LFG v The State of Western Australia
[2015] WASCA 88
•4 MAY 2015
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: LFG -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 88
CORAM: MARTIN CJ
BUSS JA
MAZZA JA
HEARD: 13 OCTOBER 2014
DELIVERED : 4 MAY 2015
FILE NO/S: CACR 201 of 2013
CACR 202 of 2013
BETWEEN: LFG
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :DERRICK DCJ
File No :IND 141 of 2013
Catchwords:
Criminal law - Jurisdiction, practice and procedure - Trial by judge alone - Section 118 of the Criminal Procedure Act 2004 (WA) - Principles guiding the exercise of the discretion to order trial by judge alone
Criminal law - Evidence - Propensity evidence - Whether risk of unfair trial outweighs probative value - Turns on own facts
Criminal law - Appeal against conviction - Whether verdicts inconsistent - Whether verdicts were unsafe and unsatisfactory - Turns on own facts
Criminal law - Appeal against conviction - Application of the proviso - Turns on own facts
Criminal law - Appeal against sentence - Totality principle - Whether total effective sentence manifestly excessive - Whether sentence crushing due to appellant's age - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA), s 30(3), s 30(4)
Criminal Code (WA), s 320(4), s 321(2), s 321(4)
Criminal Procedure Act 2004 (WA), s 98, s 118, s 119, s 120
Evidence Act 1906 (WA), s 31A
Result:
Appeals dismissed
Category: A
Representation:
Counsel:
Appellant: Mr T F Percy QC
Respondent: Ms A L Forrester
Solicitors:
Appellant: Gibbs Legal
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27
APC v The State of Western Australia [2012] WASCA 159
Arthurs v The State of Western Australia [2007] WASC 182
Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92
BDS v The State of Western Australia [2009] WASCA 215
Bell v The State of Western Australia [No 2] [2014] WASC 260
Braham v The Queen (1994) 116 FLR 38
Buiks v The State of Western Australia [2008] WASCA 194; (2008) 188 A Crim R 362
Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378
Chiha v The State of Western Australia [No 2] [2015] WASC 147
Coates v The State of Western Australia [2009] WASCA 142
Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413
Downie v The State of Western Australia [2013] WASCA 244
Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237
EPD v The State of Western Australia [2011] WASCA 264
FGC v The State of Western Australia [2008] WASCA 47
GGM v The State of Western Australia [2011] WASCA 259
Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414
Gulyas v The State of Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539
Hinch v Attorney General (Vic) (1987) 164 CLR 15
Horsman v The State of Western Australia [2008] WASCA 190; (2008) 187 A Crim R 565
House v The King [1936] HCA 40; (1936) 55 CLR 499
JAW v The State of Western Australia [2012] WASCA 7
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
JS v The State of Western Australia [2012] WASCA 198
Lacey v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
M v The State of Western Australia [2006] WASCA 256
Mack v The State of Western Australia [2014] WASCA 207
MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348
MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
Minister for Employment and Workplace Relations (Cth) v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194
NCH v The State of Western Australia [2013] WASCA 29
Ninyette v The State of Western Australia [2012] WASCA 184
PP v The State of Western Australia [2004] WASCA 144
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
R v Glennon [1992] HCA 16; (1992) 173 CLR 592
R v Hunter (1984) 36 SASR 101
R v Iles [2009] VSCA 197
R v Kirkman (1987) 44 SASR 591
R v Whyte [2004] VSCA 5; (2004) 7 VR 397
Reeves v The Queen [2013] HCA 57; (2013) 88 ALJR 215
RFS v The State of Western Australia [2012] WASCA 58
Riley v The State of Western Australia [2007] WASCA 22
Rowan v The State of Western Australia [2009] WASCA 185
Schmidt v The State of Western Australia [No 3] [2014] WASC 156
Scrutton v The Queen [2000] WASCA 360
SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
Smith v The State of Western Australia [2010] WASCA 176
Stevens v The Queen [2005] HCA 65; (2005) 227 CLR 319
Stubley v The State of Western Australia [2010] WASCA 36
Stubley v The State of Western Australia [2011] HCA 7; (2011) 242 CLR 374
The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373
The State of Western Australia v Brown [No 2] [2013] WASC 280
The State of Western Australia v FJG [2012] WASCA 206
The State of Western Australia v Martinez [2006] WASC 25; (2006) 159 A Crim R 380
The State of Western Australia v Osborne [2007] WASCA 183
The State of Western Australia v Prince [2011] WASCA 22
The State of Western Australia v Rayney [2011] WASC 326; (2011) 42 WAR 383
The State of Western Australia v Schmidt [2012] WASC 172
Travelex Ltd v Federal Commissioner of Taxation [2010] HCA 33; (2010) 241 CLR 510
TVM v The State of Western Australia [2007] WASC 299; (2007) 180 A Crim R 183
VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1
WCW v The State of Western Australia [2008] WASCA 232; (2008) 191 A Crim R 22
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
Williams v Smith [1960] HCA 22; (1960) 103 CLR 539
Woods v The Queen (1994) 14 WAR 341
Table of Contents
Martin CJ
Summary
The indictment
The admission of the evidence of the appellant's prior convictions
The application for trial by judge alone
The trial
The opening addresses
The evidence
The prosecutor's closing address
Closing address of defence counsel
The trial judge's directions to the jury
The appeal against conviction
Ground 1
The State of Western Australia v Martinez
Arthurs v The State of Western Australia
TVM v The State of Western Australia
Coates v The State of Western Australia
The State of Western Australia v Rayney
The State of Western Australia v Schmidt
Schmidt v The State of Western Australia [No 3]
Bell v The State of Western Australia [No 2]
The proper construction of s 118
Relevant and irrelevant considerations
The application of these principles to the present case
The proviso
Grounds 2 and 3
Ground 4
Count 1
Counts 2 and 3
Count 4
Counts 5 and 6
Counts 7 and 8
Count 9
Counts 10 - 15
Counts 16 - 21
Counts 22 - 33
Conclusion in relation to ground 4
Ground 5
Inconsistency with the acquittals
The absence of early complaint
The absence of any forensic evidence or any other corroborative evidence
The absence of any confession or admission by the appellant
The evidence relating to the appellant's circumcision
The evidence relating to the time of the motel check‑ins
The evidence relating to the offences in the country
The absence of any sexual or affectionate references in any of the Facebook communications
The evidence relating to the Point Peron incident
Appeal against conviction - conclusion
The appeal against sentence
Sentencing observations
The sentences imposed
The grounds of appeal
Ground 1
Grounds 2 and 3
Sentence appeal - conclusion
Buss JA
Summary of the convictions recorded and the sentences imposed
The age of the appellant and the age of the complainant
The relationship between the appellant and the complainant
The State's application to adduce propensity evidence at the trial
The appellant's application for a trial by a judge alone
The State's case at trial
The appellant's case at trial
Appeal against conviction: the grounds of appeal
Appeal against conviction: the organisation of the balance of these reasons
Appeal against conviction: ground 2: s 31A of the Evidence Act
Appeal against conviction: ground 2: the agreed facts in relation to the propensity evidence
Appeal against conviction: ground 2: the appellant's submissions
Appeal against conviction: ground 2: its merits
Appeal against conviction: ground 3: the appellant's submissions
Appeal against conviction: ground 3: its merits
Appeal against conviction: ground 1: s 118 of the Criminal Procedure Act
Appeal against conviction: ground 1: the appellant's submissions before Martino CJDC and Martino CJDC's reasons
Appeal against conviction: ground 1: the appellant's submissions in the appeal
Appeal against conviction: ground 1: the proper construction of s 118 of the Criminal Procedure Act
Appeal against conviction: ground 1: its merits
Appeal against conviction: ground 4: the appellant's submissions
Appeal against conviction: ground 4: its merits
Appeal against conviction: ground 5: the appellant's submissions
Appeal against conviction: ground 5: its merits
Appeal against conviction: ground 1: the proviso
Appeal against conviction: conclusion
Appeal against sentence: the grounds of appeal
Appeal against sentence: ground 1
Appeal against sentence: grounds 2 and 3
Appeal against sentence: conclusion
Mazza JA 113
MARTIN CJ:
Summary
These are appeals against the appellant's conviction on one count of indecent dealing with a child under the age of 13 years, nine counts of indecent dealing with a child of or over the age of 13 and under the age of 16 years, and five counts of sexual penetration of a child of or over the age of 13 and under the age of 16 years, after trial by jury in the District Court of Western Australia, and against the total effective sentence of 7 years 10 months imprisonment imposed upon the appellant following his convictions.
All the charges on the indictment brought against the appellant alleged offences committed in relation to a single male complainant, who was aged between 11 and 14 at the time of the alleged offences, and who had a familial relationship with the appellant, although the complainant was not a member of the appellant's immediate family. Prior to the trial, Stevenson DCJ ruled that evidence of the appellant's prior conviction of seven sexual offences committed against four boys who were aged 11 and 13 at the time of the offences was admissible pursuant to s 31A of the Evidence Act 1906 (WA).
After that ruling the appellant applied for an order for trial by judge alone[1] essentially on the ground that such an order was in the interests of justice because it would eliminate any risk of an unfair trial as a result of the admission into evidence of his prior convictions. That application was dismissed by the Chief Judge.
[1] Pursuant to s 118 of the Criminal Procedure Act 2004 (WA).
The appellant was tried on an indictment containing 33 counts. The trial judge directed the jury to enter a verdict of acquittal on six of those counts after upholding a submission that the appellant had no case to answer in relation to those counts. Of the remaining 27 counts, the jury returned verdicts of guilty on 15 counts and verdicts of not guilty on the remaining 12 counts.
There are five grounds of appeal against conviction. The first ground asserts that the Chief Judge erred in dismissing the appellant's application for an order for trial by judge alone. The second and third grounds assert that Stevenson DCJ erred in ruling the evidence of the appellant's prior convictions admissible pursuant to s 31A of the Evidence Act. The fourth ground asserts that the appellant's convictions are unsafe and unsatisfactory because they are inconsistent with the jury's verdicts of acquittal on 12 of the counts on the indictment. The fifth ground asserts that the convictions are unsafe and unsatisfactory having regard to all the evidence and all the circumstances of the case.
For the reasons which follow, the first ground of appeal relating to the dismissal of the appellant's application for an order for trial by judge alone should be upheld, the appellant's convictions quashed, and a retrial ordered, on the ground that the consequence of the error was to deny the appellant a trial quite different in character to the trial which he received. However, the four other grounds of appeal against conviction and the appeal against sentence should be dismissed.
The indictment
The appellant was arraigned on an indictment which alleged 33 separate offences of either indecent dealing or sexual penetration of the complainant. Three of the counts of indecent dealing related to a time at which the complainant was under the age of 13. The remaining counts of indecent dealing, and all the counts of sexual penetration were alleged to have occurred at a time when the complainant was between 13 and 16 years of age. The first offence in time was said to have occurred in the latter half of 2009, and the other offences were said to have occurred at various times between then and May 2012. A table setting out each offence alleged, and the date upon which that offence was alleged to have occurred, is at [82] below.
The conduct of the appellant alleged to constitute the commission of the offences included procuring the complainant to show him his pubic hair, asking the complainant to show him his penis, masturbating the complainant, performing fellatio on the complainant, and procuring the complainant to masturbate the appellant.
The admission of the evidence of the appellant's prior convictions
Prior to trial the prosecution applied for a ruling as to the admissibility of the evidence of the appellant's prior convictions.[2] For present purposes it is sufficient to identify that evidence by reference to the statement of agreed facts tendered by consent at the appellant's trial, following Stevenson DCJ's ruling that evidence of the prior convictions was admissible. That statement established the following.
[2] Pursuant to s 98 of the Criminal Procedure Act 2004 (WA).
On 26 August 2005 the appellant was convicted of seven offences. At the time of the offences, the appellant was about 59 years of age and engaged as the school bus driver and unofficial photographer in a country town in the Wheatbelt.
One of the victims (VP) showed an interest in photography and the appellant agreed to teach him photography and offered him employment as a casual assistant. VP engaged in various recreational activities with the appellant and was allowed to play computer games on the appellant's computer.
The appellant indecently dealt with VP between February and November 2003. VP was 13 years of age at the time. VP went to see the appellant in order to tell him about his recent holiday. While VP was standing next to the appellant, the appellant leant forward and stuck his hands under VP's pants and underpants and started playing with his penis. The appellant did that for about one minute before VP told him to stop and he did so.
On another occasion VP travelled with the appellant to a site in rural Western Australia to attend and photograph a function. On the way to the site the appellant placed his hand on the outside of VP's clothing and rubbed his penis until he had an erection. The incident took approximately one minute.
The appellant again dealt indecently with VP between December 2003 and January 2004. While VP was at the appellant's house, the appellant pulled down his pants and underpants and masturbated himself in front of VP for between 30 seconds and one minute.
Between 1 December and 31 December 2003, the appellant indecently dealt with another victim, KAG, who was then 11 years of age. KAG was visiting the appellant's house with another victim, MSO. The appellant drove both boys to a remote spot, where he offered pornographic magazines to KAG. After KAG looked at the magazines, the appellant asked him if he had an erection. While KAG was in the rear of the vehicle, the appellant leant through from the front seat and put his hands down KAG's pants and underpants and rubbed his penis for several seconds.
Between January and February 2004, the appellant encouraged MSO, who was then 11 years of age, to engage in an indecent act. MSO was reading pornographic books in the rear of the appellant's van. The appellant asked MSO if he would show him his penis. MSO initially declined, although after being requested three more times he eventually pulled his pants down and exposed his penis to the appellant.
During the same period, the appellant indecently dealt with MSO by reading the contents of pornographic magazines to him and talking about their contents, then asking MSO if he had an erection, then placing his hands on MSO's pants for a few seconds in order to see if in fact MSO had an erection.
On 5 February 2004 the appellant dealt indecently with MJT, who was then 11 years of age. The appellant offered MJT a lift to a house where MJT had to report after school. Before commencing the journey, the appellant spoke to MJT about sexual matters and during the journey the appellant asked MJT if he had an erection. The appellant then placed his hand on MJT's penis over his clothing and rubbed MJT's penis for a few seconds.
The appellant opposed the admission of the evidence of his prior convictions, submitting that the evidence went no further than establishing generalised sexual behaviour, which was not significantly probative of the matters in issue in the charges which were pending.
The prosecution submitted that the evidence had significant probative value because it demonstrated that the appellant had a sexual interest in young boys between 11 and 13 years of age, and that as a mature adult male he was prepared to commit offences of a sexual nature against them. The State also asserted that an aspect of the offence committed against MSO bore a striking similarity to the manner in which the prosecution asserted that the appellant commenced his offending against the complainant in the charges then pending. MSO had given a statement to police to the effect that the appellant questioned whether he had pubic hair before asking him to show him his penis. The prosecution case was to the effect that the appellant had a similar conversation with the complainant at the outset of the sustained period of sexual offending alleged by the State. The State also asserted that the prior convictions established a propensity to transform existing relationships which the appellant had with young boys, such as the complainant, into a sexual relationship.
Stevenson DCJ ruled that the evidence was admissible pursuant to s 31A of the Evidence Act. In his reasons, he outlined the charges pending against the appellant and observed that as the appellant denied any improper or indecent dealing with the complainant, the issue in the case would turn largely upon the credibility of the complainant and the accused, and in particular whether the prosecution could establish beyond reasonable doubt the elements of each offence charged in that context.
Stevenson DCJ considered that the evidence was relevant, and significantly probative because it could rationally affect the probability of the facts alleged by the prosecution having occurred. Stevenson DCJ considered that there was a 'high degree of similarity' between the offences of which the appellant was convicted, and the offences he was alleged to have committed. In his view the prior convictions demonstrated that the appellant had a propensity to engage in sexually offensive behaviour against young boys between 11 and 13 years of age.
In addressing the question of whether the probative value of the evidence, compared to the degree of risk of an unfair trial was such that fair‑minded people would think that the public interest in adducing all relevant evidence should take priority over the risk of an unfair trial, Stevenson DCJ expressed the view that s 31A had the effect of allowing:
[T]he introduction of evidence which would, in every case, be prejudicial to the accused by reason of its nature. The issue is whether the evidence is so prejudicial that it would prevent the accused from having a fair trial on the issues, the subject of the indictment.[3]
[3] ts 54.
In that context, Stevenson DCJ expressed the view that the trial judge would be able to give a direction to the jury 'in proper terms and with sufficient judicial force' to explain the manner in which they could use the evidence of the appellant's prior convictions, and it should be assumed that the jury will understand and act in accordance with such directions. That observation caused Stevenson DCJ to conclude that he was not persuaded that the appellant would have an unfair trial if the propensity evidence was placed before the jury.
The application for trial by judge alone
Shortly after Stevenson DCJ ruled the evidence of the appellant's prior convictions to be admissible, the appellant applied for trial by judge alone. That application was heard by Chief Judge Martino. Although the trial was to commence the following month, at that stage the identity of the trial judge was not known to the parties.[4]
[4] See Criminal Procedure Act 2004 (WA), s 118(2).
On behalf of the appellant it was submitted that there was a risk that one or more jurors may find it difficult to exclude from consideration the prejudicial effect of evidence to the effect that the appellant had previously interfered sexually with four young boys in approximately the same age group as the complainant. Reliance was placed upon the express recognition of that risk in the wording of s 31A of the Evidence Act. It was submitted that an order for trial by judge alone would eliminate that risk and would have no detrimental effects because trial by judge alone would be quicker and therefore less expensive for all parties.
In his reasons for dismissing the application, Chief Judge Martino observed that the case did not fall within s 118(6) of the Criminal Procedure Act 2004 (WA) because there was no factual issue which would require the application of objective community standards such as indecency, because the only question in the case would be whether the prosecution had proven to the requisite standard that the alleged offending conduct occurred.
Chief Judge Martino cited with approval observations made by Commissioner Sleight in The State of Western Australia vRayney[5] to the effect that the interests of justice comprehended by s 118(6) were not narrow and varied from case to case. He also cited with approval observations made by Hall J in The State of Western Australia v Schmidt[6] in which his Honour observed:
The interests of justice does not assume a preference for one form of trial over the other. Each has its advantages and disadvantages as to which see Arthurs. However, the interests of justice must take into account that juries, properly directed, are capable of ignoring prejudicial publicity and returning a true verdict on the evidence.
[5] [2011] WASC 326; (2011) 42 WAR 383.
[6] [2012] WASC 172
Chief Judge Martino expressed the view that similar principles applied to the appellant's case, relying also upon observations made by McKechnie J in TVM v The State of Western Australia:[7]
[I]t is the law and the experience of the law that juries are, when properly directed, able to put aside prejudice and sympathy, and deliver verdicts on the facts in a dispassionate manner.
[7] TVM v The State of Western Australia [2007] WASC 299; (2007) 180 A Crim R 183 [29].
Chief Judge Martino then observed:
Now, in this case, the accused wishes there to be trial by judge alone. That, of course, does not determine the application but it is a relevant factor that I bear in mind in making this decision. I also bear in mind that juries are capable of ignoring prejudice and delivering a true verdict according to the evidence.
In my view, the jury will be able to put aside prejudice and impermissible reasoning if a jury does sit on this trial and is the tribunal of fact, particularly with appropriate directions from the trial judge.
Bearing in mind those matters, it is my view that another factor that is relevant is that there is a public interest in appropriate cases that representatives of the community in the form of members of the public who are randomly selected for jury duty, to accept their public responsibility and determine the issue of whether the State has proved an accused person is guilty of a charge that that person faces.
In my view, because I can be confident that a jury, properly directed, could put aside impermissible reasoning and any prejudice, notwithstanding the desire of the accused and the practical matters to which Mr Percy has referred … I reach the conclusion that it is not in the interests of justice for there to be trial by judge alone in this case. As Hall J has said, each form of trial has its advantages and disadvantages.
I therefore conclude that the application should be dismissed and I dismiss the application.[8]
[8] ts 73 ‑ 74.
The trial
The appellant was arraigned before Derrick DCJ and a jury in a trial which lasted nine days. It will be necessary to refer in greater detail to the evidence given during the course of the trial in the context of the specific grounds of appeal. For present purposes it will be sufficient to outline the general course of the trial.
The opening addresses
During the course of the prosecutor's opening, he referred to the agreed statement of facts with respect to the appellant's prior convictions for sexual offences against four boys who were about the same age as the complainant.
A short time later, after the opening address of counsel for the appellant, the trial judge referred the jury to the evidence of the appellant's prior convictions and told the jury that the State would contend that the appellant's sexual interest in boys of around the complainant's age made it more likely that he had committed one or more of the offences with which he was charged.
The trial judge foreshadowed more detailed directions with respect to the use which the jury could make of this evidence later in the trial. However, he made two points to the jury at this early stage of the trial. The first was that it was for the jury to determine whether the appellant's prior convictions made it more likely that he committed one or more of the offences with which he had been charged. If so, they were able to take his convictions into account in deciding whether the State had proven one or more of the charges beyond reasonable doubt. The second point made by the trial judge was that the evidence of prior convictions was not by itself proof of one or more of the offences with which the appellant had been charged, and the jury must not reason that simply because the appellant had committed offences in the past, he must have committed one or more of the offences with which he had been charged. In the context of the second point, the trial judge directed the jury that people do not always act in accordance with all their inclinations on every opportunity.
After these directions to the jury, the prosecutor read to the jury the statement of agreed facts relating to the appellant's prior convictions, which was received in evidence as an exhibit.
The evidence
The first day of trial was largely occupied by the viewing of the complainant's pre‑recorded evidence, which comprised the bulk of his evidence‑in‑chief. That evidence had been pre‑recorded on 6 June 2012, a little over a year before the commencement of the trial.
On the second day of trial the complainant gave evidence on oath in accordance with the arrangements that customarily apply to vulnerable witnesses. He was then 15 years of age. He gave further evidence‑in‑chief significantly augmenting the evidence which had been pre‑recorded.
During cross‑examination the complainant was asked about his knowledge of the appellant's prior convictions. The complainant's evidence was that the appellant often talked to him about those convictions and protested his innocence of the charges.
In cross‑examination, it was put to the complainant that nothing of any sexual nature ever took place between him and the appellant. The complainant refuted that assertion.
The complainant gave evidence to the effect that he communicated with the appellant using Facebook, although the appellant used the false name of Michael Delore. A print of the Facebook communications between the complainant and the appellant over the period between 24 May 2011 and early June 2012 was received in evidence. In those communications, a coded welcome was commonly used by each.
The complainant's recollection of the detailed events relating to each alleged offence was tested in an extensive cross‑examination. It is fair to say that the complainant had greater recall of some events than others.
The complainant was also asked about his observations of the appellant's penis, and in particular whether it appeared to have been circumcised. The complainant said:
It looked - it had skin there. It wasn't entirely circumcised but it wasn't entirely uncircumcised. He had told me about a surgery that he had and it was apparent that he didn't have a full foreskin but he hadn't been completely circumcised also.[9]
[9] ts 264.
It was put to the complainant that during his pre‑recorded interview he had said that the appellant 'didn't really have' a foreskin. The complainant explained that what he meant was that the appellant did not have a full foreskin - he was partially circumcised, so that when the penis was not erect, the head of the penis could be seen slightly - 'the very end of it'.[10] It was put to the complainant that he had never seen the appellant's penis and that his statement to police to the effect that the appellant did not have a foreskin was quite wrong. The complainant refuted those assertions.
[10] ts 265 ‑ 266.
The prosecution also adduced evidence from the complainant's grandmother, who is also the appellant's aunt. She gave evidence of the association between the complainant and the appellant, and of particular occasions upon which they were together, both in the metropolitan area and in the Wheatbelt.
The prosecution also led evidence from the assistant manager of the Ocean Clipper Inn, which is a hotel in Rockingham. Her evidence was to the effect that the appellant was a regular guest at the hotel, and had a preference for a particular room. She also gave evidence of a number of specific occasions upon which the appellant had stayed at the hotel and produced invoices bearing the name of the appellant showing the charges levied by the hotel on those occasions.
By agreement between the parties, the prosecutor read into evidence part of a statement made by MSO, one of the victims of the offences previously committed by the appellant. The portions read to the jury related to a conversation between MSO and the appellant in which the appellant asked him if he had pubic hair, after which he asked to see MSO's genitals. MSO pulled his pants and underpants down, and the appellant looked at his penis for about five seconds. The statement read into evidence also dealt with other aspects of the offences committed by the appellant against MSO. The written portion of the statement read into evidence was also tendered as an exhibit, and was thereafter described as an addendum to the statement of agreed facts relating to the appellant's prior convictions.
After part of the statement was read to the jury, the trial judge reminded the jury of the directions that he had given at the commencement of the trial with respect to the evidence of the appellant's previous convictions. He reminded the jury that the State relied upon the evidence of the appellant's sexual interest in boys of about the same age as the complainant and that such evidence made it more likely, according to the State, that the appellant committed the offences with which he had been charged.[11] The trial judge reminded the jury of his earlier warning that the evidence of the prior conduct was not, of itself, proof of the appellant's commission of the offences charged, and that it was impermissible for the jury to reason that simply because the appellant had previously engaged in this type of conduct, he must necessarily have committed the offences with which he had been charged.[12]
[11] ts 368.
[12] ts 368.
The prosecution led evidence from the complainant's mother who gave evidence of the general association between the complainant and the appellant, and of particular occasions upon which they were together.
After non-contentious evidence was provided to the jury in the form of statements of evidence which were read to them, and documents which were tendered by consent, a video recording of the execution of a search warrant at the appellant's home was tendered in evidence and played to the jury. A video recording of the appellant's interview by police on 12 June 2012 was then tendered and played to the jury. During that interview the appellant admitted that he had an acquaintance with the complainant, and that he was with the complainant on many of the occasions upon which it was alleged by the complainant that sexual misconduct occurred. The appellant admitted that the complainant had been to the Ocean Clipper Hotel in Rockingham with him. However, the appellant did not admit any of the alleged sexual misconduct.
Following closure of the prosecution case, the trial judge upheld a submission to the effect that there was no case to answer in respect of counts 16 ‑ 21 inclusive on the indictment.
The appellant gave evidence in his defence. Although he admitted that he had been convicted of the offences described in the agreed statement of facts presented to the jury, he denied any sexual interest in boys and denied any sexual interest in the complainant in particular.[13] He admitted that he had had a lot to do with the complainant, but denied that there was any sexual aspect to their relationship.
[13] ts 513.
During his evidence‑in‑chief, the appellant gave evidence to the effect that he had undergone a partial circumcision as an adult. His evidence was to the effect that the procedure left him with a foreskin which entirely covered the head of the penis.[14] According to the appellant, his appearance had the appearance of being uncircumcised. Three photographs of the appellant's penis in a flaccid state were tendered in evidence.
[14] ts 589.
The appellant was cross‑examined in relation to his prior convictions. He admitted that he had given evidence on oath denying the offences, and that he was disbelieved by the jury.[15] However, the appellant maintained his denial of any sexual interest in the four boys the subject of his previous convictions, and his denial of any sexual interest in the complainant.[16] He maintained his innocence of the prior convictions and asserted that he was wrongly convicted.[17] During cross‑examination the appellant maintained his denial of all of the offences alleged against him.
[15] ts 594.
[16] ts 595.
[17] ts 596.
The appellant was specifically cross‑examined in relation to the statement of MSO that was read into evidence. The appellant admitted that he was convicted of the allegations made in the statement, but denied that any of them occurred.[18]
[18] ts 616.
Later in the course of a lengthy cross‑examination, the appellant again denied any sexual interest in young boys, although he again admitted that he had been convicted of sexual offences against young boys.[19] It was also put to the appellant in the course of cross‑examination that as he had been wrongly convicted of sexual offences against young boys in the past, it would have been safer to avoid situations in which allegations of a similar kind could be made against him.[20] The appellant asserted that he had never thought of that, because his association with the complainant was quite innocent. The appellant described himself as a 'rescuer' of the complainant from mistreatment by his father.[21]
[19] ts 643.
[20] ts 647.
[21] ts 660, 664.
In the course of cross‑examination it was put to the appellant that he had used a false name for his Facebook communications with the complainant because he was a known and registered sex offender and wished to conceal his communications with a child. The appellant asserted that he used a false name in order to keep his Facebook communications secret from the complainant's parents, because of the difficult situation the complainant was in within his family environment.[22] It was put to the appellant that this was untrue, and that his real purpose was to conceal the fact that a known sex offender was communicating with a young boy.[23]
[22] ts 660.
[23] ts 663.
During cross‑examination it was put to the appellant that when interviewed by police in relation to the charges previously brought against him in 2004, he admitted to police that he had been circumcised.[24] In that context, the appellant accepted that he was circumcised, but denied that the complainant had ever seen his penis.[25]
[24] ts 677 - a portion of that recorded police interview had been tendered as part of the prosecution case.
[25] ts 678.
The prosecutor's closing address
The prosecutor placed considerable emphasis upon the appellant's prior convictions in his closing address to the jury. He referred to those convictions very early in his address and submitted that the convictions, together with the additional evidence in the form of the statement of MSO showed that the appellant had a particular methodology in the way in which he approached children within the target age, and that there was a similarity between the appellant's dealings with the complainant and those with his previous victims, including in particular MSO. He also drew attention to what he submitted was a striking similarity between the offence against the victim VP, and the charges pending against the appellant. The prosecutor submitted:
[T]hese children trusted him, liked him and again even after the first incident because [MSO] … they went still went back for more. As indeed did VP because again in the agreed facts they go back for more. And some of you may wonder why but we're trying to get inside the head of an 11, 12, 13 year old boy. My suggestion really, and of course it's me making a suggestion, you can take it or leave it, as you can with any of the facts and anything I say, but at the few moments of unpleasantness and again there's so much positive about [the appellant] and the way he did operate with the children, the way he was good to them.
… And that's again why he got away with the boys, again, reading the agreed facts, for some time. … The children don't fully understand why this has happened. What is it? Is it something about me? What is it? But in any event [the appellant] goes to prison for those offences and then moves from [a country town] to Rockingham. Again, it's part of his parole that he has to be away as we heard. Now [the appellant] denied that he was correctly convicted in 2003 or 2005 and the offences happened in 2003 and 2004, wrongly convicted he told [the complainant] that he was wrongly convicted. Four boys spoke up and he was convicted. Again, in the interview he says wrongly convicted and that's exactly what he told the family, the [complainant's] family and anybody I'm sure who was willing to listen. But just look at his actions. So this is a man who goes to prison for sexual offences against young boys. What does he do when he's released from prison? Well, his family … give him the benefit of the doubt, they are somewhat wary but they do give him the benefit of the doubt because he's obviously spun this line that he's not guilty, that it was all a stitch-up which is the way he put it today.[26]
[26] ts 3 ‑ 4.
A little later the prosecutor suggested to the jury that the complainant was vulnerable and said:
That's something again [the appellant], and I suggest, because of his behaviour in the past, he's well aware of that, that's what he's doing, he ingratiates himself with people, with [the complainant] and indeed the family, makes himself useful.[27]
[27] ts 4 - 5.
A little later in the address the prosecutor drew a comparison between the appellant's engagement of the complainant in part-time work and a similar offer of casual employment to one of the victims of the appellant's earlier convictions.[28]
[28] ts 6.
Shortly thereafter, the prosecutor drew another comparison between the offences committed against VP, which were said to involve the appellant making the victim feel special, which was said by the prosecutor to be 'remarkably similar' to the evidence relating to the charges before the jury. In that context the prosecutor said that there was nothing wrong with adults being friendly with young children:
But [the appellant], this is a man who has a record in the past getting on good terms, friendly with children and again, the result is him getting convicted for various offences against boys.
Of course he says it's all a stitch‑up but that's the base, that's where we're starting from.
A little later in his address the prosecutor described the appellant as a 'person who manipulates people to get ready access to young boys as he's done in the past and he has done with [the complainant] in 2009 to 2012'.[29]
[29] ts 11.
In the context of his address with respect to specific counts, the prosecutor drew attention to the factual similarity between the allegation that the appellant asked the complainant to show him his pubic hair, and the offence committed against MSO, and in that context the prosecutor read again to the jury part of MSO's statement. He then asked the jury rhetorically, 'Is that just an amazing coincidence or is it really - that's because it's true because that's what [the appellant] does.'[30]
[30] ts 13.
In that context the prosecutor submitted:
So [the complainant] has come up with this which just happens to fit the bill, it's like pieces of a jigsaw puzzle. It all fits, doesn't it? All strikingly similar and that's why, members of the jury, I suggest that that did happen, exactly as [the complainant] suggested.[31]
[31] ts 13.
The prosecutor submitted that the facts of another count were very similar to the facts in the statement of MSO:
So again, what we have is someone asking, show - little boy, little boy show me your penis. Again, strikingly similar.[32]
[32] ts 14.
In this context the prosecutor again referred to the detail of the statement of agreed facts relating to the appellant's prior convictions, repeating to the jury the details of another of the offences before submitting:
So this is not new to [the appellant], is it? Taking hold of a boy's penis. Here, what he does with [the complainant] is talking about 'oh did you know, it feels good' and we heard that from [the complainant]. But here he masturbates [the complainant] to ejaculation and it's slightly different, he takes it further but it's got remarkable similarities. … [W]hat I suggest has happened here is that, dealing with [the complainant], rather than four boys he's concentrated on one and he's allowed to get close, he's allowed to be a lot closer with this boy...[33]
[33] ts 15.
In the context of another count, the prosecutor referred to the cross‑examination of the complainant on the topic of why he did not shout out or complain about the appellant's conduct. In that context the prosecutor said to the jury:
Again, you can ask the same reason of [MSO], same reason for VP, because there are a number of offences, why these things happen. Why they didn't stop it. Difficult to explain, there's the knowing for a long time, one thing, the trusting, liking, they did exciting things. They did things he wanted to do. He had been manipulated as the others, these are young minds moulded by the older more sophisticated and scheming calculating one of [the appellant] as he had done in the past.[34]
[34] ts 17.
A little later in his address the prosecutor referred to the appellant having deleted SMS communications with the complainant. In that context the prosecutor said:
Why delete the text and the call register? Well, again, 'we don't want anybody to know'. So he's doing everything in his power to ensure that no‑one finds out about it. He's the one who has decided: 'I'm the higher power. I know better. I've got lots of children - well, no I haven't and I'm a sex offender and I've been convicted of various offences, but I know better'.[35]
[35] ts 26 - 27.
In the same context, the prosecutor asked, again rhetorically:
[W]hy would a 60 year old man, 60-odd-year old man want to talk every night or most nights to a 12, 13, 14 year old boy? Why, a man with his history? Is it all innocent, or is it just again part of the same routine that he's going through?[36]
[36] ts 27.
The prosecutor then submitted:
[The appellant] has an unnatural interest in young boys and here you're dealing with [the complainant], that young boy that you saw on that screen for a couple of days. That's the young boy that he had an unnatural interest in.[37]
[37] ts 28.
In the context of a submission to the effect that the appellant had lied to the complainant's family and to police, the prosecutor observed:
He denies the previous offences. He told the family that as well. Of course, he did, he told them and what did they do? They took it on board, they gave him the benefit of the doubt, which again meant he could get in there with [the complainant] and get access to a young child of his target age. The facts in part, not completely, are very similar, which is not just a coincidence, is it?[38]
[38] ts 29 - 30.
Shortly thereafter, in the context of the appellant's evidence that he had taken on the role of protecting the complainant from a difficult family situation, the prosecutor submitted:
Was [the appellant] his rescuer, his guardian angel or not?
The fact is that he is a - someone who has been convicted of sex offences. He was being - he's registered with the police. Is that the sort of guardian angel you want? I would have thought there would be a lot better guardian angels; social services, other relatives, get them involved …[39]
[39] ts 30.
A little later, after referring to the appellant's evidence that he was stupid to be alone with a child, the prosecutor observed:
Well, he is a sex offender. And what's he done, he's made a beeline for [the complainant], hasn't he, throughout.[40]
[40] ts 30.
Closing address of defence counsel
Defence counsel also made significant reference to the appellant's previous convictions, commencing his address to the jury by suggesting that the question for the jury was whether they could convict him on the evidence they had heard 'not what he might have done in the past which, if true, is reprehensible, what he went to gaol for which, if true, is reprehensible'.[41] He asked the jury:
Where would you start if you were genuinely not guilty of something like this? Just assume that. Where would you start to try and prove your innocence? You've been to gaol. You're a known sex offender and someone comes along and lumbers you with something that you haven't done. Well, you're starting off with a lot of lead in the saddle bags, aren't you?[42]
[41] ts 32.
[42] ts 32.
Appropriately, defence counsel then referred to the presumption of innocence and the onus of proof and again rhetorically asked the jury what evidence there was to support the proposition that the appellant was guilty:
[O]ther than the overwhelming prejudicial nature of the previous convictions? His Honour will tell you what value they are but my submission is of very limited assistance to you in a case like this …[43]
[43] ts 33.
A little later defence counsel characterised the prosecution in these terms:
They say, 'Look, he's a bloke with a prior record. He's just the sort of person who might do this.' That's a central plank, and no doubt you heard [the prosecutor] go through in his final submissions to you, placed great emphasis on that because, I suggest to you, and there's a very good reason why he placed a lot of emphasis, he's got nothing else.[44]
[44] ts 35.
In the context of submissions with respect to the complainant's failure to complain to others of the appellant's conduct, defence counsel submitted:
Usually young kids would never complain because they'd never be believed but who would not believe a complaint about this man? He's been to gaol for it. He's been convicted. If one of the little kids in any of those households, whether they were male or female, had said to their mum, dad, aunty or nanna, 'Nanna, Uncle … touched me the other day', who would not believe? He's got a track record for it. This man was a sitting duck for any allegation that was ever made against him by anyone of that nature. So how do we get around that, that he made no complaint? Everyone would have believed him, as distinct from the usual situation when you ask a little kid to make a complaint no-one would believe. …
This man had no reputation. He was a pariah. Only his family would tolerate him. He was on his last chance and they watched him like a hawk. I suggest to you that it is implausible in the extreme that had [the complainant] been touched up … on the occasions and in the way he says, that he would not have told anyone, but you be the judges of that.[45]
[45] ts 40.
The trial judge's directions to the jury
The trial judge commenced his directions to the jury with what I might respectfully describe as conventional directions with respect to topics such as the burden and standard of proof, the nature of evidence and so on. In that context he directed the jury, quite properly, that even if they did not accept the appellant as a witness of truth, it did not follow that he was guilty on all counts, and the question remained whether the State had proven his guilt on each count beyond reasonable doubt. In that context, his Honour observed:
As you are aware, [the appellant] has previously been convicted of seven offences of a sexual nature committed against four boys. The facts of the offences are set out in the statement of agreed facts which is exhibit 1 to which I have already referred briefly. When [the complainant] gave his evidence, he said that although he had been convicted of the previous seven sexual offences, he did not commit the offences. In other words, in his evidence [the appellant] maintained his innocence despite his convictions. Members of the jury, the fact of the convictions is by itself proof that [the complainant] did commit the seven offences; you cannot go behind the convictions. You must, in your deliberations, proceed on the basis that despite what [the appellant] said in his evidence, he did commit the seven offences. You must also proceed on the basis that the facts of the prior offences are as set out in exhibit 1, the statement of agreed facts, which, as I have already told you, is itself proof of the facts of the offences. It is a matter for you to decide whether [the appellant's] denials of guilt for the previous offences is something that affects your assessment of the credibility of the evidence that he has given in relation to the offences with which he is currently charged.
During his evidence [the appellant] also denied engaging in the conduct with [MSO] which is referred to in exhibit 49, the addendum to the statement of agreed facts. As I have already told you, the addendum is itself proof of the facts stated in the document. You must, therefore, in your deliberations proceed on the basis that [the appellant] did engage in the conduct stated in the addendum. Again, it is a matter for you to decide if [the appellant's] denials in his evidence that he engaged in the conduct in question is something that affects your assessment of the credibility of the evidence that he gave in relation to the offences with which he is currently charged.[46]
[46] ts 720 - 721.
After reviewing the evidence relating to the specific counts on the indictment in considerable detail, the trial judge referred again to the evidence relating to the appellant's prior convictions. After summarising that evidence, the trial judge directed the jury that:
The State was permitted to adduce the evidence of [the appellant's] prior offences and prior conduct involving [MSO] for one principal purpose. The State was permitted to adduce the evidence in an attempt to establish that [the appellant] has a sexual interest in boys of the age range of 11 to 14 or thereabouts, that he is prepared to act on that sexual interest by ingratiating himself with the boy in question and proceeding to engage in sexual conduct with that boy and that he is therefore more likely to have committed the offences with which he is charged in the indictment before you. If you are satisfied beyond reasonable doubt that the evidence of [the appellant's] prior sexual offending against the four other boys does establish that he has a sexual interest in boys of approximately the same age as the complainant, that he is prepared to act on that sexual interest by ingratiating himself with the boy in question and then proceeding to engage in sexual conduct with the boy, and that he is therefore more likely to have committed one or more of the offences with which he is currently charged, you can take those findings into account in deciding if the State has proved beyond reasonable doubt one or more of the offences with which he is charged. If you are not satisfied beyond reasonable doubt that [the appellant's] commission of the prior offences does establish that he has a sexual interest in boys of about the same age of the complainant and that he was prepared to act on that sexual interest and that he is therefore more likely to have committed any one of the offences with which he is currently charged, then the evidence that you have heard [of] those other incidents will, subject to what I will say in a moment about one aspect of the evidence, be irrelevant to your determination of whether [the appellant] committed any of the offences with which he is charged. So really it comes down to this. If you are satisfied beyond reasonable doubt that the evidence of the prior offences makes it more likely that [the appellant] committed the offences with which he is charged, you can take that finding into account in deciding if the State has proved one or more of the charges on the indictment beyond reasonable doubt. Having told you what use you can make of the evidence of [the appellant's] prior offences I'm going to tell you now what you must not do. What you must not do is reason that simply because [the appellant] has a sexual interest in boys of the complainant's age and is prepared to act on that sexual interest, assuming you come to the view that you're satisfied beyond a reasonable doubt of those matters, that [the appellant] must necessarily have committed one or more of the offences with which he is charged as having committed against the complainant. It would be wrong of you to reason in that way.
Proof that [the appellant] does have a sexual interest in boys of the complainant's age and is prepared to act on that interest, or at least was in the past prepared to act on that interest, is not in itself proof that he had a sexual interest in the complainant and acted on that sexual interest by [committing] one or more of the offences with which he is charged. The fact is that proving that a person is sexually interested in males of a certain age and acted on that sexual interest on one or more [other] occasions does not compel the conclusion that he did a similar thing again on a later occasion. People do not always act in accordance with all their inclinations at every opportunity.[47]
[47] ts 793 - 795.
The trial judge then essentially repeated the thrust of the directions given in the passage set out above. He then gave the jury a specific direction with respect to the evidence of MSO relating to the appellant's references to pubic hair. He directed the jury that the State contended that this evidence showed conduct which was strikingly similar to the offence alleged on count 1 on the indictment. In that context the trial judge directed the jury that they could only use the evidence in this way if they were satisfied that the conduct of the appellant was in fact strikingly similar to the conduct alleged in count 1 so as to reveal 'such a clear underlying unity as to make coincidence a very unlikely explanation'.[48] The trial judge directed the jury that in deciding whether there was such a striking similarity and underlying unity, they should also take account of any dissimilarities in the appellant's prior conduct and the conduct alleged against him in respect of count 1. He went on to direct the jury that if, after considering those matters, they were satisfied that the conduct in question was strikingly similar to the conduct alleged in count 1 and revealed a clear underlying unity so as to make coincidence a very unlikely explanation, the jury could take evidence of that conduct into account in deciding if the State had established count 1 beyond reasonable doubt.
[48] ts 796.
In the course of his directions, the trial judge summarised the submissions which had been put by counsel for each party to the jury. In that context, he summarised the thrust of the prosecutor's submissions relating to the appellant's prior convictions, which I have set out above. Similarly, he summarised defence counsel's response to those submissions which I have set out above.
Following their deliberations, the jury returned verdicts which are set out in the table below.
| Count | Date range | Offence | Verdict |
| (1) | 1 July 2009 - 31 December 2009 | Indecent dealing with child under 13 years - s 320(4) Code | Guilty |
| (2) (3) | 24 August 2009 - 25 August 2010 | Indecent dealing with child under 13 years - s 320(4) Code | Not guilty |
| Indecent dealing with child under 13 years - s 320(4) Code | Not guilty | ||
| (4) | 19 April 2011 - 9 June 2011 | Indecent dealing with child over 13 years and under 16 years - s 321(4) Code | Guilty |
| (5) (6) | 19 April 2011 - | Indecent dealing with child over 13 years and under 16 years - s 321(4) Code | Not guilty |
| Indecent dealing with child over 13 years and under 16 years - s 321(4) Code | Not guilty | ||
| (7) (8) | 31 October 2010 *Amended during trial to 'On or about 18 December 2009'* | Sexual penetration of child over 13 years and under 16 years - 321(2) Code *Amended during trial to s 322(2) offence: child under the age of 13 years* | Not guilty |
| Sexual penetration of child over 13 years and under 16 years - 321(2) Code *Amended during trial to s 322(2) offence: child under the age of 13 years* | Not guilty | ||
| (9) | 29 March 2012 | Sexual penetration of child over 13 years and under 16 years - 321(2) Code | Guilty |
| (10) (11) (12) | 19 October 2011 | Indecent dealing with child under 16 years - s 321(4) Code | Not guilty |
| Sexual penetration of child over 13 years and under 16 years - 321(2) Code | Not guilty | ||
| Indecent dealing with child under 16 years - s 321(4) Code | Not guilty | ||
| (13) (14) (15) | 26 October 2011 | Indecent dealing with child under 16 years - s 321(4) Code | Not guilty |
| Sexual penetration of child over 13 years and under 16 years - 321(2) Code | Not guilty | ||
| Indecent dealing with child u/16 years - s 321(4) Code | Not guilty | ||
| (16) (17) (18) | 29 November 2011 | Indecent dealing with child under 16 years - s 321(4) Code | No case submission upheld Judgments of acquittal entered |
| Sexual penetration of child over 13 years and under 16 years - 321(2) Code | |||
| Indecent dealing with child under 16 years - s 321(4) Code | |||
| (19) (20) (21) | 13 December 2011 | Indecent dealing with child under 16 years - s 321(4) Code | |
| Sexual penetration of child over 13 years and under 16 years - 321(2) Code | |||
| Indecent dealing with child under 16 years - s 321(4) Code | |||
| (22) (23) (24) | 28 February 2012 | Indecent dealing with child u/16 years - s 321(4) Code | Guilty |
| Sexual penetration of child over 13 years and u/16 years - 321(2) Code | Guilty | ||
| Indecent dealing with child under 16 years - s 321(4) Code | Guilty | ||
| (25) (26) (27) | 20 March 2012 | Indecent dealing with child under 16 years - s 321(4) Code | Guilty |
| Sexual penetration of child over 13 years and under 16 years - 321(2) Code | Guilty | ||
| Indecent dealing with child under 16 years - s 321(4) Code | Guilty | ||
| (28) (29) (30) | 1 May 2012 | Indecent dealing with child under 16 years - s 321(4) Code | Guilty |
| Sexual penetration of child over 13 years and under 16 years - 321(2) Code | Guilty | ||
| Indecent dealing with child under 16 years - s 321(4) Code | Guilty | ||
| (31) (32) (33) | 15 May 2012 | Indecent dealing with child under 16 years - s 321(4) Code | Guilty |
| Sexual penetration of child under 13 years and under 16 years - 321(2) Code | Guilty | ||
| Indecent dealing with child under 16 years - s 321(4) Code | Guilty |
The appeal against conviction
Ground 1
Ground 1 asserts that the Chief Judge erred in his decision not to order trial by judge alone. Particulars of the ground have been provided drawing attention to the prejudicial effect of the admission of the evidence relating to the appellant's prior convictions, the capacity of an order for trial by judge alone to entirely remove the risk of that prejudice, and the fact that the trial would not involve the determination of any matters of community standards.
Until 1994, when s 651A was introduced into the Criminal Code (WA), all trials on indictment in Western Australia were conducted by judge and jury. Under s 651A, provided the prosecutor consented, an accused person was given a right to elect trial by judge alone rather than trial by jury. So, under that section, the mode of trial was under the control of the parties rather than the court.
Section 651A of the Criminal Code was repealed when s 118 of the Criminal Procedure Act 2004 (WA) (the Act) came into force. That section provides:
118. Trial by judge alone without a jury may be ordered
(1)If an accused is committed on a charge to a superior court or indicted in a superior court on a charge, the prosecutor or the accused may apply to the court for an order that the trial of the charge be by a judge alone without a jury.
(2)Any such application must be made before the identity of the trial judge is known to the parties.
(3)On such an application, the court may inform itself in any way it thinks fit.
(4)On such an application the court may make the order if it considers it is in the interests of justice to do so but, on an application by the prosecutor, must not do so unless the accused consents.
(5)Without limiting subsection (4), the court may make the order if it considers -
(a)that the trial, due to its complexity or length or both, is likely to be unreasonably burdensome to a jury; or
(b)that it is likely that acts that may constitute an offence under The Criminal Code section 123 would be committed in respect of a member of a jury.
(6)Without limiting subsection (4), the court may refuse to make the order if it considers the trial will involve a factual issue that requires the application of objective community standards such as an issue of reasonableness, negligence, indecency, obscenity or dangerousness.
(7)If an accused is charged with 2 or more charges that are to be tried together, the court must not make such an order in respect of one of the charges unless the court also makes such an order in respect of each other charge.
(8)If 2 or more accused are to be tried together, the court must not make such an order in respect of one of the accused unless the court also makes such an order in respect of each other accused.
(9)If such an order is made, the court cannot cancel the order after the identity of the trial judge is known to the parties.
So, unlike s 651A, under s 118 if an application is made for an order by trial by judge alone, the court is given a discretion to determine whether such an order should be made, to be exercised 'in the interests of justice', provided that, in the case of an application by the prosecution, an order cannot be made without the consent of the accused.
Since the commencement of s 118 of the Act, there have been a significant number of cases in the Supreme Court and in the District Court in which judges have been required to determine whether the discretion conferred by the section should be exercised and an order made for trial by judge alone. This is the first case in which this court has been required to determine the legal principles governing the exercise of that discretion. Although some reference was made to those principles in Coates v The State of Western Australia,[49] the issue in that case concerned the jurisdiction to make an order for trial by judge alone in respect of a retrial after the verdict of a jury had been overturned on appeal. In Coates, there was no occasion, nor any attempt to exhaustively enunciate the principles which would guide the exercise of the discretion conferred by the section.
[49] [2009] WASCA 142.
As there is no prior decision of this court governing the principles to be applied in the exercise of the discretion conferred by s 118 of the Act, it is necessary and appropriate to start from first principles, and in particular to apply the standard principles of statutory construction to the words used in the section in order to ascertain whether, in this case, error has been demonstrated. A review of the more significant first instance decisions of judges of the Supreme Court, and of the observations made obiter by members of this court in Coates, provides a convenient context for that process, although obviously none of the decisions to which I will now refer[50] binds this court.
The State of Western Australia v Martinez[51]
[50] In chronological order.
[51] [2006] WASC 25; (2006) 159 A Crim R 380.
In the State of Western Australia v Martinez, EM Heenan J observed that unless the case came within the particular circumstances identified in s 118(5) or s 118(6) of the Act, the discretion of the court to order trial by judge alone was 'at large'. However, EM Heenan J relied upon the reference in s 118(6) to the power of a court to refuse an order if the trial will involve a factual issue requiring the application of objective community standards as:
[R]eflecting an approach, itself not conclusive, that in a case involving issues in which there may be expected to be legitimate scope for differences of opinion the need for the criminal law to reflect an objective community standard is better served by a decision by a panel of fact finders. This simply reveals, as a starting point, that such a panel of fact finders is likely to better reflect the objective standards of the community as a whole than any individual.[52]
[52] Martinez [6].
Later in his reasons, his Honour further enunciated that view in his conclusion:
In the end, I do not consider that the interests of justice favour an order for the retrial of this case to be before a Judge alone. Indeed, I am of the view that, having regard to the multiplicity of issues of fact underlining the prosecution's circumstantial case against the accused, there is likely to be great advantage in obtaining the collective judgment which only a jury can provide on behalf of the community as to whether or not that evidence satisfies such a tribunal beyond reasonable doubt that the charges have been proved. For that matter, it is equally important from the viewpoint of the community at large that any decision that the accused or some of them is or are not guilty of the charges laid, should be made by a tribunal representing the wider perspective of community standards than any single decision-maker can reflect. In a case of this difficulty and importance there seems to me to be a considerable advantage in requiring the unanimous agreement of a panel of 12 people for a verdict, rather than that of a single person no matter how great his or her experience may be. This seems to be a case, more than others, when a panel of 12 jurors is likely to bring a collective wisdom and evaluation of all the facts proved which would be preferable to that of any single judgment.[53]
[53] Martinez [36].
It is, with respect, difficult to reconcile these views with an earlier observation in his Honour's reasons that:
[O]ne should not approach an application for trial by Judge alone for a serious offence on the footing that there is a preliminary, presumptive or other inclination that trial by jury must be regarded as the preferential starting point. Rather, despite some initial inclinations to the contrary during the course of argument, I am satisfied that one should adopt a neutral position in relation to the preferred mode of trial on any such application and focus upon what are the interests of justice in the particular case.[54]
[54] Martinez [23].
The tension in these reasons arises from the fact that the issue of whether the prosecution has established a contentious issue of fact beyond reasonable doubt is a very frequent characteristic of a criminal trial, and often arises in a context of significant factual complexity. His Honour's conclusion that the resolution of such issues by a panel of 12 is to be preferred to that of a single decision-maker necessarily connotes a preference in favour of trial by jury in a significant majority of cases, contrary to the position of neutrality enunciated by his Honour.
Arthurs v The State of Western Australia[55]
[55] [2007] WASC 182.
In Arthurs v The State of Western Australia I briefly reviewed comparable legislation in other jurisdictions and the legislative history of s 118 of the Act. As I noted, the explanatory memorandum to the Criminal Procedure Bill referred to the fact that s 118 of the Act implements some of the recommendations made in ch 30 of the final report of the Law Reform Commission of Western Australia in its review of the criminal and civil justice system.[56] In my reasons I compared the recommendations made by the Commission to the terms of the section and enunciated the conclusions which I had drawn from that comparison, which it is unnecessary to repeat.
[56] Project 92.
In relation to the decision in Martinez, I respectfully agreed with the description of the discretion as being 'at large' (unless the case falls within either ss 118(5) or s 118(6)), and with the proposition that the section did not convey any presumption in favour of trial by jury, but respectfully disagreed with the conclusion which had been drawn from s 118(6) with respect to the desirability of trial by jury in cases involving circumstantial evidence or significant controversies of fact.
Consistently with the view that s 118 does not convey any preference for one form of trial over another, in Arthurs I expressed the view that there was nothing in the section to suggest that the community would more readily accept a decision made by a jury as compared to a decision made by a judge sitting alone, and that, consequently, speculation as to the degree of community acceptance likely to be afforded to a verdict achieved by one form of trial over another was not relevant to the exercise of the discretion conferred by the section.
In Arthurs I referred also to the obligation of a judge sitting alone to provide reasons for his or her decision, by contrast to the inscrutable decision of a jury. Consistently with my view of the neutrality implicit in the section, I observed that in the general run of cases, the provision or lack of a reasoned decision would not be a factor guiding the exercise of the discretion but, in some cases, might be a significant consideration.[57] In my view, Arthurs provided an example of such a case, because the provision of a reasoned decision would enable both the community and any appellate court to evaluate whether the extensive prejudicial pre‑trial publicity and the human emotions inevitably stirred by the facts of the case had influenced the decision, whereas in the case of trial by jury, there would be no capacity to evaluate those matters.
[57] Arthurs [76].
In Arthurs I also expressed the view that the subjective apprehension of prejudice by the accused, if established by evidence, was relevant to the exercise of the discretion provided that it was not fanciful or irrational.
TVM v The State of Western Australia[58]
[58] TVM v The State of Western Australia [2007] WASC 299; (2007) 180 A Crim R 183.
The decisions in Martinez and Arthurs were reviewed by McKechnie J in TVM v The State of Western Australia. McKechnie J did not draw the conclusion which EM Heenan J had drawn from s 116. McKechnie J also disagreed with the views expressed in both Martinez and Arthurs to the effect that s 118 reflected no preference as to mode of trial. Implicit in his Honour's reasons is the view that the section reflected a preference for trial by jury which had to be displaced by an applicant demonstrating that it was in the interests of justice to order trial by judge alone. McKechnie J also disagreed with the views I expressed in Arthurs as to the relevance of the subjective views of the accused, and with the views expressed by EM Heenan J as to the collective wisdom of a panel of 12 jurors. He considered that the obligation of a judge sitting alone to deliver reasons was 'of no consequence'.[59] He also considered that there might be cases in which the court might exercise a discretion to refuse to order trial by judge alone, notwithstanding a finding that such an order would be in the interests of justice.
Coates v The State of Western Australia[60]
[59] TVM [32].
[60] Coates v The State of Western Australia [2009] WASCA 142.
As I have already noted, the grounds of appeal in Coates v The State of Western Australia did not require the court to review the exercise of the discretion to order trial by judge alone in that case. Rather, the grounds required determination of an assertion that there was no jurisdiction to make an order for trial by judge alone after the appellant had previously been tried by jury, his conviction having been set aside on appeal. The grounds of appeal also included an assertion that the trial judge erred by not aborting the trial by judge alone when the trial took a particular course. It follows that any observations made with respect to the exercise of the discretion under s 118 of the Act are necessarily obiter, and do not bind this or any other court.
In the particular context of the issues in that case, Owen JA made the following observations:
The crux of ground 4 is not (as in ground 3) that the order for trial by judge alone should have been cancelled but, rather, whether by reason of the trial judge's refusal to abort the trial the appellant was denied a fair trial. This depends on whether, in all of the circumstances, the failure to abort the trial so as to allow a trial by jury to proceed, has resulted in a miscarriage of justice. This, it seems to me, completes the circle: was the fact of the second agreement such that denial of the opportunity to have it considered by 12 of the appellant's peers rather than by a judge alone amounted to a miscarriage of justice?
In my view the answer to that question is no. Opinions differ, including among judges, as to the efficacy of the jury system. But it is an integral part of the criminal justice system and, in my view, it has served the community well. Nonetheless, Parliament has recognised that in some circumstances an alternative method of resolving trials on indictment is desirable. Hence the enactment in 1994 of the Criminal Code s 651A which has since been replaced by the Criminal Procedure Act 2004 (WA) s 118. Section 118 provides that either the accused or the prosecutor can apply for trial by judge alone. The court may make an order for trial by judge alone 'if it considers it is in the interests of justice to do so'. The legislation protects the right of an accused by stipulating that an order cannot be made at the behest of the prosecution unless the accused consents. The phrase 'in interests of justice' is very broad. Parliament has been careful not to limit its meaning in the course of adding an explanatory provision (s 118(6)) detailing some circumstances in which the court may refuse to make an order; namely, where it considers:
the trial will involve a factual issue that requires the application of objective community standards such as an issue of reasonableness, negligence, indecency, obscenity or dangerousness.
The assessment of credibility is essentially a subjective matter, although some objective considerations might come into play in forming the platform from which the assessment is made. Section 118(6) is of no direct assistance to the appellant here. That was the view taken by the trial judge when the application was made to abort the trial (ts 3826). In my opinion his Honour was correct in coming to that conclusion.
It is true that a free exchange of views and ideas can be very helpful in the decision making process. Everyday experience indicates that the physical and mental process of having to articulate propositions and to listen to the reaction of others can clarify thinking. But, equally, in everyday experience important decisions are made by individuals without the benefit of interaction with others. Judges make decisions for a living and they often arise in complex circumstances and involve the expenditure of considerable intellectual effort. Assessments of credibility fall into this category. While the trial judge may be deprived of the advantage of a free interchange of ideas with peers he or she has an advantage that ordinary members may lack. Trial judges have consistent and continuing experience of fact-finding and of the making of the decisions in a situation that demands an objective and dispassionate mind.
I am not suggesting that juries are incapable of making objective and dispassionate decisions. A judge's charge to a jury will almost always include directions to that effect and I have no reason to believe that jury members do other than pay due and faithful regard to the instruction. But the day to day working life of a judge will often involve dealing with evidence in ways that are outside the normal experience of members of the public. For example, a judge will often be required to put to one side inadmissible evidence (of which he or she is cognisant) in assessing credibility or deciding other disputed issues. Another example is having regard to an item of evidence for one purpose and yet disregarding it in relation to another contentious issue within the same case. When matters of that nature arise in a jury trial there is a need for careful direction to guide the jury in relation to them. The experience gained by a trial judge over time in relation to a wide range of fact-finding methods can be a peculiar advantage.[61]
[61] Coates [7] ‑ [11].
Those observations, with which I respectfully agree, are obviously inconsistent with any proposition to the effect that factual issues relating to the credibility of witnesses, or complex facts are better made by a panel of 12 jurors than by a judge sitting alone.
Buss JA, with whom I agreed, made the following general observations with respect to s 118 of the Act:
By s 118(4) of the Criminal Procedure Act, on an application by an accused under s 118(1), the court may order that the trial of the charge against the accused be by a judge alone without a jury if, relevantly, it considers it is 'in the interests of justice' to do so.
Section 118(5) sets out some specific circumstances in which the court may make the order. In particular, the court may make the order if it considers:
(a)the trial, due to its complexity or length or both, is likely to be unreasonably burdensome to a jury; or
(b)it is likely that acts that may constitute an offence under s 123 of the Criminal Code would be committed in respect of a member of a jury.
Section 118(6) sets out some specific circumstances in which the court may refuse to make the order. In particular, the court may refuse to make the order if it considers the trial will involve a factual issue that requires the application of objective community standards such as an issue of reasonableness, negligence, indecency, obscenity or dangerousness.
Significantly, the specific circumstances referred to in s 118(5) and s 118(6) are expressed to be without limitation to s 118(4). It follows, in my opinion, that the general criterion for the determination of an application under s 118(1) is whether the court considers it is 'in the interests of justice' to make the order. Section 118(5) specifies particular circumstances where the Parliament considers it will be 'in the interests of justice' to make the order, and s 118(6) specifies particular circumstances where the Parliament considers it will not be 'in the interests of justice' to make the order.
The expression 'in the interests of justice' in s 118(4) has a broad connotation. It will be 'in the interests of justice' to order a trial before a judge alone without a jury if that is necessary to ensure the accused receives a fair trial according to law. It will be necessary if there is a real and substantial (as distinct from a remote) doubt as to whether the accused will receive a fair trial according to law before a judge sitting with a jury. These observations on the expression 'in the interests of justice' in s 118(4) are not intended to be exhaustive. There may be other circumstances in which it will be 'in the interests of justice' to order a trial before a judge alone without a jury. It is unnecessary in the present case to rule on the correctness of the different views on the application of s 118 expressed in The State of Western Australia v Martinez [2006] WASC 25; (2006) 159 A Crim R 380 (EM Heenan J), Arthurs v The State of Western Australia [2007] WASC 182 (Martin CJ) and TVM v The State of Western Australia [2007] WASC 299; (2007) 180 A Crim R 183 (McKechnie J).
The breadth of the discretion conferred by s 118(4) indicates that it is to be exercised by reference to the particular facts and circumstances which exist when the application is heard and determined.[62]
[62] Coates [100] ‑ [105].
A trial by a judge alone was neither necessary nor desirable to ensure the appellant received a fair trial according to law. There was no real or substantial prospect that the appellant would not receive a fair trial according to law by or before a properly directed jury. Martino CJDC's decision to dismiss the application was not unreasonable or plainly unjust.
The facts and circumstances of the present case do not reveal any reasonable basis for being affirmatively satisfied that it was 'in the interests of justice', within s 118(4), that the trial of the charges against the appellant be by a judge alone instead of by or before a jury.
I would grant leave to appeal on ground 1, but the ground fails.
Appeal against conviction: ground 4: the appellant's submissions
Counsel for the appellant submitted that:
(a)each count in the indictment required the jury to be satisfied beyond reasonable doubt as to the accuracy and reliability of the complainant's evidence on that count before the jury could convict;
(b)there were no admissions against interest and there was no corroboration of any count in the indictment and there was no forensic evidence which supported the complainant's evidence on any count;
(c)there was no evidence which made the State's case on the counts in respect of which the appellant was convicted any stronger than or different from the counts in respect of which he was acquitted; and
(d)the convictions on counts 1, 4, 9 and 22 ‑ 33 are 'factually and legally inexplicable on any basis having regard to the acquittals on the other counts', and the convictions are therefore unsafe and unsatisfactory.
Appeal against conviction: ground 4: its merits
In Riley v The State of Western Australia [2007] WASCA 22 [16] ‑ [25], I examined the relevant decisions of the High Court on inconsistent verdicts. It is unnecessary to reproduce my review of the cases.
In the present case, the appellant alleges that the jury's verdicts were factually inconsistent and incompatible. It is necessary for the appellant to satisfy this court that the verdicts cannot stand together; that is, that no reasonable jury whose members properly applied their minds to the facts of the case could have arrived at the verdicts in question. If there is a proper way in which this court may reconcile the verdicts, and thereby conclude that the jury performed its functions as required by law, the verdicts will not be inconsistent in the relevant sense. The critical issue is whether it was logically and reasonably open to the jury to acquit on some counts and convict on others.
A jury is, of course, entitled to accept part, but not all, of a witness's version of events. Also, a jury, as the tribunal of fact, is entitled to 'work out for themselves a view of the case which [does] not exactly represent what either party [has] said': Williams v Smith [1960] HCA 22; (1960) 103 CLR 539, 545 (Dixon CJ, McTiernan, Fullagar, Kitto & Menzies JJ). That statement, made in the context of civil proceedings, has been applied to criminal trials. See Stevens v The Queen [2005] HCA 65; (2005) 227 CLR 319 [29] (McHugh J); WCW v The State of Western Australia [2008] WASCA 232; (2008) 191 A Crim R 22 [14] (Buss JA).
As I noted in NCH:
(a)Where several offences of a sexual nature depend upon the complainant's evidence, the circumstances of the case may justify acquittal on some counts and conviction on others.
(b)Where the jury returns different verdicts, there is no general rule that they must necessarily have found the complainant generally to be untruthful or that the complainant's credibility was undermined in respect of the counts on which the offender was convicted [130].
In the present case, the trial judge gave the jury directions in his summing up, as follows:
(a)The jury must deal with each count separately, and make a decision on each count separately (ts 725).
(b)When dealing with a count, the jury must consider only the evidence that is relevant to that count (ts 725).
(c)The jury's verdicts did not have to be the same on each count (ts 725).
(d)If the jury found the appellant guilty of one count, it did not follow that he was guilty of any other count (ts 725).
(e)Having considered all of the evidence, the jury may find the appellant guilty of all charges, or it may find him not guilty of all charges, or it may find him guilty of some and not guilty of others. Those were matters for the jury to determine on the evidence that is relevant to each charge (ts 726).
(f)The appellant was presumed to be innocent. The burden of proving the appellant's guilt was on the State. The standard of proof that the State must achieve was proof beyond reasonable doubt. For the State to discharge its burden of proving the guilt of the appellant it must prove beyond reasonable doubt that he was guilty of the offence with which he was charged (ts 716).
(g)Before the jury could draw an inference against the appellant, it must be satisfied that it was the only inference that was reasonably available. The jury could not draw an inference that the appellant was guilty of an offence with which he had been charged unless the evidence was inconsistent with any reasonable conclusion other than that he was guilty of that offence (ts 724).
(h)The real issue for the jury on each of the charges was whether the State had proved beyond reasonable doubt that the alleged conduct the subject of the charge had occurred. If the jury was not so satisfied, it would find the appellant not guilty of the charged offence (ts 784).
(i)On each of the offences charged in the indictment, the State's case 'stands or falls on whether [the jury], having taken into account all of the evidence adduced during the trial that is relevant to the particular charge', was satisfied beyond reasonable doubt of the honesty and accuracy of the complainant's evidence. The jury must be satisfied beyond reasonable doubt about the truthfulness of the complainant's evidence 'given in relation to the incident the subject of the charge on the indictment which [the jury is] considering' before the jury could convict the appellant of that charged offence (ts 786).
(j)The jury was entitled to accept all of a witness's evidence, to accept some of a witness's evidence or none of a witness's evidence. The jury was entitled to accept part of a witness's evidence and reject other parts of that witness's evidence (ts 718).
(k)If the jury believed the appellant's evidence, it must find him not guilty. If the jury had difficulty in accepting the appellant's evidence but thought it might be true, then the jury would acquit because it would be left with a reasonable doubt. The jury could not find an issue against the appellant contrary to his evidence if his evidence gave rise to a reasonable doubt on the issue. If the jury did not believe the appellant's evidence then it should put his evidence to one side and consider whether, on the evidence that the jury did accept, the State had proved his guilt beyond reasonable doubt (ts 720).
Defence counsel did not object to any part of his Honour's summing up, and did not seek a further direction or a redirection on any matter (ts 814).
It is true that the credibility and reliability of the complainant's evidence was critical to all counts on the indictment. That is not an unusual feature of criminal trials involving alleged child sex offending. The critical importance of the complainant's evidence was highlighted by the trial judge in his summing up. His Honour instructed the jury that it must be satisfied beyond reasonable doubt about the truthfulness of the complainant's evidence, given in relation to the incident the subject of the count which the jury was considering, before it could convict the appellant on that count.
It is necessary, in considering ground 4, to take into account all of the facts and circumstances of the case. An inability to identify with precision a single factor or a combination of factors which affirmatively explains why a jury acquitted on one or more counts and convicted on one or more counts does not necessarily impugn the integrity of the conviction or convictions.
In my opinion, the verdicts of the jury may properly be reconciled in the manner explained by Martin CJ in his reasons.
I am satisfied, on my examination of the trial record, that the jury's decision to acquit on counts 2, 3, 5 ‑ 8 and 10 ‑ 15 did not relevantly undermine the complainant's credibility on counts 1, 4, 9 or 22 ‑ 33 (being the counts on which the jury convicted), and does not indicate that the verdicts of conviction are inconsistent, in the relevant sense, with the other verdicts.
It merely shows that the jury was cautious and conscientious in reviewing the evidence and discharging its heavy responsibility. It may also be that the jury took a 'merciful' view of the facts on some of the counts on which it acquitted, this being a function which, as Gaudron, Gummow and Kirby JJ pointed out in MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348, 367 ‑ 368, has always been open to, and often exercised by, juries.
The jury's verdicts are not factually inconsistent or incompatible. The differences in the verdicts are not illogical or an affront to common sense.
In the present case, the appellant also alleges that the convictions are 'legally inexplicable on any basis having regard to the acquittals'. This point was not developed by counsel for the appellant in either his written or his oral submissions. The contention is not reasonably arguable. An acquittal by the jury on one or more of the counts in the indictment did not, as a matter of law, require the jury to acquit on all of the counts or preclude the jury from convicting on any of the counts. I am satisfied that there is no basis in the evidence, in the trial judge's summing up or at law for concluding that the convictions are 'legally inexplicable' having regard to the acquittals.
Ground 4 is without merit. Leave to appeal on ground 4 should be refused.
Appeal against conviction: ground 5: the appellant's submissions
Counsel for the appellant submitted that, having regard to the acquittals and the following matters:
(a)the absence of any early complaint;
(b)the absence of any forensic or other corroborative evidence;
(c)the absence of any confession or admission by the appellant;
(d)the evidence relating to the appellant's circumcision;
(e)the evidence relating to the time at which the appellant 'checked‑in' at the Ocean Clipper Inn;
(f)the evidence relating to counts 4 ‑ 6;
(g)the absence of any sexual or affectionate references in any of the Facebook entries tendered in evidence; and
(h)the evidence relating to count 8,
the convictions on counts 1, 4, 9 and 22 ‑ 33 were 'not reasonably open to the jury and were unsafe and unsatisfactory'.
Appeal against conviction: ground 5: its merits
In Mack v The State of Western Australia [2014] WASCA 207, I summarised (Martin CJ & Mazza JA agreeing) the principles to be applied by an appellate court in determining whether a verdict of guilty on which a conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported [141] ‑ [147]. It is unnecessary to repeat the relevant principles.
I agree with the analysis and conclusions of Martin CJ in relation to the matters complained of by counsel for the appellant; namely, the absence of any early complaint; the absence of any forensic or other corroborative evidence; the absence of any confession or admission by the appellant; the evidence relating to the appellant's circumcision; the evidence relating to the time at which the appellant 'checked‑in' at the Ocean Clipper Inn; the evidence relating to the offences in the country (counts 4 ‑ 6); the absence of any sexual or affectionate references in any of the Facebook entries tendered in evidence; and the evidence relating to the Point Perron incident (count 8).
I am satisfied, after evaluating the evidence of the complainant and the appellant, in the context of the trial record as a whole, that the matters of which counsel for the appellant complained do not materially detract from the complainant's evidence in relation to the counts on which the appellant was convicted.
In my opinion, on the basis of my examination of the trial record and my weighing of the evidence (in particular, the evidence of the complainant and the appellant), it was reasonably open to the jury to reject the appellant's defence and to be satisfied beyond reasonable doubt as to his guilt on counts 1, 4, 9 and 22 ‑ 33.
A jury, acting reasonably, was not precluded by the state of the evidence at trial (in particular, the evidence of the complainant and the appellant) from convicting the appellant. A jury, acting reasonably, was entitled to reject the evidence of the appellant at least on the issue of whether the evidence exculpated, or tended to exculpate, the appellant or created a doubt, or tended to create a doubt, about his guilt on counts 1, 4, 9 and 22 ‑ 33.
The jury had the very significant advantage of seeing and hearing the witnesses (in particular, the complainant and the appellant) give their evidence.
The jury, by their verdicts, rejected the evidence of the appellant at least as to whether the evidence exculpated, or tended to exculpate, the appellant or created a doubt, or tended to create a doubt, about his guilt on counts 1, 4, 9 and 22 ‑ 33. The jury, having rejected that evidence, was persuaded by and acted on relevant parts of the evidence of the complainant in relation to the alleged offending on those counts, and concluded it was satisfied beyond reasonable doubt that the State had proved those offences.
The trial record does not require the conclusion that the jury must necessarily have entertained a doubt about the appellant's guilt on counts 1, 4, 9 and 22 ‑ 33. The verdicts of guilty are not unreasonable. They were supported by evidence that the jury was entitled to accept. After paying full regard to the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and after paying full regard to the consideration that the jury has had the benefit of having seen and heard the witnesses, I do not have a reasonable doubt as to the appellant's guilt on counts 1, 4, 9 and 22 ‑ 33 or as to the correctness of his conviction on those counts.
Ground 5 is without merit.
Appeal against conviction: ground 1: the proviso
Section 30(3) of the Criminal Appeals Act 2004 (WA) provides that this court must allow an appeal against conviction by an offender if, in its opinion:
(a)the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported;
(b)the conviction should be set aside because of a wrong decision on a question of law by the judge; or
(c)there was a miscarriage of justice.
However, by s 30(4), despite s 30(3), even if a ground of appeal might be decided in favour of the offender, this court may dismiss the appeal if it considers that 'no substantial miscarriage of justice has occurred'.
In Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92, French CJ, Gummow, Hayne and Crennan JJ reiterated that an appellate court must undertake the task of determining whether to apply the proviso to the Australian common form criminal appeal statute in the same manner as it would decide whether 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 [27]. The task of determining whether no substantial miscarriage of justice has actually occurred must be undertaken on the whole of the trial record including the jury's verdict of guilty [27]. Their Honours then made two further points. First, the appellate court, in assessing the significance to be given to the jury's verdict of guilty, must pay proper regard to the issues the jury were directed to decide in order to arrive at a verdict of guilty [28]. Secondly, the statement by Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ in Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [44], that the proviso cannot be engaged 'unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty', is a negative proposition [29]. The statement enunciates a necessary but not sufficient condition for the application of the proviso. French CJ, Gummow, Hayne and Crennan JJ observed in Baiada Poultry:
As this Court's decision in AK v Western Australia ((2008) 232 CLR 438 at 457 [58]) shows, demonstration that a chain of reasoning can be articulated that would require the verdict reached at trial does not always permit, let alone require, the conclusion that no substantial miscarriage of justice actually occurred [29].
See also Reeves v The Queen [2013] HCA 57; (2013) 88 ALJR 215 [50] ‑ [51] (French CJ, Crennan, Bell & Keane JJ).
Even if (contrary to my opinion) Martino CJDC was in error in failing to order a trial by a judge alone instead of a trial by or before a jury, I am satisfied beyond reasonable doubt that no substantial miscarriage of justice has occurred. My reasons are as follows.
First, I am satisfied beyond reasonable doubt, on my examination of the trial record, as to the appellant's guilt on each of the counts on which he was convicted. I refer, in particular, to my consideration of the issues raised by grounds 2, 3, 4 and 5 of the appeal and my conclusions that the propensity evidence was admissible under s 31A of the Evidence Act, the jury's verdicts were not factually or legally inconsistent or incompatible, and the verdicts of guilty are not unreasonable and were supported by evidence that the jury was entitled to accept. Secondly, I am satisfied beyond reasonable doubt that nothing occurred at or in the conduct of the trial (including the trial judge's directions to the jury) which occasioned an unfair trial or otherwise precludes this court from deciding that no substantial miscarriage of justice has occurred. No complaint was made at the trial or in the appeal about any of the trial judge's directions (including the directions about the propensity evidence) to the jury. Thirdly, if (contrary to my opinion) Martino CJDC was in error in failing to order a trial by a judge alone instead of a trial by or before a jury, that error was not, on the facts and in the circumstances of the present case, of a kind that precludes 'the proviso' from being engaged. The trial record reveals that the appellant received a fair trial according to law.
Appeal against conviction: conclusion
I would grant leave to appeal on ground 1 but refuse leave on each of the other grounds. The appeal should be dismissed.
Appeal against sentence: the grounds of appeal
The appellant relies on three grounds of appeal.
Ground 1 alleges that the trial judge erred in his decision to impose sentence on the basis that the appellant represented a high risk to the community of committing further sexual offences against boys.
Ground 2 alleges that the total effective sentence 'was excessive having regard to the totality principle'. The particulars of ground 2 read:
2.1The imposed sentence failed to adequately deal with the criminality involved and the totality of the offending. It was excessive having regard to all the relevant circumstances of the appellant and the circumstances of the offending.
2.2The sentence imposed was one which, having regard to the appellant's age and personal circumstances, was crushing and had the effect of removing any expectation of the appellant having a useful life after release from custody.
Ground 3 alleges that the total effective sentence 'was manifestly excessive having regard to the comparable cases'. The particulars of the ground read:
3.1In contrast to many of the decided cases that resulted in comparable sentences, the present offending did not include multiple victims.
3.2The present offending did not involve any violence, threats or coercion to the complainant.
3.3The present offending did not involve any acts of gross perversion.
3.4The present offending did not involve a child of a very young age, as is the case with many of the authorities that resulted in the imposition of head sentences comparable to that imposed in the present case.
On 9 February 2014, Mazza JA referred the application for leave to appeal on these grounds to the hearing of the appeal.
Appeal against sentence: ground 1
I agree with Martin CJ, for the reasons he gives, that ground 1 is without merit.
Appeal against sentence: grounds 2 and 3
It is apparent from grounds 2 and 3 and the particulars of those grounds, read together, that the appellant alleges in substance that the total effective sentence of 7 years 10 months' imprisonment infringed the first and second limbs of the totality principle. I will deal with grounds 2 and 3 on that basis.
A complaint that a sentencing judge has infringed the totality principle involves an allegation of implied or inferred error. The first limb of the principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases. The second limb of the principle is that the total effective sentence imposed on an offender should not constitute a 'crushing' sentence; that is, it should not destroy any reasonable expectation of useful life after release from custody. These propositions are well-established by the case law.
Advanced age is a relevant consideration in determining whether a sentence will be crushing. The rationale is that each year of a sentence represents a substantial proportion of the period of life which is left to an offender of advanced age. See R v Hunter (1984) 36 SASR 101, 103 (King CJ); Braham v The Queen (1994) 116 FLR 38, 51 (Angel J); R v Whyte [2004] VSCA 5; (2004) 7 VR 397, 405 ‑ 406 (Winneke P, Bongiorno & O'Bryan AJJA agreeing); Gulyas v The State of Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539 [34] (Steytler P, McLure & Miller JJA agreeing); R v Iles [2009] VSCA 197 [31] ‑ [35] (Redlich JA, Neave JA agreeing).
However, whether and, if so, to what extent, leniency should be given to an offender of advanced age depends on all the facts and circumstances of the particular case. As Steytler P noted in Gulyas, the authorities emphasise that age is only one factor in the sentencing process, and that advanced age can never be a justification for a sentence which is not fairly proportionate to the offence or otherwise inappropriate [35]. See also Hunter (103). An offence may be so serious that humanitarian considerations cannot be accommodated.
In Smith v The State of Western Australia [2010] WASCA 176, I reviewed various provisions of the Prisons Act 1981 (WA) and the Prisons Regulations 1982 (WA) in relation to the provision of medical treatment for prisoners. I noted (McLure P & Mazza J agreeing):
First, the chief executive officer of the department of the Government principally assisting the Minister in the administration of the Prisons Act (the Department) is under a duty to ensure that medical care and treatment is provided to the appellant in prison. Secondly, a medical officer is bound, on the request of the chief executive officer, to examine and treat the appellant if he requires medical care and treatment. Thirdly, the chief executive officer is empowered to give written permission for the appellant to be absent from prison for a period specified, and for a reason described, in an absence permit. An absence permit may be given by the chief executive officer for the appellant to be admitted to the Frankland Centre at Graylands Hospital or to any other authorised hospital for the purpose of the treatment of his psychiatric illness. Fourthly, if the chief executive officer were to give an absence permit in relation to the appellant, the chief executive officer may give the permit subject to conditions or restrictions for the purpose of protecting the safety and interests of the public [68].
The primary sentencing considerations for offences of the kind committed by the appellant are appropriate punishment of the offender and personal and general deterrence, having regard to the need to protect vulnerable children. See Woods v The Queen (1994) 14 WAR 341, 345 ‑ 346 (Anderson J, Malcolm CJ & Seaman J agreeing); PP v The State of Western Australia [2004] WASCA 144 [14] (McLure J, Malcolm CJ & Murray J agreeing); M v The State of Western Australia [2006] WASCA 256 [30] (Wheeler JA, Steytler P & McLure JA agreeing).
There is no tariff for offences of the kind in question (or for sex offences generally) because of the great variation that is possible in the circumstances of the offending and the offenders. The sentence to be imposed in a particular case depends on its individual facts and circumstances, having regard to the maximum penalty and all relevant sentencing considerations. It is important, however, to appreciate what sentences are customarily imposed in cases involving similar offending, for the purpose of avoiding the risk of sentencing becoming idiosyncratic and arbitrary. See The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373 [68] ‑ [69] (Steytler P, McLure JA agreeing).
The maximum penalty for:
(a)the appellant's offence, contrary to s 320(4) of the Code, was 10 years' imprisonment;
(b)the appellant's offences, contrary to s 321(4) of the Code, was 7 years' imprisonment; and
(c)the appellant's offences, contrary to s 321(2) of the Code, was 14 years' imprisonment.
I have examined numerous cases in which this court has heard and determined appeals against sentence for child sex offences. In particular, I have considered the facts and circumstances, and the sentencing dispositions, in The State of Western Australia v Prince [2011] WASCA 22; Rowan v The State of Western Australia [2009] WASCA 185; RFS v The State of Western Australia [2012] WASCA 58; The State of Western Australia v FJG [2012] WASCA 206; Downie v The State of Western Australia [2013] WASCA 244; and the cases referred to in those decisions. I have also considered the facts and circumstances, and the sentencing dispositions, in other cases cited by counsel for the appellant and counsel for the State.
It is unnecessary to reproduce the relevant facts and circumstances or the sentences imposed in the previous cases. There are some comparable features between some of those cases, on the one hand, and the present case, on the other, but there are also distinguishing features.
The limits of the guidance afforded by comparable cases are flexible rather than rigid. A sentencing range is merely one of the factors to be taken into account in deciding whether an individual sentence is manifestly excessive or a total effective sentence infringes the totality principle. The mere fact that a sentence is within the range of other sentences imposed for similar offences does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact that a sentence is outside that range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
The appellant's offending was correctly characterised by the trial judge as falling towards the higher end of the scale of seriousness for this type of offending (ts 852).
The offences were inherently serious. The offending was persistent and spanned a period of two to three years. It did not involve isolated incidents or momentary lapses by the appellant.
The offending was planned and premeditated. As his Honour rightly said, the appellant engaged in a 'prolonged course of conduct directed at gaining the complainant's trust and grooming him for the commission of the offences' (ts 852). The appellant groomed the complainant, and secured his cooperation and silence, through friendship, obligation and shame.
There was a considerable disparity between the age of the appellant and the age of the complainant. During the period of the offending the appellant was aged in his mid to late 60s and the complainant was aged between 11 and 14 years.
After the appellant was released from prison, having served a custodial term for the previous child sex offences of which he had been convicted, the complainant's extended family, though wary, gradually reposed an increasing degree of trust in him. The appellant abused this trust by using the opportunities it gave him for contact alone with the complainant to groom and then sexually abuse the complainant.
The trial judge noted that the complainant was, to some extent, an 'easy target' for the appellant, and that the appellant took advantage of the complainant's unfortunate domestic situation (ts 844). The discord between the complainant's parents reduced the prospect of the appellant's offending being detected.
The appellant ingratiated himself with the complainant by the provision of expensive gifts, including computers, cameras, music lessons and CDs.
The appellant's use of the complainant for his own sexual gratification had a significant adverse effect on the complainant's emotional and social well‑being (ts 853). The victim impact statement shows that the appellant's misconduct deprived the complainant of his innocence and had a detrimental impact on his family and personal relationships.
The fact that some aggravating factors (for example, violence, threats, coercion and acts of 'gross perversion') were absent from the appellant's offending does not diminish the seriousness of his actual conduct in relation to the complainant. It merely demonstrates that the appellant's offending could have been worse.
There was little by way of mitigation.
As I have mentioned, the appellant was aged in his mid to late 60s at the time of the offending and was 68 when sentenced. He was not youthful or inexperienced for sentencing purposes.
The appellant did not have the mitigation of being otherwise of good character. He had previous convictions for child sex offences. This did not aggravate the current offending, but it underscored the importance of personal deterrence as a sentencing factor.
Although the appellant was, of course, entitled to proceed to trial, he could not claim the mitigation that pleas of guilty would have brought.
There was no evidence that the appellant had taken any steps with a view to his rehabilitation. The appellant steadfastly maintained his denial of the offending. He was not remorseful. The trial judge was entitled to find, on the material before him, that the appellant posed a high risk of reoffending.
It is true that the appellant had a number of health issues. He suffers from type 2 diabetes. However, his health issues appear to be stable and there is no basis for concluding that they are unable to be well‑managed within the prison system. I accept that, given his age, there is a reasonable possibility that the appellant's health may deteriorate while he is in custody. However, the Prisons Act and the Prisons Regulations require that proper medical treatment be made available to prisoners and, if necessary, an absence permit may be given to enable their treatment in an appropriate institution in the general community.
The appellant was not, when sentenced, of very advanced years. He will be aged 74, when he becomes eligible for release on parole, and will be 76 when he completes his sentence.
In my opinion, the total effective sentence of 7 years 10 months' imprisonment does not infringe the first limb of the totality principle. The term of 7 years 10 months was necessary to give effect to the dominant sentencing factors of appropriate punishment and personal and general deterrence, having regard to the need to protect vulnerable children. An accumulation of some of the individual sentences was required in order to mark the seriousness of the appellant's offending. The total effective sentence bears a proper relationship to the criminality involved in all of the offences against the complainant, viewed together, and having regard to all relevant facts and circumstances and all relevant sentencing considerations, including the seriousness of the offending, the pattern of sentencing in reasonably comparable cases and the limited mitigation.
In my opinion, the total effective sentence of 7 years 10 months' imprisonment does not infringe the second limb of the totality principle. The trial judge took into account the appellant's age in determining the total effective sentence. Unfortunately, from the appellant's viewpoint, the serious nature of his offending, the risk of his reoffending, the necessity for condign punishment and the demands of personal and general deterrence substantially reduced the extent to which humanitarian considerations, based on the appellant's age, could be accommodated in the sentencing disposition. In any event, the total effective sentence was not disproportionate to the appellant's overall offending and it cannot reasonably be said that he has been left without any reasonable prospect of useful life after his release.
It is not reasonably arguable that the existence of error on the part of the trial judge should be implied or inferred, based on the first or the second limb of the totality principle, from the sentencing outcome.
Grounds 2 and 3 are without merit.
Appeal against sentence: conclusion
I would refuse leave to appeal on each of grounds 1, 2 and 3. The appeal should be dismissed.
MAZZA JA: I agree with Buss JA.
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