Lne v The State of Western Australia
[2021] WASCA 146
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: LNE -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 146
CORAM: BUSS P
MAZZA JA
BEECH JA
HEARD: 5 AUGUST 2021
DELIVERED : 5 AUGUST 2021
PUBLISHED : 18 AUGUST 2021
FILE NO/S: CACR 147 of 2020
BETWEEN: LNE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: BARONE DCJ
File Number : IND 1561 of 2019
Catchwords:
Criminal law - Charges of sexual offences - Relationship evidence - Where evidence of other acts of sexual misconduct - Whether judge misdirected the jury with respect to the use(s) of other acts of sexual misconduct
Legislation:
Nil
Result:
Leave to appeal on grounds 1 and 2 granted
Appeal allowed
Judgments of conviction set aside
Retrial ordered
Category: B
Representation:
Counsel:
| Appellant | : | N R Sinton |
| Respondent | : | B M Murray |
Solicitors:
| Appellant | : | Legal Aid (WA) |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Hill v The State of Western Australia [2019] WASCA 209
LNN v The State of Western Australia [2021] WASCA 39
R v Kemp [1997] 1 Qd R 383
R v WO [2006] QCA 21
REASONS OF THE COURT:
Introduction
The appellant appeals against his conviction after a trial before a judge and a jury of 13 sexual offences against two girls each aged between 9 and 10 years old.
The appellant challenges the judge's directions concerning evidence given by each complainant of other uncharged sexual misconduct by him against each of them. By ground 1, the appellant contends that the judge erred in directing the jury that if they found the evidence of the uncharged acts to be truthful and accurate, they could take the evidence into account in deciding whether the charged offences were proven beyond reasonable doubt. By ground 2, the appellant contends that the judge erred in directing the jury that if they did not accept a complainant's evidence as to the uncharged acts, that conclusion was not likely to influence their assessment of the complainants' credibility with respect to the charged offences.
The respondent conceded that ground 2 was made out. At the conclusion of the hearing of the appeal, the court made orders to the following effect:
(1)Leave to appeal on grounds 1 and 2 is granted.
(2)The appeal is allowed.
(3)The judgments of conviction are set aside.
(4)There be a new trial of the appellant on the offences charged in indictment number 1561 of 2019.
The court said it would publish its reasons later. These are our reasons.
The State case
The State case relied upon the evidence of the two complainants. The offending against the first complainant, CS, involved five counts of sexual penetration and three counts of indecent dealing. CS was the appellant's granddaughter. The second complainant, MN, was CS's stepsister and was not related to the appellant. The alleged offending against MN involved two counts of sexual penetration and three counts of indecent dealing. The offending was said to have occurred on occasions when CS and MN were staying for the weekend at the appellant's house.
The complainants' evidence was adduced through interviews they gave with police in November 2018, and by their oral testimony.
In addition to giving evidence of the conduct the subject of the alleged offences, each of the complainants gave evidence of other sexual misconduct on the part of the appellant, said to have occurred regularly, that was not the subject of any charge. We will refer to this evidence as 'the Other Conduct evidence'.
The defence case
The defence case at trial was that the complainants' allegations were false. The appellant gave evidence denying the allegations.
The prosecution use of the Other Conduct evidence
In opening, the prosecutor did not address the question of what use the jury might make of the complainants' Other Conduct evidence. In the interests of clarity it would have been helpful to have done so.
In his closing address, the prosecutor submitted to the jury that CS's Other Conduct evidence of the appellant's acts of watching her while she was bathing was consistent with and corroborative of MN's evidence with respect to count 12.[1] The prosecutor also submitted that CS's Other Conduct evidence about the acts of the appellant in putting his hand in areas of her body that made her feel uncomfortable while they were in the lounge room was very similar to MN's evidence about the incidents the subject of counts 9 and 10.[2]
[1] Closing addresses 14, 17 - 19.
[2] Closing addresses 17, 19.
At the completion of the prosecution's closing address, the judge raised concerns with the prosecutor that these parts of the address invoked a form of propensity reasoning.[3] After some prevarication, the prosecutor ultimately informed the judge that the State sought to rely on the evidence as circumstantial evidence.[4] The judge told counsel that she would deal with the issue in the directions to the jury.[5] As will be seen, her Honour did so.
[3] ts 242 - 246.
[4] ts 252 - 253.
[5] ts 254.
The judge's direction as to the Other Conduct evidence
The judge gave the jury the following directions as to the Other Conduct evidence:[6]
[6] ts 311 - 313.
Now, both [CS] and [MN] not only gave evidence about the alleged events in each of the counts on the indictment, but also about other acts that happened through them by [the appellant]. For example, you heard evidence from [CS] that there was a time when she was watching a movie on the blanket and [the appellant]'s hands went in areas on her body.
[CS] also gave evidence that [the appellant] would come in on a regular occurrence into the bathroom and get a bar of soap and wash her. [CS] said most of the time he did that he would grope her breasts with his hands or put his hands down near her vagina.
The State led that evidence as tending to explain why the complainant, [CS], would not be startled or surprised when he made sexual contact with her. It's led as evidence of part of the overall context of the relationship between [the appellant] and [CS].
Similarly, the State led evidence from [MN] that other acts occurred to her too. For example, she said that [the appellant] would rub her back under her clothes and rub his fingers on her body. The State led that evidence as tending to explain why the complainant, [MN], would not be startled or surprised when the accused made sexual contact with her. It was led as part of the overall context of the relationship between [the appellant] and [MN].
Of course, you could only use this other evidence of acts of [the appellant] if you find it reliable and believable to be true, that is, if you find the evidence as to those events to be truthful and accurate.
If you do find the evidence to be truthful and accurate, you can consider that evidence along with all of the other evidence to decide whether the State has proved the charge relating to [CS] and [MN] respectively beyond a reasonable doubt.
So for example, in relation to [CS], you could use that evidence of the other time when she was watching movies and [the appellant]'s hands would go in places or in areas. Or the fact that [the appellant], her evidence, [CS]'s evidence was that it was a regular occurrence that he would get a bar of soap and wash her. You could use that evidence in understanding the relationship between [the appellant] and [CS] and in relation to determining whether the State has proved the charges relating to [CS], so each girl respectively.
And so in respect of [MN], you could use for example the evidence that [MN] gave of other acts that [the appellant] had done to her, so other touchings on her body, under the clothes, with his fingers, in considering, along with all of the other evidence to decide whether or not the State has proved the charges relating to [MN] respectively beyond reasonable doubt.
However, even if you accept the evidence of these events to be true, you should always bear in mind that your task is to decide whether the State has proved beyond reasonable doubt that the accused committed the acts for which he has been charged. You cannot deliver a guilty verdict unless, having considered all of the evidence, you are satisfied beyond reasonable doubt that the accused is guilty of the charges.
On the other hand, if you do not accept each of the complainant's evidence, so respectively again, of these other events, then it's not likely to influence your assessment of their credibility about events charged on the indictment as it relates to each of them respectively.
I do, however, need to direct you that you cannot use this evidence of other acts, these are other acts that are not part of the acts in relation to each of the counts on the indictment. So other acts which are not the subject of the charges, to reason that [the appellant] must have therefore committed the acts alleged.
You must not reason that acceptance of this other uncharged conduct, if you accept that it occurred, makes it more likely that [the appellant] actually committed a charged act for which he is charged. So I'll repeat that. You must not reason that acceptance that this other conduct occurred makes it more likely that [the appellant] committed the acts for which he is charged. So you cannot reason in that way.
Now, when [the prosecutor] was making his submissions to you, he drew your attention to the fact that [CS] had given evidence about being washed with soap as well. Now, you may use that evidence to help resolve facts. For example, that evidence is evidence that [CS] - sorry, [the appellant] would wash [CS], a girl.
And that might help you determine whether or not [the appellant] did in fact bathe the children. And it may be a fact that is relevant that [the appellant] bathed children. But you cannot reason that an acceptance that [the appellant] washed [CS] with a bar of soap that it therefore makes it more likely that [the appellant] committed an act for which he is charged. So for example, you cannot reason that acceptance that this conduct occurred makes it more likely that [the appellant] committed the act against [MN] in the bath, which is a charged act, charge 12. (emphasis by italics and underlining added)
Ground 1 complains as to the italicised passage and ground 2 as to the underlined passage of these directions.
Grounds of appeal
The appellant challenges his convictions on the following grounds:
1.The judge erred in law by directing the jury that if they found the Other Conduct evidence to be truthful and accurate, they could take the evidence into account in deciding whether the State had proved the charged offences.
2.The judge erred in law by directing the jury that if they did not accept a complainant's evidence as to the Other Conduct evidence, that conclusion was not likely to influence their assessment of the complainant's credibility as to the charged offences.
The appellant's submissions
In support of ground 1, the appellant submits that the direction to the jury, that they could take into account the Other Conduct evidence in deciding whether the State had proved the charged offences, was erroneous or liable to invite the jury to make impermissible use of the Other Conduct evidence. In support of that contention, the appellant points to the decisions of this court in Hill v The State of Western Australia[7] and LNN v The State of Western Australia.[8]
[7] Hill v The State of Western Australia [2019] WASCA 209 - this decision is currently suppressed, but is referred to in LNN v The State of Western Australia.
[8] LNN v The State of Western Australia [2021] WASCA 39.
The appellant acknowledges that the trial judge also directed the jury that they (i) must not use the Other Conduct evidence to conclude that therefore the appellant must have committed the charged acts and (ii) must not reason that acceptance of the Other Conduct evidence made it more likely that the appellant committed the charged acts. The appellant submits that those directions are insufficient to have ensured that the jury did not make impermissible use of the Other Conduct evidence in deciding whether the State had proved the charges beyond reasonable doubt. The appellant further submits that the direction was liable to cause confusion to the jury.
In support of ground 2, the appellant submits that the judge erred in directing the jury that if they did not accept each of the complainant's Other Conduct evidence, it was not likely to influence their assessment of the complainants' credibility about the events charged on the indictment. The appellant submits that, in a case where the complainants' credibility was a critical issue, it was well open to the jury, if they did not accept the credibility or reliability of the complainants' Other Conduct evidence, to take that into account, favourably to the appellant and adversely to their assessment of the complainants, in evaluating the complainants' credibility and reliability in relation to the charged acts. The appellant points to the decisions in R v Kemp[9] and in R v WO[10] in support of this contention.
[9] R v Kemp [1997] 1 Qd R 383.
[10] R v WO [2006] QCA 21.
The respondent's concession
As already noted, the respondent conceded the error the subject of ground 2, submitting that the jury should have been directed that if they did not accept the Other Conduct evidence, that conclusion was likely to influence their assessment of the complainants' credibility as to the events alleged in the indictment. However, the respondent contended that ground 1 is not made out, on the basis that, understanding the judge's summing up as a whole, there was no perceptible risk that the jury might engage in impermissible propensity reasoning.
Disposition
In our view, the respondent's concession of the error the subject of ground 2 was properly made. If the jury did not believe, or had a doubt about the credibility or reliability of, a complainant's generalised evidence, that was a matter that the jury would properly bring to account in their consideration of that complainant's specific allegations.[11] In directing the jury that they would or should not do so, her Honour erred.
[11] R v Kemp (398 - 399); R v WO [43].
The respondent properly recognised that, as the direction bore upon the jury's evaluation of the complainants' credibility, there was no room for the operation of the proviso in this appeal.
In the circumstances, it is not necessary to resolve ground 1. For the purposes of the retrial, we would, however, observe that it is, at least, undesirable for the direction to the jury to include the statement impugned by ground 1, namely that the jury could consider the Other Conduct evidence, along with all the other evidence, to decide whether the State has proved the charges beyond reasonable doubt. Given that the ultimate issue for the jury was whether the State had proved the charges beyond reasonable doubt, to so direct does not inform the jury of how they might use the evidence in so deciding. The general terms in which such a direction is couched renders it capable of giving rise to confusion on the part of the jury, and to a risk that they may use the Other Conduct evidence in an impermissible fashion, including by using it as probative of guilt. Moreover, there is no need for such a direction, as the other parts of the judge's direction appropriately identified, with specificity, the various uses of the Other Conduct evidence that were permissible.
Conclusion
For these reasons, we made the orders in [3] above.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JR
Research Associate to the Honourable Justice Beech
18 AUGUST 2021
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