LBC v The State of Western Australia
[2011] WASCA 201
•29 SEPTEMBER 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: LBC -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 201
CORAM: MARTIN CJ
McLURE P
HALL J
HEARD: 15 JUNE 2011
DELIVERED : 29 SEPTEMBER 2011
FILE NO/S: CACR 135 of 2010
BETWEEN: LBC
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :STAVRIANOU DCJ
File No :IND ESP 2 of 2010
Catchwords:
Criminal law and procedure - Appeal - Admissibility of propensity evidence - No objection to admission of disputed evidence at trial - Relevance of relationship evidence - Whether trial judge failed to adequately direct jury - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA), s 30(3)(b), s 30(3)(c)
Evidence Act 1906 (WA), s 8(1)(e), s 19K, s 31A, s 36BC
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr D Grace QC
Respondent: Mr B Fiannaca SC
Solicitors:
Appellant: Timpano Legal
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Beverland v The State of Western Australia [2009] WASCA 2
Birks v The State of Western Australia [2007] WASCA 29
Carney v The State of Western Australia [2010] WASCA 90
Ferris v The State of Western Australia [2009] WASCA 54
Harriman v The Queen [1989] HCA 50; (1989) 167 CLR 590
Matthews v The Queen [1973] WAR 110
Matusevich v The Queen [1977] HCA 30; (1977) 137 CLR 633
McKinnon v The State of Western Australia [2010] WASCA 51
MJS v The State of Western Australia [2011] WASCA 112
Noto v The State of Western Australia [2006] WASCA 278; (2006) 168 A Crim R 457
Oblak v The State of Western Australia [2007] WASCA 176
R v Soma [2003] HCA 13
Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573
Suresh v The Queen [1998] HCA 23; (1998) 72 ALJR 769
MARTIN CJ:
Summary
The appellant was convicted after a trial before a District Court judge and jury of 19 counts of indecent dealing and six counts of sexual penetration of his de facto child. The offences were allegedly committed between 1995 and 2004, in respect of the same child who was then between the ages of 8 and 17. The majority of offences were allegedly committed whilst the complainant was under 16 years of age. The child (the complainant) was the daughter of a woman with whom the appellant had maintained a de facto marital relationship.
There are two grounds of appeal. The first asserts that there was a miscarriage of justice as a result of the wrongful admission of certain evidence which, generally speaking, related to the relationship between the appellant and the complainant. The second ground asserts that the trial judge erred by failing to adequately direct the jury as to the use that could be made of the evidence which it is said was wrongfully admitted. For the reasons which follow, the grounds of appeal are without substance, and should be dismissed.
The issues at trial
In 1995, the appellant commenced a de facto marital relationship with a woman who had two daughters. The complainant, who was one of those daughters, was then 8 years old. The appellant lived with the complainant, her sister and mother in a town in the north‑west, until the family moved to a town in the south-west in 1998. The appellant and the complainant's mother had two children together, one born in 1997 and another born in 1998. In 2001 (according to the complainant's mother (ts 219)), or 2002 (according to the complainant (ts 119)), the complainant's mother terminated her relationship with the appellant and returned to the north-west town. However, the complainant remained living with the appellant in the south-west town until she moved to Perth to attend university at the age of 18.
The prosecution case was to the effect that the appellant engaged in a sustained course of sexual misconduct with the complainant commencing shortly after he started living with the complainant's mother, and continuing until the complainant left the south-west town to live in Perth at the age of 18. The prosecution also led evidence of a further sexual encounter between the complainant and the appellant at a hotel in Perth after the complainant had turned 18. That incident was not the subject of any charge. The sexual activity the subject of the charges was said to have taken a variety of forms, including indecent touching, masturbation, digital penetration of the vagina, and penile penetration of the mouth and anus. The prosecution alleged that upon some of the occasions of sexual misconduct, the complainant was shown magazines containing explicit sexual materials by the appellant.
The prosecution case relied largely upon the testimony of the complainant. In addition, the prosecution relied upon admissions said to have been made by the appellant in a conversation with his sister, and in a telephone conversation with the complainant which was recorded by police, and which took place at their suggestion. Evidence was also led from the complainant's mother in relation to certain events which had taken place during the time she was living with the appellant, and also from the complainant's younger sister in relation to her dealings with the appellant. Evidence was also led of a search of the appellant's residence by police, during which magazines containing sexually explicit material were found.
The appellant gave evidence in his own defence. He emphatically denied all the allegations made against him. He also denied making any admission to his sister, and gave an explanation for the statements he made during the course of the recorded telephone conversation to the effect that he was not then referring to any improper or sexual relationship between himself and the complainant.
The appellant was represented by competent and experienced counsel. The complainant was cross‑examined at length in the course of a sustained attack upon her credibility. On behalf of the appellant it was put to the jury that they should not be satisfied beyond reasonable doubt that the complainant was telling the truth given that:
(a)despite the complainant's allegations of a sustained course of sexual misconduct over many years, she made no complaint whatever to anybody until many years later;
(b)the complainant chose to remain living with the appellant when he and her mother separated;
(c)the complainant maintained regular contact with the appellant after moving to Perth; and
(d)the complainant never endeavoured to avoid the appellant.
Reliance was also placed upon a number of aspects of the complainant's testimony which was said to be either incredible or inconsistent with established facts, and which cast doubt upon her general credibility.
Accordingly, the case turned critically upon the question of whether the jury was satisfied beyond reasonable doubt that the evidence given by the complainant of the various acts of sexual misconduct allegedly perpetrated by the appellant should be accepted.
Ground 1: inadmissible evidence
Ground 1 asserts that there was a miscarriage of justice as a consequence of the reception of inadmissible evidence falling into two categories:
(a)evidence which was irrelevant but prejudicial to the appellant; and
(b)evidence of propensity which was admitted without leave pursuant to s 31A of the Evidence Act 1906 (WA) (the Act) and which was in any event inadmissible under that section.
At trial no objection was taken to any of the evidence which is the subject of this ground. Although the failure to object to the relevant evidence at trial will not necessarily be fatal to this ground, it is nevertheless a matter of considerable significance. In cases in which evidence is wrongfully admitted over objection, an appeal may be allowed on the basis that a wrong decision on a question of law was made by the trial judge (Criminal Appeals Act 2004 (WA) s 30(3)(b)) (CA Act). However, where no objection is taken to the impugned evidence, that course is not available, and an appeal can only be allowed on the ground that there was a miscarriage of justice (CA Act, s 30(3)(c)). No miscarriage of justice will have occurred in a case in which it can be inferred that a calculated forensic decision was taken to permit the receipt of inadmissible evidence because it might assist the defence case: see Oblak v The State of Western Australia [2007] WASCA 176 [6] ‑ [9] (Buss JA); R v Soma [2003] HCA 13; (2003) 212 CLR 299 [11], [79] (Gleeson CJ, Gummow, Kirby and Hayne JJ); Carney v The State of Western Australia [2010] WASCA 90 [40] (Pullin JA, Owen JA and Jenkins J agreeing). Further, the receipt without objection of evidence which is technically inadmissible will only give rise to a miscarriage of justice if the evidence can be seen to have occasioned material prejudice to the appellant: see Oblak [64] (Miller JA, Le Miere AJA agreeing).
It follows that in cases such as this, where no objection has been taken to the receipt of the relevant evidence at trial, in order to make good a ground of appeal based upon the receipt of that evidence it will be necessary for the appellant to establish that:
(a)the evidence was inadmissible; and
(b)it is not open to infer that trial counsel failed to object to the evidence in the furtherance of a forensic strategy; and
(c)the wrongful receipt of the evidence caused material prejudice to the appellant.
See for example: Birks v The State of Western Australia [2007] WASCA 29; (2007) 33 WAR 291 [44]‑ [60] (Buss JA, Steytler P and Pullin JA agreeing).
The evidence said to be irrelevant
The appellant asserts that the following aspects of the evidence were irrelevant and should not have been admitted. Namely, evidence:
(a)that the complainant tried to hang herself;
(b)of changes in the complainant's behaviour after the appellant moved into her home;
(c)that the complainant did not remain in contact with the family after she moved to Perth; and
(d)given by the complainant's mother in respect of interaction between the complainant and appellant.
During her evidence, the complainant related a number of incidents of sexual misconduct that she asserted took place while the appellant was living with her and her mother and sister in the north‑west town. In that context, she stated that her time in the north‑west town was quite a confusing time for her, and that when she was 11 she had attempted to commit suicide by placing a rope over a tree in the backyard of the house in which they were living. However, after she placed the rope around her neck, it broke.
Counsel for the appellant cross‑examined the complainant at length on this topic. It was the first issue addressed in cross‑examination and involved a sustained attack upon the credibility of the complainant, through the tender of a number of photographs which were said to reveal that there was no tree in the backyard of the house occupied by the complainant in the north‑west town.
The prosecutor made a brief reference to this evidence in the course of her closing address, although no particular point was drawn from it. Counsel for the appellant however made much of the evidence on this topic in the course of her closing address, and in particular relied upon it to support the submission that the jury should not regard the complainant as a credible witness. Further, after the trial judge referred to the evidence given by the complainant on this topic during his direction to the jury, counsel for the appellant sought a redirection on the issue, to which the trial judge acceded.
The first question that must be addressed is whether this evidence was admissible. In this regard it is significant that one of the arguments advanced on behalf of the appellant at trial was to the effect that the jury should not accept the complainant's evidence because there was no evidence that she had reacted adversely to the sustained course of sexual abuse which she related, and that her behaviour in the family context was entirely normal, as was her relationship with the appellant. In that context, evidence of a failed suicide attempt was plainly relevant and admissible as evidence going to the complainant's state of mind at the time of the alleged offending. In a case like this, where the complainant did not bring her complaint of sexual abuse until many years after the events in question, and the defence rely upon that delay as a matter going to the credibility of the complainant's evidence, it is necessary for the jury to assess and evaluate the complainant's circumstances at the time of the alleged misconduct, including her state of mind. This evidence was plainly relevant to that issue.
Further and in any event, it is clear that counsel for the appellant did not object to this evidence being led because it was conceived to confer a forensic advantage upon the appellant. The evidence was disclosed in the complainant's deposition contained within the prosecution brief and was obviously anticipated by counsel for the appellant, who was armed with the photographs necessary to pursue cross‑examination as to credit on the topic. Further, given the effectiveness of that cross‑examination, it could not be said that the evidence materially prejudiced the appellant. Accordingly, even if, contrary to my view, the evidence was not admissible, it could not be concluded that its reception amounted to a miscarriage of justice.
The next item of evidence to which the appellant refers is the evidence given by the complainant's mother to the effect that within a week of the appellant moving into the house in which they were living in the north‑west town, the complainant had become withdrawn and not her usual bubbly, happy self. Given the line taken in the defence mounted on behalf of the appellant, this evidence was plainly relevant and admissible, as it went to the question of whether the complainant had reacted to the sexual abuse which she alleged she had suffered. Further, it can reasonably be inferred that counsel on behalf of the appellant did not object to this evidence because the complainant and other members of the complainant's family were cross‑examined at some length on the general subject of the milieu in the family environment. Any objection to this evidence would have been inconsistent with that line of cross‑examination. Further and in any event, the evidence could not be said to have materially prejudiced the appellant, because the jury would no doubt have been aware that there might be many explanations for the complainant becoming withdrawn after her mother had commenced a relationship with the appellant. For these reasons, I conclude that this evidence was admissible, but that in any event its reception did not occasion any miscarriage of justice.
The ground of appeal misstates the evidence given by the complainant with respect to the maintenance of contact with the appellant and other members of the family after she moved to Perth. In fact, her evidence‑in‑chief was to the effect that she maintained contact with the appellant and other members of the family for several years after moving to Perth, and that it was not until about her 21st birthday that she ceased all contact with the family. The complainant was cross‑examined on this issue and photographs were put to her and tendered, to show her continuing association with the appellant after she had moved to Perth.
This evidence was plainly relevant to the jury's assessment of the relationship between the complainant and the appellant, and in particular, to the issue of the delay in the making of the complaint. It is clear that counsel on behalf of the appellant did not object to that evidence because of the forensic strategy which was being adopted, and in particular, the line that was developed through cross‑examination of the complainant. The evidence established that the complainant remained in regular contact with the appellant for several years after she had every opportunity to discontinue that contact. That evidence could not be said to have caused the appellant material prejudice. That evidence having been adduced, it was entirely appropriate to adduce evidence as to the point in time at which contact between the complainant and the appellant ceased.
Accordingly, for these reasons, this evidence was plainly admissible but, in any event, its reception did not give rise to any miscarriage of justice.
The last category of evidence that is asserted to be irrelevant is evidence given by the complainant's mother which, generally speaking, went to her observation of the relationship between the complainant and the appellant. That evidence included her observation that the appellant would often insist that the complainant accompany him on trips to the shops and other places, without any other child being present. When the complainant's mother proffered the observation that she found that unusual, the trial judge immediately intervened and pointed out, in the presence of the jury, that her view of the behaviour was not relevant.
The complainant's mother also gave evidence to the effect that the appellant required the complainant to do a lot of things on her own, and isolated from the other children. She also gave evidence of an occasion when the complainant was approximately 13 years of age, when the complainant had walked into the lounge room and the appellant:
… slapped her on her bum with his hand and mentioned that her butt had gone - you know, had gotten quite big (ts 219).
The complainant's mother also gave evidence to the effect that when she had left the appellant in order to return to the town in the north‑west, the appellant had prevented the complainant from accompanying her and that she could see the complainant was scared about staying with the appellant instead of moving to the north‑west town.
This evidence all went to the issue of the relationship between the complainant and the appellant. In the context of the factual issues which the jury was required to determine, the evidence was plainly relevant and admissible - see Harriman v The Queen [1989] HCA 50; (1989) 167 CLR 590, 630 (McHugh J). For example, the evidence of the appellant slapping the complainant on her bottom and making an inappropriate remark about its size was evidence from which a jury might draw an inference as to the nature of their relationship. To take another example, the evidence of the circumstances in which the complainant remained living with the appellant in the south-west town after her mother returned to the north-west town was plainly relevant to the issues the jury were required to assess, especially given the position adopted by the defence, which was to the effect that the complainant remaining in the south‑west town with the appellant and without her mother would have been extremely improbable if she had been the victim of sustained sexual abuse, as she alleged.
Further and in any event, it can be inferred that no objection was taken to the admission of this evidence as part of the forensic strategy adopted on behalf of the appellant, which necessitated detailed examination of the family milieu, and of the relationship between the complainant and the appellant. Nor could it be said that any of the evidence was particularly prejudicial to the appellant when viewed in the context of the much more significant evidence given by the complainant of particular incidents of sexual abuse.
For these reasons, the evidence given by the complainant's mother was admissible, but in any event its reception did not give to any miscarriage of justice.
For these reasons, that part of ground 1 which relies upon the reception of evidence that is said to have been irrelevant should be dismissed.
Propensity evidence
The second component of ground 1 concerns evidence which is said to be evidence of propensity admitted without leave having been given pursuant to s 31A of the Act, and which was in any event inadmissible under that section. The evidence in question is the evidence of the occasion upon which the appellant allegedly slapped the complainant on her bottom in the presence of her mother and to which I have already referred (above at [23]).
The parties joined issue on the question of whether evidence could only be admitted under s 31A of the Act with the express grant of leave by the trial judge. The proposition that an express grant of leave is necessary is supported by the requirement of the section for a balancing process to be undertaken, evaluating the probative value of the evidence against the risk of an unfair trial (see s 31A(2)). The proposition that the express grant of leave is not required is supported by a consideration of other provisions in the Act which expressly require the prior grant of leave before certain types of evidence become admissible - see for example, s 36BC, and s 19K (read with s 19C of the Act). However, it is unnecessary to resolve this issue in this case because the admissibility of the evidence in question does not depend upon the application of s 31A of the Act. Rather, the evidence is plainly admissible at common law, for the reasons which I will give. However, before leaving the topic of whether s 31A requires the prior grant of leave, it is appropriate to endorse the current practice of generally applying for such leave in cases in which the section is relied upon to justify the admissibility of evidence. Whether or not, as a matter of proper construction of the section, the prior grant of leave is required, the practice of applying for such leave, preferably before trial, is wholly commendable and should be encouraged, as it enables the parties and the court to specifically address the issues which the section requires to be addressed.
The evidence of the occasion upon which the appellant slapped the complainant on the bottom is not properly characterised as evidence of propensity, in the same way as the evidence given in this case of acts of sexual interaction between the complainant and the appellant which were not the subject of any charge was led as evidence of propensity. Rather, the evidence of the slapping incident is properly characterised as relationship evidence, admissible at common law pursuant to the principle to which I have already referred (see Harriman above). While there will, of course, be many circumstances in which it is appropriate for a stepfather to make physical contact with a stepchild, there will be other circumstances in which an inference might properly be drawn from the nature of the contact and the general circumstances, including the age of the child (in this case 13 years of age) and, in this case, the making of a remark which could be viewed as inappropriate. Whether any inference should be drawn from the occasion upon which the appellant slapped the complainant's bottom and, if so, what inference, was a matter for the jury. However, the evidence was relevant to the nature of the relationship between the complainant and the appellant, and admissible on that basis without reliance upon s 31A of the Act (which augments but does not constrain admissibility at common law - see my reasons in Ferris v The State of Western Australia [2009] WASCA 54 [63]; see also Beverland v The State of Western Australia [2009] WASCA 2) [1] (McLure JA), [30] ‑ 39] (Miller JA).
Further and in any event, it can be inferred that counsel for the appellant made no objection to this evidence at trial because of the forensic strategy which was being pursued on behalf of the appellant, which required detailed analysis and assessment of the relationship between the complainant and the appellant. Nor could this evidence be regarded as particularly prejudicial to the appellant, when viewed in the context of the much more significant evidence given by the complainant relating to repeated acts of sexual abuse.
For these reasons, all the evidence identified in the particulars to ground 1 of the appeal was admissible and in any event, its reception did not occasion any miscarriage of justice. Accordingly, ground 1 must be dismissed.
Ground 2
Ground 2 asserts that the trial judge erred in law by failing to adequately direct the jury as to the use to be made of the evidence which was said to be inadmissible under ground 1. Generally speaking, that evidence went to the relationship between the complainant and the appellant. Evidence of that character is ordinarily characterised as circumstantial evidence (see Harriman, (630) (McHugh J)). However, the evidence was not led in this case in order to sustain a conclusion of fact which was an indispensible step in a process of reasoning towards a conclusion of guilt, and there was plainly no need to direct the jury that any of the evidence was led for the purpose of establishing a fact which had to be proven beyond reasonable doubt (see Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573).
It is therefore difficult to see why the trial judge needed to give any specific direction to the jury in relation to this evidence. A great deal of evidence was led on the subject of the relationship between the complainant and the appellant, and the family milieu, over and above the evidence to which objection was taken in ground 1. It would have been blindingly apparent to the jury that the evidence was led for the purpose of establishing the context in which they were to evaluate the conflicting evidence given by the complainant and the appellant, and in particular, to evaluate the lengthy delay in raising any complaint, and the continued association between the complainant and the appellant long after the complainant's mother had terminated her relationship with the appellant.
Counsel for the appellant was pressed by the court to identify precisely what direction should have been given. The answer given was to the effect that the jury should have been told that they needed to be satisfied that the events occurred or that the descriptions given in the evidence were accurate before the evidence could be used. With respect to counsel, this is tantamount to the proposition that the jury needed to be told that they could only act upon evidence which they accepted. No authority was cited to support such a proposition which is, with respect, plainly flawed. Trial judges and appellate courts are entitled to proceed upon the assumption that jurors have a modicum of common sense and intelligence. To direct a jury that they should only act upon evidence that
they accept (and, inferentially, that they should not act upon evidence that they reject), would border upon an insult to the intelligence and experience of each juror.
There is no substance in ground 2 which must be dismissed.
Conclusion
There is no substance in either ground of appeal. The appeal should be dismissed.
McLURE P: I agree with the Chief Justice that the appeal should be dismissed generally for the reasons he gives. However, I propose to make some additional comments on ground of appeal 1. As noted by the Chief Justice, there was no objection on behalf of the appellant at the trial to the admission of the evidence the subject of that ground. Thus, the appellant must establish that the admission of the evidence occasioned a miscarriage of justice. There can be no miscarriage of justice if inadmissible evidence is not objected to for rational forensic reasons: Suresh v The Queen [1998] HCA 23; (1998) 72 ALJR 769 [23]; McKinnon v The State of Western Australia [2010] WASCA 51 [9] ‑ [12].
Having regard to the prominence given in the defence case to the complainant's evidence in connection with her suicide attempt, both in the cross‑examination of the complainant and in closing, it can be inferred that the appellant's counsel saw it as advancing the defence and that she would not have objected to its admission even if the evidence was technically inadmissible. However, that and the other evidence the subject of ground 1 was both relevant and admissible.
The determination of relevance and admissibility requires detailed knowledge of the nature and scope of the prosecution and defence cases. The appellant was charged with 31 sexual offences against his de facto child over at least an 8‑year period commencing when she was aged 8. Most child sexual abuse trials are 'oath on oath' cases. Not this one. There was incontrovertible evidence of statements made by the appellant that were capable of constituting admissions. In a recorded telephone conversation between the appellant and the complainant (after the complainant had, to the appellant's knowledge, complained to police), the appellant said that what happened should not have happened and that he was sorry that it did. In response to a question as to what the appellant had told his family, he said he told them that he had a relationship with
the complainant. The appellant's sister also gave evidence of admissions he had made to her.
Not surprisingly, the appellant gave evidence. His counsel foreshadowed his defence in an opening address. She said the appellant would provide an explanation of his recorded statements which would put them in an innocent light. His explanation included his understanding that the complainant had, or may have been sexually abused by someone else before he met her mother. The appellant's counsel also said:
Apart from the fact that [the appellant] used to like receiving massages for his bad back, there was no suspicious behaviour (ts 72).
The appellant, in his evidence, admitted having a relationship with the complainant that went beyond that of parent ‑ child, but denied it was sexual (ts 335 ‑ 336).
All the evidence the subject of ground 1 is relevant to the appellant's defence which depended in part on establishing that, massages aside, there was no suspicious conduct over the period of the offending. There was uncontradicted evidence that the complainant massaged the appellant from time to time (ts 293); that the appellant had disagreements with the complainant about her weight (ts 329, 331) and the way she dressed (ts 323); and that the appellant had taken the complainant to a ball when she was 18 after which they stayed in the same hotel room (where an uncharged sexual act allegedly occurred but which he denied). The complainant's sister also gave evidence that she massaged the appellant from time to time. She spoke of an occurrence when she declined his requests to massage him in places on his body which made her feel uncomfortable (ts 240 ‑ 241).
The evidence the subject of ground 1, including the evidence of the appellant slapping the complainant's bottom and commenting on its size is, and would have been seen by the jury to be circumstantial evidence of the same character and relevance as the other evidence referred to above to which no objection was taken at trial or in the appeal. All the challenged evidence was admissible at common law, which is unaffected by s 31A of the Act: MJS v The State of Western Australia [2011] WASCA 112 [2] ‑ [3]. See also Noto v The State of Western Australia (2006) 168 A Crim R 457. As the evidence is admissible at common law, it is unnecessary to determine whether leave is a condition precedent to admissibility under s 31A of the Act.
HALL J: I agree with the Chief Justice, for the reasons he gives, that this appeal should be dismissed.
I also agree that whilst it is unnecessary to determine whether evidence can only be admitted pursuant to s 31A of the Act with leave of the trial judge, it is prudent to obtain such leave. The potential negative consequences of not doing so are obvious. There are some analogies in this regard to the operation of s 8(1)(e), as to which see Matthews v The Queen [1973] WAR 110, 113 and Matusevich v The Queen [1977] HCA 30; (1977) 137 CLR 633, 640.
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