Gasper v The State of Western Australia - [2009] WASCA 218

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: GASPER -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 218

CORAM: WHEELER JA
PULLIN JA
BUSS JA

HEARD: 12 NOVEMBER 2009

DELIVERED : 9 DECEMBER 2009

FILE NO/S: CACR 50 of 2009

BETWEEN: CHRISTOPHER JUDE GASPER
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :SCOTT DCJ
File No  :IND 1021 of 2008

Catchwords:

Criminal law - Sex offences against a child - Prosecutor asked accused whether he said the complainant was lying - Question improper - No objection to question in that form - No ruling by the trial judge - Whether a miscarriage of justice occurred

Legislation:

Nil

Result:

Extension of time in which to appeal granted
Leave to appeal granted
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr S B Watters
Respondent: Mr P D Yovich

Solicitors:

Appellant: Thames Legal
Respondent: Director of Public Prosecutions (WA)

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

Oblak v The State of Western Australia [2007] WASCA 176
Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1
R v Foley [2000] 1 Qd R 290
R v Leak [1969] SASR 172
R v Soma (2003) 212 CLR 299

WHEELER JA: I agree with Pullin JA.
PULLIN JA: This is an appeal against conviction. The appellant was 19 days late in filing the appeal and an extension of time is sought. The application for leave to appeal has been referred for hearing with the hearing of the appeal.
The appellant was convicted after trial before a District Court judge and a jury of charges that:
(1)On a date unknown between 1 June 2007 and 31 July 2007 at North Perth, Christopher Jude Gasper indecently dealt with [the complainant], a child under the age of 13 years, by touching her vagina.
(2)On the same date and at the same place as Count 1, Christopher Jude Gasper sexually penetrated [the complainant], a child under the age of 13 years, by engaging in cunnilingus.
(c)On the same date and at the same place as Count 1, Christopher Jude Gasper indecently dealt with [the complainant], a child under the age of 13 years, by ejaculating in her presence.
The female complainant was 6 years old when the offences were committed. The appellant was acquainted with the complainant's mother. He acted as the babysitter of the complainant and the complainant's three other siblings while their mother went to work. He babysat three or four times and during one of these occasions the offences were committed.
The complainant and her brothers were asleep on mattresses on the lounge floor. The appellant carried her to her mother's room and put her on her mother's bed. She woke up when she was being carried. The offences were then committed. The complainant told her mother about the incident soon after it occurred.
The complainant gave evidence before the trial and this was recorded by video on 11 September 2007. The video was played to the jury at the trial on 13 January 2009. The appellant was interviewed by the police and he denied committing the offences. When the complainant gave evidence, the appellant was represented by counsel. Towards the end of cross‑examination, it was put by counsel for the appellant to the complainant, that one of her brothers 'made up the story about what [the appellant] was supposed to have done'. The complainant agreed. In re‑examination the complainant was asked whether the brother told her to 'make up those three rude things or did they actually happen?' and the complainant said 'They actually happened to me' and she said that she

could not remember what story the brother told her to make up. The complainant gave evidence that her brother said they should get some tools and hurt the appellant. At the trial the appellant gave evidence denying that he committed the offences.

In his record of interview, the appellant said that a male friend was present on the first night that he acted as babysitter. In his evidence, but not in his video record of interview, the appellant testified that the male friend had been present with him at the complainant's house on the first and second occasions on which the appellant acted as babysitter. The male friend testified that he provided a statement to the police about a month before the trial. He testified that he attended at the house on a Friday night. The complainant gave evidence that the male friend was not present 'when the three rude things happened to her'.
The transcript of cross‑examination of the appellant reveals the following exchanges between pages 84 to 89:
How many nights did you - how many times did you babysit the children or which you were paid by [the complainant's mother]‑‑‑I babysat the children, with payment, one night; and that was the second night.
[The complainant's mother], in her evidence said that she paid you $185 for two nights; two babysitting‑‑‑Yes, that's right. I heard that yesterday and I claim that to be a lie.
Well, so the only person who's telling the truth is you, is it‑‑‑At this point, yes, ma'am.
CHONG, MS: Right. Is [the complainant] telling a lie, too‑‑‑I don't know‑‑‑
VICKRIDGE, MR: Sorry, just one ‑ ‑ ‑
SCOTT DCJ: One moment, please, Mr ‑ ‑ ‑
VICKRIDGE, MR: I think you can't just throw the net out and hope to catch a fish. I mean, there's got to be quite a specific question.
SCOTT DCJ: I agree, and Ms Chong, it's not about catching fish, just simply, if you want to ask this witness as to whether the complainant's telling a lie about something, then you need to put it specifically to him.
CHONG, MS: Right. Right. You have heard the allegations of [the complainant]‑‑‑Yes.
That you touched her fanny with your hands‑‑‑Mm hm.
That you licked her vagina with your tongue and that you masturbated and ejaculated on your stomach. Is she telling a lie in respect of each of those acts‑‑‑I know I didn't do that, ma'am, but I cannot call that girl a liar; it's not my place to call her a liar. I believe‑‑‑
You just called Ms B a liar‑‑‑I believe - I believe she is making the stories up because somebody has enticed her to do so but I know I did not do that, ma'am, and I won't call a six‑year‑old girl a liar because I don't believe she is telling lies, I believe somebody has enticed her to do that, ma'am.
But you are prepared to call her mother, Ms B, a liar‑‑‑I am prepared to call the mother a liar because I have got occasions where she has come and she has given - and outright lied to me - lied to me, so I know the lady is a liar.
Right because Ms B said she paid you for the Thursday night and Friday night babysitting, $185‑‑‑I heard her say that last - yesterday in court and I claim that to be a lie, ma'am.
And she paid you $150 for the third occasion when you babysat the children‑‑‑?‑‑‑I agree she paid $150 for the second night that I - that I babysat, because the second night, that was the official night she asked me to babysit for that amount. The first night I babysat, I was almost babysitting by default because she told us she was only going to go out for a little while and she was going to be right back and she never came back for ‑ ‑ ‑
CHONG, MS: So how many times did you baby sit the children‑‑‑Twice, ma'am.
Twice, and you are telling members of the jury that you did it as a freebie the first time‑‑‑The first - well, actually, it wasn't even a freebie, ma'am. We were actually just lumbered with it. We did not even have a choice on whether‑‑‑
So was - was [the male friend] there when Ms B left for her work‑‑‑He was - that's right. We were just left with the children with the thought that she was going to be back in a little while; and the lady did not come back till the next morning, ma'am.
And again, I'm telling you, Mr Gasper, I'm putting to you that you are simply making it up‑‑‑Well, I'm afraid, ma'am, I'm telling you that I am not making it up, ma'am.
…
CHONG, MS: I'm putting to you that's what [the complainant] said to‑‑‑‑‑‑Well, I'm saying it's wrong, ma'am.
Sorry‑‑‑I'm saying that that is wrong, ma'am.
That [the complainant] is lying‑‑‑That is - well, I - I'm not saying that she's lying but what you are stating to me is wrong, ma'am. I do not believe that is what happened.
Well, I'm putting to you what [the complainant] said to the police‑‑‑Well, I'm putting it back to you, ma'am, that that is wrong. I did not do that.
All right. You are denying that you picked up [the complainant] from the mattress and took her to her mother's room‑‑‑Yes, ma'am. I am denying that, yes.
And I am putting to you that once you got to her mother's bed, you placed her on the bed and you asked her to remove her pyjamas‑‑‑Mm hm.
What do you have to say to that‑‑‑I say that is fabrication.
By [the complainant]‑‑‑Whoever has made it up. If she has said that, yes.
So you're saying that [the complainant] fabricated that allegation‑‑‑I'm afraid so.
[The complainant] also told the police that you got her to take off her knickers‑‑‑Under what enticement, I don't know, but apparently so.
What do you mean‑‑‑As I said, I do not know what enticement the girl had to be able to describe that to be able to tell the police, but I wasn't there so I cannot answer that, ma'am.
You heard [the complainant]. You saw and heard what [the complainant] said to the police officer, didn't you‑‑‑Yes, I didn't hear her say that I took her pants off.
She never said that you took her pants off. She said you got her to take her pants and knickers and pyjamas off‑‑‑So she - so she's saying she took her own pants off for me?
You got her to take her pants and pyjamas off‑‑‑In what manner?
A little further on the following interchange occurred:
Right. What I'm putting to you is that on one of the occasions that you babysat the children, you took [the complainant] to her mother's bed and once she was in the bed you got her to take off, first of all, her pyjamas, correct‑‑‑No.
CHONG, MS: Then her undies - her knickers, correct‑‑‑Are you asking me if I got that? No, ma'am, I didn't do that.
And you took your own clothes off‑‑‑No, ma'am, I didn't do that.
You placed her face up on her back where her face was looking up into the ceiling‑‑‑I can understand your description but that's not what I did, ma'am, no.
So are you saying that [the complainant] was lying‑‑‑If that's what I have to say that I didn't do it, yes, ma'am. I did not do it and I would say whoever is making these accusation is lying, yes.
Well, that's [the complainant] making the allegations so you are saying that [the complainant] is lying‑‑‑‑‑‑The girl is lying. Yes, ma'am.
‑ ‑ ‑ so far as she has told the police I put to you‑‑‑Yes, I believe she's fabricated it against me.
She's fabricated it against you, right. You got on well with [the complainant] on the occasions that you babysat her‑‑‑I would like to have thought I got on well with all the children.
Right. You didn't punish [the complainant] on any of the occasions‑‑‑‑‑‑I didn't punish any of the children. I am fair and I have a set of rules that I work in with children where everybody knows their boundaries and we had a good time inside of that boundaries.
Right, and you are saying that out of the blue, [the complainant] goes to the police and makes these lies up against you‑‑‑Well, as we heard on the tape, ma'am‑‑‑
SCOTT DCJ: Mr Gasper, one second. Ms Chong, I'm concerned about the format of that question. You're asking this man to speculate upon the reasons why [the complainant] may have made a complaint to the police and I don't consider that to be a proper question. I think you can ask him, of course, whether or not what [the complainant] alleges in her evidence or to the police is accurate so far as he's concerned or whether he did it, but not to speculate on why she may have made these assertions.
CHONG, MS: Thank you.
The single ground of appeal reads:
1.The learned trial Judge erred in law and in fact when he permitted the prosecutor to ask an inadmissible question of the Appellant such that there was a miscarriage of justice;
Particulars of question:
a)The prosecutor asked the Appellant [see pages 84 to 89 of ts] if the complainant was lying.
Counsel for the appellant in the oral submissions said that the ground of appeal should be understood as a complaint about each question in which the prosecutor asked the appellant if he said that the complainant was lying. The ground alleges that this involved an error of law. However, there was no relevant objection to the questions asked by the prosecutor and no ruling by the trial judge that the questions could be asked. As a result, there was no 'wrong decision on a question of law by the judge'. See s 30(3)(b) of the Criminal Appeals Act 2005; and therefore no error of law. If there was any basis for complaint it had to be that a miscarriage of justice occurred. See R v Soma (2003) 212 CLR 299 [42] per McHugh J; Oblak v The State of Western Australia [2007] WASCA 176 [4] and [6] per Buss JA.
Despite being asked by the court if this was the point the appellant wished to pursue, counsel for the appellant did not seek to amend the ground of appeal to allege miscarriage of justice. Nevertheless, during his oral submissions he put that the questions gave rise to a miscarriage of justice and this was the point addressed by counsel for the respondent. It is therefore appropriate to address the issue as to whether there was a miscarriage of justice.
Prosecution counsel should not have asked the appellant whether he said that the complainant was lying. There are numerous reasons why not. First, the questioning of a witness about whether another witness is lying is an attempt to obtain an opinion about whether that other witness is lying. Such an opinion is not a matter for the witness, but a matter for the jury: R v Foley [2000] 1 Qd R 290, 297 and R v Leak [1969] SASR 172, 173. Secondly, the question is also unfair because it forces a witness into recrimination and seeks to rely upon the natural reluctance of some people to defame another: Foley's case at 297. Thirdly, to ask a witness whether another witness is lying may be ambiguous and put the cross‑examiner and witness at cross purposes. This is because while the word 'lie' in ordinary meaning is an intentional untruth, it may also mean a falsehood. See 'lie': Macquarie Dictionary.
It is also impermissible for a prosecutor to cross‑examine an accused to have the accused admit that they cannot prove or suggest any ground for imputing to the complainant a motive to lie. This is impermissible because it amounts to a suggestion that the jury should accept the complainant's evidence unless some positive answer is given by the accused: Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1 [8]; and because it risks impermissibly diminishing the standard of proof or shifting the onus of proof: Palmer [9] and [100].
Counsel for the respondent, appearing on this appeal, acknowledged that the questions should not have been asked. However, as the respondent correctly submitted, that is not the end of the matter. The question which has to be answered is whether or not, in all the circumstances of the case, there was a miscarriage of justice. There are a number of aspects or circumstances of this case which bear upon that question and which lead me to the conclusion that there was, in context, no miscarriage of justice.
The first circumstance is that there was evidence which provided a basis for the jury to draw a conclusion that the complainant had given deliberately false testimony about the acts which constituted the offences. In cross‑examination the complainant said that her brother wanted to hurt the appellant and that he had made up the story about what the appellant was supposed to have done. It was open to the jury to infer that the complainant was deliberately giving false testimony by relaying this made up story. The fact that there was later evidence retracting what may be inferred from this evidence does not matter. The fact is that there was some material which may have allowed the jury to conclude that it had reasonable doubt about the accuracy of the complainant's testimony and that the complainant had a motive for and did give false testimony. It was in order for the complainant to be cross‑examined about a motive for lying. See Palmer [7].
The second circumstance of importance is that the appellant himself, without any prompting, commented on another witness's evidence (that of the complainant's mother) by stating that something she said was a 'lie'. The prosecutor was then unfortunately drawn into an exchange with the appellant, asking him (using his word) whether the complainant was also telling a 'lie'. This was objected to by counsel for the appellant, not by reason that it was wrong to ask the appellant if the complainant was lying, but because of the perceived generality of the question. The trial judge agreed that the question was too general. The prosecutor then, instead of asking whether the appellant admitted the truth of what the complainant said, asked whether the complainant was lying. Then, when the prosecutor (properly) asked the appellant what he had to say about the complainant's evidence that he had placed her on the bed and asked her to remove her pyjamas, the appellant himself volunteered that that evidence was a 'fabrication'. The prosecutor was entitled to clarify that answer and when she asked the appellant whether he was saying that the complainant had fabricated the allegation, he said that he was 'afraid so'. The appellant was also asked about the complainant telling the police that the appellant got the complainant to take off the complainant's 'knickers'. He answered

'under what enticement I don't know but apparently so'. It is clear therefore, that while the prosecutor should have resisted using the word 'lie', it is evident that she was drawn into doing that because of the appellant's language. Associated with this circumstance is that the appellant's counsel did not object to the questions.

The third circumstance of note is that after some further questions from the prosecutor asking whether the complainant was lying about details of her evidence, she eventually asked the appellant 'Right, and are you saying that out of the blue [the complainant] goes to the police and makes up these lies up against you'. The trial judge then intervened, said that he was concerned about the format of the question, and told the prosecutor that she was asking the appellant to speculate upon the reasons why the complainant may have made up a complaint to the police. His Honour said that he did not consider that to be a proper question. By this intervention the trial judge made it clear to the jury that an attempt to have the appellant speculate on why the complainant may have made up the assertions, was impermissible. Before this court, the appellant's counsel accepted that his Honour's intervention was appropriate and adequate, and that it was unnecessary for his Honour to say anything further on the matter (appeal ts 10 ‑ 11, 13).
The fourth and final circumstance is that in summing up, the trial judge gave a clear Liberato direction and impressed on the jury that they must not speculate about any aspect of the case. His Honour directed the jury in conventional terms about the presumption of innocence and that the onus or burden of proof never shifted to the appellant. Counsel for the appellant did not seek a redirection.
In Foley's case at 297 the court pointed out that during trials, errors commonly occur without impairing the fairness of the trial. In this case I am satisfied that the questions which were asked in the circumstances set out above did not impair the fairness of the trial. There was no miscarriage of justice. I would grant an extension of time, grant leave to appeal, but would dismiss the appeal.

BUSS JA: I agree with Pullin JA.