McDonald v The State of Western Australia - [2023] WASCA 57

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   MCDONALD -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 57
CORAM:   MAZZA JA
HEARD:   9 MARCH 2023
DELIVERED          :   9 MARCH 2023
PUBLISHED           :   20 APRIL 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 - Application for bail pending appeal against conviction - Application for bail granted

Legislation:

Bail Act 1982 (WA), sch 1 pt C, cl 1, cl 3

Result:

Application for bail granted

Category: B

Representation:

Counsel:

Appellant	:	C C Porter
Respondent	:	R G Wilson

Solicitors:

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

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

Nil

MAZZA JA:

(These reasons were delivered extemporaneously and have been edited from the transcript.)

Before the court is the appellant's application for bail pending his appeal against conviction filed 30 January 2023.
In order to be granted bail, the appellant must satisfy this court that there are exceptional reasons why he should not be kept in custody and that it is otherwise appropriate to make an order in his favour, having regard to the matters listed in cl 1 and cl 3 of pt C sch 1 of the Bail Act 1982 (WA).
In the present case, the appellant contends that exceptional reasons exist because his grounds of appeal, particularly ground 2, are strongly arguable. The respondent contends otherwise, although it accepts that ground 2 is arguable. The decisive issue in this application is whether the contention that the appellant's grounds are strongly arguable is correct.

Background

The appellant was charged on indictment in the District Court with 11 counts of indecently dealing with a child of or over the age of 13 years and under the age of 16 years, contrary to s 321(4) of the Criminal Code (WA) (Code). Counts 1 ‑ 5 allegedly occurred on 24 January 2020 in a car park at a location in a Perth suburb. Counts 6 ‑ 11 occurred at the complainant's house in a Perth suburb.
The complainant in each count was a girl who was well known to the appellant.
The appellant pleaded not guilty to the charges, and was tried in the District Court before Stevenson DCJ and a jury between 20 and 24 June 2022. On 24 June 2022, the jury returned verdicts of not guilty in respect of counts 1 ‑ 4, and verdicts of guilty with respect to counts 6 ‑ 11. On 25 August 2022, the appellant was sentenced to a total effective term of 3 years' immediate imprisonment with eligibility for parole. The appellant will be eligible for parole on or about 24 February 2024.

The appeal

The appellant relies on two grounds of appeal. Shorn of its particulars, ground 1 alleges that directions and comments by the learned trial judge, either singularly or in combination, occasioned a miscarriage of justice in that the appellant was not afforded a fair and impartial trial.
For present purposes, it is unnecessary to canvass the merits of this ground. Counsel for the appellant candidly accepted that ground 1 was not as strong as ground 2. On a preliminary basis, I would not, on the basis of the strength of this ground alone, grant bail.
Ground 2, in effect, alleges that the appellant suffered a miscarriage of justice because he was cross‑examined on the basis that he had made a prior inconsistent statement when, in fact, he had not made such a statement. Further, his Honour failed to direct the jury that the alleged prior inconsistent statement was incorrect and that any suggestion that the appellant had made a prior inconsistent statement was wrong and should be ignored.
The appeal has been listed for hearing on 19 May 2023.

The circumstances surrounding ground 2

The circumstances surrounding ground 2 may briefly be described as follows. The State's case relied upon the evidence of the complainant.
The essence of the defence case was that the appellant had not indecently dealt with the complainant as alleged, or at all. On his version of events, the complainant had, at one point, approached him and had asked him if she could see his penis.[1] The appellant rebuffed the approach. The appellant said that he subsequently telephoned Beyond Blue to obtain advice as to how he should handle the situation. He said that he told the counsellor what had happened.
[1] Defence opening, ts 170.
Prior to trial, the appellant's lawyers subpoenaed Beyond Blue to produce to the court any record it had of the conversation between the appellant and the counsellor. A document purporting to be a transcript of the conversation was produced by Beyond Blue to the District Court. Leave was given to the appellant and the respondent to inspect the document.
At trial, the appellant testified in his own defence. Relevantly, he gave evidence that the complainant had approached him and asked to see his penis, and that he had telephoned a counsellor at Beyond Blue to discuss the situation. The prosecutor began her cross‑examination by calling for the documents that had been subpoenaed from Beyond Blue.[2] She then asked the appellant questions concerning the conversation that the appellant had with the counsellor. In the course of this cross‑examination, she put to the appellant that there was no reference in the transcript to the complainant or 'anything about the [complainant] incident', clearly being a reference to the appellant's testimony that the complainant had asked him if she could see his penis. The appellant insisted that he told the counsellor about these things. The prosecutor then invited the appellant to read the document. Having apparently read the document, the appellant said, 'That doesn't look like the one that I spoke with. That's not even me'.[3]
[2] ts 337.
[3] ts 388.
In further cross‑examination by the prosecutor, the appellant accepted that the document had his first name and his date of birth, but otherwise he said the conversation that was recorded was not the conversation he had with the counsellor. Moreover, its contents appeared to refer to a different person entirely.
The appellant observed that the note indicated that the counsellor was a woman, whereas he had spoken to a man.[4] The note referred to the person as 'looking for work' and said that the person had been 'a carer for about a year and a half'. The appellant said that he had been in full‑time employment and had not been a carer. The note also referred to the person who spoke to the counsellor as having anhedonia and epilepsy - conditions which the appellant said he does not suffer from. The note also referred to the person as having lived in Brisbane. The appellant said that he had never lived in Brisbane.[5]
[4] ts 339.
[5] ts 340.
The appellant stated, in cross‑examination, that the record Beyond Blue had provided was 'the wrong conversation'.[6]
[6] ts 340.
The prosecutor completed the line of cross‑examination by making the comment:
Okay, very strange. I'll just leave it there.
The trial judge then marked the record provided by Beyond Blue as MFI9. It is accepted that the document did not record the conversation between the appellant and Beyond Blue. Rather, it recorded a conversation between someone other than the appellant and the counsellor. Indeed, after the completion of the trial on 15 August 2022, Beyond Blue emailed the District Court accepting that it had provided the court with the wrong document.
At some point in the trial after the appellant's cross‑examination but before closing addresses were delivered, both the prosecutor and defence counsel came to the conclusion that the record that had been subpoenaed and which the prosecutor had shown to the appellant and cross‑examined him on was incorrect in that it recorded a conversation between a Beyond Blue counsellor and someone other than the appellant.
After the close of the defence case but before counsel delivered their closing addresses, on the morning of 23 June 2022, the jury sent a note to the learned trial judge. Relevantly, the jury sought 'confirmation of Lifeline/Beyond Blue transcript?'.[7]
[7] ts 431.
The trial judge sought submissions from counsel in the absence of the jury about the matters in the jury note, including the request for confirmation of the transcript. At this point, defence counsel said:[8]
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.
[8] ts 433.
The trial judge indicated that he was not prepared to 'run through and put an imprimatur of the court in relation to evidentiary matters at this point in time in this trial'. His Honour said he would 'answer in the usual way'.[9]
[9] ts 434.
Defence counsel said that his position was that the jury should be 'given some guidance in relation to each question specifically'.
His Honour responded, in effect, that trial counsel could address the jury about the matters raised in the note, but he did not intend to say anything about them. In answer to the jury's questions, his Honour told the jury, at one point, ‘the evidence is the evidence'.[10] In substance, he directed the jury that all of the evidence had been adduced, and that the jury must not speculate about the evidence that was not produced. He told the jury that its verdict must be based on the evidence that it had seen and heard in the courtroom.[11] His Honour did not tell the jury, then or indeed in his summing up, that the document from Beyond Blue was not evidence; that the court had been provided with the wrong document by Beyond Blue; that the appellant had been cross‑examined in respect of a conversation in which he was not a party; and that the relevant cross‑examination should be ignored and not used by the jury to impugn the appellant's credibility.
[10] ts 435.
[11] ts 436.
In her closing address, the prosecutor did not acknowledge that she had cross‑examined the appellant on the wrong document. The matter was, however, mentioned by defence counsel in his closing address. Defence counsel said:[12]
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.
[12] Closing address, ts 29.

Merit of ground 2

Even assuming that MFI 9 had recorded a conversation between the appellant and the counsellor at Beyond Blue, it may be doubted that the conversation was admissible and that the prosecutor was entitled to cross‑examine the appellant as she did. In argument, counsel for the appellant suggested that the State impermissibly split its case. At this point, I will say no more about these matters because they were not pursued in this application.
The credibility of the appellant's testimony was a crucially important issue for the jury to determine in this case.
The prosecutor embarked upon her cross‑examination of the appellant by suggesting, in substance, that his evidence‑in‑chief about his conversation with the counsellor at Beyond Blue was inconsistent with Beyond Blue's record of that conversation. The cross‑examination on his conversation with Beyond Blue was not fleeting and is contained in four transcript pages.[13] The cross‑examination was plainly designed to impugn the appellant's credibility. It suggested that statements the appellant said he had made to Beyond Blue had not been recorded in the transcript and had in fact not been made. The appellant acknowledged that the statements were not in the document, but maintained that he had made them and that the document did not pertain to him.
[13] ts 337 - 340.
It became evident during the trial that Beyond Blue had provided the court with the wrong record. The record that Beyond Blue had provided to the court, and which the prosecutor used to cross‑examine the appellant, as it turned out, provided no basis to impugn the appellant's credibility. Had the prosecutor known this at the time of the cross‑examination, I have no doubt she would not have pursued that line of cross‑examination.
It appears that the record of the conversation was a matter of some importance to at least some members of the jury, having regard to the jury's question. The jury was not told by the trial judge that Beyond Blue had provided the court with the wrong document, and that the prosecutor's cross‑examination of the appellant on the point could not be used by the jury to assess the appellant's credibility. While it is true that the matter was referred to by defence counsel in his closing address, the jury might reasonably have put it to one side, particularly as nothing had been said about it by the prosecutor or the trial judge.
In my opinion, ground 2 is strongly arguable. The appellant was cross‑examined by the prosecutor as to his credibility on the basis that what he told Beyond Blue was inconsistent with his testimony at trial. Unfortunately, Beyond Blue had erroneously produced a document that did not concern the appellant at all. Although the document given to the appellant by the prosecutor in truth provided no basis to impugn his credibility, there was a perceptible risk that the cross‑examination would have had this effect. It is strongly arguable that the trial judge, given his duty to ensure a fair trial, was required himself, with the force of his office, to direct the jury as indicated in [25] above.
As ground 2 is strongly arguable, exceptional reasons have been established for a grant of bail pending appeal. The respondent accepts that if the court arrives at this conclusion, there is no reason why bail should not otherwise be granted. I will hear the parties as to the terms and conditions of a grant of bail.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TDSM
Associate to the Honourable Justice Mazza
20 APRIL 2023