FSN v The State of Western Australia
[2023] WASCA 54
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: FSN -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 54
CORAM: BUSS P
MAZZA JA
HALL JA
HEARD: 15 MARCH 2023
DELIVERED : 6 APRIL 2023
FILE NO/S: CACR 70 of 2022
BETWEEN: FSN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: LONSDALE DCJ
File Number : XXX of XXXX
Catchwords:
Criminal law - Appeal against conviction - Child sexual offences - Whether trial judge made errors of fact in addressing jury - Whether errors were minor inaccuracies or obvious linguistic slips - Whether there is a reasonable possibility that errors could have affected verdicts - Whether there was a miscarriage of justice arising from errors - Turns on own facts
Legislation:
Nil
Result:
Extension of time to appeal refused
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | A Robson |
| Respondent | : | R G Wilson |
Solicitors:
| Appellant | : | Legal Aid (WA) |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Longman v The Queen (1989) 168 CLR 79
Simic v The Queen [1980] HCA 25; (1980) 144 CLR 319
Simm v The Queen [2001] WASCA 79
JUDGMENT OF THE COURT:
The appellant was found guilty after a trial of one count of indecently dealing with a child under the age of 16 years who he knew to be his de facto child, contrary to s 329(4) of the Criminal Code (WA) (the Code), and one count of attempting to indecently record a child over the age of the age of 16 years who he then knew to be his de facto child, contrary to s 329(6) of the Code. He was found not guilty of a further count of indecent dealing. He seeks leave to appeal against his conviction.
The trial took place in October 2019. The appeal notice was not filed until 15 August 2022 and thus an extension of time is required. An affidavit was filed which provides some explanation for the long delay. However, it was accepted at the hearing of the appeal that whether an extension is granted depends critically upon the merits of the ground of appeal.[1]
[1] Appeal ts 2.
There is one ground of appeal. It alleges that the learned trial judge made two material mistakes of fact in her directions to the jury. The two mistakes were made; however, they were not of such significance as to raise any reasonable possibility that the jury was misled. The errors did not cause a miscarriage of justice. The extension of time should be refused, leave to appeal refused and the appeal dismissed.
Prosecution case
The prosecution case was that the appellant was in a long‑term de facto relationship with CM. CM had two daughters, SJ and JJ, who lived with the couple. SJ is older by about two years. SJ was born on 14 July 2000 and JJ was born on 12 October 2002.[2]
[2] ts 156, 182, 231.
Count 1 alleged that on a date unknown between 30 November 2013 and 1 January 2014 the appellant indecently dealt with SJ, a child who he then knew to be his de facto child, by touching her breast, and that SJ was a child under the age of 16 years. SJ was aged 13 at the time of this alleged offence. The appellant was acquitted of this count, however the facts relating to it are relevant to the grounds of appeal.[3]
[3] ts 157.
Count 2 alleged that on 18 December 2016 the appellant indecently dealt with JJ, a child who he then knew to be his de facto child, by touching her breast, and that JJ was a child under the age of 16 years. JJ was aged 14 at the time of this offence.[4]
[4] ts 157 - 158.
Count 3 alleged that on 27 June 2018 the appellant attempted to indecently record SJ, a child who he then knew to be his de facto child, by attempting to take an indecent photograph of SJ, and that SJ was a child over the age of 16 years. SJ was aged 17 at the time of this offence.[5]
[5] ts 158 - 159.
The facts relating to count 1 are that on a date unknown between 30 November 2013 and 1 January 2014, the appellant and SJ were sitting in the carport of the family home. The appellant was drinking beer and they were talking about football, when the appellant told SJ to get up and follow him. They went to the back of a vehicle which was parked in the driveway. The appellant stood at the back of the vehicle and told SJ to come to him. He stood in front of SJ and then touched her breast on top of her clothes. He told her not to tell anyone. She pushed his hand away and ran into the house. She went to tell her mother, but her mother was asleep. She then went to her own room, and locked herself in. SJ did not tell anyone about this incident for some years.[6]
[6] ts 157.
The facts relating to count 2 are that in 2016 JJ was living in Melbourne, as she had a scholarship to attend a school there. She returned to the family home for school holidays. On 18 December 2016, JJ was home for the Christmas holidays and was watching movies. She continued to do so late into the night, until everyone other than the appellant was asleep. JJ fell asleep and sometime around dawn, the appellant came in and shook her awake. He told her that it was time for her to go to her room to sleep there. He then held her by the shoulders and led her outside. JJ was confused by this. The appellant took her past the front yard and the veranda. He then put his hand up JJ's shirt and touched her on the breast. She pushed his hand away and asked him what he was doing. He grabbed her left wrist and said, 'This stays between you and me'. JJ pulled her hand away from him and ran inside. She went straight to her room and locked the door.[7]
[7] ts 157 - 158.
JJ stayed in her room all the next day. At one point, the appellant used a spare key to open her door and tell her that he had made breakfast. However, JJ pretended to be asleep because she did not want to see him. Later in the day, the appellant and CM left the house to go shopping. JJ used that opportunity to use her mother's telephone and call triple zero. She told police that the appellant had sexually assaulted her.[8]
[8] ts 158.
The facts relating to count 3 are that in June 2018, the family were living in a different house. On the evening of 26 June 2018, SJ went for a shower. The bathroom window looked out onto the veranda. When she was finishing her shower, she looked towards the window and saw the appellant's telephone pushed up against the mesh in the window, pointing towards her. She screamed out at the appellant, asking him what he was doing, and quickly wrapped herself in a towel. SJ came out of the bathroom and immediately told her mother what had happened. She then ran to her room, locked the door and sent a message to another, older, sister to come and collect her from the house. The sister arrived soon after and SJ was crying hysterically. A day or so later, SJ reported the incident to the police. When she was speaking to the police officer about what had happened in the shower, she also disclosed the earlier incident in 2013. That was the first time that she had told anyone about the first incident.[9]
[9] ts 158 - 159.
The appellant was interviewed by the police and essentially denied the allegations. In regard to the allegation of attempting to record SJ, he told police that he had been on his way to the police station and had lost his telephone in a dam. He later told CM that the telephone had been smashed.[10]
[10] ts 159.
Defence case
The defence accepted that JJ and SJ were the appellant's de facto children at the relevant times. The appellant denied that each of the two alleged indecent dealings (the first two counts) had occurred. As regards the third allegation, the defence case was that whilst the appellant did either take or try to take an image with his telephone camera, he did not believe SJ was in the bathroom at the time.[11]
[11] ts 163.
Prosecution evidence
It is not necessary for the purposes of this appeal to summarise the whole of the evidence. It is sufficient only to refer to those parts of the evidence that are relevant to the alleged mistakes of fact made by the trial judge. Those mistakes relate, first, to whether JJ or SJ had made a prior inconsistent statement to the police and, secondly, whether the third incident had occurred on 27 June 2018.
JJ
JJ's evidence at the trial was pre‑recorded. In her evidence‑in‑chief, JJ said that she fell asleep while watching movies and that some time later, the appellant came inside and shook her to wake her up. He told her that he was going to take her to her room for her to sleep there. The appellant helped her up and held her by the shoulders. However, he led her outside instead of to her room. She was confused as to where he was taking her. He was standing behind her on the veranda when he put his hand up her shirt and grabbed her breast.[12]
[12] ts 21 - 24.
In cross‑examination, it was put to JJ that she had given a different account of the events to police:[13]
[13] ts 33.
Do you remember telling police that you woke up standing on the veranda?---Yes.
And you also told them that you didn't know how you got onto the veranda? Do you remember telling police that?---Yes.
You said today when [counsel for the State] asked you a question that [the appellant] shook you on the arm, he helped you up and he held you by the shoulders, told you he was going to take you to your room to go to sleep and took you out to the veranda?---Yes.
That's different from what you told the police in your statement, isn't it?‑‑‑Yes, but when I read over my statement I remember that he did do that.
When did you read over your statement and remember that?---Yesterday.
A short time later, the following questions were put:[14]
[14] ts 34 - 35.
When the police officers came to the house, do you remember when - do you remember that clearly, that morning?---Yes.
And your mum was with you when the police officers came to the house?‑‑‑Yes, but it wasn't in the morning. It was the afternoon.
Afternoon. Thank you. And did you tell police that [the appellant] dragged you out of the house?---No.
Are you very sure about that?---Yes.
Okay. But this is the first time that you've said anything to anyone about [the appellant] waking you up and walking you to your bedroom or telling you he's going to walk you to your bedroom and then walking you to the veranda. That's right, isn't it?---Can you repeat that?
BURROWS DCJ: Break that down, please.
[DEFENCE COUNSEL]: Okay. This is the first time that you've told anyone about [the appellant] helping you outside, isn't it?---No, it's not the first time.
Did you tell police about that?---No, I didn't.
Do you remember [the appellant] asking you some questions about - I'm sorry to have to ask you this, [JJ], but I have to ask you these questions. Around that time of the situation, were you hurting yourself in some way?---Yes.
Do you remember [the appellant] asking you about that on the night of the situation?---No.
You were sitting outside with your mum at about 2 or 2.30, and mum went to bed, and you were talking with [the appellant] after that. Do you remember that?---No.
When you told police that you woke up standing on the veranda, was that what you thought the truth was? Were you telling the truth when you told police that you woke up standing on the veranda?---I don't know.
The issue was also dealt with in re‑examination:[15]
[15] ts 40.
You know how you said that you do remember [the appellant] waking you up and taking you on the veranda by - guiding you out to the veranda by your shoulders? Do you remember how you said that?---Yes.
And do you remember how you said you didn't tell the police that on that - when you - after you called them?---Yes.
Do you know why you didn't tell the police then?---No, I don't know ‑ ‑ ‑
Okay?--- - - - why.
And do you remember him taking you out by the shoulders?---Yes.
SJ
After giving evidence in respect of count 1, SJ was asked about count 3 as 'something that happened last year'. The evidence was pre-recorded in 2019, so 'last year' was a reference to 2018. She responded by saying 'something happened last year, end of June'. She confirmed that this was in 2018. She then recounted the incident where the appellant had attempted to take a photograph of her through the bathroom window using his mobile telephone.[16]
[16] ts 51 - 52.
SJ said that after leaving the bathroom she immediately told her mother what had occurred. She then went to her bedroom and called her older sister. She told her sister what had happened and asked her sister to pick her up as soon as possible. She went to the police the following day and told them what had happened.[17]
[17] ts 53, 56.
Other Evidence
There was unchallenged evidence from CM that SJ had complained to her about the bathroom recording incident on 27 June 2018.[18]
[18] ts 199.
There was unchallenged evidence from SJ's older sister that she received a message from SJ on 27 June 2018, in which SJ referred to the appellant recording her through the bathroom window and asked to be picked up. She did pick up SJ, who repeated the same complaint.[19]
[19] ts 224 - 225.
There was unchallenged evidence from the investigating police officer that SJ had attended at a police station, made a complaint regarding the bathroom recording incident, and had been interviewed, all on 28 June 2018.[20]
[20] ts 229.
Closing addresses
In her closing address, the prosecutor dealt with the alleged inconsistency on the part of JJ in the following way:[21]
[21] ts 307.
[JJ] doesn't remember the mechanism by which she got outside, whether it was waking up or being taken outside. I think in her evidence she ultimately landed on, 'No. The accused picked me up and, with my shoulders, pushed me outside.' How she got outside, you might think, has faded into significance [sic] given what happened next, the accused putting his hand underneath her bra and touching her breast.
These are all details, and maybe inconsistencies, that the State says are entirely explicable with the passage of time. They do not detract at all from the girls' memory of what the accused actually did to them, and, in fact, they highlight how honest these witnesses are.
In his closing, defence counsel said that count 2 was based principally on the evidence of JJ. He said that, 'importantly', there were internal inconsistencies in her evidence. He then said:[22]
[22] ts 319 (23 October 2019).
One of them is the way in which [JJ] says she ended up from the couch to outside, where she reckons she was touched. Now, in her evidence, she says that she was woken up by [the appellant], basically guided, whilst awake, outside.
But, importantly, she agreed, in her evidence itself, that she told the police - this is what she told the police, that she somehow woke up, standing on the veranda. So she wakes up on the veranda. Not that she was woken up on the couch and taken to the front by [the appellant] - but she wakes up on the veranda, doesn't know how she gets there. That's what she told the police. And you might remember in the interview you saw this morning, that the police were putting the allegations to [the appellant]. And they kept saying that, 'Well, that's what she has told us, that she just wakes up on the veranda.' So the inference is that he has carried her out there or something like that.
In her evidence, she says, 'No, no, no. Well, he woke me up on the couch and - I'm awake. He guides me out.' Interestingly, that's what she said in the triple O call. So in the triple O call, she says that she has woken up on the couch, been guided out there. So I'm not asking for you to work out which one it is. The reason I point out the difference is that it's, I would suggest, quite an important difference. And the story has changed, I would say, quite dramatically, from what she told triple O, then what she tells the police, then what she tells you during the pre‑recording in court. Because, clearly, both can't be true.
It can't be that she has woken up on the couch and she's awake and guided out or she just wakes up outside and doesn't know how she got there. Obviously, one of them is right, perhaps, and one of them is not in terms of what she says. It might also be something you might want to keep in mind that, by her own evidence, whichever version it is that she's saying, she has just been to sleep. So use your own commonsense as to how you may perceive things when you've been in a sleep and you've just woken up.
Directions to the jury
The trial judge commenced her summing-up with standard directions regarding the law, including directions regarding the onus and standard of proof. The trial judge told the jury that they were the judges of the facts, that the facts and evidence were matters for the jury, and that if the trial judge made any observations on the facts the jury were free to disregard those observations.[23]
[23] ts 324, 336 (23 October 2019); ts 318 (24 October 2019).
The trial judge told the jury that the prosecution case depended to a significant extent upon the acceptance of the evidence of SJ and JJ, particularly in relation to counts 1 and 2. She said that in relation to those counts, the jury could only convict the appellant if it was satisfied beyond reasonable doubt as to the truthfulness, accuracy and reliability of the evidence of SJ and JJ.[24]
[24] ts 327 (23 October 2019).
The trial judge then turned to the question of inconsistencies:[25]
[25] ts 327 - 328 (23 October 2019).
Now, I mentioned the issue of inconstancies [sic] to you earlier, and you may recall back on the first day you heard [SJ]. Her evidence was pre‑recorded and there was another lawyer, not Mr Tyers, on that occasion, who was cross-examining her and he suggested that she said something which was inconsistent with her police statement. I will just take you to that evidence, just so that I can illustrate the point. Yes. So at transcript page 33 from 21 February 2019, Mr Lalor said to [SJ]…(emphasis added)
The two incorrect references to SJ, rather than JJ, in the second line and the last line are the first alleged error of fact made by the trial judge. Her Honour recounted the evidence referred to above at [16] ‑ [17] and then continued:[26]
[26] ts 328 (23 October 2019).
Now, something I need to tell you, members of the jury, about police statements: what a witness says in a statement to police is not evidence, because it is said out of court and it's not made on oath. However, you can take into account that a witness has said something on a previous occasion which is inconsistent with their evidence. This might be relevant to an assessment of their credibility and reliability.
Now, members of the jury, it is for you to consider, having regard to all of the factors that I have just mentioned, as to whether there was an inconsistency as [defence counsel] was suggesting in his cross‑examination, and if you do find there to be an inconsistency it is a matter for you as to whether that inconsistency is a significant one and the extent to which that affects your assessment of the credibility of the witness and their reliability.
In relation to the third count, her Honour referred to the date on which that was alleged to have occurred as being 27 June 2018, and then said:[27]
[27] ts 329 (23 October 2019).
And the reason why the State have given specific dates in relation to counts 2 or 3 is that there are other events which tell - the State submits tells you when these things are said to have occurred: for example, [JJ] ringing triple zero the next day; and, on 27 June 2018 or the next day, [SJ] phoning her sister. But in relation to count 1 there's a range of dates.
So the issue of dates does not appear to be in issue, but if you're wondering whether the State has brought along a calendar or a map to prove the dates and the places you don't need to worry about that, because it's not in issue and the State don't have to prove it in any event.
After giving the jury directions as to the elements of the offences, her Honour then gave a direction concerning whether use could be made of the evidence relating to one of the counts involving SJ in relation to the other count involving her. In this regard, her Honour said:[28]
[28] ts 335- 336 (23 October 2019).
I now need to give you a specific direction as to the use that you may make of the evidence in relation to count 3, which is the attempted indecent recording, when you're considering the evidence in relation to the other count concerning [SJ], in relation to count 1. So this direction relates to [SJ] 's allegations only.
Now, if you find [the appellant] not guilty of count 3, ie, you acquit him, you cannot use the evidence you have heard about that count when you are considering count 1. So if you have found him not guilty, you must proceed on the basis that he is innocent of that charge. So evidence on a matter on which you've acquitted him cannot be used by you when you are considering count 1. On the other hand, if you are satisfied beyond reasonable doubt that [the appellant] is guilty on count 3, the evidence in relation to that count maybe relevant to count 1. So you are permitted to consider the evidence on count 3, if you find him guilty of that, along with all of the other evidence to decide whether the State has [proven] count 1 beyond reasonable doubt.
If you find him guilty in relation to count 3, it would be open to you to conclude that [t]he occurrence of that incident increases the likelihood that [the appellant] had committed count 1. Because what the State submits to you is that a finding of guilty on count 3 would establish a propensity or a tendency of [the appellant] to be sexually attracted to [SJ] and to act on that interest in an inappropriate way. So a finding that [the appellant] is guilty on count 3 may well establish that propensity or tendency.
But that is a matter for you to decide. I need to stress that before you could use the evidence in relation to count 3 to establish that [the appellant] has a sexual interest in [SJ], you must be satisfied beyond reasonable doubt that he did have a sexual interest. Also, you cannot use the evidence about count 3 in substitution for evidence of the events relating to count 1. So proof of his guilt on one count must not lead you automatically to a guilty verdict on another count.
And if you think about it, that's right. Because just because he may have committed an offence in relation to one count doesn't automatically make him guilty of the other count. Ultimately, for each count, what you have to decide is whether on the whole of the evidence the state has established beyond reasonable doubt that [the appellant] committed the specific act as alleged in each count. As I have previously directed you, in relation to counts 1 and 3 this would turn on whether [SJ]'s evidence in respect of the act alleged in each count is accepted by you as truthful, accurate and reliable.
I remind you that you cannot convict [the appellant] on any count unless the State has satisfied you beyond reasonable doubt that he has committed the specific act alleged in that count. (emphasis added)
Later in the summing up, the trial judge summarised the evidence of the witnesses. In regard to the evidence of SJ, her Honour said:[29]
[29] ts 319 (24 October 2019).
And in relation to count 3, she said that, on 26 June 2016, it was a Wednesday and a night-time. And she was in the shower which is directly across from her bedroom. She said she was about to get out of the shower and walked out and saw [the appellant's] phone up in the mesh pointing down towards her and she screamed, '[the appellant], what the fuck are you doing?' And then she quickly wrapped a towel around her. She said she could tell it was him, because he was the only one in the house with a black iPhone. And she said the bathroom light was on. So that's said to be count 3. (emphasis added)
The incorrect reference to 26 June 2016 in the first line of that passage (rather than 27 June 2018) is the second alleged error of fact made by the trial judge.
After giving a Longman direction[30] regarding the forensic disadvantages flowing from the delay in the reporting of count 1, her Honour said:[31]
[30] Longman v The Queen (1989) 168 CLR 79.
[31] ts 325 (24 October 2019).
The same considerations do not apply in relation to counts 2 and 3 because in the cases of counts 2 and 3, specific dates were given and there was no delay in [JJ] complaining in relation to count 2 or [SJ] complaining in relation to count 3. So they're matters for you to consider.
A little later, her Honour said:[32]
[32] ts 326 (24 October 2019).
Now, in relation to counts 2 and 3, as you know, the situation is different because [SJ] made an immediate complaint about [the appellant's] conduct soon after the alleged offence the subject of count 3. And she telephoned her sister … to have her pick her up. [JJ] gave evidence that, after the events the subject of count 2, that is, the next morning, she rang triple zero to tell the police. And the State submits to you that you should accept that [SJ] and [JJ] made complaints at the earliest reasonable opportunity.
Later, when summarising the prosecution and defence cases, her Honour referred to the alleged inconsistencies in JJ's account:[33]
[33] ts 331 (24 October 2019).
For example, [JJ's] evidence was that when she was woken up and guided outside, was inconsistent with what she told the police, that she somehow woke up and doesn't know how she got there. The defence submit that in considering [JJ's] evidence, you should bear in mind that she had been to sleep and woken up, and perhaps that had some bearing on her recollections. (emphasis added)
Ground of appeal
There is one ground of appeal. It is as follows:[34]
[34] WAB 11.
The learned trial judge made two material mistakes of fact in her directions which resulted in the jury being misled, affecting verdicts, and resulting in a miscarriage of justice
Particulars
1.The learned trial judge erred in fact by stating that one complainant made a prior inconsistent statement when in fact, it was a different complainant who made the prior inconsistent statement (t 304, 23/10/19).
2.The learned trial judge erred in fact by stating that a complaint, described in count 3 of the indictment, as occurring on 26 June 2016 rather than 27 June 2018 (t 319, 24/10/19).
Appellant's submissions
The appellant submits that the learned trial judge erred by stating that SJ had made a prior inconsistent statement when, in fact, it was JJ who made the prior inconsistent statement. The passage in question is referred to above at [28]. In that passage, her Honour refers twice to SJ when, in fact, the evidence in question was that of JJ.[35]
[35] Appellant's submissions [16] - [18].
The appellant submits that the error of the trial judge deprived him of the opportunity of the jury fully considering the evidence in relation to count 2. It is submitted that the error could have caused the jury to fail to take into account JJ's prior inconsistent statement and its effect on her credibility and reliability. This is said to be a material error because JJ's credibility was critical to count 2.[36]
[36] Appellant's submissions [20], [43] - [44].
The second error relied on by the appellant is referred to in the passage at [32] above. In that passage, the trial judge referred to count 3 having occurred on 26 June 2016, whereas that count was alleged to have occurred on 27 June 2018. The appellant submits that this inaccuracy would have been influential in the minds of the jury. The appellant says that the significance of this error is that if the allegation the subject of count 3 had occurred in 2016 it would have been nearer to the events described in count 2. It is said that this would increase the possibility that the jury may have drawn 'incorrect inferences regarding propensity'. That is, that the jury may more likely have used the evidence in relation to both of counts 2 or 3 in determining whether the appellant was guilty of those two counts. It is submitted that the error was likely to carry significant weight given that it occurred at the conclusion of the trial and came from the trial judge.[37]
[37] Appellant's submissions [25] - [27], [46] - [48].
The appellant says that in each case, the error was highly likely to have had a significant effect on the jury's verdicts and that this amounts to a miscarriage of justice. Further, the appellant says that the cumulative effect of the errors gives rise to a miscarriage of justice.[38]
[38] Appellant's submissions [45], [49], [50].
Respondent's submissions
The respondent submits that there is no reasonable possibility that the trial judge's misstatement, in substituting SJ's name for JJ in the reference referred to at [28], may have affected the verdict and resulted in a miscarriage of justice. Her Honour's reference to SJ instead of JJ in relation to the possible prior inconsistent statement was clearly a linguistic slip. The respondent says that it must have been obvious to the jury what was meant, in the context of several other references made during the trial to the complainants and to the incidents which related to them.[39]
[39] Respondent's submissions [9], [12].
The respondent says that when other references to the evidence of JJ and SJ are taken into account, including in the opening addresses, the evidence, closing addresses and summing up, it would have been obvious to the jury that the trial judge was referring to JJ and that her use of SJ's name was an inadvertent error. Of the three incidents the subject of the three counts, only the incident the subject of count 2 concerning JJ involved a complainant being on a veranda at sometime during the incident. It is also relevant to take into account the whole context of the directions. Significantly, the trial judge correctly referred twice to JJ having claimed that the appellant had taken her outside, including when her Honour referred to inconsistencies relied on by the defence.[40]
[40] Respondent's submissions [10] - [12].
As regards the second error, the respondent submits that it is not a reasonable possibility that her Honour's misstatement may have affected the verdict and resulted in a miscarriage of justice. The respondent again suggests that this was clearly a linguistic slip and that this must have been obvious to the jury in the context of the many other references in the trial to the date on which count 3 occurred, including it being on the indictment, of which the jury had a copy. Further, the respondent says that this misstatement was only made once and that on other occasions in the summing up, the trial judge correctly referred to the date of count 3.[41]
[41] Respondent's submissions [16] - [17].
The respondent does not accept that the jury may have drawn incorrect inferences regarding propensity, and notes that the propensity direction given by the trial judge did not relate to count 2 or to the complainant JJ. The propensity direction only concerned SJ and the cross‑admissibility of evidence relating to counts 1 and 3. Her Honour specifically stated that the propensity direction related only to SJ's allegations and the jury must be assumed to have obeyed this direction.[42]
[42] Respondent's submissions [18] - [19].
In relation to both errors, the respondent notes that no issue was raised about these matters at the trial. This suggests that neither prosecution nor defence counsel considered that these misstatements were of such significance that they raised any possibility of misleading the jury and thus did not warrant correction.[43]
[43] Respondent's submissions [13], [20].
The merits of the appeal
A misdirection as to a matter of fact will not necessarily occasion a miscarriage of justice. In Simic v The Queen,[44] the High Court said:
[44] Simic v The Queen [1980] HCA 25; (1980) 144 CLR 319, 331 - 332 (Gibbs, Stephen, Mason, Murphy & Wilson JJ).
In the case of the facts, the trial judge must tell the jury that the facts are for them, that their verdict must be grounded on the evidence that they have heard, and that although he will review that evidence and make some comments of his own relative thereto they are not bound to accept anything that he may say. The scope for a misstatement of the evidence will often be very wide, and the effect of such misstatement may vary a great deal. It is right and proper therefore that an onus rests upon an appellant to bring himself within s 568 by showing that the misdirection which occurred in the instant case amounted to a miscarriage of justice. Nevertheless, it is putting that onus too high to require it to be shown that it was reasonably probable, rather than possible, that the misdirection affected the verdict. Of course minor inaccuracies and omissions will not be likely to make it possible that the verdict was affected. Bare and remote possibilities may be disregarded, but if it is considered reasonably possible that the misstatement may have affected the verdict and if the jury might reasonably have acquitted the appellant if the misstatement had not been made, there will have been a miscarriage of justice, and a substantial one. In considering a question of this kind, the appellate court must have regard to the gravity of the misstatement as well as to the strength of the case against the appellant.
In the present case, it is apparent that the trial judge made each of the factual errors alleged. The real issue is whether it is reasonably possible that those errors affected the verdict. The significance of the errors must be determined having regard to the trial record as a whole.
As regards the first error, it would have been readily apparent to the jury that the trial judge had mistakenly used SJ's name when referring to the evidence of the inconsistency by JJ. Each of the three allegations involved distinct factual circumstances. The only allegation that involved the complainant waking up after watching movies and being taken outside to the veranda by the appellant was that relating to JJ and count 2. Her Honour referred to these factual circumstances and it must have been apparent to the jury that she was referring to the evidence of JJ. The jury had had the benefit of hearing the evidence of JJ relating to that incident.
There is no reasonable possibility that the first error could have misled the jury, having regard to the following:
1.In the prosecutor's opening address, she referred to JJ falling asleep and being awoken by the appellant.
2.The inconsistency was put to JJ in cross‑examination.
3.In the appellant's evidence, he testified that JJ had been asleep on the couch at the relevant time and that he woke her up to make her go to her room by shaking her shoulder. He said that she got up and went straight to her room.
4.In cross‑examination of the appellant, he was asked about the occasion when he woke JJ and it was put to him that this was the occasion that he touched her breast.
5.In closing, the prosecutor referred to JJ's evidence regarding how she came to be woken up and taken outside.
6.In defence counsel's closing, reference was made to the inconsistency in JJ's evidence between what she told the police and what she said in evidence regarding how she came to be on the veranda.
7.In summing up, the trial judge referred to JJ's evidence and the contrast between that evidence and that of the appellant regarding whether she was taken out to the veranda or went to her room.
8.In the summing up, the trial judge referred to the appellant's evidence that JJ had gone inside to watch a movie and that he woke her up later and that she went straight to her room.
9.In summing up, the trial judge summarised the defence case and in doing so, specifically referred to the defence submission that there were inconsistencies in JJ's evidence regarding how she woke up and came to be on the veranda.
Having regard to the above factors, there is no reasonable possibility in the context of the trial as a whole that the jury could have been misled by the trial judge's error. In particular, there is no reasonable possibility that the jury could have failed to appreciate that the relevant alleged inconsistency was that of JJ and not SJ.
As regards the second error, that must be seen in the context that the jury had a copy of the indictment from the beginning of the trial.[45] The indictment clearly stated the date of the third count as being 27 June 2018. At the commencement of the trial, the appellant was arraigned and that date was properly stated. In the context of the trial as a whole, it would have been obvious to the jury that the misstatement complained of was a mere linguistic slip.
[45] ts 161.
There is no reasonable possibility that the second error could have misled the jury, having regard to the following:
1.In the prosecutor's opening address, there are repeated references to count 3 having occurred in 2018.
2.In SJ's evidence, she testified that the incident in question happened on 27 June 2018. A transcript of the pre‑recording conducted with SJ was provided to the jury at the conclusion of the trial.
3.In the evidence of CM, SJ's mother, she testified as to what she saw and heard of the incident the subject of count 3. The questioning in that regard was put on the basis that the incident occurred in 2018.
4.In cross‑examination of CM, defence counsel put questions regarding the telephone incident (count 3) on the basis that it occurred on 27 June 2018.
5.The older sister of the two complainants gave evidence as to what she was told by SJ following the incident in 2018.
6.The police investigating officer confirmed that she had obtained a statement from SJ on 28 June 2018 and that SJ had reported that the incident had occurred the night before. An interview was then conducted with the appellant on 28 June 2018.
7.In the appellant's police interview, which occurred on 28 June 2018, the incident relating to count 3 is referred to as having occurred 'last night'.
8.In the appellant's evidence, he was asked about the incident relating to count 3 on the basis that this incident occurred on 27 June 2018.
9.In cross‑examination of the appellant, he confirmed that he was interviewed by the police in 2018.
10.In the prosecutor's closing address, she referred to the incident relating to count 3 as having occurred in 2018.
11.In defence counsel's closing address, the count 3 incident is referred to as having occurred on 27 June 2018.
12.The jury asked a question regarding why the appellant was not charged in 2016 and why he continued living with the family until 27 June 2018.
13.In summing up, the trial judge told the jury that the date was not an element of the offences and twice specifically referred to 27 June 2018 as the date of count 3. Her Honour also stated that the dates of the offences were not in issue and the real question was whether the appellant attempted to indecently record SJ. Her Honour refers to the fact that the appellant spoke to the police in 2016 in response to JJ's allegation and then again in 2018 in response to SJ's complaint about count 3.
14.In summarising the evidence, the trial judge referred to the older sister having received a message from SJ on 27 June 2018 and that the appellant was interviewed on 28 June 2018. Her Honour also referred to the date of that interview when providing the jury with a transcript of it.
Having regard to the context of the trial as a whole, there is no reasonable possibility that the jury could have been misled by the trial judge's error into thinking that count 3 occurred in 2016, rather than 2018. It would have been apparent to the jury that her Honour's reference to 2016 in respect to count 3 was a mere slip of the tongue.
The suggestion that the error as to the date could have led the jury to engage in propensity reasoning in respect of counts 2 and 3 is entirely speculative. There was no suggestion at the trial that propensity reasoning was available in respect of the two complainants, that is in respect of counts 2 and 3. The propensity direction given by the trial judge was specifically stated as referring only to counts 1 and 3. To have engaged in some form of propensity reasoning in relation to counts 2 and 3 would have been contrary to the direction given by the trial judge.
The appellant suggested that the present case is similar to that of Simm v The Queen.[46] In that case the prosecution case was that the appellant had taken part in a home invasion with others for the purpose of committing an armed robbery. During the home invasion a co‑offender stabbed an occupant of the house with a knife. The appellant's defence was that, though he admitted entering the house and stealing money, he believed the occupants of the house would be away and, thus, bore no responsibility for the stabbing. The prosecution case against the appellant depended critically on admissions allegedly made by the appellant, including that he had seen a woman through a window before entering the house. The witness to whom the admissions had been made did not give evidence regarding the appellant having seen a woman in the house. Notwithstanding this, the trial judge, in summarising the evidence told the jury that such evidence had been given and said that it was of importance because it was evidence that could confirm that the appellant knew that there was someone in the house before entering. On appeal Malcolm CJ (with whom Pidgeon J agreed) said that the error went to a critical issue in the trial and resulted in a miscarriage of justice.
[46] Simm v The Queen [2001] WASCA 79.
There is no meaningful similarity between Simm and the present case. In Simm the trial judge told the jury that evidence had been given that had not in fact been given. That evidence was material to a critical issue in the case. The error in that case had a real capacity to influence the verdict. In comparison, the errors in the present case were clearly linguistic slips and would have been so understood by the jury.
It is relevant to note that neither prosecution nor defence counsel saw fit to raise the factual errors with the trial judge. That suggests that they were either so fleeting and inconsequential that they were not noticed, or that they were considered to be obvious linguistic slips that were not apt to mislead the jury. Whilst the failure of counsel to raise an issue of this type is not fatal to the ground of appeal, it is a matter that lends further support to the conclusion that the errors were not material.
Conclusion
There is no merit in the ground of appeal. The errors made by the trial judge were not material in that there is no reasonable possibility that they could have affected the verdict. No miscarriage of justice has been established.
The extension of time should be refused, leave to appeal refused and the appeal dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AZ
Associate to the Honourable Justice Hall
6 APRIL 2023
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