Johnston v The State of Western Australia
[2010] WASCA 121
•30 JUNE 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: JOHNSTON -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 121
CORAM: OWEN JA
PULLIN JA
JENKINS J
HEARD: 15 FEBRUARY 2010
DELIVERED : 30 JUNE 2010
FILE NO/S: CACR 30 of 2009
BETWEEN: KENNETH ERIC JOHNSTON
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :GOETZE DCJ
File No :IND GER 77 of 2007
Catchwords:
Criminal law - Appeal against conviction - Sexual offences against adult woman - Admissibility of evidence in complainant's evidenceinchief to explain delay in complaint and reason for making complainant - Admissibility of answers in police interview - Evidentiary matters
Legislation:
Criminal Appeals Act 2004 (WA), s 30(3), s 30(4)
Criminal Code (WA), s 323, s 325, s 552
Evidence Act 1906 (WA), s 31A, s 36BD
Result:
Appeal against conviction dismissed
Category: B
Representation:
Counsel:
Appellant: Mr L M Levy SC
Respondent: Mr R G Wilson
Solicitors:
Appellant: David Manera
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Azarian v The State of Western Australia [2007] WASCA 249; (2007) 178 A Crim R 19
Breen v The Queen [1976] HCA 15; (1976) 180 CLR 233
Carney v The State of Western Australia [2010] WASCA 90
Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358
Goldsmith v Sandilands [2002] HCA 31; (2002) 190 ALR 370
HML v The Queen [2008] HCA 16; (2008) 235 CLR 334
Miller v The Queen (1995) 13 WAR 504
Mraz v The Queen [1955] HCA 59; (1955) 93 CLR 493
MWJ v The Queen [2005] HCA 74; (2005) 222 ALR 436
Napier v The State of Western Australia [2007] WASCA 248
Nudd v The Queen [2006] HCA 9; (2006) 225 ALR 161
R v Hedges(1909) 3 Cr App Rep 262
R v W [1996] QCA 246; [1996] 1 Qd R 573
Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510
Smith v The Queen (Unreported, WASCA, Library No 930093, 22 February 1993); (1993) 9 WAR 99
Suresh v The Queen [1998] HCA 23; (1998) 153 ALR 145
The Queen v Soma [2003] HCA 13; (2003) 212 CLR 299
The Queen v Taufahema [2007] HCA 11; (2007) 228 CLR 232
TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124
OWEN JA: I agree with Jenkins J that the appeal should be dismissed and with her Honour's reasons for reaching that conclusion. I also agree with Pullin JA's additional comments in relation to grounds 6 to 8, although I am content to rest on the view that the impugned evidence did not qualify as 'recent complaints'.
PULLIN JA: Subject to the observations made below, I agree with Jenkins J that the appeal should be dismissed for the reasons given by her Honour. Each ground of appeal involves a complaint that the evidence led was inadmissible. None of the evidence now complained about was the subject of any objection by the accused. Counsel did not ask the trial judge to direct the jury to disregard the evidence. In some instances the evidence complained about was evidence confirming evidence earlier led by counsel for the accused.
There is an important general principle which governs the conduct of criminal trials. It was stated in Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510, 517 by Barwick CJ. He pointed out that a criminal trial was one
[i]n which the protagonists are the Crown on the one hand and the accused on the other. Each is free to decide the ground on which it or he will contest the issue, the evidence which it or he will call, and what questions whether in chief or in cross‑examination shall be asked; always, of course, subject to the rules of evidence, fairness and admissibility. … [the accused] … must bear the consequences of his own decision as to the calling and treatment of evidence at the trial.
Decisions taken by counsel for an accused person are generally binding on the accused. If it were otherwise, the adversarial system could not work: Nudd v The Queen [2006] HCA 9; (2006) 225 ALR 161 [9].
This is not to say that decisions of counsel are unreviewable. If the decision leads to a miscarriage of justice, an appeal court may uphold an appeal against conviction, subject always to the proviso that notwithstanding the miscarriage, the appeal may be dismissed because there was no substantial miscarriage of justice. If the decision leads to a miscarriage and the appeal court turns to consider whether there has been a substantial miscarriage of justice, the court may consider whether there was a rational forensic reason for a decision not to object to evidence or a decision not to seek from the judge a direction to the jury to ignore the evidence: see TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124; Napier v The State of Western Australia [2007] WASCA 248 [33].
The following observations particularly supplement that part of Jenkins J's reasons regarding grounds 6 and 8 where her Honour concludes that even if there was a miscarriage of justice, the appeal should be dismissed because there was no substantial miscarriage.
The complainant in this case alleged that she had been sexually penetrated without consent (ie raped) by the appellant. The appellant denied the commission of the offence. The complainant made a complaint to a workmate, Ms Price, at the earliest reasonable opportunity. Her evidence of this complaint was evidence of a 'recent complaint'.
The tactical approach of counsel appearing for the appellant at trial (not the counsel appearing on the hearing of the appeal) was not only to call the appellant to give evidence denying the commission of the offences but also to attack the complainant's credibility. The latter tactic was advanced by leading evidence which would support a submission that the complainant had a motive to lie, ie to gain an award of criminal injuries compensation. The other tactic was also advanced by contending that if she had been raped she would surely have complained to people other than Ms Price, and that a failure to do so reflected adversely on her credibility. Thus, she was cross‑examined as to why she did not complain to the police, who were located in a police station close by, or why she did not complain to the appellant's wife. She was also cross‑examined to show that she did not complain immediately after the incident to workmates Stewart and Simpson (people she was prepared to tell later about the incident) and to show that she made no complaint to the police in Perth until two weeks after she had returned to Perth.
It was a deliberate tactic by counsel for the appellant to elicit evidence from the complainant in cross‑examination about the fact that the complainant made a complaint to Stewart, Simpson and her sister about a week after the incident as an explanation as to why she was leaving town. When the prosecutor subsequently called Stewart, Simpson and one of the complainant's sisters and led evidence confirming the evidence of the complainant that she first told them about the incident about a week after it happened, no objection was raised by counsel for the appellant. Assuming, for the purpose of argument, that these complaints were not 'recent complaints', the evidence of Stewart, Simpson and the sister was inadmissible hearsay and therefore a miscarriage of justice: see Carney v The State of Western Australia [2010] WASCA 90 [41] ‑ [49]. The evidence led by the prosecutor was consistent with and confirmed evidence that the appellant had elicited from the complainant in cross‑examination. In consequence, there was no substantial miscarriage of justice. This conclusion is more fully explained below.
In reaching that conclusion, it is necessary to consider whether the irregularity (that is the admission of inadmissible evidence) in the trial could have some forensic purpose and then consider whether the potential forensic advantage was slight or substantial in comparison with the importance to be attached to the defect or irregularity in question. If the forensic advantage is slight in comparison with the seriousness of the defect or irregularity, then the fact that counsel's conduct was explicable on the basis of forensic advantage, will not preclude a court from holding that there was a miscarriage of justice: TKWJ [28].
It is because of some observations made in Suresh v The Queen [1998] HCA 23; (1998) 153 ALR 145, that it is necessary to consider grounds 6 and 8 in particular. In Suresh, Gaudron and Gummow JJ [6] said that where the jury had been instructed that there may be good reason why a child complainant in a sexual offence case might delay in making complaint and the prosecution case depends on the credibility of the complainant, with respect to events which are largely uncorroborated and by their nature are not likely to be witnessed by other persons
[i]t is difficult to envisage circumstances in which it might be said that wrongful admission of evidence of a prior consistent complaint could not enhance his or her credibility. And if that possibility cannot be excluded, the accused will have been deprived of a chance of acquittal that was fairly open and a proviso of the kind found in s 689(1) of the Code cannot then be applied.
Likewise, Kirby J said [42] on the premise that the evidence of complaints ought to have been excluded as not sufficiently 'recent' that
[i]t is impossible, in my view, to justify the application of the proviso. It is impossible to suggest that evidence which buttressed the credibility of the complainant with the testimony of three other witnesses (linked by the complainant's evidence to the appellant) could not have added considerable weight to the complainant's allegations. For all that a court knows, the evidence might have been crucial to the jury … Everyone in this country is entitled to have trial conducted according to law. Where a mistake is shown in that regard in a criminal trial, which goes beyond the trivial or irrelevant, there is a heavy onus on the prosecution to demonstrate that, overall, the appellant has not be deprived of a fair trial and has not lost a chance of acquittal which was fairly open. In such a case it was for the Crown, defending the verdict, to demonstrate that the conviction was inevitable. Given the centrality of the credibility of the complainant in this case, I could not agree to the application of the proviso if the evidence of complaint was wrongly admitted, as the majority of the Court of Criminal Appeal held it was.
Evidence of prior consistent complaint is admissible in sexual offence cases by way of exception to the rule against hearsay. It is admissible because of the tendency of people to assume that the victim of a sexual offence will complain at the first reasonable opportunity and that, if complaint is not then made, a subsequent complaint is likely to be false. This reasoning is in many cases palpably false but it is still the foundation for the exception to the rule of hearsay which would otherwise exclude the evidence. Evidence of complaint is only admissible if it is evidence of early complaint or, as is usually said, of 'recent complaint' and it is admitted not as evidence of the facts in issue, but as evidence of consistency, which buttresses the credit of the complainant: Suresh [4] (Gaudron & Gummow JJ). Thus, assuming the evidence given by Stewart, Simpson and the complainant's sister was not sufficiently 'recent', then it was inadmissible hearsay. The admission of inadmissible evidence constitutes a miscarriage of justice. The question then arises as to whether what was said in Suresh [6], [42] means that the proviso can never be applied. Clearly, that is not so. Gaudron and Gummow JJ did not suggest that the proviso could never be applied where such inadmissible evidence was given. They merely said that it was 'difficult to envisage circumstances in which it might be said that wrongful admission of evidence' could not enhance the credibility of the complainant. Kirby J [42] emphasised the fact that the proviso could apply, but referred to the heavy onus on the prosecution to demonstrate that the appellant had not been deprived of a 'fair' trial.
In this case, as mentioned above, it was the conduct of the appellant's counsel, who by cross‑examination of the complainant, revealed to the jury the evidence of complaints made to Stewart, Simpson and to the complainant's sister. McHugh J in TKWJ [74] pointed out that where the accused's own counsel has allegedly caused a criminal trial to miscarry, then it is the appellant who carries a 'heavy burden' in supporting an appeal due to that irregularity. Gleeson CJ in TKWJ [16] pointed out that decisions made in the conduct of a trial by counsel for an accused, even if later regretted, does not make the client a victim of 'unfairness'. It is the responsibility of counsel to make tactical decisions and assess risks. In TKWJ, the decision was made by trial counsel not to call certain evidence. Gleeson CJ said [17] that viewed objectively, it was a rational tactical decision, made in order to avoid a forensic risk and that decision did not make the trial unfair.
In my opinion, viewed objectively, there was an objectively sound forensic purpose in counsel for the accused emphasising the lack of immediate complaint to the three people referred to in grounds 6 and 8. Counsel for the accused was seeking to persuade the jury that a woman who had been raped in the circumstances described by the complainant, would complain and complain immediately to all appropriate people. It was reasonable for counsel for the accused to attempt to persuade the jury that a person in the complainant's position would have immediately reported the rape to the police, to the appellant's wife, to other workmates and to family members. The fact that she continued to work, made arrangements for her sister to come and collect her after waiting for about a week after the incident and not making any immediate complaint to the three people she was prepared to complain to a week later, would reflect adversely on the complainant's credit. Thus, counsel led evidence from the complainant about complaints made to Stewart, Simpson and the sister, not as evidence of recent complaint, but as evidence indicating a delay in complaining to people, whom it was reasonable to argue the complaint would have been made to, immediately after the alleged assaults. The forensic advantage in this tactic was considerable if the jury were persuaded by the argument and the defect - that is the admission of otherwise inadmissible evidence, was slight.
This case is different from Suresh. In Suresh, it was the prosecutor who led evidence from the complainant about complaints made many months after the incident in question, and in circumstances where the trial judge gave a direction to the jury that there may be good reason why the complainant, who was only 8 years old at the time of the offence, might delay in making complaint. In this case it was not the prosecutor who first revealed the evidence of complaint to Stewart, Simpson and the complainant's sister.
In my view there was no substantial miscarriage of justice and grounds 6 and 8 must therefore be dismissed.
Finally, I have for the purpose of those reasons above, made the assumption that the complaints to the three people referred to in grounds 6 and 8, being complaints made about a week after the assault, were not 'recent' complaints. However, in my view, it is not necessary to make that assumption. It is clear enough that two or more complaints may be proved and the fact that the complainant only deposes to one person does not prevent proof of others by persons to whom they were made: Breen v The Queen [1976] HCA 15; (1976) 180 CLR 233. R v Hedges (1909) 3 Cr App Rep 262 and R v W [1996] QCA 246; [1996] 1 Qd R 573 are
examples of cases where complaints made the week after the event in question were admitted as evidence of a recent complaint. The complaint must be made at the first reasonable opportunity after the offence. Reasonableness is to be judged by reference to the sensitivities of the particular complainant and the circumstances in which the particular complainant was placed at the time: Miller v The Queen (1995) 13 WAR 504, 509 ‑ 510, 517, 521. The trial judge in his summing up referred to the evidence of Simpson and Stewart about what was said to them when the complainant was leaving town, referred to the particular circumstances and sensitivities that operated on the complainant's mind and said that:
Wiluna was an isolated place, there was no public transport, public transport on which she could leave; Mrs Johnston was the Shire President; the police were more likely to be on - and this is what [the complainant] said, on their side, that is, Mr and Mrs Johnston's side, 'than to help me'.
Thus, it was open to conclude that the complainant felt isolated and unable to immediately escape the town and was as a result only prepared to immediately tell the workmate she felt closest to. When she had arranged her departure from town and she was ready to leave, she then told Stewart, Simpson and her sister about the incident.
As a result, it is my view that the evidence having been admitted as a result of the tactical decision made by counsel for the accused, was also properly admitted as evidence of recent complaint. That being so, there was no miscarriage of justice at all in relation to grounds 6 and 8.
JENKINS J: On 19 March 2009 in the District Court at Geraldton the appellant was convicted, after trial, of one count of indecent assault and one count of sexual penetration without consent. The appellant appeals against his convictions.
The charges
The indictment presented against the appellant contained four charges. Each of the first three counts was alleged to have occurred on a date unknown between 11 February 2007 and 17 April 2007 at Wiluna against the same complainant. Count 4 was said to have been committed on 18 April 2007 at Wiluna against the same complainant.
Counts 1 and 2 were identical in that they alleged that the appellant unlawfully and indecently assaulted the complainant by touching her breast with his hand contrary to the Criminal Code (WA), s 323. The third count alleged that the respondent attempted to unlawfully and indecently assault the complainant by putting his hand down her pants
contrary to the Criminal Code, s 323 and s 552. The fourth count alleged that the appellant sexually penetrated the complainant without her consent by penetrating her vagina with his penis, contrary to the Criminal Code, s 325.
The appellant stood trial on these charges on 16 March 2009. After the trial, which lasted three days, the jury convicted the appellant of the first count of indecent assault and the count of sexual penetration. The jury were unable to reach verdicts in respect of counts 2 and 3.
Grounds of appeal
On 5 October 2009 Wheeler JA granted leave to appeal on the following nine grounds of appeal:
1.The trial of the Appellant miscarried by the admission into evidence of a hearsay conversation that the Complainant said she had with the Appellant's wife in the first week of working at the hotel and before any of the alleged offences were committed wherein the Appellant's wife told her the following:
a)that the Appellant was a 'very touching, loving man';
b)that an ex‑barmaid called Barbie who had worked at the hotel had laid complaints against the Appellant and that she was going to put a stop to any further action being taken;
c)that she was the shire president;
d)that she was close to the police and that the Complainant was not to mess with her family.
2.The trial of the Appellant miscarried by the admission into evidence of a subsequent hearsay conversation that the Complainant said she had with the Appellant's wife a day or 2 before count 4 was allegedly committed wherein the Appellant's wife told her the following:
a)'how people can disappear down mine shafts and never be found'
b)she was friends with 'bikies associations and Mafias' (sic).
c)And that people who messed with her family she could get 'them mucked up'.
3.The trial of the Appellant miscarried by the admission of prejudicial evidence that the Complainant had finally decided to complain to the police about the alleged offences because she was scared about other 17 or 18 year old girls that might be sent to work at the hotel and she wanted to put a stop to that.
4.The trial of the Appellant miscarried by the admission into evidence of a hearsay conversation that the Prosecution witness Ms Zoe Price said she had with the Complainant wherein the Complainant had told her that on one occasion the Appellant had tried to barge into the Complainant's room.
5.The trial of the Appellant miscarried by the admission of irrelevant and prejudicial evidence of a hearsay conversation that the Prosecution witness Ms Priscilla Simpson said she had with the Appellant's wife wherein they discussed the Appellant's pinching or touching of the Complainant.
6.The trial of the Appellant miscarried by the admission into evidence of a hearsay conversation that the Prosecution witnesses Ms Priscilla Simpson and Mr Steven Stewart said she had with the Complainant wherein the Complainant had told her that she had been sexually penetrated by the Appellant when such evidence could not constitute evidence of recent complaint.
7.The trial of the Appellant miscarried by the admission into evidence of irrelevant and prejudicial evidence from the Prosecution witness Ms Priscilla Simpson that she too had been inappropriately touched by the Appellant.
8.The trial of the Appellant miscarried by the admission into evidence of a hearsay conversation that the Prosecution witness Ms [TJ] said she had with the Complainant wherein the Complainant had told her that she had been sexually penetrated by the Appellant when such evidence could not constitute evidence of recent complaint.
9.The trial of the Appellant miscarried by the admission into evidence of parts of the Appellant's video interview conducted by Detective Stephen Wallace on 16 May 2007 that were irrelevant and highly prejudicial, namely the entire questioning and answers from page 30 to 38 of the transcript, including:
Particulars
(a)Questions and answers about whether the Appellant had been attracted to or touched other barmaids.
(b)Questions and answers about conversations the Appellant had with his wife about the Complainant.
(c)Questions and answers about whether any other staff had lodged complaints about the Appellant.
(d)Questions and answers about things that the Appellant's wife may have said to the Complainant including whether she had any reason to say that 'she has close friends in the Mafia'.
(e)Questions and answers about other hearsay conversations that the Complainant may have had with the Appellant's wife.
(f)The question put that the police had spoken to other girls at the hotel who had said that the Appellant was 'quite infatuated' with the Complainant and the Appellant's answers to that question.
(g)Questions and answers about whether the Appellant had ever had a sexual relationship with any other barmaid in Wiluna and about a previous affair that the Appellant had with another woman.
The State's case
The prosecution case was that between 11 February 2007 and 18 April 2007 the appellant was the manager of the Wiluna Club Hotel in Wiluna (the Hotel). The appellant lived upstairs at the Hotel with his wife, Mrs Kerrie Johnston.
The complainant, then aged about 40, commenced working at the Hotel, as a barmaid, in February 2007. She also lived in the upstairs section of the Hotel; in room 17.
There were other employees at the Hotel. They included Ms Zoe Price (a barmaid); Mr Steven Stewart (a yardman); Mr Leonard Sullivan (the cook); and Ms Priscilla Simpson (a barmaid). Ms Price and Ms Simpson also lived at the Hotel.
Each of the female employees who resided at the Hotel had their own room. The door to each room led off a hallway from a foyer. The bedroom doors were self‑locking doors. A key was required to open them from the outside. The complainant testified that a door which separated the female staff quarters from the remainder of the upstairs area was not kept locked.
Counts 1 and 4, of which the appellant was convicted, were committed on different days. It was the prosecution case that counts 2 and 3 occurred on the same date which was a date between counts 1 and 4.
During the second week of her employment the complainant was having a drink after work. At about 10.00 pm the appellant called her over to him in the downstairs foyer. She stopped. He approached her, put himself against her and tried to kiss her (ts 40). The complainant said that she could feel the appellant's erect penis pressing against her. The complainant also said that the appellant grabbed her breasts by putting his hands under her shirt. He grabbed her so hard that he bruised one of her breasts. The complainant accidentally burnt the appellant's hand with her cigarette (ts 40 and 41) and he stepped back. The complainant went and sat in the garden with Ms Price. These events constituted count 1 on the indictment.
The complainant said that following the first incident, she told Ms Price that the appellant had grabbed her breast and tried to kiss her (ts 43).
Ms Price testified that there was a time that the complainant had told her that the appellant 'had bailed [the complainant] up in a corner' and tried to touch her by putting his hands down her pants. The complainant had pushed his hand away (ts 115). This complainant's account of the event to Ms Price corresponded more with the facts of count 3 than count 1.
According to the complainant, on a number of occasions after the commission of count 1, the appellant asked her when he was going to get an invitation to her room. She responded by saying 'not sometime soon'. On other occasions the appellant commented on her breasts, attempted to touch her inappropriately or to kiss her. The unproven counts 2 and 3 on the indictment constituted one of these occasions when it was alleged that the appellant touched the complainant's breasts and tried to put his hand down her pants.
Approximately six weeks after commencing work at the Hotel, the complainant took a holiday and went to Perth. She also travelled to Albany to see her brother, who was unwell. While she was on holidays her brother passed away.
She returned to Wiluna, via Perth, with the appellant's wife and Mr Stewart. The complainant said that at about 6.00 pm ‑ 6.30 pm on Tuesday, 17 April 2007, they arrived back at Wiluna. She spent the evening with people at the Hotel talking about her brother and his funeral. Later she bought some alcohol and went up to her room with Ms Price.
The complainant went to bed between 12.00 am and 1.00 am, after drinking with Ms Price. She was somewhat intoxicated (ts 49). She was wearing a 'nightie shirt', a pair of underpants and boxer shorts.
The complainant fell asleep. She testified that she woke and felt someone, who was behind her, penetrating her vagina with his penis. She was lying in her bed, on her right‑hand side, in a foetal position. She pretended to be asleep. The incident lasted about 20 seconds. The perpetrator ejaculated inside her. He then pulled the complainant's pants up over her bottom. She did not see the person at the time but 'assumed it would be [the appellant]' (ts 53). She said this was because no one else had access to her room and because of the appellant's earlier behaviour.
The complainant said that when the person got up to leave and opened the door, the light came in. The person who walked out of her room was bald, as was the appellant. She then recognised that it was the appellant (ts 53). This event constituted count 4.
The complainant gave evidence that there were two other men at the Hotel that night. The men were Mr Stewart and Paul. Paul did not look anything like the appellant. He had a full beard and shoulder length hair. Mr Stewart was quite a large man with full facial hair and short, very curly hair.
The complainant said that following the sexual penetration she looked at her phone and saw that it was 3.54 am (ts 54). She lay in bed and cried for a while. She showered at about 8.30 am in the morning. Following her shower, she went downstairs to start her shift. Before she did so, she put her night clothes and sheets in the washing machine. She worked the 10.00 am to 4.00 pm shift that day. Following her shift, she returned to her room.
The complainant saw Ms Price after the complainant's shift or the following day. She told her that 'she needed to share with her to get it off my chest'. She told Ms Price that the night that she had returned from her brother's funeral, the appellant had come into her room and 'helped himself' (ts 57).
Ms Price said that on an occasion following the complainant's return to Wiluna from a few weeks away, she and the complainant had a few drinks in the complainant's room. She said that the complainant told her that someone had come into her room and had 'helped themselves'. She had panicked and pretended to be asleep. Ms Price testified that the complainant said that as that person was leaving the room she had seen that it was the appellant. Ms Price said that the complainant was in tears when she told her and that her demeanour did not improve over the next couple of days (ts 119).
Following that incident, there were two other occasions where the appellant tried to kiss the complainant and touch her breasts (ts 57). The complainant said that she decided to leave Wiluna after a telephone call with one of her sisters. Another sister, who I will call Ms TJ, drove to Wiluna to pick her up.
The complainant told Ms Price and Ms Priscilla Simpson of her plan to leave and they assisted her. She left Wiluna later at night and drove to Geraldton with her sister. She then travelled to Perth.
About two weeks after returning to Perth the complainant went to the Sexual Assault Referral Centre (SARC) (ts 60) and later made a complaint to the police. She did this because she had heard that an employment agency was sending young women to work at the Hotel (ts 59).
The complainant's credibility was attacked during cross‑examination. The complainant admitted a criminal record for dishonesty and minor drug offences committed between 2002 and 2009 (ts 62 ‑ 64). She also admitted that on occasions at the Hotel she smoked cannabis with Ms Price (ts 65).
The appellant was interviewed by police on 16 May 2007. He made some admissions in the interview, but denied that he had either sexually penetrated or touched the complainant without her consent.
The audio and visual recording of the interview (the ROI), which was played to the jury unedited, included the following material relating to his behaviour with the complainant:
•On the night the complainant returned to the Hotel from her brother's funeral he, the complainant and Ms Price were outside drinking until the early hours of the morning.
•The complainant 'gave him a kiss and a cuddle' before he went upstairs to go to bed.
•He had been in the complainant's room many times but had not been in her room that night and had not had sex with the complainant.
•Almost every night when he went upstairs and the complainant was working, the complainant would give him a cuddle and kiss goodnight.
•He and the complainant had fondled each other, consensually, in the Hotel yard.
•He had touched and grabbed the complainant on the breasts previously and had cuddled her on a number of occasions.
•He got aroused when he touched the complainant and he was attracted to her.
•In response to the accusation that he put his hands down her pants, he said that he could not recall it but he was not saying that he did not do it.
•He admitted that he said things on occasions like, 'you got nice breasts' and openly joked about having sex with her.
•He denied having pushed the complainant against a wall and rubbed his penis against her body. He said that he had reached over to grab a drink on one occasion and the complainant had accidentally stubbed or touched a cigarette on his arm.
The defence case
The appellant relied upon the ROI and also gave evidence. He denied that he had ever touched the complainant without her consent (ts 195) or that he had ever sexually penetrated her (ts 198).
The appellant said that keys to the doors that opened the staff bedrooms were all kept in one bunch for the cleaner downstairs in the bar (ts 180). Some keys were also kept in the office, but not a key to the complainant's bedroom. He said that numerous other people had access to the keys. There was also a key‑cutting machine at the Hotel.
He said that there was a wooden corridor door that was situated between the female staff quarters and the foyer. This door locked from the inside; that is, from the corridor or bedroom side and not the foyer side (ts 180). He said that a copy of the key to this door was not kept on the bunch of keys in the bar.
The appellant admitted that he became 'familiar in a personal sense' with the complainant sometime in her first week at the Hotel. One night after she had finished work they talked in the beer garden. Thereafter, almost daily, they would have a drink after her shift in the beer garden. Mostly it involved the appellant, the complainant and Mr Sullivan. He said that he and the complainant would have 'a drink, normally kiss and cuddle or fondle or something of that nature' (ts 191). He denied that he ever did anything more to the complainant.
He testified that in 2000 he had had an accident which had left him with an injured shoulder. He had to take a pain killer for it. The pain killer had 'ruined his sex life'. He said he had to take Viagra or use a needle to inject his penis, in order to attain an erection. Viagra itself caused him other side effects and was expensive. The inference being that he did not continue to use it. He said that only his wife knew about this problem.
He said that on the night the complainant returned to Wiluna from her brother's funeral she and Ms Price joined him at a table in the beer garden. Mr White, a painter who occasionally stayed at the Hotel, sat at another table. Close to 11.00 pm he said that he stood up and said that he was going to bed. The complainant and Ms Price did the same thing. He and the complainant embraced and he gave her a kiss and a cuddle. He then went upstairs and went to bed. The following morning he saw her at work in the Hotel. He noticed that she was 'very stand offish' until the night she left. He testified that he did not go down the corridor to the women's rooms because it was against his wife's wishes.
During cross‑examination regarding the ROI, the appellant admitted that he had not told police about his sexual dysfunction because he was ashamed (ts 202).
He could not explain why he told police that he had set his alarm on the day when count 4 is alleged to have occurred for 3.00 am when in fact it was always set for 4.30 am (ts 202).
The appellant's wife, Mrs Johnston, was called by the defence. She confirmed that she had been married to the appellant for just over 40 years and that she lived at the Hotel with him.
She said that, the door to the female staff quarters was locked and had to be opened with a key, unless one of the girls opened the door from the inside (ts 226).
She denied any knowledge of the appellant touching the complainant.
Mrs Johnston provided an alibi for the appellant in respect of count 4. She said that on the night she and the complainant returned to the Hotel, she worked late in bed. The appellant came to their rooms around 10.20 pm. He had something to eat and then went to bed. She had been awake then and during the whole night. She said that the appellant had remained asleep, in bed, until she woke him up, when his alarm went off at 4.30 am, to go to work (ts 232).
Mrs Johnston testified that since 2000 her husband had suffered from sexual dysfunction. Her evidence in this respect supported the appellant's evidence (ts 233).
She denied that there had ever been complaints from other staff members that they had been 'touched up' or that the complainant had complained to her about the appellant touching her. She denied ever approaching the complainant about her husband's behaviour or speaking to her husband about it.
Mr Sullivan gave evidence for the defence that he had previously been employed at the Hotel. He said that in the period of February 2007 he would often remain at the Hotel after work for drinks. He said that when the complainant was at the Hotel 'she would hang around [the appellant] like a bad smell'. He said that he saw her sitting on the appellant's knee one night. He described the appellant as being the best friend to everyone (ts 242). He testified that the complainant had 'put the hard word on him', dressed provocatively, would 'throw herself around', get drunk and smoke drugs.
Ground 1
The evidence the subject of ground 1 was given by the complainant during her evidence‑in‑chief. The prosecutor had also mentioned the substance of the evidence when he opened the State's case.
The relevant evidence given by the complainant is as follows:
All right. Thank you. Now, during your first week at the Wiluna Club Hotel did you do something that wasn't approved of? ‑‑‑Yeah. I sold alcohol to an indigenous person after the accord hours?
…
And did you have a conversation with ‑ … [Mrs Johnston]?‑‑‑Yes.
Did she have a discussion with you about that?‑‑‑Yes. She got me into her office and discussed what I'd done was unacceptable and not to happen again, but she only spoke on that briefly.
She only spoke about that topic briefly?‑‑‑Yeah.
Did she speak to you about anything else on that occasion?
GOETZE DCJ: Mr Segler?
SEGLER, MR: Your Honour, no, I am not going to object because Mrs Johnston is going to come and give evidence.
GOETZE DCJ: All right.
DE VIRES, MR: Did she speak to you about anything else?‑‑‑She continued to tell me that she was very protective of her family and that her husband is a very touching, loving man, and started telling me about an ex‑barmaid that worked there by the name of Barbie that had laid complaints about her husband, and that she was going to put a stop to any further action being taken, and that's pretty much all, and I haven't heard any more about that either afterwards.
All right. Did she say anything to you about her position at Wiluna?‑‑‑That she was the shire president.
Did she say anything else?‑‑‑She was very close with the police, and basically it took her 60 years to become a bitch, and don't mess with her family (ts 38 ‑ 39).
The appellant submits that this evidence was irrelevant, had no probative value and significantly prejudiced his trial. Consequently, he says that its admission was a miscarriage of justice, even though he acknowledges that the trial judge gave his experienced counsel the opportunity to object to the evidence and counsel declined to take the opportunity.
The first issue to be determined is whether the evidence was relevant and admissible. The respondent submits that the evidence was not led to prove the truth of what Mrs Johnston said, but to prove that it was said in order to explain the complainant's state of mind at the time of the commission of the offences. That is, the respondent says that it explained why the complainant failed to make an immediate complaint of each of the offences to a person in authority. The respondent submits that this evidence was always relevant to the prosecution case because it was relevant to the element of lack of consent.
The second asserted basis for its admissibility is that it was relevant to Mrs Johnston's credit as an alibi witness because it suggested that she was someone who had a predisposition to cover up the appellant's wrongdoings.
The respondent says that the third basis for its admissibility was that it may have been evidence of a prior inconsistent statement by Mrs Johnston which the respondent had to lead in order to avoid splitting its case.
The first asserted basis for adducing the evidence as part of the evidence‑in‑chief of the complainant was considered by Heydon J in HML v The Queen [2008] HCA 16; (2008) 235 CLR 334 [290] ‑ [313]. His Honour did not decide the point as he found that the challenged evidence in that case was admissible on other grounds. Nevertheless, his Honour's reasoning is highly persuasive and I adopt it.
In HML, the issue was whether evidence of uncharged sexual acts between the offender and the complainant had been properly admitted as part of the complainant's evidence‑in‑chief. One of the purported grounds for admission of the evidence was that it was relevant to explain delay in, or absence of, complaint by the complainant. After considering the law and competing views, Heydon J said:
The Australian position contrasted with Wigmore's. It is probable, then, that the common law of Australia does not proceed on the view that the credit of a witness who has not complained is irretrievably damaged unless an explanation is given for non‑complaint in chief. It treats a complaint as 'merely and exceptionally constituting a buttress to the credit' of the witness. It starts with the witness's evidence of the crimes charged, and treats a complaint as buttressing the witness's credit; even if there is no evidence of a complaint, the witness's credit stands, unless the testimony is manifestly questionable, until there has been cross‑examination, including cross‑examination about any failure to complain. The starting point is not that the witness's evidence is damaged by failure to complain until that failure is explained.
To that approach there is one exception. It arises where the victim's account of the crime charged contains a possible explanation - for example, a threat by the accused to kill the victim. In that instance, the witness is not giving evidence for the sole purpose of bolstering her credibility: she is merely narrating the events which make up the crime, in a manner which may have the incidental consequence of strengthening her credibility [307] ‑ [308].
His Honour then considered whether applicable legislation, including a provision similar to the Evidence Act 1906 (WA) s 36BD, justified the admission of the evidence. His Honour concluded:
These provisions about jury direction do not prevent the jury from employing the reasoning permitted by the common law: that the complainant's failure to complain or delay in complaining goes to credit. And they do not suggest that it is permissible for the prosecution to seek to make up for the absence of a recent complaint by eliciting explanations from the complainant in chief for that absence. They say nothing about the time when the 'information' must be 'presented', or the 'suggestion made' [311].
Thus, the first asserted basis for the admissibility of the challenged evidence fails for the reasons stated by Heydon J. That is, unless and until a complainant's credit is attacked in cross‑examination because he or she failed to make or delayed in making a complaint, the prosecution is not entitled to bolster the complainant's credit by leading evidence‑in‑chief of the explanation for failing or delaying to make a complaint.
The second and third asserted bases for the admissibility of the evidence of the conversation rely on the evidence being relevant to the credit of Mrs Johnston. The collateral evidence rule is that answers given by a witness to questions put to him or her in cross‑examination concerning that witness's credit are final. The cross‑examining party may not call evidence to rebut the answers: Goldsmith v Sandilands [2002] HCA 31; (2002) 190 ALR 370 [3] (Gleeson CJ), [37] (McHugh J). Thus, the evidence of the conversation would not be admissible on these bases unless the evidence fell within an exception to that general rule.
One of the exceptions to the collateral evidence rule is if bias is alleged on behalf of a witness: Goldsmith [35]; Smith v The Queen (Unreported, WASCA, Library No 930093, 22 February 1993); (1993) 9 WAR 99, 104. Bias includes bias against an opponent or favour towards a party. It is generally a condition of the admissibility of evidence of bias that its details be put to the relevant witness prior to the admission of the evidence. However, in a criminal trial the prosecution must offer all of its evidence during its case and will, subject to special or exceptional circumstances, not be permitted to call evidence in rebuttal when it ought to have foreseen that the evidence would be relevant to an issue between the parties: The Queen v Soma [2003] HCA 13; (2003) 212 CLR 299 [36] (Gleeson CJ, Gummow and Hayne JJ).
The evidence of the conversation between the complainant and Mrs Johnston was relevant to whether Mrs Johnston was biased in favour of the appellant to the extent that she was prepared to dishonestly lie about or cover up, including give a false alibi for, the appellant's sexual offending. It was apparent from the defence counsel's comment prior to the reception of the evidence that Mrs Johnston was to be called by the defence. In those circumstances, I am of the opinion that the evidence was relevant and admissible on the basis of the bias exception to the collateral evidence rule.
The only concern I have with this finding is that the prosecutor did not put the alleged conversation squarely to Mrs Johnston during her cross‑examination. However, in examination‑in‑chief, defence counsel, being aware of the complainant's evidence of the conversation, asked Mrs Johnston whether she had ever spent any time talking to the complainant prior to the complainant taking leave in respect of her brother's illness. Mrs Johnston said that she had said 'hello', 'good morning' and had talked to the complainant about her shift. She testified that she had not discussed personal matters with her. She said that her conversation was about the business of the Hotel.
In cross‑examination, Mrs Johnston was asked whether she knew that the appellant had flirted with or inappropriately touched the staff. Mrs Johnston admitted that she was aware that her husband flirted but denied that staff had complained to her that he had inappropriately touched them.
The prosecutor was obliged to put to Mrs Johnston the substance of the conversation which the complainant said she had with her during the first week of her employment at the Hotel. The prosecutor did not comply with this obligation. On balance, there was sufficient opportunity given to Mrs Johnston to enable her to say whether or not this conversation had occurred. Given that opportunity, she denied having had any conversation with the complainant of this nature. Further, this ground of appeal does not allege that the prosecutor failed to properly put the State's case to Mrs Johnston. I therefore remain of the view that the evidence of the conversation was relevant and admissible and that this ground of appeal has not been made out.
However, if I am wrong in this respect I am of the view that if there was a miscarriage of justice in the admission of the evidence, the proviso applies and there was no substantial miscarriage of justice: Criminal Appeals Act 2004 (WA) s 30(3) and s 30(4).
When deciding whether there has been a substantial miscarriage of justice or not, the court is to consider whether there was a rational forensic reason for the defence not objecting to the admission of the challenged evidence. Whether there is such a reason is to be determined objectively: TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 [17], [95], [107]; Napier v The State of Western Australia [2007] WASCA 248 [33]. Unless the miscarriage of justice is fundamental, the existence of a rational forensic reason for not objecting to the admission of the challenged evidence is an important factor in determining whether there was or was not a substantial miscarriage. This is because an appellant is generally considered to be bound by the way in which he dealt with the issues at trial: Nudd v The Queen [2006] HCA 9; (2006) 225 ALR 161 [9] (Gleeson CJ); The Queen v Taufahema [2007] HCA 11; (2007) 228 CLR 232 [168] (Kirby J).
There was considerable cross‑examination of the complainant concerning her delay in making a complaint to any person in authority (ts 89 ‑ 98). In particular, she was asked why she did not complain to Mrs Johnston. The complainant answered:
She made it very clear my first week where I stand, that her husband is a very loving and touching man and to accept it and don't mess with her family.
The complainant was also asked why she had not complained to the police and her answer included that she knew that Mrs Johnston was the shire president and friends with the police. Thus, it would do her 'no good' (ts 90).
These and other answers given by the complainant during her cross‑examination revealed that the complainant's reasons for not complaining to Mrs Johnston and the Wiluna Police were, in part, based on the views she had formed as a consequence of what Mrs Johnston said to her during the challenged conversation. If the complainant had not given the substance of the conversation in evidence‑in‑chief, she would have been entitled during cross‑examination to explain her answers by further reference to the conversation. The prosecutor would also have been entitled to re‑examine her on the substance of that conversation.
At the time the complainant gave her evidence‑in‑chief, defence counsel would have known that he intended to cross‑examine the complainant on the issues of lack of a complaint to Mrs Johnston and delay in complaining to the police. The challenged conversation between the complainant and Mrs Johnston provided the basis for the complainant's beliefs which she alleged caused her not to complain about the offending conduct. Thus, there was a rational forensic reason for not objecting to the evidence of the challenged conversation being given in evidence‑in‑chief so that it would not emerge for the first time in cross‑examination or re‑examination, when it may have more impact on the jury.
Further, defence counsel was aware that Mrs Johnston would be giving evidence of an alibi for count 4. He knew she could be cross‑examined about this conversation, in order to show the extent to which she was prepared to go to cover up her husband's offending behaviour. Objectively, defence counsel may have considered that it was a forensic advantage for the complainant to give evidence of the conversation in examination‑in‑chief rather than risk Mrs Johnston denying its occurrence in cross‑examination and the prosecution being permitted to recall the complainant to lead evidence of it in rebuttal. Objecting to the relevance of the evidence during examination‑in‑chief of the complainant would have given strength to a prosecution submission that it should be permitted to call the evidence in rebuttal.
Senior counsel who represented the appellant on appeal (not at trial) submitted that the court could not conclude that the decision of trial counsel to cross‑examine the complainant about her failure to complain to Mrs Johnston and her delay in complaining to the police preceded the admission of the evidence. He submitted that the decision of trial counsel to cross‑examine the complainant in the way he did may have been as a consequence of the admission of the challenged evidence. In my opinion, the court is entitled to conclude, on the basis of all the material before it, that trial counsel took a rational forensic decision not to object to the evidence of the challenged conversation because of the way he had decided to conduct the cross‑examination of the complainant and the balance of the defence case. There is no evidence before the court that the mode of cross‑examination was a reaction to the admission of the evidence. Rather, the failure of defence counsel to object to the evidence, even after the trial judge gave him a distinct opportunity to do so, together with the fact that the issues of delay in complaining and lack of complainant were major planks in the defence attack on the complainant, lead to the conclusion that defence counsel had turned his mind to the admission of this evidence and determined that there were rational forensic reasons for allowing its admission. Given the nature of the defence, both in terms of the cross‑examination of the complainant and the evidence of Mrs Johnston, there were good forensic reasons for this decision.
I conclude that the evidence of the challenged conversation between Mrs Johnston and the complainant during the first week of the complainant's employment at the Hotel was admissible as falling within the bias exception to the collateral evidence rule. If I am wrong in that respect, there was no substantial miscarriage of justice in the reception of the evidence as it became relevant and admissible as a consequence of the cross‑examination of the complainant on the issues of her reasons for her delay in complaining to the police and her failure to complain to Mrs Johnston about the commission of these offences. Further, allowing the evidence to be admitted as part of the complainant's evidence avoided the risk of the State being permitted to call the evidence in rebuttal after Mrs Johnston had given evidence.
Ground 1 should be dismissed.
Ground 2
The evidence the subject of ground 2 was also given by the complainant during her evidence‑in‑chief. It related to a conversation with Mrs Johnston in the car on her return to Wiluna from holidays. She gave the following evidence:
Were there any conversations during your trip to Wiluna from Norseman?‑‑‑She talked about lots of things but what I remember specifically, and it would have been from Leonora to Wiluna, she mentioned - just out of the blue she just said how people can disappear down mine shafts and never be found and how she has lots of friends in like bikies associations, and Mafias and, people that mess with her family, she can get them mucked up and - yeah, just ‑ ‑ ‑
And do you know what prompted that conversation?‑‑‑No idea, no (ts 47 ‑ 48).
The prosecutor did not open on this evidence.
The appellant submits that this material was irrelevant, inadmissible hearsay and prejudicial to his case.
The respondent submits that the evidence was relevant and admissible for the three reasons given in respect to the evidence the subject of count 1. The respondent further submits that if the evidence was inadmissible, the admission of it did not amount to a substantial miscarriage of justice as there was a rational forensic reason for defence counsel not to object to it.
For the reasons given in respect of ground 1, the prosecution was not entitled to elicit this evidence in examination‑in‑chief in order to bolster the credit of the complainant.
This conversation was relevant and admissible for the same reason as evidence of the challenged conversation in ground 1. That is, it was admissible on the basis of the bias exception to the collateral evidence rule.
I note that in examination‑in‑chief, Mrs Johnston was given the opportunity of responding directly to this evidence (ts 231). However, the prosecutor did not cross‑examine her specifically on the content of the complainant's evidence concerning this conversation. He should have done so. Having said that, the ground of appeal does not address the fairness of the cross‑examination of Mrs Johnston. I remain of the view that the evidence was relevant and admissible as part of the evidence‑in‑chief of the complainant.
If I am wrong in this conclusion, for the reasons given in respect to ground 1, I am of the view that the admission of the evidence did not result in a substantial miscarriage of justice. The complainant was cross‑examined on the reason for her failure to complain about the offences to Mrs Johnston. The answers she gave concerning her state of mind at the time relied, in part, on this conversation. The cross‑examination rendered evidence of the conversation admissible. There was a rational forensic reason for defence counsel to conclude that it would be better if the conversation was led in examination‑in‑chief rather than it emerging in cross‑examination or being led as the complainant's last word, so to speak, in re‑examination.
Ground 2 should be dismissed.
Ground 3
The evidence the subject of ground 3 was given by the complainant during her evidence‑in‑chief. The following question and answer were given:
Once you had returned to Perth did you make a decision to do anything else about this?‑‑‑I - the decision I made was I got in contact with SARC and started getting some counselling and I think I had a couple of sessions with the counsellor and through talking with her and through my emotions and that I decided to go to the police and make a complaint because I was - I was worried because Job Futures are sending other girls there and they're only young, like, 17, 18 year old girls usually get sent there, and as I said, there's no public transport in and out of that place so I just wanted to put a stop to that.
The portion of the answer which is the subject of appeal is the complainant's evidence that she was 'worried' that young girls, 17 or 18 years of age, were being sent to the Hotel to work by a job agency.
The appellant submits that there was a miscarriage of justice by the admission of this prejudicial evidence. The appellant says that the complainant's motive for making the complaint to the police was not relevant to a fact in issue but it was highly prejudicial to his case.
The respondent submits that the complainant's motivation to complain to the police was an issue that went to her credit and that it was also the subject of cross‑examination. Thus, it was an appropriate decision by defence counsel not to object to the evidence. Even if this evidence had not emerged in examination‑in‑chief, given the cross‑examination of the complainant regarding her motivation to complain, the complainant would have been able to give it, in cross‑examination or re‑examination, as an explanation for her ultimate complaint to the police.
For the reasons given in respect of ground 1, the prosecution was not entitled to elicit this evidence in examination‑in‑chief in order to bolster the credit of the complainant.
I do not accept that the evidence, if its meaning is carefully considered, was prejudicial to the appellant. The complainant simply said that she was concerned that the appellant may offend against younger women. She did not say that she had any basis for this belief other than that she had been offended against; a matter which was the main issue between the parties and which was properly the substance of evidence from the complainant.
If I am wrong about this and the admission of the evidence amounted to a miscarriage of justice, the next issue would be whether it amounted to a substantial miscarriage of justice. The complainant was cross‑examined about her delay in complaining to the police. The cross‑examination was as follows:
After your sister had come to pick you up to take you away, do you think it was then ‑ did you not think then was a good time to go to the police and complain about what had happened?‑‑‑Not in Wiluna, no.
You didn't complain about [the appellant] when you got to Perth either, did you?‑‑‑Not until I started counselling.
How many weeks later was that?‑‑‑Two.
What sort of counselling did you undergo?‑‑‑Sexual assault.
In the course of that counselling you learned about something called criminal injuries compensation didn't you [the complainant]?‑‑‑No.
Do you know what criminal injuries compensation is?‑‑‑Explain?
Do you know?‑‑‑I've had victim support in Perth explain to me what criminal support compensation is after I'd been through counselling, after I'd been to the police.
But not before?‑‑‑No (ts 96).
The complainant was then cross‑examined about complaints she did or did not make to her sisters. The questioning then reverted to the issue of her complaint to the police. The following evidence was given:
Why didn't you go to the police here and complain about what you say [the appellant] has done to you?‑‑‑I can't answer that. I don't know. It wasn't, I said, until after I started counselling that I felt the need to report it.
I put it to you, [the complainant], that's because it didn't happen?‑‑‑You believe what you like. I know what happened. I know what that man took from me and I know what he's done to me emotionally, and I know what he did was wrong and he needs to answer to that (ts 98).
Following the exchange, the complainant was cross‑examined about her criminal record and, in particular, offences which she committed after she returned to Perth. It was put to her that she would do anything which suited her or which she thought she could get away with for money or benefits. She denied those allegations (ts 99).
Defence counsel addressed the jury on this part of the evidence. He said:
The issue about criminal injuries compensation ‑ you might wonder why would a women, after a period of time, go and subject herself to questioning in relation to sexual assault, a rape, that happened some time before. Why would she do that? Well there's a reason for that and the reason that I put to you could have been the case in this case ‑ I'm not saying that it is, but she certainly was aware after she had been to the Sexual Assault Referral Centre and then referred on to victim support services of her right to criminal injuries compensation.
Whether or not that plays a role in this matter is for you to decide, if at all. The fact of the matter is that it's not the case that this was a women who doesn't even [know] about criminal injuries compensation, who doesn't know that she has a right to be paid money if my client is convicted of an offence. This is one of those cases where she does know. The timing of that knowledge ‑ well, you heard the evidence about that.
…
If [the complainant] had been assaulted, it would be very easy, I suggest to you, for her to make a complaint to the Wiluna police, notwithstanding what she said or what she believed the influence of [the appellant's] wife was. She could have complained to them. If she was intimidated by the Wiluna police ‑ and there's no evidence to that effect, that she was actually intimidated by those police officers.
Rather, you heard some evidence from [the appellant] that on one occasion she had a go at them about a totally unrelated matter, but what I suggest to you is that she could have gone to the police in Geraldton because that's where she went after Wiluna. Why she didn't go to the police in Geraldton and tell them? Geraldton is not close to Wiluna. It's a long away. Did Mrs Johnston's influence over police in Wiluna extend to police in Geraldton? I think not. Then does she go to police when she comes to Perth? Not ‑ after she goes to the referral centre and then she's gone to victim support services, knows about criminal compensation, and then she's made a complaint.
That's how my client finds himself in this room today charged with these four offences (ts 24 18/3/09).
I have no doubt, having regard to the way in which the defence was conducted, that there was a rational forensic reason for defence counsel to permit the evidence the subject of ground 3 to be given by the complainant in evidence‑in‑chief. Defence counsel knew that the issue of the complainant's delay in making a complaint to the police was going to be an issue in the trial. Further, he knew that the defence was going to suggest that the reason she ultimately complained to the police was in order to obtain criminal injuries compensation. Once those issues had been ventilated in cross‑examination, either in cross‑examination or in re‑examination, it would become relevant and admissible for the complainant to give this evidence by way of explanation as to why she made the complaint to the police when she did. As in the case of grounds 1 and 2, it was objectively reasonable for defence counsel to conclude that there was a forensic advantage for the jury to hear the complainant's explanation for the timing of her complaint to the police in examination‑in‑chief rather than hearing it for the first time in cross‑examination or in re‑examination.
Ground 3 should be dismissed.
Ground 4
The evidence the subject of ground 4 was given by Ms Price in examination‑in‑chief. Ms Price was asked by the prosecutor whether from the time Ms Price returned to the Hotel from holidays to the time the complainant went on holidays, the complainant had spoken to her about the appellant. After giving evidence in respect to a complaint about one of the alleged offences, the following evidence was given:
Right. What other things did she say to you during that period of time we are talking about?‑‑‑And then there was another time. We were having a drink downstairs and I saw [the complainant] go upstairs. Shortly after [the appellant] had gone upstairs and then probably half an hour later I went upstairs and then [the complainant] told me that he had knocked on the door. She thought it was me and, well, opened it and then he tried to barge through.
Thank you. Can you recall her telling you anything else during that period of time?‑‑‑No (ts 115).
There was further evidence concerning this occasion in cross‑examination, as follows:
Do you recall an occasion when you were sitting down with a couple of miners?‑‑‑No.
That is, that you, that [the appellant], [the complainant], [the complainant] and a couple of miners were sitting around downstairs having a few drinks?‑‑‑Yes.
And you had only had a couple of stubbies of Tooheys Extra Dry and she had had ‑ [the complainant] had had a couple of Red Rush, which is apparently a vodka drink. Do you recall that?‑‑‑Yes.
Do you recall what happened next?‑‑‑Yeah. That was the night that I said earlier that [the complainant] had gone upstairs and [the appellant] has followed her and knocked on her door. She thought it was me and, like, opened it a bit and he tried to barge through the door.
Did you see that?‑‑‑No.
She told you about that?‑‑‑Yes (ts 134 ‑ 135).
The appellant submits that a miscarriage of justice occurred by the admission of this evidence because it did not relate to an alleged offence on the indictment and did not constitute evidence of recent complaint. It is submitted that the evidence was not relevant and was highly prejudicial to the appellant's case.
During the course of oral submissions, the appellant's senior counsel conceded that this ground would not of itself give rise to a miscarriage of justice but that it did so in combination with the other grounds of appeal.
The respondent submits that the evidence, on one assessment, showed a lack of consistency on the part of the complainant, given that she had not given evidence about such an incident and she had denied that she had had men in her room (ts 74). Thus, the respondent submits that the evidence had capacity of adversely affecting the complainant's credit and was favourable to the appellant.
The respondent submits that the trial judge's warning regarding the use to which relationship evidence could be put ameliorated any impermissible prejudice which could be said to have arisen by reason of the admission of this evidence.
The evidence was hearsay evidence of an incident which was neither the subject of a charge in the indictment nor the subject of evidence from the complainant of uncharged acts. Thus, it was inadmissible hearsay evidence from Ms Price.
The evidence appears to have been given by Ms Price unexpectedly. Once given, there were a number of options available to the defence. Defence counsel could have objected to the evidence and sought an immediate or later direction from the trial judge to the effect that the jury were to disregard the evidence. That may have had the effect of placing emphasis on the evidence in the minds of the jury. If the evidence had been objected to on the basis that the complainant had not given evidence of the incident or of complaining to Ms Price about it, the prosecution may have sought and obtained leave to call the complainant, as the prosecution was still in its case. This option would potentially have been quite adverse to the appellant.
Whilst the admission of the evidence constituted a miscarriage of justice because the evidence was inadmissible, it did not constitute a substantial miscarriage of justice.
This is because the appellant said in the ROI that he had been in the complainant's room many times. He said the complainant used to give him a cuddle and kiss goodnight. To the extent that Ms Price's evidence confirmed that the appellant had been in the complainant's room, it was consistent with what he had told the police. To the extent that it suggested that the complainant complained to her that on one occasion the appellant had tried to get in to her room, uninvited, the jury may have concluded that it was consistent with the complainant's evidence that the attention she received from the appellant was unwelcome. Whether this was the case or not was an issue which was live before the jury. The appellant's case was that he and the complainant had a consensual physical relationship stopping short of full sexual intercourse.
On the other hand, if the jury concluded that the evidence of Ms Price in this regard was inconsistent with the evidence of the complainant, it was a matter which could support the defence submissions that the complainant fabricated her complaints against the appellant: MWJ v The Queen [2005] HCA 74 [39]; (2005) 222 ALR 436.
This evidence from Ms Price did not take the evidentiary issues any further than were already presented to the jury by way of relevant and admissible evidence. This is especially as the trial judge gave the jury the standard warning that relationship evidence could not be used as evidence to prove a particular charge.
Ground 4 should be dismissed.
Ground 5
The evidence the subject of ground 5 was given by Ms Simpson in evidence‑in‑chief. Ms Simpson gave evidence that she saw the appellant pinch the complainant on the bottom. She said that the complainant asked her what she should do about it and Ms Simpson suggested to her that she should speak to Mrs Johnston. She was asked whether she knew whether the complainant had done that. Ms Simpson replied:
I don't know exactly whether she did or not, but Mrs Johnston came back and spoke to me about it.
What did Mrs Johnston say to you?‑‑‑Mrs Johnston just explained to me that she told [the appellant] if he touched ‑ he'd better not touch another barmaid (ts 142).
The appellant submits that this evidence was evidence of a hearsay conversation between Ms Simpson and Mrs Johnston. Although the evidence was led by the prosecutor without objection by the appellant's counsel, he submits that it was inadmissible and highly prejudicial to his case. He says that its admission amounts to a miscarriage of justice.
In essence, the respondent submits that a fair trial of the appellant required the prosecution to disclose the inconsistency between the complainant's evidence that she had not complained to Mrs Johnston and Ms Simpson's evidence that Mrs Johnston had said something to her which was consistent with the complainant having made a complaint to Mrs Johnston.
The respondent submits that if, prior to cross‑examination, Ms Simpson had not given her explanation for her belief that the complainant had complained to Mrs Johnston, the basis of her belief would have been the subject of re‑examination. Therefore, the respondent submits that the decision to allow this evidence to be given in evidence‑in‑chief was made for tactical reasons which cannot now be the subject of appeal.
I can immediately reject the respondent's submission that this evidence would have been admissible in re‑examination. Ms Simpson was not cross‑examined as to whether she knew that the complainant had followed her advice. Thus, this evidence did not become admissible by virtue of cross‑examination.
The complainant had given evidence that she had not complained to Mrs Johnston about the appellant inappropriately touching her (ts 88). Her reasons for not confiding in Mrs Johnston were the subject of cross‑examination. This cross‑examination had occurred prior to Ms Simpson giving her evidence.
In the ROI, the appellant told the police that he had touched the complainant, including that he had touched her on the bottom and vice versa (white AB 57). Later he was asked by the police whether his wife had ever spoken to him about his inappropriate touching of the bar staff. The appellant told the police that his wife had spoken to him about touching the complainant and had told him not to touch the bar staff. He told the police that the complainant had told him that they could not go on touching each other on the bottom anymore because otherwise they would be 'dobbed in'. He also said that he understood that Mrs Johnston had spoken to the bar staff because of what the complainant had said to him. He said that he understood that it was not the complainant who had told his wife about the touching (white AB 74 ‑ 75).
One inference available from Ms Simpson's evidence was that the complainant had told Mrs Johnston about the appellant touching the complainant on the bottom. However, that was not the only inference available. The other inference was that some other person had told Mrs Johnston about the behaviour. This appeared to have been confirmed by both the complainant's evidence that she had not complained to Mrs Johnston and the appellant's answers to the police.
It was not put to Ms Simpson in cross‑examination that she had not seen the appellant pinch the complainant, that she had not discussed it with the complainant or that Mrs Johnston had not spoken to her about it.
Mrs Johnston gave evidence‑in‑chief that she was aware that the appellant was a flirt and that he flirted with ladies who had large breasts. In cross‑examination, she was asked whether she had received complaints from staff that the appellant had touched them. Mrs Johnston denied that. She said that she knew that the appellant flirted but did not know and had never seen him touch the staff.
The defence had given a notice of alibi to the prosecution which indicated that Mrs Johnston would be providing an alibi for her husband for the night on which count 4 was said to have occurred. The fact that Mrs Johnston was to give evidence was confirmed by defence counsel during the examination‑in‑chief of the complainant. For the reasons which I have articulated in respect of ground 1, I am of the opinion that evidence as to what Mrs Johnston knew about the appellant inappropriately touching the complainant was relevant to the credit of Mrs Johnston; that is whether she believed that it was occurring, not only from what she had been told by others but because of her own conversation with the appellant about it, and whether she would be prepared to lie on her oath and deny it, in order to protect the appellant. Thus, the evidence of Ms Simpson was admissible pursuant to the bias exception to the collateral evidence rule.
In the usual course of a trial, the fact that Mrs Johnston was alleged to have, in effect, admitted to Ms Simpson that she was aware that her husband was inappropriately touching the complainant would have had to have been first put to Mrs Johnston before evidence could be led to rebut any answer she gave. However, given the prohibition on the prosecution splitting its case and from the defence's point of view, the undesirability of evidence being led after the close of the defence case to rebut Mrs Johnston's evidence, it was appropriate and there was a rational forensic reason why the defence would allow the evidence of Ms Simpson to be adduced in the State's case.
Thus, I am of the view that the admission of this part of the evidence of Ms Simpson did not amount to a miscarriage of justice. The evidence was relevant and admissible on the issue of potential bias of Mrs Johnston towards the appellant beyond what may be regarded as justifiable bias if she regarded that her husband had been wrongly charged. Even if the evidence should not have been admitted prior to Mrs Johnston giving evidence, I am of the view that the admission of it in the State's case did not amount to a substantial miscarriage of justice. The evidence itself was of little moment except so far as it affected or may have affected the credibility of Mrs Johnston. As defence counsel was aware that Mrs Johnston was going to be called as a defence witness to give alibi evidence, there was a rational forensic reason for counsel not to object to Ms Simpson's evidence‑in‑chief. It prevented the State from making an application and from being allowed to adduce evidence in rebuttal if Mrs Johnston denied knowing of her husband's inappropriate touching of the complainant. On the other hand if Mrs Johnston had acknowledged the conversation, no harm would have been done to the defence case by Mrs Simpson giving evidence of it.
Ground 5 should be dismissed.
Ground 6
The evidence the subject of ground 6 was given by Ms Simpson at the end of her examination‑in‑chief. It consisted of the following questions and answers:
All right, thank you. Did you take any time off around April?‑‑‑Yes, I went on my leave.
…
Can you remember what day it was that you got back, what day of the week?‑‑‑The day was on a Thursday I got back.
Did something unusual happen that day?‑‑‑That night?
Yes?‑‑‑Yes, Valerie and [the complainant] spoke to me about why she was leaving.
Did somebody turn up at the hotel?‑‑‑Yes, it was [the complainant's] sister, [TJ].
When [the complainant] spoke to you as to why she was leaving the hotel, what did she say to you?‑‑‑She spoke - said to Ms Price that she needs to tell me the reason why she is leaving.
Yes?‑‑‑I didn't know what was going on at the time.
Yes, and what did she say?‑‑‑She turned around and told me that while she was laying down asleep [the appellant] went into her room and pulled down her pants and that and started having sex with her while she was laying down.
Thank you. How would you describe her demeanour when she was telling you that?‑‑‑What do you mean by
Sorry, how was she behaving when she told you about that?‑‑‑Well, she was ‑ she was scared and she was crying when she told me about it. She was upset (ts 142 ‑ 143).
The evidence the subject of the ground was also given by Mr Stewart in examination‑in‑chief. He said that he spoke to the complainant one night and the next morning she was gone. In that conversation she told him she was leaving because 'she had been raped by [the appellant]'.
The appellant submits that this evidence was hearsay and that it was not admissible as an exception to the hearsay rule as evidence of recent complaint. The appellant says that it was simply the recitation of part of what the complainant had previously told Ms Price and, further, that it did not amount to a recent complaint because it was not fresh.
The respondent submits that the evidence was made relevant and admissible by virtue of the cross‑examination of the complainant which suggested that her failure to complain to police immediately stemmed from the fact that the complaint was false.
The respondent submits that the fact that the complainant made complaints to others near to the time that she left the Hotel, consistent with the one that she ultimately made to the police, rebutted the suggestion of recent invention.
Count 4 occurred in the early hours of Wednesday, 18 April 2007 and the complainant left the Hotel late on Tuesday, 24 April 2007 or in the early hours of Wednesday, 25 April 2007. The conversation with Mr Stewart clearly took place on her last evening at the Hotel. It is less clear when the conversation with Ms Simpson occurred. On one view of Ms Simpson's evidence, the conversation took place on a Thursday when Ms Simpson returned from leave. On another view of the evidence, the conversation took place on the evening that the complainant's sister arrived. In cross‑examination Ms Simpson said that she recalled the complainant leaving early one Friday morning in April. If Ms Simpson is correct and she got back to the Hotel on a Thursday before the complainant left and the conversation occurred on that date, the conversation took place two days after count 4 occurred. On the other hand, if the conversation took place the night that the complainant left the Hotel then it occurred on Tuesday, 24 April 2007. That would mean that Ms Simpson was wrong in her belief that the conversation took place on a Thursday night.
The next issue is whether Ms Simpson was also wrong in her belief that the conversation took place on the date that she returned from leave. The alternatives in this respect are that Ms Simpson was right that she returned from leave on Thursday but the conversation did not take place until the following Tuesday evening. Alternatively, Ms Simpson mistakenly believed that she returned from leave on a Thursday when in fact she returned on the Tuesday and the conversation took place that evening. These were essentially matters of fact for the jury to determine. The difficulty is that the timing of Ms Simpson's return from leave and the conversation between she and the complainant about count 4 were relevant to whether the contents of the conversation were admissible as evidence of recent complaint.
Even though the respondent's written submissions on this ground do not attempt to support the admission of the evidence as evidence of recent complaint, the trial judge left the evidence of Ms Simpson and Mr Stewart to the jury as evidence of recent complaint (ts 282).
The trial judge's direction was to the effect that the evidence was relevant to the credibility of the complainant as showing consistency. If the evidence was admissible on any basis it could only have been relevant for that purpose. This is probably why the appellant does not allege that, if the evidence of Ms Simpson and Mr Stewart in this regard was admissible, the trial judge's direction in this respect constituted a miscarriage of justice.
The complaint made to Mr Stewart does not appear to have been made 'as speedily as could reasonably be expected': Azarian v The State of Western Australia [2007] WASCA 249; (2007) 178 A Crim R 19 [119] (Miller JA). Thus, it was not admissible as early or recent complaint. If the conversation with Ms Simpson took place on Thursday, 19 April 2007, when Ms Simpson returned from leave, the complaint to her would have been made as speedily as could reasonably be expected. It was both a short time after the offence had occurred and as soon as Ms Simpson returned to the Hotel. At the other extreme, if the conversation occurred on Tuesday, 24 April 2007 and Ms Simpson had been back from leave since the previous Thursday, the conversation would not be admissible as recent complaint.
If I assume the latter scenario as it is most favourable to the appellant, neither the conversation with Mr Stewart nor that with Ms Simpson was admissible as recent complaint. The question then is whether the evidence was nevertheless admissible as evidence going to rebut a suggestion of recent complaint or fabrication? This requires further analysis of the cross‑examination of the complainant.
The complainant was asked in cross‑examination who she had confided in whilst she was at the Hotel about the appellant's conduct. She answered, 'Ms Price'. It was then put to her that she had never confided in Mr Stewart and she replied 'in the last week maybe'. After a question about Mrs Johnston, she was asked whether she confided in Ms Simpson. The complainant said that the last night she was there she gave Ms Simpson the reasons why she was leaving. There were further questions which appeared to be for the purpose of making the point that there were many people to whom the complainant could have complained, but to whom she did not complain. These people were said to include the police at Wiluna, Mrs Johnston and other members of staff at the Hotel.
The complainant was then asked whether she had ever confided in Mr Stewart and she repeated that she had done so in the last week. She was further cross‑examined about time she had spent with Mr Stewart and the opportunity she had for speaking to him about the offences. She was specifically asked why she did not complain to Mr Stewart about what had been happening to her (ts 92). The cross‑examination at this point on this issue concluded with the question 'you wouldn't complain to anyone else other than [Ms Price] and then only on two occasions prior to 18 April? The complainant answered 'No' (ts 92).
After cross‑examination concerning count 4, defence counsel returned to the issue of complaint. It was put to the complainant that after count 4 had occurred the only person she told was Ms Price. The complainant agreed. It was put to her that she did not tell Mr Stewart and the complainant replied 'not till I was leaving'. The cross‑examiner took up the point when the following exchange took place:
Did you tell Mr Stewart when you were leaving why you were leaving?‑‑‑I told him I was leaving because of what happened and that was on the day that I knew that my sister was coming to pick me up.
Did you tell Mr Stewart that [the appellant] had raped you?‑‑‑I told him he'd helped himself. 'Came into my room and helped himself' were my words.
When you were interviewed by police officers did you tell them that you have told Mr Stewart that?‑‑‑I don't remember.
You don't remember?‑‑‑I remember telling them that Ms Price was the one I got close to and Ms Price's the one I confided in with everything (ts 94).
Defence counsel confirmed with the complainant that she told Mr Stewart that the appellant had 'helped himself'. He then asked her whether she had told anyone else. The complainant said she had told Ms Simpson on the night on which she left and she told her the reason why she was leaving was because of what the appellant did. There was further cross‑examination about the circumstances in which the complainant told Ms Simpson.
The complainant was then cross‑examined about why she had not complained to police immediately on her return to Perth. That cross‑examination included questions on the timing of her discovery that she may be able to obtain criminal injuries compensation. She was cross‑examined about when she told her three sisters about the offences and why she had not complained to the Geraldton police, on her way from the Hotel to Perth. It was put to her that she did not do so because the offences did not happen (ts 98). She denied that explanation and, in the course of her answer, said that the appellant had to answer for what he had done to her. It was finally put to her, more as a statement than as a question, that he did not have to answer for it straight away (ts 99).
I have already referred to defence counsel's address to the jury and the way in which he dealt with the issues of delay in complaining and failure to complain. Those comments were made immediately after defence counsel had commented adversely on the credibility of the complainant due to her prior criminal record. There is no doubt that the tenor of defence counsel's address was that for a number of reasons the complainant should not be believed on her oath. These reasons included her prior criminal record, her failure to complain to people in Wiluna and her delay in complaining to the police until she had been in Perth for some time and learnt about criminal injuries compensation. The inference from these questions and answers being that the complainant had fabricated at least part of her complaint in order to obtain criminal injuries compensation.
Taking into account the approach of the defence to the complainant's evidence, I am of the view that the evidence of Mr Stewart and Ms Simpson was relevant to rebut a suggestion of recent invention. The authors of Cross on Evidence (8th Aust ed, 2010) say:
At common law a previous consistent statement by a witness is admissible to rehabilitate credit by rebutting the suggestion that the testimony is a construction subsequent to the events in question. It is not necessary that this should have happened recently, nor that it be the result of deliberate fabrication rather then response to another's suggestion [17305].
The jury should have been directed that the evidence was relevant to the credit of the complainant in order to prove, if it could, that she had been consistent in her complaint in respect of count 4 and had not fabricated her testimony; rather than being directed that it was evidence of 'prompt' complaint. Nevertheless, the trial judge's direction to the jury about the evidence was to the effect that it was evidence that could only buttress the credit of the complainant by showing consistency. The trial judge directed the jury that the fact that she told another of an offence did not 'add to the truthfulness of her evidence'. This was a correct direction of the use that the jury could make of the evidence. The appellant has not suggested that he was prejudiced by this direction and I am not of the view that he was.
In any event, the above recitation of the cross‑examination of the complainant shows that by the time Ms Simpson and Mr Stewart gave evidence, there was uncontradicted, admissible evidence before the jury that the complainant had told each of them about count 4 and when she had told them of it. The evidence from Ms Simpson and Mr Stewart to the same effect did not cause a substantial miscarriage of justice.
Ground 6 should be dismissed.
Ground 7
The evidence the subject of ground 7 was given by Ms Simpson in cross‑examination. She was asked the following questions and responded in the following manner:
Ms Simpson, did you have any problem with [the appellant] being - approaching you?‑‑‑Yes. Only once.
Right, and what did you do about that?‑‑‑I spoke to him. While we were on our own I - when I went to the freezer and I went into the back room near the freezer and I spoke to [the appellant] about it, not to touch me on the hip again.
Immediately after that cross‑examination it was put to Ms Simpson that in the three years she had worked at the Hotel the appellant had become 'too familiar' with a lot of the barmaids. Ms Simpson agreed. She was asked whether he would touch them like he had touched her and she answered 'not all of them he won't touch on the hip'. It was then put to her that when he did touch them and they did not like it they would complain, to her knowledge. She answered 'Yes'.
At the hearing of the appeal, the appellant's senior counsel conceded that this ground alone would not be sufficient to constitute a miscarriage of justice. However, he says that the evidence should not have been admitted because it was highly prejudicial and irrelevant.
The respondent submits that the decision to elicit the evidence was a deliberate forensic decision. The respondent acknowledges that it did not rely at trial upon the Evidence Act s 31A, although it says that it was entitled to do so. The respondent says that the evidence was admitted for tactical reasons to demonstrate that when an issue about inappropriate touching was raised with the appellant by staff he took steps to prevent repetition of such contact. It says that the defence wished the jury to reasonably infer from this evidence that if the complainant did not wish any physical contact to occur between herself and the appellant she need only to have said so and, if she had, the appellant would have desisted.
If the evidence that the appellant had touched Ms Simpson on the hip had been adduced as part of the prosecution case it would have been irrelevant and inadmissible. The prosecution did not seek to rely on similar fact or propensity evidence from witnesses, other than the relationship evidence from the complainant.
It is a different question as to whether the evidence was irrelevant and inadmissible given that it was adduced as part of the defence case. The appellant's trial counsel has subsequently advised the appellant's present solicitor that he had earlier interviewed Ms Simpson and as a result believed that she did not have a problem with the appellant's conduct. Consequently, it seems that counsel asked the question not expecting Ms Simpson to give any evidence that the appellant had touched her or, if she did give such evidence, to say that any touching was not inappropriate.
On one view, the way the appellant behaved with other women could not be relevant to prove how he behaved with the complainant. On the other hand, the defence's approach at trial appeared to be that the jury should consider the likelihood of him committing the offences against the complainant in the context of him being, and having a reputation for being, an affectionate but reasonable man towards female staff members in general. The question for me is not whether the challenged evidence ultimately assisted the appellant, but whether it was relevant to the approach he took to meet the State's case. In my view, given the manner in which he met the State's case, there was a rational forensic reason for the admission of the evidence and it was not prejudicial to his case. Therefore, at the appellant's instigation, it was admissible.
Ground 7 should be dismissed.
Ground 8
The evidence the substance of ground 8 was given by the complainant's sister, Ms TJ, in evidence‑in‑chief. She had been telephoned by another sister on Tuesday, 24 April 2007. As a consequence of that telephone call she drove from her home in Geraldton to the Hotel and arrived at approximately 8.00 pm that evening. She said at approximately 1.00 am the following morning she and the complainant left the Hotel and commenced the drive back to Geraldton. The following evidence was then elicited from her:
On the way back to Geraldton did the two of you have a conversation about why she had left?‑‑‑Yes.
Can you recall what it was that she told you?‑‑‑She told me that when she got back to Wiluna that night she was feeling down because we'd just lost our brother, and her friend Ms Price had brought her some drinks and they got a little bit drunk. She went to bed. And the only way to get into the room is with another key, [the complainant] had her key, and she woke up to [the appellant] helping himself to her.
What did you understand that to mean?‑‑‑I understand that he was having sex with her.
Thank you. Did she tell you how she knew it was [the appellant]?‑‑‑Yeah, she turned - when he'd got off and left she turned around and seen him walk out of the room (ts 162).
The appellant's submissions in relation to this ground raise the same issues as ground 6.
For the reasons which I gave in respect of ground 6, there was no miscarriage of justice by the admission into evidence of this conversation. Even if I am wrong in that respect, for the same reasons which I gave in respect of ground 6, there was no substantial miscarriage of justice.
Ground 8 should be dismissed.
Ground 9
The particular material contained in the ROI which is the subject of this ground is identified in the particulars to ground 9.
The appellant submits that the questions and answers complained of were irrelevant and highly prejudicial to his case.
The respondent submits that some of the material in the ROI was admissible because it was relevant to the complainant's credit. In any event, it submits that the admission of the material did not prejudice the appellant because:
1.it showed his prior good character;
2.it was consistent with his evidence at trial that he had a fantasy involving large breasted women;
3.it was consistent with the defence contention that had the complainant indicated in any way that the appellant's behaviour was unwelcome, the appellant would have stopped;
4.the material in the interview was consistent with other evidence adduced at trial; and
5.the trial judge directed the jury on the proper approach to be taken in evaluating the questions and answers in the interview.
In respect of particular (a), the appellant was asked whether he had ever been attracted to other bar staff, if he had ever touched other bar staff or whether he had ever had a sexual relationship with a barmaid in Wiluna. He denied each of these suggestions (AB 72 ‑ 79). These answers were favourable to the appellant, the admission of the evidence was not prejudicial to the appellant and the ground should not be allowed in respect to this material.
The appellant submits that the questions implied that he had inappropriately done the things he was asked about. I do not agree. That submission may have been arguable if the interviewer had asserted that the appellant had done those things. That was not the way in which the questions were asked.
Further, the trial judge directed the jury that questions from the interviewing police officers were not evidence and that it was the appellant's answers which the jury had to consider. In light of that direction, the appellant's submission cannot be sustained.
Particular (b) relates to questions and answers of the appellant regarding whether Mrs Johnston had spoken to the appellant about him touching the complainant and, if so, what she said about that. The relevant portion of the ROI is as follows:
Q.Has she ever spoken to you about your inappropriate touching of the bar staff?
A.She had a go at me about touching [the complainant], yes.
Q.Did she?
A.Yes.
Q.When was that?
A.Ah, not long after [the complainant] got there, cos [the complainant] and - ah, she said something to [the complainant] about it to.
Q.What did she say?
A.I don't know, [the complainant] just told me she'd mentioned something about it. She just said, 'We can't go hitting each other on the bum any more, touching each other, otherwise we'll be getting dobbed in'.
Q.And what - what was your wife's response to you when she's telling you about this touching.
A.She just told me not to go round touching the bar staff.
Q.Yeah?
A.Yeah. Didn't elaborate much more on it, she said 'Don't go touching em, cos you'll get yourself in trouble'. But she did speak to the girls, cos [the complainant] told me she'd spoke to em and that someone had told her and it wasn't [the complainant] it was someone else (AB 74‑75).
The evidence of the conversation could not have been led to prove that Mrs Johnston believed that something had occurred between the appellant and the complainant. However, the evidence was relevant as part of the res gestae of the offences. That is, it was part of the story and threw light on the offences and the circumstances in which they were said to have occurred. For example, the fact that the appellant had been spoken to by his wife and had also had a conversation with the complainant about what was alleged to be the offending behaviour in the period during which the complainant said it occurred, was relevant to whether it was likely that any subsequent offences occurred. It was also relevant for the jury to know that the appellant believed that his wife knew that some physical contact had occurred between himself and the complainant when it evaluated whether the appellant had committed count 4.
In any event, I read nothing in the appellant's answers which was prejudicial to him. That is, his answers were consistent with his defence that there was some consensual, sexual touching between himself and the complainant.
I also note that during the cross‑examination of the complainant it was put to her that Mrs Johnston had spoken to her about the way she and the appellant were behaving (ts 66). The complainant denied that she had. Given that cross‑examination and the appellant's evidence that he and the complainant were openly affectionate to one another, I cannot conclude that it was prejudicial for this portion of the ROI to be admitted into evidence.
The appellant also complains that the prosecutor used these comments by the appellant to discredit Mrs Johnston's assertions in her evidence that she had not spoken to the complainant about the appellant touching her. The prosecutor's comments are not a subject of a ground of appeal. Nevertheless, I will deal with this complaint. Mrs Johnston gave evidence‑in‑chief that she knew nothing about the appellant touching the complainant or anything about their relationship (ts 230). In cross‑examination she was asked whether a complaint had been made to her about the appellant touching the complainant. She denied this and also denied speaking to the complainant or the appellant about such touching (ts 234). In those circumstances, the prosecutor was entitled to comment on that evidence and also the account given by the appellant in his ROI about those conversations.
The ground of appeal should not be allowed in respect of particular (b).
In respect of particular (c), in the ROI the appellant was asked whether any other staff had lodged complaints about him. The appellant said that there had been a girl, called Anita, who had asked him to massage her back and shoulders down to her breast area. He said that he had done that once and that when she had left the Hotel she had made a complaint about it. He said that 'it died a natural death' because she had tried to get everyone in town in trouble and people knew what she was like (AB 75 ‑ 76).
These questions and answers were irrelevant and inadmissible. On no view of the issues between the parties could it be said that an unsubstantiated complaint by another person about dissimilar behaviour was relevant to the jury's deliberations on the charges in the indictment. Although the appellant had put his credit in issue by cross‑examining the complainant about her prior criminal record and asking questions of her such as to involve imputations on her character and leading evidence about her bad character from Mr Sullivan (Evidence Act, s 8(1)(e)), this material was hardly evidence of the appellant's bad character and, in any event, it was not adduced in cross‑examination of the appellant. However, the admission of the material was not prejudicial to the appellant. This is especially as the appellant's defence was, in part, that he was a flirtatious person who did, on occasion, touch the bar staff.
The appellant submits that the naming of the girl, Anita, was prejudicial to him as there was evidence from the complainant that his wife had told her that a girl called 'Barbie' had also made a complaint against him. Thus, if the members of the jury put the material about Anita together with that evidence, they would conclude that two women had made prior complaints against him.
First, it must be kept in mind that I have found the material in the ROI concerning Anita was not prejudicial. Secondly, there was only one passing reference to Barbie in the admissible conversation between the complainant and Mrs Johnston. Thirdly, neither name was repeated in the evidence, counsel's addresses or the trial judge's directions. Fourthly, although the complainant said that Mrs Johnston mentioned Barbie immediately after saying that the appellant was a loving man, she did not say what sort of complaint Barbie had made. The jury were given the standard direction not to speculate about matters not in evidence (ts 256). Consequently, I am of the opinion that the naming of Anita, even after the name of another possible complainant had been given, did not cause a miscarriage of justice, or if it did that it constituted a substantial miscarriage of justice.
This ground should not be allowed in respect of particular (c).
Particulars (d) and (e) can be dealt with together as they both relate to questions and answers about things which Mrs Johnston might have said to the complainant. The following exchange took place between the appellant and the interviewer:
Q.Would [Mrs Johnston], your wife, ever have any reason to say to [the complainant] that, ah, she has close friends in the Mafia?
A.No, that's probably [Mrs Johnston] being jealous.
Q.Being jealous?
A.Yeah.
Q.Of?
A.Oh, me I suppose (indistinct) things. Like, you know, [Mrs Johnston's] very protective, ah, of me ‑ ‑ ‑
Q.Mm.
A.‑ ‑ ‑ you know. Um, yeah, I don't know, I suppose I've been with her - I've been with her since about 1968, so I suppose she would be. Um, she - she says that to a lot of people when they, um, do anything to her kids. You know like the kids are having a hard time ‑ ‑ ‑
Q.Mm.
A. ‑ ‑ ‑ um, she mentions that a lot to them, you know. I think it's more of an attempt to try and draw or to drive someone off or whatever, you know (AB 76).
At the same point in the ROI, the appellant was asked whether Mrs Johnston would say to the complainant 'for instance' that she could not make any complaints about the appellant because she was 'on the Shire'. The appellant replied:
Nah, I wouldn't know. I wouldn't know [whether] she'd say that or not? But, ah , I thought they - well, I think that all happened over when whoever - I think it - I got a feeling it was [Ms Price] that told [Mrs Johnston] about, ah, each of us touching each other type of thing, (indistinct) ass has been passed. Um, and she - cos she did front her, cos [Mrs Johnston's] one of those sort of people that will front em (AB 77).
Later, the appellant was asked whether Mrs Johnston would say something along the lines that the appellant was 'a loving and touching man'. The appellant answered:
Don't know, probably would of. I mean I openly touch her in front of the public, so it doesn't - you know, I'm sort of that person. I don't do things behind door or anything, you know, I do most of it out in the open. So, consequently as you said - you said [Ms Price] said that she'd seen us touching outside, I don't do anything untoward, hide or anything, so if I've done anything wrong I've - it's in the open all the time, you know (AB 77).
It was impermissible for the appellant to be asked to speculate about why his wife would say something or whether she did say something to another person. However, as the jury were told, it was not the questions which constituted the evidence in the case but the appellant's answers to those questions.
In the first set of answers, the appellant speculated that Mrs Johnston may have told the complainant that she had friends in the Mafia and why she would have said that. It did not amount to any admission by the appellant that Mrs Johnston had said those things to the complainant. The answer was not relied upon by the prosecution in this way. It could not have been so relied on. On the other hand, that distinction may have been lost on the jury.
Whilst the questions were impermissible and the answers irrelevant, the answers were not directly prejudicial to the appellant himself because they were not about him. The answers, if taken by the jury as an admission by the appellant that his wife did or was likely to have said what was alleged, would have been prejudicial to his case in that the credit of Mrs Johnston was in issue. The first set of answers did not reflect well on Mrs Johnston's credit because in them the appellant, someone who may be thought to know her well, conceded that she may well have impliedly threatened the complainant in order to protect him and even 'drive' off the complainant.
The issue is whether it is reasonably possible that the jury would have taken the answers in this way? I am of the view that the jury may well have used the answers in that way. Although the appellant starts by saying 'no' to the question, he quickly goes on to say that it was probably Mrs Johnston being protective of him. He even acknowledges that what was alleged to have been said is something that Mrs Johnston says 'to a lot of people' when they do anything to her kids. If one overlooks the element of speculation, which is easy to do, the clear effect of the answers is that the appellant believes that his wife may have threatened the complainant in order to protect him.
As I have said, the credit of Mrs Johnston was in issue. She gave an alibi for the appellant in respect of count 4. In effect, she denied that she had ever spoken to the complainant about the appellant. This evidence, which was inadmissible speculation, had the capacity to affect her credit.
In determining whether its admission constituted a miscarriage of justice, I have taken into account that there was no objection to the admission of the material. On the basis of the contents of a letter dated 22 September 2009 from the appellant's trial counsel to the appellant's present solicitors, it seems that he did not object to the admission of this evidence because he believed that Mrs Johnston would give evidence of 'the enmity between her and the complainant' and thereby establish another possible motive for her false claim of sexual assault.
When the complainant was cross‑examined it was not put to her that these conversations did not take place. Rather, she was asked whether Mrs Johnston had spoken to her about how the complainant and the appellant were 'behaving' (ts 66, 75). She replied that she had not done so.
Therefore, it appears that the evidence was not objected to because counsel was instructed that Mrs Johnston would admit that she had said these things, that she was aware of the consensual, physical contact between the complainant and the appellant and that the conversations were relevant to the relationship between herself and the complainant which in turn gave the complainant another motive to lie.
The question for me is not whether the course taken by counsel was taken for the purpose of obtaining a forensic advantage but only whether it is capable of an explanation on that basis: TKWJ [27] (Gaudron J; Gummow and Hayne JJ agreeing). In my view, the failure of counsel to object to the admission of this part of the ROI is explainable on the basis that it was expected to support Mrs Johnston's evidence. There may have been a forensic advantage for the appellant in having the jury know that his wife had said these things to the complainant because she was protective of him, in circumstances where the defence was that the complainant had willingly engaged in some sexual activity with the appellant and Mrs Johnston was expected to give evidence of the poor relationship between herself and the complainant. It seems that it was also expected that Mrs Johnston would say that she was aware of inappropriate behaviour between the complainant and the appellant. The difficulty for the defence is that Mrs Johnston did not come up to proof.
In TKWJ Gaudron J said:
Where it is claimed that a miscarriage of justice was the result of a course taken at the trial, it is for the appellant to establish that the course was not the result of an informed and deliberate decision. This he or she will fail to do if the course taken is explicable on the basis that it could have resulted in a forensic advantage unless, in the circumstances, the advantage is slight in comparison with the disadvantage resulting from the course in question [33].
Consequently, this ground should fail unless the forensic advantage is slight in comparison with the disadvantage resulting from the failure to object to the passage in the ROI.
I am satisfied that there was no relevant miscarriage of justice. The appeal ought not to be allowed because Mrs Johnston failed to come up to proof and thereby adversely affected her credit and undermined the groundwork which had been laid for part of the defence case. That was simply a result of a fair trial process in which the appellant instructed his counsel on how he wished to contest the issues in the trial and he is bound by that decision. In coming to this conclusion I have been influenced by the fact that the complainant had already given unchallenged evidence of this conversation. I have found that such evidence was admissible.
In the second answer, the appellant said that he would not know whether his wife had told the complainant that she could not make any complaints about him because she was on the Shire. He then made a comment about how he thought that Mrs Johnston may have found out about him and the complainant touching one another, through Ms Price. That comment was speculation. The question was impermissible for the reasons given earlier. The answer was irrelevant but it was not prejudicial to the appellant.
The third question also asked the appellant to impermissibly speculate on whether his wife might have said that the appellant was a loving and touching man. His answer was that he did not know whether she said it but that she 'probably would have'. He justified this by saying that he openly touched the complainant and did not try to hide it. This answer was consistent with his defence that he was a flirtatious man who was attracted to the complainant and who consensually and publically touched and fondled her. There was nothing prejudicial in the answer.
Ground 9 should not be allowed on the basis of particulars (d) and (e).
In relation to particular (f), the following exchange took place between the interviewer and the appellant:
Q.Mm. Well, we've spoken to a couple of girls that work at the pub and um, they've sort of said that they've felt that you where, ah - where quite infatuated with, um, [the complainant] and that there was a lot more touching perhaps than there should've been.
A.As I said to you, um, there was - okay, every night she either give us a cuddle or I gave her one as I come up the stairs to go to bed. So, you know, um ‑ ‑ ‑ (ROI 36).
The appellant went on to say that the cuddling and fondling was reciprocated by the complainant. He said that she had never pushed him away and that if she had done so it would have been finished. It was relevant and admissible for the interviewer to ask the appellant whether he was infatuated with the complainant. The appellant's answer was also relevant and admissible. The impermissible part of the question was the reference to what other witnesses had said or might have said to the police. The question should not have been put in that form.
In this respect, the trial judge directed the jury that the questions from the police were not evidence. The jury were told that it was the appellant's answers which they were to consider. The jury were also told that if the interviewer said something that someone else had said it was not evidence (ts 275). Given the direction of the trial judge, I am of the view that even if there was a miscarriage of justice in the admission of that portion of the interviewer's question, there was no substantial miscarriage of justice as a result. The direction of the trial judge was adequate to ensure that the jury did not misuse the impermissible questioning.
The ground of appeal should not be allowed on the basis of particular (f).
In relation to particular (g), when the appellant was asked whether he had ever had a sexual relationship with a barmaid in Wiluna, he answered by saying he had not had one with a barmaid but that, in effect, he had had a short consensual affair with a girl who subsequently became a barmaid. He said that she was now married and was a good friend.
As with particular (c), the questions and answers were irrelevant and inadmissible. The only possible basis for the admission of the evidence would have been on the basis that the appellant had put his character in issue and evidence of an extramarital affair was evidence of bad character. There may have been an argument that the State was entitled to lead evidence of bad character in its case in order to avoid splitting its case.
The appellant, in effect, admitted only to a one night affair which occurred at an indeterminate time in the past, which was entirely consensual and was prior to the marriage of the other party. I cannot see how the imputation could have been such as to seriously affect the credit of the appellant. Thus, I am of the view that the material was not admissible on that basis.
However, for the same reason the material, whilst inadmissible, was not relevantly prejudicial to the appellant. The prosecution did not seek to rely on the material in any way. It could not have done so. It certainly did not lend any credence to the State's case that the appellant was someone who would indecently assault or sexually penetrate a barmaid without their consent.
Particular (g) also complains about portions of the ROI where the appellant was asked about whether he had ever had a sexual relationship with any other barmaid in Wiluna. I have dealt with that portion of the ROI when dealing with particular (a). The ground of appeal should not be allowed on the basis of particular (g). Ground 9 should be dismissed.
Incompetence of counsel
The appellant accepts that incompetence of counsel is not, of itself, a ground of appeal and that the relevant ground of appeal is that there was a miscarriage of justice: Criminal Appeals Act, s 30(3)(c).
None of the grounds of appeal alleged that there was a miscarriage of justice by virtue of the incompetence of counsel. Nevertheless, the appellant's written submissions say that defence counsel's failure to object to the evidence the subject of the grounds of appeal and his introduction of other evidence the subject of the grounds amounted to incompetence which in turn led to a substantial miscarriage of justice.
It is easy to stand by the sideline and in hindsight after a defence has failed, if only in part, to say that it was due to the incompetence of counsel. However, as the High Court has said it is necessary to look at the outcome and the process when such an allegation is made: Nudd [3] ‑ [5] (Gleeson CJ).
I have examined each of the grievances contained in the grounds of appeal. The vast majority of them do not constitute miscarriages of justice. I have identified that the error alleged in ground 4 constitutes a miscarriage of justice and I have identified that failure to object to otherwise inadmissible material is explainable on the basis of there being a rational forensic reason for or forensic advantage in the admission of the evidence, including that there was no relevant prejudice to the appellant in the admission of the evidence.
The appellant submits that the appeal ought to be allowed and a new trial ordered because there was a fundamental departure from the essential requirements of the law and as a consequence he did not receive a fair trial.
Notwithstanding a finding that a miscarriage of justice has occurred, the court may dismiss an appeal if no substantial miscarriage of justice has occurred: Criminal Appeals Act, s 30(4). I am satisfied that considered individually the grounds relied on by the appellant do not constitute substantial miscarriages of justice. I am also satisfied that taken in combination, there has not been a substantial miscarriage of justice.
There was no fundamental failure of process in this case which deprived the appellant of a fair trial: Nudd v The Queen [5] (Gleeson J); Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358 [66] (French CJ). The miscarriage of justice in respect of ground 4 and the admission of otherwise inadmissible evidence the subject of ground 9 do not indicate that the appellant was deprived of a chance of acquittal that was fairly open to him: Mraz v The Queen [1955] HCA 59; (1955) 93 CLR 493, 514 (Fullagar J). Gaudron J also said in TKWJ:
The word 'fairly' should not be overlooked. A decision to take or refrain from taking a particular course which is explicable on the basis that it has or could have led to a forensic advantage may well have the consequence that a chance of acquittal that might otherwise have been open was not, in the circumstances, fairly open [26].
Gaudron J gave the failure to give a Longman direction and the wrongful admission of evidence of a prior consistent complaint as examples that may deprive an appellant of a chance of acquittal that was fairly open and prevent the application of the proviso. However, as a case such as Suresh v The Queen [1998] HCA 23; (1998) 153 ALR 145 shows, where such evidence is admitted without objection, is relied upon by the defence and/or is relevant to the State's response to the defence case, it cannot be said that receipt of such evidence deprives an accused of a chance of acquittal that was fairly open.
By the end of the trial some of the evidence which the appellant probably hoped would support his defence and discredit the complainant had not emerged in the manner in which he had probably thought it would. However, this does not mean that the decisions made during the course of the trial by his counsel which were explicable on the basis that they may have led to a forensic advantage made the trial unfair or deprived the appellant of a chance of an acquittal which was fairly open to him.
Conclusion
For the reasons stated I would dismiss the appeal.
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