 24 August 2023 should be dismissed.
[28] See, for example, Clarke v The State of Western Australia [2018] WASCA 14 [231] - [246], most recently adopted in Calabro v The State of Western Australia [2024] WASCA 10 [160].
The role of counsel for an accused in a criminal trial
Some of the appellant's complaints are cast in terms of things being done in the trial without his consent or counsel failing to do as he instructed. These submissions reveal a misunderstanding as to the role of counsel for an accused in a criminal trial.
As was noted in Morgan v The State of Western Australia [No 2],[29] counsel is not the mere mouthpiece of his or her client, who must follow 'instructions' as to the evidence to be adduced or objected to in the trial. 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 concern the relevant circumstances understood by the client and matters such as whether the client wishes to give or adduce evidence. A miscarriage of justice is not established merely by the fact that counsel does not follow instructions on a matter falling within the remit of counsel to decide.
[29] Morgan v The State of Western Australia [No 2] [2019] WASCA 185 [217].
Further, as was noted by Mazza JA (McLure P & Hall J agreeing) in Do v The State of Western Australia:[30]
A criminal trial is not an inquisition, it is an adversarial proceeding. Defence counsel, who is, in effect, an accused's agent, has a very wide discretion as to how the defence is to be run. Accordingly, an accused is ordinarily bound by the way in which his or her counsel has conducted their case. While it is accepted that the conduct of defence counsel can give rise to a miscarriage of justice, an appellant who makes this allegation carries a heavy burden. (citation omitted)
[30] Do v The State of Western Australia [2014] WASCA 218 [38].
The circumstances in which the conduct of defence counsel can give rise to a miscarriage of justice were addressed by this court in Huggins v The State of Western Australia.[31] We adopt that comprehensive analysis without repeating it, noting the following passage of the reasons in that case:[32]
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)
[31] Huggins v The State of Western Australia [2018] WASCA 61 [375] - [401], adopted in many cases including DSS v The State of Western Australia [2022] WASCA 128 [114].
[32] Huggins [376].
Further, as was reiterated in Jeffery v The State of Western Australia,[33] 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.
[33] 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]).
Editing of complainant's second VRI and pre-recorded evidence
During his second VRI, the complainant made allegations to the effect that the appellant had misappropriated his money.[34] The appellant's trial counsel cross-examined the complainant about this issue.[35] The complainant accepted that, at the time he went to the police station on 19 February 2020, he was angry about the appellant ripping him off.[36]
[34] VRI ts 19/2/20 at 4 - 5, 7 (Blue/Green AB 209 - 210, 212).
[35] Trial ts 61 - 63.
[36] Trial ts 63.
Before the appellant was arraigned, the trial judge resolved a dispute between the prosecutor and the appellant's trial counsel as to the extent of the editing of the second VRI and the complainant's pre‑recorded evidence. The appellant's trial counsel sought the passages dealing with the alleged misappropriation to be edited out of the version of the recordings to be shown to the jury. The prosecutor resisted this edit on the basis that, although the evidence had no work to do from the State's perspective, it was part of the pre-recorded evidence which is to be treated as part of the trial.[37] The appellant's trial counsel submitted that the evidence was not probative as to whether the sexual offences occurred. He indicated that the defence was not relying on a belief as to misappropriation of funds as a motive for the complainant to make a false complaint about consent. He contended that the allegations of financial misappropriation were irrelevant.[38]
[37] Trial ts 94 - 95.
[38] Trial ts 95 - 97.
The trial judge ruled that the evidence should be edited out in the following terms:[39]
I am going to rule [the disputed passages] should come out of the evidence to be heard from the jury. I've formed the view, first of all, as [the prosecutor] concedes, it has no probative value to the State case. It has a prejudicial effect. It completely outweighs the lack of probative value of the State's case.
I accept that [the appellant's trial counsel] did cross-examine on that in respect of the prerecording. But having disavowed the motive - or disavowed the defence reliance on any motive arising from that evidence, I am satisfied that really it has no probative value, it has a prejudicial effect and, therefore, should be edited from that evidence which is to be heard by the jury.
[39] Trial ts 97.
The appellant complains that the second VRI and pre-recorded evidence were edited without his consent. However, the appellant's consent was not required for that purpose, and he is bound by the decisions made by his trial counsel on his behalf.
The appellant also complains that the second VRI and pre‑recorded evidence were edited in a manner not authorised by the applicable legislation. That submission cannot be accepted. Under s 106HB(5)(a) of the Evidence Act, a judge in the proceeding may give any directions the judge thinks fit as to the excision of matters from a VRI. Under s 106M(1) of that Act, the original visual recording of pre‑recorded evidence is not to be edited or altered in any way without the approval of a judge before it is presented to the court at the proceeding. Section 106HB(6) and s 106M(2) provide that a recording edited contrary to these requirements is inadmissible as evidence in the proceeding. In this case, the trial judge by his ruling approved the editing of the complainant's second VRI and pre-recorded evidence. It was open to the trial judge to require the material to be edited out in the exercise of the court's discretion to exclude evidence where the probative value of the evidence is outweighed by its prejudicial effect.
No miscarriage of justice arises from the objectively reasonable forensic decision by the appellant's trial counsel not to pursue an argument that the complainant was motivated to make a false complaint by his belief that the appellant had 'ripped him off'. Counsel could reasonably take the view that a jury was unlikely to accept that submission. The allegations of financial misappropriation were otherwise irrelevant and were capable of prejudicing the jury's view of the appellant. No miscarriage of justice arises from this forensic choice.
Editing of the search video
An edited version of the search video was played to the jury. It showed the cautioning of the appellant, and a walk-through of the Armadale house with the appellant describing the uses of various rooms. Detective Tucker gave evidence that both the complainant and P were present at the Armadale house at the time of the search.[40] The search video was edited in such a way that it did not show the complainant.
[40] Trial ts 153.
The appellant submits that the evidence of the complainant being present in their Armadale house during the police search suggests the complainant could not have been fearful of the appellant. Therefore, the appellant submits, it was important to not edit this evidence out.
We do not accept that the editing of the search video gave rise to any miscarriage of justice. It was done with the agreement of the appellant's trial counsel. There was other evidence that the complainant was still living at the Armadale house at the time of the appellant's arrest and was present during the search video. There was nothing to be gained from showing the complainant on the video at a time when, in the presence of police officers, he had no reason to be fearful of the appellant.
Closing submissions of appellant's trial counsel
The appellant contends, in effect, that a miscarriage of justice arose out of comments made by his trial counsel in closing submissions to the jury. The appellant characterised the submissions advanced on his behalf as 'unjustifiable homophobic comments' which created a false negative impression of the appellant to the jury.
The first of the submissions about which the appellant complains is the italicised portion of the following passage:[41]
So you've got this man who's 19 years older, he doesn't have a cognitive impairment, he's living with a bloke who has got a cognitive impairment who's younger than him, not an absolutely or profoundly disabled person, but someone who would have difficulties intellectually and as [the prosecutor] said this is an authority figure.
This is an uncle. This is a person that [the complainant] has known since [the complainant] was 10 years old. This is the form of an authority. This is someone who basically [the complainant] would have looked up to and essentially it's put to you that that relationship or that something which led to [the complainant] not consenting to sexual acts.
Now, we're in a court dealing with criminal charges. This is not a court that deals with morality. It doesn't deal with ethics and it may be that people looking at this situation would go that's not on. A bloke who's someone's carer, especially where that person has an intellectual disability, should not be in a sexual relationship with that person, but that's not what he's charged with.
He's charged with sexually penetrating [the complainant] on two occasions without [the complainant's] consent. It's not a case where he's charged with, well, you're an immoral creepy little – slimy little man that goes around manipulating people like [the complainant] who have an intellectual disability, who basically can't look after themselves, who are vulnerable and you, you slimy little man, are taking advantage of this person.
Now, essentially he's not charged with an act. As I said he's charged with a criminal offence, three criminal offences, not whether, mate, you shouldn't be doing that, it's not your position, you shouldn't be taking advantage of your situation.
What we're talking about here is that [the appellant] has forcibly had sex with [the complainant].
[41] Closing ts 23 - 24.
The second passage of which the appellant complains deals with the same theme:[42]
This isn't about morals. You may think that this bloke here sitting in the witness box is a slimy, manipulative individual that starts having sexual relationships with someone he's the carer of, but at the end of the day you're not here to judge his morals.
What you're here to make a decision about is did he sexually penetration without consent [the complainant] on two occasions and indecently assault him on another[.]
[42] Closing ts 41.
In these passages, the appellant's trial counsel is facing up to a point that he could legitimately regard as necessary to address. There was a reasonable prospect that one or more members of the jury might regard the appellant's conduct, on the appellant's own account, as morally reprehensible. That attitude could arise, not from the fact that the appellant and complainant are of the same gender, but from the fact that a much older carer of a person with an intellectual disability chose to engage in sexual activity with the person under their care. It was a reasonable forensic decision for the appellant's trial counsel to face this issue head-on and emphasise that the jury were not to be influenced by their personal moral view but were concerned solely with whether the evidence proved that the appellant had committed the charged offences.
Trial counsel's submission set out at [53] above was also made in the course of a submission that, although the complainant was clearly intellectually disabled, he was not so disabled or cognitively impaired as to be incapable of giving informed consent to sexual acts.[43]
[43] Closing ts 22 - 24.
While we would not have chosen to use the colourful language employed by the appellant's trial counsel to make these points, we are not satisfied that counsel's language gave rise to any miscarriage of justice in the appellant's trial.
We note that the appellant also complains that his trial counsel consistently referred to the complainant by his first name but, when referring to the appellant, often used only his surname without any honorific such as 'Mr'. At a ground rules hearing on 21 December 2021 and at the outset of the pre-recording of the complainant's evidence, the prosecutor indicated that the complainant was most comfortable being referred to by his first name.[44] The complainant indicated that it was okay to refer to him by his first name.[45] As had occurred in the VRI's, the complainant was consistently referred to by his first name only during the trial.
[44] Trial ts 7 - 8, 22.
[45] Trial ts 25.
It was natural for the appellant's trial counsel to continue that approach in his closing submissions, and the jury would understand that this was being done to accommodate a witness with an intellectual impairment. The use of a surname only to refer to someone is likely to be commonly regarded as rude in contemporary Australian discourse. It might also be regarded as somewhat antiquated, harking back to an atmosphere of the military or a private boys' school in earlier times. However, while the appellant evidently took offence at the language, its use did not risk diverting the jury from their task and did not give rise to a miscarriage of justice.
The closing submissions of the appellant's trial counsel, considered as a whole, fairly put the appellant's case to the jury. There is no proper basis for concluding that counsel's approach gave rise to any miscarriage of justice in the appellant's trial.
Direction as to the standard of proof
The appellant complains about the trial judge's answer to the following question posed by the jury after they retired to consider the verdicts:[46]
Your Honour, can you please clarify the terms beyond reasonable doubt? Specifically in this case is reference to putting forward a guilty verdict with a small amount of doubt. If there is a small amount of doubt should the jury return a not guilty verdict? Thanks in advance.
[46] Trial ts 288.
The trial judge answered this question in the following terms:[47]
It's a difficult question to answer because judges tend to get themselves in trouble when they try and explain what those words mean. In effect all I can tell you is that the words 'beyond reasonable doubt' mean what they say. If you have a doubt and if it's a reasonable doubt as to [the appellant's] guilt on any one or more of the charges, then it is your duty acquit.
I remind you the prosecution have to prove the case beyond reasonable doubt and as I say if you're not satisfied beyond reasonable doubt as to any one of the charges or any of the elements in any of the charges, then it is your duty to acquit [the appellant].
You yourselves set the standard of what's reasonable and that's the best I can say to you.
What I can say to you is what it's not. Now, I think [the appellant's trial counsel] in his opening address talked about the civil standard of proof.[48] So in civil cases where people sue people for say a breach of contract or something like that, the standard of proof is on the balance of probabilities, what's more likely than not.
That is not this case. The standard of beyond reasonable doubt is the highest standard known to the law. It's a much higher standard. It certainly doesn't include possibly or probably, the words 'beyond reasonable doubt' mean exactly what they say.
If you have a reasonable doubt then it's your duty to acquit [the appellant] of the charge upon which you have a reasonable doubt. And that's really the best I can to say to you in answer to your question, I'm afraid.
[47] Trial ts 288 - 289.
[48] We note that the submission was actually made in the closing address of the appellant's trial counsel, who did not give an opening address. Nothing turns on this slip in the direction.
This is an orthodox direction in relation to the standard of proof in a criminal trial which accords with the observations of the High Court of Australia in R v Dookheea.[49] It does not constitute a wrong decision on a question of law or a miscarriage of justice.
[49] R v Dookheea [2017] HCA 36; (2017) 262 CLR 402 [40] - [41].
Whether verdict is unreasonable
The appellant contends that the verdict of guilty on count 1 is unreasonable and cannot be supported by the evidence.
The general principles governing an appeal on this ground are well‑established. They were summarised in the following terms in Sturniolo v The State of Western Australia:[50]
[50] Sturniolo v The State of Western Australia [2023] WASCA 147 [70], [72].
(1)The appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence. It is not simply a matter of deciding whether, as a matter of law, there was evidence to support the verdict. The appeal court must determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand.
(2)The question for the appeal court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
(3)That question requires consideration of whether the jury must, as distinct from might, have entertained a reasonable doubt about the accused's guilt.
(4)In answering that question, the appeal court must pay full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the jury had of seeing and hearing the witnesses. The appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent on the evaluation of the witnesses in the witness box. The assessment of the weight to be accorded to a witness' evidence by reference to the manner in which it was given by the witness is, and remains, the province of the jury, and not of the appellate court.
(5)The question for the appeal court is whether, upon its examination of the record - by reason of inconsistencies, discrepancies or other inadequacy, or in light of other evidence - the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to guilt.
(6)A doubt experienced by an appeal court would be a doubt that a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt.
(7)If the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appeal court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the appeal court must set aside the verdict.
(8)The setting aside of a jury's verdict on the ground that it is unreasonable within the meaning of s 30(3)(a) of the Criminal Appeals Act 2004 (WA) is a serious step, not to be taken without regard to the advantage enjoyed by the jury over an appeal court that has not seen or heard the witnesses called at trial.
…
The appellate court's function is to determine for itself whether the evidence was sufficient in nature and quality to remove any doubt that the appellant was guilty of the offence. The critical issue is 'whether the court's assessment of the totality of the evidence leaves the court with a reasonable doubt as to guilt which the court cannot assuage by having regard to such advantage as the jury can be taken to have had by reason of having seen and heard the evidence at trial'. The task of this court is to undertake its own independent assessment of the whole of the evidence to determine whether the only rational inference available on the evidence was as alleged by the State and, if not so satisfied, to determine whether the jury's satisfaction could be attributed to some identified advantage that the jury had over this court. (citations omitted)
Having reviewed the whole of the evidence we are satisfied that it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of count 1 on the indictment.
The appellant gave evidence at trial that the incident the subject of count 1 did not occur and that he and the complainant were in a consensual sexual relationship. The jury could not find the appellant to be guilty of count 1 on the indictment if they believed this evidence or thought that there was a reasonable possibility that it might be true. However, this court's assessment of the evidence must allow for the possibility that the jury might have considered that the manner in which the appellant gave his evidence impacted adversely on the jury's assessment of the credibility of that evidence.[51] Further, quite apart from the conclusions which the jury might have drawn from the way in which the appellant gave his evidence, there were at least two bases on which they might have positively rejected it.
[51] MEN v The State of Western Australia [2020] WASCA 118 [711]; Pezzano v The State of Western Australia [2020] WASCA 181 [73].
First, the jury could reasonably conclude that the account given by the appellant to police in his EROI as to the nature of the relationship between the appellant and complainant was inconsistent with his evidence as to a consensual sexual relationship. Although the questions were posed in terms of exchanging cigarettes for sexual favours, the jury could regard (and we regard) the appellant's conduct as a whole as an attempt to mislead the police as to the true nature of the relationship. On both the appellant's and complainant's evidence, the nature of the relationship was not one of a de facto uncle and nephew as indicated by the appellant in the EROI.
Secondly, as noted at [28] above, the evidence of P was that, despite living in the same small house as the appellant and complainant for over 20 years, he was entirely unaware of any sexual relationship between the two men. The jury might regard it to be inherently implausible (and we regard it as inherently implausible) that this would have been the case if the sexual relationship was consensual. P's ignorance is much more suggestive of the regular sexual contact of the two men being concealed because it involved the sexual abuse of the complainant by the appellant without the complainant's consent.
The jury could well regard the appellant's account in the EROI and P's ignorance as indicating that the appellant's evidence about the existence of a consensual sexual relationship between the appellant and complainant was not credible. That could justify a rejection of the appellant's evidence, both as to the nature of the relationship and whether the incident the subject of count 1 occurred, on credibility grounds.
If the jury rejected the appellant's evidence, it would be necessary for them to consider the complainant's evidence. The complainant's evidence, if accepted, clearly established the offence of sexual penetration without consent. The complainant's protestations just prior to the sexual penetration left no room for an honest and reasonable but mistaken belief on the part of the appellant. The trial judge correctly did not leave the issue of mistake to the jury given the complainant's evidence and the absence of any other evidence which raised the possibility.
As the High Court observed in Pell v The Queen:[52]
The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment - either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence - the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.
[52] Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123 [39].
In the present case, there was no evidence, other than the appellant's denial of the offending, which tended to contradict the complainant's account. The evidence of the complainant as to the commission of the offence was consistent. The complainant gave inconsistent evidence of when he disclosed the appellant's offending, some of which was contradicted by P's evidence. However, the nature of the complainant's unsatisfactory evidence about disclosure does not satisfy us that the jury, acting rationally, ought to have entertained a reasonable doubt as to the appellant's guilt of the offence charged in count 1 of the indictment. It was open to the jury to be satisfied that the complainant's evidence was truthful, accurate and reliable in its essential respects.
This court suffers from the disadvantage that it has not seen the appellant or complainant give evidence. Although the complainant's evidence was recorded, it is generally not appropriate or conducive to the proper exercise of this court's function to view that evidence.[53] No party invited this court to view the VRIs or the complainant's pre-recorded evidence and we have not done so. Our review of the whole of the evidence led at trial does not give rise to a reasonable doubt as to the appellant's guilt which cannot be explained by the jury's advantage of having seen and heard the evidence at the trial. Upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offence charged in count 1 of the indictment.
[53] Pell [36], MEN [414] - [417], [709] - [710].
Although it is not strictly raised by the appellant's grounds of appeal, we have considered whether the verdict of guilty on count 1 is inconsistent with the verdicts of not guilty on counts 2 and 3. Applying well-established principles,[54] the verdicts can stand together. The complainant's account of the conduct the subject of count 1 was more detailed both as to the conduct involved and the occasion on which it occurred than his evidence of the other counts. Further, the complainant's evidence as to his protestation before the offending conduct occurred was clearer in the case of count 1, and the issue of mistake was left to the jury for counts 2 and 3. The verdicts of not guilty on counts 2 and 3 do not necessarily reflect a conclusion that the complainant was generally untruthful or unreliable. They can be explained by the jury having a reasonable doubt as to whether the appellant (who was alleged to be significantly intoxicated on the occasions of counts 2 and 3) may have honestly believed, on reasonable grounds, that the complainant was consenting to the sexual act.
[54] See, for example, NYL v The State of Western Australia [2022] WASCA 41 [102] - [104].
Orders
For the above reasons, the following orders should be made:
1.The appellant's application in an appeal filed on 24 August 2023, seeking leave to adduce additional evidence in the appeal, is dismissed.
2.Leave to appeal is refused on all grounds of appeal.
3.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RL
Associate to the Honourable Justice Mitchell
29 APRIL 2024
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