Leg v The State of Western Australia
[2025] WASCA 129
•5 SEPTEMBER 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: LEG -v- THE STATE OF WESTERN AUSTRALIA [2025] WASCA 129
CORAM: MITCHELL JA
HALL JA
ARCHER JA
HEARD: 19 MAY 2025
DELIVERED : 5 SEPTEMBER 2025
FILE NO/S: CACR 9 of 2024
BETWEEN: LEG
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: QUINLAN CJ
File Number : IND 1196 OF 2022
Catchwords:
Criminal law - Child sexual offending - Whether failure by prosecutor to obtain and then disclose evidence to the accused gave rise to a miscarriage of justice - Whether conduct of the case by defence counsel gave rise to a miscarriage of justice
Legislation:
Children and Community Services Act 2004 (WA), s 124A, s 124B, s 12C, s 124D, s 124F, s 124G, s 124H
Criminal Code (WA), s 329(2), s 329(4)
Criminal Procedure Act 2004 (WA), s 42
Evidence Act 1906 (WA), s 21, s 79C(2a)
Result:
Leave to appeal granted
Leave to adduce additional evidence granted
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | N R Cogin |
| Respondent | : | L M Fox SC |
Solicitors:
| Appellant | : | Holmes Criminal Lawyers |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Brawn v The King [2025] HCA 20; (2025) 99 ALJR 872
Craig v The Queen [2018] HCA 13; (2018) 264 CLR 202
Edwards v The Queen [2021] HCA 28; (2021) 273 CLR 585
Grey v The Queen [2001] HCA 65; (2001) 75 ALJR 1708
Huggins v The State of Western Australia [2018] WASCA 61
Jeffery v The State of Western Australia [2018] WASCA 219
Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125
MNA v The State of Western Australia [2020] WASCA 84
Rodi v The State of Western Australia [2017] WASCA 81; (2017) 51 WAR 96
Rodi v The State of Western Australia [2018] HCA 44; (2018) 265 CLR 254
SPW v The State of Western Australia [2012] WASCA 41; (2012) 220 A Crim R 301
Vo v The State of Western Australia [2012] WASCA 6
Table of Contents
Summary
Prosecution case at trial
First occasion of alleged offending: count 1
Second occasion of alleged offending: counts 2 - 6
Third occasion of alleged offending: count 7
Report to police and arrest of appellant
The course of the appellant's trial
The appeal to this court
Prosecutorial duty to investigate, disclose and adduce evidence
Ground 1: failure to seek a statement from the reporter
Background: references to the Incident Report at trial
Evidence as to the Incident Report on appeal
Statutory provisions
Admissibility of evidence of the Incident Report at trial
Disclosure of the Incident Report
Prosecutorial duty alleged by the appellant
No miscarriage of justice arose in this case
Conclusion as to ground 1
Ground 2: failure to seek statement from Z
Background: reference to Z in the EROI
The appellant's contentions
Disposition
Ground 3: incompetence of counsel
General principles
Failure to seek an adjournment of the trial by reason of absence of disclosure of Z's evidence
Failure to seek an adjournment to obtain evidence of reporter
Appellant's decision not to give evidence
Uncontroversial facts
Appellant's account
Ms C's account
Trial counsel's account
Presentation of the witnesses
Disposition
Ground 4
Orders
JUDGMENT OF THE COURT:
Summary
The appellant was convicted, after trial by jury, of:
(a)one count of sexually penetrating the complainant, a child under the age of 16 years who he knew to be his de facto child, contrary to s 329(2) of the Criminal Code (WA); and
(b)five counts of indecently dealing with the complainant, a child under the age of 16 years who he knew to be his de facto child, contrary to s 329(4) of the Code.
He was acquitted of one count of indecently dealing with the complainant. The appellant was sentenced to a total effective sentence of 5 years 6 months' imprisonment for this offending, backdated to commence on 8 August 2022.
The appellant now appeals against his convictions on four grounds. Grounds 1 and 2 in effect allege a miscarriage of justice resulting from the failure of the prosecutor to obtain evidence which could then be disclosed to the appellant and adduced at trial. Ground 3 alleges that a miscarriage of justice was occasioned by several aspects of conduct of the appellant's trial by his trial counsel. Ground 4 contends that a miscarriage of justice occurred by reason of a combination of the matters raised by grounds 1, 2 and 3.
For the following reasons, none of the grounds of appeal are established and the appeal must be dismissed.
Prosecution case at trial
The prosecution called two witnesses, the complainant and the investigating police officer, Detective Senior Constable Jason Webber. The complainant's evidence of the alleged offending comprised a recorded child witness interview conducted on 18 November 2021 (CWI) and her cross-examination at trial. Detective Webber produced the complainant's birth certificate, photographs of the property on which the offending was alleged to have occurred and an electronic record of interview conducted with the appellant on 24 November 2021 (EROI).
The charged offences against the complainant were alleged to have been committed on three separate occasions, which were pleaded in the indictment to have occurred on unknown dates between 30 June 2020 and 1 March 2021. The offences were all alleged to have taken place on an orchard where the appellant and complainant lived in two houses (referred to by the complainant as the 'old house' and the 'new house') with other members of their family.
The complainant's mother and the appellant were in a relationship from about 2007. The complainant, who was born in October 2005, was the child of a former relationship between the complainant's mother and father. The complainant's younger brother, who it is convenient to refer to as Z, was also a child of that previous relationship. The appellant and the complainant's mother have two sons together.
First occasion of alleged offending: count 1
The first occasion of the alleged offending was the subject of count 1 on the indictment, of which the appellant was acquitted. The complaint's evidence was that this incident occurred while the family were living in the old house and her mother was working night shifts. The complainant was in year 9 of school and was either just about to turn 15 or had just turned 15 years old. The complainant's 15th birthday was in October 2020.
The appellant, complainant and her brothers were at a bonfire at a 'tip' on the property. There was a tractor with a container of water on the back to deal with spot fires. The appellant, complainant and her brothers returned to the house for dinner. After dinner, the appellant told the complainant that she needed to help him to check on the fire.
The complainant said that she drove the tractor back to the bonfire with the appellant. The container of water fell off the tractor on the way there 'so we had to try and get it back up on there'.[1] When they got to the bonfire, everything was fine, and the appellant brought out butane cans. The appellant told the complainant to inhale from the cans. She found it hard to remember what followed. The complainant recalled the appellant being on top of her and kissing her on the mouth. This was the indecent dealing charged in count 1.
[1] CWI ts 15 (Blue/Green AB 150).
The complainant's evidence was that, after they went back to the old house, the appellant, who had been drinking, was standing in the kitchen saying that he had to tell the complainant's mother what had occurred. At this time the appellant said, 'I literally had my fingers inside of you'.[2] The complainant went to bed, and nothing was said about the incident in the morning.
Second occasion of alleged offending: counts 2 - 6
[2] CWI ts 17 (Blue/Green AB 152).
The second occasion of the alleged offending was alleged to have occurred in the old house about one to two weeks after the first occasion. The complainant was 14 - 15 years old at this time.
The complainant said that, after her mother left for work in the evening, the appellant came into her bedroom wearing a dressing gown and underwear. The appellant got on top of the complainant in her bed, held her arms down, tried kissing her (count 2) and then took off her clothes. While his underwear were still on, the appellant rubbed his genital area against the complainant's genital area (count 3). He then sexually penetrated the complainant by performing cunnilingus on her (count 4). The appellant then took off his underwear, put his genitals in the complainant's face and told her to 'suck it or fuck it'.[3] The complainant pleaded with the appellant, indicating that she did not want to. The appellant then put the complainant's hand on his penis (count 5) before masturbating himself and ejaculating on the complainant's breasts (count 6).
Third occasion of alleged offending: count 7
[3] CWI ts 25 (Blue/Green AB 160).
The third occasion of the appellant's alleged offending occurred a few days before the complainant left her mother's house to go and live with her biological father in early 2021. At this time, the family were living at the new house on the orchard, and the complainant was 15 years old.
The complainant said that she and the appellant went to fill a car on the orchard with petrol and drove it back to the new house. On the drive back, the appellant was talking about 'the other experiences'. He said that he would not do it again and was just giving the complainant a 'frigid test'.[4] When they got into the house, the appellant held the complainant near the door, squeezed her breast over her clothes and pinched her bottom over her clothes (count 7). The complainant said that her mother was in the next room when this occurred. The appellant and complainant walked into the house after the incident.
[4] CWI ts 6 (Blue/Green AB 141).
Although the appellant made sexual threats to the complainant later that day, this was the last occasion on which he touched her.
Report to police and arrest of appellant
In cross-examination, the complainant agreed that she reported the incidents to a teacher at her school in November 2021. At this time the complainant was living with an aunt after she left her biological father's house due to his drug use.[5]
[5] Trial ts 147 - 148.
The CWI was undertaken with the complainant on 18 November 2021.
Detective Webber attended the orchard on 24 November 2021. The appellant was arrested at that time, certain items were taken from the new house and that house was photographed. The appellant's EROI occurred on that day. In the EROI, the appellant made admissions about the family circumstances which the complainant had described but denied committing any sexual acts against the complainant. Detective Webber returned to the orchard on 25 November 2021 and took photographs of the old house.
The course of the appellant's trial
The appellant's trial began before the trial judge and a jury on Tuesday, 19 September 2023. The prosecutor opened the prosecution case consistently with the above outline of the prosecution case.
The appellant's trial counsel made an opening statement to the jury. She explained that the defence case was that the allegations made against the appellant were untrue and that the alleged incidents of sexual offending never occurred.[6]
[6] Trial ts 63 - 71.
The appellant's trial counsel said that the allegations were made in the context of a very bitter family breakdown. Trial counsel indicated that the jury would hear of an unhappy relationship between the appellant and the complainant's mother in which she was often violent towards him and in which he was left to bear parental and domestic responsibilities. The couple had married in July 2020 because the children wanted them to get married, but at 'about the time they were married, their marriage was on the rocks'.[7] When they returned from their honeymoon in August 2020, they had an argument straight away. At about this time the appellant confided in the complainant that he did not love her mother and that it was not going to work. The complainant asked to leave with the appellant so that she was not left to do all the housework and look after the younger children. The complainant had been grounded at the orchard from September to December 2020 after the appellant had found a video of her smoking marijuana with a friend.
[7] Trial ts 64.
On his birthday in November 2020, the appellant confided in the complainant that he would be gone by his next birthday. In early 2021, the complainant was 'thrown out' of the home by her mother for 'back‑chatting'.[8]
[8] Trial ts 69.
The complainant went to live with her biological father, who was a drug user with his own problems, from January to August 2021. The complainant moved in with her maternal aunt in August 2021. The complainant did not report the allegations against the appellant until November 2021, after which the appellant's trial counsel stated the process 'snowballs'.[9]
[9] Trial ts 69.
The appellant's trial counsel said that, by his birthday in November 2021, the appellant was in gaol. Trial counsel said that the complainant's evidence was false for 'reasons we will never be sure of'.[10]
[10] Trial ts 67.
The appellant's trial counsel made certain formal admissions on his behalf, including that he was the complainant's stepfather, and that the family moved from the old house to the new house in December 2020.[11]
[11] Trial ts 71.
After the complainant's CWI was played, the prosecutor asked some supplementary questions. The appellant's trial counsel then cross‑examined the complainant from about 3.40 pm on Tuesday, 19 September 2023 to about 12.30 pm on Wednesday, 20 September 2023. The complainant was briefly re-examined by the prosecutor and the jury broke for lunch. Detective Webber was called to give evidence in the afternoon, and completed his evidence at about 4.30 pm on 20 September 2023, when the prosecution closed its case.[12]
[12] Trial ts 204.
We will identify parts of the cross-examination which are relevant to particular grounds of appeal when dealing with those grounds.
After the jury withdrew for the day on 20 September 2023, the trial judge indicated his understanding that the appellant's trial counsel intended to call the appellant's mother and that a video-link had been organised. Trial counsel indicated that this was 'subject to further proofing after today'. The following exchange then occurred between the trial judge and the appellant's trial counsel:[13]
QUINLAN CJ: Yes, of course. So I take it that you're not - and of course, I don't ask you to in terms of whether [the appellant] is going to give evidence or is going to call evidence. If you are able to - and again, there is no obligation to do so - but in terms of the organisation of the rest of the hearing, if it's possible to advise my associate as to whether or not the defence is likely to go into evidence so that we can deal with issues of timing and the like, but again - - -
[TRIAL COUNSEL]: I can advise you now, he will.
QUINLAN CJ: He will be giving evidence.
[TRIAL COUNSEL]: He will be giving evidence.
QUINLAN CJ: Okay. Well, then in that case, the video-link wouldn't be until later in any event.
[TRIAL COUNSEL]: That's right.
[13] Trial ts 208.
At 6.22 am on Thursday, 21 September 2023, the appellant's trial counsel sent an email in the following terms to the trial judge's associate:[14]
I wish to advise that my client overnight has changed his instructions to me and no longer wishes to give evidence. This has been confirmed in writing.
I apologise for any inconvenience caused by this late notification.
[14] Yellow AB 25.
When the matter resumed at 10.00 am on 21 September 2023, the trial judge thanked the appellant's trial counsel for her advice. After a discussion about directions, the trial judge asked the appellant whether he intended to give evidence or adduce evidence in the matter. The appellant personally responded, 'No, thank you'.[15]
[15] Trial ts 213.
The prosecutor and the appellant's trial counsel then gave their closing addresses to the jury. The trial judge began his directions to the jury at 12.18 pm, and the jury retired to consider its verdicts at 2.38 pm. The jury returned to deliver its verdicts at 3.28 pm on 21 September 2023, finding the appellant not guilty of count 1 and guilty of all other counts on the indictment.
The appeal to this court
On 9 February 2024, the appellant appealed to this court against his convictions.
Ground 1, as substituted at the hearing of the appeal,[16] concerns a police 'Incident Report' which relates to a mandatory report of a complaint by the complainant made under s 124B(1) of the Children and Community Services Act 2004 (WA) (CCS Act). The identity of the person making the report, who it is convenient to refer to as the reporter in these reasons, is not disclosed by the Incident Report. Ground 1 contends that a miscarriage of justice was caused by the failure of the prosecution to seek a witness statement from the reporter in relation to what the complainant had told him or her, obtain a statement from the reporter if he or she was willing to give a statement, and disclose that statement to the appellant's solicitor.
[16] The appellant abandoned the originally formulated ground 1 (which alleged that a miscarriage of justice was caused by the failure of the prosecution to call the reporter to give evidence at the appellant's trial) at the hearing of the appeal.
Ground 2 alleges that a miscarriage of justice was caused by the failure of the prosecution to meet its disclosure obligations. While expressed in terms of a failure to disclose evidence, the particulars to the grounds indicate that the complaint is of a failure to investigate by obtaining a statement from Z in relation to a matter referred to by the appellant in the EROI.
Ground 3 contends that a miscarriage of justice was caused by the way the appellant's trial counsel conducted his defence. The particulars indicate that there are in essence three aspects to this ground:
1.The failure by trial counsel to seek an adjournment of the trial on the basis that evidentiary material from Z had not been disclosed.
2.The failure by trial counsel to seek an adjournment of the trial in circumstances where the State was intending to conduct the trial without calling the reporter to give evidence and the reporter was not able to be called as a witness by the appellant at that time.
3.Inadequacy in the advice provided to the appellant by his trial counsel in relation to his election as to whether to give evidence at his trial.
The parties have made various applications to adduce additional evidence in the appeal in relation to these grounds of appeal:
1.By application in an appeal dated 16 May 2024, the appellant applies to adduce his affidavit affirmed 16 May 2024 as additional evidence in the appeal.
2.By application in an appeal dated 14 January 2025, the appellant applies to adduce the evidence of his sister, who it is convenient to refer to as Ms C, affirmed 14 January 2025 as additional evidence in the appeal.
3.By application in an appeal dated 26 July 2024, the State applies to adduce the following affidavits as additional evidence in the appeal:
(a)the affidavit of Detective Webber affirmed on 22 July 2024;
(b)the affidavit of the trial prosecutor affirmed on 24 July 2024; and
(c)the affidavit of the appellant's trial counsel sworn 26 July 2024.
The application for leave to appeal, and the above applications for leave to adduce additional evidence in the appeal, were referred to the hearing of the appeal. At the hearing of the appeal, the court indicated that it would receive the proposed evidence provisionally and rule on the applications to adduce the proposed additional evidence in these reasons. All of the deponents were cross-examined on their affidavits.
Prosecutorial duty to investigate, disclose and adduce evidence
The Criminal Procedure Act 2004 (WA) (CP Act) imposes a statutory obligation of disclosure of material to an accused by the 'prosecutor', as defined in s 3 of that Act. In general terms the duty where an accused pleads not guilty is principally to disclose 'confessional material of an accused charged with an offence' and 'evidentiary material relevant to a charge', as those terms are defined in s 42 of the CP Act.[17] The definition of those terms in s 42 makes it clear that the disclosure obligation relates to material that is in the possession of the organisation or person who investigated the offence. The statutory obligation is not to obtain evidentiary material so that it may be disclosed. Rather, it is to disclose such evidentiary material relevant to the charge as in the possession of the investigating organisation or person.
[17] See s 42(5), s 42(6), s 95(6), s 95(8) and s 95(9) of the CP Act.
In Mallard v The Queen,[18] the plurality said that the prosecution must at common law 'disclose all relevant evidence' to an accused, and recognised that failure to do so may, in some circumstances, require the quashing of a verdict of guilty. This proposition was accepted by the High Court in Edwards v The Queen,[19] and in Brawn v The King.[20] Both Mallard and the decision in Grey v The Queen,[21] which the plurality referred to as authority for that proposition, were concerned with the failure to disclose evidentiary material that was in fact in the possession of the prosecution. Edwards and Brawn were also concerned with the disclosure of evidentiary material in the possession of the prosecuting authorities.
[18] Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125 [17].
[19] Edwards v The Queen [2021] HCA 28; (2021) 273 CLR 585 [24].
[20] Brawn v The King [2025] HCA 20; (2025) 99 ALJR 872 [33].
[21] Grey v The Queen [2001] HCA 65; (2001) 75 ALJR 1708.
In Edwards, Edelman and Steward JJ observed:[22]
The common law required, and still requires, disclosure of all material that, on a sensible appraisal by the prosecution: (i) is relevant or possibly relevant to an issue in the case; (ii) raises or possibly raises a new issue that was not apparent from the prosecution case; and (iii) holds out a real (as opposed to fanciful) prospect of providing a lead in relation to evidence concerning (i) or (ii). Further, since the disclosure can occur prior to any crystallisation of the defence case, or any refinement of the prosecution case, expressions in relation to common law disclosure rules, such as 'an issue in the case' or 'all relevant evidence of help to the accused', must be given a broad interpretation. (citations omitted)
[22] Edwards [48].
The parties have not cited, and we have been unable to locate, any cases in which it has been held that a prosecuting authority is under a duty to investigate for the purpose of obtaining evidentiary material which might, having been obtained, be subject to a disclosure obligation.
Ground 1: failure to seek a statement from the reporter
Background: references to the Incident Report at trial
The alleged relevance of the account given in the Incident Report arises in the following way.
In her CWI, the complainant's account was to the effect that the appellant told the complainant that he had digitally penetrated her on the first occasion described above.[23] She did not say that she recalled that digital penetration occurring. Under cross-examination, the complainant confirmed that she remembered the appellant kissing her but could not recall the digital penetration, which was something that the appellant told her had occurred.[24]
[23] CWI ts 17 (Blue/Green AB 152).
[24] Trial ts 139, 144.
After the complainant said that she did not remember the appellant putting his hand down her jeans, the appellant's trial counsel put to the complainant that 'you do remember that part because it's in your incident report'. Trial counsel then asked for the complainant to be shown the Incident Report.[25] It appears that the appellant's trial counsel did not appreciate the character of the Incident Report at this time. The prosecutor objected to the document being put to the complainant as it was not her document. The trial judge upheld that objection. The complainant was then asked the following questions by the appellant's trial counsel:[26]
Do you remember if you told someone in the past that on one occasion, [the appellant] put his hands down your pants and used his fingers to penetrate you?---No.
And do you remember whether you made that statement to anybody at the Police Force?---I'm not sure.
[25] Trial ts 139.
[26] Trial ts 143 - 144.
The appellant's trial counsel did not seek to adduce evidence of a prior inconsistent statement in relation to the complainant's recollection of digital penetration on the first occasion.
Evidence as to the Incident Report on appeal
Detective Webber's unchallenged evidence is that the account given in the Incident Report is a reproduction of a mandatory report made to police by a teacher on 12 November 2021. The identifying details of the reporter were not recorded in the Incident Report disclosed to the appellant, in accordance with the CCS Act. The reporter was not the 'school youth officer' referred to in the Incident Report.
Statutory provisions
Section 124B(1) of the CCS Act relevantly provides that a person who is a teacher, who believes on reasonable grounds that a child has been the subject of sexual abuse, and who forms that belief in the course of the person's work as a teacher, must report the belief as soon as practicable after forming the belief. Failure to do so is an offence.
Under s 124B(2), the report must be made to the CEO of the Department of Communities, or to a person or a member of a class of persons approved by the CEO. Under s 124C, a report may be written or oral, but if oral the reporter must make a written report as soon as practicable after the oral report is made. Under s 124D of the CCS Act, the CEO is to give a copy of each written report to the Commissioner of Police as soon as practicable after the report is received by the CEO.
Section 124F(2) of the CCS Act provides that a person who, in the course of duty, becomes aware of the identity of a reporter, must not disclose identifying information to another person except in specified circumstances. One exception, in s 124F(2)(c)(ii), is where disclosure is made to or by a police officer for the purpose of, or in connection with, the conduct of a prosecution of an offence under a written law in relation to the relevant child. Another, in s 124F(2)(j), is where the disclosure is made in legal proceedings with the leave of the court concerned.
Section 124G limits the use of a report in legal proceedings. For example:
1.Under s 124G(1), a written report or a written record as to the contents of an oral report is to be taken to be a document that is not required to be disclosed under s 35, s 42, s 61, s 62, s 95 or s 96 of the CP Act unless, relevantly, the court concerned orders otherwise.
2.Under s 124G(2), a party to any legal proceedings cannot require a person to produce to the party, or the court concerned, a report or evidence of the contents of a report unless, relevantly, the court concerned gives leave to do so.
3.Under s 124G(3), a report or evidence of the contents of a report is not admissible in any legal proceedings unless, relevantly, the court concerned orders otherwise.
Under s 124H of the CCS Act, the court must not make an order or grant leave unless, relevantly, it is satisfied under s 124H(2)(b) that:
(i)the identifying information, or the content of the report (as is relevant in the case) is of critical importance in the proceedings; and
(ii)there is compelling reason in the public interest for disclosure of the identifying information, or disclosure, production or adducing of the report or evidence (as is relevant in the case)[.]
The phrase 'identifying information' in relation to a reporter is defined in s 124A of the CCS Act to mean:
information -
(a)that identifies the reporter; or
(b)that is likely to lead to the identification of the reporter; or
(c)from which the identity of the reporter could be deduced[.]
Admissibility of evidence of the Incident Report at trial
At the hearing of this appeal, the court ordered that evidence of the contents of the Incident Report may be adduced in the appeal. We did so as we were satisfied that the production of the Incident Report was of critical importance in resolving ground 1 and ground 3(b) and (c) of the appellant's appeal. We were also satisfied that there is a compelling reason in the public interest for the production of the evidence to this court, to enable this appeal to be determined on its merits, in a context where the content of the Incident Report is already known to the parties. We were satisfied that the public interest in preserving the confidentiality of the information in the report could be protected by a suppression order restricting publication of evidence given in this court of the contents of the Incident Report. We noted that the order we made does not permit evidence of identifying information in relation to the reporter to be adduced in the proceedings.
However, while evidence of the Incident Report could be adduced on appeal, it would not have been admissible at trial. The Incident Report contained the contents of a report made under s 124B(1) of the CCS Act. Under s 124G(3) of the CCS Act, it would not have been admissible at trial unless the District Court ordered otherwise. For the following reasons, it would not have been open to the District Court to have been satisfied that evidence of the contents of the Incident Report was of critical importance in the appellant's trial.
Evidence of a statement made by the complainant to the reporter in November 2021 about sexual offending that occurred prior to March 2021 could only have been admissible in the trial as a prior inconsistent statement of the complainant. Evidence of that statement could not, except by consent, have been adduced as evidence in the prosecution case as that would have involved the prosecutor impermissibly impeaching the credit of the State's own witness. The time between the alleged offence and the complainant's statement meant that it would not be admissible as part of the State's case as evidence of recent complaint.[27] Evidence of a prior inconsistent statement by the complainant to the reporter could have been admitted as part of the defence case under the first paragraph of s 21 of the Evidence Act 1906 (WA), which provides:
Every witness under cross-examination in any proceeding, civil or criminal, may be asked whether he has made any former statement relative to the subject-matter of the proceeding, and inconsistent with his present testimony, the circumstances of the supposed statement being referred to sufficiently to designate the particular occasion, and if he does not distinctly admit that he made such statement, proof may be given that he did in fact make it.
[27] As to which, see MNA v The State of Western Australia [2020] WASCA 84 [118] (Derrick J) and SPW v The State of Western Australia [2012] WASCA 41; (2012) 220 A Crim R 301 [49] - [70] (Buss JA).
However, proof of the fact that the complainant told the reporter that the complainant remembered the appellant putting his fingers down her pants and using his fingers to penetrate her, if not accepted by the complainant, would ordinarily need to be given by the reporter. Use of the Incident Report to prove that fact would infringe the rule against hearsay. The same may be said of the original written report by the reporter to the CEO of the Department, which would not appear to be a 'business record' of the reporter that could be admitted without calling the reporter under s 79C(2a) of the Evidence Act. The Incident Report, and the reporter's original written report to the CEO, were not admissible to prove the statement made by the complainant to the reporter at the appellant's trial.
Further, the appellant's trial counsel did not seek leave for the disclosure of the original mandatory report in order to obtain identifying information of the reporter (or the teacher to whom the complainant had spoken). Without that information there was no prospect of adducing evidence of a prior inconsistent statement. There are objectively reasonable forensic reasons why leave would not be sought. Not least, calling the reporter could be more adverse than beneficial, for reasons that we will canvass later in these reasons.
Even if the difficulties noted in the previous paragraphs could be overcome, the contents of the report under s 124B of the CCS Act could not be reasonably regarded as being of critical importance in the appellant's trial. To show that evidence is of critical importance requires more than showing the evidence is relevant and admissible. In the present case, evidence of the contents of the report could only impact on the jury's assessment of the credibility and reliability of the complainant's evidence. The evidence at trial with which the complainant's statement to the reporter was said to be inconsistent was that she could not recall the appellant sexually penetrating her on the first occasion. The appellant was not charged with sexually penetrating the complainant on the first occasion. As such, the alleged prior inconsistent statement could only have gone to the complainant's general credibility. The negative impact of the prior inconsistent statement on the complainant's credibility would have been limited by what was a remarkable degree of consistency between the account recorded in the Incident Report and the complainant's other evidence of the appellant's charged offending conduct. These features of the evidence would preclude a court from finding that the contents of the Incident Report were of critical importance in the appellant's trial.
The above analysis explains why the appellant's appeal counsel abandoned the original ground 1, which alleged that a miscarriage of justice was caused by the failure of the prosecution to call the reporter to give evidence at the appellant's trial.
Disclosure of the Incident Report
The Incident Report was disclosed to the appellant prior to trial. The evidence before this court does not indicate how or when this disclosure occurred, although the State's submissions describe the disclosure as inadvertent. As the Incident Report did not contain identifying information about the reporter, its disclosure to the appellant's solicitor did not contravene s 124F of the CCS Act.
We also note that, if the disclosure had been made by a police officer in connection with the prosecution of the indicted offences, disclosure of the identity of the reporter would have been permissible under s 124F(2)(c)(ii) of the CCS Act. However, disclosure by the Office of the Director of Public Prosecutions to the appellant of identifying information of the reporter could only have been lawful if done with the leave of the court concerned. For the reasons given above, that leave could not have been obtained.
The Incident Report, and identifying information about the reporter, was not subject to the statutory disclosure obligation under the CP Act, by reason of s 124G(1) of the CCS Act. Any continuing common law disclosure obligation must conform to these statutory provisions.
Obviously, the appellant could not have adduced evidence of the alleged prior inconsistent statement described in the Incident Report without knowing the identity of the reporter. However, the prosecution was under no statutory or common law obligation to disclose that information. Further, while a police officer could lawfully have disclosed the identity of the reporter in connection with the prosecution, no other person could have lawfully done so without the leave of the court which could not have been properly granted in the present circumstances.
In this statutory context, failure by the State to disclose the identity of the reporter to the appellant's solicitors cannot, of itself, give rise to a miscarriage of justice.
Prosecutorial duty alleged by the appellant
Although the CCS Act restricted the disclosure and adducing of evidence of the identity of the reporter and the contents of the report, it would not preclude the reporter being called as a witness to give evidence of the reporter's account of what the complainant told him or her without reference to the fact that the reporter had made a report under the CCS Act.
The prosecutorial duty for which the appellant contends was a duty of the prosecution to seek a witness statement from the reporter in relation to what the complainant had told him or her, obtain a statement from the reporter if he or she was willing to give a statement, and disclose that statement to the relevant accused. This would not contravene the provisions of the CCS Act if the statement provided to the accused did not reveal that the reporter had made a mandatory report under the CCS Act. Because the investigating police officer could not know whether the complainant's evidence would prove to be inconsistent with statements attributed to the complainant by the reporter, the appellant submits that this process should be followed in every case. If the complainant gave evidence and denied making a prior inconsistent statement to the reporter, then the accused person would have the ability to call the reporter to give evidence of the prior inconsistent statement under s 21 of the Evidence Act.
The duty contended for by the appellant sits uneasily with the general policy of the CCS Act. The evident purpose of the confidentiality provisions relating to the identity of a reporter is to encourage the making of reports without fear of repercussions. On the appellant's approach, in every case a reporter would expect to be approached by a police officer, asked to provide a statement as to what they were told by a complainant and potentially give evidence at an accused's trial.
However, it is unnecessary to consider whether the postulated duty is consistent with the scheme of the CCS Act. That is because the common law and statutory duty of a prosecutor does not extend to conducting an investigation to obtain evidence of a statement by a complainant which is potentially inconsistent with the evidence which they will give at trial. The duty is to disclose evidentiary material in the possession of the prosecuting authorities rather than to investigate and obtain evidence which must then be disclosed.[28] The prosecuting authorities in the present case did not breach any duty by failing to seek a statement from the reporter about what the complainant had told him or her so that, if given, it could be provided to the appellant's solicitor.
No miscarriage of justice arose in this case
[28] Vo v The State of Western Australia [2012] WASCA 6 [38]
For the above reasons, the fact that the State did not call the reporter to give evidence or seek a statement from the reporter which could be disclosed to the appellant does not constitute a miscarriage of justice.
Nor, applying traditional principles relating to new and fresh evidence, does the absence at trial of the reporter's evidence about what the complainant told him or her constitute a miscarriage of justice. We will assume, in the appellant's favour, that the reporter would give evidence as indicated in the Incident Report, and that the evidence would be properly classified as fresh evidence rather than new evidence as it was not available to the appellant at trial by the exercise of reasonable diligence. The absence of such evidence at trial would constitute a miscarriage of justice if there was a significant possibility that the jury, acting reasonably, would have acquitted the appellant if the evidence had been before it at trial.[29]
[29] Rodi v The State of Western Australia [2018] HCA 44; (2018) 265 CLR 254 [28].
There was no significant possibility that the jury, acting reasonably, would have acquitted the appellant of any of counts 2 - 7 if evidence of what the complainant told the reporter was admitted at trial, assuming the reporter's evidence to reflect the account given in the Incident Report. The alleged inconsistency related to a statement about an act by the appellant which was not the subject of a charge. The alleged inconsistent statement to the reporter implicated the appellant in committing the uncharged act of digital sexual penetration to a much greater extent than the complainant's evidence that she could not recall the occurrence of that sexual penetration. Overall, the account said to have been given to the reporter was remarkably consistent with the complainant's evidence. In these circumstances, there is no significant possibility that the assumed evidence of the reporter could have led the jury to an adverse view of the complainant's general credibility. There is no significant possibility that the assumed evidence of the reporter could have led the jury to doubt the credibility and reliability of the complainant's evidence about the charged offences.
It is also significant that the alleged inconsistent statement concerned the first occasion described above, and the appellant was acquitted of the only charged offence which was alleged to have been committed on that occasion.
Conclusion as to ground 1
For the above reasons, ground 1 is not established.
Ground 2: failure to seek statement from Z
Background: reference to Z in the EROI
In the appellant's EROI, Detective Webber told the appellant that the complainant had said that, when she attended a bonfire at the orchard, the appellant had given her a butane can and told her to inhale the gas. Detective Webber asked the appellant to explain this. The appellant responded:[30]
I can't - I don't know what you're talking about. [Z] went down and got all the butane cans, and we blew them up on the fire.
[30] EROI ts 71 (Blue/Green AB 127).
Detective Webber asked the appellant to identify the fire being referred to, and the appellant indicated that he was referring to a bonfire at the tip on the orchard. The following exchange then occurred:[31]
[31] EROI ts 71 - 72 (Blue/ Green AB 127 - 128).
DET S/CON WEBBER: Okay, so tell me about that - that bonfire.
[APPELLANT]: I just did. There was a bonfire, and we blew up some butane cans.
DET S/CON WEBBER: Yeah, what sort of butane cans were they?
[APPELLANT]: Uh, I don't know - butane cans.
DET S/CON WEBBER: Yeah, what were they for, like?
[APPELLANT]: I don't know - they were under the house.
DET S/CON WEBBER: Under the house. What are they - what would they - what are they used for normally?
[APPELLANT]: I don't know. There [sic] not like the ones you fill the lighters with.
DET S/CON WEBBER: Okay, do you remember what brand? What they looked like?
[APPELLANT]: [Z's] got a good memory. Ask him.
DET S/CON WEBBER: How - how many did you -
[APPELLANT]: Uh, four, I think.
DET S/CON WEBBER: Four?
[APPELLANT]: Yeah.
DET S/CON WEBBER: Okay, um, on that occasion of that fire, so, you're saying that was up near the tip?
[APPELLANT]: Yep.
DET S/CON WEBBER: What, um, what else happened that night?
[APPELLANT]: We had a fire, blew up some cans.
The evidence of the appellant, the appellant's trial counsel and the appellant's sister in the appeal all indicated that, during trial preparation, the appellant was very keen to call Z as a witness at trial. However, the appellant's trial counsel was not prepared to call Z as a witness without a signed statement indicating what he would say. The defence did not know where Z was living so as to be able to interview or subpoena him. The appellant's trial counsel obtained a quote from a private investigator to locate Z, but funding for the private investigator was not forthcoming from the appellant or the Legal Aid Commission.
On 15 August 2023, the appellant's trial counsel sent an email to the Office of the Director of Public Prosecutions, relevantly stating:[32]
I am instructed to subpoena [Z] the complainant's brother to give evidence at trial. I do not have contact details for [Z] nor is it appropriate that I contact him directly given that there are protective bail conditions preventing this.
Please let me know whether the DPP will accept service of a subpoena on behalf of [Z]. If not then please provide me with is [sic] contact address for service.
[32] Yellow AB 41, 64.
On 20 August 2023, the trial prosecutor responded indicating that he was trial counsel in the matter and that:[33]
As to [Z], are there particular issues / matters which you would like to adduce evidence from him about? I am content to ask the Investigating Officer to approach [Z] to obtain a witness statement from him regarding those issues. Alternatively, we can also seek [Z's] consent for us to provide you with his contact details and you can speak to him. Finally, we can also seek his consent for us to provide you with his contact details for the purposes of serving a summons.
However, the DPP will not be accepting service of a witness summons on [Z's] behalf.
Please do let me know if you would like [Z] approached as outlined above.
[33] Yellow AB 42, 64.
On the evening of 21 August 2023, the appellant's trial counsel emailed the trial prosecutor indicating that she needed to urgently subpoena Z who would be called as a witness at trial. The appellant's trial counsel asked to be provided with Z's address 'ASAP'.[34] The trial prosecutor promptly responded:[35]
I sent you the attached email yesterday morning addressing your query about the [Z] issue.
As I noted in my email, I am content to ask the Investigating Officer to approach [Z] to obtain a witness statement from him (if he is willing to provide one) addressing any particular issues you wish to adduce evidence from him about.
Otherwise, I will have to seek [Z's] consent to provide you with his contact details.
[34] Yellow AB 45, 65 - 66.
[35] Yellow AB 46, 65.
The appellant's trial counsel and the trial prosecutor spoke on the telephone on the afternoon of 4 September 2023. The trial prosecutor indicated that Z had vulnerabilities and reiterated that he would ask the police to approach Z for a witness statement if the appellant's trial counsel identified the specific matters that the appellant wished Z to give evidence about. The appellant's trial counsel indicated that she would seek instructions from the appellant.[36]
[36] Trial counsel's affidavit, par 34 (Yellow AB 54), trial prosecutor's affidavit, par 23 (Yellow AB 38).
On the morning of 6 September 2023, the trial prosecutor sent an email to the appellant's trial counsel stating:[37]
As we discussed on Monday evening, can you please let me know if you would like me to ask the police to approach [Z] to obtain a statement from him about specific matters. You mentioned on Monday that you might be seeking instructions from [the appellant] about this.
Please feel free to give me a ring if you would like to discuss further.
The appellant's contentions
[37] Yellow AB 49.
Ground 2 is expressed in terms of a miscarriage of justice arising from the failure of the prosecution to meet its disclosure obligations. However, there is no evidence that the State had any material indicating the evidence that Z might give at trial or that the evidence which he might give at trial could be material to any issue at trial.
The appellant's particulars to ground 2 state:[38]
a. The prosecution tendered into evidence the Appellant's police interview (exhibit 6) where he told police that [Z] would corroborate his version of events. The prosecution failed to investigate and disclose [Z's] evidentiary material. This left the jury with the impression that [Z] would not corroborate the Appellant's version. That was an inference that should not have been left available to the jury in the circumstances.
b. The failure to investigate [Z's] evidence and then disclose [Z's] evidentiary material meant that the prosecution could not and therefore did not make a proper assessment of whether all relevant evidence was adduced at the Appellant's trial.
[38] White AB 7.
As such, ground 2 is premised on the existence of a duty by the prosecution to investigate and obtain evidence, which might subsequently be disclosed to an accused. The appellant's appeal counsel confirmed this to be the case in his oral submissions.[39]
Disposition
[39] Appeal ts 66 - 68.
Ground 2 fails on the basis that no such duty to investigate arose in the present case. The State did not breach its duty of disclosure by failing to disclose evidentiary material that it did not have.
Even if there was a duty to investigate, it is difficult to see how any breach of that duty could be established, or result in a miscarriage of justice, in the circumstances of the present case. The only indication that Z might give relevant evidence to which the appellant points is the incidental reference to Z in the lengthy EROI where the appellant refers to Z obtaining butane cans which were thrown on a bonfire, and the possibility that Z might remember the brand of butane can or what they looked like. The complainant's evidence was that Z was not present when she and the appellant went back to the bonfire and the offending the subject of count 1 occurred. In his evidence before this court, the appellant accepted that he and the complainant returned to the bonfire alone. Z could therefore not have given evidence which contradicted the complainant's evidence as to what occurred on that occasion.
Further, although the State was under no legal obligation to do so, the trial prosecutor offered to have police seek a statement from Z but needed to know what the appellant wanted Z to give evidence about before making those arrangements. The prosecutor, acting fairly and reasonably, was willing to arrange for further investigations to be undertaken. That did not occur because the appellant did not say what additional evidentiary material should be sought.
Finally, it is again relevant to note that the evidentiary material which the appellant says the State should have obtained related to the first occasion described above. To the extent Z's evidence was relevant at all, it could only have been directly relevant to the offence charged in count 1 of which the appellant was acquitted. The only significance which any evidence from Z could have had on the charges of which the appellant was convicted would concern the jury's assessment of the general credibility and reliability of the complainant's evidence. But given the common ground that Z was not present at the time of the events described by the complainant, it is difficult to see how Z's evidence could have led the jury to draw an adverse conclusion about the complainant's credibility.
In these circumstances, ground 2 is not established.
Ground 3: incompetence of counsel
General principles
The relevant general principles as to when a miscarriage of justice may arise through incompetent representation were summarised by this court in Huggins v The State of Western Australia.[40] We adopt that comprehensive analysis without repeating it, noting the following passage of the reasons in that case:[41]
An appellant who seeks to demonstrate that the conduct of his or her counsel caused a miscarriage of justice undertakes a heavy burden which is not easily discharged. This is a consequence of the adversarial nature of a criminal trial and the role played by counsel. Ordinarily, an accused is bound by the way the trial is conducted by counsel even if that was not in accordance with the wishes of the client. It is not a ground for setting aside a conviction that decisions made by counsel were made without or contrary to instructions or involved errors of judgment or even negligence. It is not the province of appellate courts to review the wisdom or prudence of the conduct of a trial by trial counsel. For example, an apparently rational decision by trial counsel as to what evidence to call or not to call does not give rise to a miscarriage of justice simply because an appellate court thinks it worked to the probable disadvantage of the appellant. (citations omitted)
[40] Huggins v The State of Western Australia [2018] WASCA 61 [376] - [401].
[41] Huggins [376].
Further, as was reiterated in Jeffery v The State of Western Australia,[42] this court does not examine whether a decision taken by the accused's counsel at the trial was, in fact, taken for the purpose of obtaining a forensic advantage or avoiding a forensic disadvantage. Rather, this court is concerned only with whether counsel's decision is capable of explanation on that basis. The question is whether there could be any reasonable explanation for the decision. The test is objective in character.
[42] Jeffery v The State of Western Australia [2018] WASCA 219 [104] (citing Buss P in Rodi v The State of Western Australia [2017] WASCA 81; (2017) 51 WAR 96 [115]).
In Jeffery,[43] it was held that a miscarriage of justice occurred because inadequate advice was given to Mr Jeffery by his legal advisers about his choice of whether or not to give evidence. Relevantly, defence counsel spoke to Mr Jeffery while he was in the dock, after the prosecutor in that case had closed the State's case and shortly before the trial was to resume after the lunch adjournment. It was found that they did not discuss the factors which caused counsel to advise Mr Jeffery not to testify, all of which (in the court's view) were debatable and one of which was incorrect. That occurred in circumstances where the court was satisfied that, on an objective assessment of the relevant facts and circumstances, there was, in substance, no forensic reason to not call Mr Jeffery as a witness.
[43] Jeffery [189] - [194].
In Craig v The Queen, the High Court considered how inadequate legal advice on an accused's choice to give evidence may give rise to a miscarriage of justice.[44] The court recognised that a trial may be unfair because the exercise of an accused's right to give evidence in his or her defence was effectively foreclosed by the receipt of incorrect advice.[45]
[44] Craig v The Queen [2018] HCA 13; (2018) 264 CLR 202.
[45] Craig [32].
However, the High Court rejected the proposition that, where an accused is aware of the right to give evidence, any material error in legal advice bearing on the exercise of the right denies an essential condition of a fair trial.[46] In the context of a decision not to give evidence, the court considered that: [47]
At the least, demonstration that incorrect advice has occasioned a miscarriage of justice will require consideration of the relation between the advice and the decision not to give evidence.
The High Court held that an appellate court's assessment of whether the decision not to give evidence deprived an accused of a fair trial looks to the nature and effect of the incorrect advice on the accused's decision. It is not an assessment of whether an objectively rational justification could be assigned to the decision.[48]
Failure to seek an adjournment of the trial by reason of absence of disclosure of Z's evidence
[46] Craig [26] - [27].
[47] Craig [27].
[48] Craig [33].
There was no significant dispute between the witnesses as to the facts critical to this aspect of ground 3 of the appeal.
Trial counsel met with the appellant and his sister, Ms C who was assisting the appellant with his defence and communications with trial counsel, at her offices on 23 January 2023. Prior to that meeting, the appellant sent an email requesting that Z be called as a witness for the defence. Neither the appellant nor his trial counsel had contact details for Z or any written statement of what his evidence might be. From January 2023, the appellant was pressing for Z to be called as a witness at trial but does not appear to have given clear instructions to trial counsel as to precisely what evidence Z would give if called as a witness.[49]
[49] Trial counsel's affidavit, pars 15 - 20 (Yellow AB 52); appellant's affidavit, pars 7 - 9 (Yellow AB 5); Ms C's affidavit, pars 5, 15 - 16 (Yellow AB 79, 80 - 81).
After a meeting between the appellant, Ms C and trial counsel on 15 August 2023, trial counsel sent the email referred to at [77] above to the Office of the Director of Public Prosecutions requesting contact details for Z so she could serve a subpoena on him.[50] On the morning of 20 August 2023 the prosecutor emailed trial counsel in the terms set out at [78] above. On the evening of 21 August 2023, trial counsel and the prosecutor exchanged emails in the terms set out at [79] above. Trial counsel forwarded the email exchange to the appellant and Ms C later that evening, stating:[51]
We have to wait for them to get back to us with an address for [Z] - if he consents.
Otherwise unless you can find an address for [Z] somehow we may not be able to subpoena him.
Ms C responded indicating that the appellant was 'devastated' and that they 'really needed & wanted [Z] to confirm the details for [the appellant's] case'.[52]
[50] Yellow AB 41, 64.
[51] Yellow AB 65.
[52] Yellow AB 65.
On the morning of 22 August 2023, trial counsel emailed Ms C a google search of a private investigator, Mr Pace. Later that morning, in response to a request from Ms C, trial counsel said that personal service of a subpoena was required.[53] On 23 August 2023, trial counsel emailed Mr Pace providing the clues as to Z's whereabouts which the appellant had been able to provide. On 25 August 2023, Mr Pace responded providing the results of initial inquiries and a fee estimate of between $1,200 to $2,800 to locate Z.[54]
[53] Yellow AB 63.
[54] Yellow AB 61 - 62.
On 28 August 2023, the appellant requested trial counsel to apply for an adjournment of the trial, which was listed to commence on 19 September 2023, at least in part out of concern about Z being available to give evidence at the trial.[55] On the evening of 28 August 2023, trial counsel provided the appellant with the following written advice on this issue:[56]
APPLICATION FOR ADJOURNMENT
I understand that you wish to apply for an adjournment of the trial. Unlike in other summary matters for a long standing DCWA trial there is no automatic right to an adjournment. The Court is loathe to delay hearings of matters which have been listed for some time.
I understand it is your perception that you need more time for a 'fair trial' and to 'subpoena [Z]'.
I must advise the trial is listed to commence on Tuesday 19 September 2023 and there are presently no grounds upon which the Court would grant an application to adjourn the trial. As matters stand an application for an adjournment has no reasonable prospects of success.
In my advice to you there is no shortage of time time [sic] to complete all necessary and proper preparations. We are well underway.
[55] Appellant's affidavit, par 11 (Yellow AB 5 - 6); trial counsel's affidavit, par 35 (Yellow AB 54); Yellow AB 68.
[56] Yellow AB 67.
Following trial counsel's conversation with the prosecutor referred to at [80] above, trial counsel sent an email in the following terms to the appellant and Ms C:[57]
The [prosecutor] rang me just now again saying:
1. [Z] was only 16 year old;
2. What is it we want to know he is offering to provide a statement from [Z];
3 . In his view any Judge will take a bad view of [Z] being subpoenaed to give evidence in a case involving his step father and his sister.
The Prosecutor may well be right. It will be up to a judge to decide if and when we find an address for [Z].
I said nothing except that I would take instructions. I still have not heard back from LAWA re funding for PI to find [Z]. This is ridiculous. Can you chase LAWA?
[57] Yellow AB 69.
The unchallenged and uncontradicted evidence of Ms C was that the appellant did not want to alert the Office of the Director of Prosecution to the issues which Z could give evidence about.[58]
[58] Ms C's affidavit, par 19 (Yellow AB 81).
Ms C also gave evidence that, following the appellant's conviction, she found an unopened letter from Legal Aid dated 28 August 2023 amongst the appellant's unopened mail which approved funding for a private investigator. She could not find a copy of this letter in trial counsel's file which was subsequently provided by trial counsel to Ms C.[59]
[59] Ms C's affidavit, pars 20 - 21 (Yellow AB 82).
Clearly the appellant wanted to call Z as a witness at his trial and wanted trial counsel to apply to adjourn the trial to the extent necessary to enable this to occur. However, questions of what witnesses to call and whether to apply for an adjournment of the trial were matters within trial counsel's remit. The critical question is then whether there was an objectively rational basis for trial counsel not to call Z as a witness or apply for an adjournment of the trial to enable that to occur.
Defence counsel would not ordinarily call a witness without knowing what that witness would say and having a signed statement of the evidence they could give. The forensic risk of calling a witness without knowing the evidence they could give, and that witness then giving damaging evidence, would ordinarily make this a highly inadvisable course to adopt.
The evidence on appeal does not show that the appellant ever provided a clear indication to trial counsel of any relevant evidence which he anticipated that Z could give. Further, there was nothing to suggest that Z was present at the times when the alleged offences were committed. The concern expressed by the appellant in this court related to evidence Z could give about the use of butane cans on the day of the offence alleged in count 1 of the indictment. However, the appellant's evidence in this court was that Z was not present when the appellant and complainant returned to the bonfire, which was the time the complainant alleged the appellant told her to inhale from butane cans and indecently dealt with her. We infer that the appellant would have given instructions to that effect to trial counsel in the proof of his proposed evidence. Therefore, Z was not in a position to give any evidence of what occurred between the appellant and complainant at the time the offence charged in count 1 was alleged to have occurred.
All that Z could do, on the appellant's evidence, was confirm the account the appellant gave to the police regarding the burning of some butane cannisters. That was not evidence that was relevant as it did not relate to a fact in issue at the trial. Nor could it be led to bolster the appellant's credibility in some general way.
In these circumstances, it was an objectively rational forensic decision not to seek an adjournment of the trial to enable the defence to subpoena Z and call him as a witness. Counsel could reasonably take the view that there was no reasonable prospect of the court granting an adjournment without any cogent explanation of a rational basis for apprehending that Z would be able to give any relevant significant evidence. Counsel could also reasonably take the view that there would be no forensic advantage to the appellant in calling Z as a witness even if he were available.
For these reasons, the first aspect of ground 3 is not established.
Failure to seek an adjournment to obtain evidence of reporter
Ground 3 also contends that a miscarriage of justice was caused by trial counsel's failure to apply to adjourn the trial when it was apparent that the prosecution were planning to conduct the trial without adducing evidence from the reporter, the defence case relied in part on evidence the reporter could give and that evidence was not able to be called at that time.
The merits of this aspect of ground 3 are to be assessed in light of the conclusions reached above that the Incident Report was not admissible at trial, and that the State's failure to call the reporter as a prosecution witness, or obtain a statement from the reporter, did not give rise to a miscarriage of justice.
As discussed above, the reporter could only have given evidence of what was said by the complainant to prove that the complainant gave an account to the reporter which was inconsistent with her evidence at trial. The complainant's evidence was that she could not remember making such a statement.[60] The statement which was attributed to the complainant in giving her account to the reporter was that the complainant remembered the appellant putting his hands down her pants and using his fingers to penetrate her at the time of the incident at which the offence charged in count 1 was alleged to have occurred.
[60] Trial ts 143.
In our view, there was a rational forensic basis on which counsel would not have sought to adduce evidence of this alleged prior inconsistent statement from the reporter, or sought an adjournment of the trial to allow her to do so. The statement attributed to the complainant tended to implicate the appellant in a serious uncharged offence against the complainant. The denial by the complainant of any recollection of the appellant committing this offence worked to the appellant's advantage. Further, the account of the first incident attributed to the complainant in the Incident Report was otherwise remarkably consistent with the account of the incident given in her evidence. Defence counsel would reasonably apprehend the risk that, if they sought to prove the prior inconsistent statement, then the whole of the complainant's account of the incident at the bonfire would be received in evidence. Counsel could reasonably take the view that the evidence which the reporter might give would tend to bolster rather than undermine the complaint's credibility.
In these circumstances, no miscarriage of justice arose from trial counsel's failure to seek an adjournment of the trial for the purpose of allowing the appellant to seek to adduce evidence from the reporter about what the complainant has told him or her. This aspect of ground 3 is not established.
Appellant's decision not to give evidence
The final aspect of ground 3 alleged that a miscarriage of justice arose as a result of trial counsel's advice to the appellant that he should not give evidence at trial.
Uncontroversial facts
There is a significant factual dispute as to what occurred between the adjournment of the court on 20 September 2023 and the recommencement of the trial on 21 September 2023. However, the following essential aspects of the events leading to and following from that point are not in dispute.
Up until the close of the prosecution case, it was the understanding of both the appellant and trial counsel that the appellant would give evidence in his own defence. The appellant had received advice about the significant forensic advantages in doing so, in light of what trial counsel perceived to be shortcomings in the account given in the appellant's EROI. A written proof of the appellant's proposed evidence was prepared over a number of meetings between the appellant and trial counsel which were attended by Ms C.
As noted above, trial counsel made an opening statement to the jury indicating the evidence which the appellant would give. At the close of the prosecution case, in the absence of the jury, she informed the trial judge that the appellant would elect to give evidence. However, as noted at [29] above, at 6.22 am on 21 September 2023, trial counsel sent an email to the trial judge's associate stating:[61]
I wish to advise that my client overnight has changed his instructions to me and no longer wishes to give evidence. This has been confirmed in writing.
I apologise for any inconvenience caused by this late notification.
[61] Yellow AB 25.
At some point on the morning of 21 September 2023, before the recommencement of the trial, the appellant signed a document (Election Document) in the following substantive terms which had been prepared and given to him by trial counsel:[62]
[62] Yellow AB 23 - 24.
21 September 2023
BY HAND DELIVERY
Dear [appellant]
Decision on whether of [sic] not to give evidence in your own defence
I have spoken to you now about the decision on 'election to give evidence.' It is time for me [to] update my advice and to report briefly on the prosecution case. Following my advice to you and the way the evidence has unfolded, I believe it may not be necessary for you to give evidence.
This is a case of word on word and will depend on [the complainant's] credibility which I believe has been damaged in cross examination.
However this is entirely your decision and you may wish to be safe rather than sorry later as juries are unpredictable[.]
In testifying you would also be able to deny under oath any sexual offending against [the complainant] and give the jury and [sic] explanation for her lying in that she bears a grudge against you.
You have been advised that, following the completion of your evidence in chief, (should you choose to testify), you will be cross examined by the prosecutor.
I stress this is entirely your decision and judgement call which carries real risks when and if you face cross examination which will be rigorous and will expose inconsistencies in your version of events.
I am also concerned that you told the Police in your interview you were blind drunk for most of the last year and did not remember what you were doing. There is a real danger of this being misconstrued and some sort of admission that you were/ are capable of doing anything.
Whatever decision you make on testifying on your own behalf of course is yours and I will respect it. In my view, on such matters 'the customer is always right'. We have discussed the pros and cons[.]
Yours faithfully,
[Trial counsel's signature]
I [appellant] ELECT
'TO GIVE EVIDENCE-NOT GIVE EVIDENCE
I UNDERSTAND THAT THIS IS ENTIRELY MY DECISION AND A JUDGEMNET [sic] CALL FOR ME. THERE ARE PROS AND CONS TO BOTH CHOICES
[Appellant's signature].
When the jury returned to the courtroom on 21 September 2023, the appellant elected not to give evidence in the following terms:[63]
QUINLAN CJ: Good morning, members of the jury. As I indicated at the end of yesterday, the State's case is completed. And now it is necessary for me to ask.
[APPELLANT]: do you intend to give evidence or adduce evidence in this matter?
[APPELLANT]: No, thank you.
[63] Trial ts 213.
There is a considerable divergence between the evidence of the appellant and Ms C, on the one hand, and trial counsel on the other hand, as to how the appellant came to change his mind about giving evidence at his trial. We will set out the relevant accounts before resolving the conflict in the evidence.
Appellant's account
Up until the evening of 20 September 2023, the appellant wanted to give evidence in his own defence and expected that he would do so.[64] After being released from custody on the late afternoon of 20 September 2023, the appellant walked with Ms C to trial counsel's office. There was a short meeting at which trial counsel told the appellant to 'go through' his evidence. It was agreed that they would meet at trial counsel's office at 6.00 am on 21 September 2023.[65]
[64] Appellant's affidavit, par 17 (Yellow AB 7)
[65] Appellant's affidavit, par 19 (Yellow AB 7); appeal ts 11 - 13.
Sometime after 8.30 pm on 20 September 2023, trial counsel telephoned the appellant. The appellant spoke to trial counsel on loudspeaker in the presence of Ms C. Trial counsel was 'slurring her words and was erratic in the topics of conversation'. Trial counsel told the appellant that he should not give evidence, that she had 'done enough' in cross-examination of the complainant and there was no need for the appellant to give evidence.[66] The appellant deposed:[67]
I was concerned about [trial counsel's] advice because of her intoxication and it was contrary to the advice she had provided me from the outset and as recently as the afternoon after court. [Trial counsel's] conversation was erratic. I remember that [trial counsel] said that she had been drafting her closing submissions to the jury and the submissions were 'orgasmic'. After this comment I terminated the phone call because it was my view that [trial counsel] was not making any sense.
[66] Appellant's affidavit, par 20 (Yellow AB 8); appeal ts 14 - 15.
[67] Appellant's affidavit, par 21 (Yellow AB 8).
In his affidavit, the appellant deposed that he was confused about trial counsel's advice that he should not give evidence as she had previously told him that he was required to give evidence because of 'Jeffrey's case'. Until the phone call on the evening on 20 September 2023, he was not aware that he had an election not to give evidence.[68]
[68] Appellant's affidavit, par 20 (Yellow AB 8).
The appellant and Ms C met with trial counsel in her office just after 6.03 am on 21 September 2023. Trial counsel immediately presented the appellant with the Election Document. Trial counsel did not discuss the content of the Election Document with the appellant during the meeting. Trial counsel told the appellant that she did not want him to give evidence because it would damage the defence case she had presented. The appellant did not read the Election Document as trial counsel said, 'You need to sign this'. This part of the meeting was rushed because trial counsel was in a hurry to notify the court that the appellant would not be giving evidence. The appellant signed the Election Document shortly after the meeting commenced.[69]
[69] Appellant's affidavit, pars 23 - 25 (Yellow AB 9).
After the appellant signed the Election Document, trial counsel read her closing address to the appellant and Ms C, amending it as she did so. The meeting lasted until about 9.00 am, when the appellant was required to hand himself in to court security.[70]
[70] Appellant's affidavit, par 26 (Yellow AB 10).
The appellant deposed:[71]
After signing the [Election Document] I was aware that I would not be giving evidence at my trial. The decision to sign the [Election Document] was based on [trial counsel's] oral advice. I was confused by the change in her advice, but I trusted the oral advice that she was providing. I did not know any different.
[Trial counsel] did not orally advise me about the consequences of not giving evidence. I was not aware that there would be no admissible evidence about the size and weight of the IBC water tank which the complainant alleged had fallen off the trailer and spilled. I assumed that that [sic] [trial counsel] would still be presenting evidence about the weight of the IBC water tank and that it had not spilled. I was not aware that it was not possible to adduce that evidence if I did not give evidence.
[71] Appellant's affidavit, pars 27 - 28 (Yellow AB 10).
In cross-examination of the appellant at the appeal hearing, the following exchange occurred:[72]
[Trial counsel] explained to you that it was your decision whether to give evidence or not?---There's always - yes, it was always my decision. Yes.
And you always understood that it was your decision?---Yes.
Yes. And nonetheless, you decided not to give evidence that morning; is that correct?---Yes, because that's what she told me.
Even though that's what you wanted to do?---Yes.
Ms C's account
[72] Appeal ts 14 - 15.
After the conclusion of the trial on 20 September 2023, Ms C was standing outside the District Court building waiting for the appellant to be released from custody. At one point, trial counsel was standing with Ms C and said that Ms C's mother would not be required to give evidence.[73]
[73] Ms C's affidavit, par 33 (Yellow AB 85 - 86).
After the appellant was released from custody, when trial counsel had already left, Ms C and the appellant walked to trial counsel's office.[74] For reasons Ms C could not recall, she did not accompany the appellant into trial counsel's office. As Ms C went to trial counsel's office a short time later, the appellant was walking out and said, 'She is drinking again'. The appellant walked off to the foyer area. Ms C continued to walk towards trial counsel's office. Trial counsel was walking out of her office as Ms C got to the doorway. The following exchange then occurred:[75]
[74] Appeal ts 26.
[75] Ms C's affidavit, par 34 (Yellow AB 86).
Ms C:Are you OK?
Trial counsel: I'm worried.
Ms C:What about?
Trial counsel: [The appellant].
Ms C:What do you mean?
Trial counsel: That he won't remember his evidence.
Ms C:His evidence will be from his memory of the events and that is what he will remember. Go talk to him.
Trial counsel: This isn't usual. People do not usually do this.
Ms C:This is the way you told us to do it - you asked for all the documents that I have typed and sent you.
Trial counsel then walked off towards the toilet with an unhappy and worried demeanour. Ms C (whose evidence was that trial counsel fell asleep during a meeting on 10 September 2023,[76] and was drinking and intoxicated at a meeting on 18 September 2023)[77] formed the view that trial counsel was intoxicated again. When trial counsel returned to the office a short time later, trial counsel said she was going home to work.[78]
[76] MC C's affidavit, par 23 (Yellow AB 83).
[77] Ms C's affidavit, pars 27 - 28 (Yellow AB 84).
[78] Ms C's affidavit, pars 35 - 36 (Yellow AB 87).
Late on 20 September 2023, perhaps as late as 11. 30 pm, trial counsel called the appellant's mobile phone. Ms C answered the call and passed the phone to the appellant. The appellant's phone was on speaker, and Ms C heard the conversation. Ms C gave the following account of the conversation in her affidavit:[79]
[Trial counsel] said that she was 'scared' and did not want the Appellant to testify. The Appellant asked [trial counsel] what had happened between the time we had left her office and the phone call. [Trial counsel] did not answer this question other than to repeat that she was scared. The Appellant asked [trial counsel] about 'Jeffrey's case', and she said that there was no need for him to give evidence because the judge had spotted the lies that the complainant was telling. [Trial counsel] was slurring her words. [Trial counsel] said that the complainant was a 'lying hoe' and other derogatory comments similar to that. [Trial counsel] said that her closing address was 'orgasmic' at which point the Appellant terminated the phone call and said we would discuss it further tomorrow morning. Throughout this call [trial counsel] was slurring her words and her conversation was rambling. From [trial counsel's] demeanour and the rambling inappropriate nature of some of the conversation I formed the view that [trial counsel] was intoxicated.
[79] Ms C's affidavit, par 39 (Yellow AB 87 - 88).
Ms C's evidence was that she and the appellant attended trial counsel's office at 6.03 am on 21 September 2023. Trial counsel said to the appellant, 'Are you on board?', and stressed that the appellant's decision needed to be made quickly. Ms C deposed:[80]
The Appellant again referred to what [trial counsel] had told him about 'Jeffrey's case' which was that he was required to give evidence in his defence. [Trial counsel] said that the judge has seen through the complainant's lies. The Appellant said to me 'What do you think [C]' I said 'I can't make that decision for you'. … The Appellant then said to [trial counsel], 'you're my lawyer, I am putting my life in your hands'. The Appellant then signed the letter of advice that [trial counsel] had provided to him. I did not read the letter of advice. I know the Appellant did not read the letter of advice because the Appellant did not have his reading glasses that day.
[80] Ms C's affidavit, par 40 (Yellow AB 88 - 89).
Under cross-examination at the appeal hearing, Ms C said that, when trial counsel asked the appellant to sign the Election Document, she said her advice was there was no need for the appellant to give evidence and the trial judge wanted to move things on quickly.[81]
Trial counsel's account
[81] Appeal ts 28.
Trial counsel's evidence was that, up until the evening of 20 September 2023, trial preparation had been conducted on the basis that the appellant would give evidence in his own defence. In the days prior to trial, she had given advice to the appellant to the effect that he had performed very poorly in the EROI and that he would need to give evidence in his own defence. In doing so, she had referred to, and handed the appellant a copy of, the decision in Jeffrey to emphasise the importance of having evidence to contradict the account of the complainant, who she regarded as a strong witness.[82]
[82] Trial counsel's affidavit pars 10 - 14, 60 - 62 (Yellow AB 51 - 52, 57 - 58); appeal ts 41 - 42.
In their dealings prior to trial, Ms C did all of the talking and the appellant deferred to her. The appellant hardly said a word, deferred to and agreed with Ms C and insisted that trial counsel deal with Ms C and that she would talk for him. Ms C's demeanour was always highly assertive.[83]
[83] Trial counsel's affidavit, par 43 (Yellow AB 55); appeal ts 39.
Trial counsel indicated that, on 8 September 2023, she and the appellant attended the Office of the Director of Public Prosecutions to view the CWI. During the viewing, the appellant became upset and could not continue the view. Shortly afterwards, Ms C called trial counsel and informed her that the viewing was traumatic for the appellant.[84]
[84] Trial counsel's affidavit, pars 37 - 40 (Yellow AB 54 - 55).
On the evening of 20 September 2023, trial counsel received a phone call from Ms C, who said in an aggressive manner that the appellant would not testify because the thought of giving evidence brought up his own childhood trauma. Ms C told trial counsel that she did not understand about childhood trauma and being sexually abused as a child. Ms C said that the appellant could not give evidence, would not give evidence and that trial counsel would just have to accept that. Trial counsel said that this was a mistake and tried to convince Ms C that the appellant should give evidence. Trial counsel said that there was no reasoning with Ms C, who was very aggressive. Ms C said that the appellant would not be giving evidence, and that trial counsel did not understand trauma.[85]
[85] Trial counsel's affidavit pars 65 - 69 (Yellow AB 58); appeal ts 38 - 39
After this call, trial counsel drank two glasses of wine and said that she 'tried to make the best of a really bad situation' and was 'beside myself with stress and anxiety about this decision'.[86] Trial counsel called the appellant at about 9.00 pm.[87] She conveyed her view that his decision not to give evidence was the wrong decision, but accepted that it was the appellant's decision and that they would make the best of it.[88]
[86] Appeal ts 39.
[87] Appeal ts 40.
[88] Trial counsel's affidavit, par 76 (Yellow AB 59).
Either late that evening or early on the morning of 21 September 2023, trial counsel prepared the Election Document. Trial Counsel accepted that the Election Document was 'badly worded' and had been 'taken off a precedent'. Her evidence was that she 'wasn't thinking' and was 'operating in stress mode'.[89]
[89] Appeal ts 42 - 43.
The appellant and Ms C were about 2.5 hours late for the arranged meeting at trial counsel's offices at 6.00 am on 21 September 2023. Trial counsel sent the email to the court set out at [117] above, which advised the appellant's instructions had been confirmed in writing, when she expected to have written instructions but did not have her instructions in writing. Trial counsel did this because she wanted the court to know as soon as possible of the change in decision. The appellant signed the Election Document at about 8.00 - 8.39am, after he and Ms C arrived at trial counsel's office.[90]
Presentation of the witnesses
[90] Appeal ts 41 - 43.
The evidence before the court does not include any objective evidence which significantly assists in resolving the conflict in the witnesses' accounts as to what occurred between the adjournment of the court on 20 September 2023 and the resumption of proceedings on 21 September 2023. For example, while Ms C refers to having sent a text message which would support her and the appellant's account of when they arrived at trial counsel's office on the morning of 21 September 2023, no copy of the text message was produced.
The Election Document is inconsistent with the appellant's account of events but is also inconsistent with the oral advice which trial counsel said she provided the appellant. The appellant, supported by Ms C, explains this by saying he did not read the Election Document before he signed it. Trial counsel seeks to explain the Election Document by saying it was hastily prepared from a precedent from another case.
There was nothing in the appellant's demeanour in the witness box which would lead us to make an adverse credibility finding against him. However, the stark inconsistency between the Election Document and the appellant's account does count against an uncritical acceptance of his evidence, and negatively impacts on our assessment of his credibility as a witness.
There was one aspect of Ms C's evidence which gave us particular concern about the credibility of her evidence. Despite her denial in cross‑examination that she intended to imply that trial counsel was an alcoholic,[91] that was plainly what Ms C was trying to do. Ms C's evidence as to trial counsel's apparent intoxication prior to the late evening of 20 September 2023 was not supported by the appellant's evidence. Even if (and we do not find that this was the case) trial counsel had a drinking problem, it is highly improbable that she would have been visibly intoxicated a short time after the rise of the court on 20 September 2023 as Ms C alleged. Ms C's evidence about trial counsel's alleged intoxication seemed to us to be designed to bolster the appellant's narrative.
[91] Appeal ts 26.
Trial counsel did not present well as a witness. She was very emotional and defensive when giving evidence. On more than one occasion, she gave non-responsive argumentative answers to questions posed in cross-examination. Trial counsel was prone to hyperbole, for example saying that this was the 'worst case' and the 'worst client' she had ever had to deal with,[92] and that she had 'worked harder on this case than I've ever worked on a case in my life'.[93] She indicated that she informed the trial court that the appellant's instructions that he no longer wished to give evidence had been confirmed in writing when that was not yet the case. Trial counsel did not have the benefit of contemporaneous notes to refresh her memory. Her evidence was that Ms C collected the client file a couple of days after the verdicts (presumably without trial counsel retaining a copy) and the 'copious' notes which trial counsel had taken had 'disappeared'.[94] Trial counsel's memory of critical events was often vague. These matters cause us to approach trial counsel's evidence with considerable caution and reservation.
[92] Appeal ts 39.
[93] Appeal ts 44.
[94] Appeal ts 44.
We have reservations about the evidence of all three witnesses who gave conflicting evidence as to what occurred between the court adjourning on 20 September 2023 and resuming on 21 September 2023. In our view, that conflict is best resolved by reference to the objective probabilities rather than a comparative assessment of the credibility of their evidence by reference to the matters discussed at [142] - [145] above.
Disposition
It was common ground that, up until the adjournment of the court on 20 September 2023, the defence case had been prepared on the basis that the appellant would give evidence. Considerable time had been spent proofing the appellant. Trial counsel had opened the defence case to the jury by reference to the evidence which the appellant would give. She had informed the trial judge at the conclusion of the hearing on 20 September 2023 that the appellant would be giving evidence.
There was no motivation for trial counsel to want to change the planned course of the appellant giving evidence in his own defence. Trial counsel may have harboured legitimate concerns about how the appellant would perform in the witness box. However, from trial counsel's perspective, all she had to do was lead the appellant through his proof of evidence and let the chips lie where they fell in cross-examination. The change of approach greatly complicated trial counsel's task. It would be inconsistent with the way she had opened the defence case, and contrary to what she had told the trial judge, who happened to be the Chief Justice. Trial counsel's assessment was that the EROI was damaging to the defence case. The challenge of presenting a cogent argument to the jury in her closing address would be significantly increased by the absence of any sworn evidence from the appellant contradicting the complainant's account.
In the above circumstances, it seems to us to be inherently implausible that trial counsel would get 'cold feet' and either urge or insist that the appellant elect not to give evidence at trial. It is much more likely that an accused person in the position of the appellant would do so in the stressful and unfamiliar atmosphere of a criminal trial.
In the passage quoted at [127] above, the appellant accepts that he appreciated that the decision about whether to give evidence was his to make. That is also clearly conveyed by the large bold type at the point the appellant signed the Election Document. We are satisfied that the appellant understood when he elected not to give evidence that this was his choice.
The state of the evidence does not enable us to make any finding as to precisely what was said by the appellant, Ms C and trial counsel on the evening of 20 September 2023. However, it is much more probable that the impetus for the change of approach came from the appellant rather than trial counsel and that trial counsel advised the appellant that she thought that this was a wrong decision. While we cannot find that trial counsel specifically referred to the advantages of giving evidence on that evening, we are satisfied that those advantages had been conveyed to the appellant prior to the commencement of trial in the discussions referencing Jeffrey to which all three witnesses referred.
In these circumstances, we are not satisfied that the exercise of the appellant's right to give evidence in his defence was effectively foreclosed by the receipt of incorrect advice, or that the circumstances in which the appellant elected not to give evidence otherwise gave rise to any miscarriage of justice. This aspect of ground 3 is not established.
Ground 4
Ground 4 alleged that a miscarriage of justice arose from a combination of the matters raised by grounds 1 ‑ 3. Ground 4 is a 'catch‑all' ground which adds nothing substantive to the appellant's case on appeal, and fails for the reasons explained above.
Orders
For the above reasons, none of the appellant's grounds of appeal are established. While we would grant leave to appeal, and admit the additional evidence, the appeal should be dismissed. We would therefore make the following orders:
1.Leave to appeal is granted.
2.The appellant's applications in an appeal dated 16 May 2024 and 14 January 2025, seeking leave to adduce additional evidence in the appeal, are granted.
3.The respondent's application in an appeal dated 26 July 2024, seeking leave to adduce additional evidence in the appeal, is granted.
4.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LK
Associate to the Hon Justice Mitchell
5 SEPTEMBER 2025
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