Lefroy v The Queen - [2004] WASCA 266

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: LEFROY -v- R [2004] WASCA 266

CORAM: MURRAY J
STEYTLER J
MILLER J

HEARD: 3 AUGUST 2004

DELIVERED : 17 NOVEMBER 2004

FILE NO/S: CCA 182 of 2003

BETWEEN: ROBERT JOHN LEFROY
Applicant
AND
THE QUEEN
Respondent

ON APPEAL FROM:
For File No               :  CCA 182 of 2003
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :YEATS DCJ
Citation  :THE QUEEN v LEFROY
File No  :IND 1121b of 2002

Catchwords:

Criminal law and procedure - Sexual offences - Alleged against teacher - Inconsistency of verdicts - Direction as to complainant's credibility - Direction as to use of lies - Direction as to danger of conviction upon uncorroborated evidence - Direction as to propensity evidence - Alleged failure to put defence case

Criminal law and procedure - Sentencing - Aggregate term of 4 years imprisonment imposed on teacher for two offences of indecent dealing with young student - Whether manifestly excessive - Turns on own facts

Legislation:

Nil

Result:

Applications for leave to appeal against convictions and sentence dismissed

Category: A

Representation:

Counsel:

Applicant: Mr A Karstaedt
Respondent: Mr R E Cock QC

Solicitors:

Applicant: Max Crispe
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Buttsworth v R [2004] WASCA 69
Christophers v R (2000) 23 WAR 106
Crisafio v R (2003) 27 WAR 169
Domican v R (1992) 173 CLR 555
Edwards v R (1993) 178 CLR 193
Jones v R (1997) 191 CLR 439
Longman v R (1989) 168 CLR 79
M v R (1994) 181 CLR 487
MacKenzie v R (1996) 190 CLR 348
MFA v R (2002) 213 CLR 606
R v Markuleski (2001) 52 NSWLR 82
R v Robinson (2000) 111 A Crim R 388
R v Trainor [2003] VSCA 200
RPS v The Queen (2000) 199 CLR 260
Zoneff v R (2000) 200 CLR 234

Case(s) also cited:

BRS v R (1997) 191 CLR 275
Cook v R (2000) 22 WAR 67
Crampton v R (2000) 206 CLR 161
Crofts v R (1996) 186 CLR 427
Dhanhoa v R (2003) 199 ALR 547
Doggett v R (2001) 208 CLR 343
Gaulard v R [2000] WASCA 218
Gavin v R (1992) 6 WAR 195
Gipp v R (1998) 194 CLR 106
Honeybone v R, unreported; CCA SCt of WA; Library No 950224; 10 May 1995
KRM v R (2001) 206 CLR 221
McCreed v R (2003) 27 WAR 554
R v Beserick (1993) 30 NSWLR 510
R v Nestorov (2002) 137 A Crim R 310
R v Sabbah [2004] NSWCCA 281
R v Sampson (2002) 132 A Crim R 326
Stalker v R [2003] WASCA 132
Sullivan v R (1913) 15 WALR 23
Van Leeuwen v R (1981) 36 ALR 591

MURRAY J: In October 2003 the applicant was presented in the District Court for trial by jury upon an indictment containing six counts. They were as follows:
1.Indecently dealing with a child under the age of 14 between 1 July 1972 and 31 December 1975 by grasping the child's penis.
2.During the same period, indecently dealing with the child by rubbing his knee against the child's crotch.
3.During the same period, indecently dealing with the child by masturbating him.
4.On the same occasion as count 3, indecently dealing with the child by rubbing his penis between the child's legs.
5.On another date during the same period, inciting the child to indecently deal with the applicant by placing the child's hand on his penis.
6.On the same occasion as count 5, indecently dealing with the child by rubbing his penis between the child's legs.
On 17 October 2003 the applicant was acquitted of counts 1, 2, 5 and 6 and convicted of counts 3 and 4. He was sentenced to imprisonment for a year in respect of count 3 and to 4 years imprisonment, concurrent, in respect of count 4. He seeks leave to appeal against both conviction and sentence.

As to conviction

The evidence at trial

As I have said, the trial took place in October 2003, about 30 years after the offences were allegedly committed. The applicant was a primary school teacher until 1985. The complainant was a student in the applicant's remedial class from 1972 to 1975, hence the period of time specified in relation to each count in the indictment. The complainant could be no more specific than that.
His evidence in relation to count 1 was that he and other children, including his friend Mathew Ritchie, were together in the classroom. He was sitting on a mat when the applicant came from behind, put his arm around the complainant and took hold of his penis through his shorts. The complainant attempted to leave the classroom, but the applicant prevented him from doing so. There was a minor struggle, during which the complainant's shirt came off. All of that should have been observed by other students.
The incident which was alleged in count 2 also occurred in the classroom. The complainant had, for some reason, come to the applicant who was seated at his desk. The applicant swivelled in his chair, took hold of the complainant's arms, pulled him towards the applicant, pushed his knee into the complainant's crotch and rubbed it against his genital area. The complainant thought that Ritchie was somewhere nearby on that occasion also.
Counts 3 and 4 occurred on the occasion of a visit by the complainant to the applicant's home, a house that he shared with one Rodney Watkins, who did not give evidence at the trial. The reason for the visit was to help with some painting work being done on the house. It was the complainant's job to scrape off old paint. After some time, the applicant and Watkins took the complainant into the applicant's bedroom. The men removed their clothes and in the complainant's presence they engaged in some sexual activity, during which the applicant involved the complainant by handling the complainant's penis. This was count 3. The applicant then put the complainant's penis in his mouth. He got behind the complainant, placed his erect penis between the complainant's legs, rubbed it between the child's legs and ejaculated. This was count 4. The two men later took the complainant home. It appears that there was no other person present on the occasion in question.
But the complainant did give evidence of going to the applicant's house on numerous other occasions when the applicant would involve the complainant in sexual activity similar to that represented by counts 3 and 4 on the indictment. On some of those occasions Ritchie would be present at the house, but often not in the room where the sexual interference occurred. However, there were occasions when Ritchie did see things of a sexual nature done to the complainant and when the complainant saw such things done to Ritchie.
Ritchie, on the other hand, simply gave evidence that although he had been a classmate of the complainant, he had never seen anything of an inappropriate sexual kind done to the complainant there or at the applicant's house and the applicant had never interfered with him in a sexually inappropriate way.
There were annual school excursions to Rottnest Island. The applicant was one of the teachers who went to look after the students. The complainant said that one afternoon, while he was taking a shower in a public shower block, the applicant came in naked and got into the shower with him. His penis was erect and he took the complainant's hand, placed it on his penis and caused the complainant to masturbate him (count 5).
Then the applicant positioned himself in the shower behind the complainant, pulled the complainant towards him, put his penis between the complainant's legs and masturbated himself to ejaculation (count 6).
No other prosecution witness was called to corroborate the complainant's evidence, unsurprisingly after nearly 30 years, and it can been seen that the evidence given by Ritchie did not assist to establish the prosecution case.
The complainant gave evidence that after the events in question he and his family lived in Queensland for some time. In 1985 he returned to this State and stayed for a short time with Ritchie. The applicant's behaviour, then over 10 years previously, was mentioned and Ritchie said the applicant had not moved. He lived still in the same house with Watkins. The complainant went to the house. He spoke to the applicant and confronted him with the accusation that he had done terrible things to the complainant when he was a child. The applicant responded, "Nothing happened. Nothing happened at all. It was too long ago. No‑one would believe you." The complainant, however, insisted that it had happened and put again the accusation that the applicant had touched his penis and done terrible things to him. The applicant responded, "Well, no‑one's going to believe you anyway. It's too long ago. It's too far back in the past. No‑one is going to believe you." Watkins came out of the house and told the complainant to leave or they would call the police.
It was open to the jury to regard those statements of the applicant as being of a confessional character, but they were a response to an accusation made in the most general terms and clearly what was said could not constitute a confession of the commission of any of the offences charged in the indictment.
I have mentioned that the prosecution called Ritchie. The applicant called one Anthony Fiaschi, who was a pupil in the applicant's class, but only from about 1975, and so perhaps not during the period when the complainant was a student there. In any event, he said that the Rottnest Island trips were still continuing and he went on some with the applicant and his class, but he said they were only overnight trips and during the time that he went he never saw any of the children showering in the public facility.
The applicant gave evidence. He denied the commission of the offences charged and he denied more generally that he had ever behaved in a sexually inappropriate way towards the complainant, as had been described in the complainant's evidence. He agreed that the complainant had come to his home to help him with work about the house and on social visits. Sometimes Ritchie was there also, but on those visits no activity of a sexual kind such as that described by the complainant ever occurred and he had never been in his bedroom with the complainant. The applicant said that he had last seen Mr Watkins in 1994 and he now had no idea where he was.

Inconsistency of verdicts

The applicant argues that the acquittals on counts 1, 2, 5 and 6 render unsafe and unsatisfactory the convictions on counts 3 and 4. He argues that the only reasonable explanation for the acquittals is that the jury were not satisfied that in respect of those alleged incidents the complainant was a truthful and accurate witness. The quality of the complainant's evidence, so it is argued, was no different in respect of those matters than in respect of the incident which was counts 3 and 4 on the indictment. It is put, correctly I think, that the capacity to prove any of the offences beyond reasonable doubt depended entirely upon the complainant's veracity and reliability in recounting, truthfully and accurately, what had happened to him some 30 years previously.
This is said to be a case of the same kind as Jones v R (1997) 191 CLR 439, where the High Court quashed two convictions of sexual offences upon the ground that the jury's acquittal of the appellant of a third such offence in relation to the same complainant could only be accounted for on the basis that the jury were not satisfied beyond reasonable doubt of the truth of her evidence concerning that charge. As it was put, at 453, by Gaudron, McHugh and Gummow JJ in their joint judgment:
"It is difficult then to see how it was open to the jury to be convinced beyond a reasonable doubt of the guilt of the applicant with respect to the first and third counts. There is nothing in the complainant's evidence or the surrounding circumstances which gives any ground for supposing that her evidence was more reliable in relation to those counts than it was in relation to the second count."
However, it must be recalled that this is said to be a case of factual inconsistency, not a case of legal or technical inconsistency. It is not said that the verdicts are incapable of standing together as a matter of law. The distinction was drawn carefully in MacKenzie v R (1996) 190 CLR 348 per Gaudron, Gummow and Kirby JJ, at 366‑7. Their Honours observed that in a case of factual inconsistency the convictions would only be quashed where the appellate court found the inconsistency to be of such a character that in logic and reasonableness, as an exercise of fact‑finding by the jury, the verdicts could not stand together in the sense that they could not both be the product of the deliberations of a reasonable jury applying their minds properly to the fact‑finding process in relation to each count of the indictment. The appellate court, their Honours said, would be reluctant to so conclude because to do so involved a fundamental intrusion upon the role of the jury. It would only be proper to interfere in a case of abundant clarity. And the appellate court should always bear in mind that it was open to the jury to take a merciful view of the facts in respect of a particular count.
It would therefore only be proper for the appellate court to intervene where the different verdicts represented "an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty". Certainly there could be no intervention in a case where it was possible to conclude that the jury had properly directed their minds to the facts concerning each count in the indictment, bearing in mind the admonition of the trial judge that they must separately consider each count and decide it only upon the evidence relating to it. Consideration of those statements of principle shows the magnitude of the task which confronts an appellant who seeks to have convictions quashed on such a ground.
The necessity to focus upon the evidence capable of supporting the convictions was made clear by the High Court in MFA v R (2002) 213 CLR 606, a case which concerned s 6(1) of the Criminal Appeal Act 1912 (NSW), which provided that the Court of Criminal Appeal "shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence". Substantially the same words in the Criminal Code (WA), s 689(1) provide one test in reference to which this Court is to allow an appeal against conviction. In MFA the High Court held that the conviction in question would not be quashed simply because of perceived inconsistency between the verdicts. As had been held in Jones and M v R (1994) 181 CLR 487, 493‑4, the question on appeal in relation to the guilty verdicts is whether upon the whole of the evidence it was open to the jury to be satisfied of guilt beyond reasonable doubt.
MFA was a case not unlike the present. The indictment had charged the appellant with nine sexual offences against a male youth. The offences were alleged to have occurred on four separate occasions. The jury acquitted the appellant of seven counts relating to three such occasions and convicted him of two offences committed upon the one occasion. Unlike this case, the two offences of which the appellant was convicted were the only counts in respect of which the complainant's evidence was substantially supported by another witness.
In MFA at 617[34] Gleeson CJ, Hayne and Callinan JJ drew upon the discussion in MacKenzie to emphasise that the question of the unreasonableness of the jury's verdicts must be considered in the context of the system of criminal trial by jury. The jury will have been directed to consider each count separately, having regard only to the evidence applicable to it. They will have been directed that they may accept or reject a witness's testimony in whole or in part. They will have been directed that, at least initially, their verdict, whether it be guilty or not guilty, must be unanimous. So if the verdict is guilty, each juror must be persuaded of guilt beyond reasonable doubt.
Bearing all that carefully in mind, a jury in a sexual case, without necessarily rejecting the complainant's evidence, might require some additional supporting evidence before reaching a conclusion of guilt beyond reasonable doubt. And of course the complainant's evidence may be different in respect of different counts or given against a different background of surrounding factual circumstances which may bear upon the jury's preparedness to rely upon the evidence of the witness. Finally, of course, there is nothing necessarily illogical or unreasonable in a jury taking a more expansive or merciful approach towards the existence of a reasonable doubt in relation to some counts of an indictment charging multiple offences. The Court held, therefore, that Jones did not require the view that in a case of alleged factual inconsistency between verdicts, the question of the unreasonableness of the guilty verdicts was necessarily to be approached upon the basis that the acquittals reflected the conclusion that the complainant was untruthful or unreliable, a person of damaged credibility.
In my opinion, those cautionary observations are apposite in this case because it seems to me that this may be a case where the jury were unprepared to convict in relation to counts where there was any suggestion of inconsistency between the evidence of the complainant and other witnesses, apart from the applicant, or in cases where the circumstances were such that the jury might consider that it should have been possible for the prosecution to adduce supporting evidence and that there had been a failure to do so.
I note that counts 1 and 2 were said to have occurred in the classroom where others, including the witness Ritchie, were said to have been present, and yet Ritchie saw nothing untoward. In relation to counts 5 and 6 which the complainant said occurred on the one occasion in the shower at Rottnest, again the circumstances were such that it would have been quite possible for some person to have come into the place where the showers were. And there was the evidence of Fiaschi that he had not encountered students taking showers on such trips. Such matters may have caused the jury, while not rejecting the evidence of the complainant, to draw back from relying upon it to dispel all reasonable doubt as to the applicant's guilt.
On the other hand, in the absence of Watkins, in relation to counts 3 and 4 where it was truly oath against oath and there was no dispute that the complainant had been to the applicant's house in the circumstances about which he testified, the jury were prepared to accept the complainant's account as being both truthful and accurate and as therefore dispelling all reasonable doubt. In my opinion, this ground was not made out.

Directions as to the credibility of the complainant

At the hearing of the application for leave, the applicant was permitted to add ground 1A, which complained that the trial Judge erred in not directing the jury that any doubt they may have with respect to one or more aspects of the complainant's evidence ought to be considered when assessing the overall credibility of the complainant and, therefore, when deciding whether or not there was a reasonable doubt about the complainant's evidence in respect of all counts. No such direction was given by or sought from the trial Judge. Her Honour contented herself with directions about the assessment of credibility generally, in standard and unexceptional terms, along the lines referred to by the High Court in MFA.
In support of this argument, counsel relied upon the views expressed by the majority of the NSW Court of Criminal Appeal in R v Markuleski (2001) 52 NSWLR 82. The suggested direction originally derived from observations of Fitzgerald JA in R v Robinson (2000) 111 A Crim R 388 at 390[9]. In referring to what had been said by Fitzgerald JA, in Markuleski at 121[182] – [184] Spigelman CJ said that he was reluctant to add to the number of directions and warnings which a trial judge might be required to give, but at [186] his Honour said:
" … it is desirable that the traditional direction as to treating each count separately is supplemented in a word against word case. Some reference ought to be made to the effect upon the assessment of the credibility of a complainant if the jury finds itself unable to accept the complainant's evidence with respect to any count."

His Honour added, however, that while that might be done as a general rule, the absence of such a direction was not necessarily fatal. At 122[188] – [191] his Honour said:
"It is not necessary to specify any precise words for such a direction. That will depend on the circumstances of the case. It will often be appropriate to direct a jury that where they entertain a reasonable doubt concerning the truthfulness or reliability of a complainant's evidence in relation to one or more counts, that must be taken into account in assessing the truthfulness or reliability of the complainant's evidence generally.
On other occasions it may be appropriate for a judge to indicate to the jury, whilst making it clear that it remains a matter for the jury, that it might think that there was nothing to distinguish the evidence of the complainant on one count from his or her evidence on another count.
Or it may be appropriate to indicate that, if the jury has a reasonable doubt about the complainant's credibility in relation to one count, it might believe it difficult to see how the evidence of the complainant could be accepted in relation to other counts.
The precise terminology must remain a matter for the trial judge in all the particular circumstances of the specific case. The crucial matter is to indicate to the jury that any doubt they may form with respect to one aspect of the complainant's evidence, ought be considered by them when assessing the overall credibility of the complainant and, therefore, when deciding whether or not there was a reasonable doubt about the complainant's evidence with respect to other counts."
The same matter was discussed by Wood CJ at CL, at 135[260]‑136[265]. His Honour's views were expressed in similar terms to those of Spigelman CJ. On the other hand, Grove J, dissenting generally, expressed the view at 138[280] that it was undesirable to do more than commend to the consideration of trial judges the giving of such a direction in terms tailored to meet the circumstances of the particular case.
So far as Markuleski decided the point, it was not followed by the Court of Appeal of Victoria in R v Trainor [2003] VSCA 200. In essence, their Honours' reasoning was that to give such a direction would carry the danger that it would dilute the warning to treat the counts separately and decide them only on the evidence relating to them. Such a direction might lead a jury to acquit of all counts simply because they were not prepared to convict on one or more or, alternatively, to convict of all counts because they had decided to convict of some and thought that if the complainant was rightly regarded as a truthful and reliable witness in relation to those counts that should overcome any doubt they might have in relation to the remainder. As Buchanan JA put it succinctly at [31], "The direction given in the New South Wales cases may be thought to undermine the separate consideration direction and swing a delicate balance towards propensity reasoning." Charles and Chernov JJA agreed. Chernov J said, at [34], that, "Ordinarily, such a course is fraught with difficulties."
I am in respectful agreement with that point of view and would not be prepared to follow Markuleski on this point. It seems to me that the jury do not need help to understand that their decisions about the credibility and reliability of the complainant generally will have an overall impact upon their assessment of the extent to which, if at all, they are prepared to rely upon the evidence of the complainant in considering whether or not the evidence as a whole persuades them of the accused person's guilt beyond reasonable doubt in respect of all or any of the offences charged. I see no reason to give a direction which assumes that the jury will react adversely to a challenge to the credibility of the complainant. And rather than promoting a fair trial it seems to me that a direction of the kind envisaged by the NSW Court of Criminal Appeal may work an injustice to the complainant. On the other hand, I agree that it would be difficult to control the way in which the jury might use such a direction in a form of propensity reasoning, impermissibly, in a way which would be adverse to the accused. I would not uphold this ground of appeal.

The direction about lies

In the course of her directions to the jury, the trial Judge said:
"The Crown also suggest that when in the police interview he was asked whether [the complainant] or Mathew Ritchie ever were there at his house to help take paint off windowpanes and just help with restoration, the accused's answer on the video, "No, no, no, not with me," was a lie and that the accused told the lie in order to distance himself from the allegations.
Ladies and gentlemen, you will have to make your own mind up about whether he did tell lies but most importantly whether he did any deliberate lying to police. You will have to, in looking at that evidence, consider very carefully whether he has just been mistaken; whether he reacted in a certain way because it had been 30 years since these alleged offences; were they deliberate lies?
I do also have to warn you that even if you found that there were any deliberate lies, you must not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something, it's somehow evidence of guilt. The mere fact that the accused told a lie is not in itself evidence of guilt. A defendant may lie for many reasons; for example, to bolster a true defence or to protect himself against what he believed were unfounded allegations. So if there's some innocent explanation for his lies, you just take no notice of them.
If you do find that the accused deliberately lied to police, it is a matter you can take into account when you are assessing his credibility. Is he a man who you can believe? That's the extent to which you could use those but only if you found they were deliberate and that's a big if when you are talking about offences alleged to have occurred 30 years before."
The complaint is that that is a confusing direction which might suggest to the jury that they could somehow use the suggested lie as evidence of guilt: cfEdwards v R (1993) 178 CLR 193. If the prosecutor does not rely upon the answers given when questioned by the police or otherwise, to support the proposition that the accused person lied out of a consciousness of guilt, then it is unnecessary and undesirable that the jury be directed about the circumstances in which they might use deliberate lies told by the accused person directly as evidence of guilt: Zoneff v R (2000) 200 CLR 234. In that case, at 245[23] – [24], the majority of the High Court set out a suggested form of direction, the effect of which is to warn the jury against following a process of reasoning that just because a person is shown to have told a lie about something, that is evidence of guilt. In that event, the significance of the lie would clearly be in relation to the credibility of the accused person as a witness.
In my opinion, the direction given in this case, although it might perhaps have been better expressed, is a direction of the kind contemplated in Zoneff. Her Honour told the jury that they would have to be satisfied that what was said was not only untrue, but a deliberate lie, a false statement known to be untrue, and that there was no innocent explanation for it. Even so, her Honour said, the jury could not use the telling of the lie as evidence of guilt, but a lie deliberately told could be used when assessing his credibility, by which, her Honour explained to the jury, she meant the question whether the applicant was a man "who you can believe". In my opinion, there was no risk that the jury might, in respect only of counts 3 and 4, have used the lie in question, if they so found it to be, inappropriately, as evidence of guilt.

The adequacy of the Longman warning

As I have said, the trial in this case took place some 30 years after the events in question. It was obviously necessary in those circumstances for the jury to be reminded of the forensic disadvantage in which the applicant found himself and to warn the jury of the care which must be taken before convicting of any offence upon the uncorroborated testimony of the complainant. The terms of that warning, first comprehensively discussed by the High Court in Longman v R (1989) 168 CLR 79, have been amplified and explained in numerous cases since then, both in the High Court and in other appellate courts in this country. In this State, the most recent reported decision is Crisafio v R (2003) 27 WAR 169, where the authorities are reviewed, particularly reiterating that the law as to the occasion for giving the warning and as to its content is conveniently summarised by Owen J, with whom Pidgeon and Ipp JJ agreed, in Christophers v R (2000) 23 WAR 106, at 117[37].
In this case, the trial Judge made abundantly clear to the jury what must have been obvious to them, that the complainant's evidence was uncorroborated in any material particular in relation to any count in the indictment. Her Honour said, appropriately, that there was no requirement for corroboration. Her Honour went on to remind the jury that the delay was in the order of 30 years before the matter came to light. She discussed the reasons, on the evidence, why that might be so and told the jury that they were to have regard to that delay in assessing the credibility of the complainant. At the same time her Honour appropriately warned the jury in terms of the Evidence Act 1906 (WA), s 36BD.
Her Honour went on to talk about the prejudice occasioned to the applicant in his defence by the long delay. For example, her Honour said, he had "lost any chance to give any evidence of alibi." Her Honour referred to the impact of the delay upon the reliability of the evidence and her Honour said that having regard to those matters:
"I warn you that you must exercise considerable care before you accept the evidence of the complainant. With such a long delay it could be unsafe to convict the accused on that evidence."
Her Honour went on to refer to the unavailability of witnesses. She mentioned the complainant's father, who had died. There were no attendance records for the remedial class for the better part of the period the subject of the indictment. There was no ability to call any students from the class, except, of course, for Mr Ritchie, and other witnesses were unavailable. The applicant had lost track of Mr Watkins.
Having said all that, her Honour mentioned that, depending upon the jury's view of the evidence, there might be "one balancing factor" that, some 10 years after the alleged offences, in 1985, the complainant had gone to the applicant's home and confronted him "about the offending". A complaint made for the applicant is that her Honour was wrong in saying this visit was 10 years after the alleged offending. I do not understand the complaint. It was clearly 10 years after the last year when any of the offences charged in the indictment might have occurred. Her Honour added that this was, of itself, an appreciable period of time.
In addition, of course, the jury would have been well aware of the significance of the general nature of the allegations put by the complainant at that time. There were no specifics and that, I understand, had been thoroughly tested in the course of the trial. Her Honour said these were matters which the jury should consider very carefully and she concluded her directions on this topic by reiterating what had been said earlier:
"Exercise considerable care before you accept and rely on the evidence of the complainant when you realise that the accused has been deprived by the passage of time of testing the complainant's evidence. Always bear in mind the forensic disadvantage that these very old charges place on the accused man. He can do little in his defence but deny the offences, as he has done."
In my opinion, the complaint about the terms of the warning given in this case is without substance.

The directions about evidence of uncharged acts

I have briefly described the nature of this evidence. There is no complaint that the evidence was admitted. What is said in this ground is that her Honour failed to direct the jury that the evidence of uncharged acts could not be used by them impermissibly as evidence from which they might reason directly that the complainant was guilty of any of the offences charged. But her Honour did give that direction. She said:
"This is what is sometimes referred to as relationship evidence. First of all, you could only rely on this evidence if you find it's reliable, if you believe it's true. You must be satisfied beyond reasonable doubt that these acts did occur before you could place any reliance on them. This evidence, if you accept it, is relevant only to show the nature of the relationship between the accused and the complainant. It helps, you might think, to put these specific charges in a more realistic light.
You cannot use it as evidence of mere propensity. You could only use it as evidence of the relationship, that the accused had an inappropriate sexual interest in the young boy, a student. That's the only basis on which that could be used. I warn you particularly that it's not evidence of propensity. You couldn't decide, "Well, if he did that, it's likely he committed these offences as well." The only use you could make of that evidence is on the issue of the alleged relationship between this teacher and this young boy and whether there was an inappropriate sexual interest in the young boy."
In my opinion, that was a succinct and appropriate direction as to the limited use to which that evidence could be put. More could have been said. It could, for example, have been explained that if the jury found that there was an inappropriate sexual interest in the complainant on the part of the applicant, that would be evidence which the jury might consider might more likely make the complainant's evidence true, might make it more likely that what he said happened to him did in fact occur. In addition, her Honour put the burden of proof in relation to this evidence very favourably so far as the applicant was concerned by saying that the jury must be satisfied beyond reasonable doubt that the uncharged acts did occur. Her Honour was in error in that regard: Buttsworth v R [2004] WASCA 69 [43] – [44].

The out of court statements of the applicant

I have already commented on the complainant's evidence that he visited the applicant in 1985 and confronted him with a general allegation of sexual misconduct. I have set out the responses made by the applicant and expressed the view that it was undoubtedly admissible because it was capable of being accepted by the jury as an admission by the applicant of general sexual misconduct towards the complainant involving handling his penis, although it was not capable of constituting a confession of any specific incident charged in the indictment.
It is to be recalled that the applicant, in his evidence, denied that this visit by the complainant had ever taken place or that he had ever said the things attributed to him. If, contrary to that evidence, the jury accepted the evidence of the complainant that these things were said and if they did not regard them as being too equivocal to constitute an admission, then the statements were capable of supporting the general tenor of the complainant's evidence and, in particular, his evidence that there was an inappropriate and unlawful series of incidents in which the applicant dealt with him sexually. It supported the relationship evidence and the complainant's credibility, rather than the complainant's evidence about any specific incident which was a count in the indictment. This evidence was capable of supporting the credibility of the complainant and of badly damaging the credibility of the applicant.
The complaint of the applicant in the relevant ground of appeal concerns alleged error in the comments made by the trial Judge to the jury upon this evidence. However, the first particular says that the trial Judge erred in considering that the evidence had any relevance or probative value and in not telling the jury that the evidence could not strengthen the complainant's evidence. The proposition is an extraordinary one. No objection was taken to the admission of this evidence and nor, in my opinion, could any such objection have properly succeeded. It would have been quite wrong for the trial Judge to direct the jury in the manner suggested.
Alternatively, it is suggested that the trial Judge erred in not directing the jury that they were to have regard to this evidence in its entirety when assessing its probative value and in not telling the jury specifically what use they could make of it. In my opinion, these complaints cannot be made out.
In commenting on the evidence, the trial Judge reminded the jury of it in its entirety. Her Honour then said that it was the Crown's proposition that the evidence constituted an implied admission of the generality of the offending. Her Honour told the jury that they must first be satisfied that the complainant did visit the applicant in 1985. If so, they must decide whether they were satisfied that he spoke the words related by the complainant. If so, they must ask themselves whether the only reasonable inference open was that the applicant "must have been involved in some sexual offending with the young man". If the words were ambiguous, if they "might mean something else", then they could not be relied upon as an implied admission. To my mind, these comments were designed to protect the position of the applicant. No complaint was made about them by defence counsel and they involved no error.

Was the defence case fairly put?

The argument in relation to this ground relies particularly on a failure to refer to the evidence of Ritchie and in failing to refer to the defence arguments in relation to the alleged 1985 visit of the complainant to the applicant. I have mentioned the manner in which her Honour dealt with that matter and in my opinion there is no substance in the complaint. Her Honour certainly did not summarise the evidence of Ritchie, but again, in my opinion, there is no substance in the complaint because Ritchie gave no evidence contrary to or unsupportive of that of the complainant in respect of counts 3 and 4, the two offences of which the applicant was convicted.
In my discussion of the suggestion that the verdicts were inconsistent I have posed a basis for distinguishing factually between the various counts on the indictment in a way which explains how the different verdicts might have been arrived at consistently with the jury approaching their task properly and reasonably. I suggest that the jury may well have been very alive to the evidence of Ritchie about what he observed or, more importantly, did not see at any time when he was in the classroom with the complainant and the applicant.
That is enough to dispose of this ground, but I should not leave it without making the observation that in my opinion this is a complaint too frequently encountered on appeal and too readily made by defence counsel in circumstances which reveal a misunderstanding of the role of the trial Judge, particularly in a case such as this where the evidence fell in a small compass and took a mere two days to complete. The trial continued with the addresses of counsel at shortly after 9 am on the morning of the third day. Her Honour commenced her charge to the jury at 11.30 am and the jury were retired to their deliberations just before 1 pm.
It has often been said and it is worth repeating that the duties of a trial judge are many and, in respect of addressing the jury, they are onerous, but they do not include a duty to summarise all the evidence led in the case and they do not require the judge to regurgitate the arguments of counsel in relation to matters of fact. Under the Criminal Code, s 638, "it is the duty of the court to instruct the jury as to the law applicable to the case, with such observations upon the evidence as the court thinks fit to make."

Again, it has often been said, but it is worth repeating, that in instructing the jury as to the law the trial judge is not obliged to give them an academic treatise upon everything which may possibly arise. The instructions are to be about matters of law which the jury need to know if they are properly to discharge their fact‑finding function. Those directions should be related to the evidence given. It follows that the directions should be given in terms which the jury may understand. The law about which they are to be addressed may, of course, include matters concerning the evidence, particularly where there are limitations upon the use to which a particular body of evidence may be put. Further, it may be necessary to warn the jury about dangers which may beset the proper performance of their duty and of which they may be unaware.
It is sufficient to call to mind what the High Court said in Domican v R (1992) 173 CLR 555, at 561:
"… the requirement of fairness means that ordinarily the respective cases for the prosecution and the accused must be accurately and fairly put to the jury. But that requirement does not oblige the judge to put to the jury every argument put forward by counsel for the accused. This Court has said that it 'is hardly necessary to say that as a reason for granting a new trial, after a conviction in a criminal case, it is not enough that the presiding judge has not mentioned to the jury all the matters which were set up on behalf of the accused as affecting probabilities'. Whether the trial judge is bound to refer to an evidentiary matter or argument ultimately depends upon whether a reference to that matter or argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence. Consequently, the conduct of the case necessarily bears on the extent to which the judge is bound to comment on or discuss the evidence. Discussion or comment which is justified or required in one case may be neither required nor justified when a similar case is conducted in a different way."
In RPS v The Queen (2000) 199 CLR 260, Gaudron A-CJ, Gummow, Kirby and Hayne JJ said (at [41]):
"Before parting with the case, it is as well to say something more general about the difficult task trial judges have in giving juries proper instructions. The fundamental task of a trial judge is, of course, to ensure a fair trial of the accused. That will require the judge to instruct the jury about so much of the law as they need to know in order to dispose of the issues in the case. No doubt that will require instructions about the elements of the offence, the burden and standard of proof and the respective functions of judge and jury. Subject to any applicable statutory provisions it will require the judge to identify the issues in the case and to relate the law to those issues. It will require the judge to put fairly before the jury the case which the accused makes. In some cases it will require the judge to warn the jury about how they should not reason or about particular care that must be shown before accepting certain kinds of evidence.' "
The trial Judge in this case, in my opinion, properly discharged the duties of her office in ensuring that all matters at issue and the nature of the defence case was put squarely before the jury. It follows that I would dismiss the application for leave to appeal against conviction.

As to sentence

I have mentioned the sentences which were imposed upon the applicant for the two offences of indecent dealing with the complainant, committed on the same occasion, of which the applicant was convicted. At the time of their commission those were offences against the Code, s 183. At that time the maximum penalty was imprisonment for 7 years. Section 183 was repealed in 1989 when parts of the law in relation to sexual offences was first reformed in this State.
But, of course, the offence did not disappear from the statute book. By the time of the trial in October 2003, given that the age of the child at the time the offences were committed was about 10 years, as the trial Judge found, to indecently deal with a child under the age of 13 years was punishable by imprisonment for 10 years: Code, s 320(4). In this case, therefore, the maximum penalty remained imprisonment for 7 years: Sentencing Act 1995 (WA), s 10.
The application for leave to appeal against sentence essentially complains that the sentence was manifestly excessive but then raises a number of specific errors allegedly made by the trial Judge.
One matter of which the applicant complains is that the trial Judge did not seek a pre‑sentence report and neuro‑psychological assessment when requested by defence counsel. Indeed her Honour did not. It is clear from the sentencing proceedings that her Honour saw no need for such investigations and nothing was put before the District Court, nor indeed before us, to support the request. In short, there is nothing to suggest that the trial Judge failed to investigate any matter which would have been material to the sentence to be imposed. In the absence of any such contention, the mere failure to obtain a report or reports can, in my opinion, provide no ground for an appeal against sentence: Gavin v R (1992) 6 WAR 195.
It is said that the trial Judge failed to take into account the applicant's age, but her Honour found in mitigation that the applicant was a 60‑year‑old retired teacher who had had a long career and was highly respected by colleagues for his innovative approach to teaching remedial students. Her Honour found, again in mitigation, contrary to the complaint made by the applicant, that there was a low risk that he might offend again. Her Honour found that the applicant had committed no further offences since those the subject of the indictment.
On the other hand, it is said that her Honour wrongly took into account past convictions which were not available as part of the applicant's antecedents. Her Honour noted that there had been some convictions, but said that it was nonetheless proper to regard those sustained before her as first offences. Her Honour noted that convictions of sex offences involving another student had been quashed on appeal. There is no merit in any of these contentions of specific error.
It remains then only necessary to consider the central argument that an aggregate term of 4 years imprisonment in the circumstances of this case for the two offences was manifestly excessive. In that regard, it is necessary to note that the facts of the case were serious. When the applicant and Watkins engaged in mutual oral sex in the presence of the child who had, by then, been undressed, the complainant attempted to leave the room. The applicant forcibly prevented him from doing so, slapped his face and told him that he would come to no harm. It was then that the offences previously described were committed. They were representative, her Honour found, of a general pattern of sexual abuse by an offender who was, as the complainant's teacher, in a position of authority over him and in breach of the relationship of trust which the teacher/student relationship entailed. There was a great disparity in their ages and it is perfectly evident that the child was subjected to the offences when he knew this conduct was wrong, but was powerless to prevent it.
In those circumstances, while the need for particular deterrence did not loom large, the primary consideration was that the punishment imposed by the Court ought to be of a kind and severity which gave effect to the principle of general deterrence, despite the matters of mitigation present in the applicant's personal circumstances. Her Honour did note, however, that neither in 1985 nor at the time of trial, had the applicant displayed any remorse for his conduct. There was a victim impact statement before the Court. Her Honour found that the commission of the offences had caused psychological and other problems for the complainant.
In all the circumstances of this case, I am quite unable to conclude that the sentencing discretion miscarried by the imposition of sentences of such severity as to require this Court to intervene to reduce them. I would refuse leave to appeal against the sentences imposed.

STEYTLER J: I have had the advantage of reading the judgment of Murray J. I agree with it and with his Honour's conclusions that each of the applications for leave to appeal against conviction and sentence should be dismissed.
MILLER J: I have had the opportunity of reading in draft the reasons for judgment of Murray J. I agree with those reasons and agree that the applications for leave to appeal against conviction and sentence should be dismissed. There is nothing I wish to add.