HTD v The State of Western Australia [No 2] - [2019] WASCA 39

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   HTD -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2019] WASCA 39
CORAM:   BUSS P
MAZZA JA
BEECH JA

HEARD:   23 AUGUST 2018
DELIVERED          :   1 MARCH 2019
FILE NO/S:   CACR 98 of 2018
BETWEEN:   HTD
Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   O'NEAL DCJ
File Number             :   IND 1268 OF 2017

Catchwords:

Criminal law - Appeal against conviction - Appellant convicted of indecent dealing with a child - Appellant convicted after trial - Whether trial judge erred by not giving jury an inferences direction

Legislation:

Criminal Code (WA), s 23(2), s 329(4)

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	Ms M R Barone
Respondent	:	No Appearance

Solicitors:

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

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

Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82
BD v The Queen [2017] NTCCA 2
Davies v The State of Western Australia [2006] WASCA 151
Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1
Drago v The Queen (1992) 8 WAR 488
Houghton v The Queen [2004] WASCA 20; (2004) 28 WAR 399
HTD v The State of Western Australia [2018] WASCA 202
OKS v The State of Western Australia [2018] WASCA 48; (2018) 52 WAR 482
R v Court [1989] AC 28
R v Harkin (1989) 38 A Crim R 296
R v McCallum [2013] QCA 254
Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573
Turner v The Queen [2004] WASCA 127

BUSS P:

The appellant has applied for leave to appeal against conviction.
The appellant was charged on indictment with three offences.
Count 1 alleged that on or about 16 January 2017, at Coodanup, the appellant indecently dealt with E, a child who he then knew to be his lineal relative, by touching her buttocks, contrary to s 329(4) of the Criminal Code (WA) (the Code), and that E was under the age of 16 years.
Count 2 alleged that on the same date and at the same place as in count 1, the appellant indecently dealt with E, a child who he then knew to be his lineal relative, by touching her vaginal region, contrary to s 329(4) of the Code, and that E was under the age of 16 years.
Count 3 alleged that on the same date and at the same place as in count 1, the appellant indecently dealt with E, a child who he then knew to be his lineal relative, by touching her anal region, contrary to s 329(4) of the Code, and that E was under the age of 16 years.
On 29 March 2018, after a trial before O'Neal DCJ and a jury, the appellant was convicted of count 1 and acquitted of counts 2 and 3.
The sole ground of appeal alleges that the trial judge erred in law by failing to direct the jury in relation to the drawing of inferences.
I would refuse leave to appeal and dismiss the appeal.
My reasons are as follows.

The State's case at trial, the appellant's case at trial, the closing addresses of counsel at the trial and the trial judge's summing up

The State's case at trial, the appellant's case at trial, the closing addresses of counsel at the trial and the trial judge's summing up are summarised in the reasons of Mazza and Beech JJA. I will not repeat or add to their Honours' summary, except to the extent necessary to explain my reasons.
The State's case with respect to count 1 was that the appellant had massaged E's buttocks and the massage constituted a dealing that was indecent. The prosecutor argued that the appellant had some kind of sexual motivation or sexual curiosity in massaging E's buttocks.
The appellant, who gave evidence at the trial, admitted having touched E's buttocks in the course of giving her a massage. He insisted, however, that his sole purpose in touching her buttocks was to alleviate back pain that she was experiencing. He touched E's buttocks in connection with giving her a therapeutic massage. His actions did not have a sexual motivation and were not the product of sexual curiosity.
The trial judge directed the jury that:
(a)The State had the burden of proving each element of each charge against the appellant beyond reasonable doubt (ts 330).
(b)The jury could not convict the appellant of a charge unless the jury was satisfied beyond reasonable doubt that the State had proved each of the elements of the charged offence (ts 331).
(c)If the jury had a reasonable doubt as to whether the appellant was guilty of a charged offence then the jury must find him not guilty of the offence (ts 331).
(d)The elements of each of the charged offences included the element that the alleged 'dealing' with E 'can be characterised as indecent' (ts 340).
(e)Something is indecent 'if it is unbecoming or offensive to common propriety. … [A] touching which is sexual and which contravenes a right-thinking person's standards can be indecent. It's determined by the context of the act in light of the time, place and circumstances' (ts 342).
(f)If the jury was satisfied beyond reasonable doubt that the appellant 'did in fact have some kind of sexual motivation or sexual curiosity for doing what he did … that would plainly have a bearing on whether the acts were indecent or not. Sometimes a sexual motive can turn what would otherwise be a seemingly innocent act into an indecent one' (ts 343).
(g)The State did not have to prove a sexual motive in order to prove the element of indecency. In some cases, '[i]f the act itself is so blatantly … so obviously indecent then motivation may not matter' (ts 343).
(h)The appellant had admitted the touching the subject of count 1. The only question in relation to count 1 was 'whether that touching was indecent' (ts 345).
(i)The appellant's evidence was that his sole purpose in touching E's buttocks was to ease her back pain. The jury could 'of course' have regard to that evidence 'in assessing the context of the touching that occurred in determining whether the State has proved beyond reasonable doubt that that touching was indecent' (ts 356).
(j)If the appellant's evidence 'leaves you with a reasonable doubt with respect to his guilt of a charge … then you must acquit him' of that charge (ts 356).
(k)The jury could not convict the appellant of any offence unless the jury was satisfied beyond reasonable doubt as to the truth and reliability of E's evidence (ts 356).
(l)The real issue for the jury in relation to count 1 was 'the element of indecency. Having regard to all of the evidence … [has] the State satisfied you beyond reasonable doubt that [the appellant's] touching of [E's] buttocks was indecent, that is, it was unbecoming or offensive to common propriety' (ts 357).

Counsel for the appellant's submissions on the ground of appeal

At the trial, defence counsel requested the trial judge to give the jury 'an inferences direction' (ts 358). His Honour refused to give the direction (ts 363). The appellant's written submissions on this issue read, relevantly:
[T]he State's case in respect of indecency was more than simply a matter of judgment, or a conclusion, of the jury based on findings of fact such as the particular area of the body touched or the nature of the relationship between the parties.
… the State invited the jury to conclude that the Appellant had a sexual intention in providing the massage to the complainant and submitted that this sexual motive could make the touching indecent.
There was no admission as to sexual motive. The Appellant specifically denied such a motive …
The jury could only have determined a sexual motivation on the part of the Appellant by way of inference.
In light of the learned trial Judge specifically directing the jury that any finding beyond reasonable doubt of a sexual motivation or sexual curiosity would 'plainly have a bearing on whether the acts were indecent or not', the trial Judge was required in this instance to direct the jury that they could only reach the conclusion that the Appellant had a sexual motive in providing the massage if it was the only reasonable inference open on the facts.
In the circumstances of this case, whether that Appellant had a sexual motivation was an important fact (inferred from the existence of another set of facts) on the way to finding guilt on Count 1. (original emphasis)
At the hearing before this court, counsel for the appellant submitted that whether an inferences direction was necessary turned on 'how significant sexual motivation or a finding of sexual motivation or a consideration of sexual motivation would be in making the step towards guilt' (appeal ts 20). Counsel accepted that an inferences direction is not required in every case, 'particularly in direct evidence cases where there is a conclusion to be drawn on the basis of a set of facts as to guilt' (appeal ts 20). However, counsel argued that in the present case 'sexual motivation was an integral step in the jury coming to the conclusion of guilt in respect of count 1' (appeal ts 20).
Counsel submitted that the State's case at trial was left to the jury on the basis that 'sexual motivation was in effect what made count 1 indecent' (appeal ts 22). The appellant alleged at the trial that he gave the complainant a therapeutic massage in the context of the complainant feeling pain, whereas the State alleged that the appellant gave the complainant a massage that was sexually motivated.
Counsel acknowledged that the prosecutor asserted at the trial that there were a number of alleged facts which the jury should take into account in determining whether the massage was sexually motivated; notably, the complainant was naked, the complainant was not feeling any pain, the door to the bedroom where the massage was performed was closed, and the appellant had instructed the complainant not to inform her mother that the appellant had massaged her (appeal ts 23).

The ground of appeal: its merits

Section 329(4) of the Code provides, relevantly:
A person who indecently deals with a child who the offender knows is his or her lineal relative or a de facto child is guilty of a crime …
The concept of 'indecency', in the context of the expression 'indecently deals with' in s 329(4) and in the context of s 329 as a whole, connotes that the dealing is of a sexual character. See Drago v The Queen.[1]
[1] Drago v The Queen (1992) 8 WAR 488, 492 - 493 (Nicholson J; Wallwork & Murray JJ agreeing).
In the present case, there was no dispute at the trial that the appellant had 'dealt with' E, within s 329(4), by touching her buttocks in the course of giving her the massage.
The sole issue in dispute at the trial in relation to the elements of count 1 was whether the admitted dealing was 'indecent'.
The trial judge was required to direct the jury that the massage would be 'indecent' if the jury decided that the massage offended against the standards of common propriety and decency accepted by ordinary members of the community. See Drago.[2]His Honour gave the jury that direction.
[2] Drago 497 - 498 (Nicholson J; Wallwork J agreeing), 502 (Murray J).
As Murray J observed in Drago, whether an act may be described as 'indecent', in that it offends against the standards of common propriety and decency accepted by ordinary members of the community, 'may depend not only upon the nature or quality of the act in itself, but upon the motive or purpose of the actor' (503). Those factors may be relevant when the act in question is capable of being regarded as indecent, but is not so offensive to the standards of common propriety and decency accepted by ordinary members of the community as to be indecent of itself regardless of the actor's motive. The actor's motive may be relevant in one of two ways. It may confer the quality of indecency upon an act which might be held not to be indecent if differently explained. Alternatively, it may render innocent an act which might be regarded as indecent if unexplained. See R v Court;[3] R v Harkin;[4] Drago.[5]
[3] R v Court [1989] AC 28, 35 - 36 (Lord Griffiths; Lord Keith of Kinkel & Lord Fraser of Tullybelton agreeing), 42 - 43 (Lord Ackner).
[4] R v Harkin (1989) 38 A Crim R 296, 301 - 302 (Lee CJ at CL; Wood & Mathews JJ agreeing).
[5] Drago, 503 - 504 (Murray J).
Accordingly, although motive is not legally relevant in deciding whether an accused charged with an offence against s 329(4) is criminally responsible for the alleged offence, motive may be factually relevant in deciding whether the alleged dealing was indecent.[6]
[6] See Drago 503 - 504 (Murray J); s 23(2) of the Code; BD v The Queen [2017] NTCCA 2 [26] (Grant CJ, Kelly & Barr JJ). See also, generally, R v McCallum [2013] QCA 254 [31] - [40] (Gotterson JA; de Jersey CJ & Mullins J agreeing).
Circumstantial evidence is evidence of a fact or facts on the basis of which the jury is asked to infer another fact or facts. See Shepherd v The Queen.[7] Where the State relies wholly or substantially upon circumstantial evidence, a jury can only convict where the inference of guilt is the only rational inference that the circumstances will enable them to draw. See Barca v The Queen.[8] However, there is no invariable rule that an inferences direction must be given in every case involving circumstantial evidence. Whether an inferences direction is necessary will depend upon the nature of the case. An inferences direction is no more than an amplification of the principle that the State must prove its case beyond reasonable doubt.[9] Where an intermediate fact is an indispensable step in reasoning towards an inference of guilt, the intermediate fact must be proved beyond reasonable doubt.[10]
[7] Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573, 579 (Dawson J; Toohey & Gaudron JJ agreeing).
[8] Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82, 104 (Gibbs, Stephen & Mason JJ).
[9] Shepherd, 578.
[10] Shepherd, 581.
As I have mentioned, in the present case the sole issue in dispute at the trial in relation to count 1 was whether the appellant's admitted conduct in touching E's buttocks, in the course of giving her the massage, was indecent. That is, whether the touching of her buttocks, while giving her the massage, offended against the standards of common propriety and decency accepted by ordinary members of the community.
It was necessary for the jury, in determining whether the appellant's action in touching E's buttocks was indecent, to take into account the circumstances of the massage, including the relevant circumstances before and after the massage.
Those circumstances included:
(a)On the State's case, that the massage had no therapeutic purpose because E had recovered from an earlier fall when she had hurt her back; Shiatsu massage is ordinarily practised on people who are clothed; the appellant had not previously massaged a naked person; during the massage E's naked body was completely exposed; during the massage the appellant rubbed his hands over the whole of E's body; the appellant used oil in massaging E; the appellant closed the door of the bedroom where he massaged E; and the appellant instructed E not to tell her mother about the massage.
(b)On the appellant's case, that the appellant had a diploma in Shiatsu massage; the appellant frequently massaged people; there was a therapeutic purpose for the massage which the appellant gave E in that E had earlier fallen and hurt her back; during the massage the appellant did not touch E's vaginal region or her anal region; the appellant used oil in massaging E because the oil had therapeutic properties; the door to the bedroom where the appellant massaged E was open; the appellant instructed E not to tell her mother about the massage because the mother was 'somewhat overdramatic and [tended] to misinterpret things' and he felt 'a little bit foolish in [the] way that [E] had damaged [her back] while she was in [his] primary care' (ts 195); and, in any event, the appellant did spontaneously tell E's mother about the massage when the mother collected E from his home.
The jury's determination of whether the appellant's action in touching E's buttocks was indecent required the jury to make findings of fact as to the relevant circumstances, including the nature or quality of the appellant's action in touching E's buttocks, and then to make a judgment, based on those findings, as to whether his action offended against the standards of common propriety and decency accepted by ordinary members of the community.
The jury was entitled, in evaluating the nature or quality of the appellant's action in touching E's buttocks, to consider whether, having regard to the jury's other findings of fact, it should be inferred that the appellant's action was sexually motivated.
Although any finding as to sexual motivation would involve an inference from the facts found to be proved as to the relevant circumstances, his Honour was not obliged, in my opinion, to give the jury an inferences direction.
As I have mentioned, the trial judge directed the jury, relevantly and in effect, that:
(a)The State had the burden of proving beyond reasonable doubt each element of the offence charged in count 1.
(b)The elements of the offence charged in count 1 included whether the admitted 'dealing' with E could be characterised as 'indecent'.
(c)The jury could not convict the appellant of the offence charged in count 1 unless the jury was satisfied beyond reasonable doubt that the State had proved each of the elements of the offence.
(d)If the jury was satisfied beyond reasonable doubt that the appellant's action in touching E's buttocks was sexually motivated, then the jury's finding on that issue would have a bearing on whether the appellant's action was indecent.
(e)If the appellant's evidence left the jury with a reasonable doubt as to whether any of the elements of the offence charged in count 1 had been proved, then the jury must find the appellant not guilty of the offence.
(f)The jury could not convict the appellant of the offence charged in count 1 unless the jury was satisfied beyond reasonable doubt as to the truth and reliability of E's evidence.
(g)The real issue for the jury in relation to the offence charged in count 1 was whether, having regard to all of the evidence, the State had satisfied the jury beyond reasonable doubt that the appellant's action in touching E's buttocks was unbecoming or offensive to common propriety.
As I have mentioned, an inferences direction is no more than an amplification of the principle that the State must prove its case beyond reasonable doubt.
In the present case, it was unnecessary, having regard to the nature of the case, the issues in dispute and his Honour's other directions, for his Honour to give the jury an inferences direction.

It was plain from:
(a)his Honour's directions on the burden and standard of proof; and
(b)his Honour's direction that if (and, by necessary implication, only if) the jury was satisfied beyond reasonable doubt that the appellant's action in touching E's buttocks was sexually motivated, then (and, by necessary implication, only then) the jury's finding on that issue would have a bearing on whether the appellant's action was indecent,
in the context of his Honour's summing up as a whole, that the jury could only make a finding adverse to the appellant on the issue of sexual motivation if the jury was satisfied to the criminal standard of proof as to the existence of that motivation.
The trial judge did not make a wrong decision on a question of law in refusing to give the inferences direction requested by defence counsel at the trial. The absence of an inferences direction did not occasion a miscarriage of justice.
The ground of appeal is without merit.

Conclusion

The ground of appeal does not have a reasonable prospect of success. Leave to appeal should be refused and the appeal dismissed.

MAZZA & BEECH JJA:

This is an application for leave to appeal against conviction.
The sole ground of appeal is that the learned judge erred in law by failing to direct the jury in relation to the drawing of inferences.
The appellant was charged on indictment with three offences contrary to s 329(4) of the Criminal Code (WA) (the Code).
Count 1 alleged that on or about 16 January 2017, at Coodanup, the appellant indecently dealt with E, a child who he then knew to be his lineal relative, by touching her buttocks, and that E was under the age of 16 years.

Counts 2 and 3 alleged offences in an identical form to count 1, save that in count 2 the alleged indecent dealing was by touching E's vaginal region, and in count 3 by touching her anal region.[11]
[11] ts 70.
On 29 March 2018, after a trial before O'Neal DCJ and a jury, the appellant was convicted of count 1 and acquitted of counts 2 and 3.[12]
[12] ts 373 ‑ 374.
On 9 May 2018, the appellant was sentenced to 16 months' immediate imprisonment with eligibility for parole.[13] He successfully appealed against this sentence. On 16 August 2018, the sentence imposed was set aside and the appellant was resentenced to a term of 8 months' imprisonment suspended for a period of 12 months: HTD v The State of Western Australia.[14]
[13] ts 411 ‑ 412.
[14] HTD v The State of Western Australia [2018] WASCA 202.

The State's case at trial

The State's case at trial may be summarised in this way.[15]
[15] What follows is taken mostly from the State prosecutor's opening address. It fairly reflected the evidence that was ultimately led by the State.
The appellant is E's paternal grandfather. At the time of the alleged offences, E was 5 years old.
On 15 January 2017, E and her younger sister, F, went to stay with the appellant for three days.
During the visit, E fell off the back of a chair and hurt her back. The next day, after a sleep‑in, she was no longer in any pain. Nonetheless, in the afternoon of 16 January 2017, the appellant offered to give her a massage to relieve her pain.[16]
[16] ts 83.
The massage took place in a bedroom, with F elsewhere in the house. The appellant closed the door of the bedroom, had E remove all her clothing so that she was naked, and had her lay on a futon. He then massaged E all over her body, using a home‑made massage oil.
According to E, the appellant massaged her everywhere, except her face and hands. She said he massaged her bottom and her private parts where she does 'wees and poos'. The appellant told E not to tell her mother.[17]
[17] ts 84.
The next day, E's mother came to collect E and her sister. While she was at the appellant's house, she noticed the futon and that it had a stain on it. When she asked about the stain, the appellant said that it was just massage oil.[18] On their way out, E volunteered that the appellant had given her a massage.[19] Later that day, E told her mother that the appellant had massaged 'both sides', asked her to take off her clothes and had massaged her 'bum‑bum'. E's mother explained that when E referred to her 'bum‑bum', she was referring to either her genitals or her bottom.[20]
[18] ts 84.
[19] ts 84.
[20] ts 84.
On 24 January 2017, E participated in a visually‑recorded interview.[21] At a later pre‑recording of her evidence, E confirmed that what she said in that interview was the truth.[22] As to count 1, E said, in substance, that the appellant touched her buttocks. She told the specialist child interviewer that the appellant touched her bottom and it tickled a bit, and he rubbed it on the top.[23]
[21] ts 85.
[22] ts 18.
[23] ts 87.
On 24 February 2017, police officers attended the appellant's home, advised him of the allegations and seized massage oil, a futon and a bedsheet.[24]
[24] ts 85.
The appellant participated in a video record of interview, which was tendered as evidence at the appellant's trial. During the interview, the appellant admitted massaging E. He said that he had a diploma in shiatsu massage, and that he massaged E on the front and back of her body with massage oil while she was naked. Relevantly to count 1, the appellant admitted massaging E's buttocks. He denied touching E's vaginal and anal areas.[25]
[25] ts 85.
The State prosecutor told the jury that in respect of count 1, the principal issue was likely to be whether the touching of E's buttocks as alleged was indecent.[26] As for counts 2 and 3, the issues in each count were whether the touching happened at all.[27]
[26] ts 88.
[27] ts 88.

The defence case at trial

The defence case at trial may be summarised as follows.[28]
[28] This summary is principally taken from defence counsel's opening address.
In his opening address, defence counsel told the jury that the appellant was 75 years old, a former veterinarian, a father of three and a grandfather of six. The appellant has no criminal record or convictions of any type.
Defence counsel described the State's case as 'simply misconceived'.[29] He elaborated by telling the jury that the appellant agreed that on the day in question, he gave E a massage. Defence counsel said the appellant did so because E had hurt her back as a result of a fall. Defence counsel said that it was entirely appropriate for him to do so, as the appellant was a qualified masseur.[30] Defence counsel referred to the appellant as having 'two diplomas in shiatsu massage, dating back to the year 2000'.[31]
[29] ts 89.
[30] ts 89.
[31] ts 90.
Defence counsel said that the massage 'gave the child some considerable relief and from start to finish was entirely appropriate and involved nothing untoward whatsoever'.[32]
[32] ts 91.
It was accepted that the appellant told E not to say anything to her mother. However, he did this not because of any wrongdoing but because the appellant 'was somewhat embarrassed that he allowed the child to skylark around, jumping around pieces of furniture to the extent that she had actually hurt herself and fallen'.[33]
[33] ts 91.
With respect to count 1, defence counsel accepted that the appellant touched E on the buttocks, but the touching was 'not indecent'. To the contrary, it was 'completely appropriate, professional and non‑invasive way [sic] that was not sexual in nature'.[34] Defence counsel told the jury that the appellant emphatically denied touching E in or near her anal or vaginal areas.[35]
[34] ts 92.
[35] ts 92.
The appellant testified in his own defence at trial.[36] The appellant testified that there was nothing sexual about what he did with E, and that his only concern 'was to make her feel better and to alleviate the pain from the spasms that she was having'.[37] He disputed that he closed the door to the room in which the massage took place.[38] He agreed that when he massaged E, she was naked. In re‑examination he explained that children have 'developing bones' and he 'did not want to put [on E] the pressure that [he was] used to doing - putting on a fully‑clothed person …', and that to safely massage E, he 'had to have an unobstructed area to work with'.[39]
[36] ts 172 - 239.
[37] ts 239.
[38] ts 225.
[39] ts 238.
The defence also adduced evidence from Emeritus Professor Robert Mead. Professor Mead was formerly an associate professor of biochemistry and forensic toxicology at Murdoch University.[40] He gave evidence about the properties of the liniment or massage oil used by the appellant on E. He testified that the liniment was not dissimilar to other liniments commonly used and commercially available to treat muscle aches and pains.[41] However, if it was applied to mucus membranes that protect the inner parts of the body, such as the vagina or rectum, it would cause 'fairly intense … burning properties'.[42]
[40] ts 239.
[41] ts 241.
[42] ts 244.
In addition to the evidence of Professor Mead, a number of witnesses were called to attest to the appellant's good character.[43]
[43] ts 258 ‑ 280.

The closing addresses of counsel on the question of indecency in count 1

It is unnecessary to set out in any detail what was said in counsels' closing addresses about counts 2 and 3. It is enough to say that the issue in each count was whether the State had proved beyond reasonable doubt that E was dealt with by the appellant as alleged. If so, it was accepted by defence counsel that the dealing was indecent.
In respect of count 1, the defence, in essence, conceded that the State had proved all of the elements of the offence, save for the element of indecency. Thus, the decisive issue in count 1 was whether the State had proved beyond reasonable doubt that the appellant's massaging of E's buttocks was indecent.
In her closing address, the State prosecutor submitted that the buttocks, along with the vaginal and anal areas, can be thought of as a person's 'private parts'.[44] She submitted that having regard to where on her body E was massaged and the context and motive for massaging, the appellant's actions were indecent.[45]
[44] ts 306.
[45] ts 306.
In addition to where on her body E had been touched, the State prosecutor invited the jury to consider, relevantly to the question of indecency:[46]
(1)whether there was a legitimate or therapeutic purpose for the massage. The State contended that there was no such purpose because the child had recovered from her earlier fall;
(2)the fact that the accused had never massaged anyone naked before;
(3)that E was completely exposed;
(4)the appellant rubbed his hands all over her body;
(5)the appellant used oil in the massage;
(6)the bedroom door was closed at the time of the massage; and
(7)the appellant told E not to tell anyone about the massage.
[46] ts 306 - 307.
Defence counsel, in his closing address, identified the issue for the jury to decide as 'given that [the appellant] did give [E] a massage did he go too far? Did he touch her indecently as alleged? We would say, on [E's] evidence, you could not conclude that'.[47]
[47] ts 317.
In substance, defence counsel argued that the appellant was a qualified masseur, who massaged E in order to alleviate the back pain she experienced as a result of her fall. In such circumstances, it was appropriate for him to touch her buttocks. Defence counsel submitted that 'the mere fact that [the appellant] gave [E] a massage naked is of no import'.[48]
[48] ts 317, 321 - 322.

The summing up

His Honour directed the jury in clear and unequivocal terms that the appellant could not be convicted of a charge unless the State proved each of the elements of the offence.[49]
[49] ts 331.
The learned trial judge accurately instructed the jury as to the elements of an offence contrary to s 329(4) of the Code.[50]
[50] ts 340.
As to the element of indecency, his Honour instructed the jury:[51]
The third element the State must prove then is that the dealing was indecent. Now, something is indecent if it is unbecoming or offensive to common propriety. Now, this term doesn't have any definite or fixed legal meaning. A touching which is sexual and which contravenes a right thinking person's standards can be indecent. It's determined by the context of the act in light of the time, place and circumstances.
Now, the State case here suggests that either [the appellant] did in fact have some kind of sexual motivation or sexual curiosity for doing what he did and if you were satisfied beyond reasonable doubt of that then that would plainly have a bearing on whether the acts were indecent or not. Sometimes a sexual motive can turn what would otherwise be a seemingly innocent act into an indecent one.
But the State doesn't have to prove a sexual motive in order to prove the element of indecency. Sometimes in some cases the motivation or reason for doing the act doesn't have to enter into the question as to whether the act was indecent. If the act itself is so blatantly, so obvious - so obviously indecent then motivation may not matter.
Let me give you an example. It's possible to - to commit an indecent act or an indecent dealing - indecent dealing with the idea that it was a joke. So plainly there was no sexual motive but nonetheless depending on context, time, circumstances and other matters, it may nonetheless fall within the category of indecency.
Now, in this case, [defence counsel] doesn't say that the kinds of acts alleged in counts 2 and 3 would not be - would not be indecent. That is, [defence counsel] doesn't accept that such acts took place or that the evidence establishes that they did, but acknowledges that if you are satisfied beyond reasonable doubt that they had occurred, you would be entitled to conclude that acts of that kind in the circumstances alleged are rightly described as indecent.
In those circumstances you'd have no difficulty finding that element proved if you were satisfied that the acts alleged occurred for counts 2 and 3. So it's the dealing itself that is really the issue for counts 2 and 3. With respect to count 1, [the appellant] admitted touching [E's] buttocks. [Defence counsel] says look at the context.
He says you're entitled to accept that this was a proper therapeutic massage and so a touching of the child's naked buttocks, which in another context you might conclude was indecent, here has an innocent character or at least you can accept that, he said, as a reasonable possibility.
[51] ts 342 - 343.
The appellant does not allege that anything his Honour said in these directions was erroneous.
His Honour accurately summed up the respective cases for the State and the appellant on the question of indecency in count 1.
His Honour told the jury that the State case was that they should conclude that there was no legitimate therapeutic purpose for the massage the subject of count 1.[52] As to the defence case, his Honour said:[53]
[Defence counsel] said that when you were looking at the context of count 1 and considering the element of indecency, you have to remember that [the appellant] is in fact qualified as a shiatsu masseur. And there is evidence here that on this visit to his house, [E] did in fact injure her back so that she was suffering pain there and [the appellant] helped her.
[52] ts 349.
[53] ts 355.
Towards the end of the summing up, his Honour said:[54]
Members of the jury, you've heard the evidence of [the appellant] where he has denied touching [E] as alleged in counts 2 and 3. If you were to accept that you would of course acquit him of both of those charges. He said to you with respect to count 1 that his sole purpose in touching [E] on her buttocks was to ease back pain that [E] had experienced. And of course you can have regard to that in assessing the context of the touching that occurred in determining whether the State has proved beyond reasonable doubt that that touching was indecent.
If what he said in his evidence leaves you with a reasonable doubt with respect to his guilt of a charge on the indictment, then you must acquit him of any such charge where you're left with that doubt.
[54] ts 356.
Shortly after giving this direction, his Honour instructed the jury:[55]
With respect to count 1 the real issue for you is the element of indecency. Having regard to all of the evidence here, have the State satisfied you beyond reasonable doubt that [the appellant's] touching of [E's] buttocks was indecent, that is, it was unbecoming or offensive to common propriety?
[55] ts 357.
Immediately before the jury retired to consider its verdict, the trial judge asked counsel whether there was any matter of law counsel wished to raise.[56] In the absence of the jury, defence counsel invited the trial judge 'to give the jury a direction as to inferences'.[57] Defence counsel's submissions on this point were not entirely clear. He conceded that while the State's case was not circumstantial in nature, he asserted there were a number of factual propositions relied upon by the State, some of which were contested by the appellant, from which it sought to draw an inference that was 'adverse to the accused' or was 'sinister'.[58] Defence counsel referred to such matters as whether the bedroom door was open or closed, the appellant's failure to inform E's mother about the massage, why E was undressed, and that the appellant had never massaged a naked person before.[59]
[56] ts 358.
[57] ts 358.
[58] ts 358 - 359.
[59] ts 358 - 359, 362 - 363.
Defence counsel did not submit that an inference direction was required in respect of the appellant's alleged sexual motivation for the commission of count 1. Defence counsel accepted that the State case did not include any element, the proof of which required the drawing of an inference.[60]
[60] ts 362.
His Honour declined to redirect the jury as requested by defence counsel.

The appellant's submissions

It was submitted on behalf of the appellant that in order for the jury to be satisfied beyond reasonable doubt of the element of indecency on count 1, the jury needed to be satisfied that the appellant's touching of E was sexually motivated.[61] In oral submissions, the appellant's counsel submitted that the question of sexual motivation was so integral to a finding of indecency on count 1 that it had to be established beyond reasonable doubt.[62] As the appellant's sexual motivation could only be proved by inference, it was submitted that an inference direction was required. Counsel contended that the directions given by his Honour were insufficient, essentially because they did not sufficiently emphasise the importance of proof of a sexual motivation for the offence. As to the direction the appellant asserts should have been given to the jury, counsel submitted to this court that the jury should have been told that in order to be satisfied of the element of indecency in count 1, it was necessary for the jury to be satisfied that the appellant had a sexual motivation for what he did. That fact could only be inferred, and the jury should not have drawn such an inference unless it was the only reasonable inference to be drawn from the evidence.[63]
[61] Appellant's case, pars 24 - 25.
[62] Appeal ts 25 - 26.
[63] Appeal ts 26.

Disposition of the ground of appeal

In relation to count 1, the appellant admitted that he had massaged E's buttocks. The decisive question for the jury was whether the State had proved beyond reasonable doubt that the massaging of the buttocks was indecent. Whether conduct is indecent is a value judgment to be made by the jury according to the community's standards of common propriety.[64] This value judgment is to be made having regard to all of the relevant facts and circumstances the jury find proved on the evidence. A relevant, sometimes highly relevant, fact is the alleged offender's sexual motive for the act or acts said to constitute the indecent dealing.[65]
[64] Drago v The Queen (1992) 8 WAR 488, 497 ‑ 498, 502.
[65] Drago 503.
A person's motive may be express or it might be inferred. Where motive is to be inferred, quite obviously inferential reasoning must be applied.
In the present case, if the appellant had a sexual motive or curiosity, that fact had to be inferred from the appellant's acts and omissions. We mention omissions because it was part of the State's case, in connection with the appellant's alleged sexual motive, that the appellant did not tell E's mother about the massage he performed on E.
Simply because the existence of a fact in issue must be inferred, does not require a judge to give an inference direction. As counsel for the appellant conceded,[66] there is no invariable rule that an inference direction should be given in every case involving circumstantial evidence. As Wheeler J stated in Turner v The Queen,[67] whether an inference direction is required will depend upon the nature of the case; it being no more than an amplification of the rule that the prosecution must prove its case beyond reasonable doubt.[68] Indeed, as her Honour pointed out, an inference direction should not be given unless the evidence in the case is of a character that appears particularly to call for such additional guidance.[69]
[66] Appeal ts 20.
[67] Turner v The Queen [2004] WASCA 127.
[68] See also Davies v The State of Western Australia [2006] WASCA 151 [8] - [9], [79].
[69] See Turner [30], citing Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573, 578 (Dawson J); Houghton v The Queen [2004] WASCA 20; (2004) 28 WAR 399 [71] (Murray J).

In oral argument, counsel accepted that it would be an unusual case where an inference direction was necessary where the issue was indecency.[70]
[70] Appeal ts 28.
His Honour gave clear and orthodox instructions as to the onus and standard of proof. In relation to count 1, he correctly identified for the jury the decisive issue, and made it clear that the onus was on the State to prove beyond reasonable doubt the element of indecency.[71] His Honour correctly directed the jury as to the concept of indecency in relation to an offence contrary to s 329(4) of the Code.[72]
[71] ts 331 ‑ 332, 357.
[72] ts 342 ‑ 343.
His Honour correctly and comprehensively summarised the respective cases on the issue. The two cases were clear and starkly different. The prosecution case was that the appellant did not have any legitimate purpose in massaging his naked 5‑year‑old granddaughter's buttocks. While the State accepted that the appellant was a legitimate masseur and that the child had, the day before the massage, fallen off a chair, on the day in question she was no longer in pain and did not have need for a therapeutic massage.
The defence case, on the other hand, was that the appellant massaged E to alleviate her pain. There was no sexual motivation in his actions.
In order for the jury to convict the appellant, it needed to be satisfied beyond reasonable doubt that there was no therapeutic reason for him to massage E. That was the clear effect of the instructions given to the jury.[73] If the jury was so satisfied, given the evidence adduced in the trial and the way the respective cases were run, there could be no other motive for what the appellant did apart from a sexual one.
[73] See ts 343, 356 - 357.
The judge also told the jury that if, and by necessary implication only if, they were satisfied beyond reasonable doubt that the appellant had a sexual motivation for the massage, they could take that into account in evaluating whether the act was indecent.[74]
[74] ts 343.
Having regard to the summing up as a whole, there was no need for his Honour to say more than he did. An inference direction was not necessary to ensure a fair trial for the appellant. The directions that were given were sufficient for that purpose.
The conclusions we have reached are fatal to the proposed ground. These conclusions are reinforced by the following matter.
The appellant's ground alleges that the judge erred in failing to give the inference direction to which we have referred. A judge cannot be said to err in failing to give a direction concerning evidence unless the direction was sought at trial. Where no direction on that aspect of the evidence was sought at trial, the appellant must demonstrate a miscarriage of justice, which requires demonstration that it is reasonably possible that the failure to give the direction may have affected the verdict.[75] For the reasons explained in [92], and bearing in mind the direction referred to in [93], that conclusion could not be drawn in this case.
[75] Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1 [38], [49]; see also the cases referred to in OKS v The State of Western Australia [2018] WASCA 48; (2018) 52 WAR 482 [231].
The proposed ground of appeal has no reasonable prospect of succeeding. Leave to appeal should be refused and the appeal dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DT
Research Orderly to the Honourable Justice Mazza
1 MARCH 2019