Eravelly v The State of Western Australia
[2018] WASCA 139
•10 AUGUST 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: ERAVELLY -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 139
CORAM: BUSS P
MITCHELL JA
BEECH JA
HEARD: 16 JULY 2018
DELIVERED : 10 AUGUST 2018
FILE NO/S: CACR 146 of 2017
CACR 145 of 2017
BETWEEN: ALFRED GERARD ERAVELLY
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: EATON DCJ
File Number : IND 967 of 2016
Catchwords:
Criminal law - Appeal against conviction - Sexual offences - Longman direction - Whether direction was required - Whether direction given was sufficient to alert the jury to the forensic disadvantage resulting from delay
Criminal law - Appeal against sentence - Whether aggregate sentence infringed first limb of totality principle
Legislation:
Criminal Appeals Act 2004 (WA), s 31(3)
Criminal Code (WA), s 301(1), s 326, s 333, s 401(1)
Result:
Appeals dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Mr A E Eyers |
| Respondent | : | Mr L M Fox |
Solicitors:
| Appellant | : | Anthony Eyers |
| Respondent | : | The Director of Public Prosecutions for the State of Western Australia |
Case(s) referred to in judgment(s):
AB v The Queen [1999] HCA 46; (1999) 198 CLR 111
Atkinson v The State of Western Australia [2017] WASCA 154
Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58
Basilio v The State of Western Australia [2010] WASCA 202
Bentley v The State of Western Australia [2007] WASCA 38
Bromley v The Queen (1986) 161 CLR 315
Carr v The Queen (1988) 165 CLR 314
Cooper v The State of Western Australia [2009] WASCA 37
Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161
Doggett v The Queen [2001] HCA 46; (2001) 208 CLR 343
EPD v The State of Western Australia [2011] WASCA 264
Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47
Hart v The Queen [2003] WASCA 265
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
House v The King (1936) 55 CLR 499
Huggins v The State of Western Australia [2018] WASCA 61
IAB v The State of Western Australia [2015] WASCA 238
Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601
Krencej v The Queen [1999] WASCA 20
LJH v The State of Western Australia [2016] WASCA 155
Longman v The Queen (1989) 168 CLR 79
Mansfield v The State of Western Australia [2017] WASCA 178; (2017) 52 WAR 233
MB v The State of Western Australia [2016] WASCA 160
MLS v The State of Western Australia [2018] WASCA 56
NPA v The State of Western Australia [2018] WASCA 131
Pool v The State of Western Australia [2013] WASCA 274
R v BWT [2002] NSWCCA 60; (2002) 54 NSWLR 241
R v GW [2016] HCA 6; (2016) 258 CLR 108
R v Kilic [2016] HCA 48; (2016) 259 CLR 256
R v Pham [2015] HCA 39; (2015) 256 CLR 550
RMD v The State of Western Australia [2017] WASCA 70
Roffey v The State of Western Australia [2007] WASCA 246
Royer v The State of Western Australia [2009] WASCA 139
SGT v The State of Western Australia [2017] WASCA 136
The State of Western Australia v Wilson [2015] WASCA 119
Thorn v The State of Western Australia [2008] WASCA 36
Ugle v The State of Western Australia [2012] WASCA 104
Winmar v The State of Western Australia [2007] WASCA 244; (2007) 35 WAR 159
JUDGMENT OF THE COURT:
Summary
On 11 April 2017, the appellant was convicted after trial of one count of burglary, one count of deprivation of liberty, one count of unlawful wounding and five counts of aggravated sexual penetration without consent. All of those offences were alleged to have been committed on 9 March 1996 against a single complainant. The appellant was sentenced to a total effective sentence of 13 years' imprisonment, comprised of the following sentences:
Count
Offence
Code section
Maximum penalty
Sentence
Cumulative /Concurrent
1
Burglary
401(1)
14 years
3 years
Cumulative
2
Unlawful detention
333
10 years
18 months
Concurrent
3
Unlawful wounding
301(1)
5 years
1 year
Concurrent
4
Aggravated sexual penetration w/out consent
326
20 years
4 years
Cumulative
5
Aggravated sexual penetration w/out consent
326
20 years
5 years
Concurrent
6
Aggravated sexual penetration w/out consent
326
20 years
5 years
Concurrent
7
Aggravated sexual penetration w/out consent
326
20 years
5 years
Concurrent
8
Aggravated sexual penetration w/out consent
326
20 years
6 years
Head Sentence
Total Effective Sentence 13 years
The appellant now appeals against his convictions and sentence. The sole ground of appeal against convictions is that the trial judge erred in failing to give the jury an adequate direction in accordance with the High Court's decision in Longman v The Queen.[1] The sole ground of appeal against sentence is that the total effective sentence infringes the first limb of the totality principle.
[1] Longman v The Queen (1989) 168 CLR 79.
For the following reasons, neither ground of appeal is established, so that the appeals against convictions and sentence must be dismissed.
Appeal against convictions
Issues at trial
The State's case was that, in the early hours of 9 March 1996, the appellant (who was a stranger to the complainant) broke into the complainant's unit while she was sleeping. The State alleged that the appellant threatened and cut the complainant with a knife, tied her up with rope which he had brought and sexually penetrated her vagina, anus and mouth with his penis. The complainant immediately complained to a neighbour in a distressed state, police were called and a forensic examination of the complainant and her unit was conducted. Forensic evidence consistent with the complainant's account included a slashed flyscreen of a window that had been left open, rope which was stained by a red/brown substance, abrasions on the complainant's wrists and a 2 cm laceration to the complainant's left wrist consistent with being caused by a sharp force injury.
The complainant was unable to identify her assailant, but DNA was obtained from:
(1)a semen stain on a doona cover on the complainant's bed (consistent with the complainant's evidence that she spat out the semen after the assailant ejaculated into her mouth); and
(2)saliva found on the complainant's right breast.
The state of DNA techniques in 1996 did not allow a detailed analysis of the biological material, but subsequent advances enabled a single‑source male profile to be obtained from both the semen and the saliva. A cold case review in 2014 resulted in that profile being matched to a reference sample of the appellant, who was not in Australia at that time. A warrant was obtained and a travel alert issued, which resulted in the arrest of the appellant as he transited through Sydney Airport in 2016.
There was evidence that, in an interview with police at the Perth Watch House after his arrest and extradition to Western Australia, the appellant made an off-video confession to having carried out a rape fantasy.
The appellant's case was that the sexual penetrations had occurred, but were consensual. He contended that he met the complainant on three occasions, on the last of which the sexual activity described by the complainant occurred with her consent. The appellant recalled seeing a cut on the complainant's wrist, which he thought was accidentally caused by a bracelet made from metal and shells. The appellant's case was that he had asked the complainant for money and threated to tell her partner of their relationship if he did not receive it. The appellant said that the complainant then told him to leave and to watch the news. Either that day or the next day,[2] he saw a television news report of an alleged rape which showed the complainant's unit. He heard nothing more about the offences until his arrest in 2016. He denied making the off-video confession to police.
[2] See trial ts 588, 543.
There was, therefore, no issue at trial that the appellant was in the complainant's unit and sexually penetrated her in the manner alleged by the State. The only contentious issue for determination by the jury was whether the State had proved beyond reasonable doubt the absence of consent.
The trial judge's direction
The trial judge decided that, in view of the 20‑year period between the date of the alleged offences and the appellant being charged, a 'form of' Longman direction was warranted.[3] In doing so the trial judge said:[4]
I'm not one for formulating directions or the recitation of incantations … but I think something appropriately crafted having regard to the effluxion of time is apposite.
[3] Trial ts 561 - 563.
[4] Trial ts 562.
The relevant direction given by the trial judge was in the following terms:[5]
[5] Trial ts 606 - 607.
Now, this is a matter that is unusual in that a couple of decades have passed and so the effluxion of time has clearly had an impact on the way in which the evidence has been presented and on the evidence itself. Some 21 years have passed since the alleged offences were committed. [The complainant] gives evidence therefore some 21 years after the offences complained of. [The prosecutor] asks you to accept that she was a good and reliable witness, a truthful person who had a good recollection of the events about which she gave evidence.
You need to bear in mind, however, that the effluxion of time has an impact. It can have an impact on a person who is recalling events from 21 years before. As we know - in the case of Dr Goh, for example, she was giving evidence about something that occurred in the busy emergency department of Sir Charles Gairdner Hospital in 1996. She had no recollection, not surprisingly, of the person that she had dealt with on that occasion.
So you need to bear in mind that the effluxion of time, when people are asked to recall events, can have an impact. We're not photocopiers. We don't reproduce the same evidence time and time again, so please bear that in mind.
There's another impact that results from the effluxion of time also. It is the case that these charges were only brought to [the appellant's] notice in about February of 2016. So he's then, at that point, in possession of some information about what’s alleged against him and the charges that are brought against him.
At that point, he needs to deal with those charges and to go about the business of preparing his defence to the charges, and so he did. As you heard, he went to Telecom to try and gather his telephone records, only to find that they were long gone.
Now, not surprisingly, somebody in that situation, charged with an offence which is alleged to have occurred many years before, is likely to be faced with challenges, forensic problems of the type that [the appellant] spoke about.
There will be, inevitably, given the passage of about 20 years, problems that would not be present for an accused person had the charges been brought immediately after the events complained of in those charges, or not long after. Quite obviously, a person could, if charges are promptly brought, have a recollection of people they spoke to, where they went and so on and so forth, and go about - go around and ask questions, make investigations and gather information. Well, you need to bear in mind that [the appellant] in his defence has been deprived of those sorts of opportunities.
Of course, it's said by the State, well, he did watch television news and saw that something had happened back in 1996 in Scarborough, and - but that's no answer, because he wasn't charged at that point. He was charged in February 2016. In February 2016, he then is faced with the problem of dealing with those charges and mustering his defence. And you've heard that the effluxion of time has had an impact on his ability to defend these charges.
It is for those sorts of reasons that you must take particular care when considering the evidence of the complainant before arriving at any conclusion of guilt, if you are going down that path.
The State doesn’t rely upon the evidence of the complainant in the sense of identification because she says that she's not able to identify her assailant at the relevant time. Her evidence as to the sexual activity on that occasion is heavily relied upon by the State. In that regard you can have reliance on her evidence, but you have to scrutinise it with great care, having regard to the effluxion of time.
General principles
The ground of appeal, and many of the submissions, referred to the need for a 'Longman warning' and whether the direction given by the trial judge constituted such a warning. In Doggett v The Queen,[6] Gleeson CJ observed:[7]
The use of the expression 'a Longman warning' is not particularly enlightening, unless accompanied by an explanation of the terms of the warning, and may distract attention from the need to relate all directions to the circumstances of the particular case, and to the issues as they have emerged for resolution by the jury.
[6] Doggett v The Queen [2001] HCA 46; (2001) 208 CLR 343.
[7] Doggett [13].
The direction which is referred to by the terms of the ground of appeal as a Longman direction was expressed by the plurality in Longman, in the following terms:[8]
The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy.
[8] Longman (91).
In Longman, the allegation was that the appellant had indecently assaulted his step-daughter by touching her genitals while she slept on two occasions. The first was when she and two of her siblings were being driven home by Longman late at night when she was 6 years old. The second was when she was asleep in Longman's bed at the age of 10, when they were alone at a house. The complainant's evidence was that, on each occasion, she was awoken by the touching but pretended to remain asleep. The complainant did not make any complaint about the conduct at the time. The complainant's first complaint to the police was made as an adult, and Longman was first interviewed by police 25 years after the first alleged incident and 21 years after the second. Longman's account was that he had never interfered with his step‑daughter. There was no independent evidence corroborative of the step-daughter's allegations. This was the factual context in which it was held that the direction quoted at [13] above was required.
A warning in the terms quoted at [13] above would not have been appropriately given in this case. In the first place, the jury were not asked to find the appellant guilty on the evidence of the complainant alone. Her account was corroborated by independent evidence of the neighbour as to her distressed state, by the location of the stained rope, the appellant's DNA, the abrasions and lacerations on the complainant's wrists, the torn flyscreen of the window which the complainant said was left open and by the appellant's confession to police. Secondly, there was an immediate police investigation which produced forensic evidence which was entirely consistent with the account which the complainant had given.
In oral submissions, counsel for the appellant also conceded that:[9]
[T]he two principal aspects with the Longman direction, in other words, the need to scrutinise with great care the complainant's evidence, to bear in mind the effluxion of time, its effect upon memory and the reliability of memory, plainly, isn't an issue here.
[9] Appeal ts 6 - 7.
There are obviously many significant differences between the circumstances of the present case and those considered in Longman and the many similar cases in which Longman has been applied. The circumstances in which Longman is regularly applied involve significantly delayed, and at least generally uncorroborated,[10] complaints by alleged victims of sexual offences, who are often children at the time of the alleged offending. Here, there was corroboration. Also, there was no delay in making the complaint, and there is significant independent evidence which supports the complainant's account. Those differences mean that there can be no automatic application of the direction held to be required in Longman to the circumstances of the present case.
[10] cf Doggett [54], [131] - [136]; R v BWT [2002] NSWCCA 60; (2002) 54 NSWLR 241 [95] (par (e)).
Rather, in evaluating the need for a direction in this case, it is necessary to return to the more general principle which was applied in Longman. That principle was described by the plurality as a requirement that a warning be given whenever necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case.[11] That principle is firmly established.[12] In support of this proposition, the plurality cited the decisions of Gibbs CJ and Brennan J in Bromley v The Queen,[13] and the decision of Brennan J in Carr v The Queen.[14]
[11] Longman (86).
[12] R v GW [2016] HCA 6; (2016) 258 CLR 108 [50]; Mansfield v The State of Western Australia [2017] WASCA 178; (2017) 52 WAR 233 [187]; MLS v The State of Western Australia [2018] WASCA 56 [139]; Huggins v The State of Western Australia [2018] WASCA 61 [719].
[13] Bromley v The Queen (1986) 161 CLR 315, 319, 323 - 325.
[14] Carr v The Queen (1988) 165 CLR 314, 330.
The basis of the general rule was explained in the following terms by Brennan J in Carr:[15]
A warning may be needed to ensure that the jury attributes the appropriate significance and weight to the evidence. That is a central aspect of the jury's function. In the majority of cases the assessment of the evidence can be left to the jury's experience unaided by judicial warnings but there are some occasions when a warning is needed. A warning is needed when there is a factor legitimately capable of affecting the assessment of evidence of which the judge has special knowledge, experience or awareness and there is a perceptible risk that, unless a warning about that factor is given, the jury will attribute to an important piece of evidence a significance or weight which they might not attribute to it if the warning were given. It is not possible to define a priori the circumstances in which a warning is necessary: the circumstances which show whether a perceptible risk of miscarriage of justice exists in relation to the assessment of evidence include the charge, the evidence and the conduct and atmosphere of the trial. (emphasis added)
Brennan J went on to observe that failure to give a warning when required gives rise to a miscarriage of justice because the jury may have reached their verdict by attributing to the evidence an erroneous significance or weight.
[15] Carr (324 - 325).
The court's perception that a feature of the evidence is capable of affecting the significance of or the weight to be given to the evidence, and that this may not be appreciated by a lay jury, is of central significance in assessing the need for a warning and the terms in which any warning should be given. This is reflected in Carr, where Brennan J referred to certain categories of evidence which 'judicial experience (actual or inherited) has shown to be unsafe to act upon so frequently that a warning has become mandatory'.[16] These general categories of case have been curtailed by statute, including by s 50 of the Evidence Act 1906 (WA).
[16] Carr (325).
Issues of reliability of evidence arising from matters, the significance of which may not be apparent to a jury, are also significant outside the categories of cases where a warning was mandatory under the general law. The need for a warning may arise from particular features of the evidence. For example, in Bromley, Brennan J recognised that a warning may be required where there is a real and substantial danger in acting on the evidence of a person with a mental disorder, when the conduct of the trial and the evidence as to the witness' mental disorder are such that the jury may not have perceived, or the jury's attention may have been diverted from, the danger.[17]
[17] Bromley (325).
Concerns of the court as to the reliability of evidence given by a complainant where there is a significant delay in reporting sexual abuse committed against them as a child are also evident in Longman and cases which follow that decision. In Longman, the plurality said:[18]
There were several significant circumstances in the case: the delay in prosecution, the nature of the allegations, the age of the complainant at the time of the events alleged in the two counts in the indictment, the alleged awakening of a sleeping child by indecent acts and the absence of complaint either to the applicant or to the complainant's mother.
[18] Longman (90); see also Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161 [45].
Their Honours said that these features were likely to have elicited a comment from the trial judge. However, there was one factor which may not have been apparent to the jury and which therefore required not merely a comment but a warning. That factor was the applicant's loss of those means of testing the complainant's allegations which would have been open to him had there been no delay in prosecution.[19] In the same case, Deane J referred to the responsibility of a trial judge to give a warning in circumstances where 'there are potential dangers in acting upon particular evidence which may not, without such a caution or warning, be appreciated by the jury'.[20] McHugh J observed:[21]
No matter how honest the recollection of the complainant in this case, the long period of delay between her formal complaint and the occurrence of the alleged events raised a significant question as to whether her recollection could be acted upon safely. The likelihood of error was increased by the circumstances in which the complainant said the incidents occurred. The opportunity for error in recalling, twenty years later, two incidents of childhood which are alleged to have occurred as the complainant awoke, and then pretended to be asleep, are obvious. Experience derived from forensic contests, experimental psychology and autobiography demonstrates only too clearly how utterly false the recollections of honest witnesses can be.
[19] Longman (91).
[20] Longman (95 - 96).
[21] Longman (108).
Similarly, in Doggett, Gaudron and Callinan JJ regarded as influential the fact that the complainant was only 8 years old at the time of the alleged offending, noting:[22]
Whilst it may be accepted that, of course, in adulthood people may have vivid and clear recollections of events which occurred when they were children, the evidence in this case itself demonstrates the truism that accounts of events remote in time need to be carefully scrutinised.
[22] Doggett [43].
Their Honours referred to particular aspects of the evidence which raised questions about the reliability of the complainant's evidence in that case.[23] Kirby J referred to the need for the trial judge to bring to the notice of the jury the special knowledge that judges had gained through legal experience as to dangers presented by honest and apparently convincing, but erroneous, testimony.[24] In Crampton v The Queen,[25] the plurality referred to a need for a warning about matters which included 'the fragility of youthful recollection' and the 'possibility of distortion'. Hayne J referred to the disadvantages to which the accused was put, as a result of the significant delay, of a kind and to an extent which a jury might not appreciate without proper direction.[26]
[23] Doggett [47] - [50].
[24] Doggett [134].
[25] Crampton [45].
[26] Crampton [140].
In considering whether a direction is required in order to avoid a perceptible risk of a miscarriage of justice, it will therefore be relevant to consider whether there is a question about the reliability of some important aspect of the evidence against the accused, whether that arises from a factor the significance of which may not be appreciated by the jury, whether the evidence in question is corroborated and whether and, if so, to what extent the accused suffers a forensic disadvantage.
The position may be summarised as follows. The judge must give a warning to the jury about its assessment of particular evidence whenever a warning is necessary in order to avoid a perceptible risk of a miscarriage of justice.[27] As the High Court has recently explained, in such cases the risk is perceptible to the court because judicial experience has shown that evidence of this description or character may be unreliable.[28] A perceptible risk of that kind arises when there is a feature of the evidence which may adversely affect its reliability, the significance of which may not be apparent to a lay jury.[29]
[27] Carr (330); Longman (86); R v GW [50]; Mansfield [187]; Huggins [719].
[28] R v GW [50].
[29] Carr (325), (330), (341); Longman (91); Crampton [140]; R v GW [50]; Winmar v The State of Western Australia [2007] WASCA 244; (2007) 35 WAR 159 [22]; Mansfield [179]; RMD v The State of Western Australia [2017] WASCA 70 [129], [198]; Huggins [719].
Put another way, a direction is required where it is necessary for alerting the jury to difficulties with particular classes of evidence, or, we would add, particular evidence, with which they are unlikely to be familiar.[30]
[30] Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47 [52].
When a direction is required, it must be crafted, by reference to the facts and circumstances of the particular case, with the object of ensuring a fair trial and avoiding the perceptible risk of a miscarriage of justice.[31]
Forensic disadvantage resulting from delay
[31] RMD [133], [197].
In the present case, there was no delay in the complainant making a complaint to police. Nor was there any delay in the appellant becoming aware that the complainant had reported a sexual assault to police. On the appellant's own account, the statements by the complainant as he left the unit and the news report on the evening of, or the day after, the alleged offence alerted him to that fact.[32] However, 20 years passed before the appellant was charged with the offence.
[32] Trial ts 486, 488, 542 - 543.
This was not a case where delay made it impossible to test the complainant's evidence. Her immediate report to police meant that there was a prompt investigation, collection of evidence as to the physical state of the complainant and her unit, and contact with relevant witnesses, such as the complainant's neighbour.
Further, there was no dispute as to the date, time and location of the incident, or the presence of the appellant and complainant alone at her unit at that time. The appellant's evidence was that he was able to recall in detail what occurred on the night in question.
The forensic disadvantage suffered by the appellant in the present case was limited, particularly as compared to the position of an accused who, on his or her account, has no reason to recall any of the circumstances of a time which was many years prior to the accused becoming aware that a complaint had been made. Three kinds of potential disadvantage were identified on appeal, all of which concerned the question of consent; in particular, whether the appellant and complainant had met prior to the night of 8 ‑ 9 March 1996:
(1)The appellant's evidence was that, after 20 years, he could not remember the names of the friends he was with at the Leederville Hotel when he first met the complainant;[33]
(2)Telephone records from 1996, which the appellant contended would corroborate his account of previous contact with the complainant, were not obtainable despite attempts by the appellant to locate them after he was charged;[34] and
(3)There was a potential loss of opportunity to obtain CCTV footage from the Leederville Hotel which, the appellant contended, might show him and the complainant together.
[33] Trial ts 507.
[34] Trial ts 473 - 474.
The third kind of prejudice was speculative, as there was no evidence about whether the Leederville Hotel had CCTV in 1996, what it recorded or the period for which any recordings were retained at that time.
The appellant's evidence as to his inability to access telephone records[35] and recall the names of the friends whom he was meeting at the Leederville Hotel[36] referred to the time which had passed as the reason for the absence of evidence. The disadvantages occasioned by delay were the subject of submissions by counsel, as indicated by the trial judge's summary of the submissions of senior counsel for the appellant at trial:[37]
Mr Percy said these cases are always difficult so long after the event. At the time there might have been CCTV, for example, but not 21 years later. No telephone records were available.
[35] Trial ts 474.
[36] Trial ts 507.
[37] Trial ts 625.
It may be accepted that the appellant suffered potential forensic disadvantage resulting from the passage of time between the events in question and the point at which he was arrested and charged. The circumstances described above indicate that the degree of that forensic disadvantage was much more limited than is often the case when there is a significant delay in an accused being charged with historic sexual offending. However, some forensic disadvantage remained. The trial judge had a special knowledge, experience and awareness of that kind of prejudice. The question of whether a direction by the judge was required turns on whether there was a perceptible risk that the jury would not appreciate the forensic disadvantage which the appellant experienced as a result of the passage of time, and, as a result, attribute unwarranted or inappropriate significance or weight to either the complainant's or the appellant's evidence as to what occurred on the night of the alleged offences.
Given the limited forensic disadvantage which the appellant suffered, and the explanations given to the jury in evidence and submissions, it may be argued that there was no real risk that the jury may misapprehend the weight appropriately given to the evidence that they were required to consider. It might be said that the difficulty, after 20 years, in obtaining telephone records and CCTV footage, and recalling the names of friends whom the appellant met at the hotel, would be obvious. Given the evidence and submissions it may be argued that the jury would readily appreciate the difficulty, after 20 years, in obtaining evidence to corroborate the appellant's account of knowing the complainant before 9 March 1996.
However, the trial judge formed the view that, in all the circumstances, a direction was required. In our view, in a marginal case such as the present, it is appropriate for this court to give some deference to the trial judge's assessment, which was formed on the basis of a much better appreciation of the atmosphere of the trial and the manner in which evidence was given and submissions advanced. The trial judge was in a better position than this court to understand what the evidence and submissions would have conveyed to a jury. In the present case, the trial judge reasonably took the view that a direction about the forensic disadvantages resulting from the passage of time was required and, in the circumstances, it is appropriate to give effect to that view.
The forensic disadvantage in this case does not arise from an inability to test the evidence given by the complainant, but rather to marshal a defence by obtaining evidence which the appellant contended might corroborate his account of having met the complainant before the night of the alleged offence. It is established that forensic disadvantage in this context is actual even if it is the loss of a chance or opportunity.[38]
Adequacy of direction as to forensic disadvantage
[38] See IAB v The State of Western Australia [2015] WASCA 238 [29].
Where a direction about forensic disadvantage is required to avoid a perceptible risk of a miscarriage of justice, it is essential that the direction be given as a direction which the jury is bound to follow, rather than a mere comment which the jury may or may not accept.[39] The direction must be by way of an unmistakeable and firm direction which adequately conveys to the jury the requirement to take into account the forensic disadvantage which the appellant had suffered as a result of the passage of time.[40]
[39] Longman (91); SGT v The State of Western Australia [2017] WASCA 136 [18] and cases there cited; EPD v The State of Western Australia [2011] WASCA 264 [73].
[40] Crampton [45]; Doggett [52]; IAB [29], [37]; EPD [75] - [76].
The appellant's principal submission is that the trial judge's direction in this case was not given in emphatic terms as an unmistakable and firm direction of law.[41]
[41] See appeal ts 12 - 13, 15.
As was noted by the court in SGT:[42]
[I]n deciding whether a direction is adequate it is necessary to look at it as a whole. To extract individual words or phrases that may have been problematic in another context is unhelpful and inappropriate. The meaning and significance of words will invariably depend upon the context in which they are used.
[42] SGT [26].
When the trial judge's direction is considered as a whole, it has the character of a direction which the jury must follow, rather than a comment which the jury may or may not accept. The critical part of the direction is set out at [11] above. The appellant criticises the repeated use of the phrase 'you need to bear in mind', however that language indicates a requirement that the matter being referred to be considered by the jury in reaching their verdicts. The trial judge's direction indicated that there was forensic disadvantage which 'has had an impact on [the appellant's] ability to defend these charges'. The forensic disadvantage to which the trial judge referred was actual, not potential or hypothetical. The trial judge also used mandatory language in stating that the jury 'must take particular care' when considering the evidence, and 'have to' scrutinise the complainant's evidence with great care, having regard to the effluxion of time. That the trial judge referred to the effect of the passage of time on memory, and said 'so please bear that in mind', does not detract from the mandatory nature of the direction when it is considered as a whole.
It is also relevant to note that the appellant was represented by very experienced senior counsel at trial, who did not make any complaint about this aspect of the trial judge's direction. That tends to confirm our interpretation of the transcript. If the manner in which the direction was given did not convey a direction which the jury were bound to follow, it would be expected that senior counsel would have raised the issue with the judge.
The sub-particulars to particular (d) of the ground of appeal identify two other alleged deficiencies in the direction. While the appellant's appeal counsel did not abandon those particulars, he did not press them in oral submissions.[43] Neither complaint has any merit.
[43] Appeal ts 13.
The first complaint is that the jury were not adequately directed as to the specific disadvantages faced by the appellant. However, in giving a direction of this kind, it is not always necessary for a trial judge to list each and every particular kind of forensic disadvantage which an accused may have suffered. It was sufficient, in the circumstances of this case, that the trial judge directed the jury as to the disadvantages faced by the appellant in seeking to marshal a defence by reason of the loss of the opportunity to obtain evidence corroborating his account. The direction given by the trial judge achieved that.
The second complaint concerns the following passage of the direction that is quoted in full at [11] above:
Of course, it's said by the State, well, he did watch television news and saw that something had happened back in 1996 in Scarborough, and - but that's no answer, because he wasn't charged at that point. He was charged in February 2016. In February 2016, he then is faced with the problem of dealing with those charges and mustering his defence. And you've heard that the effluxion of time has had an impact on his ability to defend these charges.
The appellant contends that these comments had the potential to dilute or detract from the importance of the direction given to the jury. However, these comments were favourable to the appellant, in effect directing the jury that the submission advanced by the State as to the appellant's awareness of the complaint being made before he was charged was no answer to the impact which the effluxion of time had on his ability to defend the charges.
Need for a direction as to the danger of convicting
The appellant also contends that the direction failed to give a clear warning of the danger of a miscarriage of justice if the appellant were to be convicted on the complainant's testimony, given the prejudice arising from delay.[44] That is an error of the kind identified in MB v The State of Western Australia,[45] in a case where it was uncontentious that a Longman direction was required. Like Longman itself, and like so many cases concerned with Longman directions, in MB the complainant's evidence was uncorroborated. Mitchell JA (Mazza JA agreeing) found that the judge's direction in that case failed to link the delay with the real danger of a miscarriage of justice which arose from convicting on the complainant's evidence alone in those circumstances.
[44] Appeal ts 19.
[45] MB v The State of Western Australia [2016] WASCA 160 [69].
In essence, the appellant's submission is that the trial judge's direction in this case failed to link the forensic disadvantages referred to above with a real danger of a miscarriage of justice.
In our view, that aspect of a Longman direction was not required in this case. That is so because of a combination of the following circumstances.
First, there was nothing arising from the delay which gives rise to any reasonable apprehension about the reliability of the complainant's evidence. As noted above, the complainant immediately complained to a neighbour, reported the matter to police and there was evidence that she made a statement which, it may be inferred, was given shortly after the commission of the offence.[46] This was not a case of a person being asked to recall events for the first time many years after the events occurred, or to reach back into the memory of their childhood. Further, the complainant and appellant gave vastly different accounts of the events of 9 March 1996. There was no prospect of the complainant being honestly mistaken about a man breaking into her unit and subjecting her to a series of sexual assaults. What was put in issue by the appellant at trial was the honesty of the complainant's account, rather than its reliability if the account was honestly given[47]. That central feature of the real issue at trial must be borne in mind in identifying the content of the directions that were necessary to avoid any perceptible risk of a miscarriage of justice.
[46] See trial ts 156 - 158.
[47] That was reflected in the evidence of the appellant that the complainant's evidence was lies and made up: trial ts 477, 486 - 487 and 498.
Secondly, there was evidence that tended to corroborate the complainant's account in relation to the issue of consent, which was the contentious issue at trial:
(1)The evidence of the complainant's neighbour, Andrew Read, was that, in the early hours of the morning of 9 March 1996, he heard a male and female voice coming from the complainant's unit, ending with a female's shout or yell that was cut short.[48] Later, he heard footsteps in the common driveway and a car start on the verge.[49] He then saw the complainant in a very distraught and distressed state, with injuries to her wrists.[50]
(2)A rope which appeared to be stained with a red/brown coloured substance was found on the complainant's bedroom floor by police forensic examiners.[51] Although the rope was not tested, it could readily be inferred that that substance was the complainant's blood.
(3)There was what appeared to be a significant bloodstain on the sheet of the complainant's bed.[52]
(4)The complainant sustained a 2 cm long laceration to the back of her left wrist, which was consistent with a sharp force injury, and which required five stitches.[53]
(5)The complainant also sustained a 3 cm laceration to the bottom of the palm of her left hand with fresh red bleeding from it, and abrasions to her wrists consistent with her hands being tied.[54] There was also dried blood over the complainant's lumbar spine.[55]
(6)The flyscreen of the ensuite bathroom window had been cut in a manner which appears consistent with a person having used the window (standing on a bag of gardening product for increased height) to gain entry to the complainant's unit.[56]
(7)The evidence of the appellant's off-video confession that the complainant was a stranger to him, that he watched her as a peeping Tom, that he broke into her unit when she was asleep and that he acted out a rape fantasy.[57]
[48] Trial ts 200 - 201.
[49] Trial ts 202.
[50] Trial ts 202 - 203.
[51] Trial ts 222 - 223; exhibit 2 (photo 25).
[52] Exhibit 2 (photos 15 - 17).
[53] Trial ts 258 - 260; exhibit 2 (photos 1 - 3).
[54] Exhibit 5, exhibit 6, trial ts 270 - 272, 274 - 275, 280.
[55] Trial ts 273.
[56] Exhibit 2 (photos 10 - 13).
[57] Trial ts 425 - 426.
That evidence tended to corroborate the complainant's evidence as to the absence of consent as well as the element of sexual penetration. That physical evidence points towards a person breaking in, restraining and assaulting the complainant. The appellant's explanations of that apparently incriminating physical evidence do not deny the capacity of the evidence to corroborate the complainant's evidence in relation to the issue of consent. Evidence of the appellant's off-video confession is also corroborative of the complainant's evidence that she was sexually assaulted by an intruder.
While the absence of corroboration is not always necessary in order that a Longman warning is required, it is commonly a central element of the circumstances giving rise to the need for the warning.
Thirdly, the forensic disadvantage suffered by the appellant as a result of the passage of time was limited, as he professed a detailed recollection of the events of the night of the alleged offence. Further, the complainant's account was able to be tested against the police forensic investigation conducted shortly after her immediate complaint.
Fourthly, as we have explained, the forensic disadvantage suffered by the appellant was of a kind that a jury would readily have comprehended. To the extent that the significance of such disadvantage might not have been apparent to the jury, the judge directed the jury in a manner that clearly explained and properly emphasised the need to take into account such disadvantage.
Having regard to the above evidence, there was no basis for concluding that it would be dangerous to convict the appellant on the evidence adduced at trial. There was no reason arising from the delay to apprehend that the complainant's evidence might be unreliable, her evidence was corroborated and the forensic disadvantage from the passage of time was limited. The evidence led at trial did not give rise to a need for the trial judge to warn the jury about any danger of convicting the appellant, or connect the passage of time to such a danger. A warning as to danger would not have assisted the jury to attribute appropriate significance and weight to the evidence led at trial.
The direction which the trial judge gave, limited to identifying forensic disadvantage of a kind which the trial judge apprehended might not have been appreciated by the jury, was appropriate in these circumstances. That direction was adequate to ensure that the appellant received a fair trial and to avoid any perceptible risk of a miscarriage of justice arising from the passage of time between the commission of the alleged offences and the appellant being charged with those offences. Nothing more was required in all of the circumstances of this case.
Disposition of appeal against convictions
For the above reasons, we would refuse leave to appeal on the sole ground of appeal against convictions and dismiss the appeal.
Appeal against sentence
Circumstances of offending
The trial judge made factual findings to the following effect in relation to the circumstances of the appellant's offending.[58]
[58] Trial ts 664 - 667.
In 1996, the complainant lived with her then partner at their unit in Scarborough. The complainant's unit was at the rear of a complex of four semi-detached residential units serviced by a single driveway.
The appellant was a Malaysian born pilot who came to Perth in 1994, on a 2 year visa, to complete training. At the same time, he worked for an optometrist and a restaurant. The appellant left Australia in 1996, the day before his visa expired. In March 1996, the appellant lived in an apartment in Scarborough. It is likely that the appellant had, prior to 8 March 1996, seen or observed the complainant and knew where she lived.
On Friday 8 March 1996, the complainant's partner was overseas on business. As it was a very hot night, before going to bed the complainant opened her bedroom window and the ensuite bathroom window to catch any breeze that might be available. The ensuite bathroom window had a flyscreen. The complainant went to bed at about 11.45 pm. She was sleeping naked with the ensuite bathroom door open, but the main bedroom door closed.
In the early hours of Saturday 9 March 1996, the complainant was woken from her sleep to find someone on top of her and a light being shone in her face.
The appellant had gone to the complainant's unit and, possibly after seeing her getting ready for bed or going to bed through the front bedroom window, went to the rear of her unit. The appellant was armed with a knife and had a length of rope. He was wearing a stocking over his head. The appellant cut the flywire in the ensuite bathroom window and climbed through the window using something that was lying around at the back of the unit as a step to give him extra height.
The appellant sat on top of the complainant as she lay on her bed, put the knife to the complainant's throat and told her:
Do as I say and I won't hurt you.
The appellant then forced the complainant to lay face-down on the bed and used the rope or twine to tie her hands behind her back. The appellant was sitting astride the complainant just below her buttocks. The appellant tightly blindfolded the complainant with some material so that she was unable to see.
The appellant then turned the complainant onto her back on the bed and tried to spread her legs while touching and kissing her on her breasts and torso. The complainant told the appellant that she was having a period and that she was not using a tampon or pad. The appellant continued undeterred.
The appellant then climbed off the bed, closed the main bedroom window and blinds and turned the bedroom light on. The complainant said to the appellant:
What is it you want? Are you going to hurt me or is it just about sex?
The appellant replied:
Just sex.
The appellant then climbed on top of the complainant, forcefully spread her legs apart and put his penis into her vagina. The appellant thrust hard in an attempt to maintain an erection, which he was having difficulty in maintaining. The appellant then put his penis into the complainant's mouth, slapping her face and telling her 'Do it'. Following that, the appellant again penetrated the complainant's vagina with his penis.
The appellant then climbed off the bed and went to the ensuite bathroom. The complainant thought that the appellant was looking around in the bathroom cupboard, perhaps for lubricant. When he returned, the appellant lifted the complainant's legs into the air and inserted his penis into her anus. Having done so, the appellant withdrew and went back to the bathroom where he washed his penis. The appellant then returned to the bed and again inserted his penis into the complainant's mouth.
Throughout these events, the appellant was having trouble maintaining an erection. The appellant withdrew his penis from the complainant's mouth and masturbated, ejaculating in the complainant's mouth. The appellant then climbed off the bed, and the complainant spat the ejaculate onto the sheets.
The appellant then put his clothes back on and returned to the complainant. He untied her hands and the blindfold, and put the doona over the complainant's head so that she was unable to see him. The appellant then left the unit by the front door and walked up the driveway to his car.
The complainant got off the bed and went to the bathroom where she rinsed her mouth out. She then went to the open front door to see if she could see her assailant. Moments later, the complainant put on a dressing gown and made her way to another unit in the complex, telling the occupants something of what had happened to her. The police were called. The complainant was unable to give much of a description of her assailant.
There was a forensic examination of various items found at the unit by the investigators who arrived in numbers not long after. At that time, testing produced no indication of the identity of the assailant. The appellant was identified many years later through an international DNA database. The appellant's DNA profile matched the DNA profiles from the swab from the complainant's doona and her right breast.
By the time that the appellant was identified, he was living in Penang with his wife and two children. The appellant was pursuing an occupation as a pilot with AirAsia. The appellant's work with the airline did not ordinarily take him to Australia, his schedule being confined to short‑haul destinations such as Singapore and Hong Kong.
On 10 February 2016, the appellant and his family left Penang intending to travel to Auckland, New Zealand where his wife was to undertake a tourism course. At this time there was, unbeknown to the appellant, a warrant for his arrest. The appellant was arrested as the family transited through Sydney Airport.
Appellant's personal circumstances
The appellant comes from a stable, hardworking and respected family with whom he has a close relationship. The appellant has always been fully employed and was described by the trial judge as a 'hard worker'. The appellant had a successful career as an international airline pilot, which was likely to be destroyed by his convictions.
The appellant married his first wife, whom he subsequently divorced, at 21 years of age. The appellant married his second wife in 1999, and they had a son born in 2000. The appellant's second wife was diagnosed with cancer in 2006, and passed away in 2011. The appellant since remarried, and had a child with his third wife who remained supportive of him. Various character references indicate that the appellant is held in high regard by his family and friends.
The appellant had no prior criminal history in Australia. He has two convictions in Florida, United States in December 2000 for one count of voyeurism and one count of battery. The battery involved the appellant ejaculating into a female's hair in a library on a university campus.[59]
Trial judge's approach
[59] Trial ts 668.
The trial judge found that the appellant's offending against the complainant was premeditated. He arrived at the complainant's unit with a knife, a torch, a stocking to conceal his identify and a rope to bind his victim. The appellant parked his vehicle so that it could not be directly associated with the complainant's dwelling.[60]
[60] Trial ts 668.
The trial judge noted the harrowing nature of the complainant's experience. The subsequent intrusive investigation exacerbated the complainant's feelings of exhaustion and distress. She was forced to relive the events of the night again as the investigation unfolded and her statement was taken, and finally when she was required to give evidence at trial and be subject to cross-examination.
When the complainant finally returned to her home it was in a mess. There was blood on the bedsheet. The doona cover had been cut as a result of the investigator needing to take a sample of the point where the ejaculate had been spat onto the doona cover. There was black powder all over the furniture as a result of fingerprint investigation. The complainant was alone in that scenario, and called a friend who came and assisted in cleaning the unit.[61]
[61] Trial ts 668.
Subsequently, the complainant installed security screens and alarms in her unit, but still felt insecure and sold the unit. The impact of the appellant's offending against the complainant was long-lasting.[62]
[62] Trial ts 669.
The trial judge had no hesitation in concluding that the appellant's account of his prior relationship with the complainant, repeated to a psychiatrist, was fabricated. The appellant was in denial and without remorse, insight into his offending or victim empathy.[63]
[63] Trial ts 670, 673.
The trial judge accepted that, as a foreign national, the appellant's experience in prison would be more isolating and difficult than is usually the case.[64]
[64] Trial ts 672.
The trial judge referred to a psychologist's report which assessed the appellant's risk of reoffending as average. However, in the trial judge's view, the fact that the appellant did not tell the psychologist about the offences he committed in the United States in 2000 placed a question mark over her judgment as to his risk of reoffending.[65]
[65] Trial ts 672.
Noting that both parties accepted that terms of immediate imprisonment were the only appropriate sentencing disposition, the trial judge imposed the individual sentences referred to in the table at [1] above.[66]
[66] Trial ts 672 - 673.
The trial judge then referred to the totality principle, and the significance of personal and general deterrence as sentencing factors to be considered. The trial judge said that, while the appellant's offending was not in the worst category, it was very serious. His Honour made the orders for accumulation and concurrency referred to in the table at [1] above, resulting in a total effective sentence of 13 years' imprisonment.[67]
General principles
[67] Trial ts 673 - 674.
The appellant's sole ground of appeal alleges an infringement of the first limb of the totality principle of sentencing. The principles governing sentence appeals on that ground are well established. The first limb requires that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally.[68]
[68] Roffey v The State of Western Australia [2007] WASCA 246 [23] ‑ [26].
In assessing whether an aggregate sentence is disproportionate to the overall offending it is necessary to have regard to sentences imposed in comparable cases. This is so that a judgment can be made as to whether the sentence in question is broadly in line with sentences customarily imposed. However, in making such comparisons the significant variations in relevant sentencing factors must always be borne in mind. Ultimately, each case must depend upon its own particular facts and circumstances.[69]
[69] Basilio v The State of Western Australia [2010] WASCA 202 [17].
The purpose of referring to current sentencing practices is to attempt to achieve consistency in sentencing and in the application of relevant sentencing principles. The requirement to have regard to the sentences imposed in those cases does not mean that the range of sentences imposed in the past fixes the boundaries within which future sentences must be passed. Rather, the range of sentences imposed in the past may inform a broad understanding of the range of sentences that would ensure consistency in sentencing and a uniform application of principle.[70] The consistency which is sought is in the application of the relevant legal principles, rather than numerical equivalence.[71]
[70] R v Kilic [2016] HCA 48; (2016) 259 CLR 256 [22]; R v Pham [2015] HCA 39; (2015) 256 CLR 550 [26] ‑ [27].
[71] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [48] ‑ [49].
Section 31(3) of the Criminal Appeals Act 2004 (WA) provides that, unless this court allows an appeal under s 31(4) of that Act, it must dismiss the appeal. Section 31(4) relevantly provides that this court may allow the appeal if, in its opinion, a different sentence should have been imposed. It is established that this court's authority to intervene is dependent upon demonstration of express or inferred material error.[72] In the present case, no express error of principle has been identified. The success of the appeal therefore turns on demonstration of inferred error; ie that error of principle is to be inferred from a result which is unreasonable or plainly unjust.[73]
Disposition
[72] See, for example, LJH v The State of Western Australia [2016] WASCA 155 [106], applying Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 [35] and AB v The Queen [1999] HCA 46; (1999) 198 CLR 111 [130].
[73] House v The King (1936) 55 CLR 499, 505; Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 [25] - [28]; The State of Western Australia v Wilson [2015] WASCA 119 [19] - [22].
The court has recently noted the general approach adopted in serious cases of sexual penetration of adult victims in NPA v The State of Western Australia.[74] As the court noted in that case:[75]
In a case of a single count of penile penetration of the vagina where there is a plea of not guilty, a term of imprisonment of 5 to 6 years would not be unusual. It is important to emphasise that this does not mean that a sentence outside that range is thereby manifestly excessive (or inadequate). The circumstances of offending vary widely. The available maximum sentence must not be overlooked. Sentences well beyond that range may be justified by the circumstances of the case. (citations omitted)
[74] NPA v The State of Western Australia [2018] WASCA 131.
[75] NPA [51].
In the present case, the appellant subjected the complainant to a sustained, humiliating and degrading series of sexual assaults. The attack was premeditated. It involved the appellant violating the sanctity of both the complainant's home and her body. The attack engendered great fear in the complainant. The appellant broke into her unit at night and took advantage of the complainant's vulnerability by attacking her while she was alone in the unit, asleep in her bed. He bound her with rope and blindfolded her. He threatened and assaulted her with a knife. He forced his penis into her vagina, anus and mouth, and ejaculated into her mouth. This very serious sustained series of sexual assaults demanded a very significant term of immediate imprisonment.
There were limited mitigating factors. The appellant did not plead guilty and showed no remorse or insight into his offending. He had not offended since 2000, had a good employment history and, apart from his serious sexual offending, was regarded as being of good character by family and friends. It was also relevant to note that the isolation from his family and friends would make the prison experience more burdensome than is usually the case.
The appellant's written submissions set out in great detail the facts of cases which the appellant contends may offer some guidance as to the standards of sentences customarily imposed for offences of this type.[76] The State also refers to a number of additional cases which it contends are more comparable to the present.[77] The cases referred to, other than Pool, which involved very different offending circumstances, bear some similarities and some distinguishing features (such as a plea of guilty, mental impairment or voluntary disclosure) in relation to the present appeal. When all of the similarities and differences are considered, the total effective sentence imposed on the appellant is broadly consistent with the customary sentencing practice.
[76] Atkinson v The State of Western Australia [2017] WASCA 154; Pool v The State of Western Australia [2013] WASCA 274; Ugle v The State of Western Australia [2012] WASCA 104; Thorn v The State of Western Australia [2008] WASCA 36; Bentley v The State of Western Australia [2007] WASCA 38; Hart v The Queen [2003] WASCA 265; Krencej v The Queen [1999] WASCA 20.
[77] Cooper v The State of Western Australia [2009] WASCA 37 and Royer v The State of Western Australia [2009] WASCA 139.
Having regard to all the circumstances of this case and all relevant sentencing principles, it is not arguable that the total effective sentence imposed in this case infringes the first limb of the totality principle. To the contrary, in our view the total effective sentence bears a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the appellant personally.
For these reasons, we would refuse leave to appeal on the sole ground of the appeal against sentence and dismiss the appeal.
Orders
For the above reasons, we would make the following orders in each appeal:
CACR 146 of 2017 (Appeal against convictions)
(1)Leave to appeal on the sole ground of appeal is refused.
(2)The appeal is dismissed.
CACR 145 of 2017 (Appeal against sentence)
(1)Leave to appeal on the sole ground of appeal is refused.
(2)The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ET
RESEARCH ASSOCIATE/ORDERLY TO THE HONOURABLE JUSTICE MITCHELL10 AUGUST 2018
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