KJM v The State of Western Australia
[2013] WASCA 23
KJM -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 23
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 23 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:213/2011 | 5 SEPTEMBER 2012 | |
| Coram: | MARTIN CJ McLURE P MAZZA JA | 7/02/13 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | KJM THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against conviction Indecent dealing with a child Sexual penetration of a child under 16 Whether trial judge erred in admitting evidence pursuant to s 31A of the Evidence Act 1906 (WA) Whether trial judge erred as a result of erroneous directions in summing up |
Legislation: | Criminal Procedure Act 2004 (WA), s 85(2)(c), s 96 (3)(d)(i) Evidence Act 1906 (WA), s 31A, s 80 Legal Profession Conduct Rules 2010 (WA), r 36(1)(a) |
Case References: | The State of Western Australia v KJM [2010] WADC 140 The State of Western Australia v KJM [2010] WADC 95 The State of Western Australia v KM [2009] WADC 163 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : KJM -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 23 CORAM : MARTIN CJ
- McLURE P
MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : McCANN DCJ
File No : BRO 62 of 2009
Catchwords:
Criminal law - Appeal against conviction - Indecent dealing with a child - Sexual penetration of a child under 16 - Whether trial judge erred in admitting evidence pursuant to s 31A of the Evidence Act 1906 (WA) - Whether trial judge erred as a result of erroneous directions in summing up
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Legislation:
Criminal Procedure Act 2004 (WA), s 85(2)(c), s 96 (3)(d)(i)
Evidence Act 1906 (WA), s 31A, s 80
Legal Profession Conduct Rules 2010 (WA), r 36(1)(a)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr A Boe & Mr D D Brunello
Respondent : Mr J C Whalley
Solicitors:
Appellant : Aboriginal Legal Service (WA)
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
The State of Western Australia v KJM [2010] WADC 140
The State of Western Australia v KJM [2010] WADC 95
The State of Western Australia v KM [2009] WADC 163
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1 MARTIN CJ: This appeal should be dismissed for the reasons given by Mazza JA with which I agree.
2 McLURE P: I agree with Mazza JA.
3 MAZZA JA: The appellant seeks an extension of time to appeal and, if granted, to appeal against his convictions on three sex offences committed against a child aged between 13 and 16 years.
4 The notice of appeal was filed nine days of out time. The reason for the delay has been explained and I would grant an extension of time.
5 The appellant was charged as follows:
(1) On an unknown date between 23 March 2007 and 1 June 2007 ... [KJM] indecently dealt with [RDB], a child of or over the age of 13 years and under the age of 16 years, by touching her breast.
(2) On the same date and the same place as count (1) [KJM] sexually penetrated [RDB], a child of or over the age of 13 years and under the age of 16 years, by penetrating her vagina with his penis.
(3) On another unknown date between 23 March 2007 and 1 December 2007 ... [KJM] indecently dealt with [RDB], a child of or over the age of 13 years and under the age of 16 years, by putting his leg over her body.
6 On 22 September 2011, after a trial before McCann DCJ and a jury, he was convicted as charged. On 22 November 2011 he was sentenced to a total effective sentence of 3 years' imprisonment.
7 The appellant raises two issues for the determination of this court. The first issue raised, it was said, by grounds 1 and 2 concerns the form of the evidence which was admitted at trial pursuant to s 31A of the Evidence Act 1906 (WA). The second issue raised by ground 3 concerns alleged misstatements made by the learned trial judge in the course of his summing up as to the nature and extent of the s 31A evidence.
Background
8 The evidence at trial was short, lasting less than one day. The State case comprised the complainant's testimony and the evidence of Detective Sergeant Alvey. It was through Detective Sergeant Alvey that the s 31A evidence, was adduced.
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9 The appellant did not give evidence or adduce any evidence in his defence.
10 The complainant's testimony was as follows.
11 In 2007, the appellant and her mother were living in a town in Western Australia with the complainant, her younger sister and her brothers.
12 The complainant testified about two incidents which occurred that year at a time when she was 15 years of age. She said that the first incident occurred at night in the bedroom she shared with her younger sister. The complainant said that at the time her sister was asleep and the room was dark. She testified that someone entered the room. This person, a male, covered her mouth with his hand then laid on top of her and said 'don't tell anyone'. The complainant recognised the voice as the appellant's. According to the complainant, the appellant touched and then rubbed her breasts underneath her shirt (count 1). He then pulled her shorts off, removed his own shorts and inserted his penis into her vagina and engaged in sexual intercourse with her (count 2). The complainant said that this was painful and that she asked the appellant to stop but he refused. Eventually, the appellant withdrew his penis and left the room. As he did so, he said to the complainant 'if you say anything, I'll tell my sisters to bash you' (blue/green AB 8). After the appellant left the room, the complainant had a shower and noticed blood coming from her vagina (blue/green AB 9).
13 The second incident was said to have occurred some months after the first, in or about October 2007, when the complainant's mother was away in hospital. The complainant testified that the appellant entered her darkened bedroom in the middle of the night. On this occasion, the complainant's sister was not sleeping in the room. The complainant said that the appellant tried to climb on top of her by putting one leg over her (count 3). The complainant testified that she told him 'if he doesn't get off, I'm going to call the cops and I will tell my mum'. She said that the appellant made a threat in similar terms to the one he made in the first incident and then got off her (blue/green AB 10).
14 The complainant said that on each occasion, because the room was dark, she was unable to visually identify the appellant. However, she said that she was able to identify him by his voice and his weight (blue/green AB 18).
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The s 31A evidence
15 The appellant stood trial in January 2009 in the District Court on an indictment alleging seven offences of a sexual nature committed in 2007, upon three young girls. In respect of complainant A he was charged with sexually penetrating her when she was under the age of 16 years on two occasions by acts of cunnilingus (counts 1 and 2). In respect of complainant B he was charged with three counts of indecently dealing with a child under the age of 13 years, on one occasion by placing her hand on his penis, moving her hand towards his genitals and attempting to remove her clothing. He was charged with two other offences in respect of complainant C (counts 6 and 7).
16 In relation to count 1 the appellant was acquitted of the offence of sexual penetration but convicted of the alternative offence of indecently dealing with a child under the age of 16 years. He was convicted as charged with respect to counts 2 - 5. I will refer to these offences as the 2009 offences. He was acquitted of counts 6 and 7.
17 In respect of the charges the subject of this appeal, the State applied to lead the 2009 offences as propensity evidence. The purpose of this evidence was to demonstrate that the appellant had a sexual interest in young girls. The resolution of the State's application took a somewhat tortuous path which, over time, produced a number of decisions: The State of Western Australia v KM [2009] WADC 163; The State of Western Australia v KJM [2010] WADC 95; and The State of Western Australia v KJM [2010] WADC 140. The final chapter occurred on 15 April 2011 when Fenbury DCJ allowed the respondent to adduce at the trial the following documents pursuant to s 31A of the Evidence Act:
(1) a redacted version of the indictment (BRO 30 of 2008) containing the 2009 offences;
(2) the certificate of final outcome showing only those convictions; and
(3) the birth certificates of complainants A and B.
(the s 31A evidence)
18 In accordance with Fenbury DCJ's ruling, the State tendered at the trial before McCann DCJ a redacted indictment (exhibit 7; blue/green AB 253), the certificate of final outcome (exhibit 8; blue/green
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- AB 254), and the birth certificates of complainants A and B (exhibits 4 - 5; blue/green AB 250 - 251).
19 The versions of the redacted indictment and the certificate of final outcome which were provided to Fenbury DCJ were different, in some respects, to the versions which were ultimately tendered at the trial before McCann DCJ. The differences are not material to this appeal.
20 The redacted indictment contained five offences. It is plainly different in its form to the indictment on which the appellant was tried in 2009 in that it does not contain the charges the subject of the verdicts of not guilty and is not signed by an authorised officer as required by s 85(2)(c) of the Criminal Procedure Act 2004 (WA). Of course, the whole point of redacting the indictment was to obviate the possibility of unfair prejudice being caused to the appellant by revealing that he had been charged and acquitted with other offences including against a third child.
Resolution of the first issue
21 Grounds 1 and 2 as framed, give the appearance that what is being alleged is that Fenbury DCJ and McCann DCJ wrongly admitted the s 31A evidence because it did not comply with the requirements of s 31A of the Evidence Act. This contention was not pursued by the appellant.
22 At the hearing of the appeal the appellant's counsel, Mr Boe, said that the only point to be made in respect of these grounds was that no version of the redacted indictment was in an admissible form: appeal ts 2. This was because, as Mr Boe put it, the 'provenance' of that document had not been proved, that is, there was no proof that the exhibited indictment was the indictment upon which the appellant was arraigned and tried in 2009.
23 Mr Boe acknowledged that this technical point was not raised at trial. He said that the redacted indictment could have been admitted at trial in the event that 'secondary' evidence was led to the effect that the redacted indictment reflected the original indictment upon which the appellant had been tried but with prejudicial and irrelevant information removed from it. Counsel accepted that there was no reason to suppose that this course could not have been adopted had the appellant taken the point at trial; appeal ts 8.
24 There is no merit in the point raised by Mr Boe. The answer to it is that trial counsel did not object to the form of the redacted indictment. That decision was plainly a reasonable forensic decision for trial counsel
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- to have made. There was no doubt that the appellant had been convicted of the relevant offences in the 2009 indictment. Had the form of the indictment been the subject of objection, there is no reason to think that the State would have been unable to prove it formally. In these circumstances, it would have been a pointless exercise for trial counsel to have made the objection. Moreover, the redacted indictment was to the appellant's advantage. To have required the tender of the redacted indictment with the proposed secondary evidence ran the risk that the jury may have speculated about the other charges on the indictment.
25 Alternatively, even if the redacted indictment was inadmissible, essentially the same information was contained in the certificate of final outcome. There is no argument that this document had not been formally proved. Indeed, on its face, it was a certified copy of the District Court record; s 80 of the Evidence Act. That document was capable, by itself, of proving that the appellant had been convicted of the 2009 offences. I reject Mr Boe's submission that the admissibility of that document depended upon the admissibility of the redacted indictment.
26 For these reasons, the appellant has failed to demonstrate any miscarriage of justice as a result of the form of the redacted indictment, or any other document which formed the s 31A evidence.
Resolution of the second issue
27 Ground 3 reads:
The trial Judge erred in law and fact, and the trial miscarried, as a result of erroneous directions in summing up to the jury.
Particulars
(a) The directions misstated the nature and extent of the conduct ostensibly proven by the evidence admitted pursuant to s 31A, an error of fact; and
(b) The directions failed to remedy the inclusion of propensity evidence that had not been deemed admissible, or to direct as to its use, an error of law.
28 Mr Boe relied on his written submissions in support of this ground. Those submissions allege, in effect, that his Honour's descriptions of the s 31A evidence in his summing up were misleading and distorted the nature and effect of the evidence such as to give rise to a miscarriage of justice.
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29 The appellant complained of the following statements made by his Honour in the summing up:
(1) 'The first piece of circumstantial evidence the state says is supportive is the fact that [KJM] sexually abused [A] and [B] through mid-2007 to October 2007' (ts 93).
(2) 'He has been convicted of offences against those girls and those are the facts for the purposes of this trial. Those are the facts, okay? He was sexually abusing those girls, because he has been found guilty by a court of those things' (ts 93 - 94).
(3) The state says the facts of the other offending show that there was in fact a man, namely the appellant, in the house when she was there who 'had a tendency and desire to have sex with under-aged girls, who acted on that desire and tendency when he had the opportunity to do so' (ts 94).
(4) 'The state is saying you're entitled to know that there was actually a man in the house at the time who had sex with other young girls' (ts 94).
(5) 'The evidence of the sexual offending against … [A] and [B] ... shows that [the appellant] was offending against other young girls who he had access to at the same general period through 2007 and he has a sexual interest in young girls' (ts 95).
(6) 'The state says this increases the likelihood of the offender being the accused rather than some stranger, because the State says it will be a bit of a coincidence if [the appellant] was abusing two of the girls and there was some stranger coming into the house and assaulting [RDB]' (ts 95).
(7) 'I should also point out to the extent that the State relies on this issue of [the appellant's] tendency to have sex with young girls, there were also differences between the allegations on those counts and the allegations that we are dealing with' (ts 96).
(8) The [allegations made by A] involved, amongst other things 'cunnilingus' (ts 97).
(9) 'There is no suggestion that [cunnilingus] occurred in this case and regarding [B], the allegations seemed to have involved some kind of masturbatory activitiesand some sort of attempt at mutual
- undressing and something along those lines, so there are dissimilarities there as well and you need to take all these kind of dissimilarities into account and not jump to conclusions about them' (ts 97).
- (10) 'The state says it tends to increase the likelihood that [RDB] was sexually abused', that her evidence is reliable, that there was an abuser in the house and it also, the State says, helps on the issue of identification (ts 97).
30 Experienced trial counsel made no objection to the statements made by his Honour.
31 The appellant submitted that the limits of the propensity evidence deemed admissible was that the appellant was convicted of sexually penetrating A by cunnilingus once and on a different single date he was convicted of three charges of indecent dealing against B.
32 The appellant submitted that the language used by his Honour suggested an ongoing course of opportunistic conduct amounting to 'sex' and 'abuse' that arose out of a 'desire to have sex with under-aged girls' and that he 'acted when he had the opportunity to do so'. The appellant submitted that the persistent use of the word 'sex' implied penile penetration which did not represent any aspect of the admitted s 31A evidence.
33 The appellant further complained that the language adopted by the learned trial judge exaggerated the appellant's conduct outside that proven on the evidence. For example, when the trial judge stated that 'the allegations by [A] involved, amongst other things, cunnilingus', his Honour was explicitly referring to allegations in excess of cunnilingus, when the admissible evidence at trial was of a single allegation of cunnilingus.
34 Nearly all the statements now criticised by the appellant were made during his Honour's directions to the jury as to the permissible use of the s 31A evidence. The precise conduct that comprised that evidence was simple, clear and undisputed. The use of expressions, describing this conduct as sexual abuse of A and B would have been understood by the jury as being general and non specific references to the s 31A evidence. The appellant's conduct towards each complainant can accurately be characterised as sexual abuse. The use of that description or words similar to it was not inapt.
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35 I do not accept the submission that his Honour's use of expressions which included the word 'sex' implied that penile penetration was part of the s 31A evidence. For the most part, his Honour's use of the word 'sex' was in the context of describing the State's submission that the appellant had a desire or tendency to engage in sexual activity with young girls. The 2009 offences were admissible for that purpose. His Honour's expressions in this context were appropriate.
36 The statement that A's allegations 'involved amongst other things cunnilingus' was in substance accurate. This is because, in addition to the appellant sexually penetrating A by cunnilingus, the appellant was also convicted of indecently dealing with her.
37 There was one and perhaps two statements by his Honour which were to some extent inaccurate. His Honour's comment in respect of B, that 'the allegations seem to have involved some kind of masturbatory activities and some sort of attempt at mutual undressing and something along those lines' was beyond the evidence before the jury in the sense that his Honour used the expression 'mutual undressing'. The evidence before the jury would have enabled it to include that there was some attempt by the appellant to undress B but not vice versa.
38 It is arguable that the statement 'there was actually a man in the house at the time who had sex with other young girls' suggested that the appellant had sexually penetrated both A and B when in fact he had sexually penetrated A only. Of course it is also possible his Honour was speaking in a general and non technical way of the appellant's sexual conduct towards A and B.
39 Assuming in the appellant's favour that his Honour made both alleged errors, neither amounted to a miscarriage of justice. In order to make good such an argument, the appellant must demonstrate that it is reasonably possible that the errors may have affected the verdicts. In my opinion, the errors could not reasonably have had that effect.
40 The error concerning the use of the expression 'mutual undressing' was not of any moment given that the appellant had been convicted of an indecent dealing by attempting to remove B's clothing. Any error to the effect that his Honour had suggested the appellant had sexually penetrated B was corrected by the statement later in his summing up that there was no suggestion that cunnilingus had occurred in relation to B.
41 It is highly significant when considering whether any factual error produced a miscarriage of justice, that the appellant's trial counsel did not
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take exception to his Honour's summing up. Specifically, he did not allege that his Honour had made any factual error (or any legal error). It is the obligation of counsel to take exception to factual errors if there is any risk that they may lead to a miscarriage of justice. The fact that experienced defence counsel who was immersed in the atmosphere of the trial did not apparently think that anything said by the learned trial judge gave rise to any perceptible risk of a miscarriage of justice, although not decisive of the issue, runs contrary to the assertion that there was a miscarriage of justice.
42 In my opinion any errors, such as they were, were minor in nature and highly unlikely to have affected the verdicts. The appellant has failed to demonstrate any miscarriage of justice. There is no merit in ground 3.
Conclusion
43 None of the grounds of appeal have been made out. The appeal must be dismissed.
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