Loh v The State of Western Australia [No 2]
[2024] WASCA 166
•30 DECEMBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: LOH -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2024] WASCA 166
CORAM: BUSS P
HALL JA
TOTTLE J
HEARD: 20 JUNE 2024 & 6 SEPTEMBER 2024
DELIVERED : 30 DECEMBER 2024
FILE NO/S: CACR 83 of 2023
BETWEEN: RAINIE T LOH
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: LEMONIS DCJ
File Number : IND 1994 of 2021
Catchwords:
Criminal law - Appeal against conviction - Whether evidence wrongly admitted - Whether verdicts unreasonable or unsupported by the evidence - Whether trial judge erred in not directing jury on insanity as a possible defence - Where no issue of unsoundness of mind raised at trial - Whether conduct of trial counsel occasioned miscarriage of justice - Whether appellant's decision not to give evidence was result of threats or pressure - Where appellant signed document electing not to give evidence - Where other decisions regarding conduct of trial capable of explanation on an objective basis
Legislation:
Criminal Code (WA), s 27, s 326, s 333
Result:
Applications to adduce additional evidence refused
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | B Murray |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Craig v The Queen [2018] HCA 13; (2018) 264 CLR 202
Huggins v The State of Western Australia [2018] WASCA 61
Morgan v The State of Western Australia [No 2] [2019] WASCA 185
Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123
R v Birks (1990) 48 A Crim R 385; 19 NSWLR 677
Sandy v The State of Western Australia [2024] WASCA 109
JUDGMENT OF THE COURT:
The appellant was convicted after trial of one count of deprivation of liberty, contrary to s 333 of the Criminal Code (WA) (Code), and one count of aggravated sexual penetration without consent, contrary to s 326 of the Code. The circumstance of aggravation for the second count was that the appellant pretended to be armed with a dangerous weapon, namely a replica firearm.
The appellant was acquitted of a further charge of aggravated sexual penetration on the basis that he had no case to answer. The jury also acquitted the appellant of a charge of attempting to steal a motor vehicle.
The appellant was sentenced to a total effective sentence of 7 years 3 months' imprisonment. He seeks leave to appeal against his conviction.
The appellant is self‑represented and his grounds of appeal are not in conventional form. The first ground alleges that evidence was wrongly admitted. The second ground alleges that the verdicts of the jury were unreasonable and cannot be supported by the evidence. The third ground alleges that the trial judge erred by not leaving open the defence of insanity under s 27 of the Code. The fourth ground alleges that a miscarriage of justice was occasioned by the conduct of the appellant's trial counsel. The fifth ground alleges that a miscarriage of justice was occasioned by the admission of evidence that the appellant offered the complainant methylamphetamine. Some of the grounds contain numerous particulars, which will be referred to in more detail later in these reasons.
At the initial hearing of the appeal on 20 June 2024, the appellant applied for leave to adduce additional evidence and sought to rely on an affidavit sworn by himself in support of ground 4. It was necessary to adjourn further hearing of that ground to allow the respondent the opportunity to file responsive affidavits. The respondent applied for leave to adduce additional evidence from the lawyers who acted for the appellant at his trial, Mr Seamus Rafferty SC and Ms Roisin Keating. Affidavits from Mr Rafferty and Ms Keating were also filed. At the resumed appeal hearing on 6 September 2024 the appellant, Ms Keating and Mr Rafferty gave oral evidence and were cross‑examined. All of the additional evidence was received on a provisional basis.
For the following reasons, the applications for leave to adduce additional evidence should be refused. Leave to appeal should be refused in respect of all grounds and the appeal dismissed.
Prosecution case
The prosecution case was that some weeks prior to June 2021 the complainant, a young woman who will be referred to as AB, met the appellant for the first time. AB was aged 17 years at the time.[1]
[1] ts 193.
The circumstances of the first meeting were that AB's father was at the Kelmscott train station waiting in his car for AB when the appellant approached him and asked for a lift. AB's father agreed and when AB arrived, they all got into the car. They drove to AB's father's house, where they spent some time, before AB's father gave the appellant a lift back to the train station.[2]
[2] ts 193.
A few weeks later, the appellant turned up at AB's father's house and asked for AB. She was not there but her father gave the appellant her telephone number.
At about 11.30 am on 14 June 2021, the appellant exchanged a series of text messages with AB. The messages related to plans to meet in the near future. Later that day AB, who had no definite plans as to where she was sleeping that night, asked the appellant whether she could stay at his place. He agreed and they arranged to meet at Challis train station in Kelmscott.[3]
[3] ts 194.
AB arrived at the train station at about 11.00 pm and met the appellant. They walked to the appellant's home, which was close to the station. The appellant was living in a shed at the rear of a house. The shed was set up as a bedroom. It had a bed and a number of couches. It was quite messy.[4]
[4] ts 194.
There was another person in the shed when AB arrived, a young woman who appeared to have passed out on the bed. The appellant told AB that he was letting the other woman stay the night as well. That woman will be referred to as CD.[5]
[5] ts 194.
The appellant began to behave oddly. He was saying things that were 'weird and nonsensical'. AB asked to leave, but the appellant refused to allow her to do so. He showed her a sword and watched some film clips. AB did not see the clips but heard the audio and thought that it sounded like people having their heads cut off, or something similar. Due to what the appellant said and did, AB felt unable to leave.[6]
[6] ts 194.
AB ended up lying on the bed, next to the unconscious woman. The appellant took hold of what appeared to AB to be a real or possibly real gun, which he then put down near the bed. He took off his clothes and some of AB's clothes. He kissed her body. She did not kiss him back.[7]
[7] ts 194 - 195.
AB was lying on her side on the bed with the appellant lying behind her. He moved her legs apart and put his penis into her vagina. He continued to have sexual intercourse with AB for what seemed to her to be a long time. She did not consent and gave no reason for the appellant to believe that she was consenting.[8]
[8] ts 195.
After the appellant finished having sex with her, AB retrieved her underwear and put it back on. The appellant fell asleep for a short time. AB felt that she could not leave because that would wake the appellant.[9] The prosecution case was that when the appellant did awaken, he penetrated AB's vagina with his finger,[10] however in evidence AB said that there had been rubbing of the vagina but no penetration.[11] Accordingly, the count relating to this act (count 3) was dismissed by the trial judge at the end of the prosecution case.
[9] ts 195.
[10] ts 195.
[11] ts 232.
AB was permitted to leave the following morning. She walked to the train station, arriving at about 7.00 am. She was in a state of distress. She spoke to a female commuter and the police were called. She told the police what had happened.[12]
[12] ts 195 - 196.
Not long after AB left, the appellant went to AB's father's house. He arrived there at about 10.00 am. At this time AB's father had not heard what had happened. The appellant asked for AB. He was behaving oddly.[13] The prosecution case was that there was an attempt by the appellant to steal AB's father's car, but the appellant was acquitted of this charge.
[13] ts 196.
AB was examined by a doctor. The doctor observed numerous bruises and other minor injuries. Many, if not all, of the bruises and injuries were likely to have predated the incident with the appellant. No genital injuries were observed. The prosecution case was that it is not uncommon for non‑consensual penetration to occur without causing injury.[14]
[14] ts 196.
The police searched the appellant's residence and located a replica gun and a sword.[15]
[15] ts 196.
Defence case
The defence case was that AB was not detained against her will and that no sexual acts occurred.[16]
[16] ts 198.
It was not disputed that the appellant and AB had met each other on a prior occasion. Nor was it disputed that they had been in contact on the day of the incident. They were said to be two people who had decided 'that they might try [to] get to know each other'.[17]
[17] ts 199.
Further, it was not disputed that AB was at the appellant's residence on the relevant night. AB had asked if she could stay the night at his place and the appellant had agreed. They did meet at the train station and walked back to the converted shed he was living in, which was at the back of his mother's home.[18]
[18] ts 200.
The appellant and AB smoked some cannabis together and went to bed. However, the defence case was that AB was not prevented from leaving and that no threats to her were made. No acts of sexual penetration occurred. The appellant did not use any weapon in his interactions with AB.[19]
[19] ts 200.
Prosecution evidence
As ground 2 asserts that the verdicts of the jury were unreasonable or unsupported by the evidence, it is necessary to consider the evidence adduced at the trial.
AB
AB was 19 years old at the time she gave evidence and 17 years old at the time of the incident in 2021. As at 2021, her parents were separated. She stayed either with her father (who lived at his parents' house), her mother or a friend.[20]
[20] ts 204 - 205.
AB said that she first met the appellant four or five months prior to the incident. At the time she was returning from a friend's house to her grandparents' house, where her father was living. Her father came to the Kelmscott train station to pick her up. Her father was with the appellant. The appellant was sitting in the back seat of the car and AB understood from her father that he (the appellant) wanted a lift home. Her father asked the appellant if he wanted to come to his house to 'just hang out'.[21]
[21] ts 205 - 206.
At AB's father's house the appellant and AB chatted, and the appellant played her father's guitar. The appellant stayed 15 ‑ 20 minutes and they got on okay. AB's father offered to give the appellant a lift and AB went back to her mother's house.[22]
[22] ts 207.
AB did not hear from the appellant again until roughly five months later. Her aunt sent her a message saying that the appellant had come to the house and asked for AB's number, which her father had given to him. After receiving that message, the appellant tried ringing AB, but she did not answer as the microphone on her telephone was not working at the time. They continued to exchange text messages throughout the day.[23]
[23] ts 208 - 209.
Later that evening, AB was at her father's place. She attempted to make arrangements with friends to stay with them that night. She then sent a text message to the appellant asking if she could stay with him. He responded by text message that she could, and they arranged to meet at the Challis train station in Kelmscott.[24]
[24] ts 211 - 213.
AB arrived at the train station at around 11.00 pm. The appellant was waiting for her. AB said that the appellant was talking to himself, and she did not understand him. They walked the short distance to his place, which was a shed in the backyard of a house. She said that it was messy inside. There was a double bed at the back of the shed and three couches in the middle.[25]
[25] ts 214 - 215.
AB saw a girl passed out on the bed. AB asked who she was, and the appellant said she was Ellen DeGeneres. AB asked if the girl was okay, and the appellant said that he was looking after her or keeping her protected. He said something about AB having a spirit. He said that the mess was AB's fault and the fault of the girl on the bed. AB offered to help clean the mess. The appellant was still talking to himself.[26]
[26] ts 216 - 217.
AB was feeling anxious and overwhelmed. The appellant offered AB a drug and she declined. He told AB that she was the prettiest girl he had ever seen and asked her to have sex. She said no and the appellant got upset. He said that he had had sex with the girl on the bed.[27]
[27] ts 218.
AB said that she stayed, though she was not happy to do so. When asked why she stayed, AB said that the appellant had a samurai sword next to the door which he was swinging around. The appellant said that he was going to take AB to a mansion.[28]
[28] ts 221 - 223.
At around this time, AB sent a text message to another person saying that the appellant was paranoid and that she wanted to leave. The other person offered to order an Uber. The appellant noticed that AB was using her telephone and grabbed it from her hand. She said that she wanted to leave, and the appellant said no. She said that she asked multiple times, or at least once or twice. He responded in different ways and continued to talk to himself.[29]
[29] ts 226.
The appellant told AB that he had her father's keys and that he was going to use her father's car to take her to a mansion. AB was very confused and started to cry. He called her an animal. She felt threatened and when he demanded that she go to the bed, she complied. She got into the bed with the other girl who was passed out. She tried to wake up the other girl and tried talking to her, but there was no response.[30]
[30] ts 227 - 229.
As AB was lying on the bed, the appellant began to play music. He was rapping to the music. He also put on a film. AB could not see the film but there were speakers around the room, and she could hear the soundtrack. She said it sounded like people getting their heads cut off or people dying.[31]
[31] ts 229.
AB said that the appellant picked up a gun and placed it next to her head on the bed. She did not know if it was real, but it looked real to her. The appellant then got into the bed, between AB and the other girl. He told AB to go to sleep and said she was weird for not sleeping. AB told him that she could not sleep.[32]
[32] ts 229 - 230.
AB said that the appellant pulled down her leggings and knickers. AB was lying on her side and facing away from the appellant. He rubbed her vagina with his fingers. He then put his penis into her vagina. She did not want him to do this and had not given her consent. She had not done anything to suggest that she consented. He continued to penetrate her, and AB remembered he ejaculated. He started softly and then became rough. AB did not remember how long the penetration continued. She was crying whilst it was occurring. He told her to be quiet and she did not say anything.[33]
[33] ts 231 - 233.
When the appellant was finished, he may have gone to sleep. AB remained awake staring at the ceiling. She was thinking about how to get out. In the early morning, whilst the blinds were still shut, the appellant said that AB was 'never going to see daylight again'. AB wanted to go to the toilet and the appellant offered to provide her with a pan. She did not want to use a pan so the appellant took her outside the shed door and told her to squat. He said, 'just go there and do it'. He then watched whilst she urinated.[34]
[34] ts 234.
When they went back inside, the other girl was awake. The other girl pulled on her pants and asked where her bag was. AB asked whether she could leave too, and the appellant said that she could. She then grabbed her bag and ran. She returned to the train station and ran to the first person that she saw, a woman who called the police. When the police arrived, AB told them what had occurred.[35]
[35] ts 234 - 236.
In cross‑examination, AB accepted that there were discrepancies between her police statement and her evidence. She had not said in her statement that the appellant asked her for sex. She maintained, however, that he had said this and that she had told the police. She also accepted that in her police statement she did not refer to being offered drugs and declining them. However, she agreed that she had smoked cannabis with the appellant, though she had had 'hardly any'. She did not remember when this had occurred. She accepted that in the statement she had not said that she had offered to clean up the mess. By way of explanation, she said that the statement contained the 'main events' and not everything that happened that night.[36]
[36] ts 247 - 249.
AB agreed that there had been some text messages regarding the use of her father's car, but denied that she had agreed that the appellant could borrow the car. She said that when the appellant referred to using the car, she believed that he would speak to her father about it.[37]
[37] ts 249 - 250.
It was put to AB that in her statement she had referred to texting another person whilst in the shed but had not mentioned that the other person had offered to order an Uber for her. She agreed but said that the statement did not include everything that happened. She maintained that her evidence was correct and that she did remember what had happened.[38]
[38] ts 267.
It was put to AB that she did not say in her statement that she had asked to leave and that the appellant had said no. The statement also did not refer to AB crying after the appellant produced the car keys.[39] In the statement, AB said that she got into the bed and tried to sleep, and that the appellant had penetrated her vagina with his finger before the penile penetration.[40] AB also agreed that in the statement she said that she was not sure whether the appellant ejaculated. In the statement AB said that she did not respond when the appellant penetrated her. She did not refer in the statement to crying when this was occurring or that the appellant told her to be quiet. She agreed that in her statement she did not say that the appellant had attempted to penetrate her vagina with his penis for a second time.[41]
[39] ts 268.
[40] ts 270.
[41] ts 272 - 275.
AB agreed that in her statement she had said that the gun produced by the appellant clicked and nothing happened. It was put to her that at that point she knew it was not a real gun. She disagreed and said that she thought it was real. She said that she was scared and thought she would not see daylight again.[42]
[42] ts 281 - 282.
In re‑examination, AB was taken to parts of her statement in which she had stated that she told the appellant that she did not want to have sex and that she had gone to his place to sleep. In another part of the statement, she had said that the appellant told her that he had accidentally taken some 'gear' and that she should take some, but that she did not see any.[43] In another part of the statement, AB stated that the appellant told her that she could not leave. As to whether there was a second attempt at penetration, in her statement AB said that the appellant tried to take off her underwear and that she told him 'No, I am sleeping'. She said that there was no discussion about her father's car, apart from the earlier text messages.[44]
CD
[43] ts 311.
[44] ts 312.
CD was the other young woman who was on the appellant's bed on the night in question.[45]
[45] ts 315.
CD said that she met the appellant in Kelmscott. She was between places to stay at the time and went with the appellant to what she presumed was his place. She said her memory of the events was not good. She said she went to sleep after she arrived but could not remember whether she was on a bed. The next thing she remembered was waking up in the morning.[46]
[46] ts 316.
When she woke there was another female there. She had not seen this other woman before. She could not describe the woman and did not think she had a conversation with her. She could not remember whether the appellant was present when she woke up. She left and could not remember whether the other woman was still there at that time.[47]
[47] ts 316 - 331.
There was no cross‑examination of CD.
Dr Maureen Phillips
Dr Phillips is a medical practitioner who works at the Sexual Assault Resource Centre (SARC). She examined AB on 15 June 2021, approximately 14 hours after the alleged assault. She noted a number of bruises on the right arm, torso and legs, an abrasion on the right buttock and an ulcer on the left leg. Some of the bruises were yellow and some were blue. Yellow bruises are likely to be more than 18 hours old. No time estimate could be placed on the blue bruises.[48]
[48] ts 320 - 322.
Dr Phillips conducted a genital examination of AB and observed no injuries. She said the majority of people who experience non‑consensual sexual intercourse do not have observable injuries. One study showed that injury was observed in only 24.5% of women who presented following an allegation of sexual assault.[49]
[49] ts 322.
In cross‑examination Dr Phillips confirmed that in her opinion the yellow bruises more than likely predated the alleged assault. The blue bruises could have predated the incident or could have occurred at the time of the incident, but it was impossible to say. The abrasion was also likely to have predated the incident.[50]
EF
[50] ts 323 - 324.
EF is AB's father. He said he separated from AB's mother about 8 ‑ 10 years prior to June 2021. AB would usually stay with her mother or with him. At the time he was living with his parents in Kelmscott.[51]
[51] ts 325 - 326.
On one occasion EF picked up AB from the train station. He was in his car waiting when the appellant approached him and asked him for a lift. The appellant seemed friendly, and they chatted for about 10 minutes until AB's train arrived. They drove to EF's parents' house so that AB could pick up some clothes, as she was going to stay with her mother that night. Whilst she was doing that, the appellant picked up and played EF's guitar.[52]
[52] ts 326.
EF dropped AB off at her mother's house and then asked the appellant where he wanted to go. The appellant was acting 'weird' and not giving clear directions as to where he wanted to be driven. In the end EF took him back to the train station.[53]
[53] ts 327.
The appellant came to EF's residence about two or three months later and asked for AB's telephone number. EF spoke to his sister, and they agreed to give the number because he seemed like a 'decent bloke'.[54]
[54] ts 329.
The next day the appellant came to EF's house again. He was asking for AB's telephone number again. EF thought this was weird and said, 'don't you still have it?' The appellant did not respond, and EF noticed that the appellant's demeanour had changed from the day before. He then started playing the guitar again and asked EF if he had drugs. EF said that he did not have any drugs.[55]
[55] ts 330.
EF then gave evidence regarding the allegation that an attempt was made to steal his car. As the appellant was acquitted of that charge, it is not necessary to summarise that part of the evidence.
In cross‑examination, EF agreed that when they first went to his house, he had a smoke with the appellant. He also agreed that the appellant came back to the house a few weeks later, rather than months later as he had said in evidence‑in‑chief. He accepted that he did not say in his statement that the appellant had played his guitar on the second visit or that he spoke to his sister about giving the appellant AB's telephone number. He agreed that in his statement he said that he gave the appellant the telephone number again on the third visit.[56]
Susan Popiel
[56] ts 343 - 344.
Acting Sergeant Popiel is a case file manager in the forensic division of the Western Australia Police Force. She was the photographer at a search of the appellant's home on 15 June 2021. She produced a bundle of 35 photographs.[57]
[57] ts 356.
There were photographs of the exterior and interior of the shed. There were three couches in the shed and a double bed. There was one door at the end of the room furthest from the bed. Photographs 22 ‑ 31 were of a replica or toy handgun that was located in a bedside drawer. Photographs 32 ‑ 35 were of a metal sword that was located behind the chest of drawers next to the bed.[58]
[58] ts 359.
In cross‑examination, A/Sgt Popiel agreed that there was a security screen door and a wooden door to the shed. The wooden door appeared to be damaged. She did not know when the damage occurred.[59]
Benjamin Flynn
[59] ts 360.
Senior Constable Flynn was tasked to attend the Challis train station on 15 June 2021 where he spoke to AB. She made allegations of being sexually assaulted, which were recorded on the officer's body‑worn camera. That recording was played and tendered in evidence.[60]
[60] ts 364.
In cross‑examination, Senior Constable Flynn was asked about entries made on a police report regarding what AB had said. The identity of the person who made the entries was not established. The entries related to whether AB believed the gun was real and what sexual acts occurred.[61]
Scott Sims
[61] ts 366 - 368.
Acting Detective Sergeant Sims spoke to AB on 15 June 2021 at the Armadale police station. He then attended at the search of the appellant's residence. In cross‑examination he confirmed that AB told him that when the act of penile penetration occurred, she was lying on her stomach.[62]
Paul Sakrajda
[62] ts 371.
Mr Sakrajda is a chemist with the ChemCentre. He tested a blood sample taken from AB. No alcohol was detected but tetrahydrocannabinol was present at 7.0 micrograms per litre. No other common drugs were detected. The median level of tetrahydrocannabinol in positive samples tested at the ChemCentre between 2010 ‑ 2016 was 2.4 micrograms per litre.[63]
[63] ts 373.
A urine sample from AB was also tested. Alcohol was not detected, but methylamphetamine, amphetamine, cannabinoids, Naproxen and a metabolite of that drug were detected. Concentrations are not undertaken for urine samples. Naproxen is an anti‑inflammatory drug.[64]
James Borovina
[64] ts 374.
Senior Constable Borovina was a detective at the time of the investigation and was assigned as the investigating officer for this matter. He produced a download of the contents of AB's mobile telephone. That included messages exchanged between AB and the appellant on 14 June 2021.[65]
[65] ts 384.
In the messages the appellant suggests that AB ask her father if they can borrow his car to look at places to live in Mount Pleasant. Later that day, AB says that she is coming by train to Armadale, and they make arrangements to meet. Later AB asks if she can stay the night at the appellant's place. He responds by telling her to go to the Challis train station and that he will meet her. He confirms that it is only her who is coming.[66]
[66] ts 388.
Senior Constable Borovina also produced a map showing the appellant's residence and the Challis train station, and CCTV footage from the station. The CCTV footage was from the evening of 14 June 2021 and the morning of 15 June 2021. The 14 June 2021 footage shows the appellant meeting AB. No other person is with them.[67]
[67] ts 388 - 389.
Defence evidence
The appellant elected not to give or adduce any evidence.
Grounds of appeal
The appellant's case contains four numbered grounds of appeal with lengthy particulars.[68] A further ground, which will be referred to as ground 5, is referred to in written submissions. In essence, the grounds are as follows:
1.A miscarriage of justice occurred because evidence was wrongly admitted. The evidence in question is the photographs of the replica gun and the sword, and the evidence of the complainant's bruises.
2.The verdicts of the jury were unreasonable and cannot be supported by the evidence. This ground includes numerous particulars referring to alleged inconsistencies in the evidence.
3.The trial judge erred by not leaving open the defence of insanity in s 27 of the Code. Alternatively, defence counsel was incompetent in not raising the issue of insanity.
4.A miscarriage of justice was caused by the conduct of the appellant's trial counsel. By this ground the appellant asserts that his trial counsel failed to adequately cross examine AB and CD and that counsel coerced him into not giving evidence in his defence.
5.A miscarriage of justice was caused because evidence was wrongly admitted. The evidence in question on this ground is the evidence that the appellant offered AB methylamphetamine.
[68] WAB 16.
It is convenient to deal with ground 2 first.
Ground 2 - relevant legal principles
The legal principles applicable where it is contended that a verdict is unreasonable or cannot be supported were recently set out by this court in Sandy v The State of Western Australia.[69] Those principles can be summarised as follows:
[69] Sandy v The State of Western Australia [2024] WASCA 109 [63] ‑ [67], [72] ‑ [74], [76] (citations omitted).
1.It is a question of fact whether, having regard to the evidence, a verdict of guilty on which a conviction is based is unreasonable or cannot be supported.
2.An appellate court must decide that question by making its own independent assessment of the sufficiency and quality of the evidence, and determining whether, notwithstanding that there is evidence upon which a tribunal of fact might convict, nevertheless it would be dangerous in all the circumstances to permit the verdict to stand.
3.The appellate court, in making an independent assessment of the whole of the evidence to determine whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt as to the guilt of the accused, must weigh the whole of the evidence (in particular, the competing evidence).
4.The appellate court's task is not to consider, as a question of law, merely whether there was sufficient evidence to sustain a conviction.
5.The appellate court, in assessing whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt as to the guilt of the accused, must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.
6.The appellate court's function is to determine for itself whether the evidence at trial was sufficient in nature and quality to remove any reasonable doubt that the accused was guilty of the offence charged. The critical issue is whether the court's assessment of the totality of the evidence leaves the court with a reasonable doubt as to guilt which the court cannot assuage by having regard to such advantage as the jury can be taken to have had by reason of having seen and heard the evidence at trial.
7.The appellate court examines the trial record to ascertain whether, despite the jury's advantage in having seen and heard the witnesses in the context of the trial, the jury, acting rationally, should have entertained a reasonable doubt as to proof of guilt.
8.The ultimate question for the appellate court must always be whether the appellate court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
9.The setting aside of a jury's verdict of guilty because, having regard to the evidence, it is unreasonable or cannot be supported is a serious step. Trial by the appellate court is not to be substituted for trial by jury.
10.The appellate court's reasons must disclose its assessment of the capacity of the evidence to support the verdict.
11.The nature and extent of the appellate court's task, in a particular case, will be informed by the elements of the offence, the accused's defence, the issues in contest at the trial, the manner in which the trial was conducted, the way in which the case was ultimately left to the jury, and the particulars of the ground of appeal.
In Pell v The Queen, the High Court referred to the assessment of the credibility of a witness by a jury, in the context of a ground of appeal which alleges that the jury's verdict was unreasonable or unsupported having regard to the evidence:[70]
[T]he assessment of the credibility of a witness by the jury on the basis of what it has seen and heard of a witness in the context of the trial is within the province of the jury as representatives of the community. Just as the performance by a court of criminal appeal of its functions does not involve the substitution of trial by an appeal court for trial by a jury, so, generally speaking, the appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent upon the evaluation of the witnesses in the witness‑box. The jury performs its function on the basis that its decisions are made unanimously, and after the benefit of sharing the jurors' subjective assessments of the witnesses. Judges of courts of criminal appeal do not perform the same function in the same way as the jury, or with the same advantages that the jury brings to the discharge of its function.
[70] Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123 [37] (citations omitted).
Ground 2 - appellant's submissions
The appellant relies on alleged inconsistencies in the evidence of AB and on the absence of evidence to support her account.[71] He says that, taken together, these matters support a conclusion that the jury should have had a reasonable doubt as to his guilt. The appellant refers to the following matters (the relevant particulars of the ground of appeal are referred to in parenthesis):[72]
[71] WAB 16 - 24.
[72] The particulars to ground 2 in the Appellant's Case are listed as i) ‑ xii) and then continue as 1) ‑ 34).
1.There was no DNA evidence that supported the allegation that a sexual assault had occurred (i, 5 and 25).
2.There was evidence that AB did not believe, or could not have believed, that the replica gun was real (ii, iii, iv, viii, 4 and 26 ‑ 30).
3.There was no evidence of calls or text messages sent by AB mentioning weapons or seeking help (v).
4.AB's witness statement refers to a red samurai sword and this description is inconsistent with the sword found in the shed (vi).
5.CD does not corroborate AB's evidence (vii and 24).
6.AB claimed to be locked in the shed, but there was no lock on the door and the door was broken (ix and 6).
7.There were no speakers in the shed on which the audio of videos could be played loudly (x).
8.No methylamphetamine or drug‑using paraphernalia was found in the shed (xi).
9.The text messages on AB's telephone show that she 'exploits (men) for financial gain' and that the appellant was manipulated into allowing her to stay at his place. AB also instigated the car theft charge to get the appellant into trouble (xii, 11 and 12).
10.The appellant asked AB to leave 'multiple times' (1).
11.The call‑log disproved AB's claim that the appellant took her telephone (2).
12.In her evidence AB said that the reason she stayed was because the appellant had a samurai sword but then said that there was a conversation about AB sleeping over (3).
13.The appellant allowed AB to use the toilet (7).
14.There was an implication in AB's evidence that she consented to the alleged act of penetration (8).
15.AB gave evidence that was inconsistent with her statement regarding whether the appellant asked for sex, whether she tried to sleep, whether she was crying when the penetration occurred and whether the appellant told her to be quiet, and whether there was a second attempt by the appellant to penetrate her (9, 10 and 14 ‑ 17).
16.When AB asked to leave the following morning, the appellant allowed her to do so (13).
17.AB gave evidence that was inconsistent with police records regarding whether she told police that the appellant had performed oral sex on her, and whether she and CD met the appellant at the train station and walked with him to his house (18, 19 and 33).
18.AB's evidence that the appellant offered to supply her with cannabis is false. He claims it was AB who had the cannabis. AB accepted in cross‑examination that she smoked cannabis with the appellant (20 and 21).
19.AB denied using methylamphetamine either at the appellant's house or prior to arriving, but her urine sample was positive for that drug. The blood and urine tests showed that AB had used cannabis and methylamphetamine and this had the capacity to affect her state of mind and perceptions (22 and 34).
20.AB agreed in re‑examination that she never asked the appellant if she could leave (23).
21.There was an absence of relevant injuries to AB (25).
22.AB's evidence of the appellant falling asleep is inconsistent with him depriving her of her liberty (31).
23.The true reason that AB left was because she thought he was with someone else (32).
Ground 2 - respondent's submissions
The respondent submits that the appellant's claims fall into two categories: the absence of corroborative evidence and inconsistencies in the complainant's account. In the first category are the claims regarding the absence of DNA evidence, the absence of corroborative evidence from CD and the absence of drugs or paraphernalia in the shed.[73]
[73] WAB 66 - 67.
The prosecution did not adduce any DNA evidence and the trial judge made no reference to DNA in summing up.[74] CD gave evidence at the trial and on her account, and that of AB, she was asleep until the following morning. AB gave evidence that she was offered methylamphetamine but declined. She did not see any of that drug in the shed. She also gave evidence that she had smoked some cannabis with the appellant. The blood and alcohol samples are consistent with her account of using cannabis and there was no evidence about the concentration of methylamphetamine in the urine sample or when that drug could have been consumed.
[74] WAB 66.
The trial judge directed the jury not to speculate about matters that were not in evidence.[75] The respondent submits that the absence of DNA evidence, supporting evidence from CD and the absence of drugs or paraphernalia in the shed is not inadequacy of a relevant kind, that is, it does not reduce the probative value of the evidence that was given.[76]
[75] ts 450 - 454.
[76] WAB 67.
As to the second category of claims, the respondent submits that defence counsel made submissions at the trial regarding several of these suggested inconsistencies and that the trial judge also referred to them. Other suggested inconsistencies are based on a mistaken understanding of the evidence. For example, AB did not give evidence that the door was locked. Claims that AB was making false claims to secure some advantage for herself are mere assertions unsupported by any evidence. Other claims relate only to issues of credibility or assert matters that were not proven in evidence.
The respondent submits that the inconsistencies were questions of credit for the jury. There were several other aspects of the evidence that supported AB's account. These included the CCTV footage showing the appellant meeting with AB at the train station and the footage from the next day showing AB in a distressed state. There was also the evidence of the complaint made to the police and recorded on the body‑worn camera. Added to these was the evidence of the finding of the sword and the replica gun in the shed.[77]
[77] WAB 70.
The respondent also points to the candour of AB in her evidence, including admitting that she smoked cannabis with the appellant. She also conceded that she could not remember everything, though she maintained her testimony that the appellant had sexually penetrated her.[78]
[78] WAB 71.
Ground 2 - the merits
We will deal first with the specific contentions raised by the appellant.
There was no DNA evidence one way or the other. The absence of DNA evidence does not, as the appellant asserts, prove that he is innocent. This was not an issue raised at the trial.
The evidence regarding the replica gun found in the shed did not exclude the possibility that AB could have believed at the time of the incident that it was real. That was the evidence that she gave at the trial. The jury had the advantage of observing AB give her evidence and had the photographs of the replica gun. There is nothing about the appearance of the replica gun which excluded such a belief. The evidence relating to the gun will be dealt with in more detail when dealing with ground 1.
AB gave evidence that she messaged another person for assistance. She sent a message that the appellant was paranoid and that she wanted to leave. The other person offered to call an Uber for her. The fact that she did not mention weapons is explicable having regard to the circumstances. AB said in evidence that, on seeing her using her telephone, the appellant took it away from her. The fact that she had the telephone the next morning when she fled to the train station is not inconsistent with her evidence. It was plainly possible for her to have recovered the telephone in the interim.
AB did not say in evidence that the samurai sword was red. The appellant refers to AB's witness statement, but if there is any inconsistency in this regard it was not put to AB. The evidence relating to the sword will be referred to in more detail when dealing with ground 1.
CD was present in the shed at the time of the incident but, on both her own account and that of AB, she was unconscious. The fact that she gave no evidence to support AB's account is entirely explicable in these circumstances and is neutral in effect. It is understandable that the State called her, as the jury may otherwise have been left wondering whether she could give any relevant evidence. The fact that she could not give any relevant evidence does not assist the appellant.
AB did not say that she was locked in the shed. Further, there was no evidence as to whether the damage to the door prevented the door from being locked (or whether the outer security screen door could be locked). Nor was there evidence as to when the damage to the wooden door occurred. In any event, the prosecution case was not that AB was deprived of her liberty by being locked in the shed, but that she felt unable to leave because of what the appellant did and said.
AB said she heard the audio but could not see what the clips were being played on. The presence or absence of speakers was not an issue raised at the trial.
There was no evidence that any methylamphetamine or drug-using paraphernalia was located in the shed. The relevance of this is limited. AB said that the appellant offered her some 'gear' but that she declined. She did not say that she saw any methylamphetamine whilst she was in the shed. The fact that none was found does not prove that her evidence regarding an offer was untrue.
The suggestions that AB exploited men for financial gain and manipulated the appellant are merely assertions by the appellant. There were no text messages in evidence that were capable of supporting such assertions and it is not a matter that was put to AB in cross‑examination.
There was no evidence that the appellant asked AB to leave multiple times.
The call log shows that AB had access to her telephone at various times, but not continuously. The log is not inconsistent with AB's evidence that at one point the appellant grabbed her telephone after she messaged a friend.
AB did not say that the conversation about her staying over occurred after the appellant produced the sword. In that part of the questioning, AB was asked why she did not leave and referred to the sword. She was then taken back to the reasons why she came to be in the shed in the first place. The appellant has misconstrued the relevant passage of the transcript.
AB gave evidence that the appellant did not permit her to go the toilet and provided her with a pan. When she refused to use the pan, he allowed her to squat on the ground by the door whilst he watched. The appellant's claim that he did not prevent her from using a toilet is a mere assertion unsupported by any evidence.
AB said that she did not consent to the sexual penetration. There was no implication in her evidence that she consented at any stage. In any event, the defence position was that there had been no sexual penetration, not that it had occurred by consent.
AB accepted in cross‑examination that there were inconsistencies between her evidence and her police statement. She provided explanations for these inconsistencies. Her explanations included that the statement was not comprehensive because it contained only the 'main events'.[79] AB did not resile from the essential features of her evidence in cross‑examination. The jury had the advantage of seeing AB give her evidence and, in particular, of observing her in cross‑examination. None of the inconsistencies, either individually or together, compel a conclusion that AB was not a truthful or reliable witness regarding the critical matters of whether she was detained against her will and was sexually penetrated without her consent.
[79] ts 248, 267.
The fact that the appellant permitted AB to leave the following morning does not prove that she was never detained against her will.
Inconsistencies between the police incident report, the doctor's notes, and the evidence given by AB must be viewed with caution. There was no evidence that AB said the things that were recorded in those documents, and she did not accept that she had. In particular, she did not accept that she had told police that oral sex had occurred, or that she never believed that the replica gun was real, or that she was not fearful at the time of the incident. Insofar as the incident report noted that AB and another woman had met with the appellant at the train station, this was also denied by AB and was not consistent with the CCTV evidence.
AB accepted in cross‑examination that she smoked some cannabis with the appellant.[80] It was not suggested to her that she supplied the cannabis and there is no evidence to support that assertion. The fact that she smoked the cannabis was relied on by defence counsel as being inconsistent with AB's allegation that sometime earlier she had been sexually assaulted.
[80] ts 285.
The evidence regarding AB's blood and urine samples was before the jury.[81] The result for cannabis was consistent with her evidence that she had smoked cannabis with the appellant. The result for methylamphetamine was unquantified and there was no evidence as to when consumption could have occurred. Nor was there any evidence as to the effect that the drug use could have had on AB's perceptions or memory.
[81] ts 371 - 373.
AB did not state in re‑examination that she never asked the appellant if she could leave. The appellant has misunderstood the relevant passage. In re‑examination, she was asked if she recalled that it had been put to her in cross‑examination that she had not said in her statement that she had asked to leave. She was then taken to the part of her statement where she had stated that the appellant told her that she could not leave. Accordingly, the evidence is contrary to what the appellant suggests.
The absence of injuries is also neutral. AB did not claim that she was physically assaulted or that she resisted the sexual assault. Dr Phillips gave evidence that the absence of genital injury was not inconsistent with non‑consensual sexual intercourse.[82]
[82] ts 322.
If the appellant fell asleep, that is not inconsistent with him detaining AB against her will. The effect of his words and behaviour may still have had an operative effect on AB. That was the substance of her evidence. The fact that they were in the same bed together at the far end of the room from the door would not have been lost on the jury.
The claim that the true reason that AB left was that she thought the appellant was with someone else is unsupported by any evidence.
None of the matters raised by the appellant, either individually or taken together, supports a conclusion that the verdicts were unreasonable or unsupported by the evidence.
The prosecution case depended critically on the evidence of AB. It was only if that evidence was accepted as truthful and reliable in respect of the critical matters that the appellant could be convicted. Plainly the jury, with the benefit of seeing and hearing AB give evidence, made that assessment. The jury also had the benefit of seeing the CCTV footage of AB at the train station the following morning and hearing the recording of her initial complaint to the police. Her complaint to police was consistent with the evidence she gave. The finding of the replica gun and the sword also supported her evidence.
On our independent assessment of the sufficiency and quality of the evidence, it would not be dangerous to permit the verdict to stand. It was well open to the jury to be satisfied beyond reasonable doubt of the guilt of the appellant. Whilst there were some inconsistencies in the evidence of AB, they do not lead to a conclusion that she was a witness whose evidence should not be accepted on critical matters. The totality of the evidence does not leave us with any reasonable doubt as to the guilt of the appellant which cannot be assuaged by having regard to the advantage of the jury in seeing and hearing the evidence of AB.
Ground 2 has no reasonable prospect of success and leave in respect of it should be refused.
Ground 1 - appellant's submissions
The appellant submits that the photographs of the sword and the replica gun found by the police in the shed should not have been admitted, essentially because those items do not match the descriptions given by AB in her evidence. The implication is that the evidence of the finding of these items does not support the evidence of AB and was, therefore, irrelevant. Further, the appellant submits that the evidence was potentially prejudicial to him because all it showed was that he had a propensity to possess items of this general type.
In his submissions, the appellant states that AB referred to the sword as being a long red samurai sword, whereas the sword found was short and black. He states that AB said in evidence that she believed the gun could be real but that the item found was obviously a toy.
The appellant submits that the evidence of Dr Phillips regarding the bruises and abrasion on AB's body was irrelevant and should not have been admitted. He says that there was no allegation of any physical assault by him that could account for the injuries and the medical evidence indicated that at least some, if not all, of them pre‑dated the night of the alleged sexual assault.
Ground 1 - respondent's submissions
The respondent submits that the photographs of the sword and the replica gun, and the evidence that they were found in the shed, were relevant and admissible because they were capable of supporting the account of AB that she was fearful and felt unable to leave because the appellant had brandished such items in her presence.[83] AB said that she had no idea whether the gun was real but told herself that it was. The respondent notes that no objection was made at the trial to the tender of the photographs or the evidence as to where the items were found.
[83] WAB 61 - 64.
The respondent accepts that there was no suggestion that the appellant had caused the bruises or the abrasion to AB.[84] The prosecutor in opening and closing address made it clear that all of the injuries potentially predated the incident. Further, the trial judge reiterated this in the summing up to the jury. The respondent submits that the physical state of the complainant after an alleged assault is relevant, though in this case there was no evidence of injury to support the prosecution case. The prosecution case depended critically on acceptance of the evidence of AB as to what occurred. No objection to the medical evidence was raised at the trial. That evidence was neutral and did not result in material prejudice to the appellant.
[84] WAB 64 - 65.
Ground 1 - the merits
AB described the sword in her evidence as a samurai sword.[85] She did not refer to its colour or to its length. She said that the appellant produced the sword from near the door and that he swung it around in her presence. In cross‑examination it was suggested to her that the sword was located behind a cabinet by the bed and not by the door. It was not put to her that her description of the sword did not match the sword found in the shed.
[85] ts 221.
The reference to a red sword appears to come from AB's police statement. However, that statement was not in evidence and that part was not put to AB in cross‑examination.
The photographs show a sword that could be described as a samurai sword. It is predominantly black, with some red bands on the hilt. AB was not shown the photographs of the sword in her evidence and, thus, did not identify it as the one that she said the appellant brandished in her presence. However, no objection to the photographs was raised and there was no suggestion that the evidence of the finding of the sword by the police was irrelevant.
The relevance of the photographs and the finding of a sword in the shed was that this evidence could support AB's testimony in a material respect. The fact that a sword capable of fitting the description given by AB in her evidence was found in the shed was a fact that the jury could take into account in assessing whether the account given by AB was credible and reliable. The presence of a sword in the shed was consistent with that account.
As regards the replica gun, AB accepted that the gun might not have been real but said that she convinced herself at the time that it was. When the appellant produced the gun, she was lying on the bed. She said that he placed it near her head. There was no suggestion that she held it or had any opportunity to closely examine it.
The photographs show what appears to be a replica handgun. It is predominantly black, with small red features on the trigger, the right side of the barrel and the left side of the handle. It has the shape and general appearance of a firearm. A/Sgt Popiel described it as a toy gun.[86] It may well be that when examined calmly and closely, or held, it is obvious that the item is a toy gun. The point is that AB said, in her state of fear, she thought it was real. Whether that belief was genuine was a matter for the jury to determine. Again, AB was not shown the photographs of the gun and, thus, did not identify it as the one that she said the appellant produced. However, no objection to the photographs was raised and there was no suggestion that the finding by the police of the replica gun in a bedside drawer was irrelevant.
[86] ts 359.
The relevance of the photographs and the finding of the replica gun in a bedside drawer near the bed is that this evidence could support AB's testimony in a material respect. The fact that a replica gun capable of fitting the description given by AB was found near the bed was a fact that the jury could take into account in assessing whether the account given by AB was credible and reliable. The presence of a replica gun was consistent with that account.
The evidence of the bruises and other injuries was not relied on by the prosecution as evidence that corroborated AB's account or that, in any other way, implicated the appellant. The evidence was led only as part of a complete account of the physical examination of AB. The relevant feature of this evidence was that there was nothing that either supported or detracted from AB's account. The evidence was not objected to. Prosecuting counsel made it clear in closing that this evidence was neutral, and the trial judge gave directions to the jury to the same effect.[87] There was no realistic risk that this evidence would be misused.
[87] ts 478.
Ground 1 has no reasonable prospect of success and leave in respect of it should be refused.
Ground 3 - appellant's submissions
The appellant submits that the evidence of AB raised an issue of whether he was mentally impaired. He says that the trial judge should have directed the jury on the defences of 'diminished responsibility' and insanity. He says the failure of the trial judge to do so was a wrong decision on a question of law. Insofar as there was a failure on the part of defence counsel to raise these issues, the appellant submits that his counsel acted inadequately and that this caused a miscarriage of justice.
It would appear that the appellant is relying on the evidence of AB that he was acting strangely from the time she met him at the train station. In this regard AB said that the appellant was talking to himself, that he said that the other girl on the bed was Ellen DeGeneres, that she (AB) had a spirit and was responsible for the mess, that he swung around the sword and played violent videos, and that AB referred to him as being paranoid.
Ground 3 - respondent's submissions
The respondent submits that the issue of the appellant's soundness of mind was not raised at the trial. A plea of not guilty on grounds of unsoundness of mind was not entered. Had such a plea been entered it would have been for the appellant to establish unsoundness of mind on the balance of probabilities. The defence at trial was that the complainant had made things up and that the complainant had not been deprived of her liberty or sexually assaulted.
The respondent submits that whilst there was evidence of unusual behaviour by the appellant, there was insufficient evidence to support a defence of insanity.[88] There was no psychiatric evidence at the trial and the appellant has not sought to adduce any such evidence on the appeal. There was a psychiatric report at sentencing that stated that the appellant had schizophrenia and a personality disorder with dissocial traits.[89] That report referred to the disinhibiting effects that alcohol and cannabis would have had on the appellant. However, there is no evidence that any mental impairment, independent of any intoxication, resulted in a loss of a capacity referred to in s 27(1) of the Code.
[88] WAB 71 - 73.
[89] Psychiatric report for court, dated 11 August 2023, 7 ‑ 9.
Ground 3 - the merits
The defence of insanity is raised by the entering of a plea of not guilty on grounds of unsoundness of mind. Where such a plea is entered, the accused bears the onus of proving on the balance of probabilities that they lacked one of the capacities referred to in s 27 of the Code at the time of the alleged offence. Soundness of mind is presumed unless the contrary is proved.[90] Usually, expert evidence from psychiatrists is required where such an issue is raised.
[90] Criminal Code Act Compilation Act 1913 (WA), s 26.
The appellant was presumed to be of sound mind at the time of the incident unless the contrary was proved. The issue of whether the appellant was of sound mind at the time of the incident was not raised at the trial. A plea of not guilty on grounds of unsoundness of mind was not entered at the commencement of the trial. There was no attempt by the appellant to discharge the onus that was on him to establish that he was not criminally responsible at the time of the incident on account of unsoundness of mind. The defence that was run at the trial was not that the appellant was not criminally responsible for acts that had occurred; it was that those acts had not occurred at all.
There are objectively sound reasons why defence counsel would not have raised unsoundness of mind. Firstly, no responsible counsel would raise such an issue without instructions to do so. There is no suggestion that the appellant instructed his counsel to raise the issue. Secondly, the consequences of a verdict of not guilty on account of unsoundness of mind are not the same as a complete acquittal. The likely outcome where the charge is serious (as these offences are) is a custody order.[91] Thirdly, such a defence would have been inconsistent with the defence that was run at the trial.
[91] Criminal Procedure Act 2004 (WA), s 149; Criminal Law (Mental Impairment) Act 2023 (WA), s 46.
The trial judge did not err by failing to direct the jury on insanity. That defence was not raised at the trial, either expressly by the appellant or by the evidence at the trial. The evidence of AB did not raise such an issue. The evidence that the appellant was acting strangely was not capable of establishing that he lacked one of the capacities referred to in s 27 of the Code. There was no psychiatric evidence at the trial to suggest that the appellant lacked one of the relevant capacities. Further, there is no additional evidence of that nature on the appeal. There is no defence of 'diminished responsibility' in this State.
There is no merit in this ground of appeal. Leave in respect of it should be refused.
Ground 4 - relevant legal principles
The legal principles applicable to a ground of appeal that alleges that a miscarriage of justice has occurred due to the conduct of defence counsel are well established.[92] An appellant must demonstrate that the conduct of his or her counsel caused a miscarriage of justice, a task which constitutes a heavy burden.[93] That is a consequence of the adversarial nature of a criminal trial and the role and function of counsel.
[92] Huggins v The State of Western Australia [2018] WASCA 61 [375] ‑ [401].
[93] TKWJ v The Queen[2002] HCA 46; (2002) 212 CLR 124 [74] (McHugh J).
Ordinarily, an accused is bound by the way the trial is conducted by counsel in relation to matters within counsel's remit, regardless of whether that was in accordance with the wishes of the client. It is not a ground for setting aside a conviction that decisions made by counsel within counsel's remit were made without, or contrary to, instructions, or involved errors of judgment or even negligence.[94] Counsel is entrusted with wide discretion as to how the case should be run and decisions including what witnesses should be called or what questions should be put in cross‑examination are, generally speaking, within the remit of counsel. Thus, it will not be enough for an appellant to merely express disagreement with the decisions made by counsel. Significantly more is required to establish a miscarriage of justice.
[94] TKWJ [74], [79] (McHugh J); R v Birks(1990) 48 A Crim R 385; 19 NSWLR 677, 685 (Gleeson CJ).
This court does not examine whether a decision taken by the appellant's counsel at the trial was, in fact, taken for the purpose of obtaining a forensic advantage or avoiding a forensic disadvantage. Rather, the court is concerned only with whether counsel's decision is capable of explanation on that basis. That is, could there be any reasonable explanation for the decision? The test is objective in character.[95]
[95] Morgan v The State of Western Australia [No 2][2019] WASCA 185 [205] ‑ [206].
In relation to the accused's choice as to whether or not to give evidence, the question is ordinarily whether the trial was unfair because the exercise of an accused's right to give evidence in his or her defence was effectively foreclosed by the receipt of incorrect advice.[96] Unfairness may also arise if the accused's will is overborne by threats or pressure. An appellate court's assessment of whether the decision not to give evidence deprived an accused of a fair trial looks to the nature and effect of the incorrect advice or pressure on the accused's decision. It is not an assessment of whether an objectively rational justification could be assigned to the decision.[97]
[96] Craig v The Queen [2018] HCA 13; (2018) 264 CLR 202 [32].
[97] Craig [33].
Ground 4 - additional evidence
The appellant filed an application to adduce additional evidence on the appeal. That application related to his affidavit filed on 24 April 2024. At the hearing of the appeal, he relied on that affidavit in support of this ground of appeal. He gave oral evidence and was cross‑examined.
The respondent applied to adduce additional evidence in response. That application related to affidavits of Roisin Keating and Seamus Rafferty SC, the appellant's trial counsel, filed on 9 July 2024. At the hearing of the appeal Ms Keating and Mr Rafferty gave oral evidence and were cross‑examined.
The appellant
In his affidavit the appellant stated that he was prevented from giving evidence at his trial 'despite me insisting that I wanted to and should'.[98] He stated that he was told that he would not be represented if he did so.
[98] Affidavit of Rainie T Loh, sworn on 17 April 2024, 2.
The appellant also stated in his affidavit that his trial counsel failed to adduce DNA evidence, character evidence and call other witnesses who could assist his defence.[99] He asserted that his counsel failed to cross‑examine CD. He stated that his counsel failed to object to inadmissible evidence and failed to seek an adjournment due to non‑disclosure by the State. He stated that his counsel failed more generally to present an adequate defence case.
[99] Affidavit of Rainie T Loh, sworn on 17 April 2024, 1.
In cross‑examination, the appellant was asked to identify those witnesses who he said could have been called in his defence. He said that his parents and brother were present at the residence that day but agreed that they were not in the part where he lived (the shed). However, he said that they were 'out the back a lot' because they smoke cigarettes and that if anything had occurred, they would have 'heard something or seen something'. He accepted that he did not tell his lawyers about these possible witnesses because he 'didn't get an opportunity to'.[100]
[100] Appeal ts 87.
The appellant accepted that he spoke to his lawyers prior to the start of the trial, but not regarding how to run the trial or how to structure it. He denied that his lawyers took a proof of evidence from him or asked him about his version of events.[101] He said that all that occurred was that AB's statement was read out and he was asked whether he agreed or disagreed with it. He said this only occurred once and took five minutes or less. He then said that there was some discussion with his lawyers about DNA and the samurai sword.
[101] Appeal ts 88.
When asked what it was that he said had not been disclosed prior to trial, the appellant said 'I think the whole evidence of the case. So, all the evidence that the prosecution intended to rely upon'.[102] He then said that he was not 100% sure but thought that forensic evidence had not been disclosed.
[102] Appeal ts 91.
The appellant said that the inadmissible evidence referred to in his affidavit was the 'doctor's report about those bruises'.[103] He maintained that this evidence was irrelevant and would have led to the jury drawing unfounded inferences.
[103] Appeal ts 92.
In regard to the allegation that he was prevented from giving evidence, the appellant said in cross‑examination that 'threats were made towards [him] about giving evidence, saying that [he] would not be represented if [he] did give evidence or chose to give evidence'.[104] He said that at a meeting in the detention area of the District Court on 4 April 2023, he was 'under a bit of duress' from what Mr Rafferty was telling him.[105] He said that he told Mr Rafferty that he wanted to give evidence and that he had also said this on previous occasions. When asked whether Mr Rafferty had made it clear that whether he gave evidence was his choice, the appellant said '[n]ot that I can recall. I don't think it was put in those words'.[106] He said he was never told by his lawyers that they did not think he would make a good witness.
[104] Appeal ts 92.
[105] Appeal ts 94.
[106] Appeal ts 95.
The appellant said that he was given some paperwork and told to sign it but was not given a chance to read it. He said he was rushed and had to go back to court. He then claimed that the signed authority produced by Ms Keating in her affidavit was not the same as the document that he signed. He claimed that the document had been altered because it looked different. He said some of the dot points were not the same. When asked how he could say the document was different if he did not read it, the appellant said that either he did not read it or it had been altered. A little later he said that perhaps he did read it and then, later again, that he was pretty sure he read it. He then said that it was possible he did not read it.[107]
[107] Appeal ts 96.
The appellant accepted that the first signature on the authority document appeared to be his. He suggested that because that signature appeared in a space that was for an address that this showed that he had not read the document, though he could not remember having signed the document twice. He did not expressly deny when it was put to him that his signature also appeared on the second page of the document.[108]
Roisin Keating
[108] Appeal ts 98 - 99.
In her affidavit, Ms Keating stated that the appellant was represented by herself and Mr Rafferty on a grant of legal aid. She represented the appellant at the trial under Mr Rafferty's supervision. That arrangement was discussed with the appellant and he agreed to Ms Keating appearing at the trial as his counsel. Ms Keating discussed forensic decisions and evidentiary issues with Mr Rafferty during preparations for trial.[109] Mr Rafferty was present during the trial for significant portions of the evidence, including the entirety of the evidence of AB and CD.
[109] Affidavit of Roisin Ann Keating, sworn on 8 July 2024, pars 12 ‑ 13.
Ms Keating stated that at various stages throughout the preparation process and during the trial itself there were discussions with the appellant about whether he would give evidence on his own behalf.[110] The appellant had been interviewed by police, but that interview was inadmissible.
[110] Affidavit of Roisin Ann Keating, sworn on 8 July 2024, par 15.
Ms Keating stated that she had a meeting with the appellant via Skype on 31 March 2023 for the purpose of finalising his proof of evidence and discussing his options around giving evidence. The appellant's presentation during that meeting (and in earlier interactions) caused her to form a view that he was erratic and volatile when answering questions, prone to be fixated on extraneous issues, distracted by theoretical scenarios and inclined to give unhelpful responses when allegations were put to him directly.[111]
[111] Affidavit of Roisin Ann Keating, sworn on 8 July 2024, par 16.
Ms Keating stated that prior to the trial she had formed a preliminary view that it was not in the appellant's interests to give evidence on his own behalf and, if he did, that would be a 'poor forensic decision'. That view was largely based on her assessment of the appellant's demeanour and concerns regarding his ability to give coherent evidence whilst being cross‑examined. However, she stated that it was made clear to the appellant that, whilst she could give him advice about whether to give evidence, the decision was 'entirely his own'.[112]
[112] Affidavit of Roisin Ann Keating, sworn on 8 July 2024, par 18.
Ms Keating stated that during the trial, an adjournment was allowed at the end of the prosecution case so that she and Mr Rafferty could confirm the appellant's position with respect to him giving evidence. They attended on the appellant in the detention area of the District Court and discussed with the appellant his options. Mr Rafferty asked the appellant whether he thought he could strengthen his position by giving evidence and the appellant responded by saying that he did not believe he could. The appellant was then provided with an authority, which Ms Keating watched him read. He was asked if he had any questions and indicated that he did not. He signed the authority.[113] A copy of that authority was annexed to Ms Keating's affidavit and was tendered at the appeal hearing.
[113] Affidavit of Roisin Ann Keating, sworn on 8 July 2024, pars 20 ‑ 22.
The signed authority commences with a statement that the appellant does not wish to give evidence at the trial. It then states that the appellant maintains his plea of not guilty. There are then paragraphs which read:[114]
It has been explained to me by my counsel that I have a right to give evidence in this trial and that ultimately, it is my decision whether I elect to give evidence or not. The likely benefits and consequences of giving evidence at trial have been explained to me and I understand that advice.
For example, a benefit is that my side of the story will be before the jury. A disadvantage will be that the jury may consider my behaviour under cross‑examination if it is not favourable, and it is a stressful process. I have memory issues as a result of the lapse of time since the offending, and my drug use at that time.
Similarly, it has been explained to me by my counsel that I am able to call witnesses to give evidence on my behalf at the said trial. I can do so without giving evidence myself. I can also offer evidence in other forms as explained by my counsel.
The State will have a chance to cross‑examine me and challenge my evidence should I wish to give evidence. The perception of me to the jury may be positive or negative as a result of my evidence. This is the same process for any witness I call.
It has been further explained to me by counsel and I understand that should I elect not to give evidence and not call any witnesses to give evidence on my behalf, my full version of events will not be put before the jury. I did participate in a formal record of interview however that interview will not be played to the jury as it is inadmissible and does not contain and (sic, any) denials of any of the alleged offending. The jury will not hear from me via that form.
[114] Affidavit of Roisin Ann Keating, sworn on 8 July 2024, Annexure A.
The authority then goes on to include a paragraph summarising the nature of the appellant's defence, namely that he disputed that any unlawful detention or sexual penetration had occurred. There is a paragraph referring to the likelihood of a sentence of immediate imprisonment in the event of conviction. There is then a further statement in which the appellant has stated his intention not to give or call any evidence by scoring out the word 'do' where it appears in phrases in the form 'I do/do not wish' to give evidence or call any witnesses. The final paragraphs state that the decision has been made of the appellant's own free will and choice and that he has read and understood the information in the document. The appellant's signature appears above his name and the date (the first number of which has been handwritten). The signature is witnessed by Ms Keating who has also signed and written her name and the date.
Ms Keating stated that it was made clear to the appellant that if he did not give evidence then his alternative version of events would not be before the jury and that the decision whether to give evidence was his alone. She stated that neither she nor Mr Rafferty said that if the appellant did not sign the authority, they would cease acting for him.[115]
[115] Affidavit of Roisin Ann Keating, sworn on 8 July 2024, pars 23 ‑ 24.
Ms Keating stated that the fact that the prosecution was not leading any DNA evidence was discussed with the appellant and that it was explained to him that absence of evidence of this type could not be used as proof of innocence. A similar conversation occurred in respect of the SARC report (regarding the absence of current injuries). She said that there was no significant disclosure outstanding at the time of trial.[116]
[116] Affidavit of Roisin Ann Keating, sworn on 8 July 2024, par 25.
Ms Keating stated that the appellant did not suggest calling character evidence. Given that the appellant had a criminal record she considered that the calling of character evidence would have been ill‑advised.[117]
[117] Affidavit of Roisin Ann Keating, sworn on 8 July 2024, par 25.
Ms Keating stated that at no time did the appellant suggest that the character of AB was relevant to the allegations. In any event, as part of her preparations, Ms Keating liaised with the prosecution regarding the criminal histories of the prosecution witnesses, including AB, and determined that nothing arose in that regard that could be used to undermine the credit of those witnesses. Further, the appellant did not offer any suggestion as to why AB might have fabricated the allegations. The appellant's instructions were that he accepted the context but disputed the offences themselves.[118]
[118] Affidavit of Roisin Ann Keating, sworn on 8 July 2024, par 25.
Ms Keating stated that CD gave evidence that she had no recollection of the day in question. This was not a significant departure from what CD had said in her statement. However, there were some other aspects of her statement that were harmful to the appellant. In these circumstances a decision was made, in consultation with Mr Rafferty, not to cross‑examine CD.[119]
[119] Affidavit of Roisin Ann Keating, sworn on 8 July 2024, par 25.
In oral evidence Ms Keating said that she obtained instructions from the appellant regarding his version of events and had produced a proof of evidence. She used that proof as the basis for her cross‑examination of prosecution witnesses.[120]
[120] Appeal ts 103 - 104.
Ms Keating said that the appellant had expressed a desire not to give evidence prior to the trial, but that had not been firmly concluded. The decision was subject to change depending on how AB presented in evidence. She confirmed that the written authority signed by the appellant was prepared by her. The form was tailored for the individual circumstances.[121]
[121] Appeal ts 105 - 106.
Ms Keating said that the proof of evidence had been checked with the appellant and that her practice was to read the proof to the client. She believed that he had signed the proof, but the file had been handed over to another lawyer after the trial. She had retained an unsigned copy of the proof, which was tendered at the appeal hearing.
In cross‑examination, Ms Keating said that when given the authority the appellant appeared to read it and confirmed that he did not have any questions when asked.
Ms Keating disagreed with the proposition that the appellant had instructed her to adduce evidence of the absence of his DNA.[122] She said that the appellant agreed that such evidence could not be led. There was a preliminary DNA report that showed the appellant's DNA in the vagina of AB. Whilst it was a low reading, it was inconsistent with the appellant's total denial of any sexual contact. In circumstances where the prosecution was not seeking to rely on DNA evidence, it would have been counter‑productive to have adduced this evidence in the defence case.
[122] Appeal ts 114.
Ms Keating said that there was a discussion with the prosecution regarding the absence of a full DNA report. The prosecution wanted to know whether an application would be made by the defence to adjourn the trial. This was discussed with the appellant and a decision was made to proceed with the trial. She said she was not instructed to seek an adjournment.[123] She did not consider that it was necessary to have full disclosure to be able to provide an adequate defence in this case. The only disclosure that was incomplete was the final DNA report. The discussion with the appellant regarding the DNA report occurred via Skype prior to the start of the trial.[124]
[123] Appeal ts 119.
[124] Appeal ts 122.
Ms Keating denied that she harboured any prejudice or bias against the appellant. Her assessment of his ability to give evidence was based on her interactions with him in dealing with this and other matters.[125]
[125] Appeal ts 124 - 125.
It was put to Ms Keating that there was evidence of AB making allegations of a similar type in respect of another person. She said there was never any suggestion that the complainant had made similar claims against another person.[126] The appellant suggested that evidence of AB making false allegations of a sexual nature against another person could be found in the prosecution brief. He referred to text messages in the brief which he said established this. The messages related to AB seeking to arrange an Uber ride.
[126] Appeal ts 125.
It was put to Ms Keating that there was a failure on her part to cross‑examine CD. She said that CD gave evidence that she had no memory of anything that occurred on the night in question.[127] A forensic decision was made not to attempt to push her to give evidence to the contrary because this may prove unhelpful. There was no clear indication of what CD might say if cross‑examined.
[127] Appeal ts 130.
The appellant alleged that the proof of evidence was a 'completely fabricated document'. Ms Keating denied this and said that the proof was based on instructions and information she was given by the appellant. Her recollection was that the appellant signed a copy of the proof in the dock at the commencement of the trial. She had previously taken the appellant through the prosecution brief, including AB's statement. The process occurred more than once and took hours in totality (not five minutes as the appellant had suggested).[128]
[128] Appeal ts 136.
Ms Keating said that the appellant did not at any time ask her or Mr Rafferty to call any other witnesses at the trial.[129]
Seamus Rafferty SC
[129] Appeal ts 139 - 140.
In his affidavit Mr Rafferty confirmed that Ms Keating represented the appellant at the trial, under his supervision. He was present for significant portions of the evidence and had numerous discussions with Ms Keating before and during the trial.[130]
[130] Affidavit of Seamus Francis Rafferty, sworn on 3 July 2024, par 5.
Mr Rafferty was present at the meeting in the detention area following the close of the prosecution case. He stated that he conducted the meeting because the appellant was 'prone to be a challenging client' and because of the significance of the decision. He stated that during the conversation he advised the appellant of the following matters:[131]
1.That there was no legal requirement for the appellant to give evidence and that he could exercise his right to silence, from which no adverse inference could be drawn against him.
2.If the appellant did not give evidence, there would be no evidence before the jury as to his version of events that differed from that of AB.
3.That Mr Rafferty had significant concerns about the appellant giving evidence given that he was an unusual individual who would likely not come across well before the jury.
4.That Ms Keating had done well in cross‑examination in undermining AB's credibility.
5.Ultimately, taking into account all relevant matters, it was Mr Rafferty's advice that the appellant should not give evidence, however he was free to ignore that advice and give evidence should he wish.
[131] Affidavit of Seamus Francis Rafferty, sworn on 3 July 2024, par 7.
Mr Rafferty stated that at the conclusion of the discussion the appellant advised that he would not give evidence.[132] The authority was then handed over. Mr Rafferty stated that he ensured that the appellant read the authority before he signed it. Mr Rafferty was aware that Ms Keating had discussed with the appellant his options for giving evidence prior to the trial.[133]
[132] Affidavit of Seamus Francis Rafferty, sworn on 3 July 2024, par 8.
[133] Affidavit of Seamus Francis Rafferty, sworn on 3 July 2024, par 9.
Mr Rafferty stated that his concerns about how the appellant would present as a witness were based on interactions with him, which caused him to conclude that the appellant was at times 'volatile, erratic, weird and difficult'. He had also discussed the appellant with his former counsel who had referred to an incident with the appellant in her chambers which supported Mr Rafferty's assessment.[134]
[134] Affidavit of Seamus Francis Rafferty, sworn on 3 July 2024, par 10.
Mr Rafferty stated that at no time was the appellant prevented from giving evidence. He was not told that he would not be represented if he did give evidence.[135]
[135] Affidavit of Seamus Francis Rafferty, sworn on 3 July 2024, par 11.
In oral evidence Mr Rafferty said that the meeting in the detention area on 4 April 2023 occurred after the trial was adjourned for the day. The adjournment occurred earlier than usual because the prosecutor was unable to return after lunch on that day because he was sick with a migraine.[136] He recalled that they used the last room in the detention area because it had a slot through which documents could be passed. He gave his opinion that the appellant should not give evidence. At that stage, he had been dealing with the appellant for 18 months and considered him to be a 'very unusual' person who was 'somewhat erratic' in his communications.[137] He thought the appellant would make a poor witness. He explained this to the appellant and the authority was then handed over. The appellant appeared to read it. Mr Rafferty said the appellant is a person who normally looks at documents and takes his time.[138] He does not recall whether the appellant had any questions. The appellant signed the authority and passed it back through the slot.[139]
[136] Appeal ts 145.
[137] Appeal ts 146.
[138] Appeal ts 146.
[139] Appeal ts 146.
Mr Rafferty maintained that he did not say that if the appellant chose to give evidence he would not be represented. He said that leave would be required from the trial judge to cease acting and there was no basis for doing that.
Mr Rafferty did not prepare the proof of evidence but was aware that there was one. He had a vague recollection of it being signed.[140]
[140] Appeal ts 148.
In cross‑examination Mr Rafferty was asked whether it was a competent choice to deprive the jury of the appellant's evidence. He said that the appellant had an erratic nature based on what he had seen and based on correspondence received from him, which was at times bizarre. In these circumstances he was of the view that the appellant would have made his position worse by giving evidence. Mr Rafferty was sure, based on his usual practice, that he asked the appellant whether he thought he (the appellant) could make his case better by giving evidence or whether he could make it go backwards. He prepared a handwritten document prior to the meeting which outlined relevant inconsistencies so that he could give proper advice to the appellant.[141]
[141] Appeal ts 152.
Mr Rafferty denied any prejudice in regard to the appellant. He said that the advice he gave was given in good faith and with the appellant's best interests at heart.[142]
[142] Appeal ts 152.
Mr Rafferty said that he did not consider that there was a forensic purpose in cross‑examining CD. He had been informed by the prosecutor that CD was a very reluctant witness. She gave evidence that was neutral in that it neither helped nor detracted from the defence case. He took the view that it would be exceptionally dangerous to cross‑examine CD because she might say things which were adverse to the appellant.[143]
[143] Appeal ts 153 - 154.
Mr Rafferty was aware that disclosure was not complete to the extent that a final DNA report had not been produced. He did not have any involvement in discussions about whether the trial should proceed without that report. However, he was aware that the prosecution did not intend to adduce any DNA evidence and he considered that to be advantageous to the appellant. This was in the context where there were some positive results on the preliminary report, including from a high vaginal swab, that concerned him.
Ground 4 - appellant's submissions
The appellant submitted that his lawyers failed to represent him adequately. He referred to the failure to cross‑examine CD, the decision to proceed without full disclosure, and a failure to adduce evidence that would have assisted him. He contended that these failures were significant in that they deprived him of a fair chance of acquittal and resulted in a miscarriage of justice.[144]
[144] Appeal ts 61 - 62.
The appellant's claims regarding his lawyers can be summarised as follows:
1.That they effectively prevented him from giving evidence in his defence by threatening to withdraw their services if he did so.
2.That they failed to properly prepare his defence, in particular by not taking him through the prosecution evidence or preparing a proof of evidence.
3.That Ms Keating failed to seek an adjournment of the trial for the purposes of obtaining a final DNA report, which could then have been adduced in the appellant's defence case.
4.That Ms Keating failed to adequately cross‑examine AB regarding her telephone use, the content of the text messages and the absence of speakers in the shed.
5.That Ms Keating failed to cross‑examine CD.
6.That Ms Keating did not object to irrelevant evidence, being the evidence of Dr Phillips regarding old bruising.
7.That Ms Keating failed to call any defence witnesses, namely the appellant's brother and parents.
Ground 4 - respondent's submissions
The respondent submits that the appellant received a high standard of representation.[145] Counsel did a great deal of work in preparation. The cross‑examination of AB and the closing address were structured and had a clear objective. The approach in regard to the witness CD was eminently sensible. The assumption that the DNA evidence proved the appellant's innocence is specious. It was more preferable to avoid the evidence than insist that it was led and then have to argue that it lacked significance. The proof of evidence shows that counsel properly prepared the defence case. The proof is detailed, and it is inconceivable that it could have been prepared without input from the appellant.
[145] Appeal ts 159 - 160.
As to the allegation that the appellant was prevented from giving evidence, the respondent submits that it is open to counsel to give advice about whether a client should give evidence, provided that the client is aware that the decision is theirs and that choice is freely exercised. It would be wrong for counsel to threaten not to represent the client if they insist on giving evidence. The respondent submits that the court should not find that any such threat was made. The allegation that it was made rests entirely upon the evidence of the appellant, who was not an honest witness. In particular, he was inconsistent regarding whether he read the authority. He made palpably false claims that the authority had been fabricated. The respondent says that it is plain on the evidence that the appellant made a choice, there was no intimidation of any kind and ground 4 is utterly unmeritorious.
Ground 4 - the merits
The principal allegation made by the appellant is that he was prevented from giving evidence. That allegation critically depends upon acceptance of his evidence that he was told that if he gave evidence Ms Keating and Mr Rafferty would not continue acting for him. It is necessary to consider whether his evidence in that regard was credible.
On the appellant's account of the meeting in the detention area he was not told that giving evidence was his choice, rather he was threatened that if he did give evidence his lawyers would not continue to represent him. This claim conflicts with the evidence of Ms Keating, Mr Rafferty and the signed authority. The authority sets out in clear terms that the appellant made the decision not to give evidence.[146]
[146] Affidavit of Roisin Ann Keating, sworn on 8 July 2024, Annexure A.
The appellant's evidence regarding the meeting and how the authority came to be signed was wholly unconvincing. It is inherently unlikely that experienced counsel would make such an obviously inappropriate threat. The appellant's account of the conversation was brief and unaccompanied by any detail as to who spoke and what precise words were used. In contrast, the evidence of Ms Keating and Mr Rafferty was detailed, measured and compelling. Their evidence is also amply supported by the signed authority.
The appellant gave conflicting evidence regarding the authority. He initially claimed he had not read it and then claimed that it was a fabrication. When asked how he could say it was a fabrication when he had not read it, he said that he might have read it. His readiness to change his position left the clear impression that he was not an honest witness. He relied on his signature on the first page being in a place marked for insertion of an address as showing that he did not read the document. However, he had also struck out the relevant words of his election both on the first and second page and signed the second page and completed the date. Given the obvious importance of the document it is inherently unlikely that he would not have read it and his claim that he did not lacked any credibility. His allegation that the authority is a fabrication is scurrilous and baseless.
We are satisfied that the appellant was told that the choice as to whether to give evidence was his to make. He was advised of the advantages and disadvantages of giving evidence. He was provided with the authority, which he read and understood. We accept the evidence of Ms Keating and Mr Rafferty that the appellant decided not to give evidence and communicated that decision to them, both verbally and by signing the authority.
As to the other alleged failings of counsel, the conduct of the trial, including forensic decisions as to what witnesses to call and what questions to ask in cross‑examination were matters that fell to trial counsel to determine. The appellant is bound by the decisions that were made. To succeed the appellant must do more than assert his disagreement with those decisions. He must establish that the decisions made had no objectively justifiable rationale. The appellant's claims fall well short of meeting this standard. Indeed, on any objective analysis the decisions made by counsel were sound and appropriate.
A detailed proof of evidence was prepared. We accept Ms Keating's evidence in that regard. The content and structure of the proof are consistent with it being the product of information obtained from the appellant. The appellant's denial that there had been any detailed discussion with him about the prosecution evidence was inherently unlikely and does not accord with the way in which Ms Keating presented the defence case at trial. The appellant's claim that the proof was fabricated had the hallmarks of a desperate attempt to avoid an inconvenient truth.
There were sound forensic reasons for not delaying the trial to obtain a final DNA report. The preliminary report contained a finding that was adverse to the appellant. The indication by the prosecution that they did not intend to rely on DNA evidence was favourable to the appellant. It was plainly open to conclude that delaying the trial to obtain a final report was not in the interests of the appellant. Even in the unlikely event that a final report was entirely negative, it could not have assisted the appellant. The absence of DNA could not, in the circumstances of this case, have proved innocence or created a reasonable doubt as to guilt.
The cross‑examination of AB was thorough and sensibly focussed on provable inconsistencies. The matters that the appellant has submitted should have been put to AB were contestable and ran the risk of producing answers that would be contrary to the appellant's interests. For example, the text messages did not establish that AB had made false allegations of sexual assault against another person and putting such a suggestion was likely to produce a strong rejection and reflect unfavourably on the appellant.
There were objectively sound forensic reasons for not cross‑examining CD. Her evidence was that she had no recollection of the night. That was consistent with AB's evidence that CD appeared to be passed out on the bed. Her evidence was neutral. The danger in pressing her was that she might be prompted to recall matters that were not in the appellant's favour.
The failure to object to the evidence of the bruises was not put to Ms Keating or Mr Rafferty. There are, however, objectively sound forensic reasons why this evidence would not be objected to. Those reasons are referred to at [125]. In summary, there was some benefit to the appellant in evidence that the only injuries to AB were old bruises and an abrasion that were unlikely to have resulted from the incident. Any risk of prejudice arising from this evidence was negligible in circumstances where there was no suggestion that the bruising related to the incident. That negligible risk was removed by the directions given by the trial judge that this evidence was neutral.
It is far from clear that the witnesses who the appellant claimed should have been called in his defence, namely his brother and parents, had any relevant evidence to give. There are no witness statements from them and the appellant's suggestion that they may have heard something was entirely speculative. We accept the evidence of Ms Keating that the appellant never suggested that these people be called as witnesses. The appellant conceded that he did not make such a suggestion.
This ground of appeal is entirely without merit. It has no reasonable prospect of succeeding. The evidence was received provisionally. The evidence of the appellant falls well short of establishing any miscarriage of justice. The applications to adduce additional evidence should be refused. Leave to appeal on this ground should also be refused.
Ground 5 - appellant's submissions
The appellant submits that there was a miscarriage of justice because AB gave evidence that the appellant offered her methylamphetamine and this created a risk of impermissible reasoning on the part of the jury. In essence, the appellant says that the evidence was bad character evidence that had no relevance to the charges.
Ground 5 - respondent's submissions
The respondent notes that AB was cross‑examined on the offer of methylamphetamine and that it was the defence case that inconsistency by AB in regard to drug use was one of the matters that bore on her credibility generally. It was not put to AB that the offer had not been made.
The trial judge gave directions to the jury regarding putting aside any possible prejudice. This included making a specific reference to drugs. His Honour told the jury that some of them may have particular views about drugs and that they must put such views aside and not be prejudiced about a particular witness because they use drugs. Further, there was no suggestion by the prosecution that the use or supply of drugs generally made the commission of offences of the type charged more likely.
Ground 5 - the merits
The evidence that the appellant offered AB methylamphetamine was relevant as part of the context in which the offences were alleged to have occurred. The evidence was not objected to; indeed it was relied on by the defence in cross‑examination. Having regard to the directions given by the trial judge, there was no perceptible risk that the jury may have misused the evidence.
This ground has no reasonable prospect of succeeding and leave in respect of it should be refused.
Conclusion and orders
After the final hearing of the appeal the appellant sent a letter to the court dated 12 September 2024 and four letters received by the court between 6 December 2024 and 11 December 2024. Though the appellant did not have leave to make further written submissions, the matters raised in those letters and the attachments have been considered in the preparation of these reasons. In essence, the letters and the attachments expand upon the appellant's contention that the complainant lacked credibility and make other allegations about the fairness and integrity of his prosecution and the trial process. Nothing in the letters or the attachments causes us to doubt the correctness of the conclusions reached in these reasons.
We would make the following orders:
1.The applications to adduce additional evidence are refused.
2.Leave to appeal is refused.
3.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MO
Associate to the Honourable Justice Hall
30 DECEMBER 2024
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