JEL v The State of Western Australia
[2022] WASCA 32
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: JEL -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 32
CORAM: BUSS P
MAZZA JA
BEECH JA
HEARD: 1 FEBRUARY 2022
DELIVERED : 15 MARCH 2022
FILE NO/S: CACR 43 of 2021
BETWEEN: JEL
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: TROY DCJ
File Number : IND XXXX of XXXX
Catchwords:
Criminal law - Conviction of three counts of aggravated indecent dealing with a child who was a lineal relative - Where the State case relied upon the reliability of the very young complainant's evidence - Whether the judge erred by directing the jury that they could use evidence of uncharged acts to find that the appellant had a sexual attraction to the complainant - Whether to so direct the jury invited or gave rise to a real risk of propensity reasoning - Whether the judge erred by failing to warn the jury about the complainant's two and a half year delay in making the complaints - Whether inadequacies in the complainant's evidence meant that the verdicts were unreasonable - Whether additional evidence adduced on appeal challenging the credibility of a State witness demonstrates a miscarriage of justice
Legislation:
Criminal Appeals Act 2004 (WA), s 30(3)(a), s 30(5)
Result:
Appellant's applications in an appeal dismissed
Leave to appeal on grounds 1, 2 and 3 granted
Leave to appeal on ground 4 refused
Appeal upheld
Judgments of conviction set aside
Retrial ordered
Category: A
Representation:
Counsel:
| Appellant | : | A O Karstaedt |
| Respondent | : | R G Wilson |
Solicitors:
| Appellant | : | Cathal Smith Legal Pty Ltd |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Pell v The Queen [2020] HCA 12
AJE v The State of Western Australia [2012] WASCA 185; (2012) 225 A Crim R 242
BBH v The Queen [2012] HCA 9; (2012) 245 CLR 499
BSD v The State of Western Australia (No 2) [2009] WASCA 152
Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314
Clarke v The State of Western Australia [2018] WASCA 14
Colquhoun v The Queen (No 1) [2013] NSWCCA 190
Dann v The State of Western Australia [2021] WASCA 15
Dayananda v The State of Western Australia [2021] WASCA 11
De Jesus v The Queen (1986) 61 ALJR 1
Doggett v The Queen [2001] HCA 46; (2001) 208 CLR 343
DWM v The State of Western Australia (No 2) [2019] WASCA 143
Eravelly v The State of Western Australia [2018] WASCA 139
ES v The Queen (No 1) [2010] NSWCCA 197
Hamilton (a pseudonym) v The Queen [2021] HCA 33; (2021) 95 ALJR 894
Hill v The State of Western Australia [2009] WASCA 209
HML v The Queen [2008] HCA 16; (2008) 235 CLR 334
IAB v The State of Western Australia [2015] WASCA 238
Jago v The State of Western Australia [2022] WASCA 2
Lehy v The State of Western Australia [2021] WASCA 66
MAS v The State of Western Australia [2012] WASCA 36
MEN v The State of Western Australia [2020] WASCA 118
R v Leonard [2006] NSWCCA 267; (2006) 67 NSWLR 545
R v Maiolo (No 2) [2013] SASCFC 36; (2013) 117 SASR 1
R v McNeish [2019] QCA 191; (2019) 2 QR 355
Ritchie (a pseudonym) v The Queen [2018] VSCA 31
RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67
TSP v The State of Western Australia [2021] WASCA 224
Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234
Wells v The State of Western Australia [2017] WASCA 27
WFS v The Queen [2011] VSCA 347; (2011) 33 VR 406
JUDGMENT OF THE COURT:
Introduction
On 4 March 2021, the appellant was convicted by a jury of three counts of aggravated indecent dealing with a child who was his lineal relative, contrary to s 329 of the Criminal Code (WA). Each count alleged the appellant had touched the penis of his biological son, who was then aged 4 or 5 years old.
The State case relied upon the jury accepting the credibility and reliability of the complainant's evidence as to the three counts. The complainant was 7 years old at the time his evidence was pre‑recorded.
The State also led evidence from the complainant as to two occasions, not the subject of any charge, on which the complainant hugged the appellant and, in effect, felt the appellant's erect penis against his body. The evidence was not led as propensity evidence under s 31A of the Evidence Act 1906 (WA), but was said to be 'a backdrop' to help evaluate the evidence. As will be seen, the purpose(s) for which this evidence was led was less than crystal clear.
The appellant advances four grounds of appeal. In summary, those grounds contend that:
(1)the judge failed to adequately warn the jury about the appellant's forensic disadvantages arising from the delay in the appellant becoming aware of the allegations (ground 1);
(2)the verdicts were unreasonable and unsupported by the evidence (ground 2);
(3)the judge erred in several respects in directing the jury as to the uses to which it could and could not put the evidence of the two occasions not the subject of charges to which we have referred (ground 3); and
(4)new evidence adduced on appeal demonstrates that the jury was not provided with documentary evidence that contradicts the testimony of one of the State's witnesses, which gives rise to a miscarriage of justice (ground 4).
For the reasons that follow, we would uphold ground 3 of the appeal and order a retrial. None of the other grounds of appeal have been established. We uphold ground 3 because, in short, the trial judge's direction was erroneous, giving rise to a miscarriage of justice, in the following respects:
(1)The judge directed the jury that, if the jury accepted that the uncharged acts evidence was truthful, accurate and reliable, the jury could use the evidence of the uncharged acts to find that the appellant was sexually attracted to the complainant when it was no part of the State case that the evidence could be used in that manner.
(2)The judge directed the jury in effect that, if they found that the uncharged acts had occurred, they could find, on the basis of those uncharged acts, that the appellant had a sexual attraction to the complainant and, if they did so, they could use those facts in deciding whether the State had proved the counts in the indictment. In our view, that direction invited, or at least gave rise to a real risk of, propensity reasoning when such reasoning was not part of the State case and was impermissible.
(3)Among other things, the judge directed the jury that they could use the evidence of the uncharged acts to explain any failure of the complainant to complain or to rebuff his father more than he did and to explain why his father was confident to act as he was alleged to have done. However, on the complainant's evidence, the uncharged acts occurred subsequent in time to the conduct the subject of the three charges. Consequently, the evidence of the uncharged acts was incapable of being used in these ways.
(4)Consequently, the judge's direction failed to adequately explain to the jury the manner in which they may and may not use the evidence.
The State case in overview
The State case was that on three separate occasions on unknown dates between 1 November 2016 and 20 May 2019, at which times the complainant was either 4 or 5 years old, the appellant touched the complainant's penis while the appellant and complainant were lying in the appellant's bed. The offences occurred after the complainant's parents had separated. The State alleged that each offence occurred at the appellant's home in Mandurah, while the complainant was in the appellant's care.
The State case relied primarily on what was said by the complainant. The complainant participated in two child witness interviews, the first on 11 June 2019 and the second on 19 June 2019. The complainant was 6 years old when these interviews occurred. The complainant's evidence was pre‑recorded on 23 June 2020.
As already noted, the State led evidence from the complainant as to two occasions not the subject of any charge. We will outline what the State said in relation to that evidence when we deal with ground 3.
In addition to relying on the complainant's interviews and pre‑recorded evidence, the State called the complainant's mother, her partner and the investigating officer.
The defence case in overview
The appellant gave and adduced evidence.
The defence case was that the incidents did not occur. The appellant denied the incidents, denied the other uncharged sexual conduct and denied that he had any sexual interest in the complainant.
The defence also called the complainant's maternal grandmother and maternal aunt.
The defence accepted that the jury would find the complainant to be an honest witness, but submitted that the jury ought not be satisfied beyond reasonable doubt as to the reliability of his evidence. In that respect, among the matters to which counsel pointed were the suggestibility of children; inconsistencies between the complainant's accounts of events in the two video interviews and his pre‑recorded evidence; the background acrimonious conflict between the appellant, on the one hand, and the complainant's mother and her partner, on the other hand, as to custody arrangements; the possibility that the allegations may have been somehow suggested to the complainant because his mother and her partner disagreed with the complainant sleeping in bed with the appellant; and the risk that the complainant had conflated or expanded a single occasion, when the appellant (inadvertently) touched the complainant's penis while the appellant was asleep, into several distinct events.
The evidence adduced by the State
The complainant's evidence
Given the emphasis, in the appellant's submissions, on the inconsistencies in the complainant's accounts of the offending, we will outline, in detail, the course of each of the two interviews of the complainant and his pre‑recorded testimony in court.
11 June 2019 - child witness interview
The interviewer began by saying that the complainant had said he had been touched on his willy, asking whether that had occurred one time or more than one time. In response, the complainant said, '[o]nce', but when the interviewer repeated that response, the complainant said, '[n]o, it was three times'. The complainant then confirmed it was three times.
The interviewer asked the complainant to say what had happened on the last occasion that the complainant was touched on his willy. The complainant said that the appellant told him to keep it a secret from his mum, asking whether he (the complainant) wanted to 'get dad in trouble'. The complainant said he did not want that, to which the appellant said, '[d]on't tell them'.
Asked to describe the last time he was touched on the willy, the complainant said that it was at night, and that he woke up to a hand on his willy, on top of his pants. When he woke up, the complainant moved the appellant's hand off his willy. The complainant woke the appellant and told him that his hand was on his willy. The complainant asked him if he knew that his hand was on his willy and the appellant responded 'no'.
The complainant said that, the night before, he had been asleep and then felt the appellant's hand holding his willy. The complainant moved the appellant's hand.[1]
[1] 11 June 2019 child witness interview ts 4, BGAB 8.
The complainant said that another time he was touched on the willy was when he was four and that he '[doesn't] remember what happened because it was a long time ago'. The complainant said that the appellant 'did it' when he was four, that the complainant woke up and was 'a little bit' scared. The complaint told the appellant to move his hand off his private part. The appellant said 'okay' and moved his hand off.[2]
[2] 11 June 2019 child witness interview ts 4, BGAB 8.
The interviewer asked the complainant if there was another time when something similar happened. The complainant said it has happened three times.[3]
[3] 11 June 2019 child witness interview ts 5, BGAB 9.
The complainant said that the touchings happened in his dad's bed.[4]
[4] 11 June 2019 child witness interview ts 7, BGAB 11.
The complainant said that before he went to bed, he and the appellant watched TV and then watched Transformers in the appellant's bed, before the complainant fell asleep. The appellant's willy was poking up while the complainant was hugging him. The appellant's hand was on top of the complainant's willy when the complainant woke up. The first thing the complainant remembered when he woke up was the appellant's hand holding his private part. The next thing that happened is that the complainant pulled off the appellant's hand.[5] Then the complainant told the appellant that his hand was on his willy.[6] The appellant said, '[o]kay I won't do it again'.[7] The complainant said he was five when that happened and that it happened in the morning.[8]
[5] 11 June 2019 child witness interview ts 7 - 8, BGAB 11 - 12.
[6] 11 June 2019 child witness interview ts 9, BGAB 13.
[7] 11 June 2019 child witness interview ts 9, BGAB 13.
[8] 11 June 2019 child witness interview ts 9, BGAB 13.
The complainant said he had visited his dad's house since that happened because the appellant told him to keep it a secret when he was five and a half.[9] The complainant said that he kept the secret for a little while, and then told his mum because he 'forgot about it for a long time'.[10]
[9] 11 June 2019 child witness interview ts 9, BGAB 13.
[10] 11 June 2019 child witness interview ts 9 - 10, BGAB 13 - 14.
The complainant said that he does not know his dad's address, but that his dad lives in [description of general location of dad's house redacted].[11]
[11] 11 June 2019 child witness interview ts 10, BGAB 14.
The complainant said that no one else was in the room or in the house when the touchings occurred.[12]
[12] 11 June 2019 child witness interview ts 10, BGAB 14.
The interviewer asked if anything else happened with dad about a secret. The complainant said that his dad has told him to keep lots of secrets, but that the complainant does not remember any of them.[13]
[13] 11 June 2019 child witness interview ts 12, BGAB 16.
The interviewer asked if anything else has happened that the complainant wanted to tell her. The complainant said no, except that the appellant was unfair and hurt his feelings with the 'two weeks and two weeks'.[14]
[14] 11 June 2019 child witness interview ts 12, BGAB 16.
The complainant said that he only has one dad and that his dad has lived in the same house for nine years.[15]
[15] 11 June 2019 child witness interview ts 15, BGAB 19.
The complainant said that he has felt the appellant's willy on top of his belly more than once. The complainant described a time after he scored a goal in soccer when he hugged his dad and his dad's willy was on top of his belly. The complainant described another time when he and a friend played a king of the pack contest, before playing mini golf. The complainant hugged the appellant and then '[the appellant's] willy was on top of his belly like that'. The complainant said, in response to a question, that he knew the appellant's willy was on top of his (the appellant's) belly because he (the complainant) could feel it when he was hugging the appellant. This occurred after they had dropped off the complainant's friend.[16]
[16] 11 June 2019 child witness interview ts 15 - 16, BGAB 19 - 20.
The complainant said that he was wearing superhero pyjamas, 'the doggy ones', when he woke up to find the appellant's hand on his willy. The complainant said that his dad was wearing old black and white shorts and a green shirt with a picture of a forest.[17]
[17] 11 June 2019 child witness interview ts 17, BGAB 21.
The complainant said that the first person he told was the complainant's mother's partner, who then told the complainant's mother. He told the complainant's mother's partner last month in her car. He told her that his dad's willy has been poking up, adding that she 'was very scared because it's not the right thing'.[18]
[18] 11 June 2019 child witness interview ts 18, BGAB 22.
The complainant said that nothing was recording when he woke to find his dad's hand on his willy.[19]
19 June 2019 - child witness interview
[19] 11 June 2019 child witness interview ts 18, BGAB 22.
The interviewer began by asking the complainant if he remembered what he had talked to the interviewers about at the first interview two weeks earlier. The complainant said 'no'. The interviewer told the complainant that he (the complainant) had said in the earlier interview that he had woken up with his dad's hand on his willy. He said to his father that 'your hand is on my willy'. The interviewer then told the complainant that he had also said that he was watching Transformers in bed and 'dad's willy was poking up' when the complainant was hugging him and then he had fallen asleep and when he woke up his father's hand was on his willy. The complainant said 'yes', he remembered that. The interviewer asked whether that was the same time or whether that all described two different times. The complainant said it was two different times.[20]
[20] 19 June 2019 child witness interview ts 2 - 3, BGAB 26 - 27.
The interviewer said that he would begin by talking about the time when the complainant had woken up with his father's hand on the complainant's willy and the complainant had said, 'Do you know your hand was on my willy?'[21]
[21] 19 June 2019 child witness interview ts 3, BGAB 27.
The complainant said that, when he woke up, his body was kind of twisted and that he was lying in bed. Every part of his body was touching the bed. He said he was lying on his tummy. Then he said he meant that he was on his side. His dad was on his back. Only his dad's hand was touching the complainant. The complainant said his dad was to the complainant's left - the side of the complainant's tummy. His dad's hand was holding his willy hard.[22]
[22] 19 June 2019 child witness interview ts 4 - 5, BGAB 28 - 29.
The complainant said his dad's hand was on the outside of his singlet, before saying he thinks it was on the inside. Then he said the hand was outside his underwear and then went underneath. Then he said it was inside his underwear, but on top of his pants, before saying it was outside his clothes. The complainant then moved his dad's hand off his willy. They were in the appellant's bed when this occurred.[23]
[23] 19 June 2019 child witness interview ts 4 - 7, BGAB 28 - 31.
Asked to describe the time they watched Transformers, the complainant said that they had ice cream, watched TV, then watched another movie and then went to bed. Then the complainant said that they didn't go to bed, they watched his Poppy wrestle in Baldivis.[24]
[24] 19 June 2019 child witness interview ts 7, BGAB 31.
The complainant described the time when the complainant said, 'Do you know your hand is on my willy?', saying that, when in bed, they watched the real-life Dumbo, the 4D version.[25]
[25] 19 June 2019 child witness interview ts 8, BGAB 32.
The complainant said that his dad's hand was on his willy both before the complainant fell asleep and when he woke up. His dad first put his hand on his willy in the middle of the movie. They were hugging. The complainant was lying on his side. The complainant and the appellant were facing each other while hugging. The appellant then slid his hand from the right side of his body onto the complainant's willy, which he held hard on top of his clothes. Then the complainant fell asleep. When the complainant woke up, the appellant was still holding his willy. At this point, the Dumbo film had finished.[26]
[26] 19 June 2019 child witness interview ts 9 - 11, BGAB 33 - 35
The interviewer asked if this was when the complainant said, 'Do you know your hand was on my willy?' The complainant said, 'No, that was at night-time, the same night'. The complainant said he was five and a half at the time.[27]
[27] 19 June 2019 child witness interview ts 11, BGAB 35.
The interviewer returned to the time they were watching Transformers. The complainant said that he and the appellant were hugging, while facing each other, when he felt the appellant's willy poking up while watching Transformers.[28]
[28] 19 June 2019 child witness interview ts 11, BGAB 35.
The complainant said that, after the Dumbo incident, he took the appellant's hand off and put it on his belly. Then he said, 'Dad, do you know that your hand's on my willy?' His dad said 'Ooh I know Mike.' The complainant said, 'Well then could you please get it off.' The appellant kept putting it back on. He put it back on and held it five more times.[29]
[29] 19 June 2019 child witness interview ts 13, BGAB 37.
The complainant said that, the time they were watching Transformers, the appellant was hugging him very hard and the complainant could feel the shape of the appellant's willy near his (the appellant's) belly button. The complainant said that he felt it near his own belly button. The complainant said that, at the same time, the appellant was also holding the complainant's willy, on top of his clothes. The complainant evidently demonstrated this physically, saying it was 'like this'. The appellant was not holding his willy when the complainant fell asleep, but his hand was back on when the complainant woke up. The complainant was lying on his stomach and the appellant held his willy underneath him. The complainant told the appellant to stop. The appellant said, 'Uh okay mate' and said to keep it a secret.[30]
[30] 19 June 2019 child witness interview ts 15 - 17, BGAB 39 - 41.
Describing the time when he was four, the complainant said that he told the appellant, 'Dad can you please move your hand?' and that he said, 'I'm a little bit scared'. The complainant said that was the first time it happened. He said he was four and a half. The complainant was lying down in dad's bed, sort of on his back. Again, the complainant evidently demonstrated it physically, saying he was 'laying like this'. His dad was lying 'kind of half tummy, kind of back, kind of side' and almost off the bed. The appellant's hand was on top of the complainant's clothes.[31] The appellant could feel his dad's willy pointing on his belly. The appellant was holding the complainant's willy. No one else was in the room.[32]
[31] 19 June 2019 child witness interview ts 18 - 19, BGAB 42 - 43.
[32] 19 June 2019 child witness interview ts 20 - 21, BGAB 44 - 45.
Describing the time he felt his dad's willy poking up after he kicked a goal in soccer, the complainant said that he was 'near the soccer - near the football goal'. He said that it happened last year (meaning 2018) when he was 6 (and so after his birthday on 2 November).[33]
[33] 19 June 2019 child witness interview ts 27, BGAB 51.
Describing the time after mini golf, the complainant said that he felt his dad's willy on his belly. He said he was with his friend, G. He said this occurred at the end of kindergarten, in November, when the complainant was 6. The complainant said he is currently in year 1. The complainant then said he was in pre-primary last year. The complainant reiterated that he was 6 when he played mini golf with G.[34]
Pre‑recorded evidence on 23 June 2019
[34] 19 June 2019 child witness interview ts 27 - 28, BGAB 51 - 52.
The judge asked the complainant, and the complainant answered, some questions such as his age and how he travelled to the court.
The complainant described the difference between the truth and a lie, said that telling the truth is important so that the judge can find out the truth, and said that he would tell the truth in court.[35]
Examination in chief
[35] ts 23/06/2020 16 - 17, BGAB 62 - 63.
The complainant said that he remembered the two video interviews and that he did his best to tell the truth in them.[36] He said he had watched the two videos the week before he gave his pre‑recorded evidence.
[36] ts 23/06/2020 18, BGAB 64.
The complainant said he was five when he watched the Dumbo film that he had talked about in his interview. The complainant said he watched the Dumbo film after he watched the Transformers movie. There was a bit of a gap in time between watching the two films.[37]
[37] ts 19, BGAB 65.
The complainant said that the appellant told him to keep it a secret after the Dumbo film.[38]
Cross-examination
[38] ts 19, BGAB 65.
The complainant said that his dad calls him Michael and that his mums sometime call him Mike.[39]
[39] ts 20, BGAB 66.
Counsel for the defence showed the complainant a photograph of the complainant's room at his dad's house. The complainant confirmed that it was his room, that it showed his wrestling belt and figures, and that his Poppy does wrestling.[40]
[40] ts 20 - 21, BGAB 66 - 67.
The complainant confirmed that he liked watching TV with his dad, that he watched TV with dad in dad's bed, and sometimes went to sleep watching movies.[41]
[41] ts 21, BGAB 67.
The complainant said that his mum and dad don't live together anymore, that they broke up when he was two, and that he has two mummies now. The complainant calls his two mummies 'mum'. The complainant used to spend some weekends with his dad and some with his mums. His mums wanted that to change so that he spent less time with his dad. The complainant brought this up with his dad, and thought his dad was being unfair and ignoring the complainant's feelings. This happened before the Dumbo movie incident, after the Transformers incident.[42]
[42] ts 21 - 22, BGAB 67 - 68.
Counsel for the defence asked the complainant about things that were 'wrong' with the video interviews. The complainant said that he told Amy (the second video interview) that his dad asked him to keep it a secret the day after the Dumbo film, however the complainant told Katie (Ms Kemm, counsel for the State) that was wrong because his dad actually told him the same night as watching the Dumbo film. The complainant confirmed that another mistake in the Amy interview, corrected in the Katie interview, was that he was five, not five and a half, when he watched the Dumbo film. The complainant said that he cannot remember telling Katie that he was 4 and a half, not 5, when he watched the Transformers movie. The complainant said that he was 4 when he watched the Transformers movie.[43]
[43] ts 23, BGAB 69.
The complainant said that neither of his mums talked to him about what he would say in court or in his interviews.[44]
[44] ts 23, BGAB 69.
The complainant denied that (i) his dad has never held or touched his willy in bed, (ii) he has never seen his dad's willy poking up, (iii) the complainant's willy has ever poked up in the bath, and (iv) he has never played mini golf with his dad and G.[45]
The complainant's mother
[45] ts 24 - 25, BGAB 70 - 71.
Following her separation from the appellant in 2014, the complainant's mother described the complainant's custody arrangements, which changed in 2016 and again in October 2018.[46]
[46] ts 62 - 64.
The complainant's mother said that she did not notice a 'massive' amount of change in the complainant's behaviour from October 2018.[47]
[47] ts 67.
The complainant's mother confirmed that the custody arrangements used to be more fifty-fifty until 2016. The complainant's mother said that the complainant calls her partner 'mama' or 'mama [first name redacted]', and that he calls his mother 'mum'.[48]
[48] ts 68 - 69.
The complainant's mother gave evidence that may be summarised as follows:
(a)Her partner does not practise hypnotherapy; has never, to her knowledge, practised hypnotherapy; and has not practised it on anyone, including the complainant.[49]
(b)In 2018 the appellant applied for sole custody of the complainant. The appellant made allegations that the complainant's mother had assaulted the complainant.[50]
(c)In the period around 2017 and 2018, she was seeking to alter the custody arrangements to better accommodate work and the complainant's school, such that the appellant had reduced time with the complainant.[51] The complainant's mother said that she and her partner did not discuss Family Court proceedings with the complainant.[52]
(d)She did not agree with the complainant sleeping in bed with the appellant, but never discussed this in front of the complainant.[53]
(e)Asked whether she had suggested to the complainant that he had been touched by the appellant, the complainant's mother said '[o]h no, definitely not'.[54]
(f)The focus of the Family Court proceedings was the accusations of assault made by the appellant, and his consequent application for custody.[55]
The mother's partner
[49] ts 70.
[50] ts 70.
[51] ts 71 - 72.
[52] ts 72.
[53] ts 73.
[54] ts 73.
[55] ts 74 - 75.
The evidence of the complainant's mother's partner included the following:
(a)The complainant calls her 'mama' when they are around his mother and calls her 'mum' when they are alone.[56]
(b)In 2019, she noticed that the complainant became a bit more reserved and more self-conscious about his naked body.[57]
(c)She denied disliking the appellant and the complainant's mother's family since the beginning of her relationship with the complainant's mother. She also denied having sought, from the beginning of her relationship with the mother, to reduce the amount of time that the complainant spends with the appellant.[58]
(d)She said that she never practises hypnotherapy. She described her level of training in hypnotherapy as very low, saying her level of qualification would be like 'one on the back of a Kellogg's cereal box'. She said that she spent four hours at most learning hypnotherapy. She denied ever practising hypnotherapy on the complainant, saying '[n]o, absolutely not'.[59]
(e)She denied ever telling the complainant what to say on the phone to his dad.[60]
(f)She said that the complainant's mother's position at the Family Court proceedings was that she wanted the appellant to have the complainant for two weekends a month.[61] She denied ever talking about this with the complainant.[62]
(g)She also denied ever talking to the complainant, prior to the complainant's allegations, about whether his father touches him sexually. She denied ever telling the complainant that co-sleeping is bad. She said that she and the complainant's mother said to the complainant that, as he gets older, he sleeps in his own bed.[63]
The investigating officer
[56] ts 77.
[57] ts 78.
[58] ts 79 - 80.
[59] ts 81 - 82.
[60] ts 82.
[61] ts 84.
[62] ts 85.
[63] ts 86.
Detective Senior Constable Huxley, the investigating officer, confirmed investigating the release of the live-action Dumbo film. Her investigations found that the film was released to cinemas on 28 March 2019 and to home media on 25 June 2019.[64]
[64] ts 88.
The evidence adduced by the defence
The appellant
The appellant denied ever knowingly touching the complainant's penis.[65] He said that the complainant sometimes stayed at his house and sometimes slept with him in bed.[66] He denied ever knowingly waking up to find himself cuddling the complainant and touching his penis.[67]
[65] ts 98.
[66] ts 98.
[67] ts 98.
Until the complainant started kindergarten, the custody arrangements between the appellant and the complainant's mother were fifty-fifty.[68] Then custody changed such that the appellant had the complainant from Thursday afternoon to Sunday afternoon, three times a month.[69]
[68] ts 98.
[69] ts 99.
In November 2017, the complainant's mother proposed changing the appellant's time with the complainant to two weekends a month. The appellant disagreed with this proposed change.[70] He said that, on 5 October 2018, he filed for sole custody of the complainant. At this point, his relationship with the complainant's mother was a bad relationship.[71]
[70] ts 99.
[71] ts 104.
The appellant described an instance where the complainant said that the complainant's mother's partner told him what to say to the appellant.[72] The appellant also described an occasion where the complainant told him that he wanted more time with his mums. The complainant was upset because the appellant did not want to talk about custody arrangements.[73]
[72] ts 105.
[73] ts 109 - 110.
The appellant said that the complainant does not have superhero dog pyjamas at the appellant's house. The appellant said that he watched Transformers with the complainant from the ages of 4 or 5. They watched them mostly in the appellant's bedroom. They watched DVDs before the complainant fell asleep. The appellant denied ever waking up to find himself touching the complainant's penis.[74]
[74] ts 110 - 111.
The appellant denied ever owning the live-action Dumbo film.[75]
[75] ts 111 - 112.
The appellant said that the complainant played soccer and mini golf. He denied any instance where the complainant ran up and hugged him after soccer. He said that G never played mini golf with the appellant and the complainant.[76]
[76] ts 112.
In cross‑examination, the appellant said that he occasionally let the complainant lie in bed and watch his smartphone.[77] To his knowledge, the complainant never looked up anything related to Dumbo prior to watching it at the cinemas.[78]
[77] ts 113.
[78] ts 115.
The appellant said he hugged his son in the course of their ordinary relationship, but could not recall ever hugging him at soccer. The appellant denied ever hugging the complainant with an erect penis at soccer or at mini golf.[79]
[79] ts 115.
The appellant said that he has never called the complainant 'Mike', but has occasionally called him 'mate'.[80]
[80] ts 116.
The appellant said that he lay in bed, watched movies with, and hugged his son. The appellant knew about the complainant's mother's dislike of co‑sleeping.[81]
[81] ts 116.
The appellant agreed that he was anxious about his custodial arrangements and anxious about the complainant becoming involved in those arrangements.[82]
[82] ts 117.
The appellant agreed that he wanted to have a special bond with the complainant but denied developing a sexual interest in the complainant.[83]
[83] ts 118.
The appellant denied touching the complainant's penis and denied the complainant ever asking him to remove his hand from his penis. He agreed that it was possible that he hugged the complainant while watching the Transformers, but denied that his penis was erect. He denied ever holding the complainant's willy, denied ever asking the complainant to keep the touchings a secret, and denied the complainant ever saying, 'Dad did you know that you were touching my willy?'[84]
[84] ts 118 - 119.
The appellant said that the complainant had a pair of superhero pyjamas, but not a pair of dog pyjamas.[85]
The complainant's maternal grandmother
[85] ts 119.
The complainant's maternal grandmother said that she knew about the acrimonious Family Court proceedings. Around the time of the proceedings, she noticed behavioural changes in the complainant. She did not notice behavioural changes in the complainant while around the appellant.[86]
[86] ts 121 - 122.
The complainant's maternal grandmother described taking the complainant to the cinema to watch the live-action Dumbo film on 6 April 2019.[87]
[87] ts 122.
In cross‑examination, she agreed she has had a poor relationship with her daughter.[88]
The complainant's maternal aunt
[88] ts 124.
The complainant's mother's sister said that she lived with the appellant in his house from 2012 until before the complainant was born, and then for six months in 2016.[89] She and the appellant were not in a relationship.[90]
[89] ts 126.
[90] ts 127.
The complainant's mother's sister said that she never observed anything of concern between the appellant and the complainant.[91] She also said she spoke to the complainant, on a number of occasions, telling him that (i) if anyone touched him on what she referred to as his 'peepee' or 'bum bum', he should tell her or his mum or nanny or poppa or dad and (ii) he never said anything of that kind to her.[92]
[91] ts 127.
[92] ts 127.
The judge's summing up
The judge told the jury that they would need to assess the evidence of the witnesses and, in particular, decide whether the evidence of the complainant was honest and reliable. The judge told them that, in doing so, they could take into account matters such as the witness's age, maturity, level of education, the passage of time between events they were recounting and the time at which they were doing so, and anything else which the jury considered might have a bearing on the witness's memory or perception of events.[93] The judge then added:[94]
That does not mean, of course, that you should make allowances for any witness; in particular, [the complainant], and in effect set a lower bar before you to permit you to regard such evidence as credible. In other words, if you are not satisfied that [the complainant's] evidence was credible in the sense of being both honest and reliable, you cannot approach matters on the basis that he's only six, so we'll give him the benefit of the doubt. If you are not satisfied beyond reasonable doubt that [the complainant's] evidence is honest and reliable, then that is the end of the matter.
[93] ts 137.
[94] ts 137.
The judge told the jury that they could take into account inconsistencies in what a witness had said on a previous occasion as compared to what the witness said on a later occasion in determining whether the witness's account was reliable. The judge gave, as examples, the complainant's accounts of his age when a particular event occurred, and the complainant's accounts of when his father said to him to keep it a secret.[95] The judge told the jury that it was for them to assess the significance of any inconsistency.
[95] ts 138.
The judge directed the jury as to the purposes for which they could use the complainant's evidence that, on two occasions not the subject of any charge, the complainant was hugged by his father and could feel what must have been, on the complainant's account, the appellant's erect penis. The judge's direction in that regard is the subject of ground 3 and we will set it out in full in that context.
The judge referred the jury to the fact that the complainant did not make any complaint until about June 2019, which was about two and a half years after the first of the alleged offences. The judge gave a conventional direction as to the significance of the delay in complaint, identifying that people may have good reasons for not complaining.[96]
[96] ts 141 - 142.
The judge reiterated that, before the jury could convict the appellant of any count, the jury would have to be satisfied beyond reasonable doubt as to the truthfulness, accuracy and reliability of the complainant's evidence as to the events the subject of that count.[97]
[97] ts 142.
In identifying the elements of each offence, the judge explained to the jury that the essential issue was whether the State could prove beyond reasonable doubt that the appellant had deliberately touched his son's penis on each occasion.[98]
[98] ts 144 - 145.
The judge gave the jury a detailed direction as to the use that the jury could make of the evidence of one count, if the jury found that the State proved that count, when considering the evidence relating to one of the other counts.[99]
[99] ts 146 - 147.
The judge concluded his summing up with a detailed outline of the parties' respective cases. The judge referred to the prosecution's acceptance that the complainant was not watching the full‑screen version of the remade Dumbo movie at the time of count 3 and, in that respect, the complainant was mistaken and may have transposed the occasion when he watched Dumbo with his grandparents at the cinema in April 2019.
The judge referred to the prosecution's submission that there was no evidence that the complainant was the subject of hypnotherapy. The judge told the jury that it was correct to say there was no such evidence in this case, explaining that witness's answers, and not counsel's questions, are the evidence.[100]
[100] ts 149.
The judge pointed out that the defence did not challenge the complainant's honesty, but pointed to the suggestibility of young children and various bases for concluding that the jury should not be satisfied as to the reliability of the evidence. The defence submitted that there was a substantial degree of leading in the child witness interviews, particularly the second.
Jury questions
In the course of their deliberations the jury asked two questions requesting specific reference to particular aspects of the complainant's evidence. For present purposes, only the second question need be mentioned.
The jury requested access to any references to 'erect penis' in relation to soccer, mini golf or lying in bed, and also references to an arm movement relating to an erect penis.[101]
[101] ts 172.
As the trial judge noted, the complainant's evidence made no reference in terms, to an erect penis, but the jury's question was evidently directed to uncharged occasions on which, on the complainant's evidence, the appellant hugged him at a soccer game and at mini golf.
In response, the judge read out particular passages of the complainant's evidence to the jury.[102]
[102] ts 175 - 176.
Grounds of appeal
The appellant advances four grounds of appeal. At the hearing of the appeal, the appellant was granted leave to amend ground 3.[103] Following the amendment, the grounds of appeal are in the following terms:
[103] Appeal ts 31.
Ground 1
The learned trial judge made a wrong decision on a question of law by:
a.failing to warn the jury that, because of the delay between the date of the offences alleged to have been committed by the appellant and the time at which he first became aware of the complainant's allegation, the appellant was forensically disadvantaged by losing a chance to adequately test the complainant's evidence or to adequately marshal a defence; or, alternatively
b.failing to warn the jury that the appellant suffered from forensic disadvantages because of the complainant's failure to make a prompt complaint, which warning was necessary in order to avoid a perceptible risk of a miscarriage of justice arising from the circumstances of the case,
or that failure occasioned a miscarriage of justice.
Ground 2
The verdicts should be set aside because, having regard to the evidence, they were unreasonable or could not be supported by the evidence.
Ground 3
The learned trial judge made a wrong decision on a question of law and occasioned a miscarriage of justice:
(a)by directing the jury in effect that they could use the evidence of the uncharged acts to find that the appellant had a sexual interest in the complainant where that was not part of the State's case;
(b)by directing the jury in effect that if they found that the uncharged acts had occurred and if they found on the basis of those uncharged acts that the appellant had a sexual attraction to the complainant, then the jury could use those facts in deciding whether the State had proved the counts in the indictment;
(c)by directing the jury as to how they could reason in relation to the uncharged acts, if they occurred, in circumstances where the uncharged acts must have happened after most if not all of the charged offences alleged in the indictment; and
(d)by failing adequately to explain to the jury how the evidence of the uncharged acts could and could not be used.
Ground 4
There was a miscarriage of justice in that the jury was not provided with documentary evidence that the witness [the mother's partner], at the material time, was trained in, and practi[s]ed, hypnotherapy.
It is convenient to begin with ground 3, which alleges a misdirection.
Ground 3: the direction as to the evidence of uncharged acts
The prosecutor's opening remarks concerning the evidence of uncharged conduct
In opening, the prosecutor foreshadowed that the jury would hear evidence from the complainant of other occasions when it appeared that the appellant may have become aroused in the complainant's company, one after a soccer game and one after mini golf. The prosecutor then said as follows:[104]
[T]hose incidents provide a backdrop to the incidents you're being asked to decide about.
They're not the subject of charges before you and you don't need to make any particular decision about them. They're just information for you to put a backdrop to it and help you explain or evaluate the evidence you are going to hear during the course of the trial. They put it in context, perhaps, and it might explain why the accused might have felt confident to do the act that it is alleged that he did on a particular day in a particular way.
[104] ts 48.
In our respectful opinion, these opening remarks by the prosecutor were unhelpfully vague in identifying for the jury the purpose of the proposed evidence of uncharged acts. To tell the jury that the incidents provide a backdrop, like telling them they provide 'context', tells the jury very little, if anything, as to how they are to use the evidence. We will return to this point later in these reasons.
The judge's direction
The judge gave the following direction as to the evidence of the two uncharged acts:[105]
Now, you heard evidence of two incidents which are not represented by any counts on the indictment, when [the complainant] has alleged that his father held him close and [the complainant] could feel what would have to be, on his account, his father's erect penis.
Now, I need to give you some directions of law about that. That evidence is before you for a limited purpose. You might ordinarily think that a grown man would never be sexually aroused by being in proximity to his very young son.
But if - and I stress if - you accepted this evidence from [the complainant], its purpose is to prove that, contrary to what you might ordinarily think, [the appellant] was in some way sexually attracted to [the complainant]. And if you did reach that finding, then that is a piece of evidence which is capable of supporting [the complainant]'s account of the allegations actually on the indictment in a broad way.
But it is not evidence which is capable of proving by itself that [the appellant] is guilty of any count on the indictment because the only way that you could find a particular count on the indictment proved would be if you accepted that [the complainant]'s evidence in relation to that count, as opposed to other things that he said, was both honest and reliable.
So the evidence of this other touching at a golf game and following a soccer game cannot, in and of itself, prove any count on the indictment. The fact that you heard that evidence does not detract from the fundamental premise that the State's case on the counts in the indictment relies entirely upon the evidence of [the complainant] being accepted by you when he speaks of the episodes giving rise to a particular count as being both truthful and reliable and that is the only way that you could find [the appellant] being guilty of any count.
So if you were to make what is a disputed finding of fact, because [the appellant] denies any impropriety towards his son, whether it's on the indictment or not, but if you were to make this disputed finding of fact this is a piece of evidence which could be regarded by you as consistent with [the complainant]'s allegation that, on occasions, [the appellant] sexually interfered with him as alleged in the indictment.
To broadly support [the complainant]'s credibility, to explain any failure to complain or rebuff his father more than he did and to explain why his father was confident to continue to act as he is alleged to have done. But I remind you that this evidence comes only from [the complainant] and it is strongly disputed. (emphasis added)
[105] ts 140 - 141.
The parties' submissions
The appellant's submissions
The appellant's submissions were to the following effect.
The primary judge's direction that the jury could use the evidence of the uncharged acts for the purpose of determining whether the appellant had a sexual interest in the complainant, and could use that reasoning for the purpose of determining whether the State had proved guilt, invited the jury to treat the evidence of the uncharged acts as propensity evidence.[106]
[106] Appeal ts 31 - 32.
The jury asked the judge questions about the uncharged acts, illustrating the importance that the jury placed on the uncharged acts. The judge's responses emphasised the uncharged acts to the jury.[107]
[107] Appeal ts 32.
The primary judge's direction that the jury could not use the evidence of the uncharged acts as proving in and of itself the appellant's guilt implied that the jury could use the evidence in conjunction with other evidence to prove the appellant's guilt.[108]
[108] Appeal ts 32 - 33.
The primary judge directed the jury that if they accepted the evidence of the uncharged acts, that evidence broadly supported the complainant's credibility, explained any failure by the complainant to complain and explained the appellant's confidence to do the alleged offences.[109] However, the uncharged acts occurred after the alleged offences, and thus the uncharged acts could not logically be used as context evidence.[110]
[109] Appeal ts 24 - 28.
[110] Appeal ts 33.
Consequently, the judge misdirected the jury, which gave rise to a miscarriage of justice.[111]
Respondent's submissions
[111] Appeal ts 33.
Given that ground 3 was amended in the course of the hearing, the respondent was given leave to file written submissions in response to the amended ground after the hearing of the appeal. The respondent's lengthy written submissions may be summarised as follows.
The respondent's submissions dealt with each of pars (a) ‑ (d) of ground 3 separately. The respondent's submissions began with consideration of ground 3(d). As we will explain, in our view, ground 3(d) should not be the starting point. Rather, ground 3(d) should be considered in light of the other paragraphs of ground 3, which concern the effect of various aspects of the directions given.
As to ground 3(d), the respondent's overall submission is that, having regard to the issues presented by the parties and the directions given by the trial judge, there was no real possibility that the jury would have adopted propensity reasoning. The respondent relies, by analogy, on the recent decision of the High Court in Hamilton (a pseudonym) v The Queen.[112] In support of its overall submission, the respondent makes five points:
(1)The appellant's case at trial was focused on the contention that the complainant's evidence about the alleged offences was unreliable. The decisive issue was likely to be the issues of honesty and reliability in the contest between the evidence of the complainant, his mother and stepmother, on the one hand, and the appellant on the other hand. The judge's direction instructed the jury that they could convict on each count only if they were satisfied beyond reasonable doubt as to the honesty and reliability of the complainant's evidence in respect of that count. If they were so satisfied, they would not need to apply propensity reasoning.[113]
(2)The prosecution's case did not invoke propensity reasoning, which tends to make the risk that the jury might use such reasoning a remote one.[114]
(3)It was unlikely that the jury would reason that a doubt about the reliability of the complainant might be resolved by propensity reasoning, bearing in mind the directions given in relation to the cross‑admissibility of evidence on different counts.[115]
(4)The judge specifically told the jury that the evidence of uncharged acts was before them for a limited purpose and then identified those specific permitted uses, all of which related to the jury's evaluation of the honesty and reliability of the complainant's case.[116]
(5)The fact that no issue was taken by counsel tends to suggest the absence of a risk of impermissible propensity reasoning.[117]
[112] Hamilton (a pseudonym) v The Queen [2021] HCA 33; (2021) 95 ALJR 894.
[113] Respondent's further submissions [12] ‑ [16].
[114] Respondent's further submissions [17], citing Hamilton [47] - [48].
[115] Respondent's further submissions [18].
[116] Respondent's further submissions [19].
[117] Respondent's further submissions [20].
As to ground 3(a), the respondent submits that the judge's direction, properly understood, did not depart from the prosecution case. It submits that:
(1)The judge's direction echoed the prosecutor's reference, in opening, that the appellant might have been 'aroused' in the complainant's company, providing a backdrop to the alleged offences.[118]
(2)The reference to the appellant being sexually attracted was used, not in a sense of reasoning from the uncharged acts that the appellant was the kind of person who was likely to have committed the charged offences, but instead in the sense of broadly supporting the complainant's credibility.[119]
(3)The trial judge's direction was similar to a direction given by the trial judge in MAS v The State of Western Australia.[120] The respondent also points to what was said by Heydon J and Hayne J in HML v The Queen,[121] and to the observations of Hodgson JA in R v Leonard,[122] cited with approval by Heydon J in HML and by Sofronoff P and Henry J in R v McNeish.[123] In R v Leonard, Hodgson JA stated that a finding of sexual attraction may be relevant in supporting an inference that the accused had a motive to act in a sexual manner towards the complainant. Such a use is not to use the evidence as propensity evidence, but is properly seen as relationship evidence or motivation evidence.[124]
[118] Respondent's further submissions [23] - [24].
[119] Respondent's further submissions [25] - [26].
[120] MAS v The State of Western Australia [2012] WASCA 36 [48] ‑ [51].
[121] HML v The Queen [2008] HCA 16; (2008) 235 CLR 334 [156], [273].
[122] R v Leonard [2006] NSWCCA 267; (2006) 67 NSWLR 545 [49] ‑ [53].
[123] R v McNeish [2019] QCA 191; (2019) 2 QR 355 [30].
[124] Respondent's further submissions [27] - [30].
In response to ground 3(b), the respondent submits that there was no real risk that the jury would adopt propensity reasoning, as distinct from contextual or credibility reasoning, in reasoning to proof of guilt. In support of that, the respondent submits that:
(1)The differences between the circumstances and conduct of the charged offences and the uncharged acts meant that the inference that the appellant was the kind of person who was likely to have done the different charged acts was not logically open. At most, the evidence of the uncharged acts could support an inference that the appellant was sexually attracted to the complainant so that he had a motive to act in a sexual manner towards him, reiterating the distinction identified in [113](3) above.[125]
(2)In any event, any risk that the jury might adopt propensity reasoning was removed by the specific directions given by the judge as to the use to which the evidence of uncharged acts must not be put. The directions were, in substance, that the jury must not take the evidence of uncharged acts into account in deciding whether the State had proven guilt beyond reasonable doubt. The respondent contrasts the directions given by the trial judge in this case with those given in Hill v The State of Western Australia,[126] LNN v The State of Western Australia[127] and TSP v The State of Western Australia,[128] in each of which the judge had directed that the jury could consider the evidence of uncharged acts when deciding whether the prosecution had proved the charge.[129]
[125] Respondent's further submissions [32].
[126] Hill v The State of Western Australia [2019] WASCA 209.
[127] LNN v The State of Western Australia [2021] WASCA 39.
[128] TSP v The State of Western Australia [2021] WASCA 224.
[129] Respondent's further submissions [33] - [38].
As to ground 3(c), the respondent accepts that the two alleged uncharged acts occurred after each of the alleged offences.[130] It submits that, nevertheless, the evidence of the uncharged acts and the inferred sexual attraction were relevant to the honesty and reliability of the complainant's evidence. The charged acts and the subsequent uncharged acts were all to be viewed as part of a 'constant underlying parent/child relationship'.[131] It submits that the sexual attraction is likely to have existed through the relevant period from the complainant's ages 4 to 6. Further, evidence that the relationship between the appellant and his son contained an element of sexual attraction by the appellant 'subverts the ordinary expectation' as to the nature of the underlying relationship which alters the context in which the evidence of the charged acts is to be understood.[132]
Disposition
[130] Respondent's further submissions [40].
[131] Respondent's further submissions [47].
[132] Respondent's further submissions [50] - [51].
The judge's direction set out at [103] above can be broken down into the following components:
(1)The evidence of the uncharged acts was led for a limited purpose.
(2)If accepted, the purpose of the evidence is to prove that, contrary to what would ordinarily be expected of an adult man, the appellant was sexually attracted to his son, the complainant.
(3)If the jury so found, that finding was capable of supporting the complainant's account of the conduct constituting the charged offences.
(4)However, that evidence was not capable of proving by itself that the appellant was guilty of any of the counts on the indictment. That is because a jury could only find a particular count proved if they accepted the complainant's evidence on that count as being both honest and reliable. Consequently, the evidence of other conduct could not, in and of itself, prove any count on the indictment.
(5)If the jury were to accept the evidence of the uncharged acts, they could regard it as consistent with the complainant's allegation that, on occasions, the appellant sexually interfered with him as alleged in the indictment.
(6)So, a finding of sexual interest could be used to (i) broadly support the complainant's credibility, (ii) explain failure by the complainant to complain or to rebuff his father more than he did and (iii) explain why the appellant was confident to act as he is alleged to have done.
In our respectful opinion, there are several significant difficulties with this direction.
The direction departed from the prosecution case
First, it was no part of the State case that the evidence of the two uncharged acts demonstrated that the appellant had a sexual interest in the complainant. That being so, the judge erred in directing the jury in the manner outlined in (2) and (3) of [116] above. Given the other difficulties with the direction, it is unnecessary to determine whether this error, in itself, occasioned a miscarriage of justice. In combination with the second difficulty to which we refer below, a miscarriage of justice was occasioned.
As we explain below, we reject the distinction, advanced by the respondent, between (i) using sexual interest to show motive or to 'broadly support the complainant's credibility' and (ii) inviting propensity reasoning. Consequently, we reject the respondent's submissions in [113] above and the second sentence of [114](1) above.
The direction's reference to sexual attraction invited or gave rise to a risk of propensity reasoning
Secondly, and to us most significantly, the judge identified the purpose of the uncharged acts evidence as being to prove that, contrary to what the jury would ordinarily think, the appellant was sexually attracted to the complainant. The judge told the jury that such a finding was capable of supporting the complainant's account of the allegations on the indictment. In our view, the invitation to view a finding of sexual attraction as supporting the complainant's account invited or permitted the jury to use the finding of sexual attraction to resolve a doubt that they may otherwise have had as to the honesty or reliability of the complainant's account of a charge or charges. In that manner, the direction invited or permitted the jury to take a finding of sexual attraction, based on the evidence of the uncharged acts, into account in deciding whether they were satisfied beyond reasonable doubt as to each count. The fact that the reliability of the complainant's evidence as to the allegations the subject of the counts was a critical issue does not deny or diminish the risk that the jury might use propensity reasoning in relation to the evidence of the uncharged acts to resolve a doubt as to the critical question of reliability. For these reasons, we do not accept the respondent's submissions summarised at [112](1) and [113](2) above.
In considering the manner in which a jury might reason in light of the judge's direction, it should not be overlooked that the judge explicitly drew a contrast between what would be expected of an ordinary adult male and the position if the jury found that the accused was sexually attracted to his young son, the complainant. That contrast reinforces the likelihood of the direction inviting propensity reasoning along the lines that the appellant was thereby the kind of person who was more likely to have committed the charged offences.
Thus, the judge invited the jury, if the jury accepted that the uncharged acts evidence was truthful, accurate and reliable, to (i) use the uncharged acts evidence to draw a conclusion about the appellant - that he was sexually attracted to the complainant - that would distinguish the appellant from the ordinary adult male, who would never be sexually aroused by a young child, and (ii) to take that into account in deciding whether they were satisfied as to each count. To our mind, to invite such reasoning is to invite propensity reasoning. At the very least, it gives rise to a real risk, if not a likelihood, of propensity reasoning.
As noted in [113] above, the respondent relies heavily on what was said by Hodgson JA in R v Leonard[133] to contend that to use evidence of uncharged acts to establish a sexual attraction, so as to demonstrate a motive, does not involve propensity reasoning. It is, to say the least, regrettable that the respondent's submissions paint, no doubt inadvertently, a misleadingly incomplete picture, both in relation to R v Leonard itself and by the absence of reference to the substantial line of authorities referred to below.
[133] R v Leonard [49] - [53].
As will be seen, there is considerable authority to the effect that in charges of sexual offences, particularly where the complainant is a child, evidence of uncharged acts led to show that the accused had a sexual interest in the complainant invites, or at least is liable to lead to, propensity reasoning.
In R v Leonard, in the passage relied on by the respondent, Hodgson JA identified three different ways in which evidence of uncharged acts against the complainant might be relevant, observing that only the third way would involve use as propensity evidence:[134]
(1)It may be relevant to the extent of removing implausibility that might otherwise be attributed to the complainant’s account of the assaults charged if these assaults were thought to be isolated incidents, in particular implausibility associated with the way each party is said to have behaved on these particular occasions.
(2)It may be relevant in supporting an inference that the accused was sexually attracted to the complainant, so that he had a motive to act in a sexual manner towards the complainant.
(3)It may be relevant in supporting an inference that the accused not only had the motivation of sexual attraction, but also was a person who was prepared to act on that motivation to the extent of committing sexual assaults.
[134] R v Leonard [49].
However, a little later in the case, Hodgson JA observed that even if there is theoretical distinction between use of evidence of sexual attraction to show motive and use for propensity reasoning, the distinction:[135]
may be considered of little practical significance where the complainant is a young child: sexual feelings of adult males towards young children are considered abnormal, and the ordinary motivational force of sexual feelings referred to in (2) cannot easily be kept distinct from a perception that a person having such feelings towards a young child is a particular kind of person who is likely to act on these feelings (engaging purpose (3)). Thus, evidence in such cases is not like evidence that a person charged with stealing (say) a rare stamp has a keen interest in such stamps, which would not be considered tendency evidence: it is unrealistic to liken evidence linking the ordinary human motivation of sexual feelings to a particular child, to evidence linking the ordinary human motivation of avarice to a particular kind of object such as a rare stamp, because as soon as one suggests that an adult male has sexual feelings towards a young child, one almost inevitably suggests that the person in question is the kind of person who is likely to assault the child. (emphasis added)
[135] R v Leonard [68].
In ES v The Queen (No 1),[136] Hodgson JA (with whom Wheally and Buddin JJ agreed) reiterated that, although there were three theoretically different ways in which evidence of uncharged inappropriate sexual contact between an accused and a child can have probative value, the theoretical distinction between use as motive evidence and as propensity evidence cannot practically be maintained in the case of the sexual interest of an adult in a child. His Honour explained that this was: [137]
because (a) the existence of that interest can be considered itself to manifest a tendency to have a particular state of mind, (b) because the uncharged acts will generally ipso facto have manifested a tendency to act on that interest, and (c) because the very powerful effect of tendency reasoning would be very likely to swamp any effect of motive reasoning. (emphasis added)
[136] ES v The Queen (No 1) [2010] NSWCCA 197 [38] ‑ [39].
[137] ES v The Queen [39].
In Colquhoun v The Queen (No 1),[138] MacFarlan JA referred to seven earlier decisions of the New South Wales Court of Criminal Appeal in which evidence of an accused's sexual interest in a child complainant had been treated as tendency evidence.
[138] Colquhoun v The Queen (No 1) [2013] NSWCCA 190 [22].
In WFS v The Queen,[139] and in Ritchie (a pseudonym) v The Queen,[140] the Victorian Court of Appeal reviewed a number of cases demonstrating that the weight of authority favoured the view that evidence of an adult accused's sexual interest in a child invites propensity reasoning and is to be treated as tendency evidence.
[139] WFS v The Queen [2011] VSCA 347; (2011) 33 VR 406.
[140] Ritchie (a pseudonym) v The Queen [2018] VSCA 31.
The same approach has been adopted in South Australia, which has a different statutory regime. In R v Maiolo (No 2),[141] the South Australian Court of Criminal Appeal considered that evidence led to establish a sexual interest, whether to show motive or otherwise, invited propensity reasoning.
[141] R v Maiolo (No 2) [2013] SASCFC 36; (2013) 117 SASR 1 [67], [80], [86].
The conclusion in these cases goes further than is necessary for present purposes. In the cases to which we have referred, the court concluded that evidence of sexual interest was tendency evidence that engaged the requirements of admission under s 97 of the applicable Evidence Act, requiring that the evidence have significant probative value. In the present case, it is enough to conclude, as we do, that, in the context of charges of sexual offending against a child (or children), to invite a finding of sexual interest is, generally at least, liable to give rise to a real risk of propensity reasoning.
A similar approach has been taken in decisions of this court.
In AJE v The State of Western Australia,[142] Mazza JA and Beech J observed that evidence of uncharged acts led to show that the accused had a sexual interest in the complainant invites propensity reasoning, referring to HML;[143] BBH v The Queen[144] and BSD v The State of Western Australia (No 2).[145]
[142] AJE v The State of Western Australia [2012] WASCA 185; (2012) 225 A Crim R 242 [56].
[143] HML [41], [132], [343], [506]; see also [7] ‑ [8], [26], [470].
[144] BBH v The Queen [2012] HCA 9; (2012) 245 CLR 499 [52], [153], [166], [167].
[145] BSD v The State of Western Australia (No 2) [2009] WASCA 152 [37].
In HML, Gleeson CJ evidently considered that the use of evidence to establish a sexual interest, to show a motive, was a form of propensity reasoning.[146] In BBH, Crennan and Kiefel JJ observed that in cases of intrafamilial sexual offending against a child, little, if any, distinction can be drawn between motive and propensity.[147]
[146] HML [7] ‑ [8], [26].
[147] BBH [153].
In TSP,[148] this court observed that to reason that (i) the accused had a sexual interest in the complainant; and (ii) that conclusion, in combination with the complainant's evidence as to the count(s), enabled satisfaction beyond reasonable doubt was, in substance, to use propensity or propensity reasoning.
[148] TSP [59] ‑ [60].
This court's decision in Dann v The State of Western Australia,[149] does not assist the respondent. In that case, the court rejected a ground of appeal complaining that the judge had given the jury a propensity direction when the evidence was not propensity evidence. Importantly, the other conduct, said to demonstrate the existence of a sexual interest, had occurred on the same night as the alleged offences. That factual circumstance was central to the court's reasoning in finding that there was no reliance on propensity reasoning. The court considered that the existence of a sexual interest at the relevant time was a factor that made it more likely that the appellant would behave in the manner alleged, because it demonstrated a motive to so behave.[150] The court considered that, because the uncharged acts occurred on the same night as the offences, it was not necessary to establish any propensity or relationship to prove a relevant connection between what, in other cases, are unconnected acts.[151]
[149] Dann v The State of Western Australia [2021] WASCA 15.
[150] Dann [45] ‑ [46].
[151] Dann [47].
In that manner, in the circumstances of Dann, the court distinguished use of the evidence as demonstrating a sexual interest in the complainant from use of the evidence as demonstrating that the appellant was a person with a particular character or propensity. That basis for distinguishing use of evidence of other conduct to demonstrate sexual interest from use that invites propensity reasoning does not apply to the present case, as the other conduct in this case occurred on occasions separate from when the offences were said to have occurred. Rather, in the present case, the general position outlined in [125] ‑ [135] applies.
The decision of this court in MAS also does not assist the respondent. No issue arose in that appeal as to the risk of propensity reasoning.
The respondent's submissions overlook the important distinction between the identification of different ways in which evidence might potentially be used and the question of whether, in the circumstances of a particular case, there is a real risk of the jury using the evidence in an impermissible manner. In the passages in HML on which the respondent relies, Hayne J and Heydon J were identifying the variety of uses to which a jury might potentially put evidence showing that an accused had a sexual interest in the complainant. The same is true of the passage in R v McNeish,[152] adopting what had been said by Hodgson JA in R v Leonard, upon which the respondent also relies. The conceptual (or as Hodgson JA termed it, theoretical) distinction between the uses does not control the question of whether a direction permitting one of those uses may give rise to a real risk of propensity reasoning.
[152] R v McNeish [30].
The point made by the respondent in the first sentence of [114](1) above would have force if the question were whether the evidence of the uncharged acts had significant probative value. But that is not the question. Rather, the question is whether there was a real risk of propensity reasoning in the mind of the jury. Bearing in mind the 'peculiarly strong' risk of a jury engaging in propensity reasoning in a case involving alleged sex offences,[153] we are comfortably satisfied that there is a sufficient logical connection between the uncharged acts and the charged conduct for there to have been a real risk of the jury so reasoning.
[153] De Jesus v The Queen (1986) 61 ALJR 1, 3; Hamilton [43]; TSP [52].
In the present case, there is, in substance, little or no distinction between (i) using the uncharged acts evidence to show that the appellant had a sexual interest in the complainant and (ii) using it as propensity evidence. That is illustrated by considering the position if, in addition to the directions actually given, the judge had also given a non‑propensity direction. A non‑propensity direction would ordinarily inform the jury that (i) they must not reason, on the basis of the evidence of the uncharged acts, that the appellant was the kind of person who was likely to have committed the charged offences and (ii) the jury must not take the evidence of the uncharged acts into account in deciding whether the prosecution had proved beyond reasonable doubt that the appellant had committed any of the specific offences charged in the indictment.[154] In light of the directions actually given, a propensity direction along those lines would have made no sense, as it would have been inconsistent with the second and third components of the direction given by the judge, as understood in [120] - [122] above.
[154] See, for example, Hill [73].
For these reasons, the second and third components of the judge's direction gave rise to a real risk that the jury would engage in propensity reasoning.
Further, in our respectful view, the risk of propensity reasoning was magnified by the fourth component of the judge's direction as set out in (4) of [116] above. To direct the jury that the evidence of the uncharged acts was not capable of proving by itself that the appellant was guilty of any count says no more than that the jury must not rely solely on that evidence in order to convict. To so inform the jury is liable to give the impression that the evidence is some evidence which, in combination with the complainant's evidence as to the particular count, may lead the jury to be satisfied beyond reasonable doubt as to the count.
We reject the respondent's submission, outlined at [114](2) above, that the fourth component of the direction in effect told the jury that they must not take the evidence into account in deciding whether guilt was proved beyond reasonable doubt, thereby eliminating any risk of propensity reasoning. As explained in [120] above, the judge's direction in effect invited the jury to take a finding of sexual attraction into account in deciding whether guilt was proved beyond reasonable doubt. The fourth component of the direction did not preclude such reasoning, as it merely precluded using sexual attraction as the sole basis for conviction. The judge's statement, that the State case relies entirely on the complainant's evidence as to the counts being found to be honest and reliable,[155] similarly did not preclude the jury from propensity reasoning. To say that the State's case relies on the complainant's evidence being found to be honest and reliable is consistent with treating the complainant's evidence of the uncharged acts as propensity evidence. As the appellant points out,[156] the judge gave the same direction in relation to the cross‑admissibility direction between different counts, in which the judge expressly permitted propensity reasoning.[157]
[155] ts 141.
[156] Appellant's supplementary submissions in reply [11].
[157] ts 147.
For these reasons, in our respectful view, understood as a whole, the judge's direction invited propensity reasoning in the manner explained in [120] ‑ [122] above. At the least, it gave rise to a real risk that the jury would engage in such reasoning. Consequently, the direction was erroneous and gave rise to a miscarriage of justice.
Because the uncharged acts were subsequent to the charged conduct, some of the uses identified by the judge were not available
Thirdly, among other things, by the sixth component of his direction, the judge told the jury that they could use the evidence of the uncharged occasions to (i) explain any failure by the complainant to rebuff his father more than he did and (ii) explain why his father was confident to continue to act as he was alleged to have done. However, as the respondent concedes, on the complainant's evidence, the uncharged acts occurred later in time than each of the charges. On the complainant's evidence, both uncharged acts occurred when the complainant was aged 6.[158] In these circumstances, the evidence was incapable of being used in the manner identified by the trial judge. To direct them as summarised in the first sentence of this paragraph was liable to mislead and confuse the jury. In so concluding, we reject the respondent's submission outlined in [115] above.
Ground 3(d)
[158] BGAB 51 - 53.
As already noted, the respondent's submission addressed ground 3(d) at the outset, before consideration of the matters the subject of pars (a) ‑ (c) of the ground. In our view, that approach is both artificial and incorrect. The overarching question of whether there was a real risk of the jury engaging in propensity reasoning must be evaluated in light of, and thus after consideration of, the directions actually given by the judge.
In our view, when that is done, in light of the features of the judge's direction to which we have already drawn attention, the decision of the High Court in Hamilton, which turned on the facts and circumstances of that case, provides no assistance in the resolution of the issues in the present case.
For the reasons we have given, in our respectful view, the learned trial judge directed the jury that they could use the evidence of the uncharged acts in a manner that went beyond the prosecution case and in a manner that invited, or gave rise to a real risk of, propensity reasoning. We reject the respondent's points summarised at [112](2), (3) and (4) above.
Conclusion on ground 3
The conclusion that the direction gave rise to a miscarriage of justice is reinforced by the question asked by the jury, as outlined at [96] above. That question suggests that the jury were giving particular attention to the evidence of the uncharged acts at a point when their deliberations were well advanced, and not long before they delivered their verdicts.
We accept that no issue was taken by counsel as to the need for a direction warning against propensity reasoning and that that fact may indicate the absence of a risk of impermissible propensity reasoning. However, for the reasons we have given, we are comfortably satisfied that, in the circumstances of this case, there was a real risk of the jury so reasoning. There is no reasonable basis for supposing that defence counsel's failure to request the trial judge to redirect the jury was made for a rational forensic reasoning. In the circumstances, defence counsel's failure to complain about his Honour's misdirection does not preclude the appellant from alleging that a miscarriage of justice occurred. We reject the respondent's point summarised at [112](5) above.
For the above reasons, in our respectful opinion, the trial judge's direction was erroneous in the following respects, giving rise to a miscarriage of justice:
(1)The judge directed the jury that, if the jury accepted that the uncharged acts evidence was truthful, accurate and reliable, the jury could use the evidence of the uncharged acts to find that the appellant was sexually attracted to the complainant when it was no part of the State case that the evidence could be used in that manner.
(2)The judge directed the jury that, if they found that the uncharged acts had occurred, they could find, on the basis of those uncharged acts, that the appellant had a sexual attraction to the complainant and, if they did so, they could use those facts in deciding whether the State had proved the counts in the indictment. In our view, that direction invited, or at least gave rise to a real risk of, propensity reasoning when such reasoning was not part of the State case and was impermissible.
(3)Among other things, the judge directed the jury that they could use the evidence of the uncharged acts to explain any failure of the complainant to complain or to rebuff his father more than he did and to explain why his father was confident to act as he was alleged to have done. However, on the complainant's evidence, the uncharged acts occurred subsequent in time to the conduct the subject of the three charges. Consequently, the evidence of the uncharged acts was incapable of being used in these ways.
(4)Consequently, the judge's direction failed to adequately explain to the jury the manner in which they may and may not use the evidence.
Consequently, ground 3 is established.
We turn, next, to ground 1, which asserts an error by way of omission in the judge's direction.
Ground 1: failure to warn about delay
Ground 1 complains that the judge erred, thereby occasioning a miscarriage of justice, in failing to give a Longman direction or otherwise in failing to warn the jury that the complainant's failure to make a prompt complaint gave rise to forensic disadvantage for the appellant.
Exchanges between the judge and counsel as to the need for a Longman direction
The judge raised the question of the need for a Longman direction with counsel.[159]
TROY DCJ: Thank you. And then is it common ground between counsel that a Longman warning in these circumstances is not required?
BOSTON, MS: I think, with respect, it might in relation to count 1.
TROY DCJ: All right. It seems to me, as best I could work out, it's not possible to be precise, but the time period on the evidence would appear to be at the order of some two years and two months. I've had regard to the decision of the Court of Appeal in DWM v The State of Western Australia (No 2) [2019] WASCA 143, which discusses the question of what delay is such as to warrant a Longman direction.
And, of course, there's no absolute bright line, I readily accept that. But I would, I think, require some persuading that a Longman warning is appropriate in respect of any of the counts on the indictment but I'm not foreclosing that.
[159] ts 93.
Prior to counsel's closing addresses, the judge again raised the question of the need for a Longman direction. The appellant's counsel indicated that the defence did not press for any such direction.[160]
The judge's summing up
[160] ts 130.
In the course of the judge's summing up, the judge referred to age, maturity and the passage of time as matters relevant to the evaluation of a witness's evidence:[161]
Now, you can take into account things such as a witness's age, their maturity, their level of education, the passage of time between events they are recounting and the time when they come to give evidence, anything which you think might have a bearing upon their memory, their perception of events and the way in which they gave evidence.
That does not mean, of course, that you should make allowances for any witness; in particular, [the complainant], and in effect set a lower bar before you to permit you to regard such evidence as credible. In other words, if you are not satisfied that [the complainant's] evidence was credible in the sense of being both honest and reliable, you cannot approach matters on the basis that he's only six, so we'll give him the benefit of the doubt. If you are not satisfied beyond reasonable doubt that [the complainant's] evidence is honest and reliable, then that is the end of the matter.
The appellant's submissions
[161] ts 137.
The appellant's principal submissions in support of ground 1 were:
(1)The judge should have given the jury a Longman direction because of the substantial length of time - at least two and a half years from the alleged occurrence of count 1 and approximately two years from count 2[162] - between the alleged occurrence of the offences and the appellant becoming aware of the allegations. The delay meant that the appellant lost the opportunity to adequately marshal a defence, or adequately test the complainant's evidence. The judge needed to give a warning to that effect.[163]
[162] Appeal ts 8.
[163] Appellant's submissions [16] - [17] citing DWM v The State of Western Australia (No 2) [2019] WASCA 143.
(2)In the alternative, under ground 1(b), if the length of the delay was not enough to indicate forensic disadvantage in and of itself, the delay caused forensic disadvantage in the circumstances of the case.[164]
[164] Appeal ts 3 - 4.
(3)The appellant was not able to adequately marshal his defence because had the allegations been made close to the time of the alleged offending, it is likely that the complainant would have given a more precise date range and more details as to the surrounding circumstances of the alleged offences. In those circumstances, the appellant may have been better equipped to challenge the allegations or their factual contexts in the following respects:[165]
(a)Although the appellant accepted that he sometimes slept in bed with the complainant, had he known more precise dates of the alleged offending he may have been able to marshal evidence regarding whether he was in bed with the complainant on those dates.[166]
(b)Had the appellant known more precise dates of the alleged offending he may have been able to marshal evidence regarding whether those dates corresponded with circumstances heightening the complainant's suggestibility, such as arguments between the mothers and the appellant over custody.[167]
(c)Similarly, had the appellant known more precise dates of the alleged offending, the complainant's maternal aunt, a witness for the defence, may have been able to give evidence about the complainant's whereabouts and behaviour at the relevant time or in the relevant period.[168]
(4)Because the jury was directed as to cross-admissibility between the counts, the absence of a Longman direction could also have affected the jury's verdict on count 3.[169]
(5)The fact that the defence counsel at trial did not request a Longman direction when asked by the judge is not fatal to ground 1.[170]
Legal principles
[165] Appeal ts 13 - 14.
[166] Appeal ts 13 - 15.
[167] Appeal ts 19 - 20.
[168] Appeal ts 18.
[169] Appellant's submissions [17].
[170] Appellant's submissions [18] citing DWM (No 2) [43].
The relevant legal principles have been explained in a number of cases. For example, the principles were considered in some detail in Eravelly v The State of Western Australia[171] and were outlined by Buss P and Mazza JA in DWM v The State of Western Australia (No 2).[172] It is convenient to reproduce some of what was said in the latter case.
[171] Eravelly v The State of Western Australia [2018] WASCA 139.
[172] DWM (No 2) [28] - [38].
As Brennan J explained in Carr v The Queen,[173] in the majority of cases the assessment of the evidence can be left to the jury's experience unaided by judicial warnings. However, there are some occasions when a warning is required. The trial judge is obliged to give a warning to the jury if, in the circumstances of the particular case, the warning is necessary to avoid a perceptible risk of a miscarriage of justice.
[173] Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314, 325.
This court recently summarised the relevant principles which dictate when a warning is required in Eravelly,[174] in these terms:
The position may be summarised as follows. The judge must give a warning to the jury about its assessment of particular evidence whenever a warning is necessary in order to avoid a perceptible risk of a miscarriage of justice. As the High Court has recently explained, in such cases the risk is perceptible to the court because judicial experience has shown that evidence of this description or character may be unreliable. A perceptible risk of that kind arises when there is a feature of the evidence which may adversely affect its reliability, the significance of which may not be apparent to a lay jury.
Put another way, a direction is required where it is necessary for alerting the jury to difficulties with particular classes of evidence, or, we would add, particular evidence, with which they are unlikely to be familiar. (citations omitted)
[174] Eravelly [27] ‑ [28].
A Longman direction is an example of such a warning.
The primary rationale for giving a Longman direction is that a jury might fail to appreciate that, as a result of a substantial delay between the occurrence of the alleged offence and the accused being informed of the complaint, the accused will have suffered forensic disadvantage by losing the chance to adequately test the complainant's evidence and the chance to adequately marshal a defence.[175]
[175] RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67 [129].
The length of the delay which gives rise to the necessity for a Longman direction cannot be stated with mathematical precision. See Doggett v The Queen[176] and Tully v The Queen.[177] This can give rise to some difficulty in the practical application of Longman. However, as Crennan J pointed out in Tully:[178]
The critical issue in relation to the need for a warning in accordance with Longman is whether any delay in complaint (and/or prosecution), be it twenty years, or two or three years, creates a forensic disadvantage to an accused in respect of adequately testing allegations or adequately marshalling a defence, compared with the position if the complaint were of 'reasonable contemporaneity'. (citations omitted)
[176] Doggett v The Queen [2001] HCA 46; (2001) 208 CLR 343 [127] (per Kirby J).
[177] Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234 [179] (per Crennan J).
[178] Tully [181].
In Tully, Crennan J went on to observe that the shorter the delay, the more difficult it is for an accused to assert that he or she has lost the ability to adequately test the complainant's evidence or to adequately marshal a defence.[179]
[179] Tully [182].
In IAB v The State of Western Australia,[180] Hall J observed that there is no prescribed length of delay which will necessarily result in forensic disadvantage and require a Longman direction. The length of any delay needs to be viewed in the context of the particular facts of the case. Hall J identified such relevant factors as whether the allegations are otherwise specific as to their place and nature, whether the time at which the incidents are said to have occurred is specified or can be determined, and what options may have been available to the accused to make his or her own investigations if there had been no delay. His Honour's description of the relevant factors was plainly not intended to be exhaustive.
[180] IAB v The State of Western Australia [2015] WASCA 238 [41].
In this context, forensic disadvantage encompasses the loss of a chance or opportunity.[181] However, the loss of the opportunity by reason of the delay must be established: it must be more than mere speculation.[182]
Disposition
[181] Eravelly [39]; IAB [29].
[182] Eravelly [34]; DWM (No 2) [139], [142].
At trial, evidence was not adduced as to when the appellant first became aware of the allegations. The matter can be resolved on the assumption, favourable to the appellant, that there was a delay of about two and a half years between the occurrence of the alleged conduct the subject of count 1 and the time when the appellant became aware of the allegations.
As this court observed in Eravelly [26], in considering whether a direction is required in order to avoid a perceptible risk of a miscarriage of justice, it will be relevant to consider whether there was a question about the reliability of some important aspect of the evidence against the accused, whether that arises from a factor the significance of which may not be appreciated by the jury, whether the evidence in question is corroborated and whether, and, if so, to what extent, the accused suffers a forensic disadvantage.
In the present case, there was, plainly, a critical question as to the reliability of the complainant's evidence, in circumstances where that evidence was not corroborated.
Whether the absence of a direction as to the forensic disadvantages suffered by the accused as a result of the delay gives rise to a miscarriage of justice must, of course, have regard to the length of the delay, the conduct of the trial and the issues presented for the jury's determination.
As already noted, the delay in the present case was, at its highest, of the order of two and a half years.
In our view, the following features of the trial are significant:
(1)The appellant did not dispute the honesty of the complainant's evidence as to the events the subject of the charge. In other words, defence counsel accepted that the jury would and should find that, in giving his evidence of the events the subject of the charges, the complainant believed that his father had done the things that the complainant described.[183]
(2)There was no issue that the appellant had considerable opportunity to engage in the conduct the subject of the charges. It was not in dispute that (i) the complainant regularly spent significant time at, and slept at, the appellant's house, and (ii) he often watched movies in bed with the appellant and shared a bed for the night. The circumstances in which, on the complainant's account, each of the offences occurred were, on the appellant's evidence, commonplace.
(3)At trial, the appellant gave and adduced no evidence as to any possible forensic disadvantages suffered as a result of the delay.
(4)At trial, defence counsel did not identify any such disadvantage, made no submissions that the appellant suffered any such disadvantage and, when asked, did not press for a Longman direction.
[183] See, for example, closing address ts 20.
In some cases, the nature and extent of forensic disadvantages may be inferred from the length of the delay and the facts and circumstances of the alleged offences, without requiring evidence from the appellant or any witness. See, for example, DWM (No 2) [39]. However, in our view, in the circumstances of the present case, bearing in mind the length of the delay and the matters referred to in [174] above, the appellant's submissions at [159](3) as to the forensic disadvantages suffered as a result of delay cannot be accepted. In our view, the asserted forensic disadvantages are matters of speculation rather than matters which can be properly inferred.
Consequently, the appellant has not demonstrated that the trial judge was bound to direct the jury that, as a result of the delay between the occurrence of the alleged offending and the appellant being informed of the complaint, he suffered forensic disadvantage by losing the chance to adequately test the complainant's evidence or the chance to adequately marshal a defence.
For these reasons, while we would grant leave to appeal on ground 1, the ground is not made out.
Ground 2: were the verdicts unreasonable or not supported by the evidence?
The appellant's submissions
The appellant submits that the combined effect of the following aspects of the complainant's evidence means that the jury must have had a reasonable doubt as to the appellant's guilt:[184]
[184] Appellant's submissions [24] - [25].
(1)The complainant made the allegations in the context of acrimonious Family Court proceedings between his mothers and the appellant.[185] The complainant felt that the appellant was being 'unfair' in relation to the custody arrangements.[186] Accordingly, the timing of the complainant's allegations impinges upon the complainant's reliability.[187]
[185] Appeal ts 38 - 39.
[186] Appeal ts 39.
[187] Appeal ts 40.
(2)The interviewers in the complainant's video-recorded witness interviews asked the complainant leading questions. The first video-recorded interview referred to a prior interview which was not recorded or adduced in evidence. For these reasons, less weight should be placed on the complainant's evidence.[188]
[188] Appeal ts 41.
(3)The complainant's evidence was inconsistent with other evidence in significant respects. Importantly, the complainant said that count 3 occurred at home while he and the appellant were watching the live-action Dumbo film - an impossibility because the live-action Dumbo film had not yet been released to home media.[189] It is unlikely that the complainant confused watching the Dumbo film in the cinema with watching the film at home because watching the Dumbo film at the cinema would have been a memorable event.[190] The Dumbo inconsistency justifies a verdict of acquittal on all three counts because the judge gave a cross‑admissibility direction and because the inconsistency challenges the complainant's reliability.[191]
[189] Appellant's submissions [24]; appeal ts 44 - 45.
[190] Appeal ts 46 - 47.
[191] Appeal ts 48 - 49.
(4)Material internal inconsistencies in the complainant's evidence included:
(a)The complainant changed his evidence as to when the appellant told him to 'keep it a secret', saying, in the video interviews, that this occurred after the Transformers film, and then saying, in the pre-recorded evidence, that this occurred after the Dumbo film.[192]
[192] Appellant's submissions [24]; appeal ts 45, 49 - 50.
(b)The complainant gave confused and changing accounts about how he was lying down during count 3.[193]
[193] Appellant's submissions [24].
(c)The complainant changed his evidence as to whether count 3 occurred during, or after, watching the live‑action Dumbo film.[194]
[194] Appellant's submissions [24].
(d)The complainant changed his response from 'once' to 'three times' when asked, at the beginning of the first video interview, how many times the touchings had occurred.[195]
[195] Appeal ts 53.
(5)The complainant had a poor recollection in important respects:
(a)The complainant failed to remember what happened at the time of count 1, when he was aged 4.[196]
[196] Appellant's submissions [24]; appeal ts 53.
(b)In his second video interview, the complainant did not remember what he had said in his first interview eight days prior.[197]
[197] Appellant's submissions [24].
(6)The appellant asserts that important features of the complainant's account did not present as credible and reliable, pointing to:
(a)The implausibility of the complainant falling asleep while the appellant was holding on to his penis.[198]
(b)The 'unrealistic' nature of the alleged acts, which never 'progressed to anything further', and the descriptions of which never changed.[199] The alleged acts are the kind of acts that a young child, unfamiliar with sexual activity, would 'come up with'.[200]
(7)The appellant also points to the uncorroborated nature of the complainant's evidence,[201] the complainant's youth[202] and the lack of recent complaint.[203]
(8)The appellant gave evidence denying the allegations. Those denials were not successfully challenged in any substantial way.[204]
(9)On her evidence, the complainant's maternal aunt spent considerable time at the appellant's house, spoke to the complainant about protective behaviours and created an environment in which the complainant could speak to her about his concerns. Despite this, the complainant made no complaint to his aunt, who observed nothing of concern.[205]
Application for the court to view the video‑recordings
[198] Appellant's submissions [24]; appeal ts 52.
[199] Appeal ts 51 - 52.
[200] Appeal ts 51 - 52.
[201] Appeal ts 51.
[202] Appeal ts 51.
[203] Appeal ts 53 - 54.
[204] Appeal ts 55.
[205] Appeal ts 55.
In support of ground 2, the appellant applied, by application dated and filed 14 December 2021, for the court to view the video‑recordings of the complainant's child witness interviews and pre‑recorded evidence. His solicitor's affidavit in support of the application foreshadows a submission that the recordings are relevant to the complainant's 'non‑verbal communication and demeanour', pointing to parts of the second child witness interview in which the complainant is said to appear 'disinterested' or 'distracted'.
In support of the application, the appellant submits that:
(1)Parts of the second interview include gestures by the complainant demonstrating, by using a tightly‑held closed fist, how the appellant allegedly held the complainant's penis hard.
(2)At times the complainant appears disengaged and bored or tired, with some lengthy delays in his responses. At other times, he appears to respond in a joking or non‑serious manner.
The principles as to the viewing by an appellate court of a video‑recording of a witness's evidence were outlined in Pell v The Queen[206] and in MEN v The State of Western Australia.[207] The first aspect of the videos, outlined in (1) of [180] above, is potentially an appropriate reason for viewing by an appellate court as it assists in identifying the substance or effect of what the complainant said, rather than how he said it.[208] However, in the circumstances of this appeal, [180](1) provides no sufficient ground for the court to view the video. It is not in doubt that the video‑recording shows the complainant demonstrating that his father held his penis with a tight grip.[209] No more specific forensic purpose, in the context of the appeal, was identified by the appellant.
[206] Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123 [36].
[207] MEN v The State of Western Australia [2020] WASCA 118 [416] - [418].
[208] MEN [417].
[209] Appeal ts 63 - 64.
The second feature of the video‑recordings identified in (2) of [180] above does not provide a proper ground for this court to view the video. For the reasons explained in Pell and in MEN, to view the recordings for that purpose would in effect involve or risk this court exercising the jury's function and exceeding its proper function as an appellate court.
For these reasons, we have not viewed the videos of the complainant's evidence.
Legal principles
The principles governing a ground of appeal that a verdict is unreasonable or cannot be supported by the evidence are well known. This court has outlined the principles established by the leading High Court decisions many times.[210] In Jago v The State of Western Australia,[211] this court summarised the principles as follows:
[210] See, for example, Wells v The State of Western Australia [2017] WASCA 27 [13]; MEN [403] - [410]; Dayananda v The State of Western Australia [2021] WASCA 11 [43] ‑ [53]; Jago v The State of Western Australia [2022] WASCA 2 [144].
[211] Jago [144].
(a) The appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence. It is not simply a matter of deciding whether, as a matter of law, there was evidence to support the verdict. The appeal court must determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand.
(b) The question for the appeal court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
(c)That question requires consideration of whether the jury must, as distinct from might, have entertained a reasonable doubt about the accused's guilt.
(d) In answering that question, the appeal court must pay full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the jury had of seeing and hearing the witnesses. The appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent on the evaluation of the witnesses in the witness box.
(e)The appeal court performs its function on the assumption, in a case such as the present case, that the evidence of the complainant was assessed by the jury to be credible and reliable. The question for the appeal court is whether, upon its examination of the record, by reason of inconsistencies, discrepancies or other inadequacies, or in light of other evidence, the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to guilt.
(f)A doubt experienced by an appeal court would be a doubt which a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt.
(g) If the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appeal court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the appeal court must set aside the verdict.
(h)The setting aside of a jury's verdict on the ground that it is unreasonable within the meaning of s 30(3)(a) of the Criminal Appeals Act2004 (WA) is a serious step, not to be taken without regard to the advantage enjoyed by the jury over an appeal court which has not seen or heard the witnesses called at trial.
Disposition
It is necessary to consider ground 2 even though ground 3 has been made out. If ground 2 is made out then ordinarily this court would set aside the judgments of conviction and enter judgments of acquittal. By contrast, as we will explain, the appellant's success on ground 3 will result in the judgments of conviction being set aside but a new trial being ordered. We examine ground 3 by reference to a properly directed jury in view of his Honour's misdirection in relation to the uncharged acts evidence.
The principles stated above emphasise the importance of the recognition, by an appellate court, of the jury's advantages in seeing and hearing the witnesses give their evidence. That advantage is particularly significant in the present case. The complainant gave an account of the events the subject of the charges at each of the two child witness interviews and again in his pre‑recorded evidence before the court. Consequently, the jury had the opportunity to see and hear the complainant give an account of the events the subject of the charges on three separate occasions.
It was evidently well open to the jury to have formed a favourable impression of the complainant as a witness. In closing address, defence counsel observed to the jury that they may well have formed the view that the complainant was 'cute as a button… adorable' so that they wanted to 'box him up and take him home'.[212] As already noted, the honesty of the complainant's belief that the events he recounted, the subject of the charges, had occurred was not challenged.
[212] Closing address ts 21.
The weight to be given to the matters in (1) of [178] above was limited, bearing in mind that in cross-examination no suggestion of a connection between the acrimonious disputes between the parents and the complainant's making of the allegations the subject of the charges was put to the complainant. Defence counsel did not suggest to the complainant, in the course of cross‑examination, that the complainant was making the allegations because of the acrimonious break‑up between his parents or because of the complainant's dissatisfaction with parenting arrangements.
The matters in (1) ‑ (5) and (7) of [178] above were all matters for the jury to weigh in their evaluation of the complainant's evidence. No doubt the jury did so weigh them, as defence counsel emphasised substantially all of those matters at trial.
As to the matters in (3) of [178] above, on which the appellant placed particular emphasis, if the jury concluded that count 3 could not have occurred while the appellant and complainant were watching the live-action Dumbo film, it was open to the jury to be satisfied to the required standard that the conduct the subject of count 3 occurred, but that the complainant was mistaken either as to the movie that he was watching or in that he was watching Dumbo on his father's smart phone. In this regard, the prosecution invited the jury to find that the complainant was watching snippets of the live-action Dumbo film on the appellant's smart phone and that the complainant confused watching snippets on the smart phone with watching the film at the cinema.
The significance of the inconsistencies in the complainant's testimony was a matter for evaluation by the jury. The jury, acting reasonably, were entitled to conclude that the inconsistencies in the complainant's evidence, as highlighted in (4) of [178] above, were explained by his age and the lapse of time and did not detract from the reliability of the complainant's evidence in its critical respects.
To our mind, the appellant's submissions outlined in (6) of [178] above do not carry any significant weight. In our view, a jury, acting reasonably, were not required to consider the alleged acts as 'unrealistic' or to draw the conclusions there invited. The experience of the courts is that, sadly, there are no limits to the variety of sexual misconduct in which, on occasion, adults engage with children.
Having seen and heard both the complainant and the appellant give evidence, it was open to the jury to reject the appellant's evidence and to be satisfied beyond reasonable doubt as to the reliability of the complainant's account of the events the subject of the charges.
After paying full regard to the consideration that the jury was the tribunal of fact entrusted with the primary responsibility of determining guilt or innocence, and after paying full regard to the jury's very significant advantage in having seen and heard the witnesses, we do not have a reasonable doubt as to the correctness of the jury's verdict. In the circumstances, it would not be dangerous to permit the verdict of guilty to stand.
While leave to appeal on ground 2 should be granted, the ground is not made out.
Ground 4: does additional evidence adduced on appeal demonstrate a miscarriage of justice?
The appellant's submissions
Ground 4 arises in the context of evidence given by the complainant's mother, and the mother's partner, denying that the mother's partner had practised, or been trained, in hypnotherapy. The appellant filed an application on 2 July 2021 and an application on 19 November 2021 seeking to rely on new evidence which, he contends, contradicts that evidence given at trial. In its most material substance, the evidence comprises: (i) two certificates in conversational hypnotherapy conferred by the Quantum Training Institute on the mother's partner; (ii) her business card describing her as a 'personal development coach, hypnotherapist and keynote speaker'; and (iii) an excerpt from the mother's partner's LinkedIn page, searched on 12 July 2021, stating that she had an advanced diploma in clinical hypnotherapy.
The appellant accepts that the proposed additional evidence is new, rather than fresh, as in substance the evidence was known to the appellant and had been used in Family Court proceedings prior to his trial.
Consequently, the appellant rightly accepts that, in order for ground 4 to succeed, the new evidence must establish that the appellant is innocent or raise such a doubt that the court concludes that the appellant should not have been convicted.[213]
[213] Appellant's submissions, 27 January 2022 [10].
The appellant submits that the new evidence is capable of establishing that the partner's mother's denials as to being trained in and practising hypnotherapy were false.[214] The new evidence is, the appellant submits, consistent with the mother's partner practising hypnotherapy, and undermines the credibility of her evidence, and the complainant's mother's evidence, denying that this occurred.
[214] Appellant's submissions [31] ‑ [32].
Consequently, the appellant suffered a miscarriage of justice because the new evidence was sufficient to raise a reasonable doubt as to the appellant's guilt.[215]
Disposition
[215] Appellant's submissions [33] ‑ [35].
The principles applicable to the introduction of additional evidence on an appeal are well known. We adopt, without repetition, Buss P's outline of the principles in Clarke v The State of Western Australia,[216] an outline which has been adopted in many cases, including Leahy v The State of Western Australia.[217]
[216] Clarke v The State of Western Australia [2018] WASCA 14 [231] ‑ [246].
[217] Leahy v The State of Western Australia [2021] WASCA 66 [76].
Broadly summarised, in the present case, which involves evidence that is new rather than fresh, the appellant must show that the new evidence establishes that he is innocent or raises such a doubt that the court is satisfied that the appellant should not have been convicted. In essence, that test requires that the appellant demonstrate that a jury who had heard the evidence at trial combined with the additional evidence must, as distinct from might, have had a reasonable doubt.
In our opinion, having regard to the following matters, the appellant has fallen well short of meeting that demanding test.
First, the evidence adduced at trial provides a slender foundation for the appellant's contentions as to the decisive significance of the additional evidence. No evidentiary groundwork was laid at trial for a submission that the complainant's account was the result of implantation in the course of hypnotherapy.
The complainant was not asked any questions in cross‑examination as to hypnotherapy.
The cross‑examination of the mother's partner was, perhaps, unhappily framed. The question was posed in the present tense, '[d]o you ever practise hypnotherapy?' She was not asked whether she had ever practised hypnotherapy and did not unambiguously assert that she had not.
Secondly, the proposed additional evidence carries little weight.
As counsel for the appellant ultimately accepted,[218] the new evidence does not provide any positive evidence that the mother's partner practised hypnotherapy on the complainant. There was at trial, and remains, no evidence of that.
[218] Appeal ts 59.
Moreover, by its nature, hypnotherapy cannot be equated with, or assumed in every case to involve, the implanting of false memories. The appellant's case on ground 4 involved such an assumption.
The probative value of the new evidence is, in substance, limited to its value in undermining the credibility of the mother's partner. Viewed in the context of the trial as a whole, the evidence of the mother's partner was of limited significance.
Even for that purpose, the additional evidence is less than compelling.
The framing of the questions in cross-examination, as outlined in [206] above, reduces the force of the additional evidence in undermining the evidence of the mother's partner.
Further, there is no evidence as to the Quantum Training Institute, from which the certificates were said to have been obtained. Moreover, what is said on a LinkedIn page on a date 4 months after the trial does not falsify the evidence given at trial.
For these reasons, we would refuse both applications to adduce additional evidence and would refuse leave to appeal on ground 4.
Should there be an order for a retrial?
The appellant submits that if he is successful on ground 3 alone, the court should exercise its discretion to enter a judgment of acquittal and should not order a retrial. For the reasons that follow, we do not accept that submission.
The principles relevant to the court's discretionary power under s 30(5) of the Criminal Appeals Act2004 (WA) to order a retrial or to enter a judgment of acquittal are well known and have been outlined in this court many times. See, for example, Wark v The State of Western Australia.[219] In all the circumstances of this case, we would order a retrial notwithstanding that the appellant has served the custodial part of his sentence and the substantial majority of the remainder. In that regard, the most material considerations are as follows.
[219] Wark v The State of Western Australia [2020] WASCA 19; (2020) 56 WAR 365 [511] - [517].
First, there is a public interest in the due prosecution and conviction of offenders and it is desirable, if possible, for the guilt or innocence of an accused to be finally determined by a jury or other fact‑finding tribunal. Secondly, the miscarriage of justice in the appellant's trial occurred as a result of errors of law in the trial judge's direction to the jury. While the prosecutor did not raise any concerns as to those aspects of the judge's direction, the manner in which the prosecutor ran the State case did not cause the errors in the direction. Thirdly, the admissible evidence adduced at trial is sufficiently cogent to support a conviction on the offences charged. Fourthly, in our view the circumstances do not render it unjust to the appellant to require him to stand trial again.
Concluding observations
The issues relating to the admission of, and directions to juries concerning, evidence of uncharged criminal or discreditable conduct have long been a vexed and difficult aspect of criminal trials. The steady stream of recent decisions of this court demonstrates that this continues to be so. There are many recent examples of successful appeals on grounds concerning the trial judge's direction as to uses to which evidence, not adduced under s 31A of the Evidence Act1906 (WA), may and may not be put.[220] Of course, the complexity of the applicable legal principles and the judgments necessarily made in their application to the circumstances of a particular case make it likely, if not inevitable, that there will be successful appeals from time to time. We would venture to suggest that this is an aspect of criminal trials where precision of thought and precision of expression are especially important. With that in mind, we would make two observations.
[220] See for example Banks v The State of Western Australia [2018] WASCA 130; LNV v The State of Western Australia [2019] WASCA 180; Hill; LNN; TSP.
First, whenever the prosecution proposes to lead evidence of uncharged acts, it is essential that the prosecutor give careful thought to, and then in opening identify with precision, the particular use(s) to which the prosecution contends the evidence is to be put. In doing so, it will not be enough to speak in general terms of use of the evidence to provide context or background. Greater specificity is required. Examples of specific (non-propensity) uses, in cases concerning uncharged sexual conduct against the complainant where the charged offence(s) allege sexual offending against the same complainant, were given in LNN.[221] Further, as this case illustrates, it is important to avoid any risk of simply adopting a smorgasbord or template approach. Care is needed to identify which (if any) use is apt in the particular circumstances of the case.
[221] LNN [175].
Secondly, given the particular need for precision in this area, there is much to be said for a trial judge (i) setting out in writing, in advance of directing the jury, the precise terms of the proposed direction as to the use(s) to which the evidence may and may not be put and (ii) wherever practicable to do so, providing a draft to counsel to enable submissions to be made. Again, any template must be used with care, to ensure that only the aspects apposite to the particular case are referred to.
Orders
For the above reasons, we would make orders to the following effect:
1.The appellant's applications filed 2 July 2021, 19 November 2021 and 14 December 2021 are dismissed.
2.Leave to appeal on grounds 1, 2 and 3 is granted.
3.Leave to appeal on ground 4 is refused.
4.The appeal is upheld.
5.The judgments of conviction entered on 4 March 2021 are set aside.
6.There be a retrial.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AE
Associate to the Honourable Justice Beech
15 MARCH 2022
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