McDonald v The State of Western Australia - [2023] WASCA 95

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   MCDONALD -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 95
CORAM:   MAZZA JA
VAUGHAN JA
HALL JA

HEARD:   19 MAY 2023
DELIVERED          :   9 JUNE 2023
FILE NO/S:   CACR 89 of 2022
BETWEEN:   GLENN ANDREW MCDONALD
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   STEVENSON DCJ
File Number            :   IND 15 of 2021

Catchwords:

Criminal law - Appeal against conviction - Where credibility of appellant at issue - Where appellant cross-examined on a document wrongly thought to be a record of a prior inconsistent statement - Where no direction given to jury to ignore evidence of the document - Whether cross-examination likely to have had an adverse effect on the assessment of the appellant's credibility - Whether miscarriage of justice resulted

Legislation:

Evidence Act 1906 (WA), s 21, s 22

Result:

Leave to appeal on ground 2 granted
Appeal allowed
Conviction on counts 5 -11 set aside and retrial ordered

Category: B

Representation:

Counsel:

Appellant	:	Mr S R Rafferty & Mr A Plenderleith
Respondent	:	Mr R G Wilson

Solicitors:

Appellant	:	Aaron Plenderleith Legal
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

JUDGMENT OF THE COURT:

The appellant was tried on an indictment containing 11 counts of indecently dealing with a child over the age of 13 years and under the age of 16 years contrary to s 321(8)(a) of the Criminal Code (WA). He was acquitted of counts 1 ‑ 4 on the indictment and convicted of counts 5 ‑ 11. He seeks leave to appeal against his conviction.
There are two grounds of appeal. They both relate to the same issue. The defence case was that none of the indecent acts had occurred, but that on one occasion the complainant had asked the appellant to show her his penis. He did not do so but claimed that he contacted a telephone counselling service and spoke to a counsellor about what had occurred. In cross-examination it was put to the appellant that a document produced by the relevant counselling service was inconsistent with his account of what had been discussed. It was subsequently established that the record in question did not relate to the conversation with the appellant. The primary issue for determination is whether the cross-examination so significantly and unfairly undermined the credibility of the appellant as to result in a miscarriage of justice.
For the reasons that follow, in our view, the appeal must be allowed. It is reasonably possible that the jury would have concluded that the appellant had been untruthful in his evidence regarding his conversation with a counsellor and that this would have materially affected the jury's assessment of his overall credibility and, in particular, the credibility of his denials of the alleged indecent acts. There is a perceptible risk that this affected the verdicts on counts 5 to 11. A miscarriage of justice has been established. The convictions must be set aside and a retrial ordered.

The prosecution case

The prosecution case was that the appellant was a family friend of the complainant's parents, G and N. The appellant had known the complainant since she was 2 years old and their relationship was likened to that of an uncle and niece. At the time of the relevant incident the complainant was aged 14 years old.[1]
[1] ts 160.
On 24 January 2020 the appellant drove the complainant to Champion Lakes. It was alleged that he parked the car in a less busy area and told the complainant to get in the back seat with him. He then told her to sit on his lap (count 1). He lifted up his T‑shirt and her T‑shirt and hugged her, pressing his bare chest against her bare chest (count 2). He pulled her T‑shirt down and she turned around to the front of the car. As she did this he pulled his penis out of his pants thereby exposing it to her (count 3). She told him that she had her period that day and so he put his penis back into his pants and again lifted her T‑shirt. He then sucked her breasts (count 4) and kissed her on the mouth (count 5). He told the complainant to keep it a secret and then drove her back to her parents' house.[2]
[2] ts 161.
On 27 March 2020 the appellant went to the house of G and N in the evening. G and N were out picking up some takeaway food for dinner. The complainant was at home and let the appellant in. The prosecution case was that the appellant sat down next to the complainant and rubbed her stomach under her T-shirt (count 6) and kissed her on the cheek (count 7). The complainant's parents came home shortly after this and the appellant stayed and socialised with them.[3]
[3] ts 161.
Later the same night the complainant was in her room watching a movie. The appellant went to the toilet and walked past her room. He told the complainant to come to him where he was standing in the hallway. The prosecution case was that he pulled the nightie she was wearing to one side exposing her breasts (count 8) and then sucked the nipple of each breast (count 9). He put his hand down her pants and rubbed her vagina over her underwear (count 10). He removed his hand, reached into his pants and took his penis out. He took her hand, placed it on his penis and used her hand to rub it (count 11). The complainant tried to pull her hand away and the appellant said to her, 'This is our secret. You can touch it whenever you want'. He asked whether she was 'cool with this' to which she responded, 'I don't know'. He then put his penis back in his pants and went to the toilet.[4]
[4] ts 162.
On 1 April 2020 the complainant told her father what had occurred. Police were notified the following day. The complainant participated in a child witness interview.[5]
[5] ts 162.
On 4 April 2020 the appellant was arrested and police seized his mobile telephone. An examination of the telephone revealed frequent message exchanges over a period of months between the complainant and the appellant. These messages included the appellant telling the complainant that he loved her, referring to her as 'babe', telling her how much he missed her and that he wanted to spend more time alone with her.[6]
[6] ts 162.
There was also an exchange that occurred on 28 March 2020 in which the complainant said, 'I kinda didn't feel comfortable from last night'. The appellant responded 'Soz. Just go back to normal, no more then. Don't want to make you feel weird'. The complainant responded, 'Yeah, I know. It's all good'. The appellant then sent an emoji indicating big hugs. The complainant then wrote, 'Let's do hugs and kisses and not that thing. Are you cool with it?' The appellant responded, 'Yes'. The prosecution relied on this exchange as being evidence that supported the complainant's evidence as to what had occurred the previous evening.[7]
[7] ts 163.
The appellant participated in a record of interview with the police on the day he was arrested, 4 April 2020. He admitted that he had driven the complainant to Champion Lakes on an occasion when she was upset and wanted to talk to him. He said that the car park was busy and full of people and so he parked somewhere more private and they got out and went for a walk around the lake. He said that he kissed the complainant on the cheek to cheer her up but denied that the alleged indecent acts had occurred.[8]
[8] ts 163.
As regards the events of 27 March 2020, the appellant told police that he went to the complainant's parents' house most Fridays. He agreed that he attended at the house on an occasion when they were out getting takeaway food and the complainant let him in. He said that he hugged her and gave her a kiss on the cheek. He said that later that night he had gone to the toilet and passed her room and saw that she was giggling and watching a film. He hugged her from behind and started tickling her. He said that shortly after that she asked him to show her his penis. He said 'no' and asked if she was becoming sexually active. He said that she became visibly uncomfortable and he felt awkward being asked so he left. He accepted that he had sent the messages that were on his telephone but said that he only responded in kind and had never initiated the exchanges. He understood that the complainant's father reviewed her messages and expected that he would have said something if he thought that the appellant was doing anything inappropriate. He said that the message exchange from 28 March 2020 related to the complainant asking him to show her his penis and him refusing. He otherwise denied any of the alleged indecent acts and said that he had never touched or thought about the complainant in a sexual way.[9]
[9] ts 163 - 164.
The State accepted that the prosecution case critically depended upon the evidence of the complainant. The prosecutor told the jury that the complainant was the only person who would give evidence about the incidents and that they would need to be satisfied beyond reasonable doubt that her evidence was honest and reliable before they could convict.[10]
[10] ts 164.

The defence case

The defence case was that none of the indecent acts alleged had occurred and that the appellant had consistently denied them. Senior counsel said that the complainant was a 'somewhat troubled young girl' who was in the habit of not telling the truth on occasions.[11]
[11] ts 168.
It was not disputed that the appellant drove the complainant to Champion Lakes on 27 January 2020. The defence case was that he did this because she asked him to, and so that they could talk in confidence. Once the car was parked the complainant disclosed to the appellant that she was having some difficulty at school which was upsetting her. She told the appellant that she was being taunted by boys at school and being called names. She wanted to know what she could do about it. They went for a walk, she became teary and thanked him for being someone she could talk to. They exchanged a hug and 'a peck on the cheek' and he gave her some advice as to what to do. The defence case was that this was entirely consistent with the role of uncle that he had played for many years. The kiss on the cheek and the hug were said to be nothing more than might be ordinarily expected of an uncle or very close family friend and that there was nothing sexual in the interaction.[12]
[12] ts 168 - 169.
As regards the events of 27 March 2020, the defence case was that the appellant did go to the house that evening and that when he arrived the complainant's parents had gone out briefly to get some takeaway food. The appellant and the complainant were not alone in the house because the complainant has three younger siblings, who were also at home. The defence case was that nothing untoward happened on this occasion. Later in the night he went into the house to go to the toilet, but he denies that any indecent acts occurred at that time. However, senior counsel said that 'one peculiar aspect' of the case occurred at this time, which was that the complainant asked the appellant if she could see his penis. The appellant did not know why she asked him this and he declined.[13]
[13] ts 169 - 170.
A little later in opening senior counsel for the appellant returned to this issue and what the appellant had told the police about it:[14]
He told them about the bizarre comment that she'd made about wanting to see his penis. You might want to consider as you go through and listen to that, the proposition put to him by the police that if she had actually asked to see his penis, as he said, he would have told the parents that night. And whilst that might in hindsight have been reasonable thing to do, we would say, he explained to the police that he just felt too surprised by that comment. As he put it, freaked out to tell the parents. He said, you'll hear, that in his view the parents had enough on their plate with her as it was.
You'll also hear, as he told the police, that over the next day or so he was entirely confused and disturbed about the question she'd asked him that night, together with the fact that he'd not brought it to the parents' attention. And he'd rung a counselling service to see what advice he could get as to what to do in those circumstances.
[14] ts 171.
The appellant's claim that he had called a counsellor formed an important part of the defence case. It was relied on as supporting the defence case in several ways. First, it was relied on as being consistent with his denial that there had been no indecent acts on the evening of 27 March 2020. Secondly, it was relied on as being consistent with his version of events, namely that the complainant had asked him to show her his penis. Thirdly, it was relied on as being consistent with his explanation for not speaking to her parents about what he said had occurred.[15]
[15] ts 171.

Pre-trial production of documents

Prior to the trial witness summonses were issued on the application of the defence. They included summonses to the mental health charitable organisations Lifeline and Beyond Blue seeking to obtain all records, notes and recordings of any telephone calls made by the appellant between 27 March 2020 and 11 April 2020. The significance of that period was that it covered the period from the date of counts 6 to 11 (27 March 2020) to the date of the appellant's police interview (4 April 2020), which was the period in which any telephone call by the appellant must have been made.[16]
[16] GAB 127 - 128.
At a directions hearing on 17 June 2022 counsel for the appellant said that Lifeline had advised that they had no documents in the requested category. However, Beyond Blue did produce a document. Leave to inspect and copy that document was given to both parties.[17]
[17] ts 122.
The document from Beyond Blue is a record of a web chat (not a telephone conversation) with an online counsellor on an unidentified date. The person who engaged with the counsellor is referred to as the 'client'. The client details record that the client was male, had the same first name and date of birth as the appellant and was living in New South Wales. The client waited in a queue before engaging with a counsellor called Jenna at 8.16 pm. The web chat continued for approximately 30 minutes. It involved typewritten questions and answers.[18]
[18] GAB 130 - 131.
In the Beyond Blue document the client refers to suffering from depression and anxiety, for which he has been taking medication. He refers to looking for work and being rejected and that he was previously a carer for his best friend's mother but that she had died 'this year'. He refers to smoking a lot of cigarettes and being diagnosed with anhedonia and epilepsy. He states that he had previously seen a counsellor whilst living in Brisbane. The Beyond Blue counsellor suggests contacting a general practitioner or engaging with a service called Grief Line.[19]
[19] GAB 130 - 131.
Although the document has a heading with the full name of the appellant and his date of birth, this information follows the words 'privacy request' and appears to be derived from the terms of the witness summons. The record of the interaction with the client does not contain a full name and the only things that could suggest that it relates to the appellant are the first name and the date of birth. However, there are a number of other features which were inconsistent with the appellant being the client. In particular, the appellant had never lived in New South Wales or Brisbane (though he had lived in Queensland for a short time). The appellant had been employed for many years as a truck driver. There was no evidence that he suffered from anhedonia or epilepsy. Furthermore, the Beyond Blue document is a record is of a webchat with a (presumably) female counsellor, not a record of a telephone conversation with a male counsellor (as described by the appellant).
It has subsequently been confirmed that this record does not relate to a telephone call in the period 27 March 2020 to 11 April 2020, but rather a web chat in 2019.[20] Accordingly, it did not fall within the terms of the witness summons to Beyond Blue and should not have been produced. This was confirmed by additional information provided by Beyond Blue to the respondent for the purposes of the appeal. The respondent was granted leave to adduce that information as additional evidence on the appeal. In that material an officer of Beyond Blue states that he cannot attest to the document being a record of a conversation with the appellant. He advises that Beyond Blue utilises a third party on its telephone and web support services. That third party provided the document in question to Beyond Blue after it had conducted searches of its IT system using the name, date of birth and telephone number provided by lawyers for the appellant. The document was provided because the date of birth and first name matched, however it was not appreciated at the time that the document fell outside the relevant date range.[21]
[20] GAB 132.
[21] Affidavit of Robert Graham Wilson dated 6 April 2023, annexure A.

The police interview

The appellant's interview with police conducted on 4 April 2020 was adduced as part of the prosecution case. In that interview the appellant made the admissions referred to in the prosecutor's opening address regarding having driven the complainant to Champion Lakes on 24 January 2020 and having been at the complainant's parents' house on the evening of 27 March 2020. He maintained throughout the interview that he had not done the indecent acts that were alleged.
Early in the interview, after being told that the allegations related to three separate incidents that had occurred on 24 January and 27 March 2020 relating to the complainant, the appellant said:[22]
[22] GAB 189 - 190.
[THE APPELLANT]: I've never even touched her. I didn't even show her my dick when she asked to see it. I didn't - I don't even know what the fuck ‑ ‑ ‑
[THE INTERVIEWER]: Well, tell me about that. You just said you didn't show her - - -
[THE APPELLANT]: [indistinct] bloody weeks ago. She fucking asked to see it, but I said no and I fucking said something else I shouldn't have, but fucking she went white and that was pretty much the end of it.
[THE INTERVIEWER]: Tell me about that.
[THE APPELLANT]: Fuck, I don't even know what the - - -
[THE INTERVIEWER]: Go - go - go to the start of that night and tell me what happened.
[THE APPELLANT]: How the fuck [indistinct] think they'd do that. What - so I pretty much went around to their place on Friday night to catch up 'cause they rang me up. Why the fuck didn't [G] say anything last night when he rang me?
[THE INTERVIEWER]: Well, I couldn't comment on that. I'm not too sure. But tell me about last - the Friday night, what happened.
[THE APPELLANT]: This is [indistinct] rang the counsellor yesterday, trying to get advice on this. What to do and how to handle it. I went around to their place, catch up, like I always do every week.
The appellant then gave an account of what he said had occurred when he went to the toilet that night. He said that he heard the complainant laughing, saw that she was watching a movie and started tickling her. He said that she tickled him back. He then gave her a hug and kissed her on the cheek. He said that she kissed him on the cheek and then asked if she could ask something personal. She then asked to see his penis. He said no and then said 'what are you trying to become sexual or something are you?' He said that she then stood back, looked at him white as a ghost and said 'no, nothing like that'.[23]
[23] GAB 179 - 180.
Later in the interview the appellant was asked about the exchange of messages that occurred on 28 March 2020 in which the complainant had referred to not feeling comfortable about what had occurred the previous night. The appellant said that this was a reference to her having asked to see his penis. He said the following:[24]
[24] GAB 208.
[THE APPELLANT]: When she asked to see my penis, I looked at her and said, 'Fucking, what, you want to start becoming sexually active or something like that?' And she looked at me really white as a ghost. I knew I shouldn't have said it. Then I looked at - 'I'm sorry, [complainant], but it all stops. The extra hugs and extra kisses all stops. It's now gotten weird,' and that's when I walked out.
[THE INTERVIEWER]: Okay. So why is she say - she's saying, 'I didn't feel comfortable from last night'?
[THE APPELLANT]: I'm assuming she didn't feel comfortable from me having a go at her the way I did.
[THE INTERVIEWER]: Okay. Was it she's saying, 'I didn't feel last night,' because you've placed your hand on her vagina?
[THE APPELLANT]: No.
[THE INTERVIEWER]: [indistinct]
[THE APPELLANT]: I never touched her. That's why she's - I spoke to her the next day to make sure how she was going because the ay I had a go at her and - and she's like, 'I didn't feel comfortable about last night.' Said, 'Yeah, I'm sorry, I' - yeah, that's what is aid to her - I thought was what she was talking about.
[THE INTERVIEWER]: And then you've apologised. You've said [indistinct]
[THE APPELLANT]: Yeah, I apologised 'cause of what I said to her.

Later in the interview the appellant returned to the topic of ringing a counsellor. He said that the complainant's question to him was the reason he had made the call:[25]
[THE APPELLANT]: … It's why I rang Lifeline yesterday, trying to get some advice what to do 'cause I haven't got anyone to talk to about it.
[THE INTERVIEWER]: Why did you call Lifeline?
[THE APPELLANT]: 'Cause I had no‑one to talk to about it. I feel embarrassed that she fucking asked me to do it. Actually talk to anyone - I didn't know who I could talk to. I rang Lifeline yesterday and that's when they told me I need to get a hold of my psychiatrist and get another closer appointment to try and get somebody third party to deal with it.
[THE INTERVIEWER]: What's Lifeline? Just for the purpose of the video - - -
[THE APPELLANT]: It's a counsellor group. I found them online. I just looked them up online 'cause I - I knew my counsellor didn't have appointment for another two - two weeks. So I rang them to try and get some advice on what to do - whether I should tell her parents or what'll ‑ ‑ ‑
[25] GAB 213 - 214.
When asked to clarify when he had called Lifeline the appellant said 'yesterday' and said it was a counselling hotline and was in the directory of his telephone. He said:[26]
[THE APPELLANT]: I rang them yesterday about it. So I didn't know - like, I needed some advice on how to handle the situation
[26] GAB 215.
The interviewing police officer then asked the appellant about the complainant ceasing talking to him and suggests that this may have been the reason that he was trying to get counselling. The appellant responds in the following terms:[27]
[THE APPELLANT]: No, I just wanted some advice 'cause I've been [indistinct] on it all week whether I should tell her parents. And on Wednesday it's like - I texted her mother to, like - I was actually - had the confidence then to try to - try and tell her mother what she'd said to me and [indistinct] were all busy. And then [G] rang me last night and said, 'No, they're all down with a sickness and mum's phone's bloody broken.' 'So that explains why I can't get a hold of youse.' Cause I - I thought about telling him last night, but then it's - I just didn't know that [sic – what] to fucking do.
[27] GAB 215.

The appellant's evidence

The appellant gave evidence at the trial. For the purposes of this appeal it is not necessary to summarise the whole of that evidence. It is sufficient to note that he maintained his denial that any of the indecent acts had occurred. He also maintained that on the evening of 27 March 2020 the complainant had asked to see his penis and that he had responded in the way described in his police interview.
The appellant said that in the week following 27 March 2020 he was working, although he would normally see the complainant's family on a Friday night. He was then asked:[28]
[28] ts 335 - 336.
All right. I think you were going go around there on the Friday night, is that correct?---I was actually trying to avoid around there until I was able to speak to a counsellor to try and get some advice on how to handle the situation that I was asked that night - week before.
What - what sort of advice were you seeking?---Well, trying to - how to handle the situation, how to actually talk to [G and N] about it and try and not feel as embarrassed as what I was.
What were you embarrassed about?---The fact that she could ask me something like that.
Did you not feel up to raising it with the family?---No, I was just too scared to.
So what did you do?---I ended up ringing two counsellors on Thursday or Friday morning I believe it was, when I got back in from my run. The first one I rang kept putting me on hold, so I rang another one which I can't remember which way around it was. One of them was Lifeline the other one was Beyond Blue Counselling Service. The second one basically said to me to rechange my appointment with my psychologist - psychiatrist, whichever one it is, and go and speak to her about it and get her to represent as a third-party option. And also in the meantime, avoid going around to the house and just make up some excuse with work or something like that to avoid going there.
All right. Now, this incident was said to have happened on the 27th, which was I think a Friday night?---That's correct.
Did you work Monday, Tuesday, Wednesday, Thursday?---Monday - Monday, Tue - or Sunday night, Monday, Tuesday and Wednesday night, yes.
Did you do your usual run to Wilcannia?---Yes.
That's your standard run, is it?---That's my standard run at the time, yes.
All right. Do you know when - what day of the week it was when you rang those two helplines?---It was either the Thursday or the Friday morning. I think it was the Friday morning.
All right. Why is it you couldn't have seen your psychologist about this?‑--Because I had an appointment that was two weeks after the - that weekend already organised. And I was pretty much ringing - going to ring them on the Saturday morning to move the appointment forward to an earlier appointment so I could speak to them about it.
All right. If I were to put to you that you sought that sort of assistance because you were feeling guilty about what you'd done to the child, what would you say?---I wasn't feeling guilty, I was just trying to end whatever the hell happened, because something wasn't right and I was trying to put an end to it.

Cross-examination of the appellant

At the commencement of the cross-examination of the appellant the prosecutor asked that she be provided with the document that had been produced under summons by Beyond Blue. She then commenced her questioning of the appellant by asking about his claim to have telephoned a counsellor:[29]
[29] ts 337 - 340.
When did you call Beyond Blue?---I believe it was Friday morning, I think. I'm not 100 per cent sure.
The day after this?---Sorry? Sorry, the - what date?   I honestly couldn't tell you the date. It was the following Friday morning when I actually called them I believe.
Okay. And do you - you say that you spoke about this matter?---I spoke about this matter with a counsellor - with them over the phone, yes. And ‑ ‑ ‑
With Beyond Blue?--- - - - got some help from them. Yes.
About 8.14 pm at night?---That would be correct.
This is the only service you spoke to about this matter?---As I said, I did try to call another service, ma'am, but they kept putting me on hold. So I ended up trying another service which was when I did get hold of someone.
Okay. And how certain are you, you spoke to Beyond Blue about [the complainant]?‑‑‑I know for a fact I spoke to a counsellor over the phone about [the complainant], but as to whether it was Beyond Blue or the Lifeline, it was one of those two I spoke to.
All right. So your legal team subpoenaed Lifeline and there was no results for Lifeline?---Then it'd have to be Beyond Blue. Thank you.
Okay. And there's a transcript here of your discussion with Beyond Blue?   Yeah.
And there's no reference to [the complainant] or anything about the [complainant] incident?‑‑‑Well, I told them that it was my best mate's daughter who had actually pretty much asked me whether she could see my penis.
Do you want to? - - -?‑‑‑And that's what I spoke to them about
Do you want to - do you want to have a read of this?---I - I don't know if I used - - -
It's not long?---I don't know if I used her name, but I don't - definitely told them it was my - - -
Just have a read and then I'll ask you some more questions about it?---Thank you. That doesn't look like the one that I spoke with. That's not even me.
Not you?---No, I - because I spoke to a male who I spoke to and that's saying Jenna(?), which I'm assuming would be a female, but I can't say that for certain. That's - - - Can I just? - - -?--- - - - not my conversation with them, by the look of what I can see.
Thank you. I'll just have another look. So client details Glen, born 28/9/1983?---That's my date of birth and name.
Thank you:
Problem: Depression and anxiety has been playing up for the last few days.
?---I never told them that. I just said my anxiety has been playing up because of the question that I was asked.
All right. So you say you spoke to a man not Jenna?---I spoke to a man that I spoke to when I spoke to them.
Mm hmm?---And a lot of that text doesn't match what I spoke to them about.
Did you tell them about anxiety and depression?---I spoke to them - spoke and when I said I had anxiety issues at the moment with the question I'd been asked on that.
Did you say you'd been feeling tired and not wanting to be around people?---No, I never did.
And you'd been snapping easy?---No, I never did. That's what's not matching.
And you can - I'll just read the response?---Yeah, sorry.
Is there anything you think may be contributing to this at the moment, Glenn?
- and then:
Glenn?
I've been looking for work, but been rejected every time. Had a loss of my best mate's mum at the end of this year. I used to be a carer for, for about a year and a half.
Would it be - would that be it?---I'm a fulltime worker, so that doesn't match. That's what I mean. It doesn't match the conversation I had.
Did you have a loss of a best mate's mum?---Not in that time frame, no.
Did you used to be a carer for someone for a year and a half?---No.
And then the counsellor says:
Sounds like it could be contributing, Glenn. The loss you experienced was twofold, wasn't it? Someone you cared about as well as your work. This must be a huge adjustment time for you.
- and you said:
Yes, I was a live-in carer. I've noticed I smoke a lot more ciggies too.
?---None of that matches with what I spoke to them about. That's what I mean, that's not the conversation.
Have you got anhedonia?---No. That almost looks like somebody else's conversation.
Have you got epilepsy?---No.
Did you live in Brisbane?---I lived in Hervey Bay in Queensland, but I've never lived in Brisbane, no, ma'am.
Whether or not the things are true, did you tell these things to a counsellor at Lifeline?---Not those things, no. I told them about the issue I was having with [the complainant]. So there should be records for that with them. If they've already found that my number rang them, then that's obviously the wrong conversation that they've sent.
Okay, very strange. I'll just leave it there.
STEVENSON DCJ:   All right, we don't make comments. Can I just have that document? I just need to mark it for identification. (emphasis added)
The Beyond Blue document was then marked for identification as MFI‑9. The prosecutor said that, until she was certain that it was an accurate document, she would not seek to tender it.

The jury note

After the conclusion of the evidence and before the commencement of closing addresses the jury sent a note to the trial judge which requested further information on a number of topics. One of those read 'confirmation of Lifeline/Beyond Blue transcript'.[30]
[30] ts 431.
The note was discussed in the absence of the jury. In relation to the question regarding the Beyond Blue document senior counsel for the appellant said:[31]
The last question we say is that essentially both parties accept that that was not a transcript of his call to Beyond Blue. We all accept that, it was just wrong. They've conflated it with another call.
[31] ts 433.
His Honour's response was as follows:[32]
STEVENSON DCJ: All right. You will both be provided with a copy of the note. Obviously, you will receive it before your closing addresses. You know the questions that have been asked by the jury and you can respond and say what you wish in your closing address. I'm not going to enter into the arena by making comments about the evidence as has been espoused to me.
I'm simply going to answer the question in the usual way, that the evidence is the evidence. And I will give you some directions in a moment about the evidence and how you can use it and can't use it of the law. And listen to counsel's closing addresses about the evidence. And if you have any further questions at the end, then ask in the same way. I'm not proposing to give copies of the, for example, Beyond Blue subpoenaed communication.
DEFENCE COUNSEL: Well, obviously we can't. It's not in evidence.
STEVENSON DCJ: Exactly. So - - -
DEFENCE COUNSEL: I would have thought your Honour should just give it ‑ ‑ ‑
STEVENSON DCJ: I'm not going to run through and put an imprimatur of the court in relation to evidentiary matters at this point in time in this trial. I'll answer in the usual way.
DEFENCE COUNSEL: My position, with respect, your Honour, would be that they should be given some guidance in relation to each question specifically.
[32] ts 433.
Senior counsel for the appellant suggested to the trial judge he should tell the jury they would not be getting any further evidence in relation to any of the matters raised in their note. The trial judge said that was precisely what he did propose to tell them. The prosecutor then said she did not intend to raise the Beyond Blue issue in her closing address but requested another opportunity to read that material before defence counsel gave his closing address.[33]
[33] ts 434 - 435.
The trial judge then brought the jury back and said, in response to their question, that their verdicts must be based on the evidence and that they should not make any enquiries of their own. He then said:[34]
But the answer to the question is the evidence is the evidence [sic]. And if after the closing addresses about the evidence and if after my directions to you about your role in this jury and how you go about dealing with the evidence you have any further questions of his nature. Then obviously I can deal with those questions.
So what I want you to do is just to listen to counsel's addresses, bearing in mind that nothing they say is evidence obviously as I've told you, and then my directions of law. And then to retire to deliberate. And if, in the course of your deliberations, there's any further questions, then please ask the question and I will answer your question.
But the short answer is the evidence is the evidence, and as I will direct you in a moment, you must not speculate about evidence that you do not have. Your verdicts must be based on the evidence that you've seen and heard in the courtroom. So thank you again for the questions. And I've provided copies of the note to counsel so that they have the questions in front of them. We're now going to proceed with the closing addresses.
[34] ts 435 - 436.

Closing Addresses

The prosecutor did not refer to the Beyond Blue document in her closing address. She did, however, make submissions regarding the appellant's evidence and, in particular, his claim that the complainant had asked to see his penis. The prosecutor said:[35]
She's young for her age. [Naïve], you might think. She is enjoying the attention, no doubt, that he is giving her. But she really thinks it's innocent. She didn't like the sexual attention. It makes no sense that out of the blue, with her parents outside, while she is minding her business, watching a movie, that she would suddenly say, 'Can I see your dick?'
And that he would then say in response, 'Are you trying to become sexually active?' This is a very weak attempt to try and come up with a story that is designed to explain the texts, the fallout and the allegations.
Now, [the appellant] does not have to come up with a motive for why he says she's lying. His Honour will tell you that. But if he does put forward a motive, the State's entitled to examine it and dismantle it. And I suggest to you that the version that he comes up with is utterly implausible, unbelievable and false.
Let's just imagine for a moment that had happened. He would have told her parents, you might think. He would have behaved in an entirely different way at the time, you might think. '[Complainant], why are you asking me this?' You know, 'This is not really appropriate. What's going on?'
That sort of behaviour, you might think, would be a normal adult response. And most importantly, the messages the following day would not read as they do. So I say reject his evidence and return to the State case.
[35] Separately extracted closing address 5 - 6.
Senior counsel for the appellant did address the Beyond Blue document in his closing address:[36]
There's a suggestion that he rang a counsellor, and he thinks he did. We tried to track that down, I think, between us, to see if that shed any light on anything. It might have cut both ways.
But we've come up with what appears to be a conflated message from some other person, someone who lived in Brisbane. And he'd never lived in Brisbane. A person who came from Sydney, someone who worked as a carer, was out of work. Obviously not him, and [the prosecutor] doesn't rely on that. I don't either.
So I think in relation to the question that you raise, we're not going to see anything more of that message, because neither of us thinks it has any bearing on the case. So you can safely, I suggest to you, ignore that.
[36] Separately extracted closing addresses 29 - 30.

The trial judge's directions

The trial judge gave no specific directions to the jury regarding the Beyond Blue document or the cross-examination of the appellant on that document. In particular, he did not direct the jury that the document was irrelevant and that they should ignore it. Nor did he say that they should not draw any conclusion adverse to the appellant from the cross-examination on that document, which cross-examination may have suggested that the appellant was being untruthful in regard to what he had said when he called a counsellor at Beyond Blue.
The only directions given by the trial judge that could possibly have borne upon this issue were of a general nature. This included telling the jury not to guess or speculate about matters that were not in evidence. He gave some examples of possible lines of speculation, but they did not include any reference to the Beyond Blue document. He also told the jury that they must decide the case only on the evidence that was before them.[37]
[37] ts 451 - 452.
As regards the complainant's evidence, the trial judge told the jury that she was the only witness who gave direct evidence against the appellant about the alleged touching or other conduct. He said that for this reason the jury must be satisfied beyond reasonable doubt about the honesty and reliability of her evidence in relation to the alleged acts before they could convict the appellant of that alleged offence.[38]
[38] ts 455.
In regard to the appellant's evidence, the trial judge told the jury that if they accepted and believed his evidence that there was no indecent touching of the type described, then they would acquit him. Further, if they had difficulty in accepting the appellant's evidence but believed that it might be true then they must acquit him, because in those circumstances they could not be satisfied beyond reasonable doubt of his guilt. Further, that if they did not accept his evidence then they should put it to one side and consider whether on the basis of the evidence as a whole the State had proven his guilt beyond reasonable doubt.[39]
[39] ts 457.
His Honour directed the jury that the evidence of a witness was to be found in the witness's answers and not in the questions put to them by counsel. He told the jury that a question itself is not evidence and, indeed, that nothing said by counsel in the trial was evidence.[40]
[40] ts 458.
In summarising the defence case his Honour referred to what the appellant had said occurred on the evening of 27 March 2020:[41]
He says that there was communication between him and the complainant in the course of which she, out of the blue, said words to him to the fact, 'Can I see your dick?' to which he says he responded, 'What, are you becoming sexualised now?' and he felt that the way in which he had responded and spoken to the complainant on his evidence subsequently was perhaps, my word, overbearing and inappropriate and he was concerned about the effect that had on her.
His evidence is that he had, as a result of that incident, uncertainty as to how to deal with the position that he found himself in and he did not know how to inform the complainant's parents with whom he obviously had a very close friendship.
He gave evidence as to what he experienced in the days following 27 March 2020 and his evidence in relation to the text messages sent on 28 March 2020 he says is consistent with his version of events.
He relies upon what he said in the video record of interview which he says is consistent with his evidence in the trial and as you know, he has called evidence from three witnesses who obviously can't give any direct evidence in relation to the alleged offending and in fact at least one was not even aware of the nature and content of the text messages between him and the complainant.
His Honour did not mention, either at this point or elsewhere in his directions, the Beyond Blue document.
[41] ts 483 - 484.

Grounds of appeal

There were originally three grounds of appeal. Ground 1 was abandoned. Ground 2 was amended at the hearing. Grounds 2 and 3 as amended (and without particulars) are as follows:[42]
2.The cross-examination of the appellant on the contents of MFI 9 which purported to be a transcript of a conversation between the appellant and Beyond Blue, resulted in a miscarriage of justice.
3.That the learned prosecutor split their case by cross-examining the appellant as to the content of a document, being the Beyond Blue record, returned to the court in response to a summons to produce dated 2 June 2022. In circumstances where either that document could and should have formed part of the prosecution's evidence-in-chief or where the document could and should have been the subject of an application to re-open the case to establish the provenance of the document and properly admit the document into evidence. The failure of the prosecution to admit the document into evidence in either of these ways deprived the defence and the court of a proper orthodox process by which the provenance and accuracy of the document could be tested and so was unfair to the accused and resulted in a miscarriage of justice.
[42] WAB 18 - 20; appellant's minute of proposed amended grounds dated 22 May 2023.

Ground 2 - appellant's submissions

The appellant submits that the appellant's claim that he had contacted a counsellor some time shortly after 27 March 2020 formed a significant part of the defence case. This evidence was relevant in assessing the appellant's claim as to what had occurred and to explain why he had not approached the complainant's parents to tell them what had occurred. That it was significant is reflected in the fact that it featured prominently in the appellant's interview with police and senior counsel's opening address to the jury.[43]
[43] WAB 31 - 32.
The appellant submits that the cross-examination plainly suggested to the jury that the appellant's evidence in regard to his communication with Beyond Blue was untrue because it was inconsistent with a record of that conversation. That impression was created notwithstanding that the document was not tendered. This is because during cross-examination the prosecutor elicited an acknowledgement from the appellant that the document was a record of his conversation and then proceeded to read portions from it. It is now accepted that the document was not a record of any conversation between the appellant and a Beyond Blue counsellor in the relevant period (or possibly at all).
The appellant submits that there is a perceptible risk that the jury would draw a conclusion that the appellant had been untruthful in his evidence regarding his communication with a Beyond Blue counsellor. This adverse conclusion is likely to have had an impact upon the jury's assessment of the appellant's credibility generally. Given that it was necessary for the jury to reject the evidence of the appellant before being able to convict, the risk created by the cross-examination has led to a miscarriage of justice.
The appellant submits that in the circumstances the trial judge should have given a direction to the jury to ignore the Beyond Blue document and the cross-examination relating to it. Had such a direction been given it may have reduced the risk of unfairness to the appellant. The absence of such a direction means that that unfairness was not addressed. Although senior counsel for the appellant at the trial referred to the Beyond Blue document and told the jury it was irrelevant, that was no substitute for a direction by the trial judge.

Ground 2 - respondent submissions

The respondent submits that, although it is accepted that the Beyond Blue document was irrelevant, there is no perceptible risk that the cross-examination on that document would have led the jury to reason in an impermissible way or otherwise cause an unfair trial. The respondent refers to a number of factors:[44]
1.That senior counsel for the appellant at the trial did not object to the cross-examination.
2.That during the cross-examination the appellant rejected suggestions that the record related to the conversation he had had with a Beyond Blue counsellor and maintained his evidence.
3.The matter was not referred to by the prosecutor in her closing address and thus there was no reliance on that part of the cross‑examination as impacting on the credibility of the appellant.
4.The trial judge gave directions to the jury not to speculate and the need to rely only on the evidence. These directions must be seen in the context of the fact that the Beyond Blue document was never tendered as an exhibit.
5.Senior counsel for the appellant did not seek a specific direction from the trial judge regarding the Beyond Blue document. That fact, and the fact that counsel did not object to the cross‑examination, are indicative of senior counsel's view as to the significance and potential impact of this evidence.
[44] WAB 56 - 58.

Ground 2 - the merits

The jury were required to consider the evidence given by the appellant, including his responses during the police interview, in determining whether the charges against him were proved beyond reasonable doubt. His credibility was a critical matter. The jury could not find the appellant guilty if they believed his evidence or it caused them to have a reasonable doubt as to his guilt.
In both the police interview and his evidence on oath, the appellant gave an alternative version of what had occurred on the evening of 27 March 2020. That version, if accepted, was capable of providing an explanation for why the complainant may have made the claims that she did. It was also capable of providing an innocent explanation for the messages between the appellant and the complainant that occurred the following day. Given that the appellant denied that any of the indecent acts had occurred, it was necessary for the jury to consider and reject this evidence before being able to reach a conclusion that he was guilty of counts 6 to 11.
One factor relevant in considering whether the appellant's version was, or might be, the truth, was whether his actions subsequent to 27 March 2020 were consistent with that version. It was in this context that the appellant said, both in interview and in evidence, that he had contacted a counsellor by telephone to discuss what he should do. The appellant said that he had been unwilling to raise the matter with the complainant's parents as they were facing personal difficulties at the time, including major health issues. It would be open to infer that it was inherently unlikely that the appellant would call a counsellor and tell them that the complainant had asked to see his penis if that was untrue. Further, calling a counsellor could be viewed as being consistent with his explanation for not speaking to the complainant's parents about what he said had occurred.
Seen in context, the evidence relating to the appellant's claim that he had called a counsellor in the days following 27 March 2020 and that he had discussed with that counsellor what he said the complainant had said to him was an important consideration in assessing the credibility of the appellant. If this claim was shown to be false it would have the effect of undermining his credibility on this issue, and generally.
The purpose of the cross-examination on the Beyond Blue document was to challenge and discredit the appellant's evidence that he had spoken to a counsellor about the complainant. After calling for the document the prosecutor stated, 'there's a transcript here of your discussion with Beyond Blue'.[45] The clear implication was that the document was a transcript from a reliable independent source of the telephone call referred to by the appellant in his evidence. Furthermore, the prosecutor stated as a fact that the document contained no reference to the complainant. The prosecutor then proceeded to further make her point by reading out portions of the document and asking for the appellant to comment. Thus, although the document was not tendered, the substance of it was made known to the jury.
[45] ts 338.
Whilst the appellant denied that the document was a record of his conversation, the cross‑examination would inevitably have created the clear impression that, despite his denials, this was such a record and was inconsistent with his evidence. There can be no doubt that this cross-examination would have left the jury with the impression that the appellant's evidence regarding calling a counsellor and telling that counsellor what the complainant had said was untrue. That it had an impression on the jury is confirmed by their request for a copy of the 'transcript' (as they clearly understood it to be). In these circumstances, the fact that the document was never tendered does not alleviate the unfairness that resulted.
It is now accepted that the Beyond Blue document is not a transcript of a telephone call and that it does not relate to any conversation between a counsellor and the appellant in the relevant period. Furthermore, for reasons canvassed earlier at [24], there are very good reasons to believe that it does not relate to the appellant at all. The document was entirely irrelevant and should not have been raised before the jury.
At the hearing of the appeal there was some discussion as to whether the prosecutor was endeavouring in cross‑examination to deal with the document as a prior inconsistent statement. The procedure for dealing with a prior inconsistent statement in cross‑examination is provided for by s 21 and s 22 of the Evidence Act 1906 (WA) (Evidence Act). The proper process is for the examiner to ask the witness whether they have previously made a statement to a particular effect (and in doing so identify the time and circumstances in which that statement was made). If the witness does not distinctly admit having made such a statement, then proof may be given that he or she did make it. Before any contradictory proof can be given the attention of the witness must be drawn to those parts of the document which are to be used for the purpose of contradicting the witness.
In this case, as occurs too commonly, the process followed was to describe and read out portions of the document before establishing that it was an accurate record of a previous statement by the appellant. That process does not accord with s 21 and s 22. What occurred was that the contents of an unproven document were put before the jury before any grounds for adducing it in evidence had been established. When those grounds could not be established the document was marked for identification rather than being tendered, but the damage had already been done.
Had the proper process been followed, the potential for unfairness to the appellant would have been very much more limited. The appellant, having seen the document, would undoubtedly have said that it did not record a previous statement by him and that would have been the end of the matter. No contents of the document would have been before the jury and any prejudice would have been contained. What occurred in this case is an object lesson in why the process provided for in the Evidence Act is not only fair to the witness but a prudent one for the examiner to adhere to.
In this case, the cross‑examination on this issue was the first line of questioning taken by the prosecutor. As the passage quoted at [34] illustrates, it was not a passing or inconsequential line of questioning. It is highly likely to have left an impression on the jury that the appellant was not being truthful. The fact that the jury asked a question about the 'transcript' of the Beyond Blue conversation the day following the cross-examination confirms the impact that it made on them. That impact was not reduced by the fact that the appellant denied that it was an accurate record of his conversation with a counsellor or that the record itself was not tendered.
The respondent draws attention to the fact that senior counsel for the appellant at the trial did not object to the cross‑examination. Whatever the reason for that may be, it does not alleviate the unfairness. Nor was the unfairness reduced by senior counsel's reference to the Beyond Blue document in his closing address. Senior counsel's suggestion that the jury should ignore the document was unlikely to be effective given that neither the prosecutor nor the trial judge confirmed that what senior counsel said about the document being irrelevant was correct. Furthermore, the trial judge said, on a number of occasions, that counsel's submissions were not evidence and could be rejected by the jury.[46]
[46] See, for example, ts 151, 153, 458, 459, 462.
The fact that the trial judge did not direct the jury to ignore the cross-examination regarding the Beyond Blue document means that the prejudice caused by that cross-examination was not alleviated. The general directions regarding speculation and to only rely on the evidence were not adequate to address the unfairness. In any event, there is good reason to doubt that, in the unusual circumstances of this case, any direction by the trial judge would have been sufficient to remove the unfairness.
There was a real possibility that the jury would impermissibly reason that the appellant had been untruthful in his evidence regarding his communication with a counsellor because that evidence was inconsistent with the Beyond Blue document. That was likely to adversely affect the assessment of the appellant's credibility as a whole, and in particular his denials of the offending conduct. There is a perceptible risk that this could have affected the verdicts on all of the counts. A miscarriage of justice has been established and Ground 2 has been made out.

Ground 3 - the merits

Given that ground 2 succeeds, there is no necessity to consider ground 3. In circumstances where it is conceded by all parties that the Beyond Blue document was entirely irrelevant, and remains so, it would be hypothetical to consider whether such a document would have been admissible in the prosecution case had it been relevant. For those reasons, there is no need, and we decline, to determine ground 3.

Conclusion

Leave to appeal should be granted on ground 2 and refused on ground 3. The appeal should be allowed, the convictions set aside and a retrial ordered.
We note that the respondent took the position in its written submissions that leave in respect of ground 2 should be refused. In circumstances where it was accepted prior to the appeal hearing that the Beyond Blue document was irrelevant, it is surprising that the respondent adopted this stance. On any view there was plainly an arguable question to be determined on the appeal. At the hearing of the appeal counsel for the respondent, quite properly, conceded that that submission could not be maintained and that leave should be granted. It is opportune to note that the respondent to appeals should not take a merely reflexive approach to the question of leave. The questions of whether leave should be granted and whether an appeal should be allowed are different questions that should be approached in a considered way. Where there is plainly a ground of appeal which has a reasonable prospect of success, it does not advance the respondent's case to oppose the grant of leave in an unthinkingly oppositional manner.

Orders

1.Leave to appeal on ground 2 is granted.
2.The appeal is allowed.
3.Conviction on counts 5 ‑ 11 is set aside and a retrial ordered.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JS
Associate to the Honourable Justice Hall
9 JUNE 2023