GST v The State of Western Australia - [2009] WASCA 56

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: GST -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 56

CORAM: PULLIN JA
BUSS JA

HEARD: 5 FEBRUARY 2009

DELIVERED : 3 MARCH 2009

FILE NO/S: CACR 92 of 2008

BETWEEN: GST
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :WHEELER JA
File No  :CACR 92 of 2008
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :SIMMONDS J
File No  :IND 1031 of 2007

Catchwords:

Criminal law and procedure - Appeal - Reasonable prospect of success - Review of judge's decision to refuse leave

Criminal law and procedure - Palmer direction

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

Appellant: Mr S B Watters
Respondent: No appearance

Solicitors:

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

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

Gassy v The Queen [2008] HCA 18; (2008) 82 ALJR 838
Keating v The State of Western Australia [2007] WASCA 98; (2007) 35 WAR 1
Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1
R v E (1996) 39 NSWLR 450

REASONS FOR JUDGMENT OF THE COURT: This is an application by the appellant pursuant to s 61(3) of the Supreme Court Act 1935 (WA) seeking an order setting aside the decision of Wheeler JA refusing leave to appeal on the single ground of appeal advanced against the convictions recorded against the appellant. The convictions were on five counts of indecent dealing, one charge of attempted indecent dealing and three counts of sexual penetration without consent. The convictions were recorded by Simmonds J after a trial before a jury.
An application under s 61(3) is by way of rehearing, but it is not a hearing de novo and error on the part of the single judge of appeal whose decision is under review must be shown: Keating v The State of Western Australia [2007] WASCA 98; (2007) 35 WAR 1 [21]. Wheeler JA decided that the single ground of appeal had no reasonable prospect of succeeding. Whether an individual ground does or does not have a reasonable prospect of succeeding is one on which reasonable minds may differ, but the test is an objective one. Consequently, if, on reviewing the decision of the single judge of appeal, the Court of Appeal assesses the ground differently than the single judge, finding that there is a reasonable prospect of success, the likelihood is that the court will conclude that there was an implied error, even if no express error is found, and that would entitle the court to set aside or vary the decision of the single judge. See Keating [23].
The charges all involved the appellant's natural daughter, who was about 13 or 14‑years‑old at the time of the offences. (The complainant's evidence was given via two video‑recorded interviews with prosecuting authorities and her cross‑examination was pre‑recorded on video. So too was the evidence of two other young witnesses. The appellant did not give, or adduce, any evidence in his defence, but two video records of interview of the appellant were tendered at trial by the prosecution. These contained inculpatory and exculpatory material.)
In summing up, the trial judge referred to the prosecution evidence and the video‑recorded evidence. The trial judge explained to the jury the different roles of the judge and jury and explained that it was for the jury to evaluate the evidence; gave some observations about the process of evaluation and some things to which they should have regard; said that the jury must take a calm, dispassionate, analytical approach to the evidence; discussed the significance of demeanour and that they could accept some, all or none of a witness's evidence; explained that they could consider the extent to which it 'jelled' with other evidence and to assess whether the story the witness was telling was believable and credible in itself; discussed the evidence of the complainant; and gave directions about the burden and standard of proof.
In what his Honour called part 2 of the summing up, directions were given in relation to the content of the charges and about the legal meaning of the words used in them, along with directions about accident, attempt and circumstantial evidence. Having completed part 2, his Honour then said (AB 114; ts 295):
I have concluded part 2 and you will be relieved to know the bulk of my remarks to you in my summing up. I now turn to some comments on the evidence and I remind you that these comments are to assist, if they do assist only. They are in exactly the same category as the comments of both counsel. I'm not directing you here, although I will remind you of some directions and I will indicate to you when I am doing it.
The judge then reminded the jury of the burden and standard of proof; referred again to the evidence of the complainant and said that her evidence was central to the case; reminded them that he had already referred to matters in relation to her credibility, trustworthiness and reliability by reference to when she first complained and how she complained of matters in relation to the case. His Honour then said (AB 114; ts 295):
There are of course other matters relating to her credibility, you may think. These go to the way in which she responded to what was put to her by her friend [JD], the way in which the detail of what occurred she said on the various occasions which are the subject of the charges here emerged in exchanges with the school psychologist and exchanges, as you will have seen them, in the video records of interview at the child investigation unit on 2 February 2007 and 18 February 2007.
You will consider whether the emerging detail emerged as a response to requests which she progressively felt better able to reply to or whether in fact she was echoing back or otherwise following suggested detail that she might employ. You will recall as well the evidence of her exchange with her boyfriend.
His Honour referred generally to evidence of two other witnesses and continued: (AB 118; ts 299):
Now, those are all the comments that I would wish to offer for the assistance, if they do assist in relation to the subject matter of this trial, save to say this: you will have noted - and again I'm saying this - that there are 13 charges and there is much detail there. There is also much detail in [the complainant's] evidence.
As a further comment, it is appropriate that I say that as well as the way that detail emerged in the evidence before you, there is the matter of the detail itself. You will remember what I said to you about thinking about the story that emerges from a witness and how it fits with other evidence that you have, as well as the intrinsic character, the intrinsic believability, of the story itself. You will be thinking about all of that: would detail of this sort have emerged in this way in any event or emerged in any event and how does the story appear?
To return to my general directions though, in considering - if you consider this helpful - the evidence I have referred to in the way that I have referred to it, you will be thinking about all the evidence that bears in this case. I have only referred to some of it but you will be thinking about all the evidence in this case as it bears on the matters before you because, remember, you are the judges of the facts.
The passage in the summing up, about which the appellant complains, is italicised.
The single ground of appeal reads:
There was a miscarriage of justice when the learned trial judge directed the jury in terms contrary to the decision in Palmer v The Queen (1998) 193 CLR 1:
Particulars
His Honour invited the jury to consider that the detail given by the complainant was such that it could not be false.
In Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1, the accused, who gave evidence, was asked in cross‑examination by the prosecutor if he could think of any reason why the complainant would have made up allegations against him. He said he could think of none. Brennan CJ, Gaudron and Gummow JJ referred to authority, stating that a motive to lie where it exists is a very relevant factor in judging a witness's credit, but then observed that it was 'one thing to permit cross‑examination of a complainant in order to elicit, if possible, a motive to lie. It is another thing to permit cross‑examination of an accused to show that an accused cannot prove any ground for imputing a motive to lie to the complainant' [7]. In that same paragraph, their Honours observed that the 'fact that an accused has no knowledge of any fact from which a motive of the kind imputed to a complainant in cross‑examination might be inferred is generally irrelevant'. In [8] their Honours then said that 'the law does not require the accused to prove a motive for the making of false accusations by a complainant'. Their Honours referred with apparent approval to reasons for judgment of Sperling J in R v E (1996) 39 NSWLR 450, 464 which provide a number of reasons why it is impermissible to cross‑examine an accused about whether he has any knowledge of reasons why a complainant should make false allegations against the accused.
In this case the appellant did not give evidence and therefore he was not asked to explain whether he had any knowledge of why the complainant in this case should lie. The court was not asked to examine the videos and there was no suggestion that the appellant was asked this type of question in his video‑recorded interview. Palmer's case is therefore irrelevant and does not support the appellant's contention that there was a miscarriage of justice.
However, the appellant's complaint, voiced by his counsel during oral submissions, was not about whether the appellant was asked any question of the kind which was asked of the accused in Palmer. Instead the appellant's counsel submitted, as he had submitted to Wheeler JA, that the trial judge, by the italicised words, invited the jury to conclude or suggested to the jury that the detail given by the complainant in relation to the charges was such that it could not be false. Wheeler JA recorded counsel for the appellant as contending that the italicised words might have led the jury to think that the trial judge was inviting the jury or suggesting to them that, because of the quantity of detail in the complainant's evidence, she must have been telling the truth. The answer to that submission is that it is not possible to draw out of the italicised words any such invitation or suggestion. The trial judge merely said to the jury that they should consider the details of the evidence given by the complainant and other witnesses. It is plain from the passage complained of, in the context of the summing up as a whole, that his Honour was indicating to the jury a range of matters which might assist their deliberations on the evidence. He did so in a neutral manner, and made it abundantly clear that the jury was the fact finding tribunal. The evaluation of the evidence and the finding of facts were for them. They were not bound to accept any comments on the evidence by counsel or his Honour. Wheeler JA concluded that:
[T]he ground rests on a misapprehension of his Honour's direction and suggests an understanding of it which no reasonable jury would have or could have had. For that reason, it seems to me that the ground has no prospect of success and I would refuse leave and dismiss the appeal (AB 9; ts 57).
We agree with that conclusion. There is some difficulty in understanding precisely what the trial judge meant by the italicised words, but whatever was meant, it was not an invitation or suggestion to the jury that they should consider as relevant the lack of any evidence about why the complainant should make up allegations against the appellant and it was not an invitation to conclude, or a suggestion that, the complainant must have been telling the truth.
The appellant's written submissions also referred to the need for a 'proper balance' on the part of the trial judge when referring to the prosecution case and the defence case and the way that the jury might approach their deliberations and reference was made to Gassy v The Queen [2008] HCA 18; (2008) 82 ALJR 838 [25]. The reference to any lack of proper balance in the summing up is not referred to in the notice of appeal, but nevertheless Wheeler JA dealt with it and dismissed the argument at the same time as considering the single ground of appeal. At the hearing of this application, counsel for the appellant disclaimed any suggestion that the summing up of the evidence was not balanced. It is therefore not necessary to say anything more on that subject.
As a result Wheeler JA made no error and the application to review must be dismissed.