Farnworth v The State of Western Australia
[2024] WASCA 154
•11 DECEMBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: FARNWORTH -v- THE STATE OF WESTERN AUSTRALIA [2024] WASCA 154
CORAM: BUSS P
VAUGHAN JA
HALL JA
HEARD: 3 DECEMBER 2024
DELIVERED : 3 DECEMBER 2024
PUBLISHED : 11 DECEMBER 2024
FILE NO/S: CACR 77 of 2024
BETWEEN: MACKENZIE EVE FARNWORTH
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: TROY DCJ
File Number : IND 438 of 2021
Catchwords:
Criminal law - Appeal against conviction - Appellant charged on indictment with five counts - Appellant convicted on her pleas of guilty of counts 1 and 5 - Appellant convicted after trial of counts 2, 3 and 4 - Whether prosecutor's cross‑examination of the appellant, further or alternatively, the prosecutor's closing submissions to the jury, occasioned a miscarriage of justice - Whether the trial judge made a wrong decision on a question of law when he ruled that questions being asked by the prosecutor relating to an alleged inconsistency between the appellant's evidence and her plea of guilty to count 5 was permissible
Legislation:
Criminal Appeals Act 2004 (WA), s 41(2)
Criminal Code (WA), s 304(1), s 317(1), s 326, s 333
Result:
Appellant's application for an extension of time to appeal granted
Leave to appeal on grounds 1 and 2 granted
Leave to appeal on grounds 3 and 4 refused
Judgments of conviction on counts 2, 3 and 4 set aside
New trial ordered on counts 2, 3 and 4
Category: B
Representation:
Counsel:
| Appellant | : | F P Merenda |
| Respondent | : | L M Fox SC |
Solicitors:
| Appellant | : | The Defence Lawyers |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Goedecke v The State of Western Australia [2013] WASCA 25
HCF v The Queen [2023] HCA 35; (2023) 97 ALJR 978
JJS v The State of Western Australia [2014] WASCA 136
Law v The State of Western Australia [2009] WASCA 193
MAM v The State of Western Australia [2018] WASCA 35
Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132
Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657
REASONS OF THE COURT:
The appellant has appealed against conviction.
The appellant was jointly charged with Max Cameron Holmes‑McNab and Oliver Gregory Mansell on an indictment containing five counts.
Count 1 alleged that on or about 21 August 2019, at Victoria Park, all of the accused unlawfully assaulted RBP by hitting him with a metal bar and thereby doing him bodily harm, contrary to s 317(1) of the Criminal Code (WA) (the Code).
Count 2 alleged that, on the same date and at the same place, all of the accused unlawfully did an act, namely pouring bleach over RBP, as a result of which his life, health or safety was endangered, contrary to s 304(1) of the Code.
Count 3 alleged that, on the same date and at the same place, the appellant and Mr Holmes-McNab sexually penetrated RBP without his consent, by penetrating his anus with a metal bar, contrary to s 326 of the Code. The count pleaded, as circumstances of aggravation, that during the commission of the offence, the appellant was armed with an offensive weapon, namely a metal bar; the appellant and Mr Holmes‑McNab were in company with each other; and the appellant and Mr Holmes‑McNab did bodily harm to RBP.
Count 4 alleged that, on the same date and at the same place, the appellant unlawfully assaulted RBP, by stabbing him with a knife, and thereby did him bodily harm, contrary to s 317(1) of the Code.
Count 5 alleged that, on the same date and at the same place, all of the accused unlawfully detained RBP, contrary to s 333 of the Code.
The appellant pleaded not guilty to counts 2, 3 and 4 and guilty to counts 1 and 5.
On 1 March 2023, after a trial before Troy DCJ and a jury, the appellant was convicted of counts 2, 3 and 4.
Mr Holmes‑McNab and Mr Mansell pleaded guilty to some of the counts and cooperated with the law enforcement authorities. They gave evidence as State witnesses at the appellant's trial.
On 11 April 2023, the trial judge sentenced the appellant to individual terms of immediate imprisonment as follows:
(a)count 1: 18 months;
(b)count 2: 6 months (reduced from 18 months in the application of the totality principle);
(c)count 3: 5 years 6 months;
(d)count 4: 18 months; and
(e)count 5: 18 months.
His Honour ordered that the individual sentence for count 2 be served cumulatively upon the individual sentence for count 3 and that the other individual sentences be served concurrently with each other and concurrently with the individual sentence for count 3.
The total effective sentence was therefore 6 years' imprisonment. This sentence was backdated to 2 April 2023 to take account of time the appellant had spent in custody. A parole eligibility order was made.
The appellant requires an extension of time to appeal. The last date for appealing was 2 May 2023. The appellant did not file her appeal notice until 1 August 2024. The application for an extension of time is supported by an affidavit of her solicitor, Oliver Gregory Cleary Heath, sworn 31 July 2024. We are satisfied that a miscarriage of justice will occur, having regard to the merits of the appeal and the explanation for the delay, if an extension of time is not granted. Consequently, the extension sought should be granted.
The appellant relies upon four grounds of appeal. The State has conceded, relevantly, that particulars 1.1, 1.2, 1.3, 1.4 and 1.6 of ground 1 and ground 2 have been made out. The State has accepted, relevantly, that leave to appeal should be granted on grounds 1 and 2, the appeal should be allowed, the appellant's convictions on counts 2, 3 and 4 should be set aside and that there should be an order for a new trial on those counts. The State's concessions were proper.
On 3 December 2024, at the conclusion of the hearing of the appeal, the court ordered that leave to appeal be granted on grounds 1 and 2 and refused on grounds 3 and 4; the judgments of conviction on counts 2, 3 and 4 be set aside; and the appellant be retried on those counts. These are our reasons for making those orders.
The material facts asserted by the State
The material facts asserted by the State were, relevantly, as follows.
As at the date of the offending, namely 21 August 2019, the appellant and Mr Holmes‑McNab were partners and were residing at residential premises in Victoria Park. RBP was an associate of the appellant and Mr Holmes‑McNab. Mr Mansell was a friend of the appellant and Mr Holmes‑McNab. All of the alleged offences occurred at the Victoria Park premises. The appellant, Mr Holmes‑McNab and Mr Mansell acted together in the commission of the alleged offences.
At the time of the offending, the appellant, Mr Holmes‑McNab and Mr Mansell believed that on the night of 18 August 2019 RBP had stolen a wallet containing $300 from the Victoria Park premises.
At about 10.30 pm on 21 August 2019, RBP went to the Victoria Park premises and knocked on the front door. The appellant answered and invited RBP inside. Upon RBP entering the premises, the appellant locked the front door. Mr Holmes‑McNab and Mr Mansell were inside the premises.
As soon as RBP entered the premises, Mr Holmes‑McNab and Mr Mansell shouted at RBP and said that he needed to pay what he owed and could not leave until he did. A physical altercation then occurred. Mr Holmes‑McNab and Mr Mansell tackled the complainant.
The appellant blew a whistle which she said was a rape whistle and struck RBP about ten times with a metal bar she held in her right hand. The appellant had a large knife in her left hand. She attempted to stab RBP, but was unable to penetrate the layers of his clothing. Mr Holmes‑McNab knocked the knife from the appellant's hand and said they were 'just trying to roll' RBP and not kill him. Mr Mansell placed his arm around RBP's throat, which constricted RBP's ability to breath. Mr Holmes‑McNab used metal wire to wrap RBP's legs together while Mr Mansell held RBP in the choke hold.
The appellant obtained a bottle of bleach and poured it over RBP. While the appellant was pouring the bleach Mr Mansell continued to restrain RBP with the choke hold.
While RBP was being restrained by Mr Holmes‑McNab and Mr Mansell, the appellant pulled down RBP's pants and underwear and inserted the metal bar into his anus.
As RBP was attempting to escape, the appellant grabbed a small steak knife and stabbed RBP several times to his left shoulder, left wrist and the left side of his head. Mr Holmes‑McNab and Mr Mansell released their hold on RBP. RBP lay on his back on the floor. He was bleeding heavily.
Mr Mansell left the Victoria Park premises through the front door. The appellant and Mr Holmes‑McNab lifted RBP from the floor and placed him on a couch. The appellant and Mr Holmes‑McNab took RBP's mobile telephone and detained him for a further two hour period while holding a knife to him. At about 12.30 am on 22 August 2019, the appellant and Mr Holmes‑McNab permitted RBP to leave the premises on the condition that he did not complain to the police.
The grounds of appeal
The grounds of appeal read:
Ground 1
The prosecutor's cross-examination of the appellant, and, or alternatively, the prosecutor's closing submissions to the jury, occasioned a miscarriage of justice.
Particulars
1.The prosecutor cross‑examined the appellant, and made closing submissions to the jury, which asserted, both expressly and impliedly, that the appellant's evidence was incompatible with her plea of guilty to the unlawful detention of the complainant, which was not open on, and was inconsistent with, the evidence: Ts 466 ‑ 468, 506 ‑ 507.
2.The prosecutor cross-examined the appellant, and made closing submissions to the jury, which asserted, either expressly or impliedly, that the appellant could only have been guilty of unlawfully detaining the complainant if she had physically detained him, which was misleading: Ts 466 ‑ 468, 506 ‑ 507.
3.The prosecutor cross-examined the appellant, and made submissions to the jury, which falsely asserted that there was no evidence to support the appellant's assertion she had seen photographs of injuries to the torso of the complainant prior to entering her plea of guilty to count 1, which assertion was made in the circumstance where, although not tendered in evidence at trial, the prosecution brief had contained a photograph of the complainant, which purported to show an injury to his back: Ts 477 ‑ 479, 506 ‑ 507.
4.The prosecutor made speculative submissions to the jury that the appellant's 'poor' mental health issues were a factor to be taken into account when evaluating the likelihood that the appellant had behaved in the violent way alleged by the State, in circumstances where there was no evidence to support that submission, and where the prosecutor did not cross‑examine the appellant about her mental health or the effect of her mental health diagnoses on her behaviour at the time of the alleged offending: Ts 506.4 ‑ 506.5, 508.9 ‑ 509.3.
5.The prosecutor made submissions to the jury that improperly drew a contrast between what he asserted was 'often' the evidence in trials involving sexual offending with the evidence relied upon in the State's case against the appellant, by reference to which he asserted that the jury was 'in a much more advantageous position' than juries in other trials: Ts 518.3 ‑ 518.5 .
6.The trial Judge was required to, but did not, give directions that were capable of guarding against the risks of the jury being deflected from its task by virtue of the improper cross‑examination, and, or alternatively, the submissions made by the prosecutor.
Ground 2
The trial judge made a wrong decision on a question of law when he ruled that the questions being asked by the prosecutor relating to the alleged inconsistency between the appellant's evidence and her plea of guilty to count 5 was permissible.
Ground 3
Alternatively to ground 1, particulars 1 ‑ 2, and ground 2, a miscarriage of justice was occasioned by the trial judge's failure to give directions to the jury concerning the basis upon which a person may be criminally responsible for an offence, which was essential to the jury's evaluation of the State's assertion that a reason for rejecting the evidence of the appellant was that her evidence was inconsistent with her plea of guilty to count 5 on the indictment.
Ground 4
The prosecutor made impermissible submissions to the jury that invited the jury to consider why the complainant would lie about the allegations relating to counts 2 ‑ 4, or alternatively, the submissions made by the prosecutor nonetheless gave rise to a risk that the jury would reason, impermissibly, that in the absence of an inability to detect a motive to lie, the complainant's evidence should be accepted (which was not cured by the trial judge's directions to the jury).
The appellant's pleas of guilty to counts 1 and 5
An accused may enter a plea of guilty to a charged offence whether or not the accused believes that he or she has committed the offence. A court will act on an accused's plea of guilty when the plea is entered in open court by a person who is an adult and appears to be of sound mind and understanding, provided the plea is entered in the exercise of a free choice in the accused's interests. There is no miscarriage of justice if the court does act on such a plea, even if the accused is not in fact guilty of the charged offence. See Meissner v The Queen.[1]
[1] Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132, 141 (Brennan, Toohey & McHugh JJ).
As Dawson J observed in Meissner (157), an accused may plead guilty upon grounds other than the accused's belief in his or her guilt; for example, 'to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty'.
Where an offender is convicted on his or her plea of guilty, the plea necessarily involves an admission by the offender (as a matter of law) of each of the elements of the offence, including all of the essential facts necessary to constitute the offence. The plea also negatives all defences. A plea of guilty does not, however, constitute an admission of all of the facts stated in the State's or Crown's depositions or witness statements. See Law v The State of Western Australia.[2]
[2] Law v The State of Western Australia [2009] WASCA 193 [27] (Buss JA; McLure & Pullin JJA agreeing).
In the present case, the appellant's pleas of guilty to counts 1 and 5 were entered when she was arraigned on all of the counts in the indictment at the beginning of the trial.[3]
[3] The transcript of the trial indicates that upon arraignment the appellant pleaded guilty to count 2 and 5 and not guilty to counts 1, 3 and 4. However, it is apparent from the balance of the trial record that the appellant in fact pleaded guilty to counts 1 and 5 and not guilty to counts 2, 3 and 4. At the hearing of the appeal counsel for the appellant and counsel for the State were agreed that this was the case.
The appellant and the State did not agree upon the material facts of counts 1 and 5 before the appellant entered her pleas of guilty. The appellant was not sentenced on counts 1 and 5 until after she was convicted of counts 2, 3 and 4 at the trial.
The duties of a prosecutor
The prosecutor in a criminal trial represents the State. The prosecutor must 'act with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused's trial is a fair one': Whitehorn v The Queen.[4]
[4] Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657, 663 ‑ 664 (Deane J).
As Mazza JA (McLure P agreeing generally and Newnes JA agreeing) noted in Goedecke v The State of Western Australia:[5]
Consistently with a prosecutor's duty, in a closing address a prosecutor should not (inter alia) tell a jury something that is not evidence (R vCallaghan [1993] QCA 419; [1994] 2 Qd R 300, 306); offer a personal opinion (KNP v The Queen [2006] NSWCCA 213; (2006) 67 NSWLR 227 [32]), introduce false lines of reasoning or invite a jury to speculate about the evidence. As to these last two points see Wood v The Queen [2012] NSWCCA 21.
See also JJS v The State of Western Australia;[6] MAM v The State of Western Australia.[7]
[5] Goedecke v The State of Western Australia [2013] WASCA 25 [36].
[6] JJS v The State of Western Australia [2014] WASCA 136 [134] (Martin CJ; Pullin JA agreeing & Buss JA relevantly agreeing).
[7] MAM v The State of Western Australia [2018] WASCA 35 [101] - [108] (Martin CJ; Beech JA agreeing & Hall J agreeing generally).
If a prosecutor breaches his or her duty at trial it will be necessary for an appellate court to evaluate the significance of the breach in the context of the trial as a whole, including whether any objection to the prosecutor's course of conduct was taken by defence counsel. See Whitehorn (664); Goedecke [35], [37]; JJS [134].
The appellant was a witness at the trial
The appellant gave evidence in her own defence at the trial.
Ground 1 of the appeal
Ground 1 asserts, in essence, that the prosecutor's cross‑examination of the appellant, further or alternatively, the prosecutor's closing submissions to the jury, occasioned a miscarriage of justice.
Particulars 1.1 and 1.2 relate to the prosecutor's cross‑examination of the appellant and the prosecutor's closing address to the jury in relation to an alleged inconsistency between the appellant's evidence at the trial and her plea of guilty to count 5 (that is, the unlawful detention offence).
The appellant denied in her evidence‑in‑chief that she had engaged in the conduct alleged in counts 2, 3 and 4. She gave an account in her evidence‑in‑chief about her involvement in the overall incident the subject of the counts in the indictment. The appellant's evidence‑in‑chief was, relevantly, as follows (ts 457 - 460, 466):
When [RBP] arrived at the house, do you recall who let him into the house? ‑ ‑ ‑ Yes, I did.
And after you let him into the house, what did [RBP] do? ‑ ‑ ‑ He just took a few steps inside.
And did you do anything to the door through which he just came? ‑ ‑ ‑ I just ‑ I pushed the snib(?) on the door handle.
What do you mean by 'pushed the snib'? ‑ ‑ ‑ So on the door handle that you turn, I just, like, pushed the button in.
Did you use any keys to lock any door? ‑ ‑ ‑ No, I did not.
So when [RBP] arrived at the house, who was at home? ‑ ‑ ‑ [Mr Mansell] and me and [Mr Holmes‑McNab].
So after you closed the door, what was the next thing that happened? ‑ ‑ ‑ [Mr Holmes‑McNab] and [Mr Mansell] immediately started questioning … [RBP] about the money.
So just before we go to that, after [Mr Mansell] arrived at the house, was there any conversation with [Mr Mansell] about [RBP] coming to the house? ‑ ‑ ‑ Not that I can recall.
So you've said that … [Mr Holmes‑McNab] and [Mr Mansell] were asking [RBP] about the money. And were you also asking? ‑ ‑ ‑ I do not recall. It was a very brief period before [RBP] tried to [exit] the house.
Okay. So when you say [RBP] tried to exit the house, what did he do? ‑ ‑ ‑ He turned and pushed ‑ shoved me into a wall.
And … after he shoved you, what was the next immediate thing that happened? ‑ ‑ ‑ [Mr Holmes‑McNab] and [Mr Mansell] got very angry at him for having hit me.
And what did they do or did they do anything? ‑ ‑ ‑ They started, like, a physical altercation with him, which is, sort of ‑ more, like, wrestling rather than punches or anything.
So the three males were wrestling. And at that point, what were you doing? ‑ ‑ ‑ Just watching.
At some point, did those three males end up on the floor? Or what happened to them? ‑ ‑ ‑ Yes, they ended up on the floor, but not before I did hit [RBP] two times.
Okay. So just taking us to that, before he's on the floor, you say you hit [RBP]? ‑ ‑ ‑ Yep.
What did you hit him with? ‑ ‑ ‑ Just like a ‑ a pole. Like, a metal rod.
And where was that pole? Where did you get it? ‑ ‑ ‑ I'm not quite sure where it was, because the house was so untidy at the time. But it could have been anywhere in the front living area. It was quite an open‑planned house.
And when you say you hit him before they ended up on the floor, is that when there was just the verbal altercation happening or when was it ‑ ‑ ‑? ‑ ‑ ‑ This is right after I'd been shoved. Sort of, almost in retaliation to having been hit.
And do you recall whereabouts on his body you hit him? ‑ ‑ ‑ On his torso.
And do you recall how hard you hit him? ‑ ‑ ‑ Not very. I'm not capable of very hard hits.
And what was that pole made of? ‑ ‑ ‑ I believe it was some sort of metal.
And you said you hit him twice, is that right? ‑ ‑ ‑ Yes.
So throughout the rest of that evening, did you use that pole at all again? ‑ ‑ ‑ No.
…
So after you had that exchange with [Mr Holmes‑McNab], what was the next thing that happened? ‑ ‑ ‑ [Mr Holmes‑McNab] grabbed a ball of wire which was just underneath a desk in the front living room.
And how far was that from where [Mr Mansell] and [RBP] were? ‑ ‑ ‑ Only a couple of metres away.
And so did you see [Mr Holmes‑McNab] grab that wire? ‑ ‑ ‑ Yes.
And did you see what [Mr Holmes‑McNab] did with that wire? ‑ ‑ ‑ Yes. He started to wind it around [RBP's] legs.
And what was [Mr Mansell] doing at that stage? ‑ ‑ ‑ He was still choking [RBP].
And what were you doing? ‑ ‑ ‑ For the period up until I saw [Mr Holmes‑McNab] start to wind it, I was sort of just standing there, almost in ‑ like frozen and then when he had started winding the wire, I crouched down to [RBP's] legs to undo it.
So you've heard various accounts that ‑ that at some point you went and got some bleach. Did you leave to go and get some bleach from the kitchen at any point? ‑ ‑ ‑ No.
Did you use bleach at all? ‑ ‑ ‑ No.
Did you pour any substance at all on [RBP]? ‑ ‑ ‑ No.
You've also heard various accounts of whether or not you had a knife. Did you have a knife at all that evening? ‑ ‑ ‑ No, I did not.
…
So just for clarity, did you do anything with a knife at all that night? ‑ ‑ ‑ No.
Did you put a pole into [RBP's] anus that night? ‑ ‑ ‑ No.
Did you do anything with bleach that night? ‑ ‑ ‑ No.
And you pleaded guilty to assault with respect to hitting [RBP] with the pole on ‑ two times? ‑ ‑ ‑ Yes.
And you've also pleaded guilty to basically depriving him of his liberty from leaving the house? You understand that? ‑ ‑ ‑ Yes. (emphasis added)
The prosecutor cross‑examined the appellant as follows (ts 466 ‑ 468):
DUNGEY, MR: So [appellant], the assault is hitting [RBP] with a pole, right?‑‑‑(No audible answer).
Correct?‑‑‑Yes.
I've got that. But how did you deprive him of his liberty? I listened carefully to your evidence. How did you deprive him of his liberty? ‑ ‑ ‑ I ‑ honestly, I feel like [RBP] didn't feel as though he was allowed to leave, and that makes me feel guilty in making him feel that way, that he wasn't allowed to leave the premise. He was under the ‑ ‑ ‑
You feel ‑ so you're saying you've pleaded guilty because you feel guilty? ‑ ‑ ‑ That I made him under the impression that he was not allowed to leave.
How did you do that? ‑ ‑ ‑ I didn't exactly stop [Mr Holmes‑McNab], and I didn't exactly call the police, did I, when [Mr Holmes‑McNab] and that were doing what they were doing. I could have taken a more substantial role, and tried to stop it.
[S]o [appellant], you've pleaded guilty to deprivation of liberty because you could have called the police and stopped other people doing it? ‑ ‑ ‑ Yes.
[Appellant], that's ridiculous, isn't it? You're saying, 'I'm not really guilty; I just feel bad because I didn't stop it'? ‑ ‑ ‑ No, I feel that he genuinely did not feel as though he was allowed to leave.
But you had nothing to do with that? ‑ ‑ ‑ No, I've accepted my responsibility in that.
But you had no responsibility to accept, [appellant], on what you're telling the jury, didn't you? ‑ ‑ ‑ I'm sorry, I'm confused by the question.
Well, in what way were you actually responsible, as you claim to be actually responsible, for unlawfully detaining [RBP]? What did you say? What did you do? What role did you play in detaining him? ‑ ‑ ‑ I believe that I emotionally made him feel that he was not able to leave, and that alongside the two big males with me, that I was probably a party in intimidating him to feel ‑ ‑ ‑
How did you intimidate him? ‑ ‑ ‑ I'm not sure.
Just be being present? Just be being there when it happened? ‑ ‑ ‑ I'm not sure why he felt like he couldn't leave, but that is how he felt.
But you kind of telepathically ‑ you emotionally made him feel that, is that right, [appellant]? ‑ ‑ ‑ Well, that's what he has said, so yeah.
[Appellant], I suggest to you your evidence contradicts your plea. Do you know what I mean by that? ‑ ‑ ‑ No.
So you've pleaded guilty ‑ ‑ ‑ ? ‑ ‑ ‑ Mm hmm.
‑ ‑ ‑ to depriving him of his liberty? ‑ ‑ ‑ In having part of the fact that he was not able to leave the house.
But you've said nothing that actually admits playing any role in stopping him leaving? ‑ ‑ ‑ Mm hmm.
Do you understand that? ‑ ‑ ‑ Yes.
So your version of events, you didn't lock the door, did you? You just shut it and you pressed the button? ‑ ‑ ‑ Mm hmm.
He could leave at any time, correct? ‑ ‑ ‑ Yes. He did not think he could.
You didn't hold him down ‑ ‑ ‑? ‑ ‑ ‑ No.
‑ ‑ ‑ at any time, correct? ‑ ‑ ‑ No.
You didn't forbid him from leaving at any time, is that correct? ‑ ‑ ‑ No.
No? You certainly didn't play any role in tying him up? ‑ ‑ ‑ No.
You just hit him a couple of times with the metal pole? ‑ ‑ ‑ Yeah.
And you're saying you pleaded guilty because you feel like you emotionally let him think he couldn't leave? ‑ ‑ ‑ Could I please have a break?
STEWART, MS: Your Honour, she did say 'as a party.' She said earlier ‑ ‑ ‑ (emphasis added)
The trial judge then heard further argument from defence counsel in the absence of the jury.
Defence counsel submitted (ts 469):
STEWART, MS: She said earlier, 'as a party.' Now, that's a legal term, so she doesn't have to have personally done the tying up, et cetera. She's present, and she's there. I think that's confusing the witness.
His Honour ruled on the objection as follows (ts 469):
It seems to me that ‑ I don't think there was any confusion that had come in. I think that there's perhaps an argument that the point has been taken as far as it could. But essentially what I understood was the cross‑examination was Mr Dungey asking the witness, in light of her guilty plea to deprivation of liberty, what, in addition to mere [presence], which I wouldn't have thought would amount to the offence ‑ what in addition to mere presence she said or did that amounted to deprivation of liberty. (emphasis added)
In our opinion, the prosecutor's questions in the passage at [40] above were impermissible to the extent that they were formulated by reference to the appellant's pleas of guilty to counts 1 and 5 rather than by reference to the evidence concerning her role in the incident the subject of one or more of the counts in the indictment.
As we have mentioned, the appellant and the State did not agree upon the material facts of counts 1 and 5 before the appellant entered her pleas of guilty. The appellant was entitled to enter pleas of guilty to counts 1 and 5 whether or not the appellant believed that she had committed the offences. See [28] ‑ [29] above. In the circumstances, the prosecutor was not entitled to impugn the integrity of the pleas of guilty or to attack the appellant's credibility on the basis of an alleged inconsistency between her evidence and her plea of guilty to count 5 (that is, the unlawful detention offence).
During his closing address the prosecutor told the jury that, based upon her evidence, the appellant could not in law have been guilty of the unlawful detention offence charged in count 5. That statement should not have been made. The appellant's plea of guilty was valid at law and necessarily involved an admission by the appellant (as a matter of law) of all of the essential facts necessary to constitute the offence. The trial judge did not, in his directions to the jury, remedy the prosecutor's statement. The appellant's credibility was a crucial issue at the trial. In the circumstances, there is a real risk that the prosecutor's statement may have misled the jury and adversely affected the jury's perception of the appellant's credibility.
Particular 1.3 relates to the prosecutor's statement in cross‑examination of the appellant and in the prosecutor's closing address to the jury that there was no evidence to support the appellant's assertion that she had seen photographs of injuries to RBP's torso before she entered her plea of guilty to count 1 (that is, the unlawful assault doing bodily harm offence).
The context of the appellant's assertion was that, although not tendered in evidence at the trial, the State brief contained a photograph of RBP which showed bruising to his back.
The appellant referred to the photograph during an exchange with the prosecutor in her cross‑examination about the basis for her plea of guilty to count 1. The relevant exchange was as follows (ts 476):
Where's the bodily harm? ‑ ‑ ‑ I'm not actually sure. I ‑ I made my pleas under the advice of my lawyers because I don't know much about the legal system. And they said that that was the best course of action.
[Appellant], you pleaded guilty because you can see the bodily harm you did right there, can't you? ‑ ‑ ‑ It was not on his head, no.
You've never seen any photos of any injuries to ‑ ‑ ‑ ? ‑ ‑ ‑ I ‑ ‑ ‑
‑ ‑ ‑ his torso? ‑ ‑ ‑ Yes, I have actually. He ‑ he posted photographs on a social media site of his torso, the ‑ the whole injuries. I just don't think he ‑ ‑ ‑
Well, do you have them with you? And I'm not saying you have an obligation to produce them, but I'll ask you this. Do you have them with you? ‑ ‑ ‑ I do have them on my mobile device, yes.
Okay. Can we see them? ‑ ‑ ‑ My grandad has my phone.
Right? ‑ ‑ ‑ They were also in the ‑ I thought they were in the original brief. I remember the back photos. He did supply photos of his back. (emphasis added)
During his closing address, the prosecutor was critical of the appellant's evidence on this issue. In particular, the prosecutor relied upon an alleged absence of any evidence about injuries to RBP's back in support of the prosecutor's submission that the appellant's evidence should be rejected completely. The prosecutor's submission was as follows (ts 506 ‑ 507):
But the prosecution submits that there are sound reasons for you to reject [the appellant's] evidence as unreliable. Firstly, she so minimised her conduct that night that it's very difficult to see how she was even guilty of the two charges she admitted.
And I'm speaking of the assault occasioning bodily harm by striking [RBP] with the metal pole or bar and the unlawful detention of [RBP]. Now, the striking with the metal bar, she said she struck him in the torso. [RBP] was wearing several layers of clothing. She claimed to have seen photographs of his torso, but they're not in evidence.
You might think on her version of events, sure, it's an assault, but where's the bodily harm? (emphasis added)
That submission breached the duty of a prosecutor to act with fairness towards an accused. The submission that the jury should reject the appellant's evidence on the basis that there was no evidence of an injury to RBP's torso, when there was in fact a photograph in the State brief of such an injury, was misleading and unfair. The trial judge did not, in his directions to the jury, remedy the prosecutor's misleading and unfair conduct. As we have mentioned, the appellant's credibility was a crucial issue at the trial.
Particular 1.4 relates to the prosecutor's submission in his closing address to the jury that the appellant's 'poor' mental health was a factor to be taken into account in evaluating the likelihood that the appellant had behaved in the violent manner alleged by the State.
At the trial there was a paucity of evidence about the appellant's mental health. The evidence on that issue was confined to the appellant's evidence‑in‑chief that a psychiatrist had diagnosed her as having '[a]utism, anxiety and PTSD' (ts 454). However, there was no evidence about when she was diagnosed with those conditions. Further, there was no evidence about whether she took medication for the treatment of '[a]utism, anxiety and PTSD' and, if so, when the medication was prescribed or what the effects of the medication were. The appellant was not cross‑examined about her mental health.
There was no evidence to support the prosecutor's submission that the appellant's 'poor' mental health was a factor to be taken into account when evaluating the likelihood that the appellant had behaved in the violent manner alleged by the State. The absence of evidence was compounded by the prosecutor's failure to cross‑examine the appellant about her mental health or the effect of the diagnosis of '[a]utism, anxiety and PTSD' on her behaviour at the time of the alleged offending.
The prosecutor's submission invited the jury, in effect, to speculate about the appellant's mental health and how it may have impacted upon her behaviour at the time of the alleged offending. Indeed, the prosecutor's submission was reasonably capable of suggesting that the appellant's 'poor' mental health made her more likely to commit the type of offending alleged by the State.
The trial judge did not, in his directions to the jury, remedy the unfairness inherent in the prosecutor's submission. The submission involved speculation, encouraged the jury to follow an impermissible line of reasoning and distracted the jury from the contested issues in the case. In the circumstances, there is a real risk that the prosecutor's submission may have unfairly influenced the jury against the appellant.
It is unnecessary to deal with particular 1.5.
Particular 1.6 relates to the trial judge's failure to give directions to the jury that were capable of guarding against the risks of the jury being deflected from its task by virtue of the matters complained about in particulars 1.1 to 1.5. We are satisfied that particular 1.6 has been made out in relation to particulars 1.1, 1.2, 1.3 and 1.4. In the circumstances, the trial judge was required to, but did not, give directions to the jury that were capable of guarding against the impermissible prejudice to the appellant that arose by virtue of the improper cross‑examination and submissions of the prosecutor referred to in particulars 1.1, 1.2, 1.3 and 1.4.
Ground 2 of the appeal
Ground 2 asserts, in essence, that the trial judge made a wrong decision on a question of law when he ruled that the questions being asked by the prosecutor relating to the alleged inconsistency between the appellant's evidence at the trial and her plea of guilty to count 5 were permissible.
The trial judge should have upheld defence counsel's objection to the prosecutor's line of questioning and directed the jury to disregard the questions and answers.
Ground 3 of the appeal
It is unnecessary to deal with ground 3.
Ground 4 of the appeal
It is unnecessary to deal with ground 4.
Did a miscarriage of justice occur?
We are satisfied that the matters complained about in:
(a)particulars 1.1, 1.2, 1.3, 1.4 and 1.6 of ground 1; and
(b)ground 2,
in combination, prejudiced the fair trial of the appellant in the sense that there is a 'real chance' that those matters affected the jury's verdict as explained in HCF v The Queen.[8] A miscarriage of justice has therefore occurred.
[8] HCF v The Queen [2023] HCA 35; (2023) 97 ALJR 978 [2] (Gageler CJ, Gleeson & Jagot JJ).
The orders that should be made in the appeal
For the reasons we have given, we made the orders referred to at [16] above.
Section 41(2) of the Criminal Appeals Act 2004 (WA) provides:
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.
As we have mentioned, the trial judge sentenced the appellant to 18 months' immediate imprisonment on each of counts 1 and 5. His Honour ordered that those sentences be served concurrently with each other and concurrently with the sentence of 5 years 6 months' imprisonment for count 3. The sentences on each of counts 1, 3 and 5 began on 2 April 2023. A parole eligibility order was made.
We are of the opinion, having regard to:
(a)the trial judge's sentencing remarks in relation to the facts and circumstances of the appellant's offending on counts 1 and 5;
(b)the risk that his Honour's findings in relation to those facts and circumstances may have been influenced by the prosecutor's conduct which contributed to the miscarriage of justice;
(c)his Honour's sentencing remarks in relation to the appellant's personal circumstances and antecedents;
(d)the appellant having already served nearly 1 year 8 months in custody in respect of, relevantly, counts 1 and 5;
(e)the sentencing patterns in this State in relation to the offences charged in counts 1 and 5; and
(f)the submissions of counsel for the appellant and counsel for the State in the appeal on the possible application of s 41(2) of the Criminal Appeals Act to the sentences for counts 1 and 5,
that the sentences imposed by his Honour for counts 1 and 5 and his Honour's order for concurrency in respect of those sentences should not be varied by this court.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ET
Associate to the Honourable President Buss
11 DECEMBER 2024
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