HS v Lawford
[2018] WASC 257
•24 AUGUST 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: HS -v- LAWFORD [2018] WASC 257
CORAM: JENKINS J
HEARD: 4 MAY 2018
DELIVERED : 24 AUGUST 2018
FILE NO/S: SJA 1070 of 2017
BETWEEN: HS
Appellant
AND
JASMIN RENEE LAWFORD
Respondent
ON APPEAL FROM:
Jurisdiction : CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE T G SCHWASS
File Number : FR 258 & 259 of 2017
Catchwords:
Criminal law - Appeal against conviction - Sexual penetration of a child under the age of 13 - Capacity - Good character - Whether magistrate gave adequate reasons - Whether prosecution evidence capable of proving the offences
Legislation:
Criminal Code (WA), s 320(2)
Result:
Leave to appeal granted on grounds 1 and 3
Leave to appeal refused on grounds 2 and 4
Appeal allowed on ground 3
Convictions set aside and retrial ordered before a different magistrate
Category: B
Representation:
Counsel:
| Appellant | : | Mr S B Watters |
| Respondent | : | Mr L M Fox |
Solicitors:
| Appellant | : | Mark Andrews Legal Pty Ltd |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Bentley v Greaney [2016] WASC 227
C (A Minor) v Director of Public Prosecutions [1996] 1 AC 1
DL v The Queen [2018] HCA 26
Hayman v Cartwright [2018] WASCA 116
Manonai v Burns [2011] WASCA 165
Melbourne v The Queen (1999) 198 CLR 1
R v F; Ex parte Attorney‑General [1998] QCA 97; [1999] 2 Qd R 157
RP v The Queen [2016] HCA 53
Strahan v Brennan [2014] WASC 190
The Queen v CRH (Unreported, NSWCCA, 18 December 1996)
WS v Gardin [2015] WASC 97
JENKINS J:
This is an appeal from the decision of a magistrate in the Children's Court at Perth on 13 December 2017 to convict the appellant of two charges of sexually penetrating a child under the age of 13 years contrary to the Criminal Code (WA) s 320(2).[1]
[1] As the appellant and the complainant are children, neither of them are identified by name in these reasons and other information which may identify them has been anonymised.
Grounds of appeal
The grounds of appeal are:[2]
[2] The grounds of appeal which were included in the appellant's written submissions filed 10 January 2018 are differently worded but their effect is the same.
Ground 1
The learned Magistrate erred in law when he failed to properly direct himself in relation to section 29 of the Criminal Code;
Particulars:
1.1The evidence adduced by the prosecution did not establish the appellant had legal capacity.
Ground 2
The learned Magistrate erred in law when he failed to direct himself as to evidence of good character adduced by the appellant.
Ground 3
The learned Magistrate erred in law when he delivered reasons that were so inadequate and/or devoid of any analysis that they do not reveal the intellectual process the Court followed to find the appellant guilty;
Particulars:
3.1The reasons do not adequately reveal his Honour properly considered the evidence adduced by the defence;
3.2The reasons do not adequately reveal his Honour properly considered each of the elements of the offence and the evidence that supported proof beyond reasonable doubt;
3.3The reasons do not adequately reveal his Honour properly considered whether there were any inferences, reasonably open, that were favourable to the appellant that supported his acquittal.
Ground 4
The learned Magistrate erred both in law and/or fact when he determined the evidence adduced at trial by the prosecution was capable of establishing guilt beyond reasonable doubt.
Application for leave to appeal
The application for leave to appeal was ordered to be heard with the appeal. The appellant requires leave to appeal on each ground of appeal. If a ground of appeal has reasonable prospects of succeeding, I ought to grant leave to appeal on that ground. That is so even though it or the appeal is ultimately unsuccessful. For the reasons which follow, I have decided that leave to appeal should be granted on grounds of appeal 1 and 3 only.
The charges
The appellant was charged with the following offences:
1.CC FRE 170000258 - between 19 April 2016 and 20 April 2016 at Atwell he sexually penetrated the complainant, a child under the age of 13 years contrary to the Criminal Code s 320(2); and
2.CC FRE 170000259 - between 12 July 2016 and 13 July 2016 at Atwell he sexually penetrated the complainant, a child under the age of 13 years contrary to the Criminal Code s 320(2).
Details of the proceedings in the Children's Court
The appellant pleaded not guilty to both charges. The charges were heard in the Children's Court at Perth on 20 and 21 November 2017 as the appellant was a 13‑year‑old boy at the time of the alleged offences. Magistrate Schwass delivered his reasons for decision orally soon after counsel's closing submissions. He convicted the appellant of both charges.
The prosecution evidence
Evidence of the complainant
Pre‑recorded interview
The complainant's pre‑recorded interview (PRI) was played to the court. The PRI was conducted on 24 January 2017.
The complainant acknowledged his name, his date of birth and that he was 11 years old. The interviewer introduced herself and explained to the complainant his obligation to tell the truth. The interviewer also explained to the complainant:
•to inform her when he did not understand a question;
•not to guess the answer to questions; and
•to inform her if what she said was wrong.[3]
[3] PRI 10.40 am ‑ 10.41 am.
The complainant described the purpose of the interview to be concerning 'someone sexually assaulting me' that occurred more than one time.[4]
The first incident
[4] PRI 10.46 am.
The interviewer prompted the complainant to recall the first alleged sexual assault. The complainant described that he went for a sleep over at 'this older person's house'. The complainant described this person as someone he thought was his friend but that this person would 'normally beat[s] me (the complainant) up'.[5] The complainant later identified this person as the appellant and identified him by name.[6]
[5] PRI 10.46 am.
[6] PRI 11.59 am.
The complainant described that he went into the room for bed and the appellant followed, closed the door behind him and that 'he was raping me (the complainant)'.[7] Previously on the same day, the complainant described that everything was 'normal' and that they were playing on the trampoline but then 'it didn't turn normal' and 'turned into a really bad day'.[8]
[7] PRI 10.47 am.
[8] PRI 10.47 am.
The complainant said after playing on the trampoline they went to a couple of places. The complainant suggested they may have gone to Fremantle but could not recall exactly. Following this they returned to the friend's home and they played Xbox. They then had dinner and because it was almost bed time they went into the bedroom to watch more television. The complainant then wanted to go the sleep but said 'all of the other stuff happened'.[9]
[9] PRI 10.49 am.
When questioned about what 'other stuff' happened, the complainant described that the appellant closed the door and 'raped me'.[10] The complainant said the appellant 'actually pulled my pants down and actually put his private part up my, like …'.[11] When the complainant was further asked about what happened when the appellant closed the door behind him, the complainant re‑stated that the appellant pulled his pants down and then 'put his private part up my bum'.[12]
[10] PRI 10.50 am.
[11] PRI 10.50 am.
[12] PRI 10.50 am.
The complainant stated that prior to the appellant putting his private part up his bum, the appellant grabbed him, pulled him onto the bed and then pulled his pants down. The complainant said the appellant performed these actions 'angrily' and that 'it was really bad'.[13] The complainant said he was raped for one hour. The complainant said he 'scaredly' went to sleep, felt 'horrified' and did not want to be at the appellant's house anymore.[14]
[13] PRI 10.51 am.
[14] PRI 10.51 am ‑ 10.52 am.
The complainant explained that it was 'disgusting'. The complainant said 'he was going so angry at me' and that he (the complainant) had done nothing to him (the appellant).[15] When questioned about when the complainant tried to get out of the room he said that he tried to push him off and it did not work because the appellant would just pull him back.
[15] PRI 10.52 am ‑ 10.53 am.
The complainant recalled that the appellant threatened him that: 'if you tell anybody, I'll punch you, beat you up and you'll never … you'll never think you were ever born again'. The complainant described this as being said 'in a really angry way' and that he was threatened 'so much'.[16] The complainant then mentioned that although he was threatened, it was 'really serious' and he had to tell his mother 'to let it out'. The complainant said that when the appellant stopped raping him, he pulled his pants up and then the appellant pushed him to the ground and made the threats. The complainant described that he felt he was being 'treated crap' and that it 'was the worst day of my (the complainant's) life'.[17] The complainant was visibly upset at this point in the interview.
[16] PRI 10.54 am ‑ 10.55 am.
[17] PRI 10.56 am ‑ 10.57 am.
Following the threats, the complainant said that he had to get back into his (the appellant's) bed and sleep because he could not sleep anywhere else.[18] The complainant said he went to sleep, had a 'really bad dream' and subsequently woke up and packed his things to be ready to go. The complainant said he hoped his mother would be quick to get there but she was not and arrived around lunch time.
The second incident
[18] PRI 10.57 am.
The complainant said that he did not remember the second incident 'too well' as it was 'pretty much the same' as the first incident.[19] He said that it was his mother who suggested that he go to the appellant's house and that 'he had to say yes' to sleeping over because the appellant begged him and because he (the complainant) was so scared and did not want his mother to find out.[20] On arrival, the complainant said he was scared and did not want to be there. The complainant walked into the appellant's bedroom and he tried to fall asleep in case the appellant was thinking 'he might do it again'.[21] The complainant said the appellant came into the room when everyone else was asleep, woke him up and started raping him again.
[19] PRI 11.00 am
[20] PRI 10.59 am ‑ 11.00 am.
[21] PRI 11.01 am.
The complainant further explained that the appellant was waiting in the room watching television until everyone went to sleep and then started raping him.[22] In describing the rape and after the appellant got into bed, the complainant said the appellant pulled the bed covers off, woke him up, pulled his pants down and put his private part up the complainant's bum.[23]
[22] PRI 11.04 am.
[23] PRI 11.04 am.
The complainant further explained that the appellant woke him up by slapping him on the face. The complainant said the appellant was laughing but then became angry and started raping the complainant.[24] The complainant recalled the threat made to him by the appellant: 'I'll beat you up even harder if you tell anybody. I'll strangle you to death'.[25]
[24] PRI 11.43 am ‑ 11.44 am.
[25] PRI 11.45 am.
The complainant said he 'hated it so much', did not like it, was angry, scared and sad and that he wanted to punch the appellant in the face. He also told his mother that he 'didn't want to be near him [the appellant] ever again' and that the appellant beat him up.[26]
[26] PRI 11.02 am.
The complainant described that he told his mother about everything that happened two days into their family's Bali trip.[27]
[27] Other evidence established that this was in January 2017.
The complainant gave further details of when his pants were pulled down, saying the appellant grabbed him and put him over the side of the bed on his knees. The complainant tried to get out but was pulled back by the appellant. The complainant said he was then put into the same position and was raped for about 30 minutes.[28] While being raped, the complainant said the appellant punched him in the back once.
[28] PRI 11.06 am ‑ 11.07 am.
When the appellant stopped raping the complainant, the complainant said he was let go and told to sleep on the floor. The complainant said he left the room but did not know where to go because everyone was asleep and he did not wish to wake the appellant's parents. The complainant returned to the appellant's bedroom to go to sleep. The complainant said that was the last time the appellant assaulted him.
The next morning, the complainant said he woke up and had breakfast. Due to the events of the previous night, the complainant said it was not really a normal day and that he tried to let everything go and get out of the house as soon as possible.[29] The complainant said his mother came earlier to pick him up - so that was better than the last time.
[29] PRI 11.09 am.
The complainant further clarified that:
1.His mother was the first person he told about the two complaints.[30]
[30] PRI 11.48 am ‑ 11.49 am.
2.The use of the term 'private part/s' meant 'penis' in relation to the first[31] and second incidents.[32]
[31] PRI 12.00 pm ‑ 12.01 pm.
[32] PRI 12.05 pm.
3.The approximate location of the first[33] and second incidents[34] was the appellant's house.
[33] PRI 12.01 pm.
[34] PRI 12.05 pm.
4.The first[35] and second incidents[36] occurred in the appellant's bedroom.
5.He was unsure of the exact dates but the first incident occurred approximately one - two years ago and when he was around about 9, almost 10, years old (in years 5 or 6 of school).[37]
6.The second incident occurred when he was 10 years old.[38]
7.The appellant's mother, step‑father, sister and possibly his infant sister were in the house when the first incident occurred. He was unsure whether the appellant's infant sister had been born by that time. Only he and the appellant were in the appellant's bedroom when the incident occurred.[39]
8.The appellant's mother, 'dad', sister and possibly his infant sister were in the house when the second incident occurred.[40]
9.He did not notice anything different about his body after the first[41] and second incidents.[42]
10.When he was pulled by his shirt it did not rip but rather it became stretched out.[43]
11.The first and second incidents were not recorded by a camera, mobile phone or a computer.[44]
Evidence‑in‑chief
[35] PRI 12.01 pm ‑ 12.02 pm.
[36] PRI 12.05 pm.
[37] PRI 12.02 pm.
[38] PRI 12.06 pm.
[39] PRI 12.03 pm ‑ 12.04 pm.
[40] PRI 12.06 pm.
[41] PRI 12.04 pm.
[42] PRI 12.07 pm.
[43] PRI 12.08 pm.
[44] PRI 12.09 pm ‑ 12.10 pm.
The complainant gave evidence that the appellant had anal sex with him on two separate sleepovers at the appellant's home.
First incident
The complainant testified that:
1.The appellant pushed him down onto the bed and pulled his pants down to his knees. The appellant held him down by pushing his hands against his hands and then pulled him up by his collar.[45]
2.He tried to resist being pulled up and tried to get out by pushing the appellant away.[46]
3.While he was standing, his legs were far apart and the appellant stuck his penis into his anus. The appellant then pushed him and he tumbled onto the floor.
4.The appellant threatened him.[47]
5.He did not yell out to anybody in the house.[48]
Second incident
[45] ts 8.
[46] ts 9.
[47] ts 11.
[48] ts 12.
The complainant testified that:
1.He woke to the appellant slapping him on the face. The appellant pulled his pants down to his knees. The complainant was put on his knees and his anus was facing towards the TV. The appellant was behind him.[49]
2.While on his knees, he struggled to get out. He eventually got out of that position and tried to run but the appellant blocked him and pulled him back. The appellant threw him onto the bed in a lying down position (on his stomach) and put his fingers into his anus.[50]
3.The appellant punched him hard in the back once. He did not call out to anyone in the house due to a threat and the previous threat.[51]
4.The appellant put his penis into his anus. He did not say anything when he felt pain (as on the previous occasion)[52] and groaned.[53]
Cross‑examination
[49] ts 12.
[50] ts 13.
[51] ts 14.
[52] ts 12.
[53] ts 14.
The complainant stated he first heard the word 'rape' at school in year 6.[54] The complainant said the appellant 'always beats me up', that he was scared of the appellant and they socialised 'heaps of times'.[55]
[54] ts 17.
[55] ts 19 ‑ 20.
On previous occasions, the complainant was too scared to mention to his mum that the appellant used to beat him up. The complainant said he had never been physical with the appellant.[56]
First incident
[56] ts 22.
In relation to the first incident the complainant testified that:
1.He went into the appellant's bedroom first when they went to bed. He had been in the bedroom for five minutes before the appellant entered. The appellant did not start immediately raping him.
2.The appellant pulled his pants down and got him onto the bed. After he (the complainant) stood up, the appellant started raping him against the wall.[57]
3.No one else was awake at the time.
4.The appellant's mother did not usually tell them when it was time to go to bed.[58]
5.He did not say anything while being raped because he was scared of the appellant because he had previously 'beaten me (the complainant) up'.[59]
6.The appellant's sister had a friend sleeping over that night and the appellant's bedroom door and his sister's bedroom door were right next to each other.[60]
7.The appellant penetrated his anus with his penis a total of three times over a period of one hour on the first occasion.[61] When the appellant's penis was inside the complainant's anus it was moving and going up and down slowly, then got quicker and quicker.
8.He did not report the physical pain or the repeated penetrations to police because the interviewing officer did not ask him.[62]
Second incident
[57] ts 24.
[58] ts 25.
[59] ts 25.
[60] ts 26.
[61] ts 28 ‑ 29.
[62] ts 30.
The complainant gave evidence that he recalled the appellant's mother coming into the appellant's bedroom, tucking them into bed and telling them to get an early night on the night. After that the appellant penetrated him twice over a period of about 30 minutes.[63]
[63] ts 29 and 58.
On the following day the complainant went ice skating and to Cicerello's in Fremantle with the appellant and his family. The complainant was played a video recording taken that day of him playing with the appellant and the appellant's cousin, a much younger girl, at a park nearby. The recording which runs for nearly four minutes shows the appellant and the complainant interacting physically as they played with the third child and a ball. The appellant who was physically larger and stronger than the complainant grabbed and pushed the complainant on a few occasions and may have pushed him over. However the complainant also physically contacted the appellant during play.
The complainant's first disclosure of the incidents
The complainant did not tell his mother about both incidents until January 2017, eight months after the first incident (occurring in April 2016) and five months after the second incident (occurring in July 2016).[64] The complainant said he was too scared to tell his mother after the first incident and went back for the second sleepover.[65] The appellant threatened to 'strangle (the complainant) to death' and the complainant agreed that he was terrified of the appellant.[66]
The time between the second incident and when the complainant reported the incidents
[64] ts 44. These dates were not in issue and were established by later evidence given on both matters.
[65] ts 44 ‑ 45.
[66] ts 53.
The complainant agreed that after the second rape he was in contact with the appellant at social events. The complainant said he told his mother that he was scared and did not want to go over the appellant's house again.[67] The complainant denied the defence counsel's allegation that he had made up the rape allegations after watching pornography showing two men having sex and to avoid getting into trouble for watching pornography.[68] The complainant denied on one occasion having his pants down and chasing the appellant and another child.[69]
Evidence of the complainant's mother
Evidence‑in‑chief
[67] ts 59.
[68] ts 60 ‑ 63.
[69] ts 63.
The complainant's mother met the appellant's mother approximately five years ago.[70] The complainant's mother's two children (including the complainant) and the appellant's mother's two children (including the appellant) had occasional sleepovers at each of their houses.[71]
[70] ts 69.
[71] ts 70.
After the last time the complainant stayed at the appellant's house (July 2016), the complainant's mother said he went to his room and was visibly upset. The complainant explained that the appellant had been mean to him and hurt him.[72] Following this, there were no further sleepovers and they only saw the appellant twice in the following months. The first of these occasions was at a beach with mutual friends. The complainant's mother said the complainant was playing with another group of kids and would normally 'hang out' with the appellant and another child but on that day he played with another group of children.[73]
Complainant's disclosure of the incidents - Bali
[72] ts 70.
[73] ts 70.
The complainant's family arrived in Bali for a holiday in early January 2017. Three days into the holiday the complainant approached her, was looking very upset and asked to talk to her. They went and sat outside the complainant's mother's room and the complainant mentioned his brother was teasing him. The complainant started sobbing and blurted out that the appellant had raped him.
The complainant's mother established from the complainant that the appellant had put his penis into the complainant's anus. The complainant was crying and the complainant's mother took him inside and laid down and held him on the bed with him for about 45 minutes. The complainant's mother clarified with the complainant what had happened and the complainant said:
•the appellant was too strong for him;
•he was scared; and
•that it had happened on two occasions.[74]
[74] ts 71.
When the complainant's mother returned from Bali she made a report to police.
The first incident
The prosecution produced an SMS message between her and the appellant's mother in relation to the first sleepover which indicated that it occurred on Tuesday 19 April 2016.[75]
The second incident
[75] ts 73 ‑ 74.
The complainant's mother said the second sleepover occurred in the July holidays and that the complainant did not want to go to the sleepover. The complainant's mother said she had already responded straight away to the appellant's mother's text message (asking if the complainant would like to sleepover) and said '[y]es, [the complainant] would love to come over'. This indicated that the second relevant sleepover occurred on or about Tuesday 12 July 2016. The complainant's mother said she felt sorry for the appellant because she had already told the appellant's mother that the complainant would go.[76]
After the second incident
[76] ts 72, 75.
After the complainant came home from the sleepover he was distressed. He was so upset that the complainant's mother apologised to him and said 'I'm so sorry for making you go there when you didn't want to go' and '[y]ou never have to go back and sleep over again'.[77] The complainant never went back nor was asked to go back.
[77] ts 75.
The complainant's mother said the complainant was previously 'always such a happy‑go‑lucky kid' and that she 'just noticed a difference in his behaviour'. He had a lot of anger and when he got down on himself would say, 'I want to kill myself'. The complainant's mother said the complainant seemed to have a lot of anger at her.[78]
Cross‑examination
[78] ts 76.
The complainant's mother had not noticed any reaction of the complainant prior to July 2016. She agreed that the complainant and the appellant had had as many as maybe eight sleepovers at either one of the boys' homes.[79] The complainant's mother reiterated that the only social occasions that both the complainant and the appellant attended after the July sleepover was at the beach and the complainant's mother's birthday.[80] After the second social occasion, the complainant said to his mother that the appellant had been mean to him but did not go into detail.
[79] ts 78.
[80] ts 79.
The complainant's mother could not recall:
•an occasion where the complainant had run after the appellant and another child with his pants down; and
•any efforts of the complainant to contact the appellant via Instagram.[81]
[81] ts 82 ‑ 83.
At the time of the complainant's first disclosure of the incidents, his mother already knew he had seen pornography because he had told her approximately one to two months before. The complainant burst into tears, started sobbing and made the disclosure about the appellant.[82]
After the second incident
[82] ts 83.
The complainant's mother said the complainant was agitated and upset after he returned from the sleepover. She asked him what was wrong and he said the appellant was meant to him and had hurt to him. The complainant's mother apologised to him.[83]
[83] ts 86.
A video recording of the appellant and the complainant playing together following the second incident was shown to the complainant's mother. The complainant's mother agreed that her son's behaviour in that video was not distressed, upset or angry but she said that he was like this when he arrived home.[84]
Report to police
[84] ts 87.
The complainant's mother said she did not believe the appellant had shown the complainant pornography. It was after the police complaint that she realised it was shown to him by some year sixes at school.[85] The complainant's mother admitted that she assumed the appellant had shown the complainant the pornography and had provided that information in the police report.[86]
Evidence of the respondent
Evidence‑in‑chief
[85] ts 87.
[86] ts 88.
Ms Jasmin Lawford (the respondent) is a detective first class constable at Midland Detectives Office and was the investigating officer for this matter. The respondent did not take the initial complaint that was made to police but she interviewed the appellant with another police officer. The interview was electronically recorded (the EROI).[87]
[87] Exhibit D.
The EROI was conducted with the appellant when he was 13 years and 10 months old. The appellant told the respondent that he was in year 9 and could read and write English. He said that he was not affected by alcohol or drugs and was not suffering from any illness or injuries. The appellant was cautioned and accurately, albeit briefly, explained the effect of the caution to the interviewing officer. The appellant was advised of the allegation that he had sexually penetrated a child under the age of 13 years on two occasions. He said that he understood sex to be between a male and a female. The appellant's father then interrupted and there was a discussion between the interviewing police officers and the appellant's father about whether the interview would continue. The respondent then said that she would explain the allegations to the appellant and his father. She said that it was alleged that around April 2016 when the complainant was having a sleepover at the appellant's home, the appellant had pushed the complainant face down onto the bed and put his penis 'into his bum'. The respondent said:
So there's one count of sexual penetration we're talking about penis going into the bum and a deprivation of liberty sort of means when you stop someone from going somewhere or from getting away and that's in relation to holding his hands down on the bed.[88]
[88] EROI ts 14.
The respondent then said that the second occasion happened in July 2016 again during a sleepover. She said that it was alleged that the appellant had woken the complainant up, pulled the covers off him, pulled him down onto the floor and again penetrated him by putting his penis 'into his bum'. The respondent said:
So similar to the first time, there's the one count of sexual penetration with the penis in the bum.[89]
[89] EROI ts 15.
The related allegations of deprivation of liberty do not seem to have been the subject of charges.
The appellant's father then said that he wished to speak his lawyer and the interview was suspended for that to occur.
When the interview recommenced about 30 minutes later, the appellant's father confirmed that he had spoken to a lawyer and that he was happy for the appellant to be questioned. The respondent advised the appellant that it was up to him, not his father, whether he answered the questions. She asked the appellant questions to ascertain whether he wished to answer questions. The respondent then asked the appellant for his response to the allegations of sexual penetration and the appellant replied that 'none of it is true'.[90]
[90] EROI ts 17.
The interviewing police officer asked the appellant to tell her about the complainant. He said that they were supposedly friends and they got along well. The appellant said that the complainant sometimes acted 'a bit weird'.[91] He said that he recalled an incident where the complainant with his pants down had chased him and another friend. He also said that the complainant watched 'porn' and had told the appellant not to tell anyone. He said that he had known him for about five years and that they had met at primary school.
[91] EROI ts 17.
The appellant recalled only one sleepover when the complainant had slept over at his house and the next day they had gone ice skating. He said that on that occasion he and the complainant had gone outside and played soccer and later watched TV or some videos. They went into the appellant's room and played Xbox 'til really late or something like that'. They had then gone to sleep. He said that he always kept his bedroom door open.[92]
[92] EROI ts 19.
The appellant said that he had only just turned 13 at the time of the sleepover. He was asked further questions and confirmed some of the information he had given including that they had played Xbox until quite late 'one or two or something'. He also confirmed that he kept his door open and that he and the complainant had slept in the same bed. He also said that his sister had slept in the room next to his bedroom.[93]
[93] EROI ts 23.
The interview continued with the appellant giving further details of his contact with the complainant including on a new year's eve where there had been conflict between the complainant, the appellant and his other friends. The appellant was clearly able to understand the questions asked of him and was able to give rational answers to them. However, the appellant was adamant that the complainant had only stayed at his house once.[94]
[94] EROI ts 34.
The appellant also related an incident where he had been at the complainant's house with his sister and the complainant's brother. The appellant had gone into the complainant's room. He saw that the complainant was looking at pornographic images of two females on his iPad. He said that the complainant had told him that he did it all the time. The following exchange then took place between the police officer and the appellant:[95]
SGT Roberts: Nup. So you didn't dob on him or anything like that?
S:No. I didn't want to do that because he's my friend. But I knew that I was doing the wrong thing and I wasn't thinking straight at the time. So - -
[95] EROI ts 39.
Later in the interview, the specific allegations subject of the charges were put to the appellant. He denied the allegations and said that he did not know why the complainant would make the allegations when they had a good time and they were friends.[96] The appellant told the police officers in answer to their questions that he knew that it was 'a really bad thing to watch' pornography. He said that he had been told that it 'can drag you into some things and stuff like that'. He was then asked the following series of questions:[97]
[96] EROI ts 41.
[97] EROI ts 44 ‑ 45.
SGT Roberts: Do you know how old you, and I appreciate you may not know. Do you know how old you have to be to have sex, legally?
S:Yeah. It's eighteen.
SGT Roberts: Eighteen? Okay. If you were, um, let's say there were, um, two kids your age having sex, is that the right or wrong thing to do?
S:Wrong.
SGT Roberts: Okay. Do you think you would've known that as a right or wrong thing a year ago or two? You know, if that was, so - -
S:Oh, I knew it a year ago.
SGT Roberts: Yep.
S:Maybe there years ago, maybe not.
SGT Roberts: Three years ago when you were, how old are you now??
S:So I'm thirteen now, so I was ten.
SGT Roberts: So I know you were ten, you might not have known the difference?
S:Yeah.
SGT Roberts: But you're saying between then and now you - -
S:Um, um, yeah.
SGT Roberts: It's like you know that it's not the right thing to do?
S:I think three years of high school health. And I knew the sort of things like that.
SGT Roberts: Do they do, like, when you say health, is that like sex ed?
S:Yeah.
SGT Roberts: Do they do that at school anymore?
S:Yeah. Sex - -
SGT Roberts: And what's, okay. Alright. Um, when did they start doing that? What year in school, do you remember?
S:Oh, it starts. It does it every year. So I had it, um, year seven, year eight and I've restarted it in year nine.
Seven photographs[98] were identified by the respondent as being photographs of the address where the sleepovers took place.[99]
Cross‑examination
[98] Exhibit B.
[99] ts 94 ‑ 95.
The respondent confirmed the appellant did not have a prior criminal record.[100]
[100] ts 95 ‑ 96.
The respondent did not have occasion to inspect the complainant's Instagram account and did not conduct any inquiries to establish whether the complainant had any other social media platforms during the period of the offending.[101]
[101] ts 96.
The defence evidence
Evidence of the appellant's mother
Examination‑in‑chief
The appellant's mother recalled the first sleepover between the appellant and the complainant to be in 2015 and estimated there were four sleepovers.[102]
The first incident
[102] ts 100.
The appellant's mother suggested that the complainant sleep over, as the appellant's sister also had a friend staying over. The appellant's mother messaged the complainant's mother who agreed that the complainant would sleep over.[103]
[103] ts 100.
The appellant's mother said the appellant was not as excited to have the complainant sleep over, as the appellant previously asked for another child to sleep over (who was unavailable). The appellant's mother observed that the appellant and the complainant did not have a lot in common and that they were very different.[104] She said she never saw them have a fight.[105]
[104] ts 102.
[105] ts 103.
In regards to the sleeping arrangements, the appellant's mother said the boys slept in the appellant's double bed. The boys would go to bed at about 9.30 pm or 10.00 pm at her instigation. After she sent them to bed, she would only have cause to look in on them or speak to them if she 'heard the TV was still on or, or something'.[106] The appellant's mother said the appellant and the appellant's sister always slept with their bedroom doors open. The appellant's mother was shown the floor plan of her house where the sleepovers took place. The appellant's bedroom was immediately adjacent to his sister's bedroom door. Those two bedrooms were at the back of the house. A hallway led from them past a laundry, bathroom, baby's bedroom and walk‑in‑robe to the appellant's mother's bedroom at the front of the house.
[106] ts 104.
The appellant's mother said she was a very sensitive sleeper (as she had a baby) and would have heard anything unusual. She did not hear anything during that night that was of concern.[107] The next morning she said the complainant seemed fine, did not have a different demeanour and that she would have noticed something unusual.[108] The appellant's mother said she had a home phone and the complainant did not express any desire to go home early.
Time between April and July 2016
[107] ts 106.
[108] ts 107.
The appellant's mother said the complainant and the appellant had social contact between the two alleged incidents. On one occasion, a group of families went rock climbing. The appellant's mother said she 'didn't really' observe the appellant and the complainant interacting. The appellant's mother did not notice anything different with the complainant's behaviour.[109]
The second incident
[109] ts 108.
The appellant's mother said the appellant had asked for another child to sleep over but he was unavailable. Similar to the first sleepover, the appellant's mother suggested he invite the complainant. The appellant's mother messaged the complainant's mother.[110] The same sleeping arrangements were made for the complainant and the appellant. The appellant's mother said she made sure the kids went to bed at a reasonable time to be up early for ice skating. She remembered tucking them in and said they seemed happy and excited about going ice skating.[111] The appellant's mother did not notice anything different about the complainant's behaviour or demeanour and thought he was in a great mood.
After the second incident
[110] ts 109 and exhibit C.
[111] ts 112 ‑ 113.
The next morning, the appellant's mother said the complainant was great and it was a normal morning. They then went ice skating. The appellant's mother was shown a photograph of the children at the ice skating rink which shows the complainant looking happy.[112] After ice skating, the boys went tobogganing and the appellant's mother said the complainant did not seem to have any difference in his behaviour or demeanour.[113]
[112] Exhibit 4.
[113] ts 114.
The appellant's mother was shown the video recording[114] of the appellant, the complainant and another child playing with a ball.[115] After ice skating, having something to eat and playing, the appellant's mother dropped the complainant home, she said that the complainant had not expressed a desire to go home earlier.
[114] Exhibit 1.
[115] ts 115 ‑ 116.
Following the two sleepovers, the appellant's mother recalled other social occasions with the complainant at a party and at the horse races. The appellant's mother said she did not notice any difference in the way the complainant and the appellant were interacting.[116]
[116] ts 117.
The appellant's mother denied that she had seen the appellant ever acting in a sexually inappropriate way to any child or speaking about sexually inappropriate things.[117]
Cross‑examination
[117] ts 119.
The appellant's mother was shown two text messages arranging the sleepovers.[118] The appellant's mother said it was usual practice for the mothers to arrange the sleepovers and confirmed that the complainant was the appellant's second choice for a sleepover.
[118] Exhibit C.
In one of the text messages she had written that the appellant was 'hanging out for him (the complainant) to come over'.[119] The appellant's mother confirmed that the appellant was happy to have the complainant come over and wanted someone to play with.
[119] ts 120.
On the night of the second sleepover, the appellant's mother's sister (the appellant's aunt) and her daughter (the appellant's cousin) stayed the night too. The appellant's mother could not recall where they slept. The appellant's mother confirmed she would always tuck the children into bed.[120]
[120] ts 124 ‑ 125.
The appellant's mother admitted she knew that the appellant looked at pornography but said he only looked once - a couple of years ago - when he was in year 7.[121] The appellant's mother said that the appellant told her that the complainant watched a lot of porn and chased him with his pants down. The appellant's mother did not raise these issues with the complainant's mother.[122]
Evidence of the appellant's aunt
Examination‑in‑chief
[121] ts 125 ‑ 126.
[122] ts 127 ‑ 128.
The appellant's aunt had met the complainant about 15 times prior to the second incident.[123]
[123] ts 131.
At the time of the second incident, the appellant's aunt could not recall where her or her daughter slept in the home but she said that it was generally in the front lounge room. The front lounge room was not open to the appellant's bedroom and it was towards the front of the house.[124] She recalled that she did not see the complainant's mother when she dropped the complainant at the appellant's house[125] but had previously met the complainant's mother.[126] The appellant's aunt said the appellant and the complainant were 'mucking around and playing' and slept in the same room that night. She said they appeared 'fine'. The appellant's aunt stated that the children went to bed before the adults and that the appellant's mother and she were responsible for monitoring the kids after they went to sleep.[127]
[124] Exhibit 2.
[125] ts 132.
[126] ts 133.
[127] ts 133.
The appellant's aunt said the appellant's sister's bedroom door was slightly open that night but could not recall if the appellant also had his door open during the night. To her knowledge, it was generally left open. She recalled the children probably went to bed about 8.30 pm or 9.00 pm, that nothing untoward occurred during the course of the night and there were no noises that woke her up.
The appellant's aunt woke up the next day at about 6.00 am or 6.30 am and said that no one else was awake.[128] She recalled the appellant and the complainant awoke at the same time - about 8.00 am. She recalled the complainant and the appellant seemed fine and appeared to be having a good time at ice skating.[129] After ice skating, at a café she said that, all the kids seemed fine including the complainant, and to be having a great time. The appellant's aunt recalled herself being in the appellant's mother's car when they dropped the complainant home. She recalled the complainant seemed fine at this point.[130]
[128] ts 134.
[129] ts 135.
[130] ts 136.
Previously, between April and July 2016, the appellant's aunt recalled being on a social outing where the complainant was present (two to three days before the ice skating). She recalled that the complainant appeared to be fine and having a great time.
The appellant's aunt had never observed the appellant acting in a sexually inappropriate way to other children.[131]
Cross-examination
[131] ts 137.
The appellant's aunt confirmed that her usual practice was to sleep in the lounge room at the front of the house. The appellant's aunt could not recall if her daughter slept with her in the lounge room that night. She confirmed that the children were put to bed about 9.30 pm ‑ 8.30 pm, 9.00 pm.
The appellant's aunt could not recall the time she went to bed but said it was after they had put the children to bed.
The magistrate's reasons
The magistrate commenced his reasons by stating a number of facts which he said were not in contention. These were:
1.The ages of the appellant and the complainant. The complainant was born in March 2005 and was 11 years of age at the time of the alleged incidents. The appellant was born in March 2003 and was 13 years old at the time of the alleged incidents.
2.That there was a sleepover on the evening of 19 April 2016.
His Honour noted that this was not a case where there was a possibility that the appellant or the complainant had different 'perceptions'. It was a case where one of them was not telling the truth. However, his Honour noted that it was not a question of whose evidence he preferred, but rather he had to be satisfied to the standard of beyond reasonable doubt of every element of the offence.
His Honour then said that the first question which arose was whether pursuant to the Criminal Code s 29 'the [appellant] had knowledge that what is alleged to have occurred is an offence'. His Honour said that he had 'no difficulty with that at all'[132] and that not much had been made of that issue. However, it had been 'clearly and professionally' dealt with by the interviewing police officer in the EROI. His Honour concluded that he 'had no difficulty with finding that the [appellant] knew that to sodomise someone under the age of 13 was an offence'.
[132] ts 156.
The magistrate then referred to the PRI of the complainant. He said that 'this one has nothing in it that creates any doubt in my mind at all'. He noted that the complainant had made the statement that he was raped and then provided detail of that complaint. His Honour said that more detail had been provided in cross‑examination 'as one might expect'. The magistrate accepted as totally plausible the complainant's explanation as to why he had not provided that detailed level of information to the police. That was because he was not asked the relevant questions but was rather left to tell his story without being pressed for details.
The magistrate found that the complainant's inconsistencies were a few minor discrepancies which would be expected by someone giving an account of events that had occurred sometime previously.
The magistrate found that the complainant's claim that the first incident had lasted an hour and the second one 30 minutes was not correct. His Honour found that those claims did not detract from the essence of the complainant's evidence that he was raped. The magistrate said that the corroboration for the complainant's claims was 'slight'.[133]
[133] ts 157.
The magistrate referred to the evidence that everything appeared normal after the second sleepover. The magistrate said that he did not have any difficulty with it being possible for a complainant to disguise events that had occurred the previous evening. He said the complainant's explanation that he had been threatened provided a plausible explanation as to why he did not alert the adults in the house to what had occurred.
The magistrate found that there was a telling reaction by the appellant 'when the evidence was being played of that video - record of interview when the threat of being strangled to death was mentioned by [the complainant]'.[134]
[134] ts 157.
The magistrate noted that the complainant's delay in making the complaint about the incidents was not evidence that the complaints were not true. He said that nothing adverse as to the truth of the allegations was to be drawn from the fact of delay.
His Honour acknowledged that there might have been some good reason for the complainant to make up a false story; that is, that his brother was going to tell on him for watching pornography but that did not in the magistrate's mind create any doubt.
His Honour said that there was nothing in the complainant's demeanour that caused him to have any doubt as to the essence of his evidence that the offences had occurred. He noted that the complainant's demeanour was congruent with his allegations. That is, the complainant was crying and visibly uncomfortable at times. His body language 'appeared to reflect the anguish that he was shown'.
The magistrate noted that the cross‑examination of the complainant was thorough and some inconsistencies were proven. However, the magistrate did not regard them as detracting from the complainant's 'inherent credibility'. He said that he expected that a young person giving a detailed account of events that occurred some time ago would have some minor inconsistencies.
The magistrate found that he had no difficulty with the submission that it was incredible that in a house in where the internal doors were open the alleged offences could occur without somebody becoming aware of their occurrence. He acknowledged that the fact that there was a child's monitor made it seem 'slightly incredible' but it did not in the magistrate's mind 'create any doubt'.[135]
[135] ts 158.
The magistrate also said that much had been made of the fact that the complainant returned to the appellant's home on the occasion of the second incident. He noted that the complainant had said that he did not want to go back and that it was the mothers who were responsible for the second sleepover occurring. His Honour found that the complainant did not 'really have any opportunity to make a clear statement that he didn't want to go'. The magistrate accepted that the complainant did not want to jeopardise his mother's friendship with the appellant's mother and also that he had been threatened.
His Honour said that he had 'no difficulty' with the evidence of the appellant's mother and her sister. He said that much had been made of a video recording made of the appellant and the complainant playing after the second incident. The magistrate said that it did not create any doubt in his mind. He said that it demonstrated that the appellant was sturdier, older and had a bigger build than the complainant. He said that it was easy to accept the evidence of the complainant that he was overpowered by the appellant and was, by reason of the threat, unable to seek assistance.[136]
[136] ts 159.
The magistrate then found the charges proven.
Ground of appeal 1
The Criminal Code s 29 relevantly states:
A person under the age of 14 years is not criminally responsible for an act or omission, unless it is proved that at the time of doing the act or making the omission he had capacity to know that he ought not to do the act or make the omission.
The appellant asserts that the magistrate misdirected himself on the law and that, in any event, the evidence was not capable of persuading the magistrate that the appellant had the requisite legal capacity to commit the offences.
The respondent concedes that the magistrate misdirected himself on the law but says that the misdirection was favourable to the appellant. The respondent says that the magistrate's error of law could not have affected the outcome of the prosecution and there was no substantial miscarriage of justice pursuant to the Criminal Appeals Act 2004 (WA) (CA Act) s 14(2). Further, the admissible evidence proved that the appellant had the requisite capacity to know that he ought not do the act or the admission. Consequently, this ground of appeal ought to be dismissed.
The appellant relies upon C (A Minor) v Director of Public Prosecutions[137] in which Lord Lowry said that two propositions were clear. The first is that the prosecution must prove that when the accused child did the act 'he knew that it was wrong as distinct from an act of mere naughtiness or childish mischief'. Secondly the requisite guilty knowledge must be proved and cannot be presumed from the mere commission of the act 'however horrifying or obviously wrong that act may be'.[138]
[137] C (A Minor) v Director of Public Prosecutions [1996] 1 AC 1.
[138] C (A Minor) v Director of Public Prosecutions (38).
The appellant says that this is the law in Australia as confirmed by the New South Wales Court of Criminal Appeal in The Queen v CRH.[139] The appellant submits that C (A Minor) was also cited with approval by the High Court in RP v The Queen[140] where the majority said that the common law presumption of incapacity of a child aged 10 ‑ 14 to be criminally responsible for his or her acts may be rebutted by evidence that the child knew that it was 'morally wrong to engage in the conduct that constitutes the physical element or elements of the offence'. Their Honours said that this knowledge was to be distinguished from an awareness that his or her conduct was merely naughty or mischievous. Their Honours further confirmed that no matter how obviously wrong the acts constituting the offence may be, the presumption could not be rebutted merely by inference from the doing of those acts. Their Honours said:[141]
The prosecution must point to evidence from which an inference can be drawn beyond reasonable doubt that the child's development is such that he or she knew that it was morally wrong to engage in the conduct. This directs attention to the child's education and the environment in which the child has been raised.
[139] The Queen v CRH (Unreported, NSWCCA, 18 December 1996).
[140] RP v The Queen [2016] HCA 53 [9].
[141] RP v The Queen [9].
In RP v The Queen the High Court was concerned with the application of the common law presumption of doli incapax.[142] Whereas in this case the magistrate had to apply the Criminal Code s 29. Consequently this is not simply a case of applying the common law principles. My obligation is to determine the proper construction of s 29.
[142] Incapable of crime.
In Hayman v Cartwright[143] the Court of Appeal reaffirmed that the first step in the interpretation of a provision of the Code is to look at the text rather than at the common law. If the text is clear and unambiguous, the common law is of no relevance unless the Code provision uses a word or expression that has an established meaning at common law.[144] That exception does not apply to s 29.
[143] Hayman v Cartwright [2018] WASCA 116.
[144] Hayman v Cartwright [57] ‑ [58].
I acknowledge that in Sir Samuel Griffith's draft Criminal Code[145] he inserted a marginal note which indicated that the basis of s 29 is 'common law'. However, the text of s 29 has a plain and unambiguous meaning. The meaning of the provision of the Code should be ascertained from its text rather than by reference to the common law
[145] The draft was sent to the Attorney‑General of Queensland in October 1897 and it formed the basis of the Queensland and Western Australian Criminal Codes.
In R v F[146] the Queensland Court of Appeal considered the meaning of the Queensland equivalent of s 29, which is relevantly in the same terms. Davies JA (McPherson JA & Shepherdson J agreeing) said that the trial judge in that case was wrong to say that the prosecution must 'call strong and pregnant evidence that the accused understood that what he did was seriously wrong and not merely naughty or mischievous'. His Honour said that this was for two reasons. First the section is concerned with capacity to know rather than, as the common law appears to be, with actual knowledge. Secondly the phrase 'strong and pregnant evidence' tends to obscure the fact that what the section requires, and no more, is that the prosecution prove the relevant capacity beyond reasonable doubt. His Honour doubted that the phrase (that the person ought not do the act) needed to be paraphrased but if it did he preferred to use the phrase 'that the act was wrong according to the ordinary principles of reasonable man'.[147]
[146] R v F; Ex parte Attorney‑General [1998] QCA 97; [1999] 2 Qd R 157.
[147] R v F [160].
I respectfully agree with Davies JA's analysis of the equivalent of s 29. The appellant was not criminally responsible for any act which the magistrate found he had committed, relevantly an act of sexual penetration, unless the respondent proved to the standard of beyond reasonable doubt that at the time of doing the act the appellant had capacity to know that he ought not do the act. The magistrate erred in law by stating that the issue for his determination was whether 'the [appellant] had knowledge that was is alleged to have occurred is an offence'.
An appeal against a decision of the Children's Court of Western Australia when constituted by a magistrate may be made under the CA Act pt 2.[148] The CA Act s 14(2) provides that even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[149]
[148] Children's Court of Western Australia Act 1988 (WA) s 41.
[149] s 14(2) is part of the CA Act pt 2.
The respondent submits that the magistrate's error of law could not have affected the outcome of the prosecution and, consequently, there has been no substantial miscarriage of justice. That is because the magistrate's finding that the appellant had actual knowledge that what was alleged was an offence implicitly included a finding that the appellant had the requisite capacity to know that he ought not do the alleged acts. I agree with the respondent's submission.
I now move to the second complaint involved in this ground of appeal. That is, that the evidence was not capable of persuading the magistrate that the appellant had the requisite legal capacity to commit the offences.
The prosecution opened its case by submitting that the appellant had the maturity and the capacity to know that what he was doing was the wrong thing. To prove capacity, the prosecution relied upon the threats made by the appellant to the complainant on both occasions not to tell anyone or that he would beat the complainant and strangle him. The prosecution also relied on the appellant's admissions in the EROI that he knew that it was wrong to have sex with the complainant. The appellant's counsel did not open the case for the defence. Neither counsel referred to this issue in their closing addresses.
The appellant submits that the evidence as a whole and the appellant's answers in the EROI in particular were not capable of supporting a finding that the appellant at the time he was alleged to have committed the acts of sexual penetration had the capacity to know that he ought not do the acts which constituted the offences, let alone a finding that he knew that it was seriously wrong to do so.
Nowhere in the EROI does the appellant say explicitly that he knew that it was an offence or was seriously wrong for him to sodomise another child. The closest he came to saying something of that nature was when he said that he knew at least a year before the interview that a person had to be 18 before it was legal to have sex. He said he knew that it was the wrong thing for two kids his age to have sex.
It is true that earlier in the EROI the appellant had said that sex was between a man and a woman and that it involved a penis and vagina. However after he said that the interview contained numerous questions and answers about the allegations that the appellant had sexually penetrated the complainant by inserting his penis into the complainant's 'bum'. The interviewer described the acts as allegations of 'sexual penetration'. Thus it was open for the magistrate to conclude that when the appellant was later again asked questions about the age at which sex became legal both the questioner and the appellant understood the reference to 'sex' to include sodomy.
For the foregoing reasons I conclude that the magistrate asked himself the wrong question and misdirected himself as to what had to be proved by the respondent concerning the capacity of the appellant. That is, he asked himself whether the appellant knew that what he allegedly did was an offence when the correct question was whether the appellant had the capacity to know that he ought not to do the acts which it was alleged he had done.
However the magistrate's finding that the appellant knew that it was an offence for someone to commit an act of sodomy with a child under the age of 13 was open to him on the evidence. Implicit in that finding was a finding that the appellant had the requisite capacity. Consequently the magistrate's misdirection and error of law occasioned no substantial miscarriage of justice. I would grant leave to appeal on ground 1 but dismiss the appeal on that basis.
Ground of appeal 2
The appellant submits that the magistrate should have given himself a direction in relation to the following evidence:
1.That the appellant had no criminal history.
2.The appellant's mother and aunt testified that they had never seen the appellant act in a sexually inappropriate way to a child and that they had never heard the appellant speak about sexually inappropriate things.[150]
[150] ts 96, 119, 137.
The appellant submits that the magistrate erred by not mentioning the appellant's good character in his reasons for decision and by not giving himself a direction about the effect of the evidence relating to the appellant's good character.
The appellant concedes that the appellant's counsel did not ask for a direction in relation to the good character of the appellant and did not rely upon his good character in his closing submissions. Nevertheless he submits that 'fairness and balance' required the magistrate to have taken into account that the appellant had no prior record for sexual misconduct.
The magistrate was not obliged to give himself a direction about the appellant's good character. He had a discretion whether or not to do so having regard to the probative value of the evidence relating to the appellant's character and the extent to which that reflected on the likelihood of him committing the offences with which he was charged and the appellant's credibility in his EROI.[151]
[151] Melbourne v The Queen (1999) 198 CLR 1 [22] ‑ [32] (McHugh J) [75] ‑ [79] (Gummow J) [154] ‑ [157] (Hayne J).
Considering the absence of any request for a good character direction, the magistrate did not err in law by omitting to give himself such a direction. In saying this I do not make a positive finding that the evidence constituted evidence of good character. It is unnecessary for me to determine that issue as the respondent concedes that no objection was taken to the admissibility of the evidence and it could only have been admissible on the basis that it was relevant either to the likelihood of the appellant having committed the offences or to his honesty in the EROI.
Whether the magistrate erred in fact by failing to mention the evidence in his reasons for decision and subsequently failed to take it into account in his verdict will be considered in ground of appeal 3
Ground of appeal 3
Ground of appeal 3 challenges the adequacy of the magistrate's reasons for decision. The particulars to the ground of appeal identify three particular complaints about the reasons. They are the:
1.Failure to properly consider the evidence adduced by the defence.
2.Failure to identify the elements of each offence and the evidence relied on by the magistrate to prove each element.
3.Failure to consider whether there were any inferences open on the accepted evidence which gave rise to a reasonable doubt of the guilt of the accused on either charge.
In WS v Gardin[152] Mitchell J concluded that a Children's Court magistrate when hearing an indictable only charge[153] against a child was obliged to comply with the Criminal Procedure Act 2004 (WA) (the CP Act) s 120(2). His Honour gave detailed reasons for that conclusion. I am not bound by that conclusion but the respondent did not challenge Mitchell J's conclusion and I respectfully agree with it.
[152] WS v Gardin [2015] WASC 97 [156] ‑ [170] (Mitchell J as he then was).
[153] This is a charge which must be prosecuted on indictment when the accused is an adult.
The CP Act s 120(2) states:
(2)The judgment of the judge in a trial by a judge alone must include the principles of law that he or she has applied and the findings of fact on which he or she has relied.
In relation to the obligations of judicial officers more generally when giving reasons for a decision the Court of Appeal has said that:[154]
[I]t has long been accepted that judicial officers have a duty to deliver reasons that expose the process by which a decision has been reached. This enables the parties to understand the basis for the decision. More importantly perhaps, it enables a losing party to determine whether or not they have any grounds on which to appeal the decision. Should there be an appeal, adequate reasons enable the appellate court to determine whether any errors of fact or law have occurred: (authorities omitted).
In Riley v State of Western Australia [2005] WASCA 190; (2005) 30 WAR 525 Steytler P said:
'While it is true that overly elaborate reasons are not required from a trial judge, especially so in criminal trial proceedings in which a prompt outcome is necessary, where one set of evidence is accepted over a conflicting set of significant evidence a trial judge is required to set out his or her findings as to how it is that the one has been accepted over the other: [authorities omitted]. Moreover, it is essential that the reasons adequately disclose the intellectual processes which have resulted in the decision: [authority omitted]. It is well accepted that, where there is a right of appeal, the reasons must be sufficient to give effect to that right. If the basis for the decision is not apparent, the losing party cannot know whether there has been a mistake of law or of fact: [authorities omitted].'
Making findings of fact where there is conflicting evidence is an important component of the giving of reasons. If the conflict is on a matter of significance it will usually be a necessary part of the reasoning process to consider whether the evidence of one party can be preferred over that of the other. In Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, Meagher J said:
'Where one set of evidence is accepted over a conflicting set of significant evidence, the trial judge should set out his findings as to how he comes to accept the one over the other. But that is not to say that a judge must make explicit findings on each disputed piece of evidence, especially if the inference as to what is found is appropriately clear: Selvanayagam v University of West Indies [1983] 1 WLR 585; [1983] 1 All ER 824 (443).'
The realities of pressure of work and limited time in the magistrate's court must be acknowledged.
[154] Manonai v Burns [2011] WASCA 165 [53] ‑ [56].
I apply the Court of Appeal's comments about the pressure of work in the Magistrates Court to the Children's Court with some caution. They are both summary courts dealing with the vast majority of criminal charges albeit in relation to different classes of accused persons. On the other hand they are different courts with different caseloads and different resources.
The effect of the pressure of work in a summary court was referred to by Martin CJ in Strahan v Brennan[155] where his Honour said:
Having regard to that section and the context in which the magistrates of this state conduct their judicial business it is not appropriate to scrutinise the reasons for decision given by magistrates with a fine-tooth comb or with an eye keenly attuned to the identification of error. Nor is it appropriate for the court to infer from infelicity of language that error is thereby demonstrated. That is because, of necessity, magistrates are required to perform their important functions in a different time frame to that which applies in the superior courts and in that context it is to be expected that some infelicity of language is likely to occur from time to time.
Nevertheless it is clear that the reasons of a magistrate must disclose the underlying intellectual process which has given rise to the conclusions - Tran v Claydon [2003] WASCA 318; (2003) 40 MVR 506 [36] [37] (McLure J, Steytler P & Johnson J agreeing). It is also clear that the adequacy of any magistrate's reasons is to be assessed by looking at the reasons as a whole and includes not only findings expressly made but findings to be inferred from the findings expressly made - Bennett v Carruthers [2010] WASCA 131 [27] (Mazza JA, McLure P & Newnes JA agreeing).
[155] Strahan v Brennan [2014] WASC 190 [90] ‑ [91].
At the commencement of the above quoted paragraph the Chief Justice referred to 'that section' being the Magistrates Court Act 2004 (WA) s 31 as indicating that an appellate court should not scrutinise a magistrate's reasons too closely when looking for error. Section 31 does not apply to the Children's Court[156] whereas the CP Act s 120(2) does apply. Another matter tending against too liberal an approach to an assessment of the adequacy of the magistrate's reasons is that, as the Chief Justice went on to say in Strahan, the adequacy of reasons in any particular case must be assessed in the context of that particular case. What is unacceptable in one case may be justified in another.[157]
[156] Children's Court of Western Australia Act 1988 s 4.
[157] ts 92. Since the hearing of this appeal, the High Court has delivered its reasons in DL v The Queen [2018] HCA 26. At [32] the majority said the content of reasons for decision will vary according to the jurisdiction and subject matter of the decision.
In this case, the appellant was facing very serious charges. Many charges dealt with summarily in the Children's Court and the Magistrates Court are minor and their outcomes will not have potentially serious repercussions for either an accused or a complainant. Further the issues involved in them are often not complex. In such cases the expectations of the length and thoroughness of the presiding magistrate's reasons are appropriately moderated. That is not the case here. If the appellant had been an adult and unless an order for trial by judge alone was made, the charges would have been heard by a judge and jury. Although a jury is not required to give reasons for its decision, the jury would have received in public detailed directions on the applicable law and the relevant factual issues would have been identified. If an order for trial by judge alone was made the trial judge would have been obliged, as the magistrate was, to comply with the CP Act s 120(2). There is no basis for concluding that if an accused is a child facing trial on a serious indictable charge that he or she is not entitled to the same standard of trial as an adult.[158]
[158] See Mitchell J's comments to the same effect in Gardin [161].
In this case, as in any criminal case, the appellant was presumed to be innocent of the charges against him. The State had the onus of proving the guilt of the appellant by proving beyond reasonable doubt that he was guilty of an offence with which he was charged. This involved establishing each of the essential elements of the charge to that standard. The appellant did not have to prove anything.
The appellant did not give evidence but there was material in the State's case, that is the EROI, which was favourable to him. Further he adduced evidence from his mother and aunt. If the material in the EROI and the defence case was accepted by the magistrate, it was capable of affecting the magistrate's ability to be persuaded beyond reasonable doubt of the truth and accuracy of the State's evidence.
The critical issue was whether the conduct of the appellant occurred as alleged by the complainant. The complainant testified that it happened and in his EROI the appellant denied that it occurred. The magistrate could only have been satisfied beyond reasonable doubt of the appellant's guilt if he accepted the evidence of the complainant and rejected the account of the appellant in the EROI. Alternatively he had to find that the account of the appellant in the EROI together with the evidence of the appellant's mother and aunt did not give rise to a reasonable doubt about the truthfulness of the complainant's evidence which he accepted.
Thus, the magistrate was required to determine whether he accepted the truth of the account given in the EROI by the appellant or whether he considered it may reasonably be true. The appellant's account in the EROI was not given on oath or affirmation and so the magistrate was not required to give it the same weight as he gave to the complainant's sworn evidence. This did not mean that the magistrate could ignore the appellant's account in the EROI. In order to provide adequate reasons for his decision the magistrate had to consider the EROI and set out his findings as to how it was that he had rejected entirely the appellant's denials.
The above statements are trite legal propositions which in the absence of evidence to the contrary an appellate court would assume an experienced magistrate had applied. Regrettably there are comments and omissions in the magistrate's reasons which cause me to conclude that the magistrate failed to either direct himself on these principles of law and/or failed to apply these principles of law to the facts of the case.
The matters I rely on in coming to this conclusion are:
1.The magistrate said that he had to be satisfied beyond reasonable doubt on every element of the offence but he did not identify the elements of the offence.
2.The magistrate did not direct himself that even if he were to reject the account of the appellant in the EROI, before he could convict the appellant he still needed to be independently satisfied beyond reasonable doubt about the truth of the complainant's evidence.[159]
3.The magistrate commenced his analysis of the evidence by saying that the pre‑recorded interview of the complainant 'has nothing in it that creates any doubt in my mind at all'.[160] This comment suggests to me that the magistrate started from the position that the complainant was telling the truth until evidence was disclosed which cast a doubt on that assumption.
4.The magistrate found that the corroboration of the complainant's evidence was 'slight',[161] when in fact and law there was no corroboration of the complainant's account of the offences.
5.The magistrate found that the offences appeared 'plausible'[162] when this is not the standard of proof.
6.The magistrate found that there was 'a telling reaction' by the appellant when the complainant's pre‑recorded interview was played in court and the complainant said that the appellant had threatened to strangle him to death.[163] Whilst the magistrate was entitled to take into account the appellant's demeanour in court (including his reaction to any evidence, where it formed an important component of the magistrate's reasons) he needed to explain in his reasons not only what occurred but why it was 'telling'.
7.The magistrate found that there was nothing in the complainant's demeanour that caused him to have any doubt as to the honesty of his account.[164] This comment also suggests that the magistrate started from a position that the complainant was telling the truth until evidence was disclosed which cast a doubt on that assumption.
8.The magistrate said that the presence of a baby monitor near the appellant's bedroom which would transmit noises in that bedroom to the baby's mother in another room made the complainant's account 'seem slightly incredible' but did not create any doubt in the magistrate's mind.[165] These conclusions appear to be inconsistent.
[159] Compare DL v The Queen [32].
[160] ts 156.
[161] ts 157.
[162] ts 157.
[163] ts 157.
[164] ts 158.
[165] The CA Act s 14(2) and (3).
The most significant deficiency in the magistrate's reasons is that he did not refer to any part of the appellant's account in his EROI, make any finding as to the credibility of the appellant's account in his EROI or give any reasons for why he did not accept it or it did not cause him to have a reasonable doubt about the prosecution case.
The magistrate was obliged to determine whether he was satisfied beyond reasonable doubt that the complainant had given a truthful and reliable account. In doing so there could be no presumption that his account was truthful or reliable. The complainant's account had to be weighed fairly against other evidence which the magistrate accepted. Consequently the magistrate was obliged to consider the appellant's account in the EROI as well as his mother's and aunt's evidence. The magistrate failed to discharge his obligations in these regards.
I conclude that the magistrate's reasons for decision did not comply with the CP Act s 120(2) or more generally with the standard required in the case of a Children's Court magistrate trying an indictable only charge. The magistrate's failures constitute an error of law. I am unable to conclude that the error did not result in a substantial miscarriage of justice or that the facts or evidence supported the magistrate's decision. That is because the correct decision depends on a proper analysis of the evidence which the magistrate did not perform. It is not possible for a judge who did not hear and see the witnesses to perform the magistrate's role.
Leave to appeal should be granted on ground 3, the appeal allowed on this ground, the conviction set aside and a new trial before a different magistrate ordered.
Ground of appeal 4
The appellant complains that his convictions cannot be supported or are unreasonable having regard to the evidence. Such a ground of appeal is rightly to be considered a complaint that the convictions were a miscarriage of justice because they could not be supported or are unreasonable having regard to the evidence. In Bentley v Greaney[166] Beech J (as he then was) summarised the principles relating to this type of ground of appeal. His Honour said:
The principles governing the ground of appeal in this case are well established. Those principles may be summarised as follows:
(1)the question for the appeal court is whether, upon the whole of the evidence, it was open to the magistrate to be satisfied beyond reasonable doubt that the accused was guilty;
(2)that question requires consideration of whether the magistrate must, as distinct from might, have entertained a reasonable doubt about the accused's guilt;
(3)the appeal court must undertake its own independent assessment of all the evidence. It is not simply a matter of deciding whether as a matter of law there was evidence to support the verdict;
(4)in answering that question, the appeal court must pay full regard to the consideration that the magistrate was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the magistrate had of seeing and hearing the witnesses;
(5)a doubt experienced by an appellate court would be a doubt which a magistrate ought also to have experienced unless the magistrate's advantage in seeing and hearing the evidence is capable of resolving that doubt;
(6)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 appellate court to conclude that, even making full allowance for the advantages enjoyed by the magistrate, there is a significant possibility that an innocent person has been convicted, then the appellate court must set aside the verdict.
[166] Bentley v Greaney [2016] WASC 227 [31].
There was direct evidence from the complainant of these offences. There was no direct sworn evidence from the appellant denying the charges. The magistrate would have been entitled to reject the appellant's account in the EROI if he had properly considered it and found good reasons to reject it. A magistrate hearing the charges would have a considerable advantage in seeing and hearing the witnesses. It cannot be said that it would not be open to a magistrate who had properly instructed himself or herself and properly considered the evidence to be satisfied beyond reasonable doubt of the guilt of the appellant of these charges. Therefore I would refuse leave to appeal on ground 4.
Conclusion
For these reasons I:
1.Grant leave to appeal on grounds of appeal 1 and 3.
2.Refuse leave to appeal on grounds of appeal 2 and 4.
3.Allow the appeal on ground of appeal 3.
4.Set aside the convictions and sentence and order a retrial before a different magistrate.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LW
RESEARCH ASSOCIATE TO THE HONOURABLE JUSTICE JENKINS24 AUGUST 2018
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