EPD -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 264

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2011] WASCA 264
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:154/2010	Heard:	8 AUGUST 2011
Coram:	MARTIN CJ BUSS JA MAZZA J	Delivered:	7/12/11
No of pages:	50	Judgment Part:	1 of 1
Result:	CACR 155 of 2010 Leave refused on grounds 2 to 9 Appeal allowed in respect of ground 1 Convictions and sentences in respect of counts 1 to 6 set aside New trial ordered on counts 1 to 6 Sentences varied CACR 154 of 2010 Leave granted on ground 1 Leave refused on grounds 2 to 4 Appeal dismissed
Category:	B
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Parties:	EPD THE STATE OF WESTERN AUSTRALIA
Catchwords:	Criminal law Appeal against conviction 13 counts of indecently dealing with a child under the age of 13 years Longman direction Propensity and uncharged acts Summation of defence case Structure of address to jury Crofts direction Whether verdict on count 9 was unsafe and unsatisfactory Trial judge's criticism of defence counsel Whether totality of errors led to a substantial miscarriage of justice Criminal law Appeal against sentence Whether individual sentences manifestly excessive
Legislation:	Criminal Appeals Act 2004 (WA), s 30, s 30(1), s 30(3)(a), s 30(6), s 41(2) Criminal Code (WA), s 320(4) Evidence Act 1906 (WA), s 31A, s 36BD
Case References:	AM v The State of Western Australia [2008] WASCA 196; (2008) 188 A Crim R 457 Angliss v The State of Western Australia [2005] WASCA 162 Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50 Chan v The Queen (1989) 38 A Crim R 337 Christophers v The Queen [2000] WASCA 308; (2000) 23 WAR 106 Cleland v The Queen (1982) 151 CLR 1 Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161 Crisafio v The Queen [2003] WASCA 104; (2003) 27 WAR 169 Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427 Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413 Doggett v The Queen [2001] HCA 46; (2001) 208 CLR 343 Domican v The Queen (1992) 173 CLR 555 FGC v The State of Western Australia [2008] WASCA 47; (2008) 183 A Crim R 313 FJL v The State of Western Australia [2010] WASCA 8 Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414 Heijne v The State of Western Australia [2010] WASCA 86 Hodder v The State of Western Australia [2005] WASCA 257 KMB v The State of Western Australia [2010] WASCA 212 L v The State of Western Australia [2007] WASCA 186; (2007) 176 A Crim R 135 Liberato v The Queen (1985) 159 CLR 507 Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 Longman v The Queen (1989) 168 CLR 79 M v The Queen (1994) 181 CLR 487 Martinez v The State of Western Australia [2007] WASCA 143 Narkle v The State of Western Australia [2011] WASCA 160 Noto v The State of Western Australia [2006] WASCA 278; (2006) 168 A Crim R 457 P v The State of Western Australia [2007] WASCA 220; (2007) 177 A Crim R 69 R v Ireland (1970) 126 CLR 321 R v Williams [1999] NSWCCA 9; (1999) 104 A Crim R 260 RBK v The Queen [2004] WASCA 216 RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 Scriva v The State of Western Australia [2010] WASCA 89 SKA v The Queen [2011] HCA 13; (2011) 85 ALJR 571 The State of Western Australia v Pollock [2009] WASCA 96; (2009) 195 A Crim R 527 Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234 Upton v The State of Western Australia [2008] WASCA 54 Wilson v The State of Western Australia [2010] WASCA 82

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : EPD -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 264 CORAM : MARTIN CJ

BUSS JA

MAZZA J

HEARD : 8 AUGUST 2011 DELIVERED : 7 DECEMBER 2011 FILE NO/S : CACR 154 of 2010

CACR 155 of 2010

BETWEEN : EPD

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : STEVENSON DCJ

File No : IND 516 of 2010

Catchwords:

Criminal law - Appeal against conviction - 13 counts of indecently dealing with a child under the age of 13 years - Longman direction - Propensity and uncharged acts - Summation of defence case - Structure of address to jury -

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Crofts direction - Whether verdict on count 9 was unsafe and unsatisfactory - Trial judge's criticism of defence counsel - Whether totality of errors led to a substantial miscarriage of justice

Criminal law - Appeal against sentence - Whether individual sentences manifestly excessive

Legislation:

Criminal Appeals Act 2004 (WA), s 30, s 30(1), s 30(3)(a), s 30(6), s 41(2)

Criminal Code (WA), s 320(4)
Evidence Act 1906 (WA), s 31A, s 36BD

Result:

CACR 155 of 2010

Leave refused on grounds 2 to 9
Appeal allowed in respect of ground 1
Convictions and sentences in respect of counts 1 to 6 set aside
New trial ordered on counts 1 to 6
Sentences varied

CACR 154 of 2010
Leave granted on ground 1
Leave refused on grounds 2 to 4
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Mr T F Percy QC & Ms B J Lonsdale

Respondent : Mr J C Whalley & Ms L J Avey

Solicitors:

Appellant : Nicholson Clement

Respondent : Director of Public Prosecutions (WA)

(Page 3)

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

AM v The State of Western Australia [2008] WASCA 196; (2008) 188 A Crim R 457
Angliss v The State of Western Australia [2005] WASCA 162
Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50
Chan v The Queen (1989) 38 A Crim R 337
Christophers v The Queen [2000] WASCA 308; (2000) 23 WAR 106
Cleland v The Queen (1982) 151 CLR 1
Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161
Crisafio v The Queen [2003] WASCA 104; (2003) 27 WAR 169
Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427
Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413
Doggett v The Queen [2001] HCA 46; (2001) 208 CLR 343
Domican v The Queen (1992) 173 CLR 555
FGC v The State of Western Australia [2008] WASCA 47; (2008) 183 A Crim R 313
FJL v The State of Western Australia [2010] WASCA 8
Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414
Heijne v The State of Western Australia [2010] WASCA 86
Hodder v The State of Western Australia [2005] WASCA 257
KMB v The State of Western Australia [2010] WASCA 212
L v The State of Western Australia [2007] WASCA 186; (2007) 176 A Crim R 135
Liberato v The Queen (1985) 159 CLR 507
Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
Longman v The Queen (1989) 168 CLR 79
M v The Queen (1994) 181 CLR 487
Martinez v The State of Western Australia [2007] WASCA 143
Narkle v The State of Western Australia [2011] WASCA 160
Noto v The State of Western Australia [2006] WASCA 278; (2006) 168 A Crim R 457
P v The State of Western Australia [2007] WASCA 220; (2007) 177 A Crim R 69
R v Ireland (1970) 126 CLR 321
R v Williams [1999] NSWCCA 9; (1999) 104 A Crim R 260
RBK v The Queen [2004] WASCA 216
RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620
Scriva v The State of Western Australia [2010] WASCA 89
SKA v The Queen [2011] HCA 13; (2011) 85 ALJR 571
The State of Western Australia v Pollock [2009] WASCA 96; (2009) 195 A Crim R 527

(Page 4)

Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234
Upton v The State of Western Australia [2008] WASCA 54
Wilson v The State of Western Australia [2010] WASCA 82

(Page 5)

1 MARTIN CJ: For the reasons given by Mazza J, with which I agree, the appeal against conviction should be allowed in part, the convictions in respect of counts 1 to 6 set aside, and a retrial ordered in respect of those counts. The appeal against sentence should be dismissed, but as a result of the partial success of the appeal against conviction, the appellant should be resentenced in the manner set out in the reasons of Mazza J.

2 BUSS JA: At all material times, the appellant was a primary school teacher. He was convicted, after a trial in the District Court before Stevenson DCJ and a jury, of 13 counts of indecently dealing with a child under the age of 13 years, contrary to s 320(4) of the Criminal Code (WA), these being counts 1 - 13. He was acquitted of two counts of indecently dealing with a child under the age of 13 years, these being counts 14 - 15, and two counts of indecently recording a child under the age of 13 years, these being counts 16 - 17. There were five complainants. They were pupils of the appellant. Each of them was a boy.

3 Counts 1 and 2 related to 'D', counts 3 - 5 to 'K', count 6 to 'R', counts 7 - 10 to 'M' and counts 11 - 13 to 'W'. M and W are brothers.

4 The trial judge imposed individual sentences of immediate imprisonment, as follows:

Count 1: 1 year 6 months;

Count 2: 1 year 3 months;

Count 3: 1 year 6 months;

Count 4: 1 year 6 months;

Count 5: 2 years 6 months;

Count 6: 1 year 4 months;

Count 7: 1 year 2 months;

Count 8: 1 year 2 months;

Count 9: 1 year 4 months;

Count 10: 1 year 3 months;

Count 11: 1 year;

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Count 12: 1 year 3 months;

Count 13: 1 year 3 months.

5 His Honour ordered that the sentences for counts 5 and 11 be served cumulatively on each other and on the sentence for count 1. The total effective sentence was 5 years' imprisonment. The sentences for counts 1, 2 - 4, 6 - 10, 12 and 13 were backdated to commence on 30 June 2010. A parole eligibility order was made.

6 The appellant appeals to this court against his conviction and sentence.

7 The background and other relevant facts and circumstances are set out in the reasons of Mazza J. It is unnecessary to repeat them.

Appeal against conviction: ground 1

8 I agree with Mazza J, for the reasons he gives, that ground 1 has been made out.

Appeal against conviction: ground 2

9 In my reasons in KMB v The State of Western Australia [2010] WASCA 212, I analysed s 31A of the Evidence Act 1906 (WA) in the context of an appeal against conviction by an offender who had been convicted of child sex offences. It is unnecessary to reproduce that analysis.

10 I agree with Mazza J, for the reasons he gives at [95] - [99] below, that the appellant's criticisms of the trial judge's direction are without merit.

11 Ground 2 is without merit.

Appeal against conviction: grounds 3, 4 and 5

12 I agree with Mazza J, for the reasons he gives, that grounds 3, 4 and 5 are without merit.

Appeal against conviction: ground 6

13 In Narkle v The State of Western Australia [2011] WASCA 160, I analysed Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427Crofts v The Queen [1996] HCA 22 (1996) 186 CLR 427 and its interaction with s 36BD of the Evidence Act. It is unnecessary to repeat that analysis.

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14 I agree with Mazza J, for the reasons he gives at [167] below, that ground 6 is without merit.

Appeal against conviction: ground 7

15 My examination of the trial record does not require the conclusion that the jury should have had a doubt as to whether the appellant was guilty in relation to count 9. This examination has not raised a doubt in my mind. I agree with Mazza J, for the reasons he gives, that the jury's verdict on count 9 was not unreasonable. The verdict is supported by evidence the jury was entitled to accept. Ground 7 fails.

Appeal against conviction: grounds 8 and 9

16 I agree with Mazza J, for the reasons he gives, that grounds 8 and 9 are without merit.

Appeal against conviction: conclusion

17 I agree with Mazza J that leave to appeal should be refused on grounds 2 - 9. However, the appeal against conviction should be allowed on the basis of ground 1, and the judgment of conviction and the sentences on counts 1 - 6 should be set aside. Like Mazza J, I would order a new trial on those counts. The sentences on counts 7 - 13 should be varied in the manner proposed by Mazza J.

Appeal against sentence

18 I agree with Mazza J, for the reasons he gives, that leave to appeal on ground 1 should be granted and leave to appeal on grounds 2 - 4 should be refused, and that the appeal against sentence should be dismissed.

19 MAZZA J: This is an appeal against conviction and sentence.

20 The appellant, who was, at all relevant times, a primary school teacher, was convicted after trial of 13 counts of indecently dealing with a child under the age of 13 years, contrary to s 320(4) of the Criminal Code (WA) (counts 1 - 13). He was acquitted of four counts (counts 14 - 17) which alleged two counts of indecent dealing and two counts of taking indecent photographs of a child under the age of 13 years.

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21 The 13 counts for which the appellant was convicted concerned five of the appellant's students, who I will refer to in these reasons as D (counts 1 - 2), K (counts 3 - 5), R (count 6), M (counts 7 - 10), and W (counts 11 - 13). The complainants M and W are brothers. The counts for which he was acquitted concerned W.

22 The sentences imposed by his Honour on each count are as follows:

Count 1: one year, six months.

Count 2: one year, three months.

Count 3: one year, six months.

Count 4: one year, six months.

Count 5: two years, six months.

Count 6: one year, four months.

Count 7: one year, two months.

Count 8: one year, two months.

Count 9: one year, four months.

Count 10: one year, three months.

Count 11: one year.

Count 12: one year, three months.

Count 13: one year, three months.

23 His Honour ordered that the sentences on counts 1, 5 and 11 be served cumulatively. Thus, the total effective sentence imposed upon the appellant was 5 years' imprisonment. The sentence was backdated to commence from 30 June 2010. The appellant was made eligible for parole: green AB 58. The maximum penalty for each offence is 10 years' imprisonment.

The grounds of appeal

24 With respect to the appeal against conviction, there are nine grounds of appeal. Ground 1 was amended with the consent of the respondent at the hearing of this appeal. Without particulars, they are as follows:

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1. The learned trial judge erred by failing to give the jury an adequate Longman direction on counts 1, 2, 3, 4, 5 and 6.

2. The learned trial judge erred by failing to give the jury an adequate direction on propensity and uncharged acts.

3. The learned trial judge erred by failing to give the jury an adequate summation of the defence case.

4. The learned trial judge erred by giving the jury the summary of the prosecution and the defence case before completing his directions of law, and the process of fact finding, inferences, propensity and uncharged acts.

5. As a result of the learned trial judge's direction [to] the jury in this order, the defence case was significantly prejudiced.

6. The learned trial judge erred by failing to give the jury a direction of the type referred to by the High Court in Crofts v The Queen [(1996) 186 CLR 427].

7. The verdict of guilty on count 9 was inherently unsafe and unsatisfactory.

8. The learned trial judge erred by rebuking senior counsel in the presence of the jury for 'making comments' which had the effect of reflecting adversely on the appellant's case.

9. In the event that none of the errors alleged in grounds 1 to 7 [sic] above are seen by the Court as having led to a substantial miscarriage of justice the combined and cumulative effect of those alleged errors did lead to a miscarriage of justice.

25 Leave to appeal has been granted in respect of ground 1. The question of leave to appeal with respect to all the other grounds was referred to the hearing of the appeal.

26 The appeal against sentence will be dealt with later in these reasons.

The facts of the case

27 It was accepted at the hearing of the appeal that his Honour's recital of the facts in his sentencing remarks accurately set out the facts of the case. Except where otherwise indicated, the following facts are taken from those remarks.

28 At all relevant times, the appellant taught year 4 or year 5 at a school. Except for count 2, which occurred at Rottnest Island during a school

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camp, all the offences were committed in the appellant's classroom: green AB 40.

29 Counts 1 to 6 were alleged to have occurred between the beginning of 1999 and the end of 2001. Counts 7 to 13 were alleged to have occurred, more recently, between early January 2007 and 30 April 2009.

30 The offences committed by the appellant were representative of the appellant's conduct towards the complainants. Each complainant testified that they were constantly touched in an inappropriate way by the appellant: green AB 40, 41.

31 The appellant groomed the complainants. He singled out each complainant and gave them special attention over and above that which he conferred on other students in his class. For example, with respect to D, K and R, each of them received presents from the appellant: green AB 42. Further, depending on the complainant, the appellant provided extra assistance with schoolwork and paid additional attention to them in the classroom and in their sporting and other activities: green AB 42.

32 Over the period of the appellant's offending, he was seen by other staff at the school to have touched students. As a result, complaints were made to the headmaster and, in 1999, 2001 and 2004, the school issued the appellant with written warnings about his behaviour.

33 Counts 1 and 2 concerned D, and were alleged to have occurred in 1999 when he was in year 5. At the beginning of the school year, D was aged 9 years and 9 months.

34 In count 1, the appellant was alleged to have touched D's penis by putting his hand in D's shorts pockets. This offence was alleged to have occurred when D was standing at the appellant's desk in front of the class, waiting for the appellant to mark his schoolwork: green AB 44.

35 Count 2 occurred at a school camp on Rottnest Island. The appellant followed D into a dormitory and, while D was on a top bunk changing his underwear, the appellant allegedly touched his leg: green AB 44.

36 Counts 3, 4 and 5 concerned K. These offences were alleged to have occurred in the school year of 2000, when K was in year 5. At the beginning of the year, K was 9 years and 5 months old.

37 Count 3 was alleged to have occurred when K was sitting on the appellant's knee. At the time, the appellant was assisting him with a

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school project. The appellant put his hand into K's shorts pockets and rubbed his penis until it became erect: green AB 45.

38 Count 4 allegedly occurred when K and the appellant were alone in the classroom at a computer terminal. On this occasion, K was sitting on the appellant's lap. It was alleged that the appellant put his hand in K's pocket and rubbed his penis: green AB 45.

39 Count 5 concerned an allegation that, at a time when he was alone with the appellant in a darkened classroom, the appellant pulled down the front of K's underpants, exposing his penis: ts 348. It was alleged that the appellant pulled K's foreskin back, which caused him pain. K said that the appellant told him not to tell his mother anything about what had happened: green AB 45.

40 Count 6 concerned R. This offence was alleged to have occurred in 2001 when R was in year 5. At the beginning of that year, R was aged 9 years and 10 months. R said that the appellant asked him to stand on something like a box at the back of the classroom to allow the appellant to take measurements of him. In this process, the appellant put his whole hand inside R's shorts near his groin, but R was not certain how high the appellant's hand actually went. He did not like what occurred and was embarrassed by it: green AB 46.

41 Counts 7, 8, 9 and 10 concerned M. These offences were alleged to have occurred in 2007, when M was in year 4, apart from count 10, which was alleged to have occurred in 2009 when M was in year 6. At the beginning of 2007, M was aged 8 years and 9 months.

42 As to count 7, the appellant was alleged to have rubbed one of M's buttocks by placing his hand inside M's pants. The offence was alleged to have occurred in the classroom while M was standing at his desk. The appellant was, at the time, commenting on the excellence of M's work: green AB 46 - 47.

43 Count 8 involved an allegation that, after giving M a lollipop, the appellant rubbed M's bottom on the inside of his underpants with his hand: green AB 48.

44 Count 9 allegedly occurred one morning recess when the appellant asked M to stay behind in the classroom. The appellant went over to M's desk. He then put his hand inside M's underwear and gave his bottom a soft, continuous squeeze: green AB 48.

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45 Count 10 concerned an alleged incident in 2009, when M was a year 6 counsellor. M was, at the time, assisting the appellant to put away books. The appellant asked M to read to him. While he did so, it was alleged that the appellant put his hand inside M's shorts and stroked his bottom: green AB 48.

46 Counts 11, 12 and 13 concerned W. They were all alleged to have occurred in 2008, when W was in year 4. At the start of that year, W was aged 9 years and 1 month.

47 The allegation the subject of count 11 is that the appellant asked W to stay behind in the classroom when the rest of the class had gone to sport. The appellant used the pretext of going over some maths questions with W. In the course of doing so, the appellant touched W's bottom on the inside and outside of his underpants: green AB 48.

48 With respect to count 12, it was alleged that W was standing at the appellant's desk, having a spelling test corrected. It was alleged that the appellant rubbed W's bottom on the outside of his underwear for a period of 10 or 11 seconds: green AB 48.

49 Count 13 allegedly occurred when W was, along with other students, moving his desk around in the classroom. In this process, the appellant called W to him. While the rest of the class continued to organise their desks, the appellant was alleged to have rubbed W's bottom on the outside of his underpants: green AB 48 - 49.

50 No complaint of offending by the appellant was made until 2009, when K went to the police. A subsequent investigation brought to light the allegations made by the remaining complainants. K, at the behest of the police, made a pretext telephone call to the appellant. The appellant made no express admissions in that call to any offence relating to K or anyone else.

51 The appellant gave evidence in his defence at trial as follows. The appellant said that the classroom and curtains were always open and the lights were always on: ts 385, 407. He denied being in a classroom 'one on one' with a student: ts 386.

52 He accepted that he gave L and K birthday presents, and K a cheque: ts 387.

53 He accepted that he did not adhere to the school policy which prohibited teachers touching students: ts 392.

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54 He said that he innocently touched students by, for example, putting his arm around the student while marking that student's work: ts 393.

55 He acknowledged that on three occasions he was formally warned about physical contact with students. He accepted that he continued to touch students, but not in a way he considered inappropriate: ts 397 - 398.

56 He admitted that he touched all the complainants, but not sexually. He said that his touching was done in a friendly, encouraging and comforting way: ts 405.

57 With respect to D, he accepted that he had given him a birthday present, possibly more than once: ts 399. He denied the allegations that he touched him (D) on the private parts almost every day: ts 400. He denied committing count 1. As to count 2, which was allegedly committed at Rottnest Island, apart from agreeing that there was such a camp, he denied touching D as alleged: ts 401.

58 In respect of K, the appellant denied K's allegations that he had touched him (K) on numerous occasions: ts 405. He denied committing any of the offences alleged against him by K. With particular relevance to count 5, the appellant denied that he wore white T-shirts to school: ts 408.

59 In relation to R, he denied any inappropriate behaviour: ts 413. In relation to count 6, while he accepted that there was a tape measure in the classroom and students undertook activities which included the measurement of things, he denied measuring the inside of R's leg and denied committing the offence: ts 414 - 415.

60 In relation to M, the appellant denied touching him in an inappropriate way: ts 418.

61 Specifically with respect to count 8, the appellant testified that spelling tests were never conducted on Friday afternoons. The appellant said that they were 'always held on a Friday morning': ts 419.

62 In relation to count 9, he said there was no testing or schoolwork done on the last day of term 4: ts 419 - 420.

63 In respect of count 10, the appellant said that '[n]obody read to me on an individual basis': ts 421.

64 In relation to W, the appellant testified that there was no truth to the allegations that he (the appellant) had put his hands down W's pants:

(Page 14)

ts 422. The appellant denied ever asking W to stay behind, and he denied, in 2008, conducting any spelling tests on a Friday: ts 423.

65 He denied being sexually attracted to the complainants and denied indecently dealing with them, as charged, or in any other way.

66 The appellant called some evidence to the facts relating to counts of which he was ultimately acquitted and evidence of good character.

Ground 1 - Longman direction

67 It was common ground in this case, both at trial and on appeal, that because of the long delay between the alleged commission of counts 1 to 6 and when the allegations were brought to the attention of the appellant, his Honour was required to give the jury a warning in accordance with Longman v The Queen (1989) 168 CLR 79, 91 (a Longman warning). His Honour sought to give such a warning. Part of the warning requires a judge to direct a jury about the forensic disadvantage caused to an accused by delay. The issue raised in this ground is whether his Honour's direction on the forensic disadvantage caused by delay complied with Longman v The Queen.

His Honour's direction

68 The relevant portion of his Honour's summing up is as follows:

This

direction

concerns all the counts, but more particularly the earliest in time counts. So as I have said, the human memory is fallible and honest witnesses can be wrong in their recollection for any number of reasons.

You may also wish to bear in mind

that because of the delay, the evidence of the complainants cannot be tested in the same way without the delay. By reason of the delay, the [appellant]

may

have lost some opportunity to test some of the evidence of the complainants about what they say happened and when because of the effect of memory and because of the other matters which I have mentioned.

This direction

which I’m giving you is based on the experience of courts of the difficulty that accused people have in such cases because of the long delay and because of the inability of the complainants to now put a specific date on the counts. This is something you

should

have regard to and it is therefore

important

that

you

pay

careful

attention to the evidence of each complainant in respect of the complaint that he makes. You may of course act upon the complainants’ evidence, subject to all of my directions on how you must deal with the evidence, and convict the [appellant] if you are satisfied of the truth and the accuracy of the complainants’ evidence. But as I have said, you should carefully scrutinise their evidence having regard to the circumstances relevant to their evidence, to which I have referred, and taking account of what I have just said to you: ts 562. (emphasis added)

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Longman v The Queen and forensic disadvantage

69 Brennan, Dawson and Toohey JJ explained in Longman v The Queen (91) that it may not be apparent to a jury that one of the consequences of long delay is an accused is forensically disadvantaged in the conduct of his or her defence. Consequently, their Honours stated that the fairness of the trial had been impaired and it was imperative for a warning to be given to the jury.

70 Thus, the effluxion of time presumptively gives rise to real prejudice to an accused by the loss of the opportunity to adequately test a complainant's evidence or to adequately marshal a defence.

71 In Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161, Gaudron, Gummow and Callinan JJ emphasised the importance of giving an appropriate warning, when they said:

The trial judge should have instructed the jury that the appellant was, by reason of the very great delay, unable adequately to test and meet the evidence of the complainant. Her Honour should not have offered the qualification that she did in relation to the remarks she did make about the delay. An accused's defence will frequently be an outright denial of the allegations. That is not a reason for disparaging the relevance and importance of a timely opportunity to test the evidence of a complainant, to locate other witnesses, and to try to recollect precisely what the accused was doing on the occasion in question. In short, the denial to an accused of the forensic weapons that reasonable contemporaneity provides constitutes a significant disadvantage which a judge must recognise and to which an

unmistakable and firm voice

must be given by appropriate directions [45]. (emphasis added)

72 See also Doggett v The Queen [2001] HCA 46; (2001) 208 CLR 343 [51]; Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234 [177]; and Angliss v The State of Western Australia [2005] WASCA 162 [17].

73 It is clear that a trial judge's obligation is to give, in clear terms, a warning, by which is meant a direction of law which the jury is bound to follow, as opposed to a comment which a jury may or may not accept, as it sees fit: Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50 [49] - [50].

The direction is deficient

74 With great respect to his Honour, there are three deficiencies in his direction to the jury.

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75 First, his Honour did not give an unmistakable and firm direction of law concerning the loss of forensic advantage. Although it is true that his Honour used the word 'direction' twice, at other points he used language consistent with the making of a comment. For example, he said, 'You may also wish to bear in mind that because of the delay, the evidence of the complainants cannot be tested in the same way without the delay'. His Honour then said, 'By reason of the delay, the [appellant] may have lost …'. A short time later, his Honour said, 'This [forensic difficulty] is something you should have regard to …'.

76 The words are not emphatic and do not convey to the jury, in accordance with Longman v the Queen, the requirement to take into account the forensic disadvantage which the appellant had suffered as a result of the long delay.

77 Second, although his Honour referred to the loss of some opportunity to test the evidence of the complainants, he made no reference whatever to the loss of the opportunity to marshal a defence.

78 Third, apart from the very general observation that an accused encounters difficulty because of the inability of complainants to put a specific date on their counts, his Honour mentioned none of the specific disadvantages which delay has caused the appellant. For example, had a complaint been made soon after the commission of an offence which was alleged to have taken place during class time with other students present, those other students could have been spoken to about what was going on in the classroom and what they observed. It is evident when the appellant gave evidence concerning the complaints the subject of counts 1 to 6, that he had some difficulty recalling the surrounding detail of those allegations: ts 401, 408, 413. With respect to count 2, the appellant was unable to recall whether he was alone with the complainant. The appellant said he was unable to remember a great deal about R. As a result of the passage of time, the appellant lost the opportunity of identifying and locating potential witnesses. It was difficult for him to precisely account for his own whereabouts or movements. These matters were not raised by his Honour. His Honour's direction was, with respect, too general. There is no mention of any actual forensic disadvantage caused to the appellant. In this context, forensic disadvantage is actual, even if it is the loss of a chance or opportunity: AM v The State of Western Australia [2008] WASCA 196; (2008) 188 A Crim R 457 [20], [140] - [149]; and FJL v The State of Western Australia [2010] WASCA 8 [2].

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79 For these reasons, ground 1 should be upheld.

80 For the sake of completeness, the appellant put, as part of his argument on this ground, that his Honour should have used the expression 'dangerous to convict' in his direction. This court, in several decisions, has held that the sufficiency of a Longman direction does not depend on the use of the word 'dangerous'. See Christophers v The Queen [2000] WASCA 308; (2000) 23 WAR 106 [37]; Crisafio v The Queen [2003] WASCA 104; (2003) 27 WAR 169 [1], [17] - [18], [65]; and RBK v The Queen [2004] WASCA 216 [34]. There is no substance to this submission.

Ground 2 - propensity and uncharged acts

81 Without objection, the State led evidence from each of the five complainants that on occasions other than the ones the subject of charges, the appellant behaved in a sexual way towards them. The State also led evidence from teachers Ms CM, Ms RC and Ms BT, who observed the appellant behave in a physical way towards students which they regarded as inappropriate.

82 This evidence was led, in part, by the State to demonstrate that the appellant had a sexual interest in young boys, and specifically in each of the complainants. It was the State's case that any demonstrated sexual interest made the commission of the alleged offences more likely. In other words, the evidence was relevant to prove a tendency that the appellant had. It was also relevant as evidence of the attitude or conduct of the appellant towards each complainant. It was therefore propensity and relationship evidence admissible pursuant to s 31A of the Evidence Act 1906 (WA).

His Honour's direction

83 His Honour's direction occupies six pages of transcript between ts 555 and 561. It took approximately 14 minutes to deliver.

84 His Honour summarised the relevant evidence given by the complainants. His Honour reminded the jury that the appellant denied he had behaved in a sexually inappropriate way with any of the complainants or that he was sexually attracted to young boys: ts 555 - 556.

85 He then set out the State's case with respect to the evidence. He told the jury:

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The State says it shows, according to the State, that the alleged offending the subject of the present indictment did not happen in a vacuum or out of the blue. The State says that it shows that the [appellant] had a tendency to indecently deal with young boys, and in particular with respect to each complainant. The State also says that it shows that the [appellant] had a sexual interest in each complainant, and in particular young boys. The State says that the evidence of the other conduct shows that there was a process of grooming over a period of time which explains why there was no immediate complaint by the complainants on the happening of any specific incident the subject of a charge on the indictment. The State also says it helps to explain how it was that the [appellant] thought that he would not be charged with these acts of alleged indecent dealing or recording, and that it negates any innocent touching or accident. And in that regard, I remind you members of the jury, that there is no onus or obligation on an accused person to prove anything in a trial. The State says that the evidence of the other conduct explains the lack of resistance or objection at the time by the complainants to what they say the [appellant] did to them: ts 556 - 557.

86 His Honour then told the jury that they could use evidence of what he described as 'other conduct', only if the jury was satisfied beyond reasonable doubt that it had occurred. If the jury was so satisfied, his Honour told the jury they needed to decide whether the evidence showed that the appellant had a sexual or inappropriate interest in young boys, or in the particular complainant under consideration.

87 His Honour then directed the jury as to how the evidence could be used in the event that it was accepted. At ts 558 he said:

The evidence of the other conduct may help you because showing that the [appellant] has acted in a sexual way towards a particular complainant or another complainant on one or more other occasions, may show that the [appellant] had a sexual interest in the complainant or young boys, and was willing to give effect to that interest by engaging in that other conduct. If you are persuaded of that beyond reasonable doubt, then you may think it is

more

likely

that the [appellant] did what is alleged in the charge that you are considering. (emphasis added)

88 His Honour went on to say:

It is a matter for you to decide whether you accept that the other conduct and the suggested sexual interest have been proved beyond reasonable doubt and if you do make those two findings, it is also a matter for you to decide whether such findings assist you in determining the guilt or innocence of the [appellant] on the charge in the indictment that you are considering. Now, there are some limits on this. First, you must draw a distinction between the evidence relating to the other conduct and the evidence relating to the count set out in the indictment that you are

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considering. You cannot use the evidence of the other conduct to make up for any deficiencies that you might find in the evidence required to prove each of the elements of the count set out in the indictment that you are considering. So if you accept the evidence of the other conduct, then such evidence of a general finding relating to the other conduct does not, on its own, prove the specific charge on the indictment that you are considering. You cannot move automatically from a general finding in respect of the other conduct to a particular finding of guilt beyond reasonable doubt in respect of the count that you are considering. The commission of the alleged offence set out in the indictment must also be proved by some evidence relating to the charged offence. It is not sufficient to just rely on the evidence relating to the other conduct. As I have said, you must separately consider each count on the indictment in this way: ts 558 - 559.

89 His Honour continued:

Even if you are satisfied that all or part of the other conduct has been proved and that it demonstrates that the [appellant] had the sexual interest in the complainant or in young boys in the way contended for by the State, you may still not be persuaded beyond reasonable doubt that the [appellant] committed the count you are considering in the indictment. It does not follow that because a person has on some other occasion committed an act that he did the act that you are considering on this occasion. Proving that a person did something many times previously does not compel a conclusion that he did it again. People do not always act in accordance with all their inclinations at every opportunity. Proof of a person's sexual interest or proclivity may provide strong support for direct testimony as to that person's conduct on the occasion in issue: ts 559.

90 His Honour then said:

Therefore, it is still the case that you must look separately at the evidence relating to each count. You may find the evidence of a witness to be persuasive and other evidence from the same witness not to be persuasive. You must consider all the evidence of the complainant and all the evidence of the [appellant] on the count you are considering. … You need to be aware of the matters on which I have just spoken so that you can appreciate the limited purpose for which the evidence of the other conduct was led. Whether you are satisfied beyond reasonable doubt that the other conduct occurred, and if it did, then whether you are also satisfied beyond reasonable doubt that it shows that the [appellant] had a sexual interest in a particular complainant or young boys in general and had a willingness to give effect to that interest by engaging in the act in issue, and whether that makes it

more likely

that the [appellant] did the act alleged in the indictment is a matter entirely for your consideration: ts 560. (emphasis added)

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91 In the concluding part of the direction, his Honour repeated that before the evidence of the other conduct can be used, it must be proved beyond reasonable doubt, and that even if the jury is so satisfied, then that evidence alone does not establish the guilt of the appellant in respect of each offence. He said:

It can only ever be a step in the proof of the commission of the various acts with which the [appellant] has been charged, and you can only convict the [appellant] if you are satisfied beyond reasonable doubt that the [appellant] committed the offence charged: ts 560.

92 His Honour concluded the direction by telling the jury:

You should also be aware that if you do not accept the evidence of the complainant or part of it on matters relating to the other conduct which relates to a matter concerning that complainant only; that is, in respect of which the [appellant] has not been charged, then that may influence your assessment of that complainant's credibility about the matters the subject of the charges in the indictment: ts 560 - 561.

93 The appellant makes a number of criticisms of his Honour's directions on this evidence. These criticisms are:

1. The direction was excessively long, complex and was likely to have confused the jury.

2. The direction did not make it clear that the jury should not reason that, because the appellant had been charged with offences against five separate boys, the case against the appellant in respect of each individual boy was necessarily stronger.

3. The learned trial judge failed to direct the jury that they could not use the evidence to reason that the appellant was the 'kind of person' who was likely to have committed any of the offences.

4. The use of the phrase, 'more likely', may have misled the jury into thinking that proof of guilt required a weighing process on the balance of probabilities.

94 Where propensity evidence of the type used in this case is led, a jury will, depending upon the particular circumstances of the case, generally be instructed that:

(a) before they can act on it, they must be satisfied that it is true;

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(b) proof of a propensity is relevant to prove that the accused may be more likely to have committed the count or counts in the indictment;

(d) the accused cannot be found guilty unless the jury is satisfied beyond reasonable doubt that the act said to constitute a particular count on the indictment occurred;

(e) the jury cannot substitute the propensity evidence for the evidence of the offence or offences charged; and

(f) the ultimate question for the jury to decide is whether, having regard to the whole of the evidence, the offence or the offences charged have been proved beyond reasonable doubt.

All of these matters were referred to in his Honour's direction.

95 Senior counsel's submission that the direction was excessively long, complex and was likely to have confused the jury is far too general to be of any real help. The submission is little more than assertion. In oral argument, senior counsel said, '[I]t's all there': appeal ts 12, meaning that all the legal requirements for a propensity direction were given by his Honour, but it was suggested that the direction was so long and, in some cases, repetitive as to have confused the jury.

96 The direction is, at some places, repetitive, but not in a way that might have confused the jury. Rather, any repetition was for emphasis, to ensure that the evidence was not misused by the jury. The direction was, when read as a whole, fair, and correctly instructed the jury as to the law.

97 The criticism that the direction did not make it clear to the jury that, because the appellant had been charged with offences against five separate boys, the case against the appellant in respect of each individual boy was necessarily stronger, is without merit, in light of his Honour's direction towards the beginning of the summing up to this effect:

However, one thing you must not do, and that is you cannot draw an inference against the [appellant] or make any conclusions against him or be prejudiced against him because there is more than one count: ts 521.

98 The submission that his Honour should have directed the jury that the evidence could not be used to reason that the appellant was the 'kind of person' who was likely to have committed any of the offences is
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erroneous. The evidence was admissible for precisely this purpose. For his Honour to have given such a direction would have been an error:

Noto v The State of Western Australia

[2006] WASCA 278; (2006) 168 A Crim R 457 [26] - [28];

Upton v The State of Western Australia

[2008] WASCA 54 [65]; and

Dair v The State of Western Australia

[2008] WASCA 72; (2008) 36 WAR 413 [64].

99 Finally, I do not accept senior counsel's submission concerning his Honour's use of the words, 'more likely', in the direction. His Honour said many times in his summing up that, before the appellant could be convicted, the State had to prove his guilt beyond reasonable doubt. There is no realistic prospect that his Honour's use of the words 'likely' or 'more likely' confused the jury as to the standard of proof.

100 For these reasons, ground 2 has not been made out.

Ground 3 - did his Honour adequately sum up the defence case?

The law

101 A good statement of the relevant principle was made by Gibbs CJ in Cleland v The Queen (1982) 151 CLR 1, where he said:

It is clear in principle that a trial judge, when directing a jury in a criminal trial, must hold an even balance between the cases of the prosecution and the accused and must fairly direct the consideration of the jury to the matters raised by the accused in his defence. In what manner, and in what detail, this should be done must of course depend on the circumstances of each case (10).

102 In Domican v The Queen (1992) 173 CLR 555, the court (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ) said:

[T]he requirement of fairness means that ordinarily the respective cases for the prosecution and the accused must be accurately and fairly put to the jury. But that requirement does not oblige the judge to put to the jury every argument put forward by counsel for the accused. … Whether the trial judge is bound to refer to an evidentiary matter or argument ultimately depends upon whether a reference to that matter or argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence. Consequently, the conduct of the case necessarily bears on the extent to which the judge is bound to comment on or discuss the evidence. Discussion or comment which is justified or required in one case may be neither required nor justified when a similar case is conducted in a different way (561). (footnotes omitted)

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103 A trial judge's duty to fairly present an accused's case has also been discussed in recent decisions of this court: see The State of Western Australia v Pollock [2009] WASCA 96; (2009) 195 A Crim R 527; and Heijne v The State of Western Australia [2010] WASCA 86.

104 It is impossible and undesirable to set out an exhaustive list of factors by which a trial judge's summing up of the defence case must be evaluated. However, such factors as the nature of the trial, the issue or issues in dispute, the length of the trial and its complexity will be relevant: R v Williams [1999] NSWCCA 9; (1999) 104 A Crim R 260 [39]. It is vital that the jury understand the critical issues and the accused's case in respect of those issues so that the jury can fairly decide them. Fairness will often be met by the trial judge accurately and succinctly reminding the jury of the case put by defence counsel in relation to the issues that are in dispute. Generally, in this State, the jury will have heard defence counsel's closing address immediately before the trial judge's summing up. The points made will generally be fresh in their minds. It will unduly test the patience and intelligence of juries and unnecessarily lengthen a summing up for the trial judge to repeat everything defence counsel just said to them.

The circumstances of the case

105 The fundamental issue for the jury to decide on each count of indecent dealing was whether the State had proved beyond reasonable doubt that the appellant had committed the act alleged. The issue was simple to understand and the evidence in respect of each count was not complex. Essentially, the task faced by the jury involved an assessment of the evidence of the relevant complainant and the appellant.

106 The evidence was given over five sitting days between 21 and 25 June 2010. By the time closing submissions were delivered, the evidence would have been fresh in the mind of the jury.

107 The closing addresses of prosecuting and defence counsel were given on 28 June 2010 (after an intervening weekend). Each lasted just under 2 hours. The closing addresses dealt with the evidence in considerable detail.

108 Defence counsel commenced his address by making a number of general submissions, including:

(a) The charges were 'enormously unlikely' to have happened. Apart from count 2, the offences were alleged to have occurred in a

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classroom where the door was always open in circumstances where other students, teachers and visitors were, or would potentially be, in the vicinity: ts 711, 712 and 716.

(b) Apart from the complainants themselves, there was no independent evidence to support their allegations.

(c) There was nothing found in the appellant's house to support the proposition that he had a deviant sexual interest in young boys: ts 713 - 714.

(d) There was no contemporaneous complaint made by any of the complainants.

109 As defence counsel put it:

So what we say is that these allegations are simply false: ts 715.

110 Defence counsel analysed the evidence of each complainant, one by one. With respect to each of them, it was suggested that their evidence was untrue.

111 In respect of D, it was submitted that his evidence was improbable because he did nothing to distance himself from the appellant, either in the classroom or in his choice of sport: ts 716 - 717. With respect to count 2, which occurred on Rottnest Island, it was submitted that the notion that he was the only boy getting changed in the dormitory, and that he was changing his underwear during the day, was not credible: ts 718 - 719.

112 In relation to K, defence counsel described his evidence as 'a complete lie': ts 730.

113 Defence counsel placed much emphasis on three points concerning K. First, there was an inconsistency between K's statement in his deposition concerning count 5 in which he said that the appellant was wearing a white T-shirt at the time, and his evidence at trial in which he said the appellant was wearing a white collared shirt: ts 731. Second, counsel submitted that if K had been indecently dealt with by the appellant, he would not have told his parents that nothing had happened to him in the appellant's class when he became aware that it was possible that his younger brother may be taught by the appellant: ts 731 - 732. Third, during the pretext telephone call between K and the appellant, K did not mention the alleged incident which constituted count 5: ts 733 - 735.

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114 In relation to R, defence counsel submitted that his evidence suffered from 'the same sorts of difficulties as the other witnesses': ts 738.

115 Defence counsel highlighted an inconsistency between R's deposition, where he said that the appellant sent him a cheque as a birthday present on one occasion, but in his evidence he said that the appellant sent him a cheque more than once: ts 738.

116 In respect of M, defence counsel noted that by the time he came to be interviewed by the police, allegations against the appellant had been made and were known to M: ts 721.

117 Defence counsel submitted that M's evidence with respect to count 9 was 'a fantasy' because, as defence counsel understood it (erroneously as it turned out), M alleged that the offence occurred on the final day of term 4 on which the appellant had conducted spelling and maths tests, but no tests were ever conducted on the last day of term: ts 722 - 724.

118 Defence counsel highlighted a contradiction between M and his brother, W. M said that when the appellant came to his desk he stood up to be polite. But W denied that students stood for the appellant when he came to their desk: ts 724 - 725.

119 Defence counsel highlighted another contradiction between M and W. M said that he saw the appellant touch W three to five times, both in the classroom and in the playground. W denied anyone being present when the appellant touched him: ts 726 - 728.

120 In respect of W, defence counsel referred to the contradictions I have just mentioned in connection with the evidence of M: ts 728.

121 Defence counsel submitted that W's evidence was 'implausible … on exactly the same basis as his brother's': ts 730.

122 Having perused a transcript of defence counsel's closing address, I think it is accurate to say that any point that could have been made on the appellant's behalf was in fact made by him.

123 By the end of defence counsel's closing address, the jury had been given a comprehensive factual analysis of the evidence from the appellant's point of view.

124 His Honour began his summing up at 2.32 pm on 28 June 2010, shortly after defence counsel concluded his closing address. His Honour

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adjourned for the day at 4.04 pm and resumed at 9.32 am on 29 June 2010.

125 At 10.44 am, the jury retired to consider its verdict. After hearing submissions from counsel, his Honour redirected the jury on some factual issues between 11.17 am and 11.19 am, and again between 2.41 pm and 2.44 pm.

126 On 30 June 2010, the jury sought some redirections, including a redirection on uncharged acts. That redirection occurred between 11.26 am and 11.46 am. The jury delivered its verdicts at 3.10 pm on that day.

127 His Honour structured his summing up in this way. His Honour began by instructing the jury that they must follow his directions about the law, but matters of fact were their responsibility: ts 518. His Honour gave an orthodox and unchallenged separate trial direction: ts 521 - 522. He correctly directed the jury as to the onus and standard of proof: ts 522. His Honour then gave a direction in accordance with Liberato v The Queen (1985) 159 CLR 507.

128 His Honour directed the jury as to the elements of the offences in the indictment. In doing so, he provided each member of the jury with a document setting out the elements of the offences: ts 524.

129 At ts 525, his Honour correctly identified the real issue which the jury had to decide in respect of each count. He expressed it as follows:

The issue for you in this trial is whether the touching alleged in each count occurred … It is necessary for the State to prove beyond reasonable doubt that the [appellant] dealt with the complainant by touching him in the alleged way in the count that you are considering.

130 His Honour then summarised the State's case: ts 528 - 531.

131 Immediately after summarising the State's case, his Honour summarised the appellant's case. That summary is as follows:

I now turn to the [appellant's] case. The [appellant] says that the touching on each occasion, the subject of a count on the indictment, did not occur, did not happen. The [appellant] says that the State's case consists of 'empty allegations': ts 531.

STEVENSON DCJ: and that the evidence relied upon by the State is insufficient to prove the allegations in the indictment beyond reasonable doubt. The State says - sorry, the [appellant] says that each of the

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complainants have made up the allegations that they are not true, they did not happen, that it is a lie and he says he cannot explain to you why this is the case. He says that the allegations are enormously unlikely to have occurred, based on the evidence relied upon by the State. The [appellant] says that at best there is a possibility, but of course that is not sufficient because the State must prove each count beyond reasonable doubt. The [appellant] says he has no sexual interest in young boys and points to the fact that there is no evidence which is independent of the evidence you heard in this trial to support such a contention. The [appellant] asks you to consider the context in which the photographs, the subject of counts 16 and 17, were found on the disc at his home and says in any event that the photographs are not, in themselves, indecent. As I have said, the [appellant] accepts that if the touching in respect of counts 1 to 15 occurred in the way alleged, then there is no issue with respect to whether or not that touching was indecent. The [appellant] accepts that he did, in the course of his teaching at the school, touch students from time to time and put his arm around them, but says that on no occasion was that touching ever indecent. The [appellant] says that on a consideration of the evidence of [M] and [W], it is a fantasy, that you should put it to one side and pay no attention to it and that a reason for doing so might be because of the circumstances in which both those complainants came to give their evidence to you and also because of the internal inconsistency with respect to certain aspects of their evidence. The [appellant] says that [D] was not a teacher's pet but rather, he had special needs at the time he was in the [appellant's] class and that is what the [appellant] attended to. The [appellant] says that there has been or may have been a cross-infection of allegations between the complainants and asks you to bear in mind the fact that the complainants except for [K], each agreed that but for being approached by the police in the course of the investigations by the police, they probably would never have told anybody about what they say the [appellant] did to them in his class in year 5: ts 532.

With respect to [K], the [appellant] says his evidence is not credible, and relies upon the inconsistency between what he told the police in the statement that he made last year and his evidence to you, and as I've said, I'll say something to you about that evidence in a moment. And also, the [appellant] says that you should not believe his evidence on the basis that when asked by his mother and father whether anything had happened in [the appellant's] class, he would have said, in the context of his younger brother going into the class, something at that time. And again, I will say something to you about that sort of evidence and the reasons why complainants sometimes do not make a complaint when things happen to them in a moment. The [appellant] says that the evidence of [K] is totally implausible. The [appellant] relies upon his own previous good character, the fact that he has no previous convictions of any kind and is not facing any other charges. The [appellant] relies upon the pretext call to suggest that his responses to the questions and inquiry made of him by [K] is consistent with his innocence. And having said that, there is in this case and in every case, never any onus or obligation on an accused person to

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prove their innocence. The obligation is always on the State to prove the guilt of the accused beyond reasonable doubt, as I have told you. The [appellant] also relies upon the character evidence you heard on Friday afternoon in respect of his own character, who he is and the regard that he is held in by those who spoke for him. The [appellant] admits that he does touch students in the course of his teaching, but says that on no occasion was it ever indecent or inappropriate and that on a consideration of all the evidence before you, the State has not proved beyond reasonable doubt the allegation in respect of any count on the indictment: ts 533.

132 His Honour then summarised the evidence given by each witness. The evidence of each witness was summarised very shortly.

133 The appellant's evidence was also summarised, very shortly, in these terms:

With respect to the other witnesses, you heard then from the [appellant] himself. And he gave evidence to you in respect of his denial of the events the subject of the evidence of the complainants and his teaching manner and style and time at [the school]. And in particular respects arising out of his teaching of class year 4 and year 5 and in particular respects to some of his dealings with the individual complainants when they were in his class and after: ts 537.

134 The testimony of the other witnesses called on behalf of the appellant was summarised as follows:

You also then heard evidence from a number of other witnesses, the first of whom was Ms [JV]. She gave evidence in relation to the character of the [appellant], but also she gave evidence in relation to an incident when she saw the [appellant] sitting outside Mrs [R's] music room and she told you that she observed the [appellant] pat [W] on the bottom on that occasion in a grandfatherly way. You then heard evidence from Mr [BH], the cadet officer for the school and resident master in 1990 who had a boarding school experience with the [appellant]. You heard evidence from Ms [MM], she was the lady with the American accent and she told you of her opinion of the [appellant]. You then heard evidence from Mr [CH], who was the teacher who left in 2005 after 19 years at the school. You then heard evidence from Ms [MR]. She had the twin boys in year 4 and one of her children was an anxious child and she was concerned to ensure that the children had the best teacher for them individually. You then heard evidence from Ms [MB]. She was the nurse at the school for 17 years. And finally, you heard from Ms [KT]. She was the administration assistant at the school for 19 years. All of those witnesses gave evidence in relation to their dealings with the [appellant] and high reputation that they held him and their knowledge of his reputation in the school community: ts 538.

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135 Shortly after this, his Honour adjourned for the day. The following morning, his Honour referred to the evidence of Ms JV, Ms BT, a prosecution witness, and the appellant. With respect to the appellant, his Honour said:

In relation to the evidence of the [appellant], he told you that he took numerous precautions to prevent any suggestion of impropriety on his part. For example, he told you that he ensured that the door to the classroom was always open, and he also told you that on occasion when it was shut because other students were with their class outside his classroom, he would actually get up and open the door. He told you that he never played teacher's pet with his students. As I said yesterday, he accepts that he does touch students in the course of his teaching. He also told you in his evidence that he did not object to physical punishment, and that he had expressed his views in that regard openly to other staff members from time to time. He told you that he did not distinguish between the boys and the girls in his class. He also told you that he was not aware that the photographs, the subject of counts 16 and 17, were on his computer and on the disc located at his home, and he told you that he did not take those photographs in any event. He also told you that it was not his practice to ever put his hands into the shorts pocket of a student, and that he did not permit students to put their hands into his pocket. And that is a response to the contention by [D] that there was an occasion at the canteen where he was invited by the [appellant] to put his hand into his pocket in order to get some money to buy an ice-cream on that occasion: ts 550.

136 His Honour then proceeded to give specific directions concerning certain aspects of the evidence. The aspects that he directed on were:

(a) Delay: ts 551 - 554

(b) Propensity and uncharged acts: ts 555 - 561

(d) Inferences and the pretext telephone call: ts 562 - 565

(e) Inconsistencies: ts 566

(f) Good character: ts 567

137 In the course of each of these directions, his Honour summarised the defence case relevant to the direction.

138 With respect to the alleged failure by his Honour to adequately put the defence case to the jury, the appellant's written submissions are as follows:

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Specifically, the learned trial judge did not properly direct the jury concerning:

(i) The absence of any admissions;

(ii) The equivocal nature of the pretext call, briefly mentioned at [T533] but not dealt with at any length;

(iii) The lack of early complaint (touched on at [T533]);

(iv) The circumstances in which the complaints emerged (touched on at [T532]);

(v) The various contradictions in the evidence of the complainants and their prior inconsistent statements (touched on at [T532 - 533] but not dealt with at any length);

(vi) The inherent unlikelihood of the events occurring in a full classroom with a permanently open door (not mentioned);

(vii) The specific unlikelihood of count 9 … having occurred (not mentioned);

(viii) The lack of any evidence of material at the [appellant's] home or on his computer consistent with him having deviant sexual interests (not mentioned);

(ix) The failure of the police to find any white T-shirt at the appellant's home. (This was taken away from the jury as a live issue at [T531]);

(x) The potential for contamination of the evidence of the brothers [M] and [W] (touched on indirectly at [T532]); and

(xi) Character evidence (referred to at [T533], but without a full direction, which came the following day).

139 None of these complaints have any merit, for the following reasons.

140 As to (i), although his Honour did not mention, in his summing up, that the appellant had not made any express admissions to the police, or to anyone else, that fact would have been very obvious to the jury and did not require particular comment from his Honour.

141 As to (ii), (iii), (iv), (v), (ix), (x) and (xi), these were all mentioned by his Honour during the summing up at the pages referred to in the appellant's written submissions. It is said that his Honour did not properly put the appellant's case on these points. By this, the appellant was inferring that his Honour should have said more about them. In light of

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the comprehensive nature of defence counsel's closing address, which concluded immediately before his Honour's address, to do so would have been unduly repetitious and unnecessary.

142 The pretext call referred to in (ii) was the subject of a detailed and specific direction by his Honour. The direction included a reference to the appellant's evidence on the issue and to his denial that he had made any statement inconsistent with his innocence during the call: ts 563 - 564.

143 The absence of recent complaint raised at (iii), and the circumstances in which the complaints emerged raised at (iv), were also the subject of a specific direction. Although the text of the direction is the subject of ground 6 (which will be dealt with later in these reasons), it is clear that the matters raised in (iii) and (iv) were put to the jury by his Honour as part of the appellant's defence.

144 With respect to (v), his Honour's direction on prior inconsistent statements referred specifically to prior inconsistent statements made by K and R: ts 566. His Honour highlighted the inconsistency in K's evidence which defence counsel emphasised in his closing address concerning the type of white shirt being worn by the appellant when he was alleged to have committed count 5. His Honour also referred to the inconsistency in R's testimony concerning the number of times he received a birthday present from the appellant.

145 As to (vi), his Honour did mention, in his summation of the defence, that '[the appellant] says that the allegations are enormously unlikely to have occurred, based on the evidence relied upon by the State': ts 532. Later, his Honour referred to the 'numerous precautions' the appellant took to prevent any suggestion of impropriety on his part in his dealings with his students: ts 550. These references, when taken in context, must have been understood by the jury to refer to the appellant's case that the offences were unlikely to have occurred because they were (save for count 2) allegedly committed in a classroom in which the door was always open and other people were about.

146 The assumption behind (vii) is that M's evidence in respect of count 9 was that the appellant indecently dealt with him on the last day of term in year 4. Count 9 is the subject of ground 7. As I will show in my analysis of that ground, defence counsel and the appellant's impression of the evidence given by M in respect of count 9 is erroneous. No comment was required concerning 'the specific unlikelihood' of count 9.

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147 In respect of (viii), the jury would have been well aware that the appellant's case was that he had no deviant sexual interests. His Honour referred to this in his summing up at ts 532. The lack of any evidence found at his home which may indicate the presence of a deviant sexual interest in children was not something that his Honour was required to bring to the jury's attention.

148 In respect of (ix), I have already mentioned the appellant's case on this point. The comment in parentheses is a misapprehension of what his Honour said at ts 531. His Honour was, at this point of his summing up, summarising the State's case. It is in this context that his Honour said:

The State says that you don't have to be satisfied about every detail in relation to each alleged offence, just that the touching occurred in fact and in the manner stated by the complainant. For example, it does not matter that the [appellant] may not have been wearing a white T-shirt when [K] says he masturbated him in relation to the touching the subject of count 5: ts 531.

149 It is clear that his Honour was repeating the State's submission on the point and he was not, as alleged, taking away from the jury's consideration the point made by the defence that the appellant did not wear white T-shirts to school.

150 In respect of (x), it is not clear what the appellant means by '[t]he potential for contamination of the evidence of the brothers [M] and [W]'. If it means that M and W, by virtue of being brothers, had the opportunity to discuss the case between them, that much would have been obvious to the jury and did not require particular comment from his Honour. If what is being referred to are the submissions made by defence counsel concerning their evidence, his Honour's treatment of those submissions at ts 532 was sufficient.

151 Finally, with respect to (xi), his Honour referred to the appellant's case that he was a man of good character, at ts 533, and during his direction concerning the evidence of good character.

152 In his oral and written submissions, senior counsel for the appellant submitted that his Honour's treatment of the defence case was unbalanced. This submission cannot be sustained. It is clear, upon an analysis of the summing up as a whole, that his Honour put, in a balanced way, the cases for the prosecution and the defence.

153 Senior counsel, in his oral submissions, asserted that his Honour gave the defence case 'short shrift': appeal ts 19. I can see no basis for

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this assertion. His Honour's treatment of each case and his analysis of the evidence was concise. This approach was justified in light of the lengthy and detailed closing submissions of both counsel. His Honour did not emphasise the prosecution case to the detriment of the defence case, nor did he comment adversely on or disparage the defence case.

Conclusion on ground 3

154 Ultimately, what must be decided is whether the trial judge fairly put to the jury the appellant's defence. Having regard to:

(a) the simple issue the jury had to decide on each count;

(b) the straightforward nature of the evidence called in respect of it;

(d) the reference by his Honour, in his summing up, to the main points put to the jury by the defence; and

(e) the absence of imbalance in his Honour's treatment of the respective cases;

it is my opinion that the summing up, when read as a whole, fairly put the appellant's case. His Honour provided the jury with as much information as they needed to adequately discharge their responsibility.

155 Ground 3 has not been made out.

Grounds 4 and 5 - the structure of the address to the jury

156 These grounds are separate, but, as senior counsel for the appellant acknowledged at the hearing of the appeal, they should have been expressed as one ground. He accepted that ground 5 added nothing to ground 4: appeal ts 5, 6. Senior counsel also acknowledged that, on its own, ground 4 would not lead to the conclusion that the trial was unfair: appeal ts 7, 29.

157 I have already set out the structure of his Honour's summing up. The appellant submits that his Honour erred by summarising the prosecution and the defence case before completing his directions of law and explaining the process of fact-finding, the drawing of inferences and the law relating to propensity and uncharged acts. Implicit in the appellant's submission is the proposition that the jury would have been unable to apply the directions of law to its consideration of the defence case. The

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implication of the submission is demeaning to the intelligence of juries and cannot be accepted.

158 It is a matter for the individual judge to decide how his or her summing up will be structured. It is very difficult to conceive of how the structure of the summing up, independent of its content, could give rise to a miscarriage of justice.

159 The structure of his Honour's direction was logical and could not possibly give rise to any unfairness to the appellant. Ground 4 (and ground 5) has no merit.

Ground 6 - the Crofts direction

160 Senior counsel for the appellant submitted that his Honour should have given the jury 'a Crofts direction'. The reference to 'Crofts' is a reference to the High Court's decision in Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427. In oral submissions, senior counsel submitted that his Honour should have given a direction 'which will warn the jury that delay in itself is a matter which they can take into account having regard to the limitations … [in] section 36BD of the Evidence Act': appeal ts 29.

161 Section 36BD of the Evidence Act provides that where the absence of complaint or delay in complaining is raised in respect of an offence, the trial judge is obliged to warn the jury that such absence or delay does not necessarily indicate that the allegation is false and to inform the jury that there may be good reasons why a complainant may delay or refrain from making a complaint.

162 In Crofts, the High Court dealt with the Victorian equivalent of s 36BD of the Evidence Act. The trial judge in that case had directed the jury that, in light of the statutory provision, they could not, as a matter of law, conclude that because the complainant had not made an immediate complaint of the offences after they occurred, the offences did not happen or that she had consented to them. The majority concluded that such a direction was erroneous. The majority emphasised the word 'necessarily' in the statutory provision, stating:

Delay in complaining may not

necessarily

indicate that an allegation is false. But in the particular circumstances of a case, the delay may be so long, so inexplicable, or so unexplained, that the jury could properly take it into account in concluding that, in the particular case, the allegation was false (448). (original emphasis)

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163 Crofts was analysed by Wheeler JA in FGC v The State of Western Australia [2008] WASCA 47; (2008) 183 A Crim R 313 [72] - [95]. I agree with her Honour's analysis and her statement that:

I would understand

Crofts

as saying no more than that a trial judge's direction, where a case involves a delay in complaining in respect of offences of a sexual nature, must make it clear to the jury that the jury is permitted to consider whether that failure casts doubt upon the complainant's credibility. Of course, the statutory direction required by s 36BD must always be given [94].

164 In the present case, his Honour introduced the question of delay in these terms:

Delay may be a relevant matter in your mind, in relation to the complaints the subject of the indictment. As I have said, particularly with respect to [D], [K] and [R]. It is something for you to consider. It is for you to weigh its significance. The complainants were asked why they had only recently spoken of the matters, the subject of their evidence. And the investigating officer was asked questions as to whether the complainants had in effect, been invited to make a complaint, as opposed to coming forward on their own volition. …

You will recall that some of the complainants were cross-examined, specifically as to why they had made no immediate complaint to the people who you might expect them to have complained, in the circumstances … The inferences in this line of questioning are that the events did not in truth happen because if they had happened, the complainant would have complained immediately or at all events, sooner than he did. These questions were proper and the answers to them need to be considered by you in assessing the truthfulness and the reliability of each complainant. Counsel for the [appellant] was suggesting to you in effect that it is inherently unlikely that a person such as the complainant, in each case would have failed to make an immediate complaint, if these things had in truth happened to him. Members of the jury, I must point out to you that absence of complaint or delay in making a complaint that one has been indecently assaulted, does not necessarily indicate that the matters complained of did not happen. A person such as each complainant, might have a good reason for not complaining and each is of course a person and was at the time a child and different in their own right and they may have had different reasons for not complaining. Bearing that in mind, it is for you to determine what degree of significance, if any, to give to the delay in the complaining: ts 551 - 552.

165 His Honour then went on to remind the jury of the evidence of D, K, R, M and W as to why they had not made an immediate complaint.

166 His Honour concluded the direction by saying:

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Members of the jury, you have heard each complainant's explanation for the delay and you have seen them give that explanation. It is something you should consider. But as I have said, absence of complaint or delay in complaining does not necessarily mean that the allegation that the offence was committed is false. There may be good reasons: ts 554.

167 His Honour's direction on delay, when read as a whole, made it clear to the jury that it was open for it to consider that each complainant's evidence about being indecently dealt with by the appellant was false by reason of the delay in making a complaint. His Honour did not, at any point, expressly or impliedly say that a complainant's delay in complaining could not, as a matter of law, be taken into account when considering whether the offences actually occurred.

168 Ground 6 has no merit.

Ground 7 - was the verdict on count 9 unsafe and unsatisfactory?

169 Section 30(3)(a) of the Criminal Appeals Act 2004 (WA) requires this court to allow an appeal and to set aside a verdict of guilty if, in its opinion, having regard to the evidence, the verdict is unreasonable or cannot be supported. Although the phrase used in the ground of appeal, 'unsafe and unsatisfactory', does not appear in the statutory provision, the phrase 'unreasonable or cannot be supported' is to the same effect.

170 The relevant legal principles are not in dispute.

171 The question which this court must ask itself is whether, upon a consideration of all of the evidence, it was open to the jury to be satisfied of the appellant's guilt on count 9 beyond reasonable doubt: M v The Queen (1994) 181 CLR 487, 493. The word 'open' in this context is important. As Hayne J said in Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559:

[T]he question for an appellate court is whether it was

open

to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury

must

, as distinct from

might

, have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard [113]. (original emphasis) (footnotes omitted)

172 This court must undertake its own independent assessment of all of the evidence. It is not simply a question of deciding whether, as a matter of law, there was evidence to support a verdict: SKA v The Queen [2011] HCA 13; (2011) 85 ALJR 571. Full regard must be given to the
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considerations that the jury is the body primarily entrusted with the responsibility of determining guilt or innocence, and that it has had the benefit of having seen and heard the witnesses.

173 The test laid down in M v The Queen is applied as follows:

In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal 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 court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (494 - 495).

See also

Martinez v The State of Western Australia

[2007] WASCA 143; and

Scriva v The State of Western Australia

[2010] WASCA 89.

174 The appellant's case on this ground is predicated on the assumption that the evidence led at trial was that the offence occurred during testing in the appellant's class on the last day of term 4. This being so, the appellant argued that the conviction was unreasonable because '[t]he weight of the evidence … was that there was no "testing" ever conducted on primary students on the last day of term or that there was any school work of any type done on this day': appellant's written submissions, white AB 27.

175 The assumption made by the appellant is not borne out by the evidence. The complainant did not say that count 9 occurred during testing conducted on the last day of term. In his visually-recorded interview, M said:

I think it was the last - - term 4, the last day when everybody went out to recess he told me to stay inside to finish my maths and while - - while I was reading out the spelling test he was the … (indistinct) … the side of me while I was reading it all out and he had his hand down my pants on my skin again.

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Okay. And then what happened---And then when I finished he took his hand out and he let me go outside to play.

Okay. So this is the last day of term 4? Yeah? What makes you remember it was the last day of term 4---Because I can remember on that day at recess we all had to go to the hall for like a Christmas thing: page 15.

176 In cross-examination, the following exchange took place:

So these were short pants, you say that he was putting his hands down your pants, was he---Yeah.

All right. And you've told us about one - one time when I think you say he touched you - it was - it was the last day of term in term 4. Yeah. Was that the last day of the whole year---Yeah, close to that.

All right. And isn't it the case that in the last week of school there's no tests or anything like that---Well, we always do a New Wave maths test every week, so yeah, that's right. But we won't do a - like a huge test, no. I don't think so.

Well, when it was - it was going on Christmas, I think you said that the other kids had gone off to a Christmas thing in the hall or something like that---Yeah.

And you say he kept you behind---Yeah.

You were doing tests in the last week of school---No, I wasn't doing a test. I was finishing off.

What were you finishing off---Spelling and maths, like I said in the movie [visually-recorded interview].

Well, there wouldn't have been any spelling and maths to finish off on the last day of term 4, would there---Well, we still do work don't we? We're not just going to stop doing work, are we?

…

And you say he told you to stay inside to finish your maths---Yeah.

And to read out your spelling test---Yes.

And while - and while you did that, he touched you up---He did: ts 149 - 150.

177 In his examination-in-chief with respect to count 9, the appellant said:
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He said that there was another time that he remembered when it was term 4, the last day. Everyone else had gone out to recess and he was made to stay inside to finish his maths and do a spelling test, and that he - and that you - he was assaulted again on that occasion. You heard that evidence, didn't you---I heard that evidence.

This is [page] 15 of the transcript of his evidence. What would happen in term 4 in the last week---?---Well, going back to the Friday of the week before, that would be when the reports would be going - would - would be sent out to the home. The last week, which was usually about three days in length, there'd be some sort of activities within the classroom. There may be some small activities done - academic activities done, but nothing serious because from that day and probably prior to that even, their books would - would start going home, possibly on - on that weekend with the reports. That whole week was a winding up week, so the Monday would be a pretty slack sort of a day, Tuesday would be an excursion day for example, and we used to go tenpin bowling. If Wednesday was the last day, then that would be games day. The desks would have been packed aside, the chairs would have been stacked, we would have done our cleanup around the - the campus, because each class was assigned a certain area, and it would have been just fun and games. We would have had the - the - the - the class party perhaps the day before. But after the fun and games, there would be a final assembly, and all classes and teachers would attend that final assembly, and then the - the school is dismissed for the holidays. I - that was on the last day of the year.

What do you say to the proposition that there was spelling and maths tests on the last day of term 4---It never happened, never happened.

Was there ever any interference with this child on the last day of term 4 as he describes---Absolutely not.

Were you ever alone with him in the classroom on the last day of term 4---Absolutely not.

Is there any truth in that allegation at all---None whatsoever.

Would there be any point in doing spelling and maths tests on the last day of term 4---No. All tests would be finished, as I said, perhaps the week before, but all the serious testing would have been done prior to the writing of the reports which would have been done mid-term: ts 419 - 420.

178 It is a misunderstanding of M's evidence to assert that he was alleging that on the last day of term 4 he was doing spelling and maths tests. His evidence was to the effect that the tests had already been done and that he was reading out to the appellant his spelling test.

179 Further, M did not unequivocally say that the offence occurred on the last day of term 4. In his visually-recorded interview, he said, 'I think it

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was … the last day [of the term]'. In cross-examination, he said that it occurred 'close to that'.

180 Ms Lonsdale, who argued this ground for the appellant, in her oral submissions suggested that even if the complainant testified that he was not doing a test, the conviction was unreasonable because the evidence was that no schoolwork was done in the last week of term.

181 That was not quite the appellant's evidence. The appellant's evidence was that some 'small' academic activities were done in that time, but nothing serious.

182 There was no evidence to the effect that no academic work at all was done in the last week of term 4. The appellant himself conceded that some academic work was done at this time. Although the headmaster of the school was called, he was not asked whether schoolwork was done on the last week or last day of school, nor was any other teacher who gave evidence asked about this.

183 In the end, the task of the jury was to assess the testimony of the complainant and the appellant with respect to count 9. The jury had the advantage, which this court does not, of being able to see and hear each witness give evidence. It is clear from its verdict that the jury rejected the appellant's evidence on this count. My own assessment of the evidence in relation to count 9 is that it was plainly open to the jury to convict the appellant on the evidence of the complainant. I have no reasonable doubt as to the appellant's guilt. Ground 7 has no merit.

Ground 8 - the trial judge's criticism of defence counsel

184 On a number of occasions during the trial, which proceeded over eight sitting days, the learned trial judge rebuked senior counsel in the presence of the jury. Several times, the trial judge criticised senior counsel for making statements or comments in the course of cross-examining witnesses.

185 His Honour, on other occasions, took particular exception to senior counsel's use of the expression, 'I see'.

186 This court's attention was drawn particularly to the following exchange during senior counsel's cross-examination of the investigating officer, Detective Sergeant Kendall:

PERCY, MR:

It didn't occur to you that there might be some mental health issues involved here in relation to some of them---Not at all.

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Or some honesty issues---None at all.

No. So you just took that all for granted---I took it on face value from my personal observations, speaking to the boys that I spoke to, and looking at the interviews. And I did speak to all the boys.

PERCY, MR: I see.

STEVENSON DCJ: Sorry, Mr Percy. You did it again.

PERCY, MR: Sorry, it's just a mannerism. I'm sorry, your Honour.

STEVENSON DCJ: You need to get rid of the mannerism because it's not fair to the jury. They don't need to hear your comment in relation to the answer of the witness at this stage of the procedure.

PERCY, MR: I'm doing my level best, your Honour. It's something I've been doing for 30 years in this court.

STEVENSON DCJ: Well---

PERCY, MR: Unfortunately, I'll have to lose it. I'm doing my best.

STEVENSON DCJ: I hope you're not suggesting that it's appropriate---

PERCY, MR: I'm not suggesting---

STEVENSON DCJ: - - - because you've got away with it for 30 years.

PERCY, MR: It may not be. I take your Honour onboard in that regard, respectfully: ts 319.

187 During his Honour's summing up to the jury he said:

[I]t is entirely a matter for you to assess the evidence using your own collective common sense and life experiences. I'm going to give you an example arising out of some of the evidence in this trial to illustrate three things which I have just said to you about how you should approach the evidence. Those three things are firstly, you must not speculate about matters that are not in evidence. Secondly, you must disregard any comments or reactions by counsel in the course of the evidence of a witness and thirdly, you must pay careful attention to the way counsel asked the question in order to understand what the evidence of the witness is. You will recall that the second last matter that Mr Percy asked [K] about in cross-examination was the circumstances when he told his girlfriend, the first person that he says that he told anybody about what he says the [appellant] did to him when he was aged nine in year 5, was whether at that time he had any 'mental health issues.' The answer of [K] was 'no.' The transcript at 376 goes like this. Mr Percy: At the time you told your girlfriend, were you having any mental health issues?---No, no.

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No, not at that stage?---I was upset about that and expressing it, but - - - And then the witness is cut across and not permitted to finish the answer. Mr Percy: This was the only issue you had?---Yeah. At that - at the time, that would have been the only major issue that I had. Yes. Mr Percy: I see. Now, you're at - you're at Curtin [University]? You're still doing your studies. Is that right?---That's correct. You will appreciate, members of the jury, that the question asked on this occasion invites you to speculate about whether or not [K] has ever had or had a mental health issue. There is no evidence in this trial that [K] has ever had a mental health issue. In the course of those questions, Mr Percy made a comment, when he said, 'I see'. And you may recall that in the course of the trial I did ask Mr Percy not to do that when asking witnesses questions. That is a comment which you must disregard. It is not a question. It's a reaction by Mr Percy to the answer that he just got from the witness. And I think you will also see how the questions themselves demonstrate how important it is that you pay careful attention to what the evidence of the witness is because of the way counsel has asked the question: ts 519 - 520.

188 Later, his Honour referred to senior counsel for the appellant when he said:

I did, in the course of what I've said to you so far, use an example where Mr Percy was picked out to make the point to you that I wanted to make to you about how important it is to consider the evidence and only the evidence. And in the course of the trial, I did, of course, deal with counsel in respect of a number of issues in the courtroom. Anything I did was obviously not a criticism of counsel and should not be reflected in the position of the [appellant] or in fact the witnesses of the State to the extent that there's something I said or did that may have concerned Mr Whalley's conduct of the case. But it is important that you understand that the example I used in my comments to you was just highlighted because I was not picking on Mr Percy. I just wanted to use it as an example to underline the importance of what I was saying to you about the evidence: ts 545.

189 At the hearing of the appeal, Ms Lonsdale contended that senior counsel did nothing improper in the way that he cross-examined the witnesses, and that his Honour's criticisms of him were not justified. Counsel for the respondent (who was also trial counsel for the State) said that the State did not seek to justify his Honour's intervention: appeal ts 37. Ms Lonsdale submitted, not that his Honour's criticisms gave rise to a perception of bias against the appellant, but rather that because of them the conduct of the trial was unfair.

190 Where it is alleged that the trial was unfair, the question to be determined 'will turn largely on whether the accused has had a proper opportunity to advance his or her defence to the charge': RPS v The

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Queen

[2000] HCA 3; (2000) 199 CLR 620 [11] (Gaudron ACJ, Gummow, Kirby & Hayne JJ).

191 Speaking generally, judges presiding over jury trials should exercise caution before criticising counsel. Criticisms of counsel's conduct, including any mannerism or affectation he or she might have, should be avoided unless the conduct affects the proper course of the proceedings. Any sustained reproof or detailed criticism of counsel should occur in the absence of the jury: RPS v The Queen [13].

192 There are dangers associated with the criticism of counsel by a trial judge in the presence of the jury. If the jury considers the criticism to be justified, there is a risk that the jury may draw an adverse inference against the party represented by counsel (whether prosecution or defence). On the other hand, if the jury considers the criticism is unjustified, there is a risk the jury may draw an inference favourable to the party represented by that counsel (whether prosecution or defence) on the basis that they consider that party is being treated prejudicially by the trial judge.

193 With respect to his Honour, his criticisms of senior counsel for the defence, particularly those based on the use of the mannerism, 'I see', and made in the presence of the jury, were unjustified. However, it is clear from the way in which the trial was conducted as a whole that the criticisms did not inhibit the appellant from fully and effectively advancing his defence to all the charges. His Honour's direction, in the course of his summing up, that any criticism he made of defence counsel should not be reflected upon the position of the appellant, made it clear to the jury that such matters were not relevant to their deliberations. It is assumed that the jury will faithfully apply this direction: Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414 [13].

194 In my opinion, his Honour's criticisms of senior counsel did not lead to an unfair trial. This ground has not been made out.

Ground 9 - totality of errors

195 What is suggested in this ground is that there was an aggregate of faults which occurred at the trial which may lead to the conclusion that the whole of the trial miscarried: R v Ireland (1970) 126 CLR 321, per Barwick CJ, who said:

Quite clearly, in my opinion, an aggregate of faults, none of which if it were the only fault, would afford a justification for making an order for a new trial, may properly lead to the conclusion that the trial, as a whole, had miscarried so that there should be an order for a new trial (331).

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196 The only error which has been demonstrated by the appellant is with respect to ground 1. None of the other grounds have been made out. There is no aggregate of faults. This ground cannot succeed.

Conclusion on the appeal against conviction

197 Ground 1 has been made out. Grounds 2 to 9 have not. I would not give leave to appeal in relation to grounds 2 to 9. Accordingly, the appeal against conviction should be allowed in part, and the convictions and sentences on counts 1 to 6 should be set aside. I would order a retrial with respect to those counts.

Sentencing

198 Having:

(a) allowed the appeal against conviction but only in relation to counts 1 to 6;

(b) set aside the convictions and sentences imposed on those counts; and

questions arise as to the sentences imposed on the appellant for counts 7 to 13.

199 As mentioned earlier in these reasons, the appellant has appealed against sentence. The proposed grounds of appeal are, leaving aside particulars:

1. The individual sentences imposed were outside the range of a sound sentencing discretion, in all of the circumstances of the case.

2. The appellant was of previous good character and had no prior record.

3. The Learned Sentencing Judge fell into error by finding that the victim, [K] was prevented from watching Australia play its last game in the World Cup which happened the night before he was due to give evidence in the trial whereas there was no evidence of that fact.

4. The aggregate sentence of 5 years was excessive and offended the totality principle.

200 The question of whether leave to appeal should be granted on these grounds was referred to the hearing of the appeal.

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201 In light of the result in the appeal against conviction, ground 4 falls away. So too does ground 3, as the complainant K was the complainant in counts 3, 4 and 5. Ground 2 is not a valid ground of appeal. It alleges no error of fact or law. The only live ground is ground 1, and only to the extent that it alleges that the individual sentences for counts 7 to 13 were manifestly excessive.

202 The facts of the offending in respect of counts 7 to 13 are set out in [41] - [49] of these reasons. In general terms, the appellant rubbed, on several occasions, the bottoms of M and W under their school shorts.

203 In his sentencing remarks, his Honour identified common features to the appellant's behaviour which I understand apply to all complainants, including M and W, none of which are challenged.

204 His Honour accepted that the offending did not involve forceful or threatening behaviour, and there was no perversion associated with what he did beyond the acts which constituted the offences: green AB 51.

205 However, his Honour found that the appellant ingratiated himself with each complainant, thus grooming him: green AB 42. His Honour found that the offending was premeditated and occurred throughout the time each complainant was taught by him: green AB 49. The appellant offended in the face of written warnings about his tactile behaviour towards students: green AB 43 - 44, 49. His Honour noted that there was no evidence of any victim empathy or remorse: green AB 51.

206 His Honour acknowledged that the appellant had no prior convictions and the evidence of good character called at trial: green AB 49, 51. He accepted that the convictions had taken a personal toll on the appellant and that the appellant would not be able to teach in the future: green AB 51. It was accepted that the appellant's risk of reoffending was minimal: green AB 54. His Honour, correctly in my view, emphasised the gross breach of trust involved in the offending and the need for the sentences to provide general deterrence: green AB 53, 54.

207 An allegation of manifest excess is an allegation of implied or inferred error. The appellant must demonstrate that the result is so unjust or unreasonable as to lead to a conclusion that a substantial wrong has occurred. It is not merely a question of an appellate court coming to the view that if it had been sentencing the appellant, it might have imposed a different sentence: Wilson v The State of Western Australia [2010] WASCA 82 [2].

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208 The criteria by which manifest excess is judged are well known. The court is required to have regard to:

(a) the maximum penalty for the offence;

(b) the standards of sentencing customarily observed with respect to that offence;

(d) the personal circumstances of the offender: Chan v The Queen (1989) 38 A Crim R 337, 342.

209 The seriousness of the offence of indecently dealing with a child under the age of 13 years is demonstrated by the maximum penalty of 10 years' imprisonment.

210 There is no tariff for sexual offences, but reference to other cases is relevant to ensure broad consistency and they provide a yardstick by which the sentences in question may be examined. However, each case must be judged on its own facts and the sentences imposed in other cases do not set the limits of a sound sentencing discretion.

211 Cases involving touching of a young complainant by an adult, or indecent exposure by an adult in the presence of a young complainant, were examined by Pullin JA in Hodder v The State of Western Australia [2005] WASCA 257 [5]. There is no need to repeat that examination here. Pullin JA observed that in the widely varying circumstances of those cases, sentences ranged from fines to 3 years' imprisonment.

212 Hodder itself concerned a 59-year-old offender who was convicted, after trial, of one count of indecently dealing with a child under the age of 13 years. The appellant had gestured to an 11-year-old girl, suggesting that she engage in an act of oral sex with him for money. The appellant had a prior relevant criminal history, but his last relevant conviction had been recorded 12 years earlier. The sentence imposed by the trial judge of 16 months was reduced to 12 months.

213 In L v The State of Western Australia [2007] WASCA 186; (2007) 176 A Crim R 135, the appellant pleaded guilty to six counts of indecently dealing with a child under the age of 13 years. The case involved two young complainants. None of the offences involved the appellant touching the complainants. The sentencing judge found that the offending

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constituted a significant breach of trust. Immediate terms of imprisonment were imposed as follows:

Count 1: Procuring the complainant to touch the appellant's penis - 16 months' imprisonment.

Count 2: Exposing his penis - 8 months' imprisonment.

Count 3: Urinating in the complainant's presence - 8 months' imprisonment.

Count 4: Urinating in the complainant's presence - 8 months' imprisonment.

Count 5: Masturbating in the complainant's presence - 16 months' imprisonment.

Count 6: Masturbating in the complainant's presence - 16 months' imprisonment.

214 On appeal, none of the individual sentences were disturbed, although the total effective sentence was reduced from 2 years 8 months to 2 years.

215 Miller JA, with whom Pullin JA and Le Miere AJA agreed, referred to Hodder saying:

The cases to which Pullin JA referred in

Hodder v Western Australia

generally support the view that indecent dealing by adults with young children will call for a sentence of imprisonment. When that indecent dealing is associated with a breach of trust, a sentence of imprisonment is all the more likely. I accept and adopt the statement of relevant principles for sentencing in these matters which is set out by McKechnie J in

R v Chilvers

[2003] WASCA 87 at [25]. Breach of trust is an important factor. So is the commission of crimes against more than one child. This is particularly so when one child becomes aware that a sibling has also been a victim. Disparity in age is an aggravating feature. Mitigating factors do not have as much weight as they may do in other cases. Exceptional circumstances must be shown before a sentence other than one of immediate imprisonment is imposed [36].

216 Miller JA, in the later case of P v The State of Western Australia [2007] WASCA 220; (2007) 177 A Crim R 69 [34], said that he would modify this statement by inserting the word 'generally' before the words 'be shown' in the penultimate line.

217 Miller JA then went on to state:

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Although there will be cases in which sentences other than imprisonment are imposed for indecent dealing (two are referred to in Pullin JA's judgment in

Hodder

at [5]), those cases generally involve only a single incident of indecent dealing and there are often special circumstances which led to a non-custodial disposition. Where there are multiple offences and where there are the aggravating factors of breach of trust, disparity in age and lineal relationship, exceptional circumstances will generally need to be shown before a sentence other than one of immediate imprisonment is imposed [35].

218 While the appellant was not a lineal relative and each touching was not as serious as some of the acts committed in other cases, it was nevertheless serious conduct. It was, as his Honour rightly found, a gross breach of trust. The appellant was duty bound to protect his students and not take advantage of them for his sexual gratification. The conduct was not isolated. It could properly be characterised as systematic. It caused each complainant considerable embarrassment. The potential for longer-term consequences such as difficulties trusting and respecting authority figures is obvious. The need for general deterrence is clear.

219 The appellant's antecedents are favourable, a factor which he has in common with many offenders of this type. His antecedents are mitigatory, but the mitigatory weight to be given to them must be limited, having regard to the need to properly accommodate general deterrence. Further, the appellant's prior good conduct and apparent trustworthiness made it easier for him to groom the complainants and to commit offences against each of them.

220 The sentences imposed upon the appellant on counts 7 to 13 varied from 1 year (count 11) to 1 year 4 months (count 9). The individual sentences are, having regard to other cases, high. But, in light of the circumstances of the offending, they are not unjust or unreasonable. Each sentence reflects, in my opinion, a sound sentencing discretion. None are manifestly excessive. I would not interfere with them. Although leave to appeal should be granted on ground 1, the ground has not been made out.

221 Having decided that none of the individual sentences imposed on counts 7 to 13 are manifestly excessive, questions remain as to whether this court can, and should, resentence the appellant with respect to counts 7 to 13.

222 There are two potentially relevant provisions in the Criminal Appeals Act 2004 (WA) (the Act): s 30(6) and s 41(2). Section 30 of the Act applies to appeals against conviction: s 30(1). Section 30(6) provides:

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If the Court of Appeal enters a judgment of acquittal of offence A or enters a judgment of conviction of offence B, it may vary any sentence -

(a) that was imposed for an offence other than offence A at or after the time when the offender was sentenced for offence A; and

(b) that took into account the sentence for offence A.

223 Section 41(2) appears in pt 4 of the Act. That part applies to any appeal under the Act. Section 41(2) reads:

If under this Act an appeal court varies or sets aside a sentence (

sentence A

), it may vary any other sentence -

(a) that was imposed at or after the time when sentence A was imposed; and

(b) that took into account sentence A.

224 As can be seen, there is little difference in the statutory text. The difference between the two subsections is that s 30(6) applies when an appeal against conviction has been allowed and a judgment of acquittal or a judgment of conviction has been entered. This is not the case here. Section 41(2) is enlivened because this court has set aside the sentences imposed on counts 1 to 6 and, as is apparent from his Honour's sentencing remarks and the structure of the sentences he imposed, his Honour took into account the sentences he imposed on counts 1 to 6 when he sentenced the appellant on counts 7 to 13.

225 In my opinion, this court should vary the sentences imposed at first instance. The sentences on counts 7 to 10 were ordered by the sentencing judge to be served concurrently with the sentences on counts 1, 5 and 11. The sentences on counts 1 and 5 have now been set aside.

226 Counts 7 to 10 concern M. They were committed separately to the counts involving W. In my opinion, the separate nature of the offending requires accumulation of the sentences imposed in respect of M and W. Bearing in mind the totality principle, it is my opinion that this could be appropriately accommodated by ordering that the sentence on count 11 is to be served cumulatively on the sentence on count 9 and the remaining sentences should be served concurrently with each other and concurrently with count 9. The total effective sentence I would impose is one of 2 years and 4 months' imprisonment. There is no need to interfere with his Honour's orders as to parole eligibility and backdating. Thus, the appellant is eligible for release from 30 August 2011. Of course, depending upon the outcome of the appellant's retrial on counts 1 to 6, he

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may face an additional sentence or sentences. Any additional sentence and how that sentence is structured in light of the sentences imposed by this court, is a matter for the sentencing judge.

Orders

227 In respect of CACR 155 of 2010 (appeal against conviction), I would make the following orders:

1. Leave to appeal is refused in respect of grounds 2 to 9.

2. The appeal is allowed in respect of ground 1.

3. The convictions and sentences in respect of counts 1 to 6 are set aside and a new trial is ordered on these counts.

4. Pursuant to s 41(2) of the Criminal Appeals Act, the sentences imposed by Stevenson DCJ on counts 7 to 13 are varied so that the sentence on count 11 is to be served cumulatively on the sentence on count 9, and the sentences on counts 7, 8, 10, 12 and 13 are to be served concurrently with each other and concurrently with the sentence imposed on count 9.

5. The total effective sentence to be served by the appellant is 2 years and 4 months' imprisonment, backdated to commence on 30 June 2010, with eligibility for parole.

228 In respect of CACR 154 of 2010 (appeal against sentence), I would make the following orders:

1. Leave to appeal on ground 1 is granted.

2. Leave to appeal on grounds 2, 3 and 4 is refused.

3. The appeal is dismissed.

EPD v The State of Western Australia

[2011] WASCA 264

7 DECEMBER 2011

EPD -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 264