GAH v The State of Western Australia
[2010] WASCA 81
•4 MAY 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: GAH -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 81
CORAM: PULLIN JA
BUSS JA
JENKINS J
HEARD: 18 MARCH 2010
DELIVERED : 4 MAY 2010
FILE NO/S: CACR 105 of 2009
BETWEEN: GAH
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :WAGER DCJ
File No :IND 203 of 2009
Catchwords:
Criminal law - Appeal against conviction - Question from jury after they had retired to consider their verdicts - Whether trial judge's answer occasioned a miscarriage of justice - Turns on own facts
Legislation:
Nil
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr S B Watters
Respondent: Ms J D Whitbread
Solicitors:
Appellant: Anthony Hughes & Co
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Nil
PULLIN JA: I agree with Buss JA.
BUSS JA: The appellant was convicted on 14 July 2009, after a trial in the District Court before Wager DCJ and a jury, on five counts in an indictment.
Each of counts 1, 2 and 3 alleged that on an unknown date between 1 January 2005 and 18 December 2005 the appellant indecently dealt with D, a child under the age of 13 years, by touching his penis, contrary to s 320(4) of the Criminal Code (WA).
Count 4 alleged that on an unknown date between 1 January 2007 and 31 December 2007 the appellant sexually penetrated K, a child under the age of 13 years, by digitally penetrating her vagina, contrary to s 320(2) of the Code.
Count 5 alleged that on an unknown date between 23 March 2008 and 19 May 2008 the appellant again sexually penetrated K, a child under the age of 13 years, by digitally penetrating her vagina.
The complainant D, a boy, was born on 28 January 1996. At the time of the offending against him, he was aged 8 or 9 years. The complainant K, a girl, was born on 28 August 1996. At the time of the offending against her, she was aged 10 or 11 years.
The appellant appeals to this court against his conviction.
An overview of the offending, the trial and the appeal
The offences involving D occurred in 2005 at D's grandmother's house while D was staying with her. At the material time, the appellant was in a relationship with the grandmother's niece, A. He would on occasions visit the grandmother's house.
The offences involving K occurred in 2007 and mid‑2008. K is the daughter of A. Count 4 occurred at A's home. Count 5 occurred at the appellant's home after the termination of his relationship with A.
The evidence of each of D and K comprised a video‑recorded interview in 2008. After some questions and answers comprising evidence‑in‑chief, each of them was cross‑examined.
The appellant gave evidence at the trial in his own defence. He denied each of the allegations within counts 1 ‑ 5.
D did not make a reasonably prompt complaint in relation to the offending against him. The trial judge gave the jury a direction about this delay. She warned the jury that they should scrutinise D's evidence carefully. They should take into account that the events in question allegedly happened four or five years previously, and D did not complain until one year previously (ts 231 ‑ 232).
K did not, however, delay to any material extent in making complaint. Counsel for the appellant accepted, correctly, that no direction was required in relation to K's evidence comparable to the direction given about D's evidence.
The appellant does not appeal against the adequacy of the trial judge's summing up. His appeal concerns the manner in which her Honour dealt with a question from the jury after they had retired to consider their verdicts.
The ground of appeal
The sole ground of appeal alleges that the trial judge erred both in law and in fact, and there was a miscarriage of justice, when she failed adequately to deal with and answer the question from the jury. The particulars of the ground read:
a)after retiring to consider their verdicts the jury returned with a question ('the question');
b)counsel were divided as to how the question should be answered;
c)her Honour did not clarify with the jury what the question intended or what they required;
d)her Honour determined to deal with the question by answering it 'yes';
e)such an answer was detrimental to the Appellant concerning the charges involving [D];
f)the proceedings were a joint trial and, as such, any adverse finding as to the Appellant's credit in relation to [D] would impact upon the jury's reasoning concerning [K];
g)the question required a further direction and a fuller answer from her Honour than the one given.
On 5 October 2009, Wheeler JA ordered that the application for leave to appeal be referred to the hearing of the appeal.
The jury's question
The jury's question was this:
Your Honour, we recollect that it is 'unsafe' to convict the accused based on [D] and [K's] evidence alone. Can you please clarify if we hold that [D] and [K's] evidence is honest, reliable, accurate and credible beyond reasonable doubt that this is enough to base our verdict on? (ts 280).
After reading the question to trial counsel in the absence of the jury, her Honour indicated that she proposed to answer the question, as follows:
If you have scrutinised the evidence of [D] carefully in light of the warnings I gave you in relation to the length of time between the allegation and when [D] made his complaint and [D's] young age at the time of the alleged offence and the circumstances surrounding [D's] allegations and you are satisfied beyond reasonable doubt in relation to the reliability, accuracy and credibility of [D's] testimony then that would be enough to base your verdict on.
In relation to [K], if having considered and scrutinised the evidence you are satisfied beyond reasonable doubt of the honest [sic], reliability, accuracy and credibility of her evidence beyond reasonable doubt then that would be enough to base your verdict on (ts 280).
The trial judge then invited submissions from trial counsel. The prosecutor submitted that the jury's question should merely be answered 'yes' (ts 280 ‑ 282). Defence counsel submitted that the answer proposed by her Honour was 'more appropriate' (ts 282).
After discussion between the trial judge and trial counsel, the jury returned and her Honour gave these instructions:
Now, I've received a question from you. And it reads:
Your Honour, we recollect that it is 'unsafe' to convict the accused based on [D] and [K's] evidence alone. Can you please clarify if we hold that [D] and [K's] evidence is honest, reliable, accurate and credible, beyond reasonable doubt, that this is enough to base our verdict on?
And the answer to that question is, yes. So I'll repeat your question and my answer, so that it's clear to you. So your question is this:
We recollect that it is 'unsafe' to convict the accused based on [D] and [K's] evidence alone. Can you please clarify if we hold that [D] and [K's] evidence is honest, reliable, accurate and credible, beyond reasonable doubt, that this is enough to base our verdict on?
And the answer to that question is, yes. So if you could now please retire and continue with your deliberations? (ts 285).
The ground of appeal: the appellant's submissions
Counsel for the appellant conceded that the trial judge's answer, 'yes', was 'arguably advantageous' to the appellant in relation to K's evidence. However, the answer was inadequate in relation to D's evidence. Her Honour should have answered the question in the manner she originally proposed.
By merely responding 'yes', there was a danger, according to counsel for the appellant, that her Honour 'effectively withdrew' from the jury's consideration the earlier warning she had given them in her summing up; in particular, there was a danger the jury may have overlooked her Honour's warning based on D's delay in making complaint.
Counsel for the appellant argued that the trial judge should have clarified with the jury 'exactly what was intended by their question and what information they desired to receive'.
It was submitted that her Honour's alleged error in answering the question gave rise to a miscarriage of justice in relation to the counts concerning K as well as those concerning D.
Counsel emphasised that the appellant denied committing any of the offences. Although the question and the answer 'assisted the appellant regarding [K]', it could not safely be concluded that the inadequate answer in relation to D did not impact upon the manner in which the jury arrived at all of their verdicts. According to counsel, her Honour's failure to clarify the jury's question before answering it gave rise to a risk that the jury may have used impermissible reasoning in arriving at their verdicts. The impermissible reasoning was said to be:
Because he committed the offences on [D], he must have committed the offences against [K].
The ground of appeal: its merits
The trial judge gave the jury a direction in conventional terms on the burden and standard of proof. She also gave them the orthodox instruction to consider each count in the indictment separately, as follows:
When you're considering one charge, consider only the evidence that is relevant to that charge and your verdicts don't have to be the same on each charge. You can find an accused guilty of one and not guilty of others, guilty of them all, not guilty of them all. It's a matter for you, but you cannot find an accused guilty of an offence with which he's been charged unless evidence has been led in this court that satisfies you beyond reasonable doubt that he committed the charge (ts 227).
The trial judge directed the jury to scrutinise carefully the evidence of D. Part of this direction reads:
So how do you consider that evidence then in light of the burden of proof being on the State and the presumption of innocence? Well, the position is that you must be satisfied beyond reasonable doubt about the truthfulness and the accuracy of the evidence of [D] when it comes to the particular accusation before you could convict [the appellant] in relation to that particular offence.
Because of the crucial nature of [D's] evidence and because of the seriousness of the allegation he makes, you should scrutinise his evidence carefully. Now, at law you should take into account that these events allegedly happened four or five years ago and he made the complaint [one year] ago (ts 231 ‑ 232).
The trial judge also directed the jury to scrutinise carefully the evidence of K. This direction reads:
So the position is that you must be satisfied, beyond reasonable doubt, about the truthfulness and of the accuracy of [K's] evidence in relation to the allegation that comprises the charge before you could convict [the appellant] of the charge. Because of the crucial nature, in this case, of her evidence and the seriousness of the allegations that she's made, you should scrutinise her evidence carefully.
If after scrutinising that evidence, and bearing in mind the matters that may impact upon her reliability, and these are the matters that [counsel for the appellant] has raised, both in cross‑examination and when he spoke to you at the end of the trial, such as her delay in making a complaint, her ongoing relationship with [the appellant], being an affectionate one; matters of that type. So you've got to bear [sic] all of those into account and determine whether they have any impact on her reliability. And if at the end of your consideration you are satisfied, beyond reasonable doubt, in relation to her truthfulness and her accuracy then you're quite at liberty to act on her evidence and to convict [the appellant].
But of course you would only do that if you were satisfied, beyond reasonable doubt, that the State had proven the charge (ts 255).
The trial judge went further in her directions in respect of D because of the extent of his delay in making complaint. She directed the jury that it would be 'unsafe to convict' on his unsupported evidence unless, having scrutinised his evidence with great care, they were satisfied beyond reasonable doubt as to its truth and accuracy (ts 232 ‑ 233).
The jury's question was transmitted to the trial judge after they had been considering their verdicts for about two and a half hours. The debate between her Honour and trial counsel concerned how the question should be answered. Neither the prosecutor nor defence counsel intimated that the question or its meaning was attended by any doubt.
The jury's question wrongly assumed that the trial judge's 'unsafe to convict' direction, which had been made in relation to D only, applied to both D and K. Her Honour's answer, 'yes', was therefore unduly favourable to the appellant in relation to the counts of alleged offending against K.
The critical issue in the appeal is whether the trial judge's answer to the jury's question occasioned a miscarriage of justice. It is irrelevant to the determination of this issue whether the answer her Honour originally proposed was better than or preferable to the answer she ultimately gave.
In my opinion, the trial judge's answer to the jury's question did not prejudice the appellant and did not give rise to a miscarriage of justice, as alleged in the ground of appeal. A more elaborate answer was not required to avoid detriment to the appellant.
It is fanciful to suggest that her Honour 'effectively withdrew' from the jury's consideration the warning about D's evidence that she had given in her summing up. There was no reasonable prospect that, as a result of her Honour's answer to the question, the jury may have overlooked this warning.
The jury's question was clear and unambiguous and, in those circumstances, it was unnecessary for the trial judge to clarify the question or make further inquiry of them.
It is also fanciful to suggest that the trial judge's answer may have given rise to a risk that the jury may have used impermissible reasoning in arriving at their verdicts. On no reasonable view could her answer have suggested to the jury that they could reason that if they were satisfied beyond reasonable doubt that the appellant had committed the offences against D, then he must necessarily have committed the offences against K. As I have mentioned, the answer was, in fact, unduly favourable to the appellant in relation to the counts of offending against K.
Conclusion
The ground of appeal is devoid of merit. I would therefore refuse leave to appeal and order that the appeal be dismissed.
JENKINS J: I agree with Buss JA.
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