LNV v The State of Western Australia
[2019] WASCA 180
•15 NOVEMBER 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: LNV -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 180
CORAM: BUSS P
BEECH JA
SOFRONOFF AJA
HEARD: 16 JULY 2019
DELIVERED : 15 NOVEMBER 2019
FILE NO/S: CACR 71 of 2018
BETWEEN: LNV
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: GLANCY DCJ
File Number : IND 918 of 2017
Catchwords:
Nil
Legislation:
Criminal Appeals Act 2004 (WA), s 30(3), s 30(4)
Result:
Leave to appeal on ground 5 granted
Leave to appeal on grounds 1, 2, 3 and 4 refused
Appeal allowed
Judgments of conviction set aside
New trial ordered on those counts in respect of which the jury returned verdicts of guilty
Category: A
Representation:
Counsel:
| Appellant | : | Mr S W O'Sullivan (in relation to ground 5) & Mr M R Gunning (in relation to grounds 1, 2, 3 and 4) |
| Respondent | : | Mr B M Murray |
Solicitors:
| Appellant | : | Gunning Young |
| Respondent | : | The Director Of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50
Banks v The State of Western Australia [2018] WASCA 130
Birks v The State of Western Australia [No 2] [2007] WASCA 29; (2007) 33 WAR 291
Boucher v The Queen [1955] SCR 16
BRS v The Queen [1997] HCA 47; (1997) 191 CLR 275
Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314
Castle v The Queen [2016] HCA 46; (2016) 259 CLR 449
Clyne v NSW Bar Association [1960] HCA 40; (1960) 104 CLR 186
DS v The State of Western Australia [2008] WASCA 182
Gately v The Queen [2007] HCA 55; (2007) 232 CLR 208
KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221
LBC v The State of Western Australia [2011] WASCA 201
Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
Longman v The Queen [1989] HCA 60 (1989) 168 CLR 79
MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512
Mahmood v The State of Western Australia [2009] WASCA 220
MAM v The State of Western Australia [2018] WASCA 35
Noto v The State of Western Australia [2006] WASCA 278; (2006) 168 A Crim R 457
Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614
Oblak v The State of Western Australia [2007] WASCA 176
Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1
Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107
Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461
R v Birks (1990) 19 NSWLR 677
R v Foley (2000) 1 Qd R 290
R v Leak (1969) SASR 172
R v Lewis [2003] NSWCCA 180
R v Visser [1983] 3 NSWLR 240
Randall v The Queen [2002] 1 WLR 2237
Richardson v The Queen [1974] HCA 19; (1974) 131 CLR 116
Sayed v The Queen [2012] WASCA 17
Simic v The Queen [1980] HCA 25; (1980) 144 CLR 319
SPW v The State of Western Australia [2012] WASCA 41
Suresh v The Queen [1998] HCA 23; (1998) 72 ALJR 769
The Queen v GW [2016] HCA 6; (2016) 258 CLR 108
TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124
Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657
Zanon v The State of Western Australia [2016] WASCA 91; (2016) 50 WAR 1
BUSS P & SOFRONOFF AJA:
This is an appeal against conviction.
The appellant was charged with five counts of indecently dealing with a child under the age of 13 years and with two counts of sexually penetrating the same child, each count alleged to have occurred on a date unknown between 21 August 2014 and 12 October 2015. A jury acquitted him on three of the indecent dealing counts (counts 3, 4 and 5) and found him guilty on the remaining counts (counts 1, 2, 6 and 7).
The prosecution case was not complicated. There were only three prosecution witnesses called at the trial. These were the complainant boy, his mother and a police officer. The complainant was a 10‑year‑old boy who lived with his mother, Ms Jackson (a pseudonym). Ms Jackson had separated from her son's father. Some time after the complainant's father and mother separated, the complainant began to sleep in his mother's double bed rather than in his own. Ms Jackson met the appellant on her birthday in August 2014 and began a sexual relationship with him. He soon began to stay at her home several nights a week. When the appellant would stay over he would sleep in the same bed with Ms Jackson and the complainant.
Ms Jackson gave evidence that, one morning as she was cooking breakfast, her son was asleep in the double bed upstairs and the appellant was with her in the kitchen. The appellant left the kitchen and went upstairs. Ms Jackson followed him. She looked into the bedroom and saw the appellant in bed next to her son, both of them under the bedclothes. One of the appellant's hands appeared to be between her son's legs. She said that she 'immediately … thought, he's abusing my son'. She 'kept things … quiet' while her son was at home but after he had left for school, Ms Jackson asked the appellant 'if he was a paedophile'. He said that he was not. Ms Jackson told him that she 'saw what [she] saw and he can't take that back and that [she] would notify the police' (ts 162). Their relationship ended at that moment and the appellant left. Later, Ms Jackson asked her son whether the appellant had been touching him. The complainant said that the appellant had done so 'to wake him up' (ts 164). Ms Jackson did not go to the police at that stage.
In April 2016, a friend of Ms Jackson's alerted her to a television news story about the appellant. He had been arrested and charged with two counts of deprivation of liberty and three counts of sexual penetration of a child under 13 years. The appellant had lured two children away from a childcare centre, a girl aged four and a boy aged five, and had taken them to a shed nearby in which he was living. He had put his penis into the boy's mouth and then had done the same to the girl. He performed cunnilingus on the girl. Later he would plead guilty to charges arising from these acts and would be sentenced to a term of imprisonment. He was still serving that term during the trial of the offences which are the subject of this appeal.
Ms Jackson said that this news had prompted her to take her son to a police station where he was interviewed.
The complainant's evidence was recorded and played to the jury. He said that the appellant had 'touched [his] rude parts'.[1] He said that when the appellant had 'touched [his] rude parts' he did so by holding the complainant's penis 'very tightly'.[2] The complainant said that the appellant 'slaps [his] rude part when [he goes] up the staircase and down the staircase'.[3] In bed on one occasion the appellant also tried to 'touch [the complainant's] rude parts' and the complainant responded by rolling over to face away. The appellant then 'puts [sic] his finger in [the complainant's] bum'.[4] The complainant went downstairs and sat on a couch. The appellant followed him and 'rubbed [his] bum' with his hand.[5]
[1] Police interview 22 April 2016, ts 6 - 7; blue green AB 18 - 19.
[2] Police interview 22 April 2016, ts 8; blue green AB 20.
[3] Police interview 22 April 2016, ts 6; blue green AB 18.
[4] Police interview 22 April 2016, ts 7 - 10; blue green AB 19 - 22.
[5] Police interview 22 April 2016, ts 7 - 10; blue green AB 19 - 22.
On another occasion the appellant had taken the complainant to a park to kick a football. The complainant needed to visit the park toilet. The complainant said the appellant followed him into the toilet and 'started trying to grab my willy and tried to like hit it and stuff'.[6] He was 'grabbing it … and like pulling it and slapping it'.[7] On the drive home the appellant again grabbed the complainant's penis.[8] After they arrived home, the appellant touched the complainant's penis and penetrated the complainant's anus with his finger while in bed.[9] The complainant said that he had told nobody about these things at the time because the appellant had said that if he did so the appellant would hurt him.[10]
[6] Police interview 1 September 2017, ts 7; blue green AB 43.
[7] Police interview 1 September 2017, ts 7; blue green AB 43.
[8] Police interview 1 September 2017, ts 8, 10; blue green AB 44, 46.
[9] Police interview 1 September 2017, ts 2 - 7; blue green AB 55 - 60.
[10] Police interview 1 September 2017, ts 15; blue green AB 51.
The only other witness called at the trial was a police officer through whom the prosecution tendered some photographs of the house in which the complainant lived with his mother at the time of the offences. The fact of his convictions arising from his offences in relation to the children from the childcare centre was tendered as propensity evidence.[11]
[11] See decision of Sweeney DCJ regarding the State's s 31A Evidence Act 1906 (WA) application at pre-trial hearing on 4 December 2017.
The appellant gave evidence. He denied that he had done any of the acts alleged against him. The jury found him guilty on four counts.
Grounds of appeal
The appellant appeals against his conviction on four grounds. First, he contends that the fact that the prosecutor put to him, 'would it be right to say … that you are a paedophile', denied him a fair trial. Second, he contends that the learned trial judge erred in refusing to discharge the jury on his application. Third, he contends that he was denied a fair trial by the jury's exposure to an 'accumulation of prejudicial material', namely a newspaper report published on the second day of the trial headed 'More charges for paedophile', the prosecutor's question referred to above, and certain statements made by the learned trial judge in her summing up about the mother's evidence. Fourth, he contends that evidence as to recent complaint, specifically evidence about what the complainant had said to the mother on the morning on which she had confronted the appellant, was inadmissible. On 2 September 2018, Mazza JA ordered that the application for leave to appeal on the grounds of appeal contained in the appellant's case (grounds 1, 2, 3 and 4) be referred to the hearing of the appeal.
The court invited the parties to make submissions about a further matter. As a result, the appellant sought and was granted leave at the hearing of the appeal (appeal ts 34) to add a fifth ground of appeal as follows:
There was a miscarriage of justice in that inadmissible evidence was led in the trial and there was no judicial direction given to the jury as to the way in which they should treat that evidence leading to a reasonable prospect that the verdicts were affected.
That fifth ground arises from the fact that the jury heard evidence about the following matters:
1.The appellant called the complainant 'a little cunt' (ts 158).
2.Every time the appellant went upstairs, he would steal things from Ms Jackson (ts 161).
3.Ms Jackson asked the appellant if he was a paedophile (ts 162).
4.Ms Jackson got a violence restraining order against the appellant (ts 163 - 165).
5.Ms Jackson's older brother was molested as a child and later suicided (ts 163).
6.The appellant was violent.
7.The appellant put Ms Jackson in fear of her life and her son's life (ts 164).
8.The appellant filled Ms Jackson's car with rocks and sand (ts 164).
9.The appellant slashes the tyres of Ms Jackson's car (ts 165).
10.The appellant said that anyone could lock Ms Jackson out of the house and go upstairs and rape her son (ts 165, 176).
11.Ms Jackson thought the appellant would murder her if she complained to the police (ts 169).
12.The complainant witnessed the appellant being violent to Ms Jackson (ts 169, 178).
13.The complainant required counselling (ts 169, 178).
14.The appellant threatened to burn down Ms Jackson's house (ts 170).
15.The appellant threatened to put Ms Jackson in hospital (ts 170).
16.The appellant put Ms Jackson in hospital (ts 170).
17.The appellant was very controlling (ts 173).
18.The appellant stole Ms Jackson's underwear (ts 174 - 175).
19.The appellant threatened Ms Jackson (ts 175).
20.The appellant assaulted Ms Jackson (ts 175).
21.The appellant locked Ms Jackson outside her house with her child inside and she needed to kick in the laundry door to get inside (ts 176).
22.The appellant came to murder Ms Jackson (ts 177).
23.Ms Jackson saved her child from rape by the appellant by kicking in the laundry door (ts 177).
24.The complainant was petrified of the appellant (ts 177).
25.Ms Jackson was in grave danger from the appellant (ts 177).
26.Ms Jackson thought that the appellant was going to rape the complainant (ts 178).
27.The appellant was incarcerated (ts 188).
28.The appellant broke into her house after Ms Jackson broke up with him (ts 188).
29.Ms Jackson caught the appellant with his hands down the complainant's pants (ts 190).
30.Ms Jackson spent time in a women's refuge (ts 190).
31.The appellant extorted Ms Jackson for money (ts 193).
32.The appellant injured Ms Jackson so that she required the insertion of staples in her head (ts 190).
33.The complainant told Ms Jackson that the appellant had threatened to kill Ms Jackson if the complainant told her about the abuse (ts 190).
Ground 5
It is convenient to begin with ground 5 and, for that purpose, it is necessary to consider the course of the trial.
Ms Jackson's evidence
After viewing the recordings of the complainant's evidence on the first day of the trial, on the second day the jury heard the mother's evidence. After some introductory questions by the prosecutor about how the mother had met the appellant there was the following:
Did you hear him abuse [the complainant] at any stage? --- Yes. Yes, I've heard him call him a little cunt and things like that, and telling him he was a bad child and telling the story about the boy who cried wolf (ts 158). (emphasis added)
A little later the prosecutor turned to what the mother had seen:
Now, so having seen [the appellant] come out was there another occasion that something happened that you're aware of---Yes, there was. I … was making breakfast. [The appellant] had gone upstairs. Now, in the past every time he went up there he was doing something like stealing from me or stuff like that so I thought I would creep upstairs and have a look. So I crept up the stairs, popped around the corner of my bedroom and [the appellant] pulled his hand out from between - from under the covers from between what I presume was my son's legs (ts 161) (emphasis added)
The mother then told how, after her son had gone to school that morning, she had confronted the appellant and threatened to go to the police. There was then the following exchange:
Well, what- what did he do? What was his reaction?---I told him he could not be around my son at all and - and from that particular day [the appellant] never saw my son again or was alone with him again or anything. If anything once the violent restraining order was served on [the appellant]---
Sorry, I missed that. There was a cough in the courtroom. Once the what, sorry?---Once I got - I went and did a violent restraining order to be served on [the appellant], even though that was served on him, he kept coming back to my place and trying to live in the garage. But [the complainant] didn't know any of this … I tell you, it was a horrific moment - time in our lives.
Now, just dealing with after you've mentioned, 'Are you a paedophile', he said he wasn't a paedophile, was there any other conversation about what you had witnessed that day?---Yeah, I told him I'd seen what I'd seen and he couldn't take it back and did he know that children commit - children don't have a good life when they go through things like this. I think I talked to him about what - you know, about that sort of stuff.
Right?---I have a [sic] older brother who committed suicide over that (ts 163). (emphasis added)
A little later there was this:
Now, having said to - in your conversation with [the appellant], that, 'Are you a paedophile', he denied it. You said you were going to report it to the police. Did you report it to the police?---Because [the appellant] was quite violent, it was - I did go and talk to the police but I didn't get as far as signing a statement because I was in fear of our lives (ts 164). (emphasis added)
After some further questions about the obtaining of the violence restraining order there was the following:
How had he taken, (1) the service, or (2) the breakdown of the relationship that you had with him?---The day - the day it was served, he had assaulted me and there was a witness who called the police. As soon as he - they - they served it and locked him up and when they released him, he came back and filled my car with rocks and sand.
All right. Okay?---And then kept coming back to slash my tyres, to take light bulbs out of the house, stuff like that.
Now, was there anything said by [the appellant] concerning your son after - or before or even after the service of the violence restraining order, anything concerning your son, your child?---Yes. [The appellant] had said to me once anybody could lock me out of my house, go upstairs and rape my child (ts 165). (emphasis added)
Defence counsel took no objection to that evidence. The appellant's counsel then cross-examined the mother. There were the following questions and answers:
Yes, but I'm just saying to you that's the first time that you reported it. You didn't make any complaint to the police prior to 22 April 2016?‑‑‑Not in relation to [the complainant] as [the appellant] was quite violent with me and I thought that would get me murdered.
Right. Okay, and nevertheless you accept that you never reported it to the police before 22 April?---No, well, I - I would say I did report it to the police in - in such a way that the violent restraining order was for [the complainant] and myself as [the complainant] was scared of [the appellant] as he had witnessed violence and ongoing abuse.
Well, did - is it the case that you told police on 22 April 16:
I didn't report it to the police because [the appellant] is violent towards me. I didn't know what he would do to us.
?---Well, yes, because of [the appellant's] prior actions---
Yes, so there's no - so you didn't report it to anyone, did you?---Well, I put in - steps in place for [the complainant] to have counselling and stuff like that to help him---
You didn't report it to anyone?---No, because [the appellant] was threatening to burn down my house and he was - put me in hospital.
Now, you - you reported several matters to the police during the course of your relationship with [the appellant], didn't you?---Yes, I did and I truly believed if I had mentioned that to the police at that time, they would have just released him and he would have come and got me, as we know in the past he has actually done that (ts 169 ‑ 170). (emphasis added)
A little later:
Now, you say that at one stage you felt suspicious when [the appellant] went upstairs in your house, is that correct?---Yes. As he would steal items from me constantly.
And you - you followed him up there?---Yes. I first caught him stealing my underwear.
And when - when you followed him up there, you say that you - you caught him with [the complainant], is that right?---Yes, I did catch him with - with his hand down my son's pants.
Now - so you say you followed him straight up there because you were suspicious?---Yes. Because he would steal from me.
Well - well, there was - there was a toilet upstairs, wasn't there? That was the only toilet upstairs?---Yes.
So if he - if anyone had to go to the toilet upstairs, they'd just go to the toilet upstairs, wouldn't they? Nothing suspicious about going upstairs, was there?---A lot of men go and pee in the garden, though, so - yeah. No, definitely, because it was [the appellant] and he was stealing from me, and from who he was, yeah, I would tend to wonder what he was doing up there. One of the first times I caught him stealing all my underwear, so I knew he was---
Now---?---that sort of person.
Now, of course, that was never - you never reported that to the police until---?---Is that a reportable offence?
Pardon?---Is that a reportable offence, that somebody's stealing your underwear?
Well, you would - you would report to the police frequently, wouldn't you? You would contact the police for all sorts of things?---The police told me to contact them every time I saw him, or - you know, he had assaulted me. He had threatened me (ts 174 - 175). (emphasis added)
There was then the following:
So - okay, now, you also said in your evidence that he said, that:
He'd come and rape my kid.
Is that right?---Sorry, could you ask that question properly?
In - in your evidence-in-chief did you say something about---?---Yes, [the appellant] told me---
---he threatened---?---Yes, [the appellant] told me:
Anybody could lock you out of your house, go upstairs and rape your child.
And---And he actually did do that, lock me out of my house and---
Hang on---?---go upstairs.
Just - so there's a threat to rape your child?---Yes. I had to kick the laundry door in.
Okay. And you put that in your statement of the - you told the police---?---Yes.
---also?---Yes, and also threats to burn down my house, yeah.
Hang on. Hang on. I think you said break into your house, 'and rape my kid'?---Yes, he did - he did tell me that. And he did actually lock me out, and I had to kick my laundry door in---
Now---?---to get to my child.
---this - this what you say is a threat to rape your child---?---Yes, definitely.
Yes?---Yeah.
Well, you didn't mention it before this report on 22 April 2016, did you? Didn't mention it to anyone?---No, I think I mentioned it to [Perth suburb] Police Station, but I didn't actually sign a statement, because I was in fear of my life. I knew they would question [the appellant] and release him, and he's come and murder me [sic], because---
You are now telling fibs, aren't you?---No, I'm not telling fibs.
You---?---What fibs?
---are - and you---?---Sorry, what fibs do you think I'm telling, Mr Gunner?
That this threat to rape your kid was said - was - you mentioned - you did not mention that before 27 April 2016?---I might have mentioned it at [Perth suburb] Police Station, but I didn't sign any statement since I was in fear of my life. But I did - I do believe it to be true, and I did hear it out of his mouth, that:
Anybody could lock you out of your house and rape your child.
Which is exactly what he did when he locked me out of my house and I had to kick my door in, and ended up with staples in the back of my head for my trouble.
All right---?---But I saved my son, and that to me was the most important thing here, to protect my child at all costs (ts 176 ‑ 177). (emphasis added)
The same topic continued:
All right. Okay ---?--- Also because he witnessed violence and stuff---
---just hear me out. I put to you that - which is a very serious accusation?---Yes, I know it is.
That is the threat to rape your child?---Yes, I know. It's shocking, isn't it?
And I put to you that the first time that you told the police was 22 April ’16? You didn't say that to anyone before then? That's what I'm putting to you. And this business about saying it to the police beforehand, is wrong?---I may possibly have said it to the police, but I didn't sign it in a statement. But no, he did tell me that. He did say that to me, and he did lock me out of my house and walk out and walk up my staircase, and the first thing I thought was, 'He's going up there to rape my child.' So I kicked in the laundry door.
You thought he was going up to rape [the complainant]?---Wouldn't you - wouldn't you, when someone tells you that, and then actually does that, like, shuts - locks you out of your home? (ts 178). (emphasis added)
The cross-examination continued in this way:
As a protective mother you continued the relationship. Sorry, what - what were you saying?---No, I didn't continue the relationship. I did the VRO but - but every time the - the police said if something goes wrong call us, we'll be there. They actually weren't there for me as you can tell by the amount of breaches he did do. I actually felt like we were - our lives were in danger. I did have a break and enter before Christmas and [the appellant] said 'See what happens when I'm not there to protect you'. You know, I was in a very hard situation, between a rock and a hard place I'd call it. And once he was incarcerated I felt like I was safe enough, because he was incarcerated, to go forward with my case.
You're - you're---?---Before that I didn't feel I had the support or the means to do the - to do it on my own.
You're – you're suggesting that - are - are you saying that [the appellant] did a break and enter?---Yes.
And---?---If you've read the---
Listen - well---?---Yeah.
---in - in relation to that---?---And his---
---paragraph it - you're not suggesting that he - you said:
The reason that the B&E happened is because I broke up with him.
?---And he told me 'See what happens when - when I'm not around to protect you'.
Now, you - you were taking drugs---?---I got broken into.
You were taking drugs?---I got broken - I got---
Weren't you?---broken into and all my stuff got smashed and the forensics said 'It looks like it’s someone who knows you' (ts 188 - 189). (emphasis added)
A little later there was this exchange:
And does that include telling him that he was molested by [the appellant]?---No, I never - no.
You told [the complainant]---?---No. Who would tell their child, 'You're being molested'?
Well, that's what you said?---That's not what I said. I asked [the complainant], 'Is [the appellant] touching you?' and he said, 'No'. He said - because later on I found out that he said - [the appellant] said to him, 'I will kill your mother if you tell her'.
Well, didn't you say after you saw the CCTV footage on TV and you recognised the male instantly to be [the appellant] - that's what you said in your statement, isn't it?---Yes, but I mean - I had caught [the appellant] with his hand down his pants prior to the fire, prior to being in the refuge. So---
And---?---So I knew (ts 189 - 190). (emphasis added)
Another allegation about the appellant emerged in re-examination in this way:
Okay?---[The appellant] would extort money off me and stuff like that. You've got to understand this man is not very nice.
Now, you mentioned staples in the back of your head on one occasion?---Yes.
Where did that come from? How did they come about?---When I had to kick the laundry door in that day that he went upstairs. And he was trying to leave my house with some of my possessions in - in a bag, like my phone and some Xbox controllers. So when I went out - chased him out the front and grabbed the bag. And the bag ripped open and I got my phone. Something in his bag swung around and cracked me in the back of the head twice.
Right?---And - yeah, so I had to go and get staples in my head (ts 193). (emphasis added)
The appellant's evidence
The appellant elected to give evidence. His evidence-in-chief was brief. He gave a short description of the history of his relationship with the complainant's mother and his relationship with the complainant. He described the deterioration of the relationship. He denied the instances of offending charged against him.
The prosecutor's cross-examination commenced this way:
Now, [the appellant], you're a sentenced prisoner, is that correct?---Yes.
And you're a sentenced prisoner for various offences, five offences, is that what you're serving---?---Yes.
Right. And they're the sentence for two counts of deprivation of liberty?---Yes.
Three counts of sexual penetration of a child under 13?---Yes.
So there was [sic] two children, one four, one five. You're a serving prisoner for that?---Yes.
So would it be right to say really, having heard the details of that, that you are a paedophile?---No (ts 222).
Defence counsel objected to that question, despite its having been answered. The jury retired while argument took place. After debate, the learned judge invited the prosecutor to approach the issue differently and he did so by putting to the appellant that he had a sexual interest in children. There was also objection to that approach but, after argument, the judge allowed the question to be put in that form and the cross-examination continued.
The prosecutor put the allegations that the mother had made about the appellant:
And you threatened him. You said, 'If you tell anyone I'll hurt you'?---Not at all.
Or indeed as [Ms Jackson] said yesterday, presumably she got it from [the complainant], that you'd kill his mother---?---No.
---if he told anyone?---No. I've – I've not got a violent past.
And that's because---?---I have got - I've - I've got no - no violence in my history at all.
Really? And that's why - and that's how you wanted to control [the complainant], didn't you?---Not at all.
Threatened to hurt his mother or hurt him or both?---No.
And that's the form of control you used so you could get access to him?---No.
[Ms Jackson] also confronted you when she caught you in his bed - or in the bed - their bed, didn't she?---No, not at all.
So that's just a lie? She's made up both of those occasions?---Yeah.
And everything she says is made up?---Yes, because she's never approached me about anything. As I said, the first time I heard about it was when DCP came to see me at Hakea Prison. And they - they told me what it was all about and I was in shock (ts 236). (emphasis added)
This proposition was put once again some time later:
You took risks and indeed then threatened the child?---No, I didn't.
Threatened him personally and threatened to injure his mother - or kill his mother?---No, I didn't.
All for control so that your dirty little secret stayed secret?---Not at all (ts 246). (emphasis added)
Other of the mother's allegations were also put:
Right. Did you throw a brick through her window?
GUNNING, MR: Granted an interim restraining order I think it was.
GLANCY DCJ: Yes. Thank you.
FITZPATRICK, MR: Sorry, an interim restraining order not to approach her, not to go to her house?---Yeah.
And you carried on going there, didn't you, to the house?---Not after the - after it was served on me, no.
Well, you did, didn't you? You threw a brick through the window?---No. That brick was thrown through the window way before that and it wasn't me. I repaired the window.
It wasn't you. Okay?---I repaired the window for her.
Did you fill her car full of sand and rocks?---No.
That wasn't you either?--- (No audible answer).
Did you hit her on the head with a bag or – and cause an injury to her which she needed staples in her scalp?---No.
You didn't do that either?---No.
So again when we heard from Ms Jackson about that she's making all that up as well?---About the bag and all that, yeah. I remember pushing her out of the way cos I had a friend waiting to - to give me a lift home. And she reckons that she got an injury from that by hitting her head on the car.
Well, she - she gave evidence about that yesterday, didn't she?---Yeah.
Yes. You've stolen items from her. Did you steal anything from her?---No.
Nothing at all?---Nothing.
So everything she said is just made up about the behaviour from you?---To - to defame me, yeah.
And the fact that she was petrified of you and she thought she'd get killed by you, and that's just all made up?---As I said, I've not got a violent history so I don't know - this is all fabricated.
It's all fabricated?---Yeah.
Right. So everything she said about the behaviour from you is fabricated. Everything that she said also about your behaviour towards her son is fabricated.
GUNNING, MR: Again it's wide ranging. It's two questions, it's wide ranging.
FITPATRICK, MR: So everything concerning your behaviour to [Ms Jackson], that's all made up?---Yeah. Yeah (ts 238 ‑ 239). (emphasis added)
Later, the prosecutor continued:
You also threatened to rape him, didn't you?---No.
And this was when things were going bad with the relationship with [Ms Jackson]?---No, not at all.
And again that was a – a means of control over [Ms Jackson], wasn't it?---Not at all.
To terrify her?---Not at all.
Which is what you did over a period of time?---No.
You terrified [the complainant] and you terrified her?---No, I didn't.
By your behaviour at the house - outside the house smashing things?---No, not at all.
You did none of that?---None of that.
Everything is made up?---She owed - she owed money to drug dealers and that so, you know, anything could have happened (ts 243). (emphasis added)
The prosecutor's closing address
The cross-examination finished soon afterwards and then the prosecutor addressed the jury. After some introductory submissions, he said this:
It was all suggested it's made up. Now, we heard about an abusive and toxic relationship between [Ms Jackson] and [the appellant]. Again, that included drug taking, and again you've heard it from [the appellant]. Whether that was abusive and toxic from him, apparently not. But again, it's a matter for you. There was violence. There were thefts. There were threats. One of which was to rape a child. Again, that's from [Ms Jackson], denied by [the appellant]. I suggest, members of the jury, just looking at that.
That sort of threat could only come from the mouth of a special kind of person, to think of raping a child. And I suggest [the appellant] is that sort of person. And you've heard the admissions. Really, that's the sort of person that he is. Not many people would ever think of saying that (closing addresses ts 4). (emphasis added)
The prosecutor then turned to the question of why the complainant and his mother had taken so long to complain about the offending. He emphasised the mother's evidence about the appellant's threat to kill the complainant. He said:
[Ms Jackson] told us yesterday that - and again, I'm quoting:
Because later on, I found out that he said - [the appellant] said to him -
- that being [the complainant]:
- 'I will kill your mother if you tell her.'
So again, this is what two different people have said. So [the complainant] has mentioned that he would get hurt. And then he's told his mother, apparently, that he would kill his mother. And again, thinking of that, put the responsibility on the child. It's control, isn't it? And of course, [Ms Jackson] was also controlled. Again, she's made that abundantly clear yesterday. So again, members of the jury, is that all made up? Completely made up by [the complainant] and indeed, made up by [Ms Jackson]? Or has she inflicted this or asked her son - told her son to say this? Again, members of the jury, it is entirely up to you, but I suggest there's nothing made up about that (closing addresses ts 5). (emphasis added)
The evidence about the threat to kill was raised again a little later in the address:
But she didn't go to the police at that stage. What she did do was, again you've heard an account of what went on. 3 February, she applied for and was granted a violence restraining order, an interim violence restraining order, served later on.
But again, according to her, that didn't stop [the appellant]. Of course he denied that, it didn't happen. You may ask, 'Why not report the matter to police?' So straight away, report the matter. And she didn't, as we know. [Ms Jackson] gave evidence about why. She gave us a list of assaults, injuries, events at the house, threats uttered against her and her son by [the appellant]. She also told us she was convinced that if she told the police about [the complainant], that the police would investigate it, he would be released, and then he would kill her. Now, you may think that that sounds extreme, and of course it is. The fact that someone would, in someone's view, kill someone (closing addresses ts 6). (emphasis added)
Afterward, the same evidence was raised for a third time in the address:
Also, just looking at [the complainant], he's never mentioned it to his mother. Never mentioned. It was an unburdening for [the complainant]. He's gone into more detail perhaps than he'd ever done before. Certainly to his mother. Because again, looking at it from his point of view, 'I will hurt your mother. I will kill your mother.' And again, it's an unburdening for [the complainant] because he knows he can. Because of the threats, he kept it all inside (closing addresses ts 8). (emphasis added)
Defence counsel's closing address
It might have been expected that the defence case would rely upon the mother's strong hostility towards the appellant as a motive for a theory that she had induced her son to concoct his allegations. But in his closing address, defence counsel did not do so. After some general remarks about the standard of proof and the burden of proof, counsel warned the jury against reasoning from bad character to a conclusion of guilt. There was, of course, admissible evidence as to the appellant's bad character by virtue of the evidence concerning his previous convictions that was adduced under s 31A of the Evidence Act. Defence counsel observed that there was no actual proof of the mother's allegations of misbehaviour by the appellant. He then submitted:
Did she have an axe to grind? Did [Ms Jackson] have an axe to grind in relation to [the appellant]? And the answer is, 'Yes, clearly.' She didn't like him. The relationship had broken down. She despised him. So how can you rely on accusations that arise in that manner (closing addresses ts 16).
Defence counsel invited the jury to disbelieve the mother's allegation that the appellant had threatened that he would rape her son. He submitted that that had been a recent invention. He then dealt at length with the complainant's evidence and pointed out inconsistencies and omissions that he invited the jury to conclude were significant in determining credibility.
Other references to the admissibility of Ms Jackson's evidence at trial
The appellant has submitted on appeal that the evidence referred to in par 13 was both irrelevant and prejudicial. He submits that it was inadmissible and that its admission led to a miscarriage of justice.
Because there was no objection to the admission of that evidence, there was no specific occasion for the prosecutor to identify any issue in the case to which the evidence was directed. However, during a discussion in the absence of the jury as to evidence about a certain fire, the prosecutor said this to the judge:
FITZPATRICK, MR: There's obviously background information which they can take into account, of course.
GLANCY DCJ: Yes.
FITZPATRICK, MR: And she obviously gave evidence again about assaults and the like.
GLANCY DCJ: Yes.
FITZPATRICK, MR: That's background evidence to---
GLANCY DCJ: Yes, all right.
FITZPATRICK, MR: ---the factual matrix really.
GLANCY DCJ: So nothing other than that (ts 206).
The basis for the admissibility of the evidence was never mentioned by anyone again.
The trial judge's directions
The summing up then contained only a single reference to this evidence:
The first direction concerns the evidence of [the complainant’s] mother, [Ms Jackson]. She gave evidence that [the appellant] had told her that he would lock her outside and go - that anyone could lock her outside, go upstairs and rape her son. And she gave evidence in re-examination that she regarded that as a threat.
In cross-examining [Ms Jackson], Mr Gunning put it to her that she was making that up because when she applied for an interim restraining order she had been asked by the magistrate to tell him what [the appellant] had threatened to do to her son, if anything, and she had told him 'well, nothing in particular, he just warned me.' And there are some things that I must direct you about that.
Firstly, it is a matter for you to find whether [Ms Jackson] made a statement that was inconsistent with the evidence that she gave in the trial. In this case that statement would be inconsistent because it was different from and inconsistent with the evidence that she gave now.
Second, if you do find that she made such an inconsistent statement then it is a matter for you to take into account in considering her credibility as a witness at this trial. Whether or not it does affect the witness's credibility in your minds is a matter entirely for you.
In both cross-examination and re-examination [Ms Jackson] gave an explanation to you for why she did not tell the magistrate of the threat, and you may well be satisfied with that explanation. This is entirely a matter for you, the jury (ts 280 - 281).
Apart from that single direction, the learned trial judge gave the jury no other directions about any of those matters.
Legal principles and consideration of ground 5
Because no objection was taken to any of the evidence there was no 'wrong decision on a question of law by the judge' within the meaning of s 30(3)(b) of the Criminal Appeals Act2004 (WA). It follows that it is necessary for the appellant to establish that the evidence was not only inadmissible but also that its admission has resulted in a miscarriage of justice under s 30(3)(c) of the Criminal Appeals Act.
Although at the trial the prosecutor had told the judge that the evidence was relevant to 'background' and to establishing a 'factual matrix', the State changed its approach on appeal. In this court, the respondent did not submit that the evidence was relevant to the prosecution case at all but submitted instead that it was relevant to the defence case. The evidence about the restraining order was said to be relevant to enable the defence to show that, while the mother was 'not shy in complaining' when her interests required it, she did not complain about these offences for an inexplicably long time (appeal ts 85). The respondent submitted that the defence case was that the mother had an axe to grind and that forensically the best way to demonstrate that fact, given the character of the witness, was simply to let her go on to give the evidence in the way she did. Thereby, it was said, her obvious resentment would be demonstrated. Counsel for the respondent submitted that the court should be cautious in upholding this ground because appellants should not be allowed to run a particular strategy at trial and, when that strategy fails, adopt a contrary and inconsistent strategy on appeal (appeal ts 86 - 87). In short, it was submitted that the failure to take objection was the result of a deliberate forensic decision.
It has been established that, in general, a defendant in a criminal trial is bound by the conduct of counsel.[12] For that reason, steps taken by counsel which can reasonably be explained on the basis that they were taken to obtain a forensic advantage for the client will rarely give rise to a miscarriage of justice even if, in hindsight, the steps can be seen to have been disadvantageous to the client. Indeed, having regard to the nature of a criminal trial and the trust that is rightly reposed in counsel’s judgment, the taking of such a step for forensic advantage is an example of fair process at work whatever might be the outcome. A decision which, objectively inferred, was taken for that reason, is not an example of a loss of a chance of acquittal; it is an example of an attempt to secure a particular chance of acquittal, albeit an unsuccessful one.
[12] TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 [74] (McHugh J).
That a particular step, on an objective appraisal, was taken to try to secure an advantage will always be relevant to the question whether there has been a miscarriage, however it will not always be the determinative fact. The relevant question that must ultimately be considered is whether the act or omission resulted in a miscarriage of justice and not whether it was referrable to a course taken by counsel or whether it was the result of counsel's incompetence.
The expression 'substantial miscarriage of justice' in s 30(4) of the Criminal Appeals Act is a composite phrase. The word 'miscarriage' signifies that there has been a departure from what is just. The word 'substantial' signifies the degree of departure. The two words taken together connote that there are requirements of justice that have been identified and which can be evaluated.
In some cases, in order to demonstrate that there has been a miscarriage of justice, an appellant must demonstrate that there has been a loss of a real chance of acquittal. That is not a universal requirement and it is not the universal test. A loss of a real chance of acquittal is an indicium the existence of which, in some cases, may demonstrate that there has been a substantial miscarriage. However, in some cases, such as cases of denial of procedural fairness, the outcome of the trial may be immaterial. That is because an accused is entitled to a fair trial conducted in accordance with the law.[13] A conviction after an unfair trial is a substantial miscarriage of justice.
[13] TKWJ [73] (McHugh J).
A trial judge has a duty to ensure that the trial is fair. This duty persists despite any forensic decisions by counsel. In Pemble v The Queen[14] Barwick CJ said that, whatever course counsel might decide to take, no doubt bona fide but for tactical reasons in the best interests of the barrister’s client, the trial judge must be astute to secure for the accused a fair trial according to law. A trial judge's duty to ensure a fair trial may extend to a refusal to admit evidence that has been tendered without the opposing party raising any objection.
[14] Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107, 117.
However, there are constraints upon the capacity of a judge to intervene. Whatever might be the scope of a trial judge's duty to exclude evidence in criminal trials in which the accused is unrepresented,[15] the position in cases in which an accused is represented by counsel is different. A criminal trial is a proceeding in which the State, on the one hand, and the accused, on the other hand, are free to choose the issues and, subject to duties owed by the prosecutor, to choose the evidence to be adduced. With limited statutory exceptions, an accused is free not to reveal the real defence until late in the proceedings. It is common, on an objective appraisal, for the defence not to object to prosecution evidence that, on its face, appears to be objectionable because the evidence, although strictly inadmissible and apparently prejudicial, serves the defence in some way that will be revealed in due course. Nobody knows the content of defence counsel's brief except those who appear for the accused. It may be that only defence counsel alone knows the forensic tactics that are being pursued. Consent by counsel to a course of conduct at a trial is usually an important indication that counsel’s client is suffering no miscarriage of justice by the chosen course.[16]
[15] See, eg, MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512.
[16] Gately v The Queen [2007] HCA 55; (2007) 232 CLR 208, 232 - 234 (Hayne J).
For these reasons a trial judge is in a weak position from which to make judgments about questions of fairness linked with admissibility.[17] Not knowing the content of the defence brief and not being privy to decisions that have been made by defence counsel concerning how best the trial should be conducted, a judge who intervenes prematurely in such circumstances may run the risk of actually prejudicing an accused's chances of acquittal. For this reason it is a rare case, where the accused is represented, that a trial judge will feel justified in intervening to reject evidence when no objection has been taken to its reception.[18]
[17] Suresh v The Queen [1998] HCA 23; (1998) 72 ALJR 769, [54] (Kirby J).
[18] R v Visser [1983] 3 NSWLR 240, 242 (Hunt J; Street CJ and Mahoney JA agreeing).
Cases arise when, on appeal, it emerges that a course has been taken at the trial without objection which has resulted in a miscarriage of justice. This does not necessarily mean that the trial judge in such cases has failed to perform a judge's duty to ensure a fair trial. In many cases the significance of the tender of the evidence appears only in hindsight on appeal. R v Lewis[19] was such a case. Lewis was a case in which the appellant had been charged and convicted of several sexual offences against children. Evidence was led without objection about assaults committed by the appellant's mother against the complainants. This placed the appellant in a position in which, as a practical forensic matter and, perhaps, as a matter of family loyalty, he was compelled to defend his mother's conduct and, thereby, to associate himself with it. The prosecution also led inadmissible evidence about acts of intimidation by the appellant and by his mother against one of the complainants. There was also evidence about the reluctance of the complainant to give evidence in the face of this intimidation. A great deal of other inadmissible evidence of a similar irrelevant, but prejudicial, kind was led. Santow JA concluded that the trial had been so unfair as not to be a trial at all.[20] Sully and Buddin JJ agreed with Santow JA.
[19] R v Lewis [2003] NSWCCA 180; see also R v Birks (1990) 19 NSWLR 677.
[20] Lewis [18].
Buddin J made two observations that are relevant to the present case. After acknowledging the limitations upon a trial judge's freedom to question the admission of evidence to which no objection has been made, his Honour said:[21]
Nevertheless, where evidence which is clearly prejudicial to the accused is being led, there comes a point in time at which [the trial judge] must make due enquiry in order to ascertain the basis upon which the material is said to be admissible. A trial judge is not absolved from responsibility in that regard by simply relying upon the way in which the parties are conducting the matter. It is impossible of course to lay down rules of universal application which will enable a decision to be made as to when it is appropriate to intervene in a particular case. Nevertheless the material introduced in this case, and its sheer volume, was of such an extraordinary and unfairly prejudicial kind that it plainly called for some form of appropriate intervention at an early point in the proceedings.
[21] Lewis [68].
His Honour also referred to the duty of prosecuting counsel in such circumstances. He said:[22]
It is axiomatic that the Crown should only call evidence that is relevant and admissible in support of the charges which it brings. Generally speaking it cannot, simply because no objection is raised on behalf of the accused, tender evidence that does not meet the relevant tests for admissibility. That is particularly so when the material sought to be tendered is of the nature which was led in the present case. On occasions, a Crown Prosecutor may be confronted with a situation in which an accused person wants material introduced which is either plainly inadmissible or, is reasonably believed to be so, by the Crown Prosecutor. In those circumstances the prudent course will often be for the Crown Prosecutor to draw the material in question to the attention of the trial judge. Such an approach will provide the trial judge with advance warning of the difficulties which may lie ahead. A trial judge can then make some assessment of the situation in order to ensure that only properly admissible material finds its way into evidence. Nothing of that kind occurred in the present case.
[22] Lewis [66].
Both sets of observations by Buddin J are relevant to this appeal.
In this case the credit of Ms Jackson may have been affected by her initial failure to make a report to police about what she claimed she had seen the appellant do to her son in the double bed. Her failure to complain might have been explained by fear of what the appellant might do to her if he learned that she had reported his offending to police. This would explain why some evidence about the factual grounds for her apprehension might have been relevant. However, until her credit had been attacked upon that factual basis, it was not open for the State to lead evidence to bolster her credit.[23]
[23] Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1 [49] (McHugh J).
In general, a party cannot lead evidence-in-chief in order to raise the credibility of a witness. Nevertheless, for practical reasons, such evidence is frequently led without objection and by agreement between the parties in anticipation of a line of attack by the defence. Where there is no such agreement, whether tacit or express, such evidence should not be led by the prosecution until after the issue to which it is relevant has surfaced. Once the issue has actually arisen, the prosecution will be free to lead the evidence, perhaps in re-examination of the witness whose cross-examination has raised that issue. If such evidence then begins to approach an extent that might be prejudicial beyond its probative value, objection can be taken and the judge can make a ruling, being in a position then to do so.
Although the accused does not, of course, bear an onus in relation to motive, a perennial practical problem faced by defence counsel in cases like the present is to explain the possible motivation for a complainant to fabricate allegations of sexual abuse. In this case, Ms Jackson might have given the impression, in the witness box, that she was a vengeful person whose evidence against a man she had come to hate was partisan, and therefore possibly suspect and unreliable. For this reason, counsel for the respondent argued that the failure of defence counsel to object to her inadmissible prejudicial evidence might have been the result of a rational tactical decision.
However, as the passages from the evidence that have been set out earlier in these reasons demonstrate, Ms Jackson said things that were well beyond anything that might reasonably have been required to serve that possible forensic purpose. The gross weight of the prejudice occasioned by all of the inadmissible evidence went well beyond what could reasonably have been allowed without risk of significant unfairness. It cannot be inferred, on an objective appraisal of the trial record, that defence counsel's failure to object is reasonably to be explained on the basis that defence counsel was pursuing a forensic advantage for the appellant. The more likely inference is that the absence of objection was attributable to defence counsel's failure to exercise the requisite skill and diligence in the conduct of the defence in relation to important evidentiary issues.
The prosecutor raised these matters again when he cross-examined the appellant about:
(a)whether he had thrown a brick through Ms Jackson's window;
(b)the restraining order;
(c)whether he had filled her car with rocks and sand;
(d)whether he had injured her so that she required staples to be inserted into her head;
(e)whether he stole from Ms Jackson;
(f)whether he threatened to rape the complainant; and
(g)whether he had told the complainant that he would kill or hurt his mother.
The prosecutor asked the appellant whether he was claiming that Ms Jackson had 'just made up about the behaviour from you' (ts 239). In various ways, he invited the appellant to say that a witness was a liar. Having regard to the other matters addressed in these reasons, it is unnecessary to consider in detail this question and the others like it. It has long been established that such questions are improper.[24] The questioning about the threat to the boy that the appellant would hurt his mother was unsupported by any instructions. It was based upon inadmissible hearsay evidence which was wrongly admitted and the questions based upon it were improper.[25]
[24] R v Leak (1969) SASR 172, 173 ‑ 174; R v Foley (2000) 1 Qd R 290, 297; Palmer [61].
[25] Clyne v NSW Bar Association[1960] HCA 40; (1960) 104 CLR 186, 198 - 201.
In his address to the jury, the prosecutor then capitalised on this material. He reminded the jury that 'there were thefts … threats … one of which was to rape a child' (closing addresses ts 4). He told the jury that the appellant was 'a special kind of person, to think of raping a child'. He told the jury that 'that's the sort of person he is' (closing addresses ts 5).
The leading of this irrelevant evidence through Ms Jackson, the cross‑examination of the appellant and the subsequent use of this evidence in the prosecutor’s address to the jury raise a number of important considerations.
Evidence of uncharged discreditable acts is frequently led in trials of sexual offences. Such evidence may be led for a number of purposes, including:
(a)to place the offending into its true context and thereby to remove the potential implausibility of an allegation of an isolated incident;
(b)to prove that the accused had a sexual attraction for the complainant, or people like the complainant, so as to show a motive to commit the offence;
(c)to demonstrate that the accused was a person who was prepared to act on his urges to commit the charged offence because he had actually committed similar offences against the complainant or others previously; and
(d)to explain any delay or failure to complain.
At common law (in particular, leaving to one side evidence to which s 31A of the Evidence Act applies), when evidence is tendered for proper purposes like these, its probative value must be measured against its possible prejudicial effect.[26] The 'prejudicial effect' of such evidence is the potential for the jury to use the evidence in a way in which the law does not permit and the ensuing risk that the jury's verdict may be affected.[27] The evidence in this case was prejudicial in that sense because there was a very high risk that the jury might actually become prejudiced against the accused because of the content of that evidence.
[26] Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461.
[27] Pfennig 528 (McHugh J).
The use of the evidence to cross-examine the appellant was significant. He was thereby placed in the invidious and unjust position of having to defend himself against uncharged acts that were, at law, irrelevant to the charges which he was facing. He had thereby to contest false collateral issues. If the jury considered that he had failed to confront these collateral allegations they might well have taken that failure into account in deciding his guilt.
The risk of misuse of the evidence was encouraged. The prosecutor's submissions to the jury about the inadmissible evidence constituted an undisguised ad hominem argument. The submission based upon the appellant's alleged threat to rape the complainant was nothing more than an invitation to the jury to consider whether they should find the appellant guilty because the appellant was 'a special kind of person, to think of raping a child'. The prosecutor also based a submission about the appellant's guilt upon the appellant’s threat to kill the complainant's mother if he told anyone about the offences. The only evidence of this threat was inadmissible hearsay evidence volunteered by the mother. She did not say who had told her. Yet, the prosecutor used that assertion as a fact upon which to cross-examine the appellant and, later in his submissions, as a fact upon which the jury could act. Contrary to the State's submission on this appeal, the evidence was actually relied upon by the prosecution to advance its case.
The uniquely important role of a prosecutor has been emphasised repeatedly by the highest authorities. In Whitehorn v The Queen[28] Deane J said:
Prosecuting counsel in a criminal trial represents the State. The accused, the court and the community are entitled to expect that, in performing his [or her] function of presenting the case against an accused, he [or she] will act with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused's trial is a fair one. The consequence of failing to observe the standards of fairness to be expected of the Crown may be insignificant in the context of an overall trial. Where that is so, departure from those standards, however regrettable, will not warrant the interference of an appellate court with a conviction. On occasion however, the consequences of such a failure may so affect or permeate a trial as to warrant the conclusion that the accused has actually been denied his fundamental right to a fair trial. As a general proposition, that will, of itself, mean that there has been a serious miscarriage of justice with the consequence that any conviction of the accused should be quashed and, where appropriate, a new trial ordered (Criminal Law Consolidation Act, s 353; Reg v Clewer ((1953) 37 Cr App R 37, at pp. 39 ‑ 40).
[28] Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657, 663 - 664; see also Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559.
The Supreme Court of Canada expressed the same view in Boucher v The Queen:[29]
The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.
[29] Boucher v The Queen [1955] SCR 16, 24 (Rand J).
In the United Kingdom, in Randall v The Queen,[30] Lord Bingham, speaking for the Privy Council, stressed that the rules about the standards of behaviour expected of counsel are not to be regarded as the rules of a game. They are rules designed to safeguard the fairness of a criminal trial and they serve to protect against unfairness and error.[31] In short, compliance with them is essential to the administration of criminal justice.
[30] Randall v The Queen [2002] 1 WLR 2237.
[31] Randall [11].
The fairness of the trial process is one of the features of a criminal trial that gives legitimacy to jury verdicts. The fairness of the process serves also to ensure that the resulting verdict is sound because it is based upon relevant and probative evidence, upon a correct understanding of the applicable law and upon sound reasoning. Judges and juries rely substantially upon counsel to achieve these standards of fairness.
In a criminal trial, a prosecutor, in particular, possesses real influence and real power. A prosecutor has a wide discretion about how to conduct a trial. The prosecutor decides which witnesses to call and which witnesses not to call. The prosecutor decides what evidence will be led in oral testimony. For the reasons that have already been discussed, a trial judge will rarely be able to inquire into the propriety of such decisions. The exercise of a prosecutor's discretion in these respects is not subject to judicial review in the way in which other exercises of discretion by public officers may be reviewed. For those reasons, a prosecutor has a heavy responsibility to ensure that the decisions that he or she makes do not, at least, result in an unfair trial.[32]
[32] Richardson v The Queen [1974] HCA 19; (1974) 131 CLR 116, 119 - 120 (Barwick CJ, McTiernan and Mason JJ).
In this case, having tendered evidence that was irrelevant, at law, to any issue that the jury had to decide and which was highly prejudicial, the prosecutor then invited the jury to use it to conclude that the appellant should be found guilty.
The prosecutor's conduct in these respects was not the subject of any objection by defence counsel. It should have been. Nor was it the subject of any intervention by the trial judge. It should have been. As Buddin J pointed out in Lewis, there may come a point in a trial at which a trial judge ought to make due inquiry in order to discover the basis upon which evidence is said to be relevant and admissible. The material in this trial was so highly prejudicial to the appellant and was so voluminous that it called for judicial intervention. Had the judge intervened, much of the evidence would have been excluded and so much of it that had been wrongly admitted by that point might have been dealt with by appropriate directions.
Because of these failures, there was a significant risk that the jury, rightly regarding the prosecutor as an important State official whose statements about the significance of evidence could be relied upon, accepted his improper submissions as bases upon which to reason to a conviction. That influence upon the jury was reinforced by the trial judge's failure to intervene, which was capable of being regarded as conferring upon the prosecutor's conduct the benefit of a sanction from the high authority constituted by the impartial judge. As in MAM v The State of Western Australia[33] in which Martin CJ had occasion to consider the duty of a prosecutor, the conduct of the prosecutor in this case also was apt to evoke feelings of prejudice, sympathy and emotion.[34] Not only do such motivations have no place in a criminal trial, it is a breach of the duty of a prosecutor to invoke them.
[33] MAM v The State of Western Australia [2018] WASCA 35.
[34] MAM [127].
Unfortunately, the problems did not end with the prosecutor's address. When evidence is led that is capable of being misused by a jury, it is the duty of the trial judge to instruct a jury how it should treat that evidence. In particular, the jury must be instructed about how not to use the evidence. The necessity for such a direction does not depend upon counsel asking for it. No such direction was given. Indeed, in a case like the present, by the time of the summing up there could have been no possible directions that were capable of restoring the fairness of a trial which, by then, had irretrievably miscarried.
In the extraordinary circumstances of this case, the failure to object to the inadmissible evidence, to the improper questions, to the content of the prosecutor's address or to seek directions, do not indicate that no miscarriage of justice occurred. The trial was unfair.
For these reasons, there has been a substantial miscarriage of justice and the appeal should be allowed. Nevertheless, because there should be a retrial, it is desirable to deal with the appellant’s other grounds of appeal.
Grounds 1, 2 and 3
The appellant accepts that the first three grounds can be considered together. The appellant submits that the prosecutor's question, '… you are a paedophile?', led to a miscarriage of justice in a variety of ways. The appellant submits in this appeal that the use of the term 'paedophile' was 'grossly unfair'. He submits that it is 'insufficient to define the mental state of the appellant from a single incident', namely the offences to which he had pleaded guilty.
The word 'paedophile', as it is used generally, refers to a person who is sexually attracted to children. It is a term that carries with it odium and repugnance in the community. As a medical expression, it seems to have given way to the technical term 'pedophilic disorder'.[35] If the purpose of the question was to extract an admission about a diagnosis, it was improper because the appellant was not capable of giving such evidence. If its purpose was, as it seems, to elicit an admission from the appellant that he was a person who was sexually attracted to children, it carried the risk that the question was an invitation to the appellant to stigmatise himself rather than to give evidence about relevant facts. In this case, there had been formal admissions about the sexual offences against children to which the appellant had pleaded guilty. The admissibility of that evidence had been the subject of a pre‑trial ruling and its admission was not in issue on this appeal. Therefore, the jury had before it evidence about the appellant's propensity to commit the kind of offences with which he had been charged.
[35] DSM-5, Section 2, Paraphilic Disorders.
At the trial objection was taken to the question on the ground that the word 'paedophile' was emotive. After hearing argument, in the absence of the jury, the learned trial judge rightly upheld the objection and invited the prosecutor to reframe his question and he did so. He asked the appellant whether, in April 2016, he 'had an interest in children' (ts 232). The appellant denied that he had such an interest and the prosecutor then put to him his convictions and repeated his question.
Later, in the course of her summing up, the learned trial judge told the jury that the word 'paedophile' was inflammatory and that they should not be distracted by its use during the trial but that they should instead concentrate on the issue whether the appellant was a person who was sexually attracted to children (ts 296 - 297).
In all of these circumstances, any risk of prejudice by reason of the jury having heard the question was remote. For these reasons, although the prosecutor's question was rightly ruled to be an improper one, on its own it did not lead to any unfairness affecting the trial. Grounds 1, 2 and 3 were, as the appellant accepted, all directed to this issue. They should be rejected.
The appellant also contends that he was denied a fair trial because that question, when considered together with certain other circumstances, rendered the trial unfair. Those circumstances were these:
(a)Ms Jackson's evidence about her own question to the appellant, whether he was a paedophile, had been reported in a newspaper on the second day of the trial;
(b)the trial judge had instructed the jury that Ms Jackson had said that she had seen the appellant's hand touching the complainant's genitals;
(c)the trial judge invited the jury to speculate about that evidence; and
(d)the trial judge described Ms Jackson's evidence about what the complainant told her as evidence of recent complaint.
The fact that a newspaper printed an accurate report of evidence at the trial is of no significance and can be ignored.
The appellant's complaints about the evidence concerning Ms Jackson's own question to the appellant should be rejected. According to her account, earlier that morning she had seen the appellant seemingly sexually molesting her son. The evidence was about her first interaction with, and challenge to, the appellant after the incident. Had she not given this evidence the jury would have been presented with the false impression that Ms Jackson had done nothing at all despite believing that she had just seen the appellant sexually molesting her son. It is true that the language she used was emotive and confrontational. But the circumstances were emotional and confronting.
There is no substance in the appellant's submission about this issue.
The appellant contends that the learned trial judge inaccurately described certain evidence in her summing up. Ms Jackson had said in her evidence that she had seen that the appellant had his hand beneath the bedclothes and that his hand was 'between my son's legs' (ts 162). In her summing up, the learned trial judge referred to that evidence as evidence that the complainant's mother 'saw [the appellant] with his hands between her son's legs touching his genitals' (ts 283). It is true that Ms Jackson did not say expressly that she saw the appellant touching the complainant's genitals. However, if the jury accepted the truth of what she claimed to have seen, the appellant could hardly have been doing anything other than touching the boy's genitals. The matter was strictly one for the jury to consider as a matter of inference to be drawn from its acceptance of the appellant's placement of his hand. There was no case before them and which they had to consider that there might have been some innocent touching. In those circumstances the learned judge's description was incapable of misleading the jury about what it was they had to decide.[36]
[36] cf Simic v The Queen[1980] HCA 25; (1980) 144 CLR 319, 330 - 331.
Ground 4
As to the submission about recent complaint, after the judge had finished summing up, defence counsel sought a redirection on the ground that there was no evidence that the complainant himself had made any recent complaint to anybody about the offending that constituted counts 1, 2 and 3 on the indictment (ts 208 - 209, 250 - 251). He submitted that the only evidence of that kind had come from the complainant's mother and that, before they could take into account recent complaints, they would have to accept her evidence as credible (ts 290). The learned trial judge acceded to that application and instructed the jury in those terms (ts 294 - 295). The mother's evidence was admissible because it was capable of constituting recent complaint. The mother's questioning was not, in substance, inducing or leading (see DS v The State of Western Australia[37] and SPW v The State of Western Australia[38]). Of course the weight of that evidence, about a complaint elicited by the mother of the complainant, was another matter. There is no substance to this ground. This ground should be rejected.
[37] DS v The State of Western Australia [2008] WASCA 182 [15], [28] - [29].
[38] SPW v The State of Western Australia [2012] WASCA 41 [58] - [61].
Orders
The orders we would make are as follows:
1.Leave to appeal on ground 5 is granted.
2.Leave to appeal on grounds 1, 2, 3 and 4 is refused.
3.Appeal allowed.
4.The convictions are set aside.
5.The appellant is to be retried.
BEECH JA:
I have had the advantage of reading, in draft, the reasons of Buss P and Sofronoff AJA. I agree with their Honours, for the reasons that they give, that grounds 1 ‑ 4 fail. I also agree that ground 5, and thus the appeal, must be upheld. My reasons for upholding ground 5 are as follows.
The background, including the course of the trial, the grounds of appeal, and the parties' submissions, are outlined in the joint reasons in terms I gratefully adopt.
In summary, for the reasons that follow:
(1)I am not persuaded that the admission of the evidence the subject of ground 5 occasioned a miscarriage of justice;
(2)however, I am satisfied that the trial judge's failure to direct the jury as to the uses to which they could, and could not, put the evidence gave rise to a miscarriage of justice.
At trial, no objection was taken to any of the evidence which is the subject of this ground. Consequently, there was no wrong decision on a question of law by the trial judge; the appeal can only be allowed on the ground that there was a miscarriage of justice.[39] Ordinarily at least, there is no miscarriage of justice if the failure to object to inadmissible evidence can objectively be said to have been justified by rational forensic reasons.[40]
[39] R v Soma [2003] HCA 13; (2003) 212 CLR 299 [11], [79]; Birks v The State of Western Australia [No 2] [2007] WASCA 29; (2007) 33 WAR 291 [44] ‑ [46]; LBC v The State of Western Australia [2011] WASCA 201 [10] ‑ [11], [39].
[40] Suresh v The Queen [1998] HCA 23; (1998) 72 ALJR 769 [23]; Oblak v The State of Western Australia [2007] WASCA 176 [6] ‑ [9]; LBC [10] ‑ [11], [39]; Zanon v The State of Western Australia [2016] WASCA 91; (2016) 50 WAR 1 [25].
The defence case at trial was that the complainant's evidence concerning the alleged offending was false and that the complainant had been induced to make false allegations by his mother, who had been in a toxic relationship with the appellant and who had a grudge against him.
As detailed in the joint reasons, defence counsel at trial did not object to various inadmissible evidence given in the course of the complainant's mother's evidence‑in‑chief. Counsel also led a substantial amount of the inadmissible evidence in his cross‑examination of the complainant's mother, and did not object to the substantial number of non‑responsive answers she gave. Counsel's actual (subjective) reasons for not objecting to the inadmissible evidence are not to the point. What matters is whether the failure to object is capable of being objectively justified by a rational forensic decision.[41]
[41] See, for example, TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 [13] ‑ [17], [27], [107] ‑ [108]; Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 [9]; SPW v The State of Western Australia [2012] WASCA 41 [73].
In my view, counsel's failure to object, and his leading of substantial portions of the impugned evidence in his cross‑examination of the complainant's mother, can be seen to have been done in pursuit of a legitimate forensic strategy. That strategy was to paint the complainant's mother as a partisan witness who was going out of her way to besmirch the character of the appellant to assist in securing a conviction and who, consequently, would be likely to have encouraged and induced the complainant to make allegations against the appellant.
For the reasons explained in the joint reasons at [52] ‑ [53], in the absence of objection by defence counsel, a trial judge will be slow to intervene on the grounds that inadmissible evidence is being adduced. Nevertheless, circumstances may arise in which it is prudent for the trial judge to make enquiry, in the absence of the jury, as to the purpose for which apparently inadmissible evidence is being adduced.
In my respectful view, this was such a case. To my mind, it would have been prudent, and conducive to ensuring a fair trial, for the judge to have made some enquiry as to the purpose(s) of the leading of the inadmissible evidence raised in ground 5. However, in my view, the failure to do so did not, in itself, occasion any miscarriage of justice. Rather, what gave rise to a miscarriage of justice in this case was, in my respectful opinion, the absence of a direction, from the trial judge, as to the use(s) to which the impugned evidence could and could not be put.
In the course of his closing address to the jury, referring to the mother's evidence that the appellant had threatened to rape the complainant, the prosecutor said:[42]
That sort of threat could only come from the mouth of a special kind of person, to think of raping a child. And I suggest [the appellant] is that sort of person. And you've heard the admissions. Really, that's the sort of person that he is.
[42] Transcript of closing, page 5.
In my view, these submissions invited the jury to engage in propensity reasoning. In other words, by these submissions, the prosecutor invited the jury to reason that the appellant, as a person who had threatened to rape the complainant, was the sort of person who was more likely to have committed the offences with which he was charged. At the least, there was a real risk that the jury would have taken these submissions in that manner. On appeal, the respondent accepted that this passage invited propensity reasoning.[43]
[43] Appeal ts 92.
In directing the jury, the judge must give the jury such warnings as may be called for by the circumstances of the particular case, including warnings against following impermissible paths of reasoning.[44] The judge must give a warning to the jury whenever a warning is necessary in order to avoid a perceptible risk of a miscarriage of justice arising from the circumstances of the case.[45] Generally speaking, where evidence is admissible for one purpose but inadmissible for another, the trial judge should direct the jury that they must not use the evidence for the purpose for which it is inadmissible, at least where the use of the evidence for the impermissible or irrelevant purpose would be adverse to the accused.[46] Where evidence is relevant and admissible for other reasons, but incidentally discloses the accused's propensity, a warning to the jury not to engage in propensity reasoning is ordinarily required.[47] That will be all the more so if, as occurred here, evidence that was admissible for other purposes is used by the prosecution to invite propensity reasoning in circumstances where the evidence could not properly be used for such a purpose.
[44] Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50 [49].
[45] Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314, 330; Longman v The Queen [1989] HCA 60 (1989) 168 CLR 79, 86; The Queen v GW [2016] HCA 6; (2016) 258 CLR 108 [50]; Banksv The State of Western Australia [2018] WASCA 130 [42].
[46] Noto v The State of Western Australia [2006] WASCA 278; (2006) 168 A Crim R 457 [22] citing BRS v The Queen [1997] HCA 47; (1997) 191 CLR 275, 305; Banks [42].
[47] Noto [22] citing KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221, 235.
Whether the judge's failure to give a propensity warning occasioned a miscarriage of justice is to be assessed taking into account the summing up as a whole and the conduct of the parties.[48] In this regard, the failure of the appellant to have complained of an inadequacy in the judge's directions is relevant. While that is not fatal to an appeal, it may indicate that, in the context of the atmosphere of the trial, it did not seem to those present that there was any reasonable ground for concern regarding the adequacy and fairness of the summing up.[49]
[48] Castle v The Queen [2016] HCA 46; (2016) 259 CLR 449 [63]; Banks [43].
[49] Mahmood v The State of Western Australia [2009] WASCA 220 [65]; Sayed v The Queen [2012] WASCA 17 [76]; Banks [43].
In my view, in all the circumstances, and particularly bearing in mind the prosecutor's submission set out at [101] above, there was a perceptible risk that the jury would engage in propensity reasoning in relation to some of the evidence impugned by ground 5. It is not in doubt that any such propensity reasoning was impermissible.
Consequently, in my respectful opinion, in order to ensure a fair trial, the trial judge was required to give a direction to the jury informing them that they must not engage in propensity reasoning in relation to the evidence in question. Notwithstanding the absence of a request for a direction of that kind, the failure to give such a direction gave rise to a miscarriage of justice.
As already noted, at trial, counsel for the appellant did not seek any direction as to the manner in which this evidence could not be used. The respondent submits that there is a rational forensic explanation for this failure to seek a direction.[50] The respondent submits that the failure to seek a direction may have arisen from a concern that any direction limiting the use of the evidence would undercut the reliance, by the defence case, on the evidence as casting doubt on the accuracy and reliability of the evidence of both the complainant's mother and the complainant. I do not accept this submission. The judge's direction would appropriately have identified the permissible uses of the impugned evidence. This would include the use invited by the defence. What was critical, but not done, was to identify the use to which the jury must not put the evidence. Doing so could not be thought to undermine the defence case.
[50] Respondent's submissions on ground 5 [16]; appeal ts 86 - 87, 88 - 89.
For these reasons, the judge's failure to give a direction precluding the jury from engaging in propensity reasoning in relation to this evidence gave rise to a miscarriage of justice.
Further, as detailed in the joint reasons, in both cross‑examination and in closing submissions, the prosecutor sought to make impermissible hearsay use of evidence given by the complainant's mother. In the course of cross‑examination, the complainant's mother said, in effect, that she had been told by the complainant that the appellant had told him that he would kill his mother if the complainant told her what the appellant had done.[51] In the course of cross‑examination of the appellant, the prosecutor twice put to him that he had threatened the complainant in this fashion.[52] This cross‑examination involved making impermissible hearsay use of the evidence given by the mother.
[51] ts 190.
[52] ts 236, 246.
In his closing address to the jury, the prosecutor, in effect, invited the jury to find, by reference to the mother's evidence, that the appellant had threatened the complainant by saying that he would kill the complainant's mother if he told her of what the appellant had done.[53] Again, this involved an impermissible hearsay use of the mother's evidence. On appeal, the respondent properly accepted that this was so.[54]
[53] Transcript of closing, page 5.
[54] Appeal ts 91.
In my respectful view, in these circumstances the judge was required to direct the jury that they could not use this aspect of the mother's evidence in the impermissible hearsay fashion that had been invited by the prosecutor.
For these reasons, in my opinion, the absence of any direction from the trial judge as to the uses to which the evidence impugned by ground 5 could and could not be put gave rise to a miscarriage of justice.
For these reasons, I would make orders to the effect outlined in the joint reasons.
Finally, I agree with Buss P and Sofronoff AJA, at [63], that the prosecutor's many questions in cross‑examination to the effect, 'So you say both the complainant and his mother are making it all up'[55] were inappropriate and improper. I also agree that, as the trial judge in effect ruled, the prosecutor's question in cross‑examination, 'So it would be right to say … that you are a paedophile'[56] was improper. However, as explained in the joint reasons, the judge's directions were sufficient to ensure that no miscarriage of justice thereby arose.
[55] ts 236, 239 - 240, 243, 245.
[56] ts 222.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
FN
Research Associate to the Honourable Justice Buss15 NOVEMBER 2019
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