HVD v The State of Western Australia - [2023] WASCA 134

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   HVD -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 134
CORAM:   HALL JA
HEARD:   5 SEPTEMBER 2023
DELIVERED          :   5 SEPTEMBER 2023
PUBLISHED           :   12 SEPTEMBER 2023
FILE NO/S:   CACR 67 of 2023
BETWEEN:   HVD
Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   PRIOR DCJ
File Number            :   IND 784 of 2019

Catchwords:

Criminal Law - Bail pending appeal against conviction - Whether exceptional circumstances established

Criminal law - Application for leave to issue a witness summons in respect of an appeal against conviction - Whether legitimate forensic purpose established

Legislation:

Nil

Result:

Application for bail refused
Application for leave to issue a witness summons refused

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	Mr R Arndt

Solicitors:

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

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

Serukai v The State of Western Australia [2020] WASCA 107

HALL JA:

(This judgment was delivered extemporaneously on 5 September 2023 and has been edited from the transcript.)

On 26 March 2021, the appellant was convicted after trial of two counts of indecently dealing with a child under the age of 13 years, contrary to s 320(4) of the Criminal Code (WA), three counts of indecently dealing with a child of or over the age of 13 years and under the age of 16 years, contrary to s 321(4) of the Criminal Code, one count of sexually penetrating a child of or over the age of 13 years and under the age of 16 years, contrary to s 321(2) of the Criminal Code, one count of unlawful and indecent assault, contrary to s 323 of the Criminal Code, and one count of aggravated sexual penetration without consent, contrary to s 326 of the Criminal Code.
On 30 April 2021, the appellant was sentenced to a total effective sentence of 8 years 6 months' immediate imprisonment, backdated to 26 March 2021.
The appellant filed a notice of appeal against his conviction on 19 May 2023. That was approximately two years out of time and, accordingly, the appellant has also filed an application for an extension of time. The appellant's application for an extension of time and for leave to appeal have been referred to the hearing of the appeal. An application for leave to adduce additional evidence has also been referred to the hearing of the appeal.
Two further applications have been listed for hearing today. The first is an application for bail pending determination of the appeal. The second is an application for leave to issue a witness summons to the appellant's daughter, one of the two complainants. I will deal first with the application for bail.
The principles applicable to bail pending an appeal are well established.[1] In summary, bail can only be granted if the court is satisfied that there are exceptional reasons for doing so and it would otherwise be proper to grant bail having regard to the considerations in sch 1 pt C of the Bail Act 1982 (WA). If the appellant asserts that the exceptional reasons include the prospects of the appeal, something more than a reasonably arguable case must be shown. It must be shown that the appeal is strongly arguable or that the prospects are such that there is a real concern that the appellant would suffer an injustice by having been kept in custody on the basis of an unsound conviction.
[1] See Serukai v The State of Western Australia [2020] WASCA 107 [12] ‑ [15].
In this case, the appellant submits that bail should be granted because his grounds of appeal are strong. In assessing the merits of that claim, it is first necessary to summarise the prosecution case at trial.

The prosecution case

The prosecution case was that the appellant sexually abused his biological daughter, ZY, and another female relative, WX. Counts 1 and 8 on the indictment related to ZY, and counts 2 to 7 related to WX. ZY was born in 1996, in Colombia. In November 2006, she emigrated to Australia with the appellant, her mother and her two brothers.
The prosecution case was that on an evening in 2007, the appellant climbed into bed with ZY and cuddled her from behind in a spooning position to soothe her fear of the dark. At that time, ZY shared a bunkbed with her younger brother. ZY slept on the top bunk and her brother slept on the bottom bunk. The appellant reached his right hand around ZY, put it underneath her pyjama pants and touched her vagina area for a few seconds. This conduct was the subject of count 1 on the indictment.[2]
[2] ts 59 - 60.
WX moved to Australia with her family when she was 11 years old. When the family first arrived in Australia, they stayed with the appellant and his family at their house. Count 2 relates to events that occurred during the weekend of ZY's first Holy Communion on 25 August 2007. WX was cleaning in ZY's room, whilst ZY was helping to clean the boys' room. WX was wearing pyjama shorts and was bending down. It is alleged that the appellant grabbed her from behind and lifted her to a standing position. WX screamed out in surprise. The appellant then rubbed the palm of his hand over WX's genital area a couple of times on the outside of her pyjama shorts, before letting go. WX's father came into the room to see why she had screamed, and the appellant made an excuse.[3]
[3] ts 63.
Count 3 relates to events on a later date, when ZY, WX and the appellant were in the appellant's car, collecting pizza from a pizza shop. WX was in the front passenger seat and ZY was in the backseat. The appellant was in the driver's seat. ZY went into the store to get the pizzas whilst the appellant and WX remained in the car. The appellant leaned over and took WX's hand and placed it on his penis. The appellant then moved WX's hand up and down for a short time, before stopping when he saw ZY returning to the car.[4]
[4] ts 64.
Counts 4 and 5 relate to an event on another occasion. WX was having a sleepover at the appellant's house. WX and ZY were lying on ZY's bed, watching a movie together. ZY left the room to go to the toilet. While ZY was out of the room, the appellant came in and locked the door. The appellant then pulled his pyjama shorts down to his ankles, exposing his erect penis. The appellant then got onto the bed, pulled down WX's pyjama shorts and her underwear, lay on top of her and rubbed her vagina.[5]
[5] ts 64 - 65.
After that incident, WX went to sleep in a different bed in ZY's room. The events relating to Count 6 occurred the next morning. WX was woken up by the sensation of pain in her vagina. She woke to find the appellant beside her. He had pushed her pyjama shorts to one side and had one or more of his fingers in her vagina. The appellant laughed and then left the room.[6]
[6] ts 65.
Count 7 relates to events that occurred during another sleepover at the appellant's house. On this occasion, the appellant got into bed with WX and ZY. While in bed, the appellant rubbed WX's vagina, underneath her clothing.[7]
[7] ts 65.
On 2 July 2016, ZY and her family went to the airport to see a family member off. ZY was living with the appellant in the family home at the time. After coming back from the airport, ZY went to sleep at about 1.00 am. She woke up and felt the appellant's erect penis against her back. ZY pretended to be asleep. The appellant then moved ZY's pyjama shorts to one side and penetrated her vagina with his penis. ZY kept her eyes closed and pretended to be asleep. When the appellant finished, he left the room. This conduct relates to count 8 on the indictment.[8]
[8] ts 62.

The grounds of appeal

There are seven grounds of appeal. Grounds 1 to 4 relate only to counts 1 and 8. Even if those grounds meet the test of being strongly arguable, it would not follow that there are exceptional reasons for justifying a grant of bail. This is because if the appellant was successful on one or more of grounds 1 to 4 and unsuccessful on the other grounds, the convictions on counts 2 to 7 would remain. The appellant would still be required to serve the sentences for those offences. Nonetheless, I will give consideration to the strength of each of the grounds.
Ground 1 is that the verdicts on counts 1 and 8 were unreasonable and cannot be supported. In essence, this ground relies on statements by the complainant (ZY) regarding the state of her memory. The appellant's position is that concessions made by ZY were such as to make her evidence regarding the occurrence of counts 1 and 8 or the identity of the offender unreliable.[9]
[9] Appellant's case [3] - [4].
Whilst the complainant accepted that she had a better memory of the events at an earlier time and that in prior statements she had described her memory as unclear or foggy, she did not accept that the events had not occurred. Ultimately, the question of whether the evidence given by the complainant was credible and reliable was a matter for the jury. In this regard, the advantage that the jury had in seeing and hearing the witness will be a relevant consideration.
A second aspect of ground 1 is that the appellant alleges that there was a deficiency in the evidence regarding the identification of him as the offender in counts 1 and 8. The appellant submits that the complainant's evidence is that she did not see or hear the appellant, that it was dark at the time of the offences, and that there were other male adults in the house.[10] The implication is that there was no evidence that identified the appellant as the offender in respect of counts 1 and 8. That is in fact not the case. The complainant gave evidence that on both occasions the person who touched or penetrated her was her father. On the first occasion when it was suggested in cross‑examination that the person who touched her could have been someone else, she said that she did not think it was.[11] It is true that the complainant said that she kept her eyes closed on these occasions, but that is not the only means by which a person well known to a complainant can be identified. It must also be borne in mind that these offences were alleged to have occurred as part of a course of conduct that included a number of other uncharged acts.
[10] Appellant's case [8].
[11] ts 121.
In essence, the appellant's argument is that the identification evidence was not reliable. Again, that is a matter that fell for determination by the jury. This is not a case where there was a clear deficiency in the evidence so much as a suggestion that the evidence should not have been believed. It is not presently apparent that resolution of that issue would favour the appellant.
Ground 2 alleges that the trial judge erred in that his directions regarding identification were not adequate in the circumstances of this case. Whilst directions in respect of identification were given by the trial judge, the appellant asserts that they were not cogent and effective, and that there is a possibility that the jury disregarded possible issues with the identification evidence.[12]
[12] Appellant's case [16].
The appellant's written submissions accept that the trial judge did direct on identity but suggest that the directions fall short of being a warning and did not isolate or identify the issues on which the defence case was based.[13] The written submissions do not clearly identify the specific matters which it is alleged should have been the subject of directions by the trial judge. It is not presently apparent that this ground has strong prospects of success.
[13] Appellant's case [14].
Ground 3 alleges that the convictions on counts 1 and 8 should be set aside because the trial judge made an error in directions to the jury regarding relationship evidence. The appellant asserts that the trial judge erred by failing to direct the jury that they were required to be satisfied as to this evidence beyond reasonable doubt.[14]
[14] Appellant's case [17].
The appellant's submissions in this regard are somewhat difficult to follow, but the argument seems to be that the trial judge failed to direct the jury that the evidence in respect of one count was only cross‑admissible in respect of other counts if the jury were satisfied beyond reasonable doubt that those acts had occurred. The trial judge did in fact give a direction in those terms. In those circumstances, it is not presently apparent that this ground has strong prospects of success.
Ground 4 alleges that the convictions for counts 1 and 8 should be set aside because the trial judge made an error of law in allowing inadmissible evidence regarding uncharged acts to be admitted. The appellant submits that the trial judge permitted the prosecutor to lead evidence of uncharged acts that were beyond the scope of a ruling made by the trial judge.[15]
[15] Appellant's case [21] - [26].
The appellant submits that there was a ruling that five discrete episodes of uncharged acts were to be led as context evidence.[16] However, three other acts were adduced in evidence that fell outside the ruling. Whether or not this is so is impossible to determine without an analysis of the transcript of the trial, the ruling given, the evidence adduced, whether any objection was made to that evidence, and the impact that that evidence could have had on the outcome.
[16] Appellant's case [23].
As noted earlier, this ground relates solely to counts 1 and 8 and therefore could not, in itself, constitute exceptional reasons in circumstances where the convictions on counts 2 and 7 would remain even if this ground was successful.
Ground 5 alleges that the convictions on all counts should be set aside because the trial judge made an error of law in failing to direct the jury that the State was required to prove motive beyond reasonable doubt.[17]
[17] Appellant's case [27].
The appellant submits that the motive asserted by the State was that he had a sexual interest in the two complainants and a tendency to act upon it by touching them in a sexual or indecent way, when the circumstances permitted.[18] It is not necessary for the prosecution to prove that an accused has a motive to commit an offence. Nor is it necessary in every case that a motive that is asserted be proven beyond reasonable doubt. It is only required to prove such a motive beyond reasonable doubt where a jury is asked to infer guilt from that motive. The jury in the present case were not asked to infer guilt from the motive; they were asked to find guilt from the direct evidence of the commission of the offences.
[18] Application ts 6.
To the extent that this ground is a complaint about the use of propensity evidence, the trial judge, as I have previously mentioned, correctly directed the jury that they could only use evidence in relation to one count to decide whether the State had proved another charge if they were satisfied of the first charge beyond reasonable doubt. The jury were directed that they could not use evidence of a proven charge in substitution of evidence relating to another charge and that they could not conclude that because the appellant was guilty of one charge, he must therefore be guilty of others. Ground 5 cannot be said to be so strongly arguable as to constitute exceptional circumstances justifying a grant of bail.
Ground 6 alleges that fresh and new evidence shows significant inconsistencies in the complainant's (that is, WX's) accounts and establishes alibis for two of the charges, an absence of opportunity for three other charges, and that this raises reasonable doubt as to the guilty verdicts.[19]
[19] Appellant's case [33].
The appellant has applied, by application dated 1 August 2023, to adduce evidence of eight deponents, including himself. That application has been referred to the hearing of the appeal. The appellant did not give evidence at the trial, and evidence that he proposes to give as to the circumstances of the offences is highly unlikely to be fresh evidence. It is evidence that, in the normal course, should have been known to the appellant at trial and which he would have had a choice to adduce.
Further, it is not apparent from the appellant's affidavits, nor the other deponents' affidavits, that any of the material contained in them, with a possible exception of one of the appellant's sons, was not known to, or was unavailable to, the appellant or could not have become available with reasonable diligence at the trial. An appeal is not, of course, an opportunity to run a different trial to that which the appellant chose to run at first instance.
The appellant particularly refers to evidence from his wife and two sons, which is said to contradict the evidence of the complainant in respect of counts 1 and 8. I have read those affidavits and it is not readily apparent where that contradiction lies and, in any event, it is far from clear that this evidence was not evidence that was available at trial.
The appellant has also placed considerable reliance on evidence of a diary of WX.[20] He submits that the entries made in that diary are inconsistent in relevant details when compared to her evidence as to what occurred. That diary was disclosed by the prosecution and was available at the trial. WX was not asked questions about it and was not cross‑examined on it. The appellant says that that was, in effect, due to negligence on the part of his legal representative. However, it is not difficult to envisage that there was a legitimate forensic purpose in not cross‑examining WX in regard to entries in her diary that related to sexual offending. It may well have been that counsel thought that it was more problematic to question WX about that diary than it was to leave those questions unasked.
[20] Appellant's case [46], [48] - [52], [56] - [57].
An accused person is bound by the forensic decisions made by their counsel at trial if those decisions, on an objective basis, have a conceivable legitimate forensic purpose, and that is the case in this matter.
The State submits that none of the proposed evidence is fresh evidence, except with the possibility of one aspect of evidence that is proposed to be given by one of the appellant's sons. However, it is submitted that all of the evidence contained in the affidavits was known to, and available to, the appellant prior to the trial.[21] The new evidence, if accepted, would, in any event, not prove that the appellant was innocent of any of the charges. At most, it would establish that the victims, that is ZY and WX, may have been mistaken about some details peripheral to the commission of the offences, or that there were occasions within the period in which the offences were alleged to have been committed when those offences could not have been committed precisely as alleged, or precisely at a particular time. This may limit the circumstances in which there was an opportunity to commit the offences but does not in itself establish that the offences could not have occurred.
[21] Respondent's submissions in relation to bail [38].
One other aspect of this evidence that is referred to by the appellant is in respect of count 8 and whether there were locks on the door of ZY's bedroom at the time. There is some evidence in respect of that from the appellant's son. It may well have been a matter that went to credibility, but it does not in itself establish that the offence could not occur.
It is not apparent that this ground has such strong prospects of success as to justify a conclusion that exceptional circumstances for the granting of bail have been established.
Ground 7 alleges that there was a miscarriage of justice because the prosecutor did not act fairly, in that there was a failure to call all material witnesses, that evidence of uncharged acts was led which was not within the terms of a ruling by the trial judge, that evidence of uncharged acts was used in an unapproved way, and that one of the complainants was re‑examined in a manner that destroyed the effect of cross‑examination.[22]
[22] Appellant's case [65].

The appellant submits that the prosecutor failed to call all material witnesses and refers in this regard to his wife and sons, and some others.[23] None of whom, it should be noted, was interviewed by police or provided witness statements.
[23] Appellant's case [67].
The State submits that the appellant's submissions conflate the prosecutor's duty to call witnesses with the conduct of the police investigation. As regards uncharged acts, the State submits that the prosecutor made clear what the purpose of that evidence was and that the jury were appropriately directed as to the use of that evidence. Insofar as it is suggested that context evidence was misused as propensity evidence, the State points to a passage in which the prosecutor makes a contrary statement.[24]
[24] Respondent's submissions in relation to bail [41] - 42].
As to criticism regarding re‑examination, the State submits that ZY had been cross‑examined regarding a statement in which she had said that she had not seen the offender, as her eyes were closed. She said that she had pretended to be asleep and kept her eyes closed, but she did not do this on every occasion.[25] In re‑examination, she said that, in respect of an uncharged act that had occurred overseas, she had glanced up in a sideways manner to see that it was the appellant.[26] This was only relied on, in re‑examination, to show that her evidence that she did not keep her eyes closed on every occasion was not a recent invention. No objection was made to the questioning in re‑examination. It is not apparent that this ground of appeal has such strong prospects of success as to justify the granting of bail.
[25] ts 152.
[26] ts 175.
Whilst some of the matters raised in the appellant's submissions may be arguable, they are not so plainly assured of success as to amount to exceptional reasons for the granting of bail. Put another way, the grounds do not raise a real concern that the appellant will suffer an injustice by being kept in custody on the basis of unsound convictions.
As to the application to issue a witness summons, the appellant wishes to issue a witness summons to the complainant, ZY. In an affidavit in support of the application, the appellant states that the complainant in counts 2 to 7 (that is, WX) nominated ZY as a witness to some of the events that occurred to her. The appellant says that despite being nominated as a relevant witness, ZY was not interviewed by the police regarding the alleged events relating to WX.[27]
[27] Appellant's affidavit sworn 1 August 2023.
It is true that WX, in her evidence, said that ZY was present at around the time when the acts constituted by counts 2 to 7 occurred. ZY was, of course, called to give evidence at the trial. She was available to be questioned regarding the events relating to WX. But the prosecution case was that ZY was not present when any sexual acts occurred. The appellant has produced no statement or affidavit from ZY to the effect that she has any additional evidence to give in this regard. It appears to be a matter of speculation on the part of the appellant that ZY could give some relevant evidence because she was present at around the relevant time.
In oral submissions, the appellant has also suggested that ZY has given inconsistent statements in the past and implied that these could be put to her if she was called to give evidence at the appeal.[28] In the circumstances, no legitimate forensic purpose has been established since there are no grounds to believe that ZY can give any relevant evidence, fresh or otherwise.
[28] ts 23 - 24, 30 - 31.
For the above reasons, both applications must be refused.
The orders are as follows:
1.The application for bail is refused.
2.The application for leave to issue a witness summons is refused.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AZ
Associate to the Honourable Justice Hall
12 SEPTEMBER 2023