KAN v The State of Western Australia
[2021] WASCA 182
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: KAN -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 182
CORAM: BUSS P
MAZZA JA
MITCHELL JA
HEARD: 17 SEPTEMBER 2021
DELIVERED : 14 OCTOBER 2021
FILE NO/S: CACR 150 of 2018
BETWEEN: KAN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: STONE DCJ
File Number : IND 1430 of 2017
Catchwords:
Criminal law - Child sexual offending - Where appellant filed discontinuance notice in appeal against conviction - Whether certificate of final outcome should be set aside on the ground that the discontinuance notice was a nullity - Whether court should exercise discretion to set aside discontinuance notice which is not a nullity
Legislation:
Criminal Code (WA), s 329
Evidence Act 1906 (WA), s 8(1)(e), s 8(1)(f), s 31A
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Appellant | : | T F Percy QC and S Nigam |
| Respondent | : | B M Murray |
Solicitors:
| Appellant | : | Nigams Legal Pty Ltd |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
BGH v The State of Western Australia [2020] WASCA 124
Bridges v The Queen (1998) 20 WAR 59
Durani v The State of Western Australia [2012] WASCA 172
George v The State of Western Australia [2020] WASCA 139
Hall v The State of Western Australia [2013] WASCA 165; (2013) 232 A Crim R 107
Hastie v The Queen [1981] WAR 365
Johnson v The Queen (1992) 57 A Crim R 290
LNN v The State of Western Australia [2021] WASCA 39
NPK v The State of Western Australia [2021] WASCA 113
Ponnambalam v The State of Western Australia [2015] WASCA 185
R v Medway [1976] 1 QB 779
R v Tabe [1983] 2 Qd R 60
Sethi v The State of Western Australia [2020] WASCA 173
Shah v The Queen [2019] WASCA 110
The Queen v Bauer (a pseudonym) [2018] HCA 40; (2018) 266 CLR 56
TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124
WMT v The State of Western Australia [2021] WASCA 104
YNT v The State of Western Australia [2020] WASCA 80
JUDGMENT OF THE COURT:
Summary
On 13 April 2018, the appellant was convicted after trial by jury of the following 16 offences committed against the complainant, who was his stepdaughter:
(1)six counts of indecently dealing with the complainant, a child who he then knew to be his de facto child; contrary to s 329(4) of the Criminal Code (WA); and
(2)ten counts of sexually penetrating the complainant, a child who he then knew to be his de facto child; contrary to s 329(2) of the Code.
On 5 July 2018, the appellant was sentenced to a total effective sentence of 10 years' imprisonment, backdated to 13 April 2018, in respect of these offences.
On 24 July 2018, the appellant filed an appeal notice against his convictions. On 8 November 2018, the appellant filed a discontinuance notice discontinuing the appeal against his convictions. On 21 November 2018, the acting Court of Appeal registrar issued a certificate of conclusion of a criminal appeal, indicating that the appeal had been discontinued (Certificate).
On 9 July 2021, the appellant filed an application in an appeal seeking leave to withdraw his discontinuance notice. The application also seeks orders setting aside the Certificate and extending the time for the appellant to file his appellant's case. The application was supported by two affidavits, one of which was the affidavit of the appellant sworn 29 July 2021.
For the following reasons the appellant's application should be dismissed.
Prosecution case at trial
The prosecution case was that the appellant committed multiple serious sexual offences against the complainant between 2005 (when the complainant was about 6 years old) and 2016 (when the complainant was about 17 years old). The offences were all alleged to have been committed at the family home of the appellant, the complainant's mother, the complainant and the complainant's four brothers. At that house, the complainant had her own bedroom, her two older brothers shared a bedroom and her two half-brothers (the children of the appellant and the complainant's mother) also shared a bedroom.
The appellant's relationship with the complainant's mother deteriorated and he moved out of the family home in October 2016. The complainant disclosed the sexual abuse in January 2017, after telling the appellant that she planned to do so. Child witness interviews with the complainant, who was then 17 years old, were conducted on 13, 17 and 23 January 2017.
After particularising the charges, the prosecutor indicated that the charges were representative counts in relation to 'other acts' committed by the appellant against the complainant.[1]
[1] Trial ts 30.
In opening, the prosecutor accepted that, when the complainant was 8 or 9 years old, she falsely told the appellant that her maternal grandfather had indecently dealt with her. The prosecution case was that the reason the complainant said this to the appellant was a childish notion that the appellant might stop touching her if he understood how she was feeling.[2]
[2] Trial ts 31.
The State adduced the evidence of the complainant, who gave evidence (largely in the child witness interviews) of the counts on the indictment and other regular sexual abuse by the appellant. The State also relied on evidence of the complainant's mother and a brother as to the living circumstances of the family at the time of the alleged offending.
The prosecutor tendered a recorded police interview with the appellant, who denied any sexual offending but made some admissions as to the circumstances of the alleged offending on which the State relied.
Defence case at trial
The defence case at trial was that none of the alleged offending occurred.
The defence case was that the allegation emerged only after the appellant left the family home in October 2016. The complainant visited the appellant in Christmas 2016, when the appellant was living at the home of one of his sons and the son's girlfriend. At that time, the complainant discovered that the appellant had 'moved on' and had a new girlfriend who had a daughter. The defence suggestion was that the complainant made up the allegations against the appellant out of anger at his new relationship.
The defence also relied on the complainant's admission of previously falsely accusing her maternal grandfather of sexual offending, which was suggested to be motivated by anger by the complainant that her two younger brothers were not allowed to visit the grandparents with the other children.
The appellant did not give evidence at trial, relying on the account he had given in his recorded police interview. The appellant called his son and the son's girlfriend to give evidence as to an argument between the appellant and complainant at their home during Christmas 2016.
Institution and discontinuance of appeal
The appellant relies on his affidavit sworn on 29 July 2021 in support of his application to withdraw the discontinuance notice.
The appellant gives evidence of his instructions to his trial counsel prior to trial, which is dealt with later in these reasons.
The appellant says that, following his convictions, he sought to appeal against them. He arranged for his partner at the time to apply for legal aid on his behalf, and spoke to a lawyer, Mr S Watters, at prison in late July 2018. The appellant signed appeal notices against conviction and sentence on or around 23 July 2018, and understood that Mr Watters filed the appeal notices.[3]
[3] Appellant's affidavit, par 3.92 - 3.95.
On or around 2 August 2018, the appellant received written advice from Mr Watters to the effect that there was no merit in the appellant appealing against his convictions or sentences.
On 4 October 2018, the appellant appeared before Mazza JA at a directions hearing. He advised the court that he was seeking a review of a refusal by the Legal Aid Commission to grant aid in respect of an appeal. The appellant says he understood that Legal Aid were not prepared to grant aid in relation to the matter given Mr Watters' advice.[4] He requested a six-week adjournment to enable him to organise legal representation. The court adjourned the directions hearing to 14 November 2018, indicating that:[5]
So when this matter comes back before me, which I will order will be 14 November 2018, I expect to hear that there is some progress in the way in which you're getting these appeals together.
[4] Appellant's affidavit, par 3.98.
[5] Appellant's affidavit, par 3.98; appeal ts 4 October 2018.
The appellant deposes:[6]
On or around 8 November 2018, I filed Discontinuance Notices in relation to the Appeal Notice as I had no lawyer at the time, and I had no proper financial means to pursue the appeal. At that stage, I understood that Legal Aid still were refusing to grant me aid. Further, the Directions hearing was fast approaching. …
Although I filed the Discontinuance Notices, I never wished to abandon my appeal. At the time, I did not have the financial means to pursue the appeal and I had been refused a grant of aid. I did not understand the appeals process and considered that I needed a lawyer to assist me to understand it. I was not in a position to represent myself in the appeal. I considered that I had no other option.
I was never advised that the Discontinuance Notices meant that I was precluded from pursuing an Appeal in the future, and if I was told that, I would not have filed same. I thought it was akin to putting an Appeal on hold, and then being able to bring it back on in the future. (emphasis added)
[6] Appellant's affidavit, par 3.99 - 3.101.
The appellant goes on to describe his attempts to obtain advice in relation to an appeal from two other lawyers in August and November 2019, both of whom gave provisional advice that there was no merit in an appeal.[7] He deposes that, in July 2020, his financial position changed when his current partner obtained employment which enabled him to engage his current solicitors.[8] The appellant says that, between August 2020 and March 2021, when he was able to 'access the necessary resources from within Acacia Prison', he gave instructions to his current solicitors to proof character witnesses who were known to him.[9] He deposes that:[10]
[I]n or about late March 2021, after significant time and resources have been spent by myself, my family and my solicitors in exploring the issue of my available character witnesses, I have instructed Nigams Legal to file my Notice of Appeal together with this affidavit without any further delay.
[7] Appellant's affidavit, par 3.102 - 3.106.
[8] Appellant's affidavit, par 3.108.
[9] Appellant's affidavit, par 3.118.
[10] Appellant's affidavit, par 3.121.
Under cross-examination in this court, the effect of the appellant's evidence was that when he signed the discontinuance notices he understood that he was only stopping the hearing on 14 November 2018 and was not bringing the appeal itself to an end. He thought he was simply putting the appeal on hold to get legal advice.[11]
[11] Appeal ts 12, 13 - 14, 15, 28, 30 - 32, 44.
We do not accept the appellant's evidence that, when he filed the discontinuance notices, he understood that he was merely putting the appeal on hold and stopping the hearing on 14 November 2018. That is so for the following reasons.
First, that understanding is inconsistent with the text of the discontinuance notices which the appellant signed, which indicates that the appellant discontinues the appeal. The appellant's evidence was that he understood that to discontinue something is to stop something happening.[12] It is unlikely that a person signing a document discontinuing an appeal with that appreciation of the meaning of the word 'discontinue' would not understand that they were stopping the appeal.
[12] Appeal ts 32.
Secondly, there was no imperative for the appellant to avoid the hearing on 14 November 2018. He did not give evidence that he thought that the appeal would be determined at that time. Mazza JA had, during the previous directions hearing, indicated that he expected to see some progress in the appellant getting the appeals together. That did not preclude the appellant from asking for a further adjournment. There was no imperative to prevent the directions hearing from occurring from the appellant's perspective. If the appellant did not intend to bring his appeal to an end there was no reason for the appellant to have filed the discontinuance notice in the conviction appeal.
Thirdly, the appellant did not appear to us to be an honest or credible witness. The appellant appeared to be well aware of the significance of the issue of his understanding of the effect of a discontinuance notice and seemed to us to be tailoring his answers to advance his own interests. Further, there were answers to questions about other matters which counted against his credibility. The appellant gave confusing and inconsistent evidence as to whether he regarded the complainant's allegations about her grandfather to be false.[13] The appellant also tended to obfuscate when counsel for the respondent pointed out the inconsistency between his evidence that:[14]
(1)at trial he did not know that evidence from his family and friends about his character and reputation was admissible and potentially helpful on his defence, and he would have instructed four character witnesses to be called had he known this; and
(2)after he was convicted, he advised his trial counsel that he was unhappy with trial counsel's representation as he felt trial counsel did not follow his instructions to adduce and call evidence of his good character and reputation.
[13] Appellant's affidavit, par 3.42 - 3.48; appeal ts 20 - 22.
[14] Appellant's affidavit, par 3.70, 3.74.1; appeal ts 22 - 27.
Fourthly, the appellant's evidence is inconsistent with the contents of a letter which he wrote to Mr Percy QC dated 15 November 2018, which was received by Mr Percy's office on 10 December 2018. After reciting the history of the appeal, the appellant told Mr Percy at that time that he 'withdrew from the original appeal with the appropriate notification' as he had no way of funding a lawyer. He said that he would be happy to source his superannuation to fund a 'new appeal or new case review to the appeal board to reassess' his case.[15]
[15] Exhibit A2, pages 2 and 7.
We find that, when he filed the discontinuance notices, the appellant understood that he was bringing his appeals against conviction and sentence to an end. He did so because he had been advised that his appeals were without merit and, while he may have disagreed with that advice in relation to the conviction appeal, he was unable to obtain legal representation and did not feel that he could successfully represent himself.
However, we do accept the appellant's evidence to the effect that he did not appreciate that he could not institute a second appeal against his convictions once he had brought this appeal to an end. The appellant did not intend to accept his convictions and, shortly after filing the discontinuance notices, wrote to lawyers including Mr Percy seeking their assistance in a new appeal. That is consistent with the appellant writing the letter to Mr Percy dated 15 November 2018.
Withdrawal of discontinuance notices: general principles
It is established that this court may permit the withdrawal of a discontinuance notice that is a nullity or, where the notice is not a nullity, in the exercise of its discretionary power pursuant to s 40(1)(l) of the Criminal Appeals Act 2004 (WA) (CAA). In Shah v The Queen,[16] this court distilled the following principles from its earlier decision in Ponnambalamv The State of Western Australia:[17]
[16] Shah v The Queen [2019] WASCA 110 [22]. This distillation was also adopted by the court in YNT v The State of Western Australia [2020] WASCA 80 [31] - [34], from which the following summary is taken.
[17] Ponnambalamv The State of Western Australia [2015] WASCA 185 [17] - [32].
(1)An appeal is solely a creature of statute. Save for limited exceptions (which were inapplicable in Ponnambalam and to the present case), there is nothing in the text, context or purpose of the CAA which provides this court with power to re-open an appeal in which the merits were considered and determined and the order of the court, pursuant to that determination, has been perfected.
(2)The CAA provides for but one appeal (with leave) and an appellant is not entitled to commence multiple appeals from the same decision.
(3)Prior to the commencement of the CAA (and the [Supreme Court (Court of Appeal) Rules 2005 (WA) (Rules)]), under the former legislative regimes applicable to criminal appeals, where an appellant filed a notice of abandonment or a notice of discontinuance, an appeal was deemed or taken to be dismissed.
(4)Under the current legislative regime, r 59 of the Rules permits an appellant to discontinue an appeal by filing and serving a form 16 (a discontinuance notice). Rule 62 of the Rules provides that, when an appeal is concluded, the registrar must issue a certificate of conclusion (form 17) which is the formal record of the Court of Appeal and forms part of the record of the Supreme Court. The term 'concluded' is defined in the Rules to mean, in a Court of Appeal matter, 'decided, dismissed or discontinued'. In contrast to the previous legislative regime, there is no express provision in the CAA or the Rules which provides that the filing of a discontinuance notice is a deemed dismissal of the appeal.
(5)Under the previous legislative regimes, this court's predecessor, the Court of Criminal Appeal, in Bridges v The Queen, following the decision of the Court of Appeal of England and Wales in R v Medway, recognised that it had the power to grant leave to withdraw a notice of abandonment if satisfied that it was a nullity, but rejected the existence of a discretion to allow a notice of abandonment to be withdrawn.
(6)A notice of abandonment was a nullity if the abandonment was not as a result of a deliberate and informed decision by the appellant.
(7)It is, at least, implicit from the reasons in Ponnambalam that the nullity doctrine which existed under the previous legislative regimes remains under the CAA and the Rules.
(8)Further, in the absence of a provision in the CAA or the Rules to the effect that a discontinued appeal is taken to have been dismissed and where:
(a)the discontinuance notice is not a nullity;
(b)there has been no determination of the appeal on the merits; and
(c)the appeal has been concluded by the appellant filing the discontinuance notice and not by court order,
this court has the discretionary power to permit the withdrawal of the discontinuance notice in an appeal by reason of s 40(1)(l) of the CAA, which allows this court to exercise any power that the Supreme Court may exercise in a civil case. In Ponnambalam, the [c]ourt noted that the Supreme Court has the power to permit a plaintiff in a civil action, at first instance, to withdraw a notice of discontinuance, there having been no determination on the merits.
(9)The exercise of the discretionary power to permit an appellant to withdraw a discontinuance notice is informed by the strong public interest in the finality of litigation. The extent and reason for any delay between the discontinuance and the application to withdraw must be taken into account. Further, the merits of the appeal will always be relevant and often determinative. If there has been a significant delay after the discontinuance, the appellant must establish that a miscarriage of justice would occur if the applicant was not permitted to withdraw the discontinuance notice.
(citations omitted)
The court in Shah also referred to the following summary of Ipp J in Bridges v The Queen:[18]
To summarise, it is the essence of a null notice of abandonment that it was executed or served by an applicant who did not thereby intend to abandon the appeal, or did not understand the nature or effect of the notice, or misunderstood the nature or effect of the appeal itself. It is only then that the mind of the applicant can be said not to go with the act of abandonment, or that the service of the notice is not the applicant's true act.
[18] Bridges v The Queen (1998) 20 WAR 59, 66, cited in Shah [25].
In Shah, the court also noted:[19]
As is illustrated by the decision of the court in Johnson v The Queen[20] (one of the cases to which Ipp J referred[21]), an appellant may misunderstand the nature or effect of a discontinuance notice for these purposes when he or she signs and files it under the misapprehension that there was a right to reinstate the appeal later.
In Bridges, Ipp J went on to explain that a notice of abandonment filed on the basis of legal advice as to the prospects of the appeal is not a nullity, even if that advice is mistaken.[22]
[19] Shah [26] - [27].
[20] Johnson v The Queen (1992) 57 A Crim R 290, 292 - 293.
[21] Bridges (64 - 65); see also R v Tabe [1983] 2 Qd R 60 referred to in Bridges (65).
[22] Bridges (66 - 67).
The appellant in Shah filed a discontinuance notice in the belief that he could continue his appeal at a later date, once he had gathered together sufficient funds to instruct lawyers to act on his behalf. It did not appear that Mr Shah filed the discontinuance notice because he had been given legal advice or believed that his appeal against conviction was unlikely to succeed. He misapprehended the effect of the discontinuance notice in that he did not appreciate that, by filing the notice, his appeal against conviction was concluded and that he could not, by filing the notice, put a hold on his appeal or file the appeal notice again, when he had the money to afford legal representation. The court held that, by reason of that misunderstanding, the discontinuance notice was a nullity and did not have the legal effect of bringing the appeal to an end.[23]
[23] Shah [28] - [31].
Similarly, the appellant in YNT was given leave to withdraw discontinuance notices on the basis that they were nullities, in circumstances where he instructed his solicitors to file the discontinuance notices intending to progress the appeals on his own and without appreciating that filing the notices would prevent him from doing so.
Was the discontinuance notice a nullity?
Counsel for the respondent submitted that there is an important distinction to be drawn between:[24]
(1)a belief that the filing of a discontinuance notice suspends an appeal but does not bring the appeal to an end; and
(2)an understanding that a discontinuance notice brings an appeal to an end combined with a mistaken belief that there is a right to later institute a new appeal.
[24] Appeal ts 72, 73 - 74.
In the former case, counsel accepts that the discontinuance notice is a nullity as the mind of the person did not go with the act because he or she did not understand the legal effect of filing a discontinuance notice. In the latter case, counsel submits that the discontinuance notice is not a nullity because the person properly understood the effect of the discontinuance notice. The mind of the person went with the act, even though they may have had a mistaken view about their other rights.
We accept the above submissions. It is true that the distinction drawn may be regarded as fine. However, it flows from the juridical basis for the nullity doctrine, which is that:[25]
[T]he court is satisfied that the abandonment was not the result of a deliberate and informed decision; in other words, that the mind of the [appellant] did not go with his act of abandonment.
[25] R v Medway [1976] 1 QB 779, 798.
If this conclusion is invited on the basis of a misunderstanding of the effect of a discontinuance notice, then regard must be had to the actual legal effect of a discontinuance notice. That legal effect is simply to conclude the appeal in which the discontinuance notice is filed. For a misunderstanding to lead to a conclusion that the discontinuance notice is a nullity, the misunderstanding must relate to that legal effect of the notice. A mistake as to rights which exist independently of the notice will not suffice.
This distinction is illustrated by comparing two cases decided by the Court of Criminal Appeal under the former provisions of the Criminal Practice Rules as to notices of abandonment. In Hastie v The Queen,[26] the court accepted as proper a concession that an abandonment notice filed by a person who intended to abandon his appeal was not a nullity, even though the person did not appreciate that he lost his right 'to take up the appeal at a later time'. On the other hand, in Johnson,[27] a notice of abandonment filed under the misapprehension that the person could reinstate the appeal later (as opposed to begin a new appeal) was held to make the notice a nullity.
[26] Hastie v The Queen [1981] WAR 365, 366.
[27] Johnson, 292 - 293, 299.
We have found that the appellant did understand that, by filing the discontinuance notice in this appeal, he was bringing this appeal to an end. The appellant does not assert any material misunderstanding as to the nature of an appeal. The appellant properly understood the nature and effect of the discontinuance notices which he signed.
In our view, the mere fact that the appellant did not appreciate that he could not institute a second or subsequent new appeal after bringing the current appeal to an end does not mean that the discontinuance notice is a nullity. The appellant's inability to institute a second or subsequent new appeal was not the consequence or legal effect of the filing of a discontinuance notice. Rather, it is the result of the legislation providing for a single appeal against conviction.[28] The appellant lost the right to institute a further appeal against his convictions when he filed his appeal notice in the current appeal, not when he filed his discontinuance notice.
[28] NPK v The State of Western Australia [2021] WASCA 113 [12] - [13].
In our view, the discontinuance notice filed in the current appeal is not a nullity. The grant of leave to withdraw the notice therefore depends on the exercise of this court's discretion to give leave to the appellant to do so.
If the discontinuance notice is not a nullity, should leave to withdraw be given?
A significant consideration in deciding whether to grant leave to withdraw a discontinuance notice which is not a nullity is the merits of the proposed grounds of appeal.
Proposed grounds of appeal
The appellant's written submissions indicate that the appellant proposes to rely on the following grounds of appeal if leave to withdraw the discontinuance notice is granted:
1. The Appellant's trial was rendered unfair and the verdicts thereby unsafe and unsatisfactory on the grounds that his trial was incompetently conducted by his Counsel.
Particulars
(a) Counsel failed adequately to test by cross-examination the evidence in relation to each separate count in the indictment.
(b) A miscarriage of justice was occasioned by no evidence of the Appellant's good character and reputation being adduced at the trial.
2. The learned trial Judge failed to direct the jury to the extent that they must not:
(a) reason on the basis of the evidence of the uncharged acts, that the Appellant was the kind of person who was likely to have committed the charged offences; and
(b) take the evidence of the uncharged acts into account in deciding whether the State had proved beyond reasonable doubt that the Appellant had committed any of the specific offences charged in the indictment.
Proposed ground 1: incompetence of trial counsel
General principles
Proposed ground 1 concerns the failure by the appellant's trial counsel to adduce certain kinds of evidence at his trial, either in cross‑examination or examination-in-chief.
In BGH v The State of Western Australia,[29] this court reiterated the two-stage test applied in this kind of case, by reference to the High Court's decision in TKWJ v The Queen.[30] This involves the appellant showing that a material irregularity in the trial arose from trial counsel's conduct, and that there is a significant possibility that the irregularity affected the outcome. In cases such as the present, this court does not examine whether a decision taken by the accused's counsel at the trial was, in fact, taken for the purpose of obtaining a forensic advantage or avoiding a forensic disadvantage. Rather, the court is concerned only with whether counsel's decision is capable of explanation on that basis. The question is whether there could be any reasonable explanation for the decision. The test is objective in character.[31]
[29] BGH v The State of Western Australia [2020] WASCA 124 [46].
[30] TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124.
[31] This was also recently reiterated in George v The State of Western Australia [2020] WASCA 139 [108].
The decision as to what other witnesses to call, and what evidence to adduce from witnesses other than the accused, is clearly a forensic judgement within counsel's remit. As Mazza JA (McLure P and Buss JA agreeing) noted in Durani v The State of Western Australia:[32]
A fundamental feature of a criminal trial is that defence counsel has, subject to the rules and ethical considerations that apply, complete freedom to run the trial, as he or she sees fit, in the interests of the accused. It is the responsibility of defence counsel to make the many and varied forensic decisions involved in a criminal trial, such as what evidence to call or not to call. These decisions are often difficult and finely balanced. They are matters on which reasonable minds can and often will differ. Counsel, with their assumed intimate knowledge of the strengths and weaknesses of their case will almost always be in a better position than an appellate court to judge these things.
The general position is that counsel's decisions bind the client, even when those decisions are made without, or are contrary to, instructions and even when those decisions involve errors of judgment or negligence. It is not a trial judge's role to tell counsel how to conduct a trial and it is not an appellate court's function to assess, with the benefit of hindsight, how a case could have been conducted so as to achieve a more favourable outcome from the perspective of the appellant.
[32] Durani v The State of Western Australia [2012] WASCA 172 [110] - [111].
In Durani, this general principle was applied to trial counsel's decision as to whether or not to adduce evidence of the accused's good character.
As Buss P noted in WMT:[33]
A necessary consequence of defence counsel exercising a forensic judgment, within defence counsel's authority, as to whether to adduce evidence from witnesses (other than the accused) of the accused's good character is that the accused will generally be bound by defence counsel's decision. Where defence counsel's decision is challenged on appeal, it is only where the appellate court considers that no rational forensic justification is apparent for the challenged decision that the appellate court will examine whether the making of the decision constituted a miscarriage of justice. (citation omitted)
Failure to cross-examine on each separate count in the indictment.
[33] WMT [65].
The cross-examination of the complainant by the appellant's trial counsel developed the following themes:
(1)The number of people living in the family home made it unlikely that the alleged offending could have gone on undetected.[34]
(2)The sexual abuse alleged to have occurred in outdoor locations was unlikely given the exposure of those locations to view.[35]
(3)The complainant had ample opportunity to complain to persons with whom she had a close relationship both within and outside her family and did not do so.[36]
(4)The complainant was motivated to make a false complaint about the appellant by her anger at discovering the appellant's new relationship and a feeling he had rejected her.[37]
(5)The complainant had falsely accused her maternal grandfather of sexual abuse because she was angry at him for unfairly excluding her younger brothers from visits by the children.[38]
[34] Trial ts 87 - 88, 89 - 90.
[35] Trial ts 99 - 100, 104 - 106.
[36] Trial ts 88 - 89, 91, 97 - 99, 107 - 108.
[37] Trial ts 86 - 87, 95 - 97.
[38] Trial ts 93 - 94.
The appellant's trial counsel did not ask the complainant questions about the details of the particular acts of sexual abuse which she had described in her evidence-in-chief. It seems to us that was a legitimate forensic decision for counsel to have taken. There is nothing before this court to indicate that the appellant's trial counsel had ammunition for a more specific cross-examination, such as prior inconsistent statements or objective evidence which was inconsistent with the complainant's account. Counsel could reasonably have taken the view that a detailed cross-examination as to the particular events would simply give the complainant an opportunity to reiterate her evidence and reinforce the cogency with which the jury might regard it. A cross‑examination as to each of the charged and uncharged acts would necessarily have been lengthy and counsel could reasonably be concerned that such an approach would be seen by the jury as unnecessarily bullying the complainant. In our view, the more general approach which counsel took to cross-examination was a reasonable and legitimate forensic choice, which did not give rise to a miscarriage of justice.
In WMT v The State of Western Australia,[39] Pritchard JA (Buss P and Vaughan JA agreeing), explained why it may be reasonable for defence counsel in a case such as the present not to specifically cross-examine in relation to each count on the indictment. Many of the reasons suggested in WMT apply with equal force in the present case. Further, as her Honour noted:[40]
A judgment about the preferable approach to cross-examination must necessarily be made having regard to the demeanour and personality of a witness as he or she appears in examination in chief. As this court recently observed [in BJH [57]]:
It is not this court's function to merely second-guess defence counsel's forensic choices and decide that the cross-examination may have been more effective if it had been carried out differently. While other defence counsel may have conducted the cross-examination of [a complainant] differently that does not make defence counsel's cross-examination 'inadequate' nor does it constitute a miscarriage of justice.
Failure to adduce character evidence
[39] WMT v The State of Western Australia [2021] WASCA 104 [386] - [389] (Buss P agreeing at [99], Vaughan JA agreeing at [397]).
[40] WMT [390].
In the appellant's affidavit sworn 29 July 2021, he named four people he says were willing to give good character evidence at his trial, and summarises the effect of that evidence.[41] The appellant also annexed to his affidavit three character references tendered on his behalf to the sentencing hearing.[42] It is unnecessary to refer to this material in detail, other than to observe that the potential good character witnesses speak well of the appellant's personal qualities. None of the persons identified by the appellant as potential good character witnesses have sworn an affidavit in these proceedings.
[41] Appellant's affidavit, par 3.71.
[42] Appellant's affidavit, par 3.81, annexure MAVD3.
As this court noted in Sethi v The State of Western Australia:[43]
Evidence of an accused's prior good character is admissible even when, as often happens, it throws little, if any, light on whether the accused committed the crime in question. The common law recognises that evidence of good character may be relevant to the credibility of an accused, on the basis that a person of good character is thought to be more likely to be an honest witness and is thus more believable. The common law also recognises that evidence of good character may be relevant to the guilt of an accused, on the basis that a person of good character is thought to be less likely to commit an offence and therefore less likely to have committed the offence or offences before the court.
The mere fact that evidence of good character is admissible does not mean that the failure to adduce such evidence by counsel, who has a discretion as to what admissible evidence should be adduced, constitutes a material irregularity in the accused's trial. Depending on the circumstances of the particular case, counsel's failure to call evidence of an accused's good character may or may not amount to a material irregularity. (citations omitted)
[43] Sethi v The State of Western Australia [2020] WASCA 173 [70] - [71].
In our view, it was also a reasonable forensic decision for the appellant's trial counsel not to call character evidence even assuming (in the appellant's favour) that he had received instructions as to the existence of that evidence.
Subject to one exception, there was no evidence led at trial, other than the evidence of sexual offending, which suggested that the appellant was a person of generally bad character. The offending conduct described by the complainant took place in secret outside the sight of others. The offending, if it had occurred, could not have been known to any character witnesses who the appellant might call. The benefits of calling that evidence would be extremely limited.[44]
[44] See also the discussion in WMT [84] - [87].
The exception noted in the previous paragraph concerns evidence from the complainant's mother, adduced in cross-examination, that the appellant may have been violent in his discipline of the complainant's brothers. However, like the sexual offending against the complainant, this would have occurred out of sight. Indeed, the mother's evidence was that she only found out that the appellant was violent with the children after the children told her in the 18 months prior to trial.[45]
[45] Trial ts 137.
Further, adducing evidence of general good character was not without risk. It may have given the prosecutor the opportunity to adduce evidence of the appellant's prior convictions.[46] While not particularly serious and not involving sexual offending, they included offences of unlicensed driving between 2006 and 2009 and (suggestive of dishonesty) providing a false name in 1988. It does not appear from the references produced in this appeal that the referees were aware of these convictions. Further, a conviction for in effect lying to police could reasonably be regarded as damaging in a case where a foundation of the appellant's defence was the truth of his statements to police in the recorded interview.
[46] Evidence Act 1906 (WA) s 8(1)(e)(ii) and (f).
Counsel could reasonably have considered that there was no need to call character evidence in the present case, and the very limited potential benefit of doing so would be outweighed by the attendant risks.
Failure to adduce evidence of prior false complaints
Although it seems to fall outside the scope of proposed ground 1, the appellant's submissions also refer to his affidavit evidence about other alleged incidents of the complainant making false complaints.[47] The appellant's affidavit alleges that the complainant had falsely alleged that a high school boyfriend had choked her on the school oval, and that she had been sexually assaulted by another student at high school. The appellant deposes that he gave instructions to his trial counsel about these matters.[48]
[47] Written submissions, par 16.
[48] Appellant's affidavit, par 3.27 - 3.41.
We are not satisfied that the failure to cross-examine or adduce further evidence about these matters gave rise to a miscarriage of justice. The issues were clearly collateral to the issue at trial, so that the appellant would not have been able to prove the allegations if the complainant denied them.[49] Senior counsel for the appellant ultimately accepted that this was the position.[50] There is nothing to suggest that trial counsel had any basis to be certain that the complainant would admit the incidents. It was a reasonable forensic decision for counsel to decide not to ask questions which involved entering into this field of uncertainty. That was particularly so where the complainant had admitted making false allegations about her maternal grandfather. Counsel could reasonably have thought this admission to be sufficient for the purposes of the defence case. Counsel could reasonably have concluded that it was better not to potentially muddy the waters by putting further allegations which might be disputed, in circumstances where the appellant would not be permitted to rebut a denial of the allegations by the complainant.
Proposed ground 2: use of evidence of uncharged acts
[49] See BGH v The State of Western Australia [2020] WASCA 124 [97] - [99].
[50] Appeal ts 63.
Ground 2 alleges that the trial judge made an error of the kind identified in LNN v The State of Western Australia.[51] In that case a miscarriage of justice arose where the trial judge failed to warn the jury against using evidence of uncharged sexual acts against a child complainant for propensity purposes. Of importance to the decision in LNN was the fact that the prosecution had disavowed reliance on evidence of uncharged acts for propensity purposes, and it would have been unfair to allow that use in the circumstances of that case.
[51] LNN v The State of Western Australia [2021] WASCA 39.
In the present case, while the prosecutor was initially vague about the purposes for which evidence of uncharged acts was adduced, she ultimately relied on it for propensity purposes. Although the term 'relationship evidence' was employed, the prosecutor contended that the evidence showed the appellant's continued sexual interest in the complainant and his conduct towards her.[52] The appellant's trial counsel accepted that it was appropriate for the trial judge to direct the jury as to the use of the evidence of uncharged acts as evidence of the appellant's sexual interest in the complainant.[53]
[52] Trial ts 56 - 57, 62.
[53] Trial ts 57.
The evidence of the appellant's uncharged sexual acts towards the complainant was admissible under s 31A of the Evidence Act 1906 (WA). The evidence had significant probative value as it tended to establish an ongoing sexual interest by the appellant in this particular complainant and a tendency to act on that interest by offending against her when the occasion arose.[54] The risk of an unfair trial can be neutralised by appropriate directions by the trial judge,[55] so that fair-minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.[56]
[54] The Queen v Bauer (a pseudonym) [2018] HCA 40; (2018) 266 CLR 56 [49].
[55] See, for example, trial ts 254 - 256.
[56] Section 31A(2)(b) of the Evidence Act.
We do not accept the submission of senior counsel for the appellant that a formal application for the admission of the evidence under s 31A was required before the evidence could be used for propensity purposes. In Hall v The State of Western Australia,[57] a majority of this court rejected the argument that a grant of leave was a necessary precondition to the admissibility of evidence pursuant to s 31A of the Evidence Act.
[57] Hall v The State of Western Australia [2013] WASCA 165; (2013) 232 A Crim R 107 [1], [97] - [103].
In any event, in the present case the appellant did not object to the relevant evidence, which was plainly admissible for propensity purposes under s 31A. Even if a formal application under s 31A were required, there would be no wrong decision on a question of law or miscarriage of justice arising from the admission of the evidence for propensity purposes without an express ruling as to whether the requirements of s 31A were met.[58]
[58] See Hall [27] - [30].
In Hall,[59] Mazza JA reiterated the endorsement of the practice of applying for leave to adduce evidence under s 31A, preferably before trial, to ensure that any issue is dealt with in a timely and considered way without interruption to the smooth running of the trial. While not required as a condition of admissibility, the adoption of that practice avoids the risk of unfairness arising from a failure by defence counsel to appreciate that the evidence is being tendered for that purpose. A misapprehension as to the purpose of admission might, depending on the circumstances, give rise to an unfair trial and therefore a miscarriage of justice. Those circumstances might include the extent to which the use of evidence for propensity purposes was anticipated in the prosecutor's opening address, or pre-trial communications between the prosecution and defence. However, in the present case, the appellant's trial counsel did not complain of any unfairness, and himself proposed the giving of a propensity direction. There is no proper basis for concluding that the use of the evidence for propensity purposes was unfair in the circumstances of the present case.
[59] Hall [103].
The trial judge's direction to the jury in the present case clearly left open propensity reasoning, where his Honour observed:[60]
The State led the evidence of the other alleged acts of inappropriate conduct by [the appellant] towards [the complainant] as it places the alleged 16 offences the subject matter of the indictment in their proper context and so you do not decide the case in a vacuum.
This evidence the State says shows the alleged offences the subject matter of the indictment were not isolated incidents but part of a pattern of behaviour by [the appellant] towards [the complainant].
The State submits the evidence of the other alleged acts of inappropriate conduct by [the appellant] towards [the complainant] shows the true nature of the relationship between them. The State submits this evidence shows that [the appellant] had a sexual interest in [the complainant], and he would give physical expression to that sexual interest in a particular way.
…
If you do find the other alleged acts of inappropriate conduct by [the appellant] towards [the complainant] happened and you are satisfied beyond reasonable doubt that [the appellant] had a sexual interest in [the complainant], you can consider that evidence along with all the other evidence to decide whether the State has proved the 16 charges beyond reasonable doubt.
[60] Trial ts 253 - 254.
The evidence of uncharged acts was admissible for this purpose, and there was no unfairness involved in leaving the evidence to the jury on that basis.
Conclusion as to discretion
In this case, where the discontinuance notice is not a nullity, we would not exercise the court's discretion to grant the appellant leave to withdraw the notice. For the reasons explained above, there is no merit to the proposed grounds of appeal. Further, there has been a very significant delay of close to 3 years between the filing of the discontinuance notice and applying for leave to withdraw the notice. That delay has not been adequately explained. The public interest in the finality of litigation, particularly in cases of alleged child sexual abuse where the uncertainty of ongoing litigation is apt to have an adverse effect on victims, counts against granting leave to withdraw the notice of discontinuance. That is particularly so in the present case where it is common ground that, if an appeal were to succeed, the result would be a new trial rather than a substituted judgment of acquittal.
Orders
For the above reasons, we would dismiss the appellant's application in an appeal filed on 9 July 2021.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MT
Associate to the Honourable Justice Mitchell
14 OCTOBER 2021
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