Majinski v The State of Western Australia
[2013] WASCA 10
•18 JANUARY 2013
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: MAJINSKI -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 10
CORAM: MARTIN CJ
BUSS JA
MAZZA JA
HEARD: 17 OCTOBER 2012
DELIVERED : 18 JANUARY 2013
FILE NO/S: CACR 174 of 2011
BETWEEN: JOHN MAJINSKI
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :GOETZE DCJ
File No :IND 356 of 2011
Catchwords:
Criminal law - Appeal against conviction - Indecent dealing and sexual penetration - Allegation of coaching by prosecutor - Distinction between proofing and coaching - Whether complainant's evidence was 'tainted' by coaching
Legislation:
Criminal Procedure Act 2004 (WA), s 95(9)
Evidence Act 1906 (WA), s 21
Result:
Leave to appeal on ground 1 granted
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr B Soactar
Respondent: Mr D Dempster
Solicitors:
Appellant: MGB Legal
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
C v Minister of Community Welfare (1989) 52 SASR 304
Day v Perisher Blue Pty Ltd [2005] NSWCA 110; (2005) 62 NSWLR 731
Hardwick v The State of Western Australia [2011] WASCA 164; (2011) 211 A Crim R 349
HKSAR v Tse Tat Fung [2010] HKCA 156; [2010] HKEC 815
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Mancorp Pty Ltd v Baulderstone Pty Ltd (1991) 57 SASR 87
R v Momodou [2005] 2 All ER 571; [2005] 1 WLR 3442
R v Pachonick [1973] 2 NSWLR 86
R v Richardson [1971] 2 QB 484, [1971] 2 All ER 773 (CA)
R v Warren (1994) 72 A Crim R 74
Re Equiticorp Finance Ltd; Ex parte Brock (No 2) (1992) 27 NSWLR 391
SJX v The State of Western Australia [2010] WASCA 243
Worley v Bentley [1976] 2 All ER 449
MARTIN CJ:
Summary
The appellant, John Majinski, appeals from his conviction after trial by jury on one count of indecently dealing with a child under the age of 13 years, and on another count of sexually penetrating the same child. He submits that his trial miscarried, and the convictions should be set aside for two reasons. First, it is said that the complainant child was improperly coached by the prosecutor with the result that his evidence was tainted and unreliable. Second, it is said that a failure to test saliva found on the complainant's underpants for DNA gave rise to a miscarriage of justice. For the reasons which follow, there is no substance in either ground and the appeal should be dismissed.
The prosecution case
The appellant was tried on an indictment which alleged three counts of indecent dealing with, and one count of sexual penetration of, a child under the age of 13 years. All offences were alleged to have been committed against the same child, who was 12 years old at the time, and on the same date and at the same place, namely, at a suburban swimming pool on 28 November 2009.
The prosecution case was that after finishing his exercise in the swimming pool, the appellant entered the internal change room and showers at the pool in the cubicle opposite the complainant, where he commenced talking to the complainant. The State alleged that during this conversation the appellant bent over, showed the complainant his penis, and fondled his penis in the presence of the complainant. These alleged events were the subject of count 1 on the indictment.
The State alleged that the appellant then invited the complainant to accompany him to the outside showers where he said the water was warmer. The State alleged that the complainant was curious and followed the appellant to the outside change room and showers. The State alleged that upon entering the showers, the appellant initially entered the third shower cubicle furthest from the change room door, whilst the complainant entered the cubicle closest to the change room door initially, but then moved to the centre cubicle after the appellant turned on the water in that cubicle for the complainant. The State alleged that the appellant entered the cubicle occupied by the complainant on a number of occasions, allegedly to test the water temperature, and on one such occasion touched the complainant's penis with his own (count 2), and on another occasion touched the complainant's penis with his hand (count 3). The State further alleged that later the appellant pulled the complainant into his own cubicle and engaged in an act of fellatio (sexual penetration - count 4). The State alleged that the complainant then put on his underpants and left the shower and change rooms, followed shortly after by the appellant. The State alleged that the complainant reported the incident to another user of the pool shortly thereafter, who in turn reported the incident to the administrators of the pool.
The complainant's interview with police
On 30 November 2009, the complainant participated in a visually‑recorded interview with police.
The complainant stated that he went into the showers in the internal change room. Whilst in the showers, the complainant said the offender asked him if he was going to the outside showers. The complainant said he replied that he 'might', and then the offender left the showers and he left shortly after. The complainant said that he went into the outside showers and when he entered the offender was standing behind him, and convinced the complainant to go into the shower next to him. The complainant alleged that:
[W]hat happened was he then kept coming into my one. Every second he'd pop out and then come back in the next second and then he'd get closer and closer every time and then eventually when he got really close he leant his bottom part of his body forward and he touched me with his genders on to mine (interview ts 3).
He said that '[He] grabbed my hand and started to pull me into his shower and then he got on his knees and started to hold me a little on the legs so I couldn't move and he started to put his mouth to my genders and then I moved backwards and walked … out of the shower quickly' (interview ts 4). The complainant alleged that the offender 'put his mouth all the way on - all the way over my genders and then moved his head backwards and forwards' (interview ts 27). After leaving the shower, he said he tried to get the attention of the other men in the showers, eventually chasing down a patron of the pool to tell him what happened.
He described the offender as a 'little fat', and stated that he '[d]idn't have too much hair on the top of his head' and had 'sort of big bulky glasses that looks [sic] like trans lenses… [h]e had a bit of a dark voice but not too dark' (interview ts 7). The offender's hair colour was described as being a mix of brunette and red, and the complainant said that he could not tell which country the offender was from by the way he spoke, saying '[h]e sounded like me' (interview ts 8). He described the offender as having 'blackish' hair all over his front. The complainant also confirmed that the offender did not have any tattoos (interview ts 9).
The CCTV footage
The swimming pool was equipped with closed‑circuit television recording equipment. Recordings made on that equipment showed the appellant entering and leaving the inside change rooms on the day in question, followed shortly thereafter by the complainant. The appellant and the complainant are seen to enter the external change rooms. The recording later shows the complainant leaving the outside change rooms, followed shortly thereafter by the appellant.
The appellant's recorded interview with police
On 9 April 2010, the appellant was interviewed by police. During this interview, he said that he was present at the pool, and that he went into the inside showers and saw a young boy with an erect penis, who struck up a conversation with him, but he then left those showers because he needed more oxygen (he has a lung condition) and the boy followed him (interview ts 12 ‑ 13, 16). The appellant said that whilst in the outside showers, the boy entered the shower next to him and started complaining about the water flow and temperature. The appellant said he entered the boy's shower and checked on the water, and then returned to his shower cubicle. After returning to his shower cubicle, he said that the boy entered his cubicle without any prompting, but that no misconduct occurred whilst the boy was in the shower. The appellant denied any touching took place at all, except when he checked the water temperature when he might have touched the boy's shoulder.
The proofing session and the stay application
A hearing for the pre‑recording of the complainant's cross‑examination was scheduled to take place on 2 June 2011. In preparation for that hearing, a prosecutor met with the complainant on 26 May 2011. Following that meeting, the prosecutor wrote to defence counsel by letter dated 26 May 2011. It appears that the letter followed a telephone conversation between counsel.
The letter first deals with proposed editing of the visually‑recorded interview of the complainant. The letter then advises that the prosecutor met with the complainant earlier that day, when his visually‑recorded interview was played to him. The letter then sets out further information that was given by the complainant to the prosecutor during the course of their meeting. Generally speaking, the information amplified the statements made by the complainant during his earlier recorded interview.
The letter further advised that during the meeting, the complainant created or marked documents depicting the lay‑out of the area in which the offences were allegedly committed.
The letter further advised that the complainant was shown a number of photographs which were in the prosecution brief, and identified his response at the time he was shown each photograph. It is clear from that portion of the letter that the complainant was shown a photograph of the appellant, to which he replied 'that's him. He did have a tattoo'. There are a number of photographs of the appellant in the prosecution brief which show that he has a relatively full head of dark hair, and a number of tattoos on each arm.
There is nothing in the text of the letter which suggests that the prosecutor suggested or indicated to the complainant the answers that he should give during their meeting. However, following receipt of the letter, counsel acting on behalf of the appellant brought an application for a permanent stay of proceedings on the basis that the complainant had been coached by the prosecutor, with the result that his evidence was irrevocably tainted and suspect.
The application for a permanent stay, and the hearing for the pre‑recording of the complainant's cross‑examination came before McCann DCJ. Prudently, the cross‑examination of the complainant was pre‑recorded before the application for a permanent stay was ruled upon. That course enabled an assessment to be made of whether and, if so, to what extent, the meeting between the prosecutor and the complainant had influenced the evidence given by the complainant.
During the course of his evidence, the complainant testified that at no point during the proofing session did the prosecutor tell him what to say, and that the prosecutor let him answer questions by himself (ts 313). Further, notwithstanding that the complainant identified the appellant from a photograph which showed tattoos on his arms and depicted him as having a full head of dark hair, the complainant adhered to the statements he had made during his earlier interview with police to the effect that the offender was balding and had no tattoos.
During cross‑examination, the complainant stated that he had not had an erection during the incidents in question. The letter from the prosecutor to defence counsel dated 26 May 2011 advised that during their meeting, the complainant had stated to the prosecutor that he did not remember whether he had an erection. The complainant was cross‑examined on this apparent inconsistency.
In his ruling, McCann DCJ was critical of the prosecutor. He inferred from the wide‑ranging nature of the discussion which took place between the prosecutor and the complainant that the prosecutor's purpose was to prepare the complainant for cross‑examination. He characterised what had occurred as 'coaching'. However, he concluded that nothing done by the prosecutor had in fact tainted the evidence given by the complainant. McCann DCJ observed that identification was not likely to be in issue - the appellant and the complainant were shown on the CCTV footage as being in the same vicinity at approximately the same time, and the appellant admitted an interaction with the complainant during the course of his interview with police. While it was, of course, possible that revelation of the photograph of the appellant to the complainant may have created a view that the complainant would alter his description of the offender, the complainant had in fact adhered to his earlier evidence which was inconsistent with the photograph, and with the actual appearance of the appellant. Accordingly, the application for a permanent stay was dismissed.
The trial
The appellant was tried before Goetze DCJ and a jury. The State relied upon the video‑recorded evidence of the complainant, including his cross‑examination, the video‑recorded interview of the appellant, the CCTV footage, and a body of forensic evidence.
The forensic evidence
After the incident, the complainant was escorted to hospital where swabs were taken, including from the glans of his penis. The complainant's clothes and underpants were sent with the swabs to the laboratories for testing. The glans penis swab demonstrated a mixed DNA profile, consistent with having come from at least two individuals. The major component of the profile matched the complainant's profile. There was not enough information to determine the other contributor to the profile. The swab gave a weak positive reaction in a confirmatory chemical test for human saliva. The prosecution alleged that this was consistent with the complainant's evidence that the appellant placed his mouth over the complainant's penis. Ms Chin, a forensic scientist from the laboratories, gave evidence at the trial. She confirmed that at the laboratory, the underpants were examined under an alternative light source to detect biological fluids (ts 658). The testing revealed staining on the inside crotch area. Ms Chin said that the stains were excised, by cutting them off the underpants, and were tested for human saliva (ts 660). The stain on the underpants tested gave a weak positive reaction in a confirmatory chemical test for human saliva. The cut out areas were not, however, tested for DNA (ts 660, 752). A separate sample of the underpants, also from the inside crotch area, was submitted for DNA analysis. A mixed DNA profile, consistent with having come from at least three individuals, was recovered. The complainant could not be excluded as a contributor to that DNA, but the appellant was excluded from contributing to the DNA profile. The complainant also had swabs taken from his left lower leg, which excluded the appellant as a contributor to the profile, and his penis, scrotum and urine, which matched the complainant's DNA profile, with the penile swab demonstrating a negative reaction in a confirmatory chemical test for human saliva.
The prosecution argued that the positive reaction to saliva was consistent with the act of fellatio, and confirmed the complainant's version of events. Conversely, the defence asserted that the saliva was from the complainant masturbating in the showers and using his own saliva for this purpose.
The DNA evidence was summarised by the trial judge (from ts 750 ‑ 755). In relation to the underpants, the trial judge said the following:
[The stain on] the underpants … tested positive for saliva. But they were not tested for DNA. So we don't know anything more than [that] there's a positive reaction … to saliva, but we don't know whose DNA might have been in that saliva.
The balance of the front crutch area of the inside of the underpants was - samples were taken in the way that the expert, Ms Chin, told you, with the scraping. And that that returned a mixed DNA profile from the tape-lift of at least three individuals. The complainant could not be excluded, but [the appellant] was definitely excluded. So what [the appellant's counsel] said to you is that where we know where there was sufficient recovered, [the appellant] was excluded from the left lower leg and from the underpants.
Now, what the State says, is that the presence of saliva on the underpants is consistent with [the complainant's] evidence. The defence says that that saliva doesn't help the State case. The DNA excludes the accused and the saliva stains were not tested so we do not know whose DNA that was. And of course what I say to you is, and I've said to you earlier, you can't guess or speculate about matters not in evidence.
The defence points out to you that the left lower leg and the DNA on the underpants though, did positively, where DNA was tested, where an amount was able to be established as the minor component, additional to the complainant's major component, that minor component excluded the accused.
Now, the State as I've mentioned to you earlier, asks you to infer that the saliva underneath the complainant's foreskin is [the appellant's]. The defence says you should not draw that inference. So I want to take you through the evidence step by step so that you appreciate what we have.
The State case is that the accused kneeled down in front of the complainant. He pulled back the complainant's foreskin. He placed his head over - or his mouth over the complainant's penis with the foreskin pulled back and moved his head backwards and forwards.
And the State says we know from Ms Chin at PathWest that there is this saliva found underneath the plaintiff's - underneath the claimant's - sorry, I'll say it again - underneath the complainant's foreskin. The State says that you can draw the inference that that saliva is from the accused. So too, there were the stains on the underpants. The State says you can infer that from the penis, the saliva got onto the underpants.
Now, that exact scenario is one situation, but the scenario that we have in this case, where what [the appellant's counsel] said to you is that the boy went into the showers; he's turned the taps on; he's touched things with his hands. He may have picked up somebody else's DNA from those taps and then masturbated himself. And that would explain the three contributors to the DNA on the underpants and the two contributors to DNA in the foreskin area. But that precise scenario of how there might be transference in a shower with water, with steam, was not put to the expert. And so you don't have any comment from the DNA expert as to how the particular conditions of the shower room might or might not affect transference of DNA left behind on shower taps or shower walls or on anything in the showers.
[The appellant's counsel] also said to you that the complainant was masturbating and used his own saliva and that would explain how there is the presence of saliva under his foreskin.
So you have therefore from [the appellant's counsel]'s submission, how there might be three sources of DNA on his underpants and two on his penis. And how there might be saliva on his foreskin which has nothing to do with he accused. But in that regard, what I've mentioned to you is [the appellant] said only that the boy had an erection and was touching himself or playing with himself, or playing with his penis.
There was no evidence before you and the boy was not asked, if he was actually masturbating as distinct from touching himself or playing with himself. There may or may not be a technical difference there. It's a matter for you to appreciate. There is no evidence, and the boy was not asked, if he used saliva from his own mouth when he was touching himself or playing with his penis (ts 752 ‑ 754). (emphasis added)
In his directions, the trial judge also noted:
And there's another aspect of it that we do know that the DNA from the underpants - the major component is consistent with the complainant's DNA. And we do know that [the appellant] is excluded from being a DNA contributor to the underpants. But it may be and what [the appellant's counsel] would say to you is that if the DNA in that dotted area around the front crutch is the major component from the complainant, then that could be his saliva as well (ts 771).
The appellant did not give evidence. Following deliberation the jury returned verdicts of not guilty on counts 1 and 2, and verdicts of guilty on counts 3 and 4, being the allegation of indecent dealing by touching the complainant's penis with the appellant's hand, and of sexual penetration by fellatio.
The grounds of appeal
Ground 1 of the appeal is expressed in terms broad enough to encompass the proposition that the jury's verdict was unsafe or unsatisfactory because, on the whole of the evidence, it was not open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (see M v The Queen [1994] HCA 63; (1994) 181 CLR 487). However, two particulars are given of the ground, being confined to firstly, the alleged coaching of the complainant by the prosecutor prior to the pre‑recording of his cross‑examination, and secondly, the failure to test saliva found on the complainant's underpants for DNA. During argument, counsel for the appellant confirmed that the ground was limited to those particulars, and was not intended to invoke the principles enunciated in M v The Queen, or to necessitate a general review of the adequacy of the evidence to sustain the convictions recorded (appeal ts 10 ‑ 11). The second ground of appeal alleges that McCann DCJ erred in failing to grant the permanent stay sought, and to that extent, overlaps with the first particular of ground 1. Leave to appeal has been granted in respect of ground 2, and the question of leave with respect to ground 1 was referred to the hearing of the appeal.
In essence, the questions in the appeal come down to whether there was a miscarriage of justice by reason of the events which took place during the prosecutor's meeting with the complainant on 26 May 2011, or by reason of the failure to test one of the samples taken from the underpants for DNA, or by reason of a combination of both.
The allegation of coaching
The submissions advanced on behalf of the appellant and, with respect, the views expressed by McCann DCJ fail to properly differentiate between the legitimate proofing of a witness in advance of a hearing, and improper 'coaching'.
The difference between proofing and coaching
In R v Momodou [2005] 2 All ER 571; [2005] 1 WLR 3442, Judge LJ, in delivering the judgment of the Court of Appeal of England and Wales, said:
There is a dramatic distinction between witness training or coaching, and witness familiarisation. Training or coaching for witnesses in criminal proceedings (whether for prosecution or defence) is not permitted. This is the logical consequence of the well-known principle that discussions between witnesses should not take place, and that the statements and proofs of one witness should not be disclosed to any other witness: see R v Richardson [1971] 2 QB 484, R v Arif The Times, 22 June 1993, R v Skinner (1993) 99 Cr App R 212 and R v Shaw [2002] EWCA Crim 3004. The witness should give his or her own evidence, so far as practicable uninfluenced by what anyone else has said, whether in formal discussions or informal conversations. The rule reduces, indeed hopefully avoids, any possibility that one witness may tailor his evidence in the light of what anyone else said, and equally, avoids any unfounded perception that he may have done so [61].
Whether preparation amounts to 'coaching' is inevitably a matter of degree, and is dependent on the facts: Re Equiticorp Finance Ltd; Ex parte Brock (No 2) (1992) 27 NSWLR 391, 395 (Young J). It is clear that the practice of witnesses reading their statements prepared contemporaneously with, or soon after, the incident in respect of which he or she is asked to testify prior to the hearing, or being taken through it by the person to whom it was made, is generally proper: R v Richardson [1971] 2 QB 484, [1971] 2 All ER 773 (CA); R v Pachonick [1973] 2 NSWLR 86; Worley v Bentley [1976] 2 All ER 449; Mancorp Pty Ltd v Baulderstone Pty Ltd (1991) 57 SASR 87, 92 (Debelle J); see also Heydon J D, Cross on Evidence (8th Aust ed, 2010) [17170]. Moreover, it may be appropriate for solicitors or counsel for a party who is being called to give evidence to confer with the witness prior to giving evidence; in Re Equiticorp Finance Ltd; Ex parte Brock, Young J noted that:
It is clear that a witness might confer with his or her solicitor or counsel, or the solicitor or counsel for the party calling the witness, and that during such conference the solicitor or counsel concerned may give the witness advice. That advice may certainly include:
(1)advice that the witness should refresh his or her memory from contemporaneous documents;
(2)directing the witness' mind to the point about which questions may be asked;
(3)giving the witness a sketch of court procedure;
(4)directing the witness' attention to points in his or her evidence which appear to be contradictory or fantastic;
(5)reminding the witness to bring to court all relevant documents;
(6)advising the witness as to the manner of answering questions (for example, 'In cross-examination listen to the question, just answer the question asked with as concise an answer as possible'); and
(7)giving advice as to appropriate dress and grooming.
There may be other permitted areas (395).
Indeed, it has to be observed that in some situations, a brief discussion with a witness of his proposed evidence to clarify some point of ambiguity or uncertainty may be desirable in promoting the integrity and accuracy of the trial process: HKSAR v Tse Tat Fung [2010] HKCA 156; [2010] HKEC 815 [73].
Questioning of a witness moves beyond 'proofing' to impermissible 'coaching' when the witness' true recollection of events is supplanted by another version suggested by the interviewer or other party, whether by repetitive reading of a statement to the point where their testimony is mere regurgitation or by otherwise influencing the witness: HKSAR v Tse Tat Fung; R v Momodou. A solicitor or counsel should not advise a witness as to how to answer a question: Re Equiticorp Finance Ltd; Ex parte Brock. By way of example, in Day v Perisher Blue Pty Ltd [2005] NSWCA 110; (2005) 62 NSWLR 731 the defendant's solicitors prepared an extensive document for the defendant outlining 'possible areas of questioning, (to be passed on to the respective witnesses)' and included suggestions as to appropriate responses which would be in line with the defendant's case [22]. This conduct, alongside the holding of a pre-trial conference by the practitioner in which multiple witnesses jointly discussed evidence to be given at trial, was held to seriously undermine the trial and 'tainted' the defendant's case [182].
It is well established that the danger of suggestion is acute when the witness being interviewed is a child, and that for this reason it is particularly important that persons investigating sexual offences involving children avoid questions that are leading in substance: C v Minister of Community Welfare (1989) 52 SASR 304; Hardwick v The State of Western Australia [2011] WASCA 164; (2011) 211 A Crim R 349 [79]; SJX v The State of Western Australia[2010] WASCA 243.
By way of example, in R v Warren (1994) 72 A Crim R 74, the complainant was the 5‑year‑old son of the appellant's girlfriend. After the boy had initially been reluctant to identify the person responsible for inflicting his injuries, the police officer suggested to the boy during questioning that the appellant was responsible. The boy's mother, during a sustained interrogation, made it clear that she wanted the boy to identify the appellant. The boy gave only the bare facts of the assaults, without any of the details which it might be expected could have been recalled. He conceded that he had identified the appellant only because he knew that both his mother and father wanted him to identify the appellant as the culprit, and that it was only because of what his mother and father had said to him that (a) he had decided that it must have been the appellant, and (b) he had told his father that it was the appellant who had injured him. The probability that the boy's evidence was contaminated by suggestion put to him by the police officers and his mother and father was so great that little if any weight could be placed on his eventual identification of the appellant. Accordingly, the conviction was held to be unsafe and unsatisfactory.
In proofing sessions involving child witnesses, prosecutors must ensure that through their questioning, they do not encourage the child to supplant their true recollection of events for the purpose of enhancing the presentation of the State's case. This is of particular importance when the prosecution alleges that a sexual offence was committed against the child, as the credibility of the complainant's testimony is often a significant factor in determining the guilt of the accused. If a prosecutor's interview with the complainant goes beyond proofing to impermissible coaching, and the complainant's evidence is fundamentally 'tainted' through the session, this may undermine the ability of an accused person to have a fair trial: HKSAR v Tse Tat Fung; R v Momodou.
In cases in which there is an evidentiary foundation for the assertion that the evidence of a witness has been tainted by reason of suggestions made, or discussions with others, it may be appropriate for a trial judge to give an instruction or warning to the jury: Hardwick v The State of Western Australia [95].
Did the prosecutor coach the complainant?
As I have noted, there is nothing in the letter from the prosecutor of 26 May 2011 which creates an inference to the effect that the prosecutor suggested or indicated to the complainant the answers that he should give during their meeting. On the contrary, the inference which I would draw from the terms of the letter is to the effect that the complainant volunteered information when presented with his earlier recorded interview, and in addition, was asked a number of specific questions which are recorded in the text of the letter. All the questions recorded in the letter are put in a non‑leading way, with the possible exception of the question relating to whether the complainant had an erection while he was in the showers. However, as I have noted, in answer to that question the complainant responded in terms to the effect that he could not remember whether or not he had an erection - an answer which was inconsistent with the evidence he later gave in cross‑examination, and which was used by counsel for the appellant to impugn the complainant's credibility.
Another portion of the letter sets out the various photographs which were shown to the complainant and his response to those photographs. Again, that portion of the letter does not give rise to any inference to the effect that answers or comments were suggested to the complainant by the prosecutor.
The inferences which I would draw from the terms of the letter are consistent with the complainant's direct evidence to the effect that the prosecutor did not tell him what to say, and that she had let him answer questions by himself (ts 313).
It is clear from the letter that the topics covered during the meeting between the complainant and the prosecutor were wide‑ranging and comprehensive. That inference is reinforced by the fact that the complainant was shown his earlier recorded interview in full. However, consistently with the authorities to which I have referred, there is nothing improper in a prosecutor showing to a prospective witness the recording of an earlier interview with that witness. Nor is there anything improper in a prosecutor inviting a witness to comment or respond to questions upon aspects of the evidence that he or she is to give. The boundary of impropriety is only crossed if the course taken by the prosecutor has the effect of suggesting to the witness the evidence that should be given, either expressly or implicitly. Implicit suggestion can occur in a variety of ways, including by the asking of questions that are leading in substance or perhaps by placing inappropriate emphasis upon aspects of the evidence to be given, or perhaps by inappropriate repetition of the statements previously made by the witness, thereby implicitly suggesting that it was important for the witness to adhere to those statements. For the reasons I have given, there is no inference to be drawn from the prosecutor's letter to the effect that the boundary was crossed during her meeting with the complainant (save in one respect to which I will refer) and there is direct evidence from the complainant to the contrary.
The prosecutor did, however, act inappropriately in one aspect of her meeting with the complainant, and that was when she showed to the complainant a photograph of the appellant. The prosecutor ought to have been aware that the complainant had given a description of the appellant which did not correspond with the appearance depicted in the photograph in a number of respects, most particularly being the complainant's description of the offender's hair, and his assertion that he did not see any tattoos on the offender. Showing a photograph of the appellant which was inconsistent with statements earlier made by the complainant was fraught with the risk that the complainant would modify his description of the offender so as to correspond with that depicted in the photograph. However, as it happens this was a risk which did not eventuate, with the result that defence counsel was able to take whatever advantage could be taken from the discrepancy between the complainant's description of the offender, and the appearance of the appellant, in cross‑examination and in submissions to the jury. It is clear that the appellant did not in fact suffer any prejudice as a consequence of the complainant being shown his photograph during the meeting with the prosecutor.
For these reasons, I reject the submission to the effect that the prosecutor coached the complainant. Although it was not appropriate for the prosecutor to show the complainant a photograph of the appellant, in the result, the prosecutor's actions in this respect had no impact on the evidence given by the complainant, and caused no prejudice to the appellant. Ground 2 of the appeal should be dismissed, together with that part of ground 1 of the appeal which relies upon the assertion that the complainant was coached by the prosecutor.
The failure to DNA test the saliva
The remaining aspect of ground 1 of the appeal concerns the failure to test for DNA a portion of the underpants on which saliva was detected.
The written and oral submissions advanced in support of this aspect of ground 1 are very difficult to follow. No relevant legal principle is identified as the basis for the submission that the appellant's conviction should be set aside because of the failure to test a sample for DNA. It is not said, for example, that there was evidence in the possession of the prosecution which was not disclosed to the defence. Rather, the argument is put on the basis that the evidence in the form of DNA testing of a particular sample does not exist. However, no legal principle to the effect that the prosecution was under a duty to gather that evidence has been identified, especially in circumstances in which there was no request on behalf of the appellant prior to trial for that evidence to be gathered, nor any questions directed to the failure to gather that evidence during the course of the trial, nor any attempt made to obtain access to the sample so as to undertake the testing prior to the hearing of the appeal.
Doing the best I can to understand the submission that is put on behalf of the appellant on this topic, it seems to come down to the proposition that if the particular sample had been tested for DNA, it might have excluded the complainant as a contributor to the saliva, which could have been forensically advantageous to the appellant's case. The first obvious difficulty with this submission is that it is entirely speculative. It is also possible that if the sample had been tested for DNA, the appellant might have been found to be a contributor to that sample, which would have been extremely prejudicial to his case, indeed quite probably determinative. This may explain why defence counsel neither before nor during the trial complained with respect to the failure to test the particular sample for DNA, nor was the forensic scientist cross‑examined as to any reason why the sample was not examined for DNA. Given the course adopted on behalf of the appellant before and during the trial, and the failure to make any attempt to obtain access to the sample so as to undertake testing prior to the hearing of the appeal, the appellant cannot now complain that further investigations, if undertaken, might have produced evidence which strengthened his case, when it is equally possible that the investigations, if undertaken, may have been extremely damaging to the appellant's case.
As I have noted, the trial judge gave thorough and comprehensive directions to the jury with respect to the forensic evidence, including the
DNA tests. The jury were directed clearly and unequivocally that the sample of the underpants which was tested for DNA excluded the appellant as a contributor, although saliva was found within that sample. The jury were expressly directed that the other sample of the underpants on which saliva was found had not been tested for DNA, and that they should not speculate as to what would have happened if that sample had been tested. Those directions were entirely appropriate on the evidence that was adduced, and reinforced to the jury the fact that such DNA evidence as there was did not implicate the appellant. Further the trial judge expressly directed the jury that as the DNA testing showed the complainant was a contributor to a sample which included saliva, it may well be the case that the saliva on the other portion of the underpants which was not DNA tested came from the complainant as well.
Generally speaking, the directions given by the trial judge on the subject of the forensic evidence appropriately reflected the fact that the evidence was not unfavourable to the appellant. Having not instigated testing which may have resulted in additional evidence being adduced, and having not challenged at or prior to trial the forensic scientist's failure to test the sample for DNA, the appellant cannot now challenge this conviction on the basis of an entirely speculative proposition to the effect that such evidence, if it had been gathered, would have been exculpatory.
For these reasons, that aspect of ground 1 which relies upon the failure to undertake DNA testing must be dismissed.
Conclusion
As leave to appeal has been granted in respect of ground 2, which significantly overlaps with ground 1, leave to appeal should also be granted in respect of ground 1. However, both grounds and the appeal should be dismissed.
BUSS JA: I agree with Martin CJ.
MAZZA JA: I respectfully agree with the Chief Justice, generally for the reasons that he gives, that ground 2 and that part of ground 1 which relies upon the assertion that the complainant was coached by the prosecutor should be dismissed.
I respectfully agree with the Chief Justice, for the reasons he gives, that the aspect of ground 1 which relies upon the failure to undertake DNA testing must be dismissed.
I wish to add the following comments of my own. There can be no legitimate objection to the proofing of someone who may or will give evidence at a trial. Coaching a witness, whether by the prosecution or the defence, is prohibited. This prohibition, as it applies to the defence, of course includes the accused.
Because a prosecutor has a continuing disclosure obligation (s 95(9) of the Criminal Procedure Act 2004 (WA)), any additional evidential material relevant to the charge that results from proofing must be disclosed to the defence. So, for example, where a prospective witness changes or adds, in any material way, what has been said in a prior statement, that change or addition must be disclosed. Any such disclosure must be made as soon as practicable and in writing. The additional disclosure should be in the form of a statement signed by the witness so that it may be, if necessary, proved as a prior inconsistent statement if its making is not distinctly admitted: s 21 of the Evidence Act 1906 (WA).
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