GWD v The State of Western Australia - [2010] WASCA 206

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: GWD -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 206

CORAM: PULLIN JA
BUSS JA
MAZZA J

HEARD: 11 AUGUST 2010

DELIVERED : 22 OCTOBER 2010

FILE NO/S: CACR 147 of 2009

BETWEEN: GWD
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :DAVIS DCJ
File No  :IND POR 27 of 2008

Catchwords:

Criminal law - Appeal against conviction - Child complainant - Was child competent to give evidence on oath - Sufficiency of inquiry under s 106B and s 106C of Evidence Act - Onus of proof - Adequacy of directions on inconsistencies

Legislation:

Acts Amendment (Evidence of Children and Others) Act 1992 (WA)
Criminal Law Amendment (Sexual Assault and other matters) Act 2004 (WA), s 15
Evidence Act 1906 (WA), s 97(1), s 106B, s 106C, s 106HB

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr P G Giudice
Respondent: Mr J McGrath

Solicitors:

Appellant: George Giudice Law Chambers
Respondent: Director of Public Prosecutions (WA)

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

Adugna v The State of Western Australia [2005] WASCA 206
Bartho v The Queen (1978) 19 ALR 418
Grindrod v The Queen [1999] WASCA 44
Hamilton v The Queen (Unreported, WACCA, Library No 970082, 4 March 1997)
Johansen v The Queen (Unreported, WACCA, Library No 980478, 14 July 1998)
Little v The Queen, (Unreported, WACCA, Library No 970601, 1 October 1997)
Mule v The Queen [2005] HCA 49; (2005) 221 ALR 85
Murray v The Queen [2002] HCA 26; (2002) 211 CLR 193
Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1
Revesz v The Queen (1996) 88 A Crim R 253
Steel v The State of Western Australia [2010] WASCA 118
Van Leeuwen v The Queen (1981) 36 ALR 591
Vine v The Queen (Unreported, WACCA, Library No 950423, 8 August 1995)

PULLIN JA: I agree with Mazza J.
BUSS JA: I agree with Mazza J.
MAZZA J: On 24 September 2009, in the District Court at Geraldton, the appellant was convicted after trial of one count of indecently dealing with NMT, a child under the age of 13 years. He was sentenced to 8 months' imprisonment, suspended for 8 months.
On 4 January 2010, Wheeler JA granted an extension of time within which to appeal. Originally, there were eight proposed grounds of appeal. Wheeler JA gave leave to appeal on ground 1, refused leave to appeal on grounds 2 and 6, and referred the application for leave to appeal on grounds 3, 4, 5 and 7 to the hearing of the appeal. Ground 8 was abandoned before the hearing of the appeal and ground 7 was abandoned at the hearing of the appeal.
The grounds of appeal argued by the appellant are as follows:
1.The Learned Judge Bowden DCJ at the pre‑recording on 6 March 2009 failed to make sufficient enquiries to enable His Honour to determine whether the seven year old complainant was competent to take an oath or make an affirmation.
3.Her Honour the trial judge should have acceded to the request of defence counsel to direct the jurors that their task was not to decide who they believe, as the Prosecutor informed them, especially given that Her Honour directed the jurors that it was their responsibility to decide whether the accused was guilty or not guilty.
4.Her Honour was wrong in directing the jurors that it was their responsibility to decide whether the accused was guilty or not guilty.
5.Her Honour the trial judge was wrong in directing the jurors that, in relation to inconsistencies, it was for them to decide whether the inconsistencies were so fundamental as to impact on a witness's reliability.

Background

The appellant is the brother of NMT's step‑father. NMT was born on 12 April 2001. She was 6½ years of age when the offence was committed, on or about 5 November 2007, and she was 7 years 11 months old when her evidence was pre‑recorded.

In November 2007, NMT, her mother, her step‑father and her younger sister were living in a house in a country town. Just before Melbourne Cup Day in 2007, the appellant and his mother came to stay with NMT's family.
On the day of the offence, the appellant and NMT's step‑father spent the afternoon and evening drinking at the local hotel. The two men were picked up by NMT's mother and they returned to the house at approximately 11.00 pm. By this time, NMT had gone to sleep. She slept the night in the lounge room because the appellant's mother was sleeping in her bedroom.
NMT said that during the night she woke up to find the appellant touching her vaginal area on the outside of her jeans. She described in her evidence how the appellant bunched up his hand in a kind of pincer grip and touched her, she said, about six times in that way. NMT said that after the appellant touched her, she went to her room and went back to sleep on the floor.
The next day, after school, NMT went to her auntie's house. NMT told her auntie that the appellant had touched her 'down there', pointing to her vaginal area. NMT was taken to the local hospital and the police were called.
On 7 November 2007, NMT participated in a visually‑recorded interview. This interview was recorded and was played at the trial as part of NMT's evidence: s 106HB Evidence Act 1906 (WA).
On 6 March 2009, a visual recording of evidence (the pre‑recording) took place at a special hearing pursuant to s 106K of the Evidence Act. The pre‑recording took place before Bowden DCJ.
Because NMT was a child under the age of 12 years, his Honour had to decide whether NMT was competent to give evidence on oath or make an affirmation and, if she was not, whether she was able to give unsworn evidence: s 106B and s 106C of the Evidence Act. His Honour explained to counsel how he would conduct the inquiry. He said:
BOWDEN DJC: What I propose to do is, when we establish the video‑link, to ask [NMT] a series of questions and I will then indicate to Mr Associate that she's either to be sworn or call on you, Mr Giudice, to proceed with your cross‑examination. If either counsel then wish to make submissions to me as to whether she should or should not be sworn, I think the appropriate procedure is then simply to indicate that there are matters that you wish to raise. We will sever the link. We will then have discussions over whether she should be sworn pursuant to 106B or give evidence unsworn pursuant to 106C. Do you have any difficulty with that procedure, Mr Giudice?
GIUDICE, MR: No, your Honour.
His Honour questioned NMT with a view to deciding whether she was competent to give sworn or unsworn evidence. The questions his Honour asked and the answers she gave are as follows:
[NMT], can you tell me how many people are present in the room where you are? How many people are with you? [NMT], it's Judge Bowden speaking. Can you hear me?---Yes.
Thank you. How many people are with you in the room where you are now?---One.
Who is that person? Do you know that person's name?---Yes.
Can you ask that person to tell me their name?
WILD, MS: It's Samantha Wild, victim support child witness service.
BOWDEN, DCJ: Thank you. Are there any other persons present in the room other than the two persons?
WILD, MS: No.
BOWDEN, DCJ: All right. Thank you.
[NMT], can you tell me what year you are in at school?---I'm in year 3.
All right. Do you have one teacher or do you have more than one teacher?---We have one teacher.
What is the teacher's name?---[Mrs T]
[Mrs T]. All right. What's your favourite subject at school?‑‑‑Art.
Are you able to tell me whether or not you watch TV?---Yes.
Do you have a favourite television program?---We just watch cartoons.
Do you? That's good. Can you tell me, do you know the difference between telling the truth and telling a lie?---Yes.
If I was to say that you were in grade 4 at school, is that true?---No.
If I was to say that you did not like watching cartoons, would that be true?‑‑‑No.
Right. Have you come to court to speak about something today?---Yes.
What have you come to court to talk about today?
Do you know why you've come to court today?---Yes.
Right. Why have you come to court today?---Because I'm here about [G] touching me.
It is important that you tell the truth today?---Yes.
Why is it important that you tell the truth today?---Because if I don't tell the truth, then they won't know.
All right. In those circumstances I would - thanks very much, [NMT]. That completes all the questions that I wish to ask of you. I would ask Mr Associate to administer the oath. Thank you.
The appellant's counsel, who is a very experienced criminal advocate, did not object to his Honour's decision to administer the oath to NMT, notwithstanding his Honour's clear invitation for him to do so if he thought fit.
The prosecutor, after NMT was sworn, confirmed with her that she had viewed a DVD of her interview on 7 November 2007. NMT confirmed that what she said in that interview was true. She was then cross‑examined, at some length, by defence counsel. Defence counsel did not question NMT about her understanding of concepts of truth and lies, nor did he cross‑examine her on her understanding of the oath.
The appellant's trial took place approximately six months later and lasted two days. The trial judge was Davis DCJ. The visually‑recorded interview on 7 November 2007 was played to the jury as was the pre‑recording of the child's evidence. The prosecution called NMT's step‑father, mother and auntie to give evidence as well as the appellant's mother. The appellant did not give evidence or call evidence in his defence. All of the evidence was completed by the end of the first day of the trial. Counsels' closing addresses and her Honour's summing up were presented the following day.
During the course of the prosecutor's closing address, he said to the jury at ts 62:
Your task as members of the jury is to decide where the truth lies and to decide what happened and to decide ultimately whether the accused is guilty or not guilty. As members of the jury chosen randomly from the community, you're chosen to apply your collective experience of life and commonsense to that task. What you have to do is assess what you have heard and make a decision as to who you believe and what you believe.
When I say 'who you believe', it's not a case of believing absolutely everything of what any particular witness has said. You might think that something they said about one matter was honest and accurate and that something they said about some other topic was possibly not accurate. People might be mistaken about some details. Those assessments are matters for you. (my emphasis)
Defence counsel addressed the jury to the effect that the complainant's evidence was unreliable and was incapable of satisfying the jury beyond reasonable doubt that NMT had been touched as she suggested. Defence counsel submitted that there were internal inconsistencies in her evidence and inconsistencies between her evidence and the evidence of some of the other witnesses called by the State.
Her Honour, in her summing up, directed the jury that the issues for them to decide were whether the State had proved beyond reasonable doubt that:
(a) the appellant had touched NMT as she alleged;
(b)if the appellant had touched her, was the touching a willed act; and
(c)if the touching was a willed act, was it indecent.
Her Honour gave directions to the jury as to:
(a)its obligation to apply the law as her Honour explained it to the facts (ts 77); and
(b)the presumption of innocence, the burden of proof, standard of proof and the appellant's right to silence (ts 78 ‑ 79).
Her Honour referred to the burden of proof more than once in the summing up. At ts 80 ‑ 81, her Honour said:
There is never any onus on an accused person to prove anything in a criminal trial.
A short time after giving this instruction, her Honour summarised the three issues for the jury to decide by reference to both the burden and the standard of proof. She said at ts 81:
I'm going to put [the issues] in a question form for you. The first issue - did the touching occur as alleged? You have to ask yourselves: has the state satisfied you beyond reasonable doubt that the appellant touched NMT in the manner alleged? If the answer to that is no and you had a reasonable doubt about whether the appellant touched NMT as she alleged, then you would acquit him.
If the answer to that question is yes and the state has satisfied you beyond reasonable doubt that the appellant did touch NMT in the way alleged, then you have to go on and consider the next issue: that is, the issue: was the touching a willed act? The question you have to ask yourselves is this: has the state proved beyond reasonable doubt that this touching did not occur independently of the exercise of the appellant's will? To put it another way, has the state satisfied you beyond reasonable doubt that the appellant's touching of NMT was a willed act, a conscious decision on his part to do so?
If the answer to that is no and you are not satisfied beyond reasonable doubt that the appellant's touching of NMT was a willed act, then you would acquit him. If the answer is yes and the state has satisfied you that the appellant's touching of NMT was a willed act, then you have to go on to consider the third issue and that is: has the state proved beyond reasonable doubt that the touching was indecent? I hope that I have summarised the issues that you have to determine so that you understand what you are looking at.
Her Honour then briefly, but accurately, summarised the prosecution and defence cases. In doing so, she reminded the jury of the inconsistencies raised by defence counsel in his closing address.
Her Honour directed the jury on NMT's credibility. At ts 84, she said:
The credibility of NMT is fundamental to the state's case. The state could not satisfy you beyond reasonable doubt that the appellant touched her as alleged unless you were satisfied beyond reasonable doubt of the truth, accuracy and reliability of NMT's evidence. You therefore do have to assess the credibility of not only NMT but also the other witnesses you have heard giving evidence.
An assessment of credibility involves more than simply making a determination of whether the witness is telling the truth. A witness may be truthful but have a poor memory or otherwise be mistaken. You have to consider whether what a witness has said is also accurate and reliable.
Her Honour directed the jury that there were a number of factors which it might take into account in deciding issues of credibility. Amongst the factors she mentioned were consistency and inconsistency. At ts 85 she said:
The second thing is: has what the witness said differed from what has been said on an earlier occasion? That is the issue of inconsistency. The next is: were there any other inconsistencies in the evidence of the witness, particularly with evidence given by other witnesses? If there are those inconsistencies, you have to ask yourself, is there a satisfactory explanation for those? Can the inconsistency be explained by memory lapse or mistake or confusion or particular circumstances that might have applied at the time or is the inconsistency so fundamental and extraordinary that it goes directly to that witness's reliability?
A short time later, she said, at ts 85:
Finally, is the account given by the witness consistent with other evidence that you are prepared to accept? All of these factors must be looked at in light of all of the circumstances in which this incident was alleged to have occurred. It is, as I have said, up to you how you assess the evidence and whether you accept all or only part or none of each witness's evidence. You are the sole judges of the facts and it is your job to decide what evidence is important and what evidence is not.
After the jury retired to consider its verdict, defence counsel sought some redirections. Mr Giudice asked her Honour to correct the portion of the prosecutor's closing address that I referred to earlier where he told the jury that it had to make a decision as to 'who you believe and what you believe'. Her Honour declined to give any redirection, and at ts 90 said:
[I]f there is any mischief in what Mr Holgate said to them, I think it has been corrected in the direction that I gave.
Defence counsel also sought a redirection on inconsistencies. Mr Giudice submitted that her Honour misdirected the jury because the effect of her direction was that only a fundamental inconsistency could affect a witness' reliability. He submitted that her Honour should have told the jury that a combination of inconsistencies may together lead the jury to the conclusion that the witness is unreliable.
Her Honour declined to redirect the jury on the matter, pointing out that she had summarised the inconsistencies in NMT's evidence and said that there was no further need for any redirection (ts 91).

Ground 1

The appellant submitted that the inquiry made by Bowden DCJ was deficient because:
(a)'almost all' the questions of his Honour were leading questions;
(b)the inquiry was too brief;
(c)the questioning lacked specific detail in order for an opinion to be formed as to whether the child understood that the giving of evidence is a serious matter and entailed an obligation to tell the truth;
(d)no inquiry was made of NMT as to the repercussions of not telling the truth; and
(e)no inquiry was made as to whether the child understood the difference between telling the truth in the courtroom and telling the truth elsewhere.
The respondent's submissions were that Bowden DCJ had embarked upon a sufficient inquiry to enable him to properly form the opinion that NMT was competent to give evidence on oath. The respondent submitted that his Honour had, prior to embarking upon the inquiry, invited counsel to make submissions in the event that it was thought that the inquiry was inadequate and that it is telling that defence counsel made no submissions at the time that the inquiry was inadequate.

The legislative scheme

Relevantly to this case, s 97(1) of the Evidence Act provides that every witness, other than a witness the evidence of whom may be received pursuant to that Act though not given on oath, is required to give evidence on oath.
Sections 106B and 106C of the Evidence Act set out circumstances where a child, under the age of 12 years, may give evidence. Relevantly, those sections provide:
106B. Children under 12 may give sworn evidence
(1)A child who is under the age of 12 years may in any proceeding, if the child is competent under subsection (3), give evidence on oath or after making an affirmation.
…
(3)A person referred to in subsection (1) or (2) is competent to take an oath or make an affirmation if in the opinion of the court or person acting judicially the person understands that -
(a)the giving of evidence is a serious matter; and
(b)he or she in giving evidence has an obligation to tell the truth.
106C. Child under 12 and mentally impaired witness may give unsworn evidence
A person referred to in section 106B(1) ... who is not competent to give evidence under section 106B(3) may give evidence without taking an oath or making an affirmation if the court or person acting judicially forms the opinion, before the evidence is given, that the person is able to give an intelligible account of events which he or she has observed or experienced.
Sections 106B and 106C were first inserted into the Evidence Act in the package of reforms contained in the Acts Amendment (Evidence of Children and Others) Act 1992 (WA) which substantially modernised the way the evidence of children was taken and received by a court. Section 106B, in its original terms, allowed a child under 12 years to give evidence on oath if, in the opinion of the court, the child understood that the giving of evidence is a serious matter and in giving evidence the child understood that he or she has 'an obligation to tell the truth that is over and above the ordinary duty to tell the truth'.

Section 106B remained substantially in this form until 1 January 2005 when the requirement for a child to tell the truth 'that is over and above the ordinary duty to tell the truth' was removed by s 15 of the Criminal Law Amendment (Sexual Assault and Other Matters) Act 2004 (WA). The Attorney‑General, the Honourable JA McGinty, in his Second Reading Speech on the Bill which eventually became this Act said on 30 June 2004:
The Bill also amends the Evidence Act to remove the current requirement for children to have an understanding of their duty to tell the truth 'that is over and above the ordinary duty to tell the truth'. It is agreed that children should be required to do no more than understand their obligation simply to tell the truth.
The effect of s 106B and s 106C in their current terms is that a child under the age of 12 years may give sworn evidence, but only if the relevant judicial officer forms the opinion that the child understands that the giving of evidence is a serious matter and that in giving evidence he or she has an obligation to tell the truth. If the judicial officer is not satisfied that the child understands both these things, the child cannot give sworn evidence. However, provided the judicial officer reaches the opinion that the child is able to give an intelligible account of events which he or she has observed or experienced, the child can give evidence without taking an oath or making an affirmation. If a child is unable to give an intelligible account of events, he or she cannot give evidence at all.
The significance of whether a child gives evidence under s 106B or 106C is not to be underestimated. In Revesz v The Queen (1996) 88 A Crim R 253, 259 ‑ 260, Owen J said:
It is obviously a matter of grave importance to the running of a criminal trial that the evidence of witnesses generally, but particularly the evidence of persons of very tender years, should be received properly. For this reason, the inquiry to which s 106B and 106C is directed assumes considerable significance.
This passage was cited with approval in Little v The Queen, (Unreported, WACCA, Library No 970601, 1 October 1997) and in Johansen v The Queen (Unreported, WACCA, Library No 980478, 14 July 1998). Despite the amendments I referred to earlier, in my opinion, Owen J's statement still applies.
Failure by a judge to make the findings necessary for the operation of either section has been held to be an error that goes to the basic nature of a trial to which the use of the proviso can not be justified: Vine v The Queen (Unreported, WACCA, Library No 950423, 8 August 1995). Some doubt has been expressed about whether Vine was correctly decided on this point: see Revesz (259) (Owen J). This issue was not raised by counsel and does not need to be decided here. The point is, that a failure to make proper inquiries is not a minor matter and potentially has serious consequences.
The sections require the presiding judicial officer to arrive at certain opinions. Necessarily, those opinions can only be arrived at after making due inquiry. The nature of such an inquiry is not prescribed nor is the material upon which the judicial officer is entitled to take into account. Invariably any inquiry requires the judicial officer to speak directly to the child and the inquiry must be conducted in the presence of the jury: Hamilton v The Queen (Unreported, WACCA, Library No 970082, 4 March 1997) (Malcolm CJ). The jury is entitled to consider what the child says and the child's demeanour in the inquiry in deciding the credibility of the child's evidence.
The inquiry must be tailored, as far as the judicial officer is able, to the age, culture, background and ability of the child. As Owen J said in Revesz (260):
Each case will depend on its own facts and there is no formula of words or list of questions which must be asked.
What is required is that the questions must, in an appropriate way, address the issues of whether the child understands that the giving of evidence is a serious matter and that he or she in giving evidence has an obligation to tell the truth or whether the child is capable of giving an intelligible account of events with which he or she has observed or experienced. In Hamilton, Malcolm CJ set out the form of what he described as a 'sufficiently detailed' inquiry. Ipp J in Grindrod v The Queen [1999] WASCA 44 [35] endorsed those remarks and suggested that it was 'essential' that any inquiry proceed along those lines. By 'essential' Ipp J did not mean that every child must be questioned in the way suggested Malcolm CJ in Hamilton. His Honour was referring to the necessity of ensuring that the inquiry appropriately and properly addressed the relevant statutory requirements. Ipp J stated that the inquiry should not be undertaken in any way that is cursory, perfunctory or mechanical [35]. It is important to note that the type of inquiry suggested by Malcolm CJ in Hamilton was appropriate having regard to the terms of s 106B as it then stood. The section, as I have already observed, has since been amended to delete the requirement that the judicial officer must be satisfied that the child understands that his or her obligation to tell the truth is over and above the usual obligation to tell the truth.
There is no requirement under s 106B that the child possesses a belief in God or will be subject to some divine sanction: see Revesz (Owen J) and Hamilton v The Queen (Malcolm CJ).
Counsel have an important role to play in the inquiry. While counsel are not involved in the questioning of the child witness, counsel in accordance with their duties to the court and to their client, may make submissions as to the adequacy of the inquiry and the conclusion which the judicial officer should reach. In my opinion, an appropriate procedure would be for the judicial officer, upon completion of the inquiry but before announcing his or her decision to ask whether counsel wish to make any submission. A judicial officer may, at this point, wish to express a tentative view as to whether and how the child's evidence may be received. This procedure would enable any established inadequacy to be immediately rectified and provide assistance to the court as to the outcome. Where such a procedure is adopted, a failure by counsel to make any submission may be a matter of relevance if it is alleged on appeal that the inquiry was in adequate or any opinion was wrongly formed.
In this case, his Honour adopted a slightly different procedure in that he sought counsel's submissions after he had made his decision. I do not consider the difference to be material. It is clear that his Honour by inviting counsel to make submissions would have, had he been persuaded, changed his mind about the way the child's evidence was to be received.
While the answers given by a child in the inquiry will be important to the formation of a judicial officer's opinion, there is nothing in s 106B and s 106C that restricts the judicial officer to a consideration of only those answers. Although in this case his Honour did not refer to NMT's visually recorded interview as any basis for his opinion, it seems to me that he could have, had he thought it appropriate, provided, of course, he gave the parties the opportunity to make submissions on the material.

Ground 1

The inquiry, although brief, and involved the asking of some (not almost all) questions where the answer required of the child was 'yes' or 'no', was directed to the essential issues raised by s 106B of the Evidence Act, namely, whether the child understood that the giving of evidence was a serious matter and that in giving evidence she had an obligation to tell the truth.
NMT said that she understood the difference between telling the truth and telling a lie. His Honour tested that answer by reference to simple but relevant examples from her experience. She plainly understood the reason for her coming to court and expressed it in her own words: 'Because I'm here about [the appellant] touching me.' She acknowledged that it was important to tell the truth. When asked to explain her answer, she replied 'Because if I don't tell the truth, then they won't know'. In context, the effect of her answer was that unless she told the truth, the court would not know what the appellant had done to her.
Contrary to the appellant's submissions, the provisions of s 106B do not require the judicial officer to make any inquiry as to whether the child understands the repercussions of not telling the truth, nor does a child have to understand the difference between telling the truth in court and telling the truth elsewhere. This latter requirement was removed by statute in 2005.
In my view, it is significant when considering the merits of ground 1 that defence counsel made no objection to his Honour's decision at the time it was made in the face of a clear invitation by his Honour to counsel to raise any matters they wished at the conclusion of his inquiry. While the failure to object is not fatal to this ground, it is relevant that at the time of the inquiry it did not apparently occur to defence counsel to object.
This ground has not been made out.

Grounds 3 and 4

The appellant's counsel dealt with these grounds together.
It was submitted that the comment made by the prosecutor which was highlighted earlier in these reasons, amounted to an invitation by the prosecutor to the jury to decide the case not on whether the State has proved the charge beyond reasonable doubt, but on the erroneous basis of 'who do you believe?'
Mr Giudice submitted that this error was compounded by a statement made by her Honour during the summing up at ts 78:
If you have a reasonable doubt as to whether [the appellant] is guilty or not guilty, then he gets the benefit of that doubt and it is your duty to acquit him. (emphasis added)
Mr Giudice submitted on behalf of the appellant, that this direction:
was seriously misleading in that it might have implied that [the jury] might convict if they had a doubt about whether he was not guilty.
The appellant cited the High Court authorities of Bartho v The Queen (1978) 19 ALR 418 and Van Leeuwen v The Queen (1981) 36 ALR 591 in support of these submissions.
In Bartho v The Queen the trial judge, in the course of his summing up, repeatedly said that the jury's task was to determine the guilt or innocence of the accused. It was submitted on behalf of the appellants in that case that to make statements to the effect that it was for the jury to decide between guilt and innocence, may suggest that the jury should convict unless the evidence established that an accused was innocent or, at least, may divert the jury from their task of deciding whether the prosecution had established the guilt of the accused beyond reasonable doubt.
The Court held that having regard to the summing up as a whole, and in particular to proper and orthodox directions as to the onus and standard of proof, the jury were not misled. Special leave to appeal was refused. I do not see how this case assists the appellant. The jury were not invited by the judge or the prosecutor to determine the guilt or innocence of the appellant.
In Van Leeuwen v The Queen the trial judge's directions about the onus and standard of proof were not regarded as plain enough. This was not the case here. Neither case assists the appellant.
I do not think that the statement made by the prosecutor created any likelihood that the jury would have thought that its task was to merely decide the case on who they believed without regard to the onus or burden of proof.
Mr Giudice, in oral argument, submitted that the prosecutor's comment was as egregious as the questions asked by the prosecutor of the accused in Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1 whether the accused could suggest any reason why the complainant would invent allegations against him. I do not think that, the prosecutor's statement in this case had anything like the same potential to mislead.
Her Honour made it clear that the jury was to act on her directions of law. Throughout her Honour's summing up, she correctly told the jury that the burden of proof was on the State and that the standard of proof was proof beyond reasonable doubt. Reading the summing up as a whole, there is no reasonable possibility that the jury would have been misled by anything that her Honour said, whether by itself or in combination with the prosecutor's statement.
The inclusion of the words 'or not guilty' by her Honour at ts 78 are very obviously a slip of the tongue and would have been understood by a reasonable jury in that vein.
Grounds 3 and 4 represent an erroneous approach to appellate scrutiny of judicial instructions. As Kirby J said in Murray v The Queen [2002] HCA 26; (2002) 211 CLR 193 [72], regard must be had to the entirety of the summing up when considering any impugned direction. It is wrong to take a part or parts of a summing up in isolation from the context: see also Mule v The Queen [2005] HCA 49; (2005) 221 ALR 85; Adugna v The State of Western Australia [2005] WASCA 206 [20] and Steel v The State of Western Australia [2010] WASCA 118 [32].
These grounds have not been made out.

Ground 5

The appellant submitted that the trial judge's directions on inconsistencies would have left the jury with the impression that they should ignore inconsistencies in NMT's evidence unless they were fundamental and extraordinary. Further, the instruction would have precluded the jury from considering the complainant's evidence in the light of the combination of inconsistencies which, by themselves, could not be considered fundamental and extraordinary.
Again, these submissions fail to have regard to her Honour's instructions to the jury as a whole. Her Honour made it clear that nothing she said about the facts in any way restricted the jury's responsibility to decide the facts of the case for themselves (ts 77). She told the jury that they were the sole judges of the credibility of each witness and the weight to be given to the testimony of each witness (ts 78). She told the jury that it was their job to decide what evidence was important and what was not (ts 78).
Her Honour accurately summarised the inconsistencies which the appellant's counsel submitted to the jury undermined NMT's credibility.
Her Honour told the jury that in considering the alleged inconsistencies, they were entitled to consider any innocent explanation for the inconsistencies.
Mr Giudice was particularly critical of the portion of her Honour's direction where she said, 'or is the inconsistency so fundamental and extraordinary that it goes directly to that witness's reliability?'
As I understand her Honour, she was there illustrating the difference between important and unimportant inconsistencies. Reading the summing up as a whole, and taking this part in context, I do not see how her Honour's statement could have given the jury the impression that they were only to view each inconsistency by itself and not in combination. Nor do I think the effects of her Honour's direction was to tell the jury to ignore inconsistencies which were not fundamental or extraordinary.
Ground 5 has not been made out.

Conclusion

In my opinion, none of the grounds of appeal have been made out. I would not give leave to appeal on grounds 3, 4 and 5. The appeal must be dismissed.
The orders I would make are:
1.Leave to appeal is refused on grounds 3, 4 and 5.
2.The appeal is dismissed.