Hussian v The State of Western Australia - [2020] WASCA 187

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   HUSSIAN -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 187
CORAM:   BUSS P
MAZZA JA
BEECH JA

HEARD:   21 AUGUST 2020
DELIVERED          :   16 NOVEMBER 2020
FILE NO/S:   CACR 85 of 2019
BETWEEN:   KADIR HUSSIAN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   DERRICK J
File Number            :   INS 145 of 2017

Catchwords:

Criminal law - Appeal against conviction - Appellant convicted after trial of multiple counts of unlawful detention, multiple counts of aggravated sexual penetration without consent and a count of aggravated robbery - Whether the trial judge erred in providing inadequate directions to the jury as to doubts about the credibility of the evidence of the complainants - Whether the trial judge erred in providing inadequate directions to the jury as to the possibility of collusion among the complainants

Legislation:

Criminal Code (WA), s 326, s 333, s 392

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	Ms A L Forrester SC & Ms M M Yeung

Solicitors:

Appellant	:	In person
Respondent	:	Director of Public Prosecutions (WA)

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

Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314
Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
Okoli v The Queen [2019] WASCA 91
R v Wright [1999] VSCA 145; [1999] 3 VR 355
RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620
Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234
Winmar v The State of Western Australia [2007] WASCA 244; (2007) 35 WAR 159

JUDGMENT OF THE COURT:

The appellant (Mr Hussian) appeals against conviction.
Mr Hussian and Kalim Aung Shew Pyu (Mr Pyu) were charged on indictment with numerous offences.
All of the charged offences were alleged to have occurred on 15 September 2016 at the Asian Whitehouse Massage Parlour (the Premises) in Bassendean.
One complainant, Ms S, was the owner and manager of the massage parlour business. Two other complainants, Ms C and Ms B, were employed at the Premises as masseuses.
Count 1 alleged that Mr Hussian and Mr Pyu unlawfully detained Ms S, contrary s 333 of the Criminal Code (WA) (the Code).
Count 2 alleged that Mr Hussian and Mr Pyu unlawfully detained Ms C, contrary to s 333 of the Code.
Count 3 alleged that Mr Hussian and Mr Pyu unlawfully detained Ms B, contrary to s 333 of the Code.
Count 4 alleged that Mr Hussian sexually penetrated Ms C without her consent, by introducing his penis into her mouth, and that Mr Hussian was armed with an offensive weapon, namely a knife, contrary to s 326 of the Code.
Count 5 alleged that Mr Hussian sexually penetrated Ms C without her consent, by penetrating her vagina with his penis, and that Mr Hussian was armed with an offensive weapon, namely a knife, contrary to s 326 of the Code.
Count 6 alleged that Mr Pyu sexually penetrated Ms B without her consent, by penetrating her vagina with his penis, and that Mr Pyu was armed with an offensive weapon, namely a knife, contrary to s 326 of the Code.
Count 7 alleged that Mr Pyu sexually penetrated Ms C without her consent, by introducing his penis into her mouth, contrary to s 325 of the Code.
Count 8 alleged that Mr Pyu sexually penetrated Ms C without her consent, by penetrating her vagina with his penis, contrary to s 325 of the Code.
Count 9 alleged that Mr Hussian sexually penetrated Ms B without her consent, by penetrating her vagina with his penis, and that Mr Hussian was armed with an offensive weapon, namely a knife, contrary to s 326 of the Code.
Count 10 alleged that Mr Hussian and Mr Pyu stole from Ms S, with threats of violence, a sum of money and a necklace, the property of Ms S, and that Mr Hussian and Mr Pyu were armed with an offensive weapon, namely a knife, and that Mr Hussian and Mr Pyu were in company with each other, contrary to s 392 of the Code.
On 29 March 2019, after a joint trial before Derrick J and a jury, each of Mr Hussian and Mr Pyu was convicted on all of the counts with which they were charged, with the exception that:
(a)on count 6, Mr Pyu was found not guilty of the alleged circumstance of aggravation (namely, that he was allegedly armed with an offensive weapon, being a knife); and
(b)on count 10, Mr Hussian and Mr Pyu were found not guilty of the alleged circumstance of aggravation that they were armed with an offensive weapon, being a knife.
The appellant relies on two grounds of appeal. The grounds assert that the trial judge failed to give adequate directions as to doubts about the credibility of the complainants and as to the possibility of collusion between the complainants. The grounds do not have any merit. We would refuse leave to appeal and dismiss the appeal.

The State's case at trial

The State's case at trial was, relevantly and in essence, as follows.
On 13 September 2016, Mr Hussian and Mr Pyu attended the Premises and asked for prices and to see the women.
Mr Hussian and Mr Pyu returned to the Premises on 14 September 2016 and enquired whether the women they saw on 13 September 2016 were available. However, they were told by Ms S that the women were unavailable.
Mr Hussian and Mr Pyu returned to the Premises on 15 September 2016 and Mr Hussian chose Ms B who showed him to a room for a massage, and Mr Pyu chose Ms C.
On the way to the room, Mr Hussian called out to Ms S, who was in the passageway. He pulled or pushed Ms B and Ms S into the room.
At the same time, Mr Pyu was coming down the hallway with Ms C. Mr Pyu had a knife in his hand which he gave to Mr Hussian. Mr Hussian and Mr Pyu pushed Ms C into the room with Ms B and Ms S.
Mr Hussian and Mr Pyu then tied up the three women with plastic tubing and black wire cabling.
After Mr Pyu had left the room but while the three women were in the room, Mr Hussian sexually penetrated Ms C twice without her consent, first by introducing his penis into her mouth and secondly, by penetrating her vagina with his penis (counts 4 and 5). In each instance, Mr Hussian held the knife in his hand.
Mr Pyu returned to the room and then took Ms B to another room where he sexually penetrated Ms B without her consent (count 6). Mr Pyu returned Ms B to the room where Ms C and Ms S were being held.
Mr Pyu then took Ms C to another room and sexually penetrated her without her consent (counts 7 and 8) before returning her to the room where Ms B and Ms S were being held.
While Ms C was out of the room with Mr Pyu, Mr Hussian sexually penetrated Ms B by penetrating her vagina with his penis (count 9). While doing so, Mr Hussian held a knife in his hand.
At some stage, Mr Pyu took Ms S to the reception area at the Premises while Mr Hussian continued to detain Ms B and Ms C. After threatening Ms S, Mr Pyu stole $600 ‑ $700 cash, a necklace from Ms S's neck and other items, including (but not limited to) a Louis Vuitton wallet and handbag, a Burberry watch, an iPhone, an iPad, a CCTV hard drive and a silver laptop. Ms S was then tied to Ms B and Ms C.
Mr Hussian and Mr Pyu eventually left the Premises. Ms S called the police, who arrived at about 10.39 pm that night, and seized plastic tubing and black wire cabling.
On 19 September 2016, Mr Hung Phat Nguyen attended his investment property at 13 Emberson Road, Morley (Morley Property) to find Mr Hussian and Mr Pyu at the property, without his permission. The property was vacant when he had attended seven days previously, although he had agreed to lease the property to Mr Phang Long Nguyen for two years from 1 July 2016.
The police attended the Morley Property later that day and found Mr Hussian and Mr Pyu sleeping on a mattress in the front bedroom. The police found in the wardrobe, amongst other things, a Louis Vuitton bag, a necklace and an iPhone, which belonged to Ms S.
On 23 September 2016, police officers attended 11 Ward Crescent, Kelmscott (Kelmscott Property) where Mr Pyu had been given a room to occupy and where he had been staying for some three to four months before September 2016. A phone was found in Mr Pyu's room at the Kelmscott Property after police executed a search warrant. The phone belonged to Ms B and it had been stolen from her on 15 September 2016.
Mr Hussian and Mr Pyu were arrested on 23 September 2016.
During the period between 15 September 2016 and 23 September 2016, the police were investigating the events of 15 September 2016, and digiboards were compiled and given separately to Ms S, Ms B and Ms C. Each woman identified Mr Hussian and Mr Pyu from those digiboards as the offenders.
DNA matching Mr Pyu's was found on the black wire cabling that was seized by police from the Premises on 15 September 2016. DNA matching Mr Pyu's and Mr Hussian's was found on the plastic tubing that was also seized by police from the Premises on 15 September 2016.

Mr Hussian's case at trial

At the trial, Mr Hussian was represented by defence counsel.
Defence counsel for Mr Hussian made a brief opening statement. Defence counsel explained that Mr Hussian's case was that:
(a)Mr Hussian did not commit any of the offences. He was not at the Premises on 15 September 2016. He did not visit the premises on 13 or 14 September 2016. The appellant was staying at a house in Landsdale, which belonged to Dung Chi Nguyen and his wife, Thi My Phuong Nguyen.
(b)Mr Hussian and Mr Pyu had been 'set up' in relation to the offences by Mr Dung Nguyen.
Mr Hussian's case also involved the contention that there was inconsistent evidence as between the complainants and consequently the jury could not be satisfied beyond reasonable doubt that Mr Hussian had committed the alleged offences.
For example, as to the reason for a delay by the complainants in reporting the alleged sex offending:
(a)Ms B said that Ms S had asked her not to mention it (ts 279 ‑ 288);
(b)Ms S said that Ms B and Ms C had asked her not to mention it (ts 399 ‑ 410); and
(c)Ms C said that she made her own decision not to tell the police, she told Ms S and Ms B of this decision and she did not ask them to follow her decision (ts 616 ‑ 623).
Further:
(a)Ms B gave evidence that the 'taller man' (allegedly Mr Hussian) had a moustache and a beard (ts 232), whereas Ms S said that he did not have a beard (ts 336 ‑ 337);
(b)Ms B (ts 247) and Ms C (ts 588) gave evidence that they and Ms S were tied up together, whereas Ms S said that they were never tied up together (ts 370 ‑ 371);
(c)Ms C gave evidence that Mr Pyu had something like pantihose on his hands (ts 597), whereas Ms S and Ms B gave no evidence to that effect; and
(d)Ms C gave evidence that she was sexually assaulted by Mr Hussian while Ms B and Ms S were in the room (ts 589 ‑ 593), whereas Ms S said that Ms B was not present (ts 389).
Mr Hussian gave evidence in his own defence at the trial.

The grounds of appeal

Mr Hussian is self‑represented in the appeal. However, his grounds of appeal and his written submissions in the appellant's case appear to have been prepared by a person with some legal knowledge or training.
Mr Hussian relies upon two grounds of appeal.
Ground 1 alleges that the trial judge erred in providing inadequate directions to the jury as to doubts about the credibility of the evidence of the complainants given:
(a)the conflicts between the evidence of the complainants; and
(b)the conflicts between the evidence of the complainants in court and their statements to the police.
Ground 2 alleges that his Honour erred in providing inadequate directions to the jury as to the possibility of collusion among the State's witnesses, in particular among the complainants, given:
(a)the conflicts between the evidence of the complainants; and
(b)the conflicts between the evidence of the complainants in court and their statements to the police.
On 25 February 2020, Mazza JA referred the application for leave to appeal to the hearing of the appeal.

Mr Hussian's submissions

Mr Hussian asserts that the trial judge erred by providing inadequate directions to the jury, in particular in relation to the credibility of the complainants (ground 1) and the possibility of collusion between the complainants (ground 2).
Mr Hussian asserts that his Honour's directions were inadequate having regard to:
(a)conflicts between the evidence of each of the complainants; and
(b)conflicts between the evidence of the complainants in court and the contents of their statements to the police.
As to ground 1, Mr Hussian submits that the trial judge 'ought to have more adequately directed the jury with respect to the importance of assessing the credibility of the complainants' (appellant's written submissions [27]). Apart from that very general assertion, Mr Hussian's submissions do not identify the manner in which the trial judge's directions regarding the credibility of the complainants were erroneous.
As to ground 2, Mr Hussian submits that 'given that [Mr Hussian's defence counsel] in closing suggested that [Mr Hussian] was set up', his Honour 'ought to have directed the jury as to the existence of a potential danger of collusion or concoction between the complainants'.
Mr Hussian referred in his submissions to five specific instances of alleged inconsistencies in the complainants' evidence, as follows:
(a)As to the reason for the delay in reporting the alleged sexual offending to the police:
(i)Ms B said that Ms S had asked her not to mention it (ts 279 ‑ 288);
(ii)Ms S said that Ms C and Ms B had asked her not to mention it (ts 399 ‑ 410); and
(iii)Ms C said that she made her own decision not to tell the police about it, she told Ms S and Ms B of her decision, and she did not ask them to follow her decision (ts 616 ‑ 623).
(b)Ms B said that the 'taller man' (that is, Mr Hussian) had a moustache and a beard (ts 232) whereas Ms S said that he did not have a beard (ts 366 ‑ 337).
(c)Ms C (ts 588) and Ms B (ts 247) gave evidence that they and Ms S were tied together whereas Ms S (ts 370 ‑ 371) said that they were never tied together.
(d)Ms C gave evidence that Mr Pyu had something like pantihose on his hands (ts 597) whereas Ms S and Ms B gave no such evidence.
(e)Ms C gave evidence that she was sexually assaulted by Mr Hussian while Ms B and Ms S were in the room (ts 589 ‑ 593) whereas Ms S said that Ms B was not present (ts 389).

Counsel for the State's submissions

Counsel for the State submitted that the trial judge's directions to the jury in relation to:
(a)the delay in reporting the alleged sexual offending to the police;
(b)inconsistencies in the evidence of the complainants; and
(c)issues of credibility and of possible collusion,
were, in the circumstances, appropriate and adequate.

The merits of the grounds of appeal

The trial judge gave orthodox directions in his summing up in relation to the assessment of a witness's honesty and reliability. His Honour directed the jury that they might take into account:
(a)matters personal to the witness (including their age, cultural background, level of education, degree of sophistication and emotional temperament);
(b)the circumstances of the witness when the events that the witness was giving evidence about occurred (for example, whether the witness was in a state of panic, under stress or frightened);
(c)the period that had elapsed since the occurrence of the events that the witness was giving evidence about and the impact of the delay upon the witness's powers of recollection;
(d)any intimidation the witness might have experienced as a result of the process involved in giving evidence;
(e)the fact that the witness had lied to the police during their investigation, the circumstances in which the lie was told and any explanation the witness had given in his or her evidence for telling the lie; and
(f)whether any part of the witness's evidence was inconsistent with some other part of that witness's evidence or was inconsistent with part of another witness's evidence (ts 1371 ‑ 1372).
His Honour explained to the jury in his summing up that an out of court statement is not evidence. His Honour then gave these directions in relation to prior inconsistent statements:
[I]f you find that a witness has previously made a statement that is inconsistent with the evidence that the witness gave in court then the fact that the witness has previously made an inconsistent statement is something that you can take into account in assessing the credibility of the evidence given by the witness in the courtroom.
A previous statement can be inconsistent with the evidence given by the witness either because it contains an assertion that is directly contrary to the witness’s evidence or because it omits to refer to something that the witness said in evidence or because it refers to something that the witness did not say in evidence. Again whether or not the inconsistency, if you find an inconsistency to exist, is something that affects your assessment of the credibility of the witness’s evidence is a matter for you.
Any inconsistency which you find to exist may or may not, in your view, affect the credibility of the witness, depending on the nature of the inconsistency. That is, does it go to a matter of significance as opposed to a matter of mere detail and also any explanation that might have been given by the witness for the inconsistency (ts 1376)?
It would have been obvious to the jury, from the evidence adduced at the trial and from the trial judge's summing up, that the evidence of the complainants was critical to the State's case. His Honour told the jury on numerous occasions in his summing up that the State's case (especially in relation to the alleged sex offending) was based primarily on the evidence of one or more of the complainants (ts 1386, 1394 ‑ 1395, 1427). Also, his Honour mentioned on numerous occasions in his summing up that Mr Hussian's case was, in effect, that the accounts of the complainants were 'an untrue fabrication' (ts 1389, 1398, 1429).
His Honour gave orthodox directions in his summing up about the identification evidence. His Honour observed that the State relied very heavily upon the digiboard identification procedures conducted with the complainants (ts 1447). His Honour noted that there were intervals, ranging between seven days and fifteen days, between the date of the alleged offences and the dates on which the complainants were shown digiboards which included Mr Hussian and Mr Pyu. Each complainant identified Mr Hussian and Mr Pyu (ts 1448).
The trial judge reminded the jury that although Ms B had given evidence at the trial that the taller man (whom she had identified from the digiboard as Mr Hussian) had a moustache and a beard, Ms B had told the police shortly after the alleged offending occurred that the taller man did not have a beard, but had stubble (ts 1451).
His Honour reminded the jury that Ms S had told the police shortly after the alleged offences that the two offenders who had entered the Premises were Aboriginal, but in her evidence at the trial she had said they were Afghani. Ms S explained in her evidence that she told the police the two offenders were Aboriginal because she did not look at them properly, all dark skinned men look the same to her and she knew that Aboriginal men had dark skin. His Honour also reminded the jury that Ms S gave evidence that the taller man (whom she had identified from the digiboard as Mr Hussian) did not have any facial hair, even though the image of Mr Hussian in the digiboard showed him with facial hair (ts 1457).
It was not in dispute at the trial that the complainants had deliberately omitted to inform the police about the alleged sex offences when they gave their first statements on 16 September 2016. The complainants did not tell the police about those alleged offences for approximately 12 months.

The explanations given by the complainants in their evidence for the deliberate omission were as follows:
(a)Ms B gave evidence that on the night of the offending, before the police arrived, Ms S asked her not to tell the police about the alleged sex offences. Ms B complied with the request because she had been working with Ms S and did not want to upset her. Ms B told the police, about a year later, of the alleged sex offences and gave the police a second statement dated 5 October 2017. She decided to tell the police about the alleged sex offences after Ms S had sent her a text message. The message said that the offenders had a lawyer and the offenders were going to 'fight back'. Ms S was going to inform the police about the alleged sex offences (ts 282 ‑ 289).
(b)Ms S gave evidence that on the night of the offending, before the police arrived, Ms C and Ms B had asked her not to mention the alleged sex offences because they were embarrassed. About a year later, the investigating police officer contacted her and informed her that the offenders were going to trial. Ms S asked the officer how long they would be in prison for and told the officer she was scared about the offenders being released from prison. The officer asked Ms S whether anything else had happened on the night of the offending. She asked the officer something to the effect of 'if there was sex would they go home?'. She was unable to recall the officer's answer. Ms S then informed the officer about the alleged sex offences. Afterwards, she contacted Ms C and Ms B and told them that she had revealed the alleged sex offences to the investigating police officer and that she had told him the truth. Ms S denied in cross-examination that she had told Ms C and Ms B to lie about the alleged sex offences (ts 399 ‑ 400, 404 ‑ 408, 415).
(c)Ms C gave evidence that on the night of the offending, before the police arrived, she decided not to tell the police about the alleged sex offences because she was 'very ashamed' and it was 'embarrassing'. She told Ms B and Ms S of her decision before the police arrived. About a year later, the police contacted her. Ms S had told her that the offenders were being released from prison. Ms C did not want the 'bad men' to be in Perth or to 'come out quickly' from prison because she was frightened they would come after her. On her next visit to Perth (she did not continue to live in Perth after the offending), Ms C decided to tell the police about the alleged sex offences (ts 616 ‑ 619, 622 ‑ 623).
The trial judge directed the jury in his summing up that the delay by Ms C and Ms B in reporting the alleged sex offences to the police had forensically disadvantaged Mr Hussian and Mr Pyu in the conduct of their defences. His Honour said that 'this forensic disadvantage is something that you must take into account in assessing [Ms C's] evidence as to the sexual offences allegedly committed against her by Mr Pyu and Mr Hussian, and in assessing [Ms B's] evidence as to the sexual offences allegedly committed against her by Mr Pyu and Mr Hussian' (ts 1459 ‑ 1460).
His Honour reminded the jury of the explanations that Ms C and Ms B had given in evidence for the delay in reporting the alleged sex offences to the police. His Honour also reminded the jury of Ms S's evidence in relation to that issue (ts 1463 ‑ 1464).
When the trial judge summarised the State's case, Mr Hussian's case and Mr Pyu's case in his summing up, his Honour reminded the jury that Mr Hussian's defence counsel had referred to some aspects of the evidence of each of the complainants which defence counsel submitted were inconsistent and reflected adversely on their overall credibility (ts 1486).
As to whether Mr Pyu had pantihose on his hands, Ms C gave evidence that when the offenders arrived at the Premises, they did not have anything on their hands. Later, when the shorter man (that is, Mr Pyu) took Ms C into a room and sexually penetrated her, Mr Pyu had something like beige or skin coloured gloves, socks or pantihose on his hands. Ms C said she did not notice when Mr Pyu had put them on, but he did not have them on when he was tying her. The essence of Ms C's evidence was that she saw Mr Pyu wearing something on his hands when she was alone with him. Mr Pyu had not been wearing something on his hands at all times when the offending occurred (ts 585, 597).
As to who was tied to whom among the complainants, and whether Ms B was in the room when Mr Hussian committed the alleged sex offences against Ms C, each of the complainants gave evidence that they were tied and in the room together with the taller man (that is, Mr Hussian) when the shorter man (that is, Mr Pyu) took each of the complainants out of the room individually and then returned with the complainant he had taken out. The evidence of the complainants as to the sequence of events was, relevantly, as follows:
(a)Ms B gave evidence that the shorter man (that is, Mr Pyu) first took Ms S out of the room and later returned with her. Mr Pyu then took Ms C out of the room and returned five to ten minutes later. Mr Pyu then took Ms B out of the room and sexually penetrated her in another room. Mr Pyu returned with her to the first room and took Ms C out of the room again. The taller man (that is, Mr Hussian) then sexually penetrated Ms B while Ms S was in the room, but Ms C was not. Later, Ms C returned to the room with Mr Pyu (ts 253 ‑ 255, 259 ‑ 263).
(b)Ms S gave evidence that the shorter man (that is, Mr Pyu) had taken her from the room before the other complainants, into the hallway, and asked her where the money was. Mr Pyu then returned her to the room and took Ms C or Ms B out. Ms S could not remember which of the other two women he took out first, but he took the first woman out for two or three minutes and then returned with her before taking the second woman out. Although each of Ms C and Ms B was out of the room with Mr Pyu, the taller man (that is, Mr Hussian) sexually offended against the other woman in the room while Ms S was there. Later, Mr Pyu took Ms S to the reception area (with Ms C and Ms B remaining in the room with Mr Hussian) where, after threatening her, he stole cash and a necklace from her neck (ts 361 ‑ 362, 364, 366 ‑ 368).
(c)Ms C gave evidence that when the shorter man (that is, Mr Pyu) first left the room, the taller man (that is, Mr Hussian) forced her to sit on the bed. Mr Hussian then sexually offended against her while Ms B and Ms S were in the room. Mr Pyu took Ms B out of the room first. They were away for about 20 minutes while Ms C and Ms S remained in the room with Mr Hussian. Next, Mr Pyu took Ms C out of the room and into another room where he sexually offended against her. Later, Mr Pyu returned her to the first room (ts 587 ‑ 590, 593 ‑ 598, 600 ‑ 602, 613 ‑ 614).
There is no doubt that a reasonable jury, drawing on their collective experience of life and their common sense, would have been well able to evaluate, in the context of his Honour's summing up as a whole, whether the inconsistencies in the versions of events given by the complainants (including as to who was tied to whom and as to who was in the room when Mr Hussian sexually offended against a particular complainant) was attributable to the untruthfulness of the complainants as distinct from an inaccurate recollection by witnesses who, when the relevant events were unfolding, were in a state of panic, under stress or frightened.
His Honour reminded the jury in his summing up that Mr Hussian's defence was that he had been 'set up' by Mr Dung Nguyen because Mr Hussian 'knew too much', apparently about Mr Dung Nguyen's alleged drug activities. Mr Dung Nguyen was 'setting up' Mr Hussian so that Mr Hussian would be imprisoned or deported (ts 1484 ‑ 1486).
The trial judge also reminded the jury of the submission by Mr Hussian's defence counsel that the complainants' delay in making the allegations of sex offending, and their conflicting explanations for the delay, reflected adversely on their evidence. His Honour also reminded the jury of the submission by Mr Hussian's defence counsel that there was evidence that the complainants had spoken among themselves before the police arrived as well as after they arrived. His Honour also reminded the jury of the submission by Mr Hussian's defence counsel that there could be other reasons why each of the complainants made the allegations, especially Ms C and Ms B; for example, to ensure that Mr Hussian and Mr Pyu remained in prison for a longer period and were ultimately deported. His Honour also reminded the jury of the submission by Mr Hussian's defence counsel that Mr Hussian and Mr Pyu had given evidence that Mr Dung Nguyen had many contacts with various people, including Asian women, and that it would be open to the jury to disbelieve the complainants' evidence that they had no connection with Mr Dung Nguyen. However, his Honour commented, appropriately, that the complainants had been shown photographs of Mr Dung Nguyen. They denied knowing him. Also, Mr Dung Nguyen denied knowing the complainants or having anything to do with the Premises (ts 1484 ‑ 1486).
His Honour referred to 'collusion' in the context of summarising the State's case. The prosecutor had submitted in his closing address that the contention that Mr Dung Nguyen had 'set up' Mr Hussian and Mr Pyu by planting DNA at the Premises, planting the property taken from the Premises at the Morley Property where Mr Hussian and Mr Pyu were arrested, and persuading the complainants to make false allegations, was patently implausible. The prosecutor had submitted that the inconsistencies between the complainants' versions of events in their evidence demonstrated that there was no collusion between them (ts 1478 ‑ 1479).
A trial judge is bound to give a direction or a warning to the jury if, in the circumstances of the particular case, the direction or the warning is necessary to avoid a perceptible risk of a miscarriage of justice. See Carr v The Queen;[1] Longman v The Queen;[2] Tully v The Queen.[3] This is an incident of the judge's duty to ensure a fair trial for the accused. See RPS v The Queen.[4] A perceptible risk of this kind arises if there is a feature of the evidence which may affect its reliability and which may not be apparent to the jury. See Okoli v The Queen.[5]
[1] Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314, 324 ‑ 325 (Brennan J).
[2] Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79, 86 (Brennan, Dawson & Toohey JJ).
[3] Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234 [123] (Callinan J), [158] (Crennan J).
[4] RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 [41] (Gaudron A-CJ, Gummow, Kirby & Hayne JJ).
[5] Okoli v The Queen [2019] WASCA 91 [42] (Buss P, Mazza & Beech JJA).
Honesty and credibility are not matters of which courts have special knowledge or experience. Honestly and credibility in relation to witnesses and evidence are matters properly within the province of the jury. See Okoli [44]. Where an issue is properly within the province of the jury, and the courts have no special knowledge or experience of the issue, a warning is not only unnecessary, but is an unwarranted intrusion into the province of the jury. See Winmar v The State of Western Australia.[6]
[6] Winmar v The State of Western Australia [2007] WASCA 244; (2007) 35 WAR 159 [23] (Wheeler, McLure, Pullin, Buss & Miller JJA).
In the present case, there was no hidden danger in relation to the evidence of any of the complainants which the jury might have been unable to appreciate without the assistance of an instruction or a further instruction from the trial judge. It is not apparent, on our examination of the trial record, that the evidence of any of the complainants had any attractive features, or that any other circumstances existed, which gave rise to a risk that the jury might overlook any of the alleged deficiencies in their evidence which were referred to and relied upon by Mr Hussian's defence counsel.
In our opinion, his Honour's directions to the jury in his summing up as to:
(a)the delay in the complainants reporting the alleged sex offences to the police;
(b)the conflicts between the evidence of the complainants;
(c)the conflicts between the evidence of the complainants in court and their statements to the police; and
(d)the issues relating to the complainants' credibility and the possibility of collusion between the complainants, as asserted by Mr Hussian's defence counsel in his defence case theory,
were appropriate and adequate in the circumstances.
No stronger direction or warning from the trial judge was required to guard against any perceptible risk of a miscarriage of justice.
His Honour gave comprehensive directions to the jury in his summing up with respect to the factors which the jury might consider in assessing the credibility of a witness generally and the importance of assessing the complainants' credibility specifically. His Honour made appropriate references to and gave reminders of inconsistencies, including the inconsistencies associated with the complainants' failure to report the alleged sex offenders until about a year after the alleged offending. Also, his Honour made appropriate references to and gave reminders of the complainants' explanations for the delay and the varying descriptions of the offenders given by the complainants. Further, his Honour instructed the jury appropriately as to the identification evidence and as to the forensic disadvantage suffered by Mr Hussian as a result of the delay.
At the trial, there was no evidence of collusion between the complainants or of a 'set up' instigated by Mr Dung Nguyen. In those circumstances, his Honour acted appropriately in reminding the jury of the submissions made by Mr Hussian's defence counsel to the effect that it was Mr Hussian's case that the jury should infer (from the evidence that the complainants had spoken to each other before and after the police arrived and that Mr Dung Nguyen had many contacts) that the complainants had colluded (presumably at the instigation of Mr Dung Nguyen) to fabricate the allegations against Mr Hussian. The possibility of collusion was speculative. It was unnecessary for his Honour to give the jury a warning about any potential hidden danger of collusion. As we have mentioned, the allegation of collusion was unsupported by the evidence. Further and in any event, there was no hidden danger in relation to the assertion of collusion advanced by Mr Hussian's defence counsel or the issues which needed to be considered in evaluating that assertion which the jury might have been unable to appreciate without the assistance of an instruction or a further instruction from his Honour.
We are satisfied, on our review of the trial record, that there is no reasonable possibility that the absence of further directions or warnings from the trial judge in relation to assessing the complainants' credibility or the possibility of collusion between them gave rise to a miscarriage of justice or may have affected the verdicts.
We note that, after his Honour completed his summing up, neither Mr Hussian's defence counsel nor Mr Pyu's defence counsel objected to or took issue with any of the matters complained about in grounds 1 and 2. See R v Wright.[7]
[7] R v Wright [1999] VSCA 145; [1999] 3 VR 355 [2] (Phillips CJ & Charles JA), [16] ‑ [18] (Callaway JA).
The grounds of appeal are without merit.

Conclusion

We would refuse leave to appeal because neither of the grounds of appeal had a reasonable prospect of success.
The appeal must be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JM
Research Associate to the Honourable Justice Buss
16 NOVEMBER 2020