HDG v The State of Western Australia
[2024] WASCA 27
•25 MARCH 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: HDG -v- THE STATE OF WESTERN AUSTRALIA [2024] WASCA 27
CORAM: BUSS P
MAZZA JA
HALL JA
HEARD: 11 DECEMBER 2023
DELIVERED : 25 MARCH 2024
FILE NO/S: CACR 24 of 2023
BETWEEN: HDG
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram: FLYNN DCJ
File Number : AM 19 of 2021
Catchwords:
Criminal law - Appeal against conviction - Child sex offences - Whether verdicts unreasonable or cannot be supported by the evidence - Whether the complainant a credible and reliable witness - Whether there were inconsistencies regarding the sequence of events and other matters - Whether those matters were such that it was not open to be satisfied beyond reasonable doubt that the offences had occurred
Legislation:
Nil
Result:
Application for extension of time refused
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | J Gullaci & W Yoo |
| Respondent | : | R F Owen |
Solicitors:
| Appellant | : | Aboriginal Legal Service (WA) |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Dansie v The Queen [2022] HCA 25; (2022) 274 CLR 651
Jago v The State of Western Australia [2022] WASCA 2
Lang v The Queen [2023] HCA 29
Sturniolo v The State of Western Australia [2023] WASCA 147
JUDGMENT OF THE COURT:
The appellant, who is a juvenile, was charged on a prosecution notice with six sexual offences. Those offences consisted of two charges of indecently dealing with a child under the age of 13 contrary to s 320(4) of the Criminal Code (WA) (Code), two charges of sexually penetrating a child under the age of 13 contrary to s 320(2) of the Code and two charges of attempting to sexually penetrate a child under the age of 13 contrary to s 320(2) and s 552 of the Code. The charges all arose out of the same sequence of events and related to the same female complainant.
The appellant pleaded guilty to one of the sexual penetration charges (charge 3) and was found guilty of the remaining charges after a trial by judge alone in the Children's Court. On 21 October 2022, the trial judge sentenced the appellant to an Intensive Youth Supervision Order for a period of 6 months on charges 3 - 6 and imposed no penalty on charges 1 and 2 due to time served in custody.
An appeal notice seeking leave to appeal against conviction was filed on 2 March 2023. This was approximately four months out of time and an extension is required. In affidavits, the appellant's solicitor and his senior counsel provide an explanation for the delay. Essentially, the delay is due to difficulties in obtaining instructions from the appellant and limitations on the availability of senior counsel to provide advice, in part due to illness. Whilst these matters provide some explanation for the delay, it was accepted at the hearing of the appeal that whether an extension is granted is dependent on the merits of the appeal.[1]
[1] Appeal ts 2 - 3.
There is one ground of appeal. It is that the guilty verdicts on charges 1, 2 and 4 - 6 are unreasonable and cannot be supported by the evidence. The appellant asserts that the complainant was a critical but unreliable witness and that it was not possible to be satisfied beyond reasonable doubt as to the commission of the offences based upon her evidence.
For the reasons that follow, the ground of appeal has not been made out. We would refuse the extension of time, refuse leave to appeal and dismiss the appeal.
Prosecution case
The events in question occurred on the evening of 20 August 2021. At that time, the appellant was 14 years old and the complainant, AB, was 12 years old.[2]
[2] WAB 21.
At approximately 7.30 pm on 20 August 2021, AB and a female friend, CD, went to a house party in Kewdale. The party was shut down by the police and the two girls either did not make it to the party or were there for only a very short time. The appellant had been at the party.[3]
[3] ts 11.
As they were walking from the party house AB and CD met a large group of juveniles, which included the appellant. Neither of the girls had previously met the appellant. He had some small bottles of alcohol with him and offered AB some vodka from one of the bottles. When she went to take a sip the appellant held the bottle so that she drank a considerable quantity. She quickly became intoxicated.[4]
[4] WAB 21 - 22.
AB and the appellant then walked arm in arm together towards a bus stop. CD recorded a short video of this on her mobile telephone. Whilst walking, the appellant placed his arm around AB's shoulders. He used his hand to fondle AB's breasts on the outside of her clothing. This act is the subject of charge 1, the first charge of indecent dealing.[5]
[5] WAB 21 - 22.
As they continued to walk, the appellant kissed AB on the neck, causing her to have marks on both sides of her neck. This act was not the subject of any charge but formed part of the relevant context. The appellant then rubbed AB's vagina through her jeans. This act is the subject of charge 2, the second charge of indecent dealing.[6]
[6] WAB 22.
The appellant, AB, CD and some of the other juveniles then boarded a bus. The bus stopped at a train station, where most of the others got off but AB and the appellant remained. By this time, AB was drunk.[7]
[7] WAB 22.
The appellant and AB moved to the back seat of the bus. The appellant sat nearest to the window. He pulled down his pants and using his hand, held the back of AB's head, pushing her face onto his penis. He made her perform fellatio on him by forcing her head down and back repeatedly. This continued for less than a minute and the appellant then pressed the bell for the bus to stop. This act of fellatio is the subject of charge 3, the first charge of sexual penetration. This is the charge to which the appellant pleaded guilty, though he denied using force.[8]
[8] WAB 22.
After the bus pulled up at the next bus stop, the appellant and AB got off. The appellant assisted AB to walk off the bus. She was staggering as she made her way to the exit. The appellant and AB then went to the rear of the bus stop, where the appellant pulled down his pants and underwear. He then did the same with AB's clothing. He bent AB forward and whilst standing behind her, tried to insert his penis into her vagina. As this was occurring, AB was stumbling due to her state of intoxication. The appellant's penis made contact with AB's vagina but he did not achieve penetration. This act is the subject of charge 4, the first charge of attempted sexual penetration.[9]
[9] WAB 22.
The appellant then tried to insert his penis into AB's anus. They were standing in the same positions, with the appellant behind AB. His penis made contact with her anus but he was unable to insert it, primarily due to the fact that AB continued to fall over. This act is the subject of charge 5, the second charge of attempted sexual penetration.[10]
[10] WAB 22 - 23.
The appellant then sat on the seat at the bus stop and had AB kneel on the ground in front of him. He grabbed the back of her head and pushed it down onto his penis and made her suck it. That went on for an unknown period of time. The appellant did not ejaculate. This act is the subject of charge 6, the second charge of sexual penetration.[11]
[11] WAB 23.
The appellant then got up and said he needed to urinate. He walked off but did not came back. He left the area but did not tell AB that that was his intention. The prosecution case was that the appellant left AB, who was alone and heavily intoxicated, to fend for herself. The appellant then made his way into the city, where he was later seen by CD.[12]
[12] ts 15, 212.
Sometime later, AB managed to attract the attention of a man driving a car, who helped her. The man drove AB to a service station, bought her something to eat and drink and then drove her to her home. That man was unable to be identified by police. AB arrived home at around 10.00 pm.[13]
[13] ts 15.
At the time, AB was living with her mother and her grandmother. AB was in a very distressed state when she arrived home and told her mother most of what had happened to her. Her grandmother heard some of what was said. Her grandmother then telephoned police and made a report.[14]
[14] ts 15.
Two uniformed police officers attended at the house at about 10.30 pm. They spoke to AB, her mother and her grandmother. CD arrived at the house while police were there. The police seized AB's clothing and took AB and her mother to the Perth Children's Hospital for an examination.[15]
[15] ts 15.
At the hospital, samples were taken in the emergency department. These included wipes of AB's vulva and anus. AB was then taken to the Child Protection Unit at the hospital, where she was examined by a doctor. The doctor noted suction bruises on both sides of AB's neck. Swabs were taken from her neck. AB declined an anogenital examination. AB also provided a urine sample at 1.30 am on 21 August 2021. A toxicology analysis was conducted, which showed alcohol at 0.095%.[16]
[16] ts 15 - 16.
The samples sent for analysis produced the following results. The vulval gauze wipe yielded a single source profile, consistent with that of AB. There was also a small quantity of male DNA, which could not be further analysed. A perineal gauze wipe had DNA from two contributors. The first contributor was AB but further interpretation as to the possible identity of the second contributor was not possible, other than to identify it as male DNA. Three portions of AB's underwear were sampled for DNA. Male DNA was found to be present in each sample and the appellant could not be excluded as a contributor. These samples came from the front and crotch region of the underwear. The Y chromosome found in the DNA profile matched the Y chromosome profile of the appellant. The swab from AB's neck produced DNA that was consistent with that of the appellant.[17]
[17] ts 16 - 17.
AB was interviewed by a specialist child witness interviewer on 22 August 2021, about 36 hours after the alleged offending. CD was interviewed on 30 August 2021.[18]
[18] ts 16.
The appellant was arrested on 11 September 2021. No police interview with the appellant was relied on.[19]
[19] ts 16.
Ground of appeal
The ground of appeal is as follows:[20]
[20] WAB 17.
The guilty verdict for CCPE 3761-2/2021 ('charges 1 - 2') and 3764‑66/2021 ('charges 4 - 6') was unreasonable and could not be supported by the evidence. The verdict was unreasonable because the evidence of [AB] was unreliable:
a.[AB] gave two inconsistent accounts regarding the sequence of events that affected the reliability of charge 4 to 6 (T61 and 70).
b.[AB] gave a different account of where charge 1 occurred.
c.[AB] conceded she was affected by alcohol (T58-59).
d.[AB] admitted lying to police about going into the city at night (T77).
e.[AB] told the police not to tell anyone that she had told them about this incident and that it was the bus driver who had made the complaint not [AB] (T128).
f.[AB] had a motive to lie.
g.[AB]'s grandmother gave evidence she found the complainant to be a dishonest girl at times.
Given that the ground of appeal depends critically upon the evidence of AB, it will be necessary to summarise that evidence in some detail.
AB's child witness interview
AB was interviewed on 22 August 2021 and the recording of that interview formed part of her evidence‑in‑chief at the trial.
At the commencement of the interview, AB was asked what she was there to talk about. She said:[21]
[21] GAB 9 - 10.
A: Um, I got raped - - -
Q: Okay.
A. - - -or sexually assaulted - - -
Q. Yeah.
A. - - - a few nights ago and, um, I was coming back from a party and I was walking with my best friend [CD] and, um, we saw these boys. We needed a lighter, so [CD] went up to them and asked if they had a lighter and they said 'yes' and so we walked over to them with a smoke and then, um - and then he said, 'Walk with us,' and we're like, 'Okay,' 'to the bus stop because we're all going to the bus stop.' And, um - and we're walking to the bus stop kind of thing and we all jumped on the bus, all of us, and, um, before we jumped on the bus, he gave me more vodka and, um, I was like getting really, really drunk and then, um, so we all jumped on the bus and then we were all going back to the train - train station and everyone jumped off at the train station, including my best friend, and he wouldn't let me get off and then [CD] tried to get back on to the bus, but the bus driver closed the doors and drove off and then he forced me to give him head on the bus and when we got off the bus, he tried - he tried to fuck me and anal me. Um, he tried giving me hickeys. He pulled down my pants and my underwear and, um - and - and he was - well, and then after that - after all that happened we were walking down a street and then I turned around for a second and he was gone when I turned back around, and then when he - when I couldn't like see anyone, I started walking down the street. I didn't know what street it was and then when, um, I walk - went near a bus stop, I started spewing everywhere, but I didn't know when the next bus was going to come, but they came every hour and I didn't know what the time was. So I started walking down another street and trying to follow the like footsteps of the bus pretty much and then, um - and then I saw this guy reversing out of his driveway and I asked him to drop me off to the closest train station and then he said, um, 'Yeah, I can do that for you,' and then he took me to a - like a petrol station. He brought me a water and a sausage roll and then he dropped me back to mine.
Q. To yours?
A. Yeah.
Q. Okay. And then when you got to yours, tell me what happened then.
A. I told mum everything, because I came home crying and mum asked me, 'What's wrong?' and I told her everything and then, um - and then nan called the police and, yeah.
AB was asked to explain what had happened with the vodka. She said that as they were walking, the appellant pulled out a bottle of vodka and said, 'Here, have a sip'. She told him that she would only have a 'little sip' but the appellant held the bottle so that she kept drinking. She said that after drinking the alcohol she felt 'really, really sick'. She said that she drank some of the vodka but was trying to spit it out.[22]
[22] GAB 10 - 11.
AB was asked what happened on the bus and she said that when everyone else got off she was sitting near the window and the appellant said to her, 'No, stay on, stay on, stay on'. She said that he would not let her off. Her friend CD was amongst those who got off the bus, but when CD saw that AB was still on the bus, she tried to get back on but the doors had shut. There were some other people on the bus but no one who AB knew.[23]
[23] GAB 11 - 12.
After the others, including CD, got off the bus, the appellant grabbed AB by the hair and pushed her head up and down, forcing her to suck his penis. AB said that she was really drunk at the time. She said that he then pulled his pants up and they got off the bus, where it 'happened again'. She said that on the bus, the appellant was pushing her head up and down and that his hand was on her head.[24]
[24] GAB 12 - 14.
When asked what happened after they got off the bus, AB said:[25]
[25] GAB 14.
A. He, um, took me behind the bus stop - - -
Q. Mm hm.
A. - - - and then he pulled down my pants, my underwear and then, yeah.
Q. So behind the bus stop? What was your body position at - behind the bus stop?
A. He was trying to bend me over.
Q: Okay. So, were you still standing?
A. Not really. I kept falling over.
Q. Yeah.
A. And he kept trying to hold me up and I kept falling - - -
Q. Okay, So - - -
A. - - - cos I was really drunk.
Q. - - - when he pulled your pants down, where was his body?
A. Right behind me.
AB said that the appellant used both hands to pull down her jeans and her underwear. When asked to explain what the appellant did, AB said:[26]
[26] GAB 15 - 16.
A. He tried to put it in me.
Q. Put what in you?
A. His dick.
Q. In your?
A. (No audible answer).
Q. When you say 'in me' what are you talking about?
A. Inside me.
Q. Inside what part of you?
A. My vagina.
Q. Thank you. Okay. So he tried to put his dick inside your vagina. Tell me exactly what he was doing when he did that.
A. He was trying to force it in.
Q. Okay. Did it go in?
A. (Indistinct) I was too drunk.
Q. Mm, okay. So he tried to put his dick in your vagina but it didn't go in. What was the very next thing he did?
A. He tried to anal me.
Q. Okay. So, I'm sorry, I'm going to ask you this again, but when you say 'anal' you, what did he do?
A. He tried to put his dick inside my arse.
Q. Yeah. Did his dick go inside your arse?
A. (Indistinct).
Q. Okay. So when he tried to do that, describe to me what he was doing.
A. He was trying to force it in again.
Q. Okay. And then what was the very next thing he did?
A. He sat back down and he grabbed my hair again and started making me give him head again.
Q. Okay. So when he sat down, what did he sit on?
A. The bench seat.
Q. Okay. And what was your body position when he made you give him head again?
A. He pushed me on the floor and then he was grabbing my hair again.
Q. What part of your body was on the floor?
A. My knees.
AB said that the appellant then told her that he needed to 'take a piss' and he walked towards a tree. When she turned around, he was gone.[27]
[27] GAB 17.
AB was asked to clarify what she had said earlier in the interview regarding 'hickeys'. She said that the appellant tried giving her a 'hickey' when they were walking to the bus stop. She said that the nurses at the hospital did a swab of her neck and found the appellant's DNA. When asked whether anyone saw him kissing her on the neck, AB said no because they were walking behind the others and her best friend CD, who was in front, was texting her mum.[28]
[28] GAB 17 - 18.
AB said that after the appellant left her at the bus stop, she remained sitting on the bench seat. She vomited near the bus stop. She then walked across the road so that she could go back to the train station. She saw a man reversing his car out of a driveway and he offered to help her. She got into the man's car and he drove to a petrol station. He had to pull over for her to vomit again. The man got her something to drink and eat from the petrol station. AB said that she was upset and crying whilst hugging the man's pet dog. She gave the man her address and he drove her home.[29]
[29] GAB 18 - 21.
When AB went into her house, she was still crying and her mother asked her what was wrong. AB said that she told her mother 'everything that just happened'.[30]
[30] GAB 21 - 22.
There was a break in the interview and on resumption, AB was asked to go through the events again. She referred to having attended a party and, after leaving the party, she and her friend were walking when they met a group of boys. She said that they all walked to the bus together but that she and one boy (the appellant) were at the back. She said that they fell to the back because the boy stopped and pulled out a bottle of vodka. He offered her a drink and put the bottle to her mouth. She said that she took a little sip and that the appellant then held the bottle 'back in [her] mouth'. She was then asked whether the appellant was touching any other part of her body. She said:[31]
[31] GAB 23 - 26.
A. Um, when we were walking, he was touching my tits.
Q. Oh, okay.
A. But, yeah, that was about it.
Q. Tell me what he was doing when he was doing that.
A. He was just touching my tits with his hand on my tits and everything.
Q. Yeah. Where was he when he did that?
A. Beside me.
Q. Yeah
A. And his arm was around me.
Q. Oh, around what part of you?
A. My - his arm was around me like that and then his hand was like squeezing my tits.
Q. Oh, okay. Was that before or after he gave you the vodka?
A. After.
AB said that she told the appellant her name and that he gave her his, but she could no longer remember his first name, only his last name. She remembered his last name because she knew his younger brother, though she had never met the appellant before. He told her he was 15.[32]
[32] GAB 26 - 29.
AB said that when they got to the bus stop, the following occurred:[33]
[33] GAB 29 - 30.
A. Everyone was waiting near the bus stop and then he grabbed my hand and he walked me to like this fence - - -
Q. Yeah.
A. - - - and then I was leaning on the fence and then he, um, yeah, started giving me a hickey - - -
Q. Was - - -
A. - - - trying to give me a hickey
Q. Was he doing anything else?
A. Um, he was touching my private part.
Q. Okay. So describe how he was touching your private parts?
A. He was just touching it.
Q. Which part?
A. My vagina.
Q. Okay. Was that under or over your clothing?
A. Over.
Q. Yeah. And what was he touching your private parts with?
A. His hand.
Q. Okay. Was that at the same time as giving you a hickey?
A. Yeah.
Q. Okay. So that was at the bus stop before you got on the bus?
A. Yeah, the bus came like in one minute.
AB said that when they got on the bus, she sat towards the back next to the window and that the appellant sat next to her. There were initially others on the bus who she knew, including her friend CD.[34]
[34] GAB 32 - 33.
AB then referred to the act of fellatio on the bus. She said that she was drunk at this time, having had too much vodka. She said that the appellant told her that he was going to take her and CD back to his place for 'a session'. He also told AB that he was going to 'fuck the shit out of [her]'. The appellant then pressed the button and they got off the bus.[35]
[35] GAB 36 - 37.
AB said that the appellant took her behind the bus stop. He grabbed her hand and pulled her pants down. She did not say anything because she was too drunk. She said that she was falling over and that the appellant kept standing her back up. She said that her hands were behind the bench seat and that his hands were holding her waist. When asked to describe what occurred, AB said:[36]
[36] GAB 37 - 39.
Q: And what was he doing with your arse?
A. He was trying to like - he was trying to put it in. He kept like moving my arse side to side and everything.
Q. Okay, yeah. So when he tried to put his dick in your vagina, what could you feel?
A. I could feel his dick touching my vagina.
Q. Yeah. So describe the touching.
A. It was like rubbing against my vagina.
Q. Okay, yeah. And how was it rubbing?
A. Like it was rubbing against it.
Q. Yeah, okay. And then you said that he tried to put his dick in your arse. What could you feel when he did that?
A. He was trying to force it in.
Q. Force it in? Okay. So that was different than the vagina?
A. Mm.
Q. Yeah. So, um, what was happening when he's trying to force it in?
A. He was - like he was pulling me back really hard and that, but it just wouldn't go.
Q. Yeah. What could you feel when he was doing that?
A. His dick.
Q. Okay. And then he stopped. Um, did you see what he did next when he stopped?
A. Uh, um he pulled his pants up and then he, um - then he said he needed to go for a piss - - -
Q. Mm.
A. - - - and went around somewhere - like around near a tree.
Q. Yeah.
A. And he started pissing and I turned around for one second and I looked back and he was gone.
After another break in the interview, AB was asked further questions regarding the statement by the appellant that he wanted to take AB and her friend back to his house for a 'session'. AB said that CD said she did not want to do this and that she wanted to go home. AB told the appellant, 'I don't know [because] my best friend wants to go home'. However, she admitted that she wanted to go with the appellant, although she did not think that what ultimately happened was going to happen. She said that she did not want to go with him without CD. When CD got off the bus, the appellant would not let AB get off. CD tried getting back on the bus but the doors had already closed and the bus was driving off.[37]
[37] GAB 45 - 46.
The trial evidence of AB
The recording of AB's child witness interview was played at the trial. She was then asked some additional questions in evidence‑in‑chief.[38]
[38] ts 34.
AB said that she could not be sure how much she had had to drink but that the appellant had held the vodka bottle 'back in [her] mouth'. She described the amount that she drank as being 'a lot' and that she knew she was drunk.[39]
[39] ts 34.
AB said that she did not have a mobile telephone with her that night. She said that there were no other people at the bus stop when she and the appellant got off the bus.[40]
[40] ts 35.
When asked whether there was any discussion between her and the appellant about her age, AB said that the appellant asked her how old she was and that she told him she was 12. He told her that he was 15 and said something to the effect of, 'It's alright. My nigger has got with a 12‑year‑old'.[41]
[41] ts 35.
In cross‑examination, AB agreed that when she was walking with the appellant and the larger group, she was smoking a cigarette, which she shared with the appellant. Whilst they were walking, they talked about smoking cannabis and the appellant said that they could come with him to have some 'cones'.[42]
[42] ts 47 - 48.
AB agreed that the point in time when she told him her age was different to the point in time to when the appellant told her his age. She said the appellant told her his age when they were walking towards the bus stop. Sometime later when they were walking, she said, 'You know I'm 12, right?', but she could not say where that was. When it was suggested to her that it was possible that that part of the conversation did not occur, she said, 'That did happen'. She denied telling him that she was 16. She denied asking him for some of the vodka. She denied that the appellant was drinking from another bottle of alcohol at the time. She agreed that she told CD that she had drunk some vodka but did not tell her that the appellant had made her drink it. She said, 'I didn't tell her and he did do it'. She agreed that she was not scared of the appellant when he forced her to drink vodka because she only thought that they were getting drunk.[43] She said:[44]
I did want to get drunk, but I didn't want him to leave me in the middle of nowhere drunk and did what he did without me saying yes.
So do you agree that you were really drunk by the time you got on the bus?---Yes I was drunk.
And in your interview you say you were blind - blind at the time you were on the bus?---Yes. I was - I was very drunk. I couldn't see much and I was looking around. I was talking to [CD] on the bus and I don't really remember what - much happened on the bus, but I remember that I was very drunk and I couldn't - we kept sitting down and then we kept swapping spots and that was - - -.
[43] ts 48 - 50.
[44] ts 50 - 51.
AB could not recall whether she or the appellant got on the bus first, but she did remember sitting next to him. She agreed that she put her arms around him and that he had one arm around her shoulder. She said that at one point, she got up to talk to someone else on the bus and that the appellant also got up and walked somewhere else. They then both came back and sat together. It was put to AB that after sitting down again, she had kissed the appellant. She said that this was possible but she was not sure.[45]
[45] ts 52 - 53.
AB said that it was her intention to go to the city with everyone else first and then go back to smoke 'cones' with the appellant. When asked to explain why she did not get off the bus with the others when it stopped near the train station, she said it was because the appellant told her to stay on the bus. She said that she told him that she wanted to get off the bus and go to the city but agreed that she did not try to get off the bus. She said that she told her friend CD to stay with her but she had already got off the bus and the bus pulled away before CD could get back on.[46]
[46] ts 53 - 54.
AB agreed that after the others had got off the bus, she and the appellant moved to the back of the bus. She said that the appellant told her to go sit at the back of the bus with him. She agreed that no force was used to get her to walk to the back of the bus but said that he did not tell her that they would be doing anything at that point. She denied that it was her idea to go to the back of the bus.[47] When asked whether she started performing oral sex on the appellant, AB said:[48]
Yes. He was pushing my head up and down.
But his head only went on - his hand only went on your head after you had started sucking his penis? - - - No. He told me to put my head down and do it, and then he put his hand on my head and was pushing me up and down.
So you did what he told you to do; is that what you're saying? - - - Yes, yes.
[AB], I say to you that it was your idea? - - - No. I didn't want to do it. Stop trying to tell me different.
You didn't try and get away from [the appellant] at the back of the bus, did you? - - - There was nowhere else to go. It was a bus. What was I supposed to do?
So you agree you stayed at the back of the bus with [the appellant] - - - Yes.
[47] ts 55.
[48] ts 56.
The questioning then moved to what occurred at the bus stop. AB said that the bus stop looked like other bus stops with a silver bench seat. The bench was at the back of the bus stop, facing towards the houses.[49] When asked about the first attempted act of penetration, AB gave the following evidence:[50]
[49] ts 56 - 57.
[50] ts 58 - 59.
Okay. And you also said in your interview that [the appellant] couldn't get his penis into you because you were so drunk?---Yes.
And you were so drunk that you kept falling over?---Yes. I kept going side to side and I couldn't stand properly.
But weren't you holding on to the bench? Did you just - - -?---Yes. I kept - I kept falling over - like over because I was on - so - because the benches don't have an arms thingy on the side to laying your arm over it. It's like a bench and it's like that and you don't have no arm rests and we're on the bench and I can still tilt side to side and fall over. I can still do that. It's still - there's - you can still do that.
Yes. But you said that [the appellant] had hold of you when he was trying to get his penis - - -?---Yes.
- - - in you - - -?---He was trying - like, he was trying to hold me up too.
But you say you kept falling over?---No. He - I said I kept falling over.
Yes. You kept falling over?---Yes.
What were you falling on to?---Like, the seat and the floor, like - it was, like, I was going on my side to the seat and the floor and I was, like, falling over on my side.
Okay. So you hit the concrete?---Yes. I did hit the concrete at one point and most of the times I was sitting in the bench but - - -
Okay?---I didn't - - -
And the bench was metal, a metal bench or a wooden bench?---Yes. It was like one of them metal benches. Yes. That silver one.
Yes. So did you hurt yourself when you were falling over?---I don't remember being hurt.
Did you have any bruises?---I don't remember looking for bruises. I don't remember seeing bruises.
Even so you've hit the concrete when falling over?---Yes. I don't - no - I don't know. I didn't get any bruises or nothing. I didn't get no bruises. I didn't have no scratches on me. I was drunk that night and nothing had - there was no scratches, no nothing.
You were falling over because you were so drunk. Is that right?---Yes.
Yes. On a scale of 1 to 10, how drunk do you think you were?---I was a 10. I was more than a 10.
And does - more than a 10 would mean that there's bits that you just don't remember?---Yes. There was bits that I don't remember but there's bits that I can remember and it gives me a flashback that I can remember them bits because it was the most terrifying bits of them all.
Okay. Now, you said in your interview that you remember that [the appellant's] penis touched your vagina?---Yes.
And you say that you also felt his penis touch your arsehole?---Yes, he tried to anal me.
[AB], isn't it the case that you were just so drunk that you can't actually be sure what happened at the bus stop?---I do know what happened.
After a short interruption to clarify that answer, AB gave the following evidence:[51]
[DEFENCE COUNSEL]: [AB], do you agree that you also said in your interview that you performed oral sex on [the appellant] at the bus stop?---Yes.
And you say in your interview that this happened after [the appellant] had tried to put his penis in your vagina and anus?---Yes.
Are you certain that that's what happened?---Yes.
[51] ts 59.
It was then put to AB that when she spoke to police at her house on the evening of the incident, she told a police officer that the oral sex had happened at the bus stop as soon as she got off the bus:[52]
[52] ts 60 - 61.
All right. Do you agree that you told her that the oral sex had happened at the bus stop as soon as you got off the bus?---I don't remember saying that to her, no.
Do you remember saying to her that it was after the oral sex at the bus stop that [the appellant] had pulled down your pants to try and put his penis inside you?---No, I don't remember saying anything at all.
And is it that you don't remember because you don't think you said these things or you just don't remember the conversation?---I just don't remember the conversation.
Now, considering you say that the oral sex happened after the other stuff at the bus stop, after he tried to put [his] penis into your vagina and then into your anus, there would have been no reason for you to tell the police officer that it happened the other way, would it?---No.
Because you've always been certain as to what order things happened in at the bus stop?---Yes. I'm pretty sure. Yes.
[AB], I'm suggesting to you that you've given two different stories of what happened at that bus stop?---No.
In fact - - -?---I don't - well, I do remember him - I do remember me trying to get fucked, me trying to [get] analled and me giving him head. I do remember every single bit of that. You can't deny it.
And so when you remember ever single bit of it, you remember the order that I happened in. Is that right?---Yes. So he tried to fuck me first. Then he tried to anal me and because it didn't work out, he wanted me to give him head (indistinct).
Okay. [AB], I suggest to you that that's not what you told that police officer?---Yes. Well, that is what happened.
But you agree that you didn't tell her that?---You - well, I - I don't know. I don't remember the conversation.
AB was then shown camera footage of her conversation with a police officer at her house on the night of the incident.[53] She was then asked:[54]
[53] ts 61.
[54] ts 69 - 71.
[DEFENCE COUNSEL]: Yes. [AB], I'm just going to ask you a question that I asked before, but now you're in a position to say, having seen those two clips, do you agree that you told the female police officer that the oral sex that you say happened at the bus stop happened as soon as you got off the bus?---Yes, I did tell her that, but that's not what happened. It happened (indistinct) I did - - -
Okay. So you agree that you told the officer that it happened as soon as you got off the bus?---Yes. Yes.
And you agree that that is different to what you said in your interview two days later?---Correct.
Is that correct?---Yes.
So you agree that you've given police - you've given, yes, police two different versions of what at that bus stop?---Yes. I (indistinct) around places, yes.
[PROSECUTOR]: Sorry. Can I just ask - - -
HIS HONOUR: I think I heard [AB] say that she 'swapped it around places'?---Yes, I swapped around places.
[DEFENCE COUNSEL]: Do you agree, in that first clip that you watched, though, [AB], that you said that it was after the oral sex that [the appellant] pulled down your pants?---It was after. No.
That's what - - -?---Yes. That's what I said in the video, but - - -
That's what you said in the video. Yes?---That's what I - - -
And - - -?--- - - - (indistinct) before. You're confusing me now.
Okay. I think we're confusing each other, so I'm just going to start again. Do you agree that, in that video, you told the officer that it was after the oral sex at the bus stop that [the appellant] pulled down your pants?---Yes.
And do you agree that that is different to what you told in your interview two days after?---Yes.
Thank you. [AB], these stories are different, aren't they?---But that doesn't (indistinct) whole thing is - that doesn't mean the whole - - -
[PROSECUTOR]: Sorry. I need to - sorry. I need to - - -
HIS HONOUR: Yes.
[PROSECUTOR]: Your Honour, the reference to 'these stories' - I know that there's two pieces of footage being played, so just for the benefit - I don't know (indistinct) speaking to it.
[DEFENCE COUNSEL]: Sorry. I can - [AB], there's two different versions of events that we've been talking about. There is a version that you say where oral sex happened as soon as you got off the bus at the bus stop, and there's a second version where you say it happened after [the appellant] tried to put his penis into your vagina and anus; is that right?---Yes.
You understand?--- (indistinct).
And you agree that those two versions are different?---Yes.
Yes. And do you agree that when you first got home, you even gave a different version, that is, you said you had been raped?---I pretty much had been. I didn't give him consent to do it.
[AB], I say to you that we things - - -?---I didn't - - -
No. No. No. [AB], I get to ask the questions. You have to just answer once I finish with the question. Okay. [AB], there's two different versions because none of this happened at the bus stop, did it?‑--Yes, it did.
It was then put to AB that all that happened at the bus stop was that she and the appellant sat on the bench and that he made a telephone call. AB said that this was not what occurred and denied that the appellant had made a telephone call or told her that she could not come to his house. She said that the appellant did not have a phone and did not make a call. She said that the appellant had stolen some cigarettes from her bag but that she was not concerned about that and so had not previously mentioned it. She said that the appellant walked off without telling her he was leaving but denied she was angry with him for doing that. She did agree that she was upset because she had been left drunk and vomiting at the bus stop.[55]
[55] ts 71 - 72.
AB agreed that when she got home, her mother wanted to call the police and that AB did not want to. It was put to her that the reason for this was that she had made up her story. AB said that the reason she did not want to go to the police was because she was scared that she was going to get 'mobbed'. She was then asked whether she told her mother everything that had happened and she agreed that she did.[56] She was then asked:[57]
[56] ts 73 - 74.
[57] ts 74 - 75.
[DEFENCE COUNSEL]: Yes. So - but do you agree with me that you didn't tell your mum that night that [the appellant] had touched your tits?---No, I didn't tell him - I didn't tell her that. I didn't tell her.
Yes. And you didn't tell her that because that didn't happen, did it?---It did happen. This all happened on - this all happened, so why are you trying to say it didn't?
Where was it - where were you when [the appellant] touched your tits?‑--On the bus.
Are you sure about that?---Yes.
Did he touch one of your breasts or both of your breasts?---One, I'm pretty sure.
Was it your left or your right?---I don't know.
HIS HONOUR: Sorry. I didn't hear the answer to that, [AB]?---I don't.
Thank you.
[DEFENCE COUNSEL]: And was it with his left or right hand?---I do not know.
And how did he touch them?---I'm pretty sure he was putting his arm around my neck and squeezing.
And you say this happened on the bus?---Yes. I'm - yes.
[AB], I suggest to you he never touched your tits that night and that's why you didn't tell your mum?---He did.
[AB], do you agree that you didn't tell your mum that he had touched your vagina?---Yes. I didn't tell her that either.
And you didn't tell her that because that didn't happen either, did it?---It did.
And where did that happen?---At the bus stop.
When everyone was standing around?---Yes. When he came to go give me a kiss.
And did you tell [CD] that had happened?---No.
You also didn't tell your mum that you had felt [the appellant's] penis touch your vagina at the bus stop?---I didn't want to tell mum.
And you didn't tell her that you had felt his penis touch your anus, did you?---I didn't want to tell her that either.
So even so you said you told her everything, you didn't tell her those things, did you?---I didn't want to tell her any of it.
AB was then asked why she had told police officers that she did not want to go into the city because she had enemies in the city. It was put to her that this was inconsistent with what she had said in evidence about wanting to go to the city with the appellant and CD.[58] It was then put to her:[59]
So what I'm saying to you - - -?---I get what you're saying.
- - - is that one of the things you've told me - you've either told me something that's not true, or you told the police officer on that night something that's not true. So which one is not true?---Well, that one because I - - -
The one that you told - - -?--- - - - did want to go to the city. I did want to go to the city.
So then - just stop there, [AB]. So my next question is you would agree that you told a lie to the police officer that night?---Yes.
Yes?---Yes.
And it's not the only lie you told to that police officer, is it?---No. There was the other one about what you just said before.
[58] ts 75 - 77.
[59] ts 77.
In re‑examination, AB agreed that there were some things that she did not tell her mother, including that the appellant had touched her breasts. When asked whether there was a reason she did not tell her mother about that, AB said:[60]
Because I knew that she was going to make a big deal out of it, and I didn't want her to do anything. I didn't want anyone to do anything about it at the start because I knew that I was going to be getting mobbed for this, which I already have, and I'm still beefing with all these girls.
She gave a similar answer in respect of the appellant touching her vagina. She said that she did not want her mother finding out everything. She said she did not tell her mother everything and that her mother still did not know everything that had occurred.[61]
[60] ts 79.
[61] ts 79 - 80.
AB explained that by 'mobbed' she meant 'bashed' by multiple girls at once. She said that was something that did subsequently happen and that she understood that it had to do with the incident because the appellant had told the people who 'bashed' her that she was lying. She said that she knew on the night that the appellant would have friends that were female.[62]
[62] ts 80.
AB agreed that she was easily affected by alcohol and that her memory of the night was not so good but maintained that she remembered what had happened to her. She denied making up a story in order to avoid getting into trouble with her mum about being drunk.[63]
[63] ts 81 - 82.
Evidence of CD
CD is the best friend of AB. She was interviewed on 30 August 2021 and a recording of that interview was played at the trial.[64]
[64] ts 89.
CD said that she and AB had gone to Kewdale to the party, but the party was shut down. They then met some boys whilst walking and CD asked them for a light for a cigarette. One of the boys put his arm around her and another boy did the same thing to AB. They continued to walk to a bus stop. When she looked back she could not see AB. AB then came around the corner and 'was really drunk'. AB said, 'I just had some vodka. He just gave me some vodka'.[65]
[65] GAB 50 - 52.
CD said the bus arrived and they all got on board. AB and the boy were sitting together on the bus and CD was sitting on the other side. CD said she could not really see AB and the boy. AB then said, 'Let's go back to his', but CD said she did not want to and said that she wanted to go home or into the city.[66]
[66] GAB 52 - 53.
The bus arrived at the train station. CD tried to get AB to get off the bus but the boy had his arm around her and was saying, 'No, stay, stay'. CD continued to encourage AB to get off the bus and then got off herself, thinking that AB was right behind her. She then tried to get back on to the bus but 'the bus driver didn't let [her]'.[67]
[67] GAB 53.
CD went into the city at about 10.00 pm - 11.00 pm and saw the appellant on his own at the train station. She asked him where AB was, and he said that he did not know. CD went off with other friends. Later that night, she received a telephone call from AB's grandmother saying that AB had been sexually assaulted. She then went to AB's house and went with her to the hospital.[68]
[68] GAB 53 - 55.
CD was spoken to by the police and provided them with a video that she had taken on her telephone. The video showed AB and the boy walking together to the bus stop (exhibit 2). She thought that the video was taken before AB drank the vodka.[69]
[69] GAB 56; ts 88 - 89.
In cross‑examination, it was put to CD that AB had not said that the boy had made her drink the vodka. She said that she could not remember that, but that AB had said something about 'tipping vodka down her throat'. She agreed that AB had had one or two alcoholic drinks before this.[70]
[70] ts 95 - 96.
Evidence of EF
EF is the mother of AB. She gave evidence regarding the recent complaint given by AB.[71]
[71] ts 104.
EF said that when AB came home, she was screaming and crying. AB appeared to be affected by alcohol. EF said that AB was 'blue drunk'. AB could not stand by herself properly and was slurring her words. This was the first time she had ever seen her that drunk.[72]
[72] ts 106.
EF said that AB came to her bedroom and that they had a conversation. EF could see that AB was upset. She gave the following account of the conversation:[73]
I said, 'What happened, my baby,' you know, 'What's going on,' and she just kept crying and screaming, and then she said, 'He forced me,' and I said, 'Who forced you to do what?' And she said, 'The guy on the bus,' and I said, 'What guy on what bus? What's going on,' you know. And then she kept crying. She - she was like, 'He forced me to give them head,' and I said, 'Say what,' and then I got really pissed off and I said, 'What the fuck did you say,' you know, and she goes, 'He - he forced me,' and she just went back to crying and screaming again. I then stood up. I said, 'Who the fuck made you do that?' I said, 'I will go out and kill him myself.' So I said - yes. She goes, 'No, Mum, don't. Don't,' you know. I said, 'Well, call the cops then or I will go out and I will find the person and I will kill them myself, you know.' She then called the cops - we then called the cops.
Okay. Do you know who called the cops?---I'm pretty sure my mum made the initial call.
[73] ts 106 - 107.
EF said that her mother came into the room whilst AB was telling her what happened.[74]
[74] ts 107.
EF was then asked:[75]
[75] ts 107 - 108.
Yes. Okay. So now did you ask [AB] some more questions about what had happened?---I tried to, but I tried not to because I wanted to go out and kill somebody at that stage. I was quite angry and not in the right state of mind.
Okay. So what else did she tell you?---She said that he had forced her to drink alcohol on the bus and then - pretty much when the cops came and she was a little bit more sobered up, I could understand and we asked her more questions then.
Okay?---Yes.
So before the cops came - - -?---Yes.
- - - did she say anything else about what had happened?---She just said that, 'He forced me to do something,' and I couldn't really get out - - -
Well, what do you remember her saying, 'Forced me to do,' what?---She - she just said, 'He forced me. He forced me,' and I said, 'Forced you to do what?' She said - she did say 'to give head', and then she said that he pulled her - down her pants and left her, like, asleep on the side of a road. So I wasn't too sure what had happened.
Okay?---Yes.
So some police officers arrived at your house?---Yes.
Was it a male and female police officer?---Yes.
Okay. And did [AB] talk about what had happened to her?---Yes, she did. She spoke to [CD] on the phone, to which [CD] ended up coming straight over.
Right?---And she could shed more insight as to who - - -
I'm not - okay. So I'm not asking about [CD]?---Yes. Okay. Yes.
So did [AB] say more about what had happened?---Yes, when the police officers were there. Yes.
Okay. What did she say?---That he tried to pull down her pants at the bus stop and tried to put it inside her, and then she was too drunk and she fell over, and then when she woke up he wasn't there.
Okay. Did she say what he tried to put in where?---Yes. Yes.
Okay. So what do you remember?---She said, 'He pulled down my pants and tried to put his penis inside me, but I was too drunk and - - -'
But did she say (indistinct) 'in me' part?---No.
Did she say what part of her body that was?---No. No. Not that I can recall.
Later in her evidence, EF was asked:[76]
What else did she say about what happened at the bus stop?---She was just too drunk. She ended up falling to the ground and spewing up, and then she - when she, like, kind of came to, she realised that he had gone. She went to somebody that was driving out of their driveway, kind of ran up to them and knocked on their window and asked for a ride home from the bus stop.
[76] ts 110.
Evidence of GH
GH is the grandmother of AB. She also gave recent complaint evidence.[77]
[77] ts 115.
GH said that when she first saw AB, she was sobbing. AB went to a bedroom with EF and EF comforted her. GH was standing at the door of the bedroom and heard the initial parts of the conversation. When asked what she could recall that AB first said, she said:[78]
Okay. Can you remember what [AB] said when they first started talking?---She - I - I can't remember completely, but she either said, 'He raped me,' or, 'He fucked me.' I'm sorry about the language, but I have to tell the truth. And so with that, straightaway I said to my daughter, 'We need to call the police.'
[78] ts 116.
GH said that she could remember AB saying that she had been on a bus and that 'he had grabbed her head and put it down to his crotch'. She heard that AB was under the influence of alcohol and when they got off the bus 'he had her pants down and trying to do things to her'. She was pretty sure that AB said, 'He fucked me'.
GH then went to call the police and left it to EF to deal with AB. After making the call, she did not return to the room where AB was and stayed in her own room when the police arrived. She agreed that she actively decided not to get involved.[79]
[79] ts 117.
In cross‑examination, GH was asked about her impressions of the story told by AB. She gave the following evidence:[80]
[80] ts 119 - 120.
So do you remember saying to the police that you're worried that she is changing her - that there is three different accounts being given?---At first, she said what had happened and then she went to - I'm trying to think. Then she went to it didn't happen and then it did, and I'm thinking, 'Well, as far as I'm concerned, the state that you're in and when you came home and said those words, I'm calling the police.'
But after she had said those first words, she then said it didn't happen?‑‑‑Yes. I - I can't remember the words that she said, but - - -
Do you agree that you were left with the impression that she was changing her story?---A little bit, yes.
Yes. And you were left with the impression, just on what you've said now, that at one point she said it didn't happen?---She didn't say it didn't happen. She changed it to he tried to do it, but it didn't happen, but then at first it did happen. That's why I was confused, but there was an attempt on - yes.
And do you agree that this changing happened after there was a suggestion made to her that the police should be called?---I - I'm not sure. She was, like, on the floor with her mum. She was crying. And straight away I said to her mum, 'I'm calling the police. This is not right.' Yes. Just me being, you know, a grandmother, I suppose.
Now, [the prosecutor] asked you before whether you had actively decided not to get involved in what was happening?---Correct.
And then you said, 'Do you want me to explain more?' and he said he didn't want you to. Can you explain - I would like you to explain - - -?---I have a strained - I have a strained relationship with [AB]. She has stolen from me. She has been out of control at times. So - and I was happy that her mum was back and her mum can deal with things, because I had had enough. And Mum had already been to jail that time when she came back. Yes. And I - I had just had enough, because - yes.
Yes. So she had stolen from you?---Absolutely.
So you have found her to be a dishonest girl at times?---Yes.
In re‑examination, GH confirmed that the reason that she had found AB to be dishonest was because there was an incident in which she had stolen money from GH. She then said:[81]
I mean, I know [AB] is a handful at times, but I truly believe in that situation I needed to call the police. Something had happened.
[81] ts 120 - 121.
Other evidence
One of the police officers who attended at AB's house gave evidence regarding their discussion with her and the seizure of the clothes she was wearing. The body‑worn camera footage was tendered (exhibit 4). In that recording, AB told the police that the second act of fellatio occurred before her pants were pulled down. She also said that she did not want the police to tell anyone that she had made a complaint and suggested that they could say that the bus driver had made the report.[82]
[82] ts 121 - 128.
A forensic scientist gave evidence regarding the DNA testing. The results have been summarised earlier in these reasons. That evidence was not in dispute on the appeal, largely because the trial judge found that it was not evidence of any weight in supporting the prosecution case.[83]
[83] ts 261 - 262.
As noted earlier, the appellant pleaded guilty to charge 3, the act of fellatio that occurred on the bus. This was relied on by the State as propensity evidence in that it was capable of showing that the appellant had a sexual interest in AB and a tendency to act on that interest.[84]
[84] ts 181.
The appellant did not give or adduce any evidence.
Trial judge's reasons
It is unnecessary to summarise the trial judge's reasons. No express errors are alleged. The ground of appeal depends entirely on the sufficiency of the evidence at trial.
The fact that this was a trial by judge alone and that the trial judge provided reasons for his verdicts does not relieve this court of undertaking its own assessment of the evidence. In Dansie v The Queen,[85] the High Court said that undue attention to the factual findings on which the trial judge relied can distract an appeal court from the proper performance of the assessment required by a ground alleging that a verdict is unreasonable or cannot be supported by the evidence. The function to be performed is not to determine whether there was any error in the factual findings of the trial judge but to determine whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the accused is guilty of the offence.
[85] Dansie v The Queen [2022] HCA 25; (2022) 274 CLR 651 [7].
Bearing that in mind, it is only necessary to note that the trial judge had the advantage of seeing and hearing AB give her evidence. His Honour assessed AB as being a truthful, accurate and reliable witness. He found that her responses to the matters raised in cross‑examination were plausible. That included her responses regarding the inconsistencies and other matters referred to in the ground of appeal.[86]
[86] ts 258 - 259.
The trial judge also made findings regarding the disputed factual issue relating to charge 3. His Honour found that whilst the appellant had placed his hands on AB's head at the relevant time, he was not satisfied beyond reasonable doubt that the appellant used force to make AB comply. Nor was he satisfied beyond reasonable doubt that AB did not consent to that act. His Honour was satisfied that AB consented to the first 'few seconds' of that act. His Honour said that this finding did not cause him to doubt AB's evidence in other respects. He was satisfied that she did not consent to any of the other sexual acts.[87]
[87] ts 255 - 257.
His Honour's findings in relation to consent were relevant to credibility. However, absence of consent was not an element of any of the charged offences. Further, s 320 of the Code does not contain a defence of the kind contained in s 321(9).
Relevant legal principles
The principles governing a ground of appeal that the verdict is unreasonable or cannot be supported by the evidence are well known. The principles established by the leading High Court decisions have been outlined by this court many times.[88] In Sturniolo v The State of Western Australia,[89] the principles were relevantly summarised as follows:
[88] See, for example Jago v The State of Western Australia [2022] WASCA 2.
[89] Sturniolo v The State of Western Australia [2023] WASCA 147 [70].
(1)The appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence. It is not simply a matter of deciding whether, as a matter of law, there was evidence to support the verdict. The appeal court must determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand.
(2)The question for the appeal court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
(3)That question requires consideration of whether the jury must, as distinct from might, have entertained a reasonable doubt about the accused's guilt.
(4)In answering that question, the appeal court must pay full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the jury had of seeing and hearing the witnesses. The appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent on the evaluation of the witnesses in the witness box. The assessment of the weight to be accorded to a witness' evidence by reference to the manner in which it was given by the witness is, and remains, the province of the jury, and not of the appellate court.
(5)The question for the appeal court is whether, upon its examination of the record - by reason of inconsistencies, discrepancies or other inadequacy, or in light of other evidence - the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to guilt.
(6)A doubt experienced by an appeal court would be a doubt that a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt.
(7)If the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appeal court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the appeal court must set aside the verdict.
(8)The setting aside of a jury's verdict on the ground that it is unreasonable within the meaning of s 30(3)(a) of the Criminal Appeals Act 2004 (WA) is a serious step, not to be taken without regard to the advantage enjoyed by the jury over an appeal court that has not seen or heard the witnesses called at trial.
An appellate court's function is to determine for itself whether the evidence was sufficient in nature and quality to remove any doubt that the appellant was guilty of the offence.[90] The critical issue is whether the court's assessment of the totality of the evidence leaves the court with a reasonable doubt as to guilt which the court cannot assuage by having regard to such advantage as the jury can be taken to have had by reason of having seen and heard the evidence at trial.[91] The task of this court is to undertake its own independent assessment of the whole of the evidence to determine whether the only rational inference available on the evidence was as alleged by the State and, if not so satisfied, to determine whether the jury's satisfaction could be attributed to some identified advantages that the jury had over this court.[92] References to the advantage of the jury apply equally to a judge where the finder of fact is a judge sitting alone. In such a case, the trial judge has the advantage of having seen and heard the witnesses - an advantage that this court does not have.
[90] Dansie [7].
[91] Dansie [16].
[92] Dansie [37] - [38]; Lang v The Queen [2023] HCA 29 [143], [250] - [251].
Appellant's submissions
The appellant submits that AB's account was affected by discrepancies and inadequacies which ought to have created a reasonable doubt as to the appellant's guilt. AB was affected by alcohol, and this must have compromised her recall of the events. There were also problems with AB's sequencing of the events.[93]
[93] WAB 19.
AB provided two versions about the order in which the acts the subject of charges 4 ‑ 6 occurred. In the child witness interview, AB said that there was attempted vaginal penetration, followed by attempted anal penetration followed by fellatio. In the body‑worn camera footage, AB stated to the police that the fellatio occurred first and that after that the appellant pulled her pants down. The appellant says that this inconsistency is important because in her evidence, AB attributed the fellatio to the fact that the acts of penetration had failed. Thus, it is said that the order of the offences must have been tied to whether they occurred at all. A doubt in that regard is said to be reinforced by the fact that AB sustained no injuries, despite saying that she fell over at the bus stop.[94]
[94] WAB 31 - 32.
The appellant submits that there is a second sequencing issue in relation to charge 1. It is that AB said in the child witness interview that the touching of her breast occurred on the way to the bus stop, whereas in cross‑examination, she said that the appellant touched her on the breast on the bus.[95]
[95] WAB 32 - 33.
The appellant also submits that it is significant that AB did not disclose the acts the subject of charges 1 and 2 (the touching of the breast and the touching of the vagina) to her mother. Further, the disclosures that were made should be questioned given GH's impression at the time that AB was changing her story.[96]
[96] WAB 33, 37.
The appellant relies on factual findings made by the trial judge which are said to militate against AB's depiction of the appellant as engaging in persistent attempts to commit sexual offences against her. These findings are also said to contradict the suggestion that the appellant had a sexual intention that led to the commission of charges 4 ‑ 6. The findings relied on are that it was not proven beyond reasonable doubt that the appellant used force at the time of charge 6; that it was not proven beyond reasonable doubt that the appellant knew that AB was aged 12; that it was not proven beyond reasonable doubt that the appellant caused AB to involuntarily drink vodka; that the trial judge did not give any weight to AB's distress when she arrived home; and that the DNA evidence was not supportive of the prosecution case (because these pieces of evidence were equally consistent with the defence case that the only sexual act that occurred was charge 3).[97]
[97] WAB 33 - 34.
The appellant submits that AB's credibility was undermined by the following matters: AB agreed that she did not really remember much of what had happened on the bus; AB admitted lying to police about having enemies in the city at the relevant time; AB said for the first time in her evidence that the appellant had stolen cigarettes from her; AB agreed in cross‑examination that the appellant had not physically forced her to stay on the bus.[98]
[98] WAB 34 - 35.
Respondent's submissions
The respondent submits that the body‑worn camera footage needs to be understood in the context that AB was still clearly affected by alcohol when speaking to the police. Her speech was slow and she slurred her words. In contrast, when interviewed on 22 August 2021, she was not affected by alcohol. She stated in that interview, and maintained in her evidence at the trial, that the order of the acts was in the order alleged. She expressed no uncertainty in that regard, even when it was put to her that she had given the police a different order.[99]
[99] WAB 55 - 56.
As to the absence of injury, the respondent submits that AB said she fell 'at one point'. She could easily have fallen a short distance on to the bench or the concrete without suffering any injury, or suffering only superficial injuries that she did not notice due to her intoxication.[100]
[100] WAB 56.
As to the inconsistency regarding where the touching of the breast occurred, the respondent submits that it is not clear from the evidence that the same incident is being referred to. AB said in evidence that the appellant squeezed her breast whilst they were walking to the bus stop. In cross‑examination, she was asked where she was when the appellant touched her breast and she said, 'On the bus'. The respondent says that the focus of the cross‑examination at this point was on what had happened on the bus and what AB had told her mother. In this context, it is plausible that the answer referred to another, uncharged, occasion when the appellant touched her breast.[101]
[101] WAB 57.
As regards intoxication, the respondent submits that whilst this is relevant in assessing AB's reliability, it is not the case that intoxicated people belong to a class of witnesses who are to be treated as inherently unreliable.[102]
[102] WAB 58.
As to the lie regarding having enemies in the city at the time, the respondent submits that there is a ready explanation. AB was conflicted about wanting to go to the city with CD or going with the appellant to smoke cannabis. When AB was speaking to the police, her mother and grandmother were present. It is readily understandable that a 12‑year‑old victim of sexual offences may not want to admit to an intention to use drugs. In any event, this lie does not relate to AB's account of the offending, which is supported by her recent complaint, the plea of guilty to charge 3 and the CCTV footage from the bus.[103]
[103] WAB 58 - 59.
As to AB asking the police not to reveal to the appellant that she had complained, the respondent points out that this was said in a context where AB was expressing fear about possible reprisal attacks. The respondent says that AB's fear of being 'bashed' was entirely rational and was expressed at a time when the risk of any contact with the appellant would have been at the forefront of AB's mind.[104]
[104] WAB 59 - 60.
As regards whether AB had a motive to lie, the respondent says that no such motive was found by the trial judge. AB said that her mother's reaction to her coming home intoxicated was not on her mind. Her responses were plausible.[105]
[105] WAB 61.
As regards the evidence of GH that she had found AB to be 'a dishonest girl at times', the respondent notes that this was not relied on by the appellant at trial as being evidence of bad character. Further, it was not put to AB that she was a dishonest person generally or had a reputation for dishonesty. In any event, the respondent says that this was mere opinion evidence that was inadmissible. As to GH's impression that AB changed her story when speaking to the police, the respondent says that this is explained because AB was giving an account that included two acts of attempted penetration. In this context, for AB to say 'it' happened and then 'it' didn't happen was not necessarily inconsistent because the first reference could have been to the sexual acts generally and the second reference to the attempted penetrations.[106]
[106] WAB 51, 62.
The respondent submits that the factual findings referred to by the appellant do not detract from the prosecution case. The fact that there were other possible explanations for AB's distress and the DNA evidence merely means that those parts of the evidence were consistent with both guilt and innocence.[107]
[107] WAB 63 - 64.
Merits of the appeal
The ground of appeal asserts that the evidence of AB was unreliable and lists seven particulars. At the hearing of the appeal, senior counsel for the appellant conceded that the sequencing issue was critical and that the appeal could not succeed unless that issue was made out. That issue is the subject of particular a) regarding the sequence of events at the bus stop (charges 4 ‑ 6) and particular b) regarding where the breast touching occurred (charge 1).[108]
Particular a) - the sequence of events at the bus stop
[108] Appeal ts 3.
The appellant contrasts the account of the events given by AB to the police on the night of the incident with that given by her in the child witness interview. On the night of the incident, AB told the police that the second act of fellatio occurred immediately after she and the appellant got off the bus (that is, before the two acts of attempted penetration). In the child witness interview, AB commenced by giving a general account of what occurred which did not make specific reference to a second act of fellatio. Later in the interview, AB said that the second act of fellatio occurred after the two acts of attempted penetration.
The appellant submits that the inconsistency as to the sequence in which these acts occurred is such that there must be reasonable doubt as to whether they occurred at all. The order of the acts is said to be significant because AB said in evidence that the final act of fellatio occurred because of the failure of the two attempted acts of penetration.
There is plainly an inconsistency, but the significance of it depends on an understanding of the context. When AB spoke to police on the night of the incident, she was heavily intoxicated. She was so drunk that her mother initially had trouble understanding what she was saying. Further, the police did not seek a comprehensive account of what had occurred and their purpose was not to conduct a detailed witness interview. The fact that AB was a distressed 12‑year‑old child, under the influence of alcohol, in the presence of her mother, and that it was late at night, made a detailed interview inappropriate at that time.
In contrast, several days later in the child witness interview, AB was calmer and not affected by alcohol. The interview was conducted under controlled conditions and involved a careful process of eliciting what had occurred. The interview is detailed as to what occurred and as to the order of events. The fact that AB did not refer to the second act of fellatio when she gives her summary at the start of the interview is of dubious significance, given that this does not purport to be anything more than a very broad statement of what occurred.
Any inconsistencies between the two accounts are readily explained by the circumstances in which they occurred. Furthermore, in AB's evidence at the trial, she conceded the inconsistency but was not shaken and maintained on oath that each of the alleged acts had occurred in the order that she had stated in the interview. She said that she was sure that each of the acts she alleged had occurred.
In our view, whilst the inconsistency regarding the sequence of the acts relating to charges 4 ‑ 6 was a relevant matter to take into account in assessing the credibility and reliability of AB as a witness, it was not such as to compel a conclusion that AB was an unreliable witness regarding the occurrence of the sexual acts comprising charges 4 ‑ 6.
Particular b) - the timing of the breast touching
AB said in the interview that the touching of her breast occurred as she and the appellant were walking to the bus. In cross‑examination, AB was asked what happened on the bus and she said that the appellant had his arm around her and was squeezing her breast. She was asked whether she was sure about that and she said she was. It was not, however, put to her that her answer was inconsistent with what she had said in the interview. She strongly maintained that the appellant had touched her breast, notwithstanding that she had not mentioned this to her mother.
It is not clear that there is an inconsistency in this respect. It is possible that there were two acts of touching, one on the walk and one on the bus. That possibility was not dispelled by the questioning. It is not possible to conclude that the answer given in cross‑examination was inconsistent with the evidence given in the child witness interview.
The focus of the cross‑examination was not on any possible inconsistency in this regard, but on why AB had not told her mother about such touching. There is, of course, an obvious explanation for the last point - in her distressed state AB was trying to tell her mother the essence of what had occurred to her, not give a comprehensive account of every detail. In the circumstances, the breast touching was a detail that might very understandably be overlooked. Further, AB said that she did not tell her mother every detail because she did not want to upset her. Given the anger her mother was displaying at the time, that concern was plausible.
Particular c) - the effect of alcohol on AB
AB conceded that she was significantly affected by alcohol at the relevant time and that this had affected her memory. However, she maintained that she could recall each of the acts.
Obviously, alcohol may affect reliability, but it does not necessarily render a witness unreliable. Every case must turn on its own facts. In this case, AB maintained, in clear and cogent evidence, that each of the acts had occurred. The nature of the acts and the impact that they had on AB provided a credible explanation for her retention of a clear memory of them.
Particular d) - the lie about going into the city
AB admitted that she told police that she had not wanted to go into the city at the time of the incident because she was fearful of being attacked. She said in evidence that it was only after the incident that she had a fear of being mobbed by friends and relatives of the appellant if she went to the city. She did not know why she had said to the police she was fearful at the time of the incident. Indeed, she maintained that she wanted to go to the city with CD on the night.
This is a matter that is peripheral to the appellant's account of what occurred. It does not relate to the question of whether the sexual acts occurred. Rather, it relates to whether AB was willing to be in the company of the appellant. She agreed in evidence that she was willing to stay with the appellant because he had promised to have a 'session' with her. In the circumstances, this was a matter of very small significance in any assessment of AB's credibility and reliability.
Furthermore, there is an obvious explanation for why AB might have been confused when speaking to the police. She was distressed and intoxicated at that time. Her fear of reprisal related to going into the city after the matter had been reported to the police. The fact that she was in the presence of the police at the time is likely to have accentuated that fear without providing her with clarity as to when it first arose. However, she clarified the position in her evidence.
Particular e) - asking police not to tell anyone that she had reported the matter
According to one of the police officers, AB did ask them not to tell anyone that she had reported the incident and to say that it was the bus driver who made the complaint.[109] In fact, the body‑worn camera footage reveals that what AB said was, 'Can you not tell him that I told [you]? Can you tell him that the bus driver said…'. It is apparent from this that AB's concern was not that 'anyone' would be told, but that the appellant would be told that she had made a complaint. This was not put to AB in cross‑examination and no explanation was sought from her, but there is an obvious explanation.
[109] ts 128.
AB stated that she had a fear of a reprisal attack. In her evidence at the trial, she said that such an attack had since occurred. Clearly, AB believed that if the appellant learnt that she had reported the matter to the police, she would be physically assaulted by his relatives and friends. In those circumstances, there was very good reason why she would not want the appellant to learn that she had spoken to the police. An adverse inference about her credibility or reliability could not be drawn from this evidence.
Particular f) - motive to lie
The suggestion is that AB had a motive to lie because she feared her mother's anger at being drunk and wanted to provide an explanation or diversion which would account for her state. In effect, the suggestion is that AB made up a story about being sexually assaulted in order to deflect any anger from her mother about being intoxicated. That suggestion was put to AB in cross‑examination, and she denied it.[110]
[110] ts 73.
Furthermore, it must be remembered that the appellant pleaded guilty to charge 3, so it cannot be suggested that AB's claims regarding the sexual acts was a total fabrication. That fact makes this limb of the appellant's argument untenable.
Particular g) - GH's evidence
GH's evidence about finding AB to be 'a dishonest girl at times' must be seen in context. That evidence related to GH's past experience of AB stealing money from her. It was not expressed as being a statement relevant to the claims made by AB regarding sexual offences committed against her.
GH did express a view that AB's story changed, but she was not present during the whole of the period that AB was recounting her story, either to her mother or to the police. Furthermore, in her evidence she explained her concern as being that AB had changed her position on whether a sexual act had occurred. This was explained because two of the acts were attempts. GH appeared to accept that AB may have been trying to explain how something had happened but had not been completed and that this could seem to be a change in her story.
In any event, anything said by GH about the honesty of AB was a mere expression of opinion. If it was admissible (which it is unnecessary in the circumstances of this case to determine), it was only a very minor factor in any assessment of the credibility of AB. This is accepted by the appellant.
Conclusion
The appellant accepted that the appeal turns critically on the sequencing issue and that the appeal can only succeed if that issue succeeds. Other particulars and issues were accepted as only adding weight to the sequencing issue.
The sequencing issue is not made out. The inconsistencies relied on by the appellant are readily capable of explanation and do not compel a conclusion that AB was an unreliable witness. Neither particulars a) and b), taken together, nor all of the particulars taken as a whole, support a conclusion that it was not open to the trial judge to conclude beyond reasonable doubt that charges 1, 2 and 4 ‑ 6 had been made out.
Whilst reliability, unlike credibility, is a matter where the advantage of the finder of fact of seeing and hearing the witness is of less significance, the trial judge did have the benefit of seeing and hearing AB give her evidence and hearing her explanations for the matters put to her in cross‑examination. His Honour found AB to be a credible and reliable witness.
On our own independent assessment of the sufficiency and quality of the evidence, we are not left with a reasonable doubt as to the appellant's guilt. In any event, any possible doubt regarding an assessment of the credibility and reliability of AB as a witness would be resolved by having regard to the advantage that the trial judge had in seeing and hearing her give evidence. It has not been established that, in all of the circumstances, it would be dangerous to allow the verdicts of guilty to stand.
In our view, it was well open to the trial judge, acting reasonably, to be satisfied beyond reasonable doubt as to the appellant's guilt on charges 1, 2 and 4 ‑ 6. The discrepancies or inadequacies in the evidence of AB relied on by the appellant do not lead us to conclude that there is a significant possibility that an innocent person has been convicted.
The trial record does not require the conclusion that the trial judge must necessarily have had a doubt about the appellant's guilt on charges 1, 2, 4, 5 or 6. The verdicts of guilty were not unreasonable. The verdicts were supported by evidence that his Honour was entitled to accept and inferences that his Honour was entitled to draw. The nature and quality of the evidence at the trial were sufficient to remove any doubt that the appellant was guilty.
The ground of appeal has not been made out. An extension of time to appeal 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
25 MARCH 2024
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