McKerlie v The State of Western Australia [No 2]

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: McKERLIE -v- THE STATE OF WESTERN AUSTRALIA [NO 2] [2006] WASCA 274

CORAM: STEYTLER P
ROBERTS-SMITH JA
PULLIN JA

HEARD: 20 NOVEMBER 2006

DELIVERED : 15 DECEMBER 2006

FILE NO/S: CCA 80 of 2004
CCA 81 of 2004

BETWEEN: COLIN ROBERT McKERLIE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :NISBET DCJ
File No  :IND 516 of 2003

Catchwords:

Appeal - Criminal law and procedure - Appeal against conviction - One count of indecent assault and two counts of sexual penetration without consent - Crossexamination suggesting recent invention - Failure of trial Judge to explain right to silence - Handwritten notes made by appellant the day after events - Whether admissible to rebut allegation of fabrication of account - Recent complaint - Whether evidence confined only to one count - Complainant testifying she did not use mobile phone after alleged offences because it was not working - Telephone company records - Whether new or fresh evidence - Relevance and admissibility - Appellant kept in custody overnight due to error - Effect on his evidence - Whether trial unfair as a result

Appeal - Criminal law and procedure - Appeal against sentence - One count of indecent assault and two counts of sexual penetration without consent - Aggregate sentence of 4 years 8 months' imprisonment - Findings of fact for sentencing - Whether open on evidence - Private inquiry by Judge - Information so obtained not disclosed to counsel

Legislation:

Criminal Appeals Act 2004 (WA), s 31(4)

Result:

Application to adduce additional evidence on appeal dismissed
Application to amend Appellant's Case by addition of grounds of appeal dismissed
Appeal against conviction dismissed
Appeal against sentence dismissed

Category: A

Representation:

Counsel:

Appellant: Mr S B Watters
Respondent: Mr R E Cock QC & Ms E L O'Donnell

Solicitors:

Appellant: Thames Legal
Respondent: State Director of Public Prosecutions

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

Austin (2002) 132 A Crim R 537
Barton v The Queen (1980) 147 CLR 75
Britton v The Commissioner for Road Transport (1947) 47 SR (NSW) 249
Corke v Corke [1958] P 93
de la Espriella‑Velasco v The Queen (2006) 31 WAR 291
Jago v District Court (NSW) (1989) 168 CLR 23
Langridge v The Queen (1996) 17 WAR 346
McKerlie v The State of Western Australia [2006] WASCA 51
Mickelberg v The Queen (2004) 29 WAR 13
MJH v The State of Western Australia [2006] WASCA 167
Nicholls v The Queen (2005) 219 CLR 196
Pearse v Sommers (1992) 28 NSWLR 492
Petty v The Queen (1991) 173 CLR 95
Podirsky (1989) 43 A Crim R 404
R v Cleak [2004] WASCA 72
R v Olbrich (1999) 199 CLR 270
R v Quartermaine [2000] WASCA 341
R v Wise (2000) 2 VR 287
Tan v The Queen, unreported; SCt of WA; Library No 960188; 1 April 1996
The Nominal Defendant v Clements (1960) 104 CLR 476
Wentworth v Rogers (No 10) (1987) 8 NSWLR 398

Case(s) also cited:

AttorneyGeneral v Hitchcock (1847) 1 Exch 91
BeauregardSmith v The Queen (1995) 180 LSJS 188
Chow v Director of Public Prosecutions & Anor (1992) 28 NSWLR 593
Grey v The Queen (2001) 75 ALJR 1708
Hillstead v The Queen [2005] WASCA 116
House v The King (1936) 55 CLR 499
Jenner (2000) A Crim R 512
Laporte v The Queen [1970] WAR 87
Mallard v The Queen (2005) 80 ALJR 160
R v Busby (1981) 75 Crim App R 79
R v Copeland (1997) 194 LSJS 1
R v Dawes [1992] 2 Qd R 435
R v Robinson (1985) 123 LSJS 37
Shepherd v The Queen (1990) 170 CLR 573
Weiss v The Queen (2005) 224 CLR 300

STEYTLER P: I have had the advantage of reading the judgment of Roberts-Smith JA. I agree with him that each appeal should be dismissed.
As to the appeal against conviction, ground 1 asserts only that the trial Judge failed to inform the jury that the appellant "had a right to silence prior to giving testimony" and that "no adverse inference could be drawn against him for raising for the first time a defence at trial".
As appears from the judgment of Roberts-Smith JA, Petty v The Queen (1991) 173 CLR 95 establishes that the prosecutor should neither lead evidence that, when charged, the accused made no reply nor suggest that previous silence about a defence raised at the trial provides a basis for inferring that the defence is a new invention or is rendered suspect or unacceptable. The rationale for this is that to draw an adverse inference from an exercise of the right to silence would be to erode that right or render it valueless: Petty at 99 per Mason CJ, Deane, Toohey and McHugh JJ. In the present case the only suggestion complained of is one made to the appellant in the course of cross‑examination, when it was put to him that he had had some two years in which to fabricate his "story" and that he had done so.
It is, of course, often necessary for a prosecutor to put to a defendant the proposition that his or her evidence is a fabrication. There could obviously be no complaint on that score alone. Here, the problem arises because of the additional suggestion that the appellant had had two years in which to fabricate his story. It might readily be inferred from this that the appellant had not previously told the police what he had told the court. However, it seems to me that there is a distinction between a suggestion of fabrication of details over a period of time and one to the effect that, if the defence raised at the trial was true, it would have been made known to the police from the outset. The latter suggestion undoubtedly invites a jury to infer guilt from an exercise of the right to silence. The former, if it is taken no further, suggests only that the fabrication of the details referred to has been carefully thought out over a considerable period of time. In this case, that was plainly what was being suggested. It was put to the appellant that, as a former lawyer, he knew "the ramifications" of what he had done, that he had had the complainant's statements for two years and that "in that time … [he had] carefully constructed a story which fits certain of the objective facts which provides you with a defence to the charges". In these circumstances, and taking into account that the trial Judge did in fact tell the jury (contrary to what is stated in the first part of ground 1) that an accused person was entitled to remain silent "from the beginning to the end, save for being obliged by law to give his or her name and address", there was, in my opinion, no need for the trial Judge to give the additional direction suggested by this ground.
As to the application to adduce evidence of the appellant's handwritten notes, it seems to me that, even assuming (as I am prepared to do) that these were written by the appellant shortly after the events giving rise to the offences charged, they add nothing in support of ground 1. At best, they might have been admissible at the trial in order to rebut the suggestion of recent fabrication. However, there is no ground of appeal raising that point and, as Roberts‑Smith JA has said, the notes are only advanced in order to emphasise "that his Honour's directions did not go far enough". It seems to me that the directions referred to in ground 1 were unnecessary, for the reasons that I have given, regardless of whether or not these notes (which comprise new rather than fresh evidence, as to which see Mickelberg v The Queen (2004) 29 WAR 13 at [410] ‑ [411]) might have been admissible at the trial if they had been tendered, which, of course, they were not. They consequently lend no support to ground 1 and should not now be accepted in evidence.
As to ground 2, Roberts‑Smith JA has pointed out that, as it was argued at the hearing of the appeal, this ground rested upon the assumption that the complainant's complaint concerning the offences committed against her was limited only to the incident the subject of count 3. For the reasons given by Roberts‑Smith JA, there is, in my opinion, no basis for that assumption. While the only evidence of what was said by the complainant when making her complaint to the police related to count 3, this evidence merely recited the first words used by the complainant which, not surprisingly, related to what she saw as the most serious offence and there was no suggestion that this was her only complaint when she came to make her full statement shortly afterwards.
I should add that in my respectful opinion the trial Judge should have told the jury what use could be made (and not made) of the evidence of recent complaint. However, the only evidence adduced in this respect related, as I have said, to the offence the subject of count 3 and there was, in that respect, no dispute as to the fact that the appellant had penetrated the complainant from behind without her consent. The appellant's defence was based upon his evidence that the penetration had been digital, rather than penile as suggested by the complainant, and that there had been a misunderstanding as regards the existence of consent. It seems to me that the jury must consequently have understood that the evidence of recent complaint merely showed a consistency in the complainant's belief with respect to the manner and circumstances of her penetration. In those circumstances it seems to me that the failure to give the direction contended for did not lead to any miscarriage. I am fortified in that opinion by the fact that, at the trial, the then counsel for the appellant made no request that such a direction be given.
As to ground 3, it may be, as Roberts‑Smith JA points out, that the telephone calls relied upon by the appellant did not originate from the complainant's telephone. The position in that respect seems to me to be unclear. However, even if two calls were made from the complainant's telephone at around 8.45 pm on 6 February 2002, it is difficult to see how evidence of that fact could have been of much assistance to the appellant. The problems with her telephone were not the only reason the complainant gave for not having telephoned anyone. I agree with Roberts‑Smith JA that the circumstances that the offences occurred in the early hours of the morning, that the complainant knew few people in Perth, that she was reluctant to call her boyfriend because of her fears of what he might do, that she was drunk, sick and tired, that she felt confused and that she kept falling asleep provided a more than adequate explanation for her failure to make a telephone call to any third party. In those circumstances I am not persuaded that this ground has any reasonable prospect of success. This is especially so when regard is had to the fact that the evidence is new rather than fresh. The appellant could, during the trial, have attempted to obtain the Telstra records now produced. However, no such attempt was made. While counsel for the appellant has, since the hearing of the appeal, sought to adduce evidence (in an entirely inadmissible form) that this would have necessitated an adjournment for at least two days, that is not necessarily a bar to the granting of an adjournment and the fact is that no application for an adjournment was made. Having chosen to press on without this evidence which, as I have said, seems to me anyway to have had little significance, the appellant cannot now contend that there has been a miscarriage because the outcome of the trial proved to be unfavourable to him. I would refuse leave to introduce this ground and to adduce the evidence relied upon in support of it.
Finally, I agree with what has been said by Roberts‑Smith JA in respect of ground 4. I would add only that it is difficult to understand the submission that the appellant's appearance, as a consequence of his overnight stay in prison, might have been thought to evince "a consciousness of guilt". That submission presumably rests upon the assumption that the appellant looked unkempt, and that this might have been thought by the jury to be a consequence of his concern at the potential outcome of the trial. However, it is hard to imagine that the jury

could have thought that his concern would have been any less if he believed in his innocence than if he believed himself to be guilty.

As to the appeal against sentence, I agree with Roberts‑Smith JA that both grounds should be upheld. For the reasons that he has given, it was not open to the sentencing Judge to find that the appellant knew, well in advance of the dinner, that a third person would not be attending. Also, it seems to me to be beyond argument that the sentencing Judge acted improperly in making his own inquiries of the Legal Practice Board concerning the reasons for the appellant's suspension from practice as a lawyer in circumstances in which he never informed either of the parties of that fact or of the information received by him. The fact that the sentencing Judge referred to each of these matters in his sentencing remarks indicates that they had some influence upon the sentences imposed.
However, like Roberts‑Smith JA and for the reasons given by him, I do not consider that any different sentence should have been imposed: s 31(4) Criminal Appeals Act 2004 (WA).
ROBERTS-SMITH JA: The appellant was convicted in the District Court at Perth (sitting at Fremantle) on 14 May 2004 of one offence of indecent assault and two offences of sexual penetration without consent. On 27 May 2004 he was sentenced to 12 months' imprisonment on the first count, 3 years 8 months' imprisonment on the second, and 4 years 8 months' imprisonment on the third, all to be served concurrently. An order was made that he be eligible for parole.
The appellant's notice of appeal was filed on 3 June 2004. He appeals against both conviction and sentence.
For various reasons, the proceedings failed to make much progress until 22 March 2006. On that date I made a "New Rules Order" pursuant to r 4 of the Supreme Court (Court of Appeal) Rules 2005 (WA). My reasons for making that order and giving a brief history of the matter to that date are set out in my reasons for decision (McKerlie v The State of Western Australia [2006] WASCA 51).
An application for production of Telstra records was filed on 24 April 2006, supported by an affidavit of Paul Meyer also filed that day.
The Appellant's Case on his conviction appeal was filed on 26 April 2006. That set out three grounds of appeal and in respect of a fourth, noted simply:

"To be formulated once the telephone records have been obtained."

At a hearing on 25 May 2006, I granted leave to appeal on grounds 1 and 2 but refused leave on ground 3. I adjourned the application for production of Telstra records and for leave to amend ground 4.
There were various other applications, appearances and orders.
On 13 September 2006, Mr Watters filed a "Minute of Submissions" on a proposed new ground 3, that being to do with the complainant's mobile telephone records.
On 18 September 2006, I ordered the application for leave to adduce proposed new ground 3 be referred to the Court of Appeal for hearing with the appeal.
Then on 31 October 2006, Mr Watters filed two further applications. The first sought leave to rely upon a proposed new ground 4. That concerned the appellant having been kept in custody the night before his second day in the witness box on his trial. The other application filed that day sought orders that, in support of ground 1, the appellant be permitted to rely upon additional evidence, namely handwritten notes he made the day following the alleged offending ("the handwritten notes") and at the hearing of his appeal, he be permitted to adduce oral evidence on the issue of the handwritten notes.
That was supported by an affidavit of his solicitor, Mr Meyer, also filed that day, in which he referred to various parts of the cross‑examination of the appellant which suggested he had invented his account to fit with the objective facts. Mr Meyer also annexed a copy of the handwritten notes which he said had been identified by the appellant as those he had made the day following the alleged offending. He further deposed that he had spoken to the appellant's trial counsel who said he had no recollection of receiving the handwritten notes.
At that stage, these appeals had been listed for hearing on 20 November 2006. Accordingly, on 1 November 2006 I ordered that the applications be heard together with the appeal.
A further (44 page) affidavit of Mr Meyer was filed by Mr Watters on 17 November 2006 in further support of the proposed new ground 3 concerning the complainant's telephone records. The purpose of that, briefly, was to demonstrate that prior to trial, neither the appellant nor his legal representatives were aware the complainant would make the assertion that she was unable to telephone anyone following the incidents she described because her mobile telephone was not working. That evidence was not given until she was asked about it in cross‑examination.
Finally, on the morning of 20 November 2006, Mr Watters handed up a document setting out the appellant's grounds of appeal against conviction, with a redrafted ground 3 which he said more accurately reflected the point of it.
The grounds of appeal against conviction sought to be relied upon are:
"Ground 1
The learned trial Judge failed to inform the jury that the accused had a right to silence prior to giving testimony in Court and failed to direct them that no adverse inference could be drawn against him for raising for the first time a defence at trial such that there was a miscarriage justice.
Ground 2
The learned trial Judge failed to warn the jury the recent complaint evidence only concerned Count 3 on the Indictment and to subsequently direct them as to how they should approach and deal with that recent complaint testimony such that there was a miscarriage of justice.
Ground 3
Material obtained post‑conviction, which amounts to new/evidence, establishes there was a miscarriage of justice and/or would have resulted in the acquittal of the Appellant:
Particulars
(i)the issue at trial was consent;
(ii)the Complainant testified she did not telephone anyone to complain during the res gestae as her mobile telephone was unable to make outgoing calls.
(iii)mobile telephone records obtained post‑conviction show, to the contrary, the Complainant did have the ability to make outgoing calls.
Ground 4
An error mid‑trial on the part of the trial Judge's Associate caused the Appellant to be kept in custody overnight such that he did not receive a fair trial:
Particulars
(i)at the end of the first day of evidence the Appellant's surety did not attend Court to re‑new his bail;
(ii)the Appellant was informed by the learned trial Judge's Associate his surety could attend that evening at Hakea Prison and complete the necessary documentation to secure his release to bail;
(iii)the surety did so attend, but the Associate had failed to sign the relevant paperwork where he was required to do so;
(iv)as a result the Appellant was kept in custody overnight."
I reiterate, leave to appeal has been granted on grounds 1 and 2. The applications to amend the appellant's case by the addition of grounds 3 and 4 - and if leave to amend be granted - then for leave to appeal on those grounds, remain to be determined by this Court, as do the applications to adduce the Telstra records and the appellant's handwritten notes.
It was the prosecution case that in February 2002 the complainant, who was then a 20‑year‑old young woman, was looking for share accommodation in Fremantle. On Saturday 2 February she saw an advertisement in "The West Australian" classifieds. That was for a house in Burt Street, Fremantle, in which the appellant was living. She spoke to him by telephone and an arrangement was made for her to visit the house at 4 pm that day. She arrived at that time and was met by the appellant. She noted that he was significantly older than she. He showed her the house and they talked for about 20 minutes. There were three bedrooms in the house, one of which was his. He told her there was another girl ("Ms W") who might well also be moving in. The appellant wrote down the complainant's name and telephone number and told her that although he had more people to see that day, the room was likely to be hers and he would call her at 6.30 pm to let her know. He did telephone her at that time and told her that she had the room. They discussed the rent and it was arranged that she would move in on the following Tuesday, 5 February.

On 5 February the complainant and her boyfriend moved her belongings, in two trips, to the appellant's house. He was there at the time and assisted them both with the process.
Later that day after the complainant had moved in, she had a conversation with the appellant in which he mentioned that he had planned a dinner for them the following night and that he was expecting her and the other girl to attend. He said it was a "get to know you" dinner for the new occupants.
That evening the complainant and her boyfriend went out to dinner and they did not return to the Burt Street premises until the early hours the following morning. The boyfriend stayed the night, but left early. The complainant slept in and did not go to work until about midday. She was self‑employed.
That evening, which was a Wednesday, the appellant reminded the complainant that he had planned a dinner and he was expecting her to attend. He said there was a possibility that the dinner may be later than he had anticipated as he was not sure whether the other girl was coming. The complainant, when she returned home, got tired of waiting for dinner and went for a run. She returned to the house about 7 pm. She went into the kitchen area where she saw that the appellant was cooking. He told her the other girl was not coming. (Ms W's statement was read in evidence during the prosecution case by consent. In it, she said she had already decided the previous day not to take the room but kept putting off telling the appellant and did not telephone him to tell him until about 5.30 to 6.00 pm on the Wednesday). The complainant did some dishes and he then asked her to change for dinner, which surprised her. When she returned to the kitchen sometime later, the table was set quite formally. There were flowers on the table and background music playing. The complainant said she was going to the local shop for a diet coke but the appellant told her she could not do that because dinner would be ready in a few minutes. He asked her if she would like some wine with dinner.
The appellant poured the complainant some wine and they talked over dinner. During the course of the dinner the appellant continued to fill the complainant's wine glass and by the end of it almost two bottles of wine had been drunk.
Towards the end of the dinner the appellant got up and changed the music in the lounge area and began to dance by himself. He left the room for a short while and returned with a joint of marijuana which he offered to the complainant, who also took two or three puffs of it. At that point she got up to dance too. They were not dancing as a couple. She was still holding her wine glass in her hand. They were several feet apart. The appellant approached her and put his arm around her waist. He pulled her towards him and she then moved away. He did this more than once, approaching her and trying to draw her close to him. She made it clear on each occasion by her movements that she did not want to dance in close proximity. Eventually, when he repeated the action, she punched him in the chest.
Realising that she was intoxicated, the complainant decided she wanted to go to bed so she left the lounge room and went to her room at the front of the house. Apprehensive about the possibility the appellant might follow her, she deliberately decided to keep her clothes on. She closed her door but there was no lock on it.
About 5 minutes later the appellant appeared at the door and opened it. He was wearing a silky robe. She was lying on her bed. She turned her back to him hoping he would go away. He sat on her bed and told her that he was studying massage and that he would give her a massage. He began rubbing her shoulders with his hands. He then straddled her, sitting on her bottom and undid the strings of her bikini. She resisted. He moved to the bottom of the bed and pushed his hands up her shorts and tried to pull them off. She squirmed away and picked up a towel in which she wrapped herself, her bikini top having fallen off because he had untied it.
The appellant pulled the towel away, moved over and sucked her left breast (that was count 1). She pushed him off and started to swear at him, crying and telling him forcefully to get out.
The appellant began to apologise, telling the complainant to stop crying and that he had not planned for this to happen. She repeatedly told him to get out. He did. The complainant put on some different clothes, got back into bed and eventually fell asleep.
Sometime later she awoke to find the appellant was back in her room on her bed massaging her thighs. As she wakened, she realised that his hand was under her shorts. It felt as though oil was being used and a finger and thumb had been inserted into her anus. It was done quickly (that was count 2). She was angry and upset and told him to get out and go away. She sat up. The appellant tried to pull her knees apart, using such force that she had a bruise the following day. He pulled the legs of her shorts aside and made an obscene comment about having seen her vagina so why was she worried. She was angry and held up a photo of her boyfriend, saying "He's going to kill you". She began screaming at the appellant to leave and punched him on the left shoulder. She said she was "very drunk" and she thought she only clipped his shoulder. He said "I get the message" and left.
The complainant was upset but also feeling sick from the alcohol which she had consumed earlier. She said (BAB 21) in evidence that by that stage:
"… I was really, really drunk. I was feeling really sick … Nauseous."
She got out of bed and lay on a lounge in the room. She put the fan on her face so she would not be sick and fell asleep again. The door was shut at that stage.
Later again, she awoke to find the appellant was once again in her room. He told her to go to bed. She was drunk and semiconscious and got into bed and immediately fell asleep. When she woke up later, the appellant was lying behind her, her shorts had been removed and his erect penis was in her vagina. She swore and told him to get out. He got up and left the room without saying anything. She noticed that the time on the clock was 1.30 am.
It was the prosecution case that the complainant then lay there wondering what to do. She did not know who to tell. She had no car and it was very early in the morning. She was from the country and her parents were not close by. She had no close friends she could call on and she feared her boyfriend might kill the appellant if she told him. Eventually, still suffering from the effects of the alcohol (she said "I was very affected by the alcohol" (BAB 23)), she fell asleep again.
The following morning the appellant knocked on her door and walked in about 8.30 am. He sat on her bed and said "I need to talk to you". She said "There's nothing to talk about; you crossed the line". He left the room.
She remained in her room. She did not want to see him. It later became quiet in the house and she thought he had gone out. She got up to have a shower. There was a bottle of almond oil beside her bed. She picked it up and put it outside the appellant's door because she did not want it in her room. She went to the bathroom and had a long shower - for about an hour and a half. She then returned to her room and stayed there.
The complainant heard the appellant come back to the house. He came to her door and knocked, saying that he needed to talk to her. She told him not to come in. She said she was getting changed. In fact she was not getting changed, she just did not want to see him.
Eventually she did get up and got dressed. As she left her room she found the appellant standing at her door. She told him there was nothing to talk about. He said he was sorry for what happened. She said "You're not sorry you did it all the time you were fucking me". She asked him if she led him on, and he said she did not. She said (BAB 26):
"That's right, because I don't think of you like that. You're old enough to be my father."
She told him that for a lawyer he was not very intelligent. He said he could not believe he was so stupid. She said she was not even sure there was a girl coming for dinner. He replied that there was, and he wrote down her name and number on a piece of paper and gave it to the complainant. She told him she was not going to be paying rent from that day because she was moving out and she wanted her money back. He said he would get it for her. He asked if she was going to tell her boyfriend. She said "No. He'll kill you" but that she had to do something about it; she could not just let it go. At that stage she did not know what she was going to do about it. He told her he would do whatever she wanted.
In fact, later that afternoon, she went to the police station. She testified that she told a police officer there what had happened. She was the first person the complainant had told.
The appellant gave evidence at trial. His account, in substance, was that after their dinner had progressed for some time and they had engaged in quite a lot of conversation about their personal backgrounds, the complainant asked him for a massage. He collected his massage towels and candles which he then placed in her room. He undressed to his underpants and put on a silk robe. When he returned to her room she had stripped down to a bra and what he described as "spank pants". He told her that he would have to take her panties off for the purposes of a massage and she said "I'll cope". She lay down on her front and he commenced giving her a massage. He removed her bra top and pants and continued to massage her. She turned over and he massaged her breasts with oil. He continued with the rest of her body. When he finished he kissed her on the breast. She sat up and said she did not want that "then". She wanted drugs and to dance. He only had marijuana. He went to his room and prepared a joint. While there, he heard music from the lounge room. When he went back there, she was wearing her bra and pants again, was holding two glasses of red wine in her hands and was dancing.
They danced for a while and finally the appellant suggested they dance naked. The complainant told him to take his clothes off. He did take off his robe and underpants but she then declined to remove her clothing, saying she did not like the music. They continued to dance and talk. Later he asked if she would like another massage. They returned to her room and he massaged her with baby oil, both of them being naked. He testified that at one point he heard her mobile phone make a noise which he took to be an incoming message but neither of them answered it.
After a while, according to the appellant, he asked if the complainant would like him to "stay and snuggle" up to her but he said she had had enough for one night and "Maybe another time". He returned to his room.
He had been in bed about 20 minutes when he realised he had not removed his contact lenses, so he got up to go to the toilet. As he did so he noticed a light under the complainant's door. He knocked and pushed the door open. She was sitting on a small lounge suite opposite a television which was on but showing only static. She was asleep. She looked uncomfortable, so he lifted her up to carry her to her bed. He had trouble lifting her and she awoke and asked him what he was doing. He told her she could not sleep like that, and carried her to her bed and laid her down. He again asked if she would like him to snuggle up to her. She said "no", she felt drunk, sick and tired. He got up, went to the bathroom and subsequently back to his own bed. This was about 1.30 am. He fell asleep. About 4.30 am he woke up. As he could not get back to sleep he decided to get up, which he did. He went to the kitchen and put on a jug to make coffee. He decided to see how the complainant was. He knocked on her door, asking if she was awake. He opened the door and saw she was lying as he had left her, on her side on top of the quilt. He lay behind her and started rubbing her bare stomach. He then described how she participated in him stimulating her sexually and putting a finger into her vagina. At that point she rolled back towards him, opened her eyes and appeared then to realise who he was. She said "I told you no. Just go away." He said he lay there for a few minutes and then went back to his room. He was shocked, because he realised she had thought it was someone else.
Again, it is not presently necessary to mention the appellant's narrative beyond that.

Ground 1 - Inadequate direction on right to silence

No evidence was led at trial that the appellant had made any statement to police or taken part in any police interview.
The appellant gave evidence in his own defence. This ground turns on the following portion of his cross‑examination (BAB 199 ‑ 200):
"And you are saying that the only time penetration occurred was a case of terrible mistaken identity?‑‑‑Yes.
And you said to her, 'I thought you were into it'?‑‑‑Yes.
And you said - correct me if I'm wrong, but shortly after that you felt sick?‑‑‑That instant I felt sick.
You felt sick?‑‑‑Yes.
Because as a man who had formerly been a lawyer, you knew the ramifications?‑‑‑Yes.
You knew the significance that penetration had to be consensual?‑‑‑Yes.
And knowing that you have created this farrago to give the impression that she was mistaken about who was penetrating her?‑‑‑No, I again recounted to the best of my recollection exactly what happened.
You have had her statement or her statements for two years?‑‑‑Yes.
And I suggest to you that in that time you have carefully constructed a story which fits certain of the objective facts [sic and] which provides you with a defence to the charges?‑‑‑No, that is not true."
Counsel for the appellant submits there was only one passage in his Honours directions to the jury which referred to the appellant's right to silence, that being, when directing the jury as to the appellant giving evidence (BAB 250):
"He has in this case elected to give evidence and in doing that he offers himself to you as a witness whose evidence is there for your consideration as part of the whole body of evidence for you to look at but by going into the witness box he is not accepting that he has anything to prove."
The submission is that his Honour's use of the word "elected" was the only reference to the appellant's right to silence.
The appellant submits that it was not permissible for the State prosecutor to suggest the appellant had two years to fabricate his evidence, and that the trial Judge should have given a strong direction to the jury explaining the appellant's right to silence. He relies upon Petty v The Queen (1991) 173 CLR 95.
The "right to silence" as discussed in that case, means the right of a person who is suspected of an offence to remain silent when questioned by any person in authority about the offence or asked to supply information about it. The majority (Mason CJ, Deane, Toohey and McHugh JJ) described that as "a fundamental rule of the common law". They went on to say (99) that an incident of that right is that no adverse inference can be drawn against an accused by reason of their failure to answer such questions or supply such information. They explained the further necessary consequence of the right (ibid):
"The incident of the right of silence means that, in a criminal trial, it should not be suggested, either by evidence led by the Crown or by questions asked or comments made by the trial judge or the Crown Prosecutor, that an accused's exercise of the right of silence may provide a basis for inferring a consciousness of guilt. Thus, to take an example, the Crown should not lead evidence that, when charged, the accused made no reply. Nor should it be suggested that previous silence about a defence raised at the trial provides a basis for inferring that the defence is a new invention or is rendered suspect or unacceptable."
At 101, they said:
"… the denial of the credibility of that late defence or explanation by reason of the accused's earlier silence is just another way of drawing an adverse inference (albeit less strong than an inference of guilt) against the accused by reason of his or her exercise of the right of silence. Such an erosion of the fundamental right should not be permitted. Indeed, in a case where the positive matter of explanation or defence constitutes the real issue of the trial, to direct the jury that it was open to them to draw an adverse inference about its genuineness from the fact that the accused had not previously raised it would be to convert the right to remain silent into a source of entrapment."
In similar vein, Brennan J said (at 107):
"Where a jury might have had regard to an accused's earlier silence in evaluating evidence given by him at the trial, recognition of the right of silence precludes the jury from taking that silence into account. It is not open to attack exculpatory evidence of an accused as a recent fabrication merely because the accused was silent on occasions when he had a right to be silent. The right of silence would be infringed if evidence of silence were admissible to impugn exculpatory evidence or out‑of‑court statements by an accused."
It may be seen that the principle is that the right will be infringed where the exercise of it is sought to be used to prove or infer guilt.
The only questions which are said here to have infringed the appellant's right to silence, and which are said to have called for a direction from the trial Judge, were those in which it was put to the appellant that he had the complainant's statement for two years and that in that time he had carefully constructed a story which fitted with certain of the objective facts and which provided him with a defence to the charges. He denied that. The point was not developed further in cross‑examination.
The suggestion was that the appellant had plenty of time to fabricate an account. It was not a suggestion that he should be disbelieved because he had not given his account sooner. What the State prosecutor said about it in his closing address to the jury was confined to the proposition that the appellant had made up his account; it was not put to the jury that they could reach that conclusion because the appellant had not given his account earlier. He reminded the jury they had heard two very different accounts of what happened on the evening in question, and went on (BAB 230):
"My submission to you is that Colin McKerlie's account is not credible. It's an exercise by him (indistinct) it was a deliberate and, I would suggest, a calculated effort by him to paint [the complainant] as a flirtatious and naughty girl was a word that he used; someone who is behaving in a naughty fashion."
There was nothing else bearing on this in his address until the end, when he said (BAB 242):
"At the end of the day, I would suggest to you that the version of events put up by Colin McKerlie is simply lacking all credibility. It is a fantasy of an older man who sought to have his way with an attractive young girl and has now fantasised about how it might have occurred and he is not going to let the truth stand in the way of that fantasy.
He has constructed a story that fits with some of the objective facts but denies the actual penetration …"
In short, there was nothing in the cross‑examination complained of, nor in the State prosecutor's address to the jury, which invited the jury to infer guilt either directly or implicitly from the fact the appellant had not given his account until trial. The proposition that the appellant had fabricated his account was necessarily part of the prosecution case; it had to be, given the different account given by the complainant. It was perfectly proper and appropriate for the prosecution to put its case in that way.

As we shall see, the appellant maintains that he made notes of what happened the day after the events. He says those notes would have been admissible to rebut the suggestion of recent invention. In that respect he seems to me to have correctly characterised what the cross‑examiner was suggesting. The way to have met it at trial would have been for him to say that he had not invented or fabricated his account after he was served with a copy of the complainant's statement, and he had his notes to prove it (accepting, of course, there was no onus on him to prove anything). He did not do that and nor did his counsel seek to deal with the point on that basis. Counsel for the appellant at trial sought no further direction on the point.
Furthermore, the direction given by the trial Judge and referred to by counsel for the appellant, when considered in context, was more comprehensive than counsel allows. The particular direction (BAB 250) was:
"Next I want to tell you that the burden of proof in a criminal case is on the prosecution. It never shifts to the accused man, Mr McKerlie, to have to prove anything. The burden of proof is on the state [sic] from the beginning of the criminal trial process to the end. It never shifts to the accused man. He has in this case elected to give evidence and in doing that he offers himself to you as a witness whose evidence is there for your consideration as part of the whole body of evidence for you to look at but by going into the witness box he is not accepting that he has anything to prove. He doesn't.
The prosecution still has to prove the case against him. The prosecution can and, indeed in some cases or in many cases often does, rely part of its case on what an accused person might say if he or she decides to give evidence. It simply illustrates the point that the whole body of evidence is there for your consideration. The accused having elected to give evidence is not accepting that he has something to prove in the case. The burden of proof still stays on the prosecution."
And it is not correct to assert, as counsel for the appellant does, that this was the only reference in the trial Judge's directions to the appellant's right to silence. Shortly after giving the above direction, his Honour said (BAB 252):
"Next I want to tell you that in our system of criminal jurisprudence an accused person is presumed innocent. This presumption of innocence is on an accused person from the beginning of the criminal process through to its conclusion. The presumption of innocence means, for example, that an accused person does not have to speak to the police, save to give his or her name and address. An accused person does not have to offer himself or herself as a witness in court. An accused person may remain silent from the beginning to the end, save for being obliged by law to give his or her name and address.
This presumption has been called the golden thread that runs through our criminal law. It is not a notion, ladies and gentlemen, that exists in theory only. You must commence your deliberations when you retire to the jury room from the starting point that the accused man is innocent and then you see whether the evidence establishes his guilt, whether it establishes his guilt beyond reasonable doubt. If it does, you will convict him. If it doesn't, you will acquit him."
Given that at no stage was the jury invited to draw any adverse inference from the appellant not having given his account earlier, the directions given by his Honour were both correct and all that was necessary.
I return to the issue of the handwritten notes. The issue is not presented in a way which goes directly to this ground of appeal. Mr Watters argued that the evidence only advances ground 1 in the sense that it would be evidence before this Court which would "emphasise the fact that his Honour's directions did not go far enough".
The handwritten notes (annexure PLRM 3 to Mr Meyer's affidavit dated 31 October 2006) are undated and unsigned. They run to some six and a half pages. They begin "Things to remember". For the purposes of this application only, I will assume the appellant would give evidence that he made them on 7 February 2002, the day after the events. From the copy of correspondence which is also annexed to Mr Meyer's affidavit, it appears the handwritten notes were within material forwarded by Messrs Young & Young, solicitors of Bunbury, who had previously been the appellant's solicitors, to Mr Meyer's firm, Thames Legal. In his letter to the appellant dated 24 October 2006, Mr Watters refers to the appellant having told him that he (the appellant) had provided them to both his previous trial counsel, Mr R Mazza (subsequently appointed to the Bench of the District Court before the appellant's trial) and Mr O'Brien, who appeared as his trial counsel. Mr Watters notes that when he spoke to Mr O'Brien about this, the latter could not recall the handwritten notes.
The content of the handwritten notes is essentially consistent with the evidence given by the appellant at trial. There is a general rule of evidence that a witness may not seek to support his or her testimony by proving that they gave the same account previously. The rule was explained by Jordan CJ, Davidson and Street JJ in Britton v The Commissioner for Road Transport (1947) 47 SR (NSW) 249 at 251:
"It is well established that if a witness, whether he be a party or not, gives evidence, it is not permissible to support his evidence by proving that on some previous occasion he made a statement to the same effect: Gillie v Posho Ltd [1939] 2 All ER 196 at 200‑201. To this rule there are two equally well established exceptions. First, in the case of sexual offences, evidence of timely complaints is admissible, … and second, in any case, civil or criminal, in which it is sought to suggest that the evidence which the witness is giving is an afterthought, concocted by him after the event, evidence that he made a similar statement shortly after the event in question is admissible, not as evidence of the event, but to rebut the suggestion that his evidence is belated concoction."
As Hodgson LJ observed in Corke v Corke [1958] P 93, 99 ‑ 101:
"The rule is of long standing and is always strictly applied in criminal cases. See the language of Eyre CJ in R v Hardy (1974) 24 State Tr 199 at 1093:
'Nothing is so clear as that all declarations which apply to facts and even to the particular case that is charged, though the intent should make a part of that charge, are evidence against a prisoner and are not evidence for him, because the presumption … is, that no man would declare anything against himself, unless it were true; but that every man, if he was in a difficulty, or in the view to any difficulty, would make declarations for himself'."
The exception to the rule which is relevant here is that which permits proof of an earlier consistent statement to rebut a suggestion of recent invention. In this context, "recent" does not necessarily have its ordinary meaning - the exception is concerned with an allegation of any fabrication subsequent to the events in question but before the trial (Wentworth v Rogers (No 10) (1987) 8 NSWLR 398, 401). Because the exception allows proof of the previous self‑serving statement of a witness, great care is called for in applying it. Not only must the trial Judge be satisfied the account of the witness in testimony is being attacked as an ex post facto fabrication:
"… but also that the contents of the statement are in fact to the like effect as his account given in his evidence and that having regard to the time and circumstances in which it was made it rationally tends to answer the attack."
(per Dixon CJ in The Nominal Defendant v Clements (1960) 104 CLR 476 at 479 ‑ 480).
The same point was made in that case by Windeyer J at 495:
"… the statement which it is sought to use to dispel this imputation must be made in such circumstances that it logically does so. For if evidence be attacked as a recent fabrication, the attack is not repulsed by proving another statement, itself the product of pressure or of a motive to falsify."
There can be no doubt in this case that the question alleged the appellant had fabricated his account since the events: that was the explicit suggestion.
The question then would have been whether the handwritten notes could have been tendered by the appellant. On the face of it, his evidence on the point would have been uncorroborated. "Cross on Evidence", (7th ed, [17315]) poses the question whether an alleged prior consistent statement is admissible when the only evidence of it is the uncorroborated evidence of the person whose credit it is intended to re‑establish by the tender. The learned author notes that McLelland J gave a negative answer in Pearse v Sommers (1992) 28 NSWLR 492 at 493. His Honour there held:
"… the fact that the witness concerned, whether in oral evidence or in an affidavit made in recent times, newly asserts that he or she made particular statements at an earlier time consistent with their present testimony really carries no weight on the question of his or her own credibility because her credibility in respect of those assertions is no greater than in respect of the assertions originally attacked."
Cross goes on to observe that although that conclusion has some force, the bulk of authority is to the contrary, noting there are instances or statements permitting proof of a prior oral statement by the witness' own testimony, or proof of the witness' notebook, or written statement, or letter, case notes or diary, without any independent corroboration.
In this case, the more difficult question would have been whether proof of the handwritten notes would have rationally tended to answer the attack. Clearly it would have done insofar as the proposition put by the cross‑examiner was that the appellant had the complainant's statement for two years and had contrived an account to accommodate what was in that. On the other hand, even if it were to be accepted that the notes were made the following day, that fact would not rationally repulse the claim that the appellant had contrived a false account to counter the complainant's allegations. The pressure or motive for the appellant to falsify his account was exactly the same the day following the events as it was two years later. Regarded in this light, the argument that the availability of this evidence before this Court emphasises a conclusion that the trial Judge's direction did not go far enough, cannot be sustained.
In addition, and reinforcing this conclusion, is the fact (to which I have already adverted) that neither the appellant nor his counsel made any reference to the handwritten notes when the suggestion of fabrication was put to him, nor sought to do so then or later. Further, even if the handwritten notes had been provided to counsel, he may well have made a tactical forensic decision not to refer to them. There is nothing before us about that and we cannot speculate about it.
Ground 1 must fail.

Ground 2 - Recent complaint

The trial Judge said nothing in his directions, about the evidence of recent complaint.
However, this ground is founded on the assumption that the evidence of recent complaint was admissible only in respect of count 3. In my opinion that assumption is wrong.
All the complainant said about this in evidence‑in‑chief was that she went to the police station the following afternoon and told Constable Smith what had happened. In cross‑examination, the only mention of it was to confirm that she had made two statements to the police.
Constable Smith's evidence‑in‑chief was, relevantly, (BAB 117):
"Did she make a complaint that she had been sexually assaulted?‑‑‑She did.
Can you recall the words that she used?‑‑‑I can.
What did she say?‑‑‑She said, 'I want to make a complaint about my housemate. I woke up last night' - and then she used profanities to explain a sexual act.
Yes, well, we can all cope with that. Exactly what words did she use?‑‑‑She - 'I woke up last night and he was fucking me from behind.'
All right. You then, I think, explained the process of making a complaint to [the complainant]?‑‑‑Yes, I did.
And the procedures and the role of the Sexual Assault Resource Centre?‑‑‑That's right.
Now, when you commenced making your inquiries with her did you ask her whether she had spoken to anyone else about the matters that she was complaining to you about?‑‑‑Yes, I asked her if she had told anyone else about the complaint she was making and she said 'No', and I said, 'So am I the first person that you've told,' and she said 'Yes'.
Can you tell me what condition she was in? How did she present herself to you?‑‑‑She was very upset. She was shaking, trembling, and she was teary. She cried.
Did you take a statement from her at that time?‑‑‑I asked if she would like a drink or coffee she was so upset, which she said she'd have a coffee, so I made her one of those and then we sat down and we discussed - well, she told me what had happened to her before taking a statement and then after she had told me what happened then I commenced taking her statement. She handed me a piece of paper before I started ‑ ‑ ‑
What - did the piece of paper have something written on it?‑‑‑It had a person's name, Colin McKerlie, written on it.
Right?‑‑‑I gave that piece of paper to a colleague of mine to do some inquiries in terms of to find out who that person was, and then I proceeded to take a statement from her. She dictated to me and then I took ‑ ‑ ‑
Did she also give a second piece of paper to you at the end of the interview?‑‑‑She did. It was a female's name on it; [Ms W], I believe the name was, and there was also a phone number on the piece of paper.
You said that she was visibly upset, teary. Did that appearance, that demeanour change at all during the course of her giving the statement?‑‑‑She was upset and crying at time. She managed to compose herself though but she also became angry at times towards the person that she made the complaint against."
In cross‑examination, the constable said the complainant arrived at the police station about 2.30 pm and was with her a few hours. It was after 4 pm when she took the complainant upstairs to speak to the detectives. She witnessed the first statement signed by the complainant at 6.20 pm. There was then the following question and answer (BAB 120):
"When you spoke to her and you said that you discussed or, rather, listened to her in relation to her account before moving on to the taking of a formal statement, did you take any notes of what she was saying during that informal preview?‑‑‑I can't recall. Generally I do. All those notes and everything that I do take is given to the detectives that were in charge of the case."
Counsel of course had the statements of the complainant as they were part of the prosecution brief which had been served on the appellant. I consider it clear that the "complaint" referred to in evidence was the complainant's account of the sexual assaults committed upon her, as told to the constable and as she recounted in detail in her evidence. It would be wholly artificial to construe the evidence of the complaint as being limited only to the incident the subject of count 3. This ground accordingly falls away.

Proposed ground 3 - Mobile telephone records

In his affidavit filed 24 April 2006 in support of the application for leave to adduce this additional evidence, Mr Meyer deposes that the complainant only obliquely addressed the issue during her evidence‑in‑chief. Whilst explaining why she did not telephone anyone after the incidents, the complainant said her family lived down south, she did not have many close friends she could have called and the reason she did not telephone her boyfriend was because he would have "injured the complainant [sic appellant]". Mr Meyer deposes that in cross‑examination the complainant said for the first time that the reason she did not telephone anyone was because her mobile telephone was not working. He states that the complainant's credibility was central to the prosecution case against the appellant and that when questioned during the course of her evidence in both evidence‑in‑chief and during cross‑examination, the complainant generally stated her mobile telephone was not able to make outgoing calls but could receive incoming calls and had been like that for some time. (There was an obvious inconsistency in what Mr Meyer says here, but nothing turns on that). He says that had the appellant been aware before trial commenced that the complainant would claim that at the relevant time she was not able to make outgoing calls from her mobile telephone, he could have instructed his lawyer to subpoena the complainant's mobile telephone records so she could be cross‑examined upon this point.
The issue first arose in the complainant's evidence‑in‑chief (BAB 23):
"Did you stay awake then for some time?---Yeah, I did; yeah. I was laying there thinking about what I was going to do. I didn't know who to tell.
Confirm this for me: did you have a car?---No, I didn't have a car.
Did you have any parents or close friends who you could ring?---No. My family live down south and my friends - I didn't really have many close friends that I could've called, and my boyfriend would probably have killed him and I was - yeah.
Eventually did you fall back to sleep?---Yes.
Were you still affected by the alcohol?---I was very affected by the alcohol?
Counsel for the appellant returned to it in cross‑examination (at BAB 29):
"He came back and there was another assault, another attack upon you. Is that right?---Yes, there was.
Again, you remained in that room?---Yes I did.
You didn't leave?---No, I didn’t.
You had a mobile phone?---I don't - it wasn't working.
Sorry?---I couldn't call - I couldn't call on my mobile.
You couldn't call on your mobile?---No.
NISBET DCJ: I though she said, 'I didn't think it was working'.
Is that what you said the first time?---Yeah. There was something wrong with it; I don't know.
O'BRIEN, MR: So were you desperately trying to use it?---Sorry?
Were you trying to use it?---No, my phone was broken."
A little later there was a luncheon adjournment, and when cross‑examination resumed, counsel returned to it again (at BAB 50 ‑ 51):
"… before the luncheon adjournment I was asking you about the Wednesday evening. I will just get back to that in a moment, if I may. There's a couple of other questions, if I may, about the situation with the telephone. You have told his Honour and the jury that your own phone wasn't working, you couldn't ring out. Is that correct?---Yes.
On the Tuesday when you moved in, were you running late with [your boyfriend] when you first arrived with the furniture?---I'm not sure. I can't remember.
Do you remember if you rang Mr McKerlie and said you were running late and you would be an hour or so late and get there at about 11.00 instead of 10.00 as previously arranged?---I may have.
Okay, you may have. Would you have used your own phone if such a call took place?---No, I would have used ‑ ‑ ‑
You would have used [your boyfriend's] phone? Also prior to - well, perhaps on the Tuesday or the Wednesday, did you talk to Mr McKerlie about the arrangements concerning the telephone in the house at which you were going to stay?---No, I have no recollection of any conversation of [sic] the telephone.
Did you know there was a telephone in the house?---No, I did not.
Did you know there was a telephone down in the office on the fax machine?---No, I didn't.
Or a phone in Mr McKerlie's room? Did he not ask you whether you wanted an extension on the telephone? Did you not say, 'No, I shall make my phone calls on the mobile, then we don't have to worry about splitting the bill'?---No, because I wouldn't make - I was just - I didn't have any money. I wouldn't make my phone calls on my mobile even if I could.
But you were running a business at that time, weren't you, or ‑ ‑ ‑?---Yes, it had just started.
Just started?---I had no money.
But did you not have your telephone operational for business purposes in case somebody rang you?---No; just in my office, yeah.
You gave your card out. That card I think which is an exhibit has a mobile phone number on it?---Yes.
Are you saying that if somebody was given your card and rang that mobile phone number they could ring in?---My phone was very unpredictable, I dropped it so many times.
Sometimes it worked and sometimes it didn't. In any event, I asked you questions about that because - well, I asked you whether you tried to use your phone on the night later on when - you didn't, did you? You didn't think to ring the police or contact the police? No?---(indistinct)
All right. Going back, if I may, to where we were prior to lunch, I was asking you questions about the evening of the Wednesday when you had come home. I think you had got a phone call on the way home to see where you were or whether you were going to be late or whether you were coming. You told us about that. Correct?
And you came home - you came back to the address at 32 Burt Street and Mr McKerlie was there when you got there?---Yes."

Finally, in re‑examination (BAB 115):
"Just a couple of little things, if I could … Your mobile telephone, just so I can understand that - it wasn't broken completely? You could use it?---No. I could receive calls but it was dodgy. I kept dropping it all the time. It was old.
In terms of making calls out?---I couldn't make calls out.
You couldn't make calls out?---No.
Had it been like that for some time?---Yes.
Why hadn't you had it repaired?---Because I didn't have any money.
And you knew it was in that condition, that you couldn't make calls out ‑ ‑ ‑?---That's right.
‑ ‑ ‑ at the time these events occurred?---Yes, that's right.
So was there any way you could have used that phone to call anybody?---No, I could not have."
Mr Watters submits that had the appellant been aware the complainant was going to say at trial that she could not telephone for assistance because her mobile phone was not working, he could have obtained the Telstra records by subpoena and tendered them to prove it was untrue. He says the records would clearly have gone directly to the complainant's credibility.
The Telstra records provide a list of all incoming and outgoing telephone calls for the complainant's mobile phone number from 28 January to 28 February 2002 inclusive ("list A"). There is a separate list in respect of the appellant's telephone number ("list B").
List A shows that over that period, there were numerous calls made to the complainant's phone, but apparently relatively few made from it. In particular, only three calls seem to have been made from that phone between 28 January to the end of 5 February 2002, whereas some 234 calls were made to it.
According to list A, there was no apparently outgoing call on the complainant's phone after 6 February 2002 until 10:38 hrs on 15 February 2002.
On the face of it, on 6 February, one call was attempted from that phone at 20:45 hr but that was unsuccessful. The list shows four calls of zero seconds duration all at this same time. This is explained by an annexure to the lists and accompanying letter from Telstra dated 25 August 2006:
"Annexure contains examples where telecommunications networks generate multiple records of the same call. This is a normal situation. The multiple records represent different events within the same call, for example an event is recorded where a call is passed from one telecommunications carrier's network to that of another telecommunications carrier, or where a call is made to an Intelligent Network service (eg a 2800 or 12 prefix service).
Each record will be either the same or may vary by typically about 1 second, representing either timing differences between networks or elapsed time between the different events for the same call.)
[Note, a duration of 0 (zero) seconds is known as a call attempt. A call was originated but either the call was not answered by the called party, the call number was engaged or an invalid service number was dialled.]
Counsel for the appellant says the Telstra telephone record is critical because it shows that on 6 February 2002, between 8.45 pm and 8.46 pm, three calls for a total call time of 63 seconds were made from the complainant's phone and there were a further 18 calls received by it on that day.
The first call at that time shown on list A is at 20:45:00. That is a call from a particular number (# 1) to the complainant's number with a duration recorded of 7 seconds. The next four calls shown are for exactly the same time (20:45:00). However, those four calls all show a duration of 0 seconds; three of them are from # 1 to the complainant's number and the other is from the complainant's number to a different number (# 2).
The next call shown on List A is at 20:45:04. That is a call from another number (# 3) to the complainant's number. The next call shown is also for the same time (20:45:04) from the complainant's number to # 2 again. The next call is a call (at 20:45:05) to the complainant's number from # 3, then (also at 20:45:05) from # 3 to the complainant's number. A duration of 37 seconds is shown for each of these last four calls. That is obviously all one call, presumably rerouted - it appears to be an example of the multiple recording of a single call. The first number in the sequence is the originator - that was # 1, that is, not the complainant's number.
The last number in the sequence, as recipient, was the complainant's number. In other words, this was not a call from the complainant's telephone, but one made to it. Another call is made from a different number again (# 4) to the complainant at 20:45:49. The duration is recorded as 0.
The next call relied upon by the appellant is one at 20:46:06. But the call which appears to be originated by the complainant's number is actually the fourth in a sequence of five entries, each shown as lasting 26 seconds. The first in the sequence is again from # 1 to that of the complainant's phone. Next in the sequence is a call from # 1, again to the complainant's phone. The third is another call from # 1 to the complainant's phone; the fourth is a call from the complainant's phone to # 2 and the fifth is a call from # 1 to the complainant's phone. Again therefore, it appears in short, the originating call was from # 1 to the complainant's phone. This too, was an incoming call to the complainant's mobile, not an outgoing call.
The three calls which appear to have been made from the complainant's mobile phone between 28 January and 5 February 2002 now also call for closer scrutiny. Each of them can now also be seen to be part of a sequence of multiple records of the same call, in each instance. None of them originated on the complainant's phone. There was a sequence of three calls at 21:16:52 on 28 January, each call showing a duration of 29 seconds. On 30 January there was a sequence of four calls at 11:11:31, each showing a duration of 28 seconds; and on 4 February at 08:15:44 there was a sequence of three calls each showing a duration of 43 seconds.
The calls which on their face appear to have originated from the complainant's phone on and following 15 February 2002 show similar characteristics.
The Telstra telephone record evidence is sought to be relied upon to support a ground that it is evidence which, if it had been available to the appellant's representatives prior to trial, would have resulted in the appellant's acquittal because it would establish that on the night of 6 February 2002 the complainant would have been able to telephone people.
The evidence patently could not establish that. The application to adduce this additional evidence, and proposed ground 3 itself, are founded on a fundamental misunderstanding of what the Telstra records show. For this reason alone, the ground could not succeed and leave to adduce the additional evidence on the appeal must be refused, as must be leave to add this ground.
Even if my understanding of the telephone records be incorrect and it be the fact that two calls were made from the complainant's phone on 6 February 2002 between 8.45 pm and 8.46 pm for a total call time of 63 seconds, I would still reach the same conclusion.
The telephone record evidence is properly characterised as "new" evidence. It is not "fresh" evidence. The distinction was explained in Mickelberg v The Queen (2004) 29 WAR 13 at [410] ‑ [411] and discussed by Pullin JA in de la Espriella‑Velasco v The Queen (2006) 31 WAR 291 at [152] ‑ [158]. As his Honour there explained, the importance of the distinction is that if the evidence did not exist or could not with reasonable diligence have been discovered by the appellant before trial ("fresh" evidence) they need to establish only that they have been deprived of a reasonable prospect of acquittal, to satisfy an appeal court there was a miscarriage of justice. On the other hand, if the evidence existed at the time of trial and the appellant could, with reasonable diligence, have discovered it ("new" evidence) then a miscarriage of justice will not be shown on account of its absence unless the evidence is such as to persuade the appeal court that the appellant is innocent or raises such a doubt that the court considers they should not have been convicted.
Even if understood in the way counsel for the appellant contends, this evidence could not lead to a conclusion the appellant is innocent or ought not to have been convicted.
That her phone was not working was not the only reason the complainant gave for not telephoning anyone. The incidents occurred late at night or in the early hours of the morning. Her evidence was that she came from the country and knew few people in Perth. She could not call her boyfriend because she believed he would have attacked the appellant and then himself be in serious trouble. She was so drunk that she felt sick and nauseous. She kept falling asleep. She was confused and distressed. She did not know what to do. It did not occur to her to telephone anyone. Given this evidence, I do not consider the fact (if the telephone record evidence were taken as establishing it) that her mobile phone was able to make two outgoing calls for a total of 63 seconds between 8.45 and 8.46 pm on 6 February 2002, would have been likely to cast such doubt on her credibility as to lead to a conclusion that the appellant was innocent or that he ought not to have been convicted.
Finally, even assuming (which I do not necessarily think to be correct) that the complainant's assertion that the reason she did not telephone someone after the incidents was because her mobile phone was not working, was evidentiary material which the prosecution was under an obligation to disclose prior to trial (see s 42, s 95 and s 97 Criminal Procedure Act 2004 (WA)), the remedy and appropriate course would have been to apply for an adjournment to obtain the Telstra records. This was not something which arose only after trial. It came out of the complainant's evidence at trial. The records could have been obtained and scrutinised and, if necessary, the complainant could have been cross‑examined on what they showed. That was not done. No cogent reason has been advanced why it was not. In those circumstances, the appellant cannot rely upon it now. (There is a further question here as to the forensic use which could properly have been made of them, even had they shown what the appellant says they do. It is arguable that the issue went only to the complainant's credibility and was collateral. If that were so, counsel for the appellant would have been bound by the complainant's answers and could not have adduced the records into evidence anyway (see Nicholls v The Queen (2005) 219 CLR 196, discussed in MJH v The State of Western Australia [2006] WASCA 167. However, given the reasons I have already expressed, it is not necessary to deal with that question).
The same conclusion as to the application for leave to adduce this additional evidence and to add proposed ground 3 must accordingly be independently arrived at for these reasons.
On 4 December 2006 (that is, after judgment had been reserved) the Associate to the President received a letter from Mr Watters dated that day and to which was attached copy correspondence between him and Telstra. He acknowledged leave had not been sought at the hearing for the appellant to provide further material to the Court and nor had any order to that effect been made. Nonetheless, he requested this information be accepted pursuant to s 40(1)(e) of the Criminal Appeals Act 2004 (WA) as part of the appellant's material to be relied upon in his appeal.
This material goes to the point whether the appellant could have sought an adjournment during the complainant's cross‑examination, to obtain the Telstra records. In its letter to Mr Watters dated 4 December 2006 (in response to a letter from him also dated that day) Telstra advised that had it received a court order or subpoena in May 2004 for the complainant's billing records for her pre‑paid mobile phone from February 2002, it would have required a minimum of approximately five days to comply.
It is inappropriate for counsel to seek to put material of this kind before the Court following the hearing of an appeal. Once again, it is an inquiry which could easily have been made before the hearing. In any event, in my opinion, it does not counter the point that the Telstra records were thought to be of such importance an adjournment could have been applied for to obtain them, but that was not done. For these reasons I would not have regard to Mr Watters' letter and attachments.

Proposed ground 4 - Appellant kept in custody overnight

The trial commenced on Wednesday 12 May 2004. The evidence for the first day concluded and the jury were dismissed for the day at 4.07 pm. Counsel for the appellant then applied for bail during the course of the trial. The appellant had been on bail prior to trial. The Judge asked if the surety was present. The transcript records what followed (t/s 148):
"O'BRIEN, MR: Yes. I understand - I don't think he's sitting in the courthouse, but he has been told to be here at about this time. 3.30 I think I told him to come here, so I presume he's ‑ ‑ ‑
NISBET DCJ: You're expecting the surety anyway. There will be some new conditions.
O'BRIEN, MR: Yes. I would be obliged."
The Judge then granted overnight bail during the currency of the trial on the usual conditions and with a requirement for a surety. He then adjourned the trial until 10 am the following day, Thursday 13 May 2004.
The trial resumed shortly after 10 am on 13 May. There were some difficulties with the jury which are not pertinent here, and the prosecution case then continued. That concluded just before 12.30 pm and the appellant then commenced to give his evidence‑in‑chief. That continued to the luncheon adjournment and thereafter. His cross‑examination commenced about 3.18 pm and concluded after 4 pm that day. He was not re‑examined. His counsel then closed the appellant's case.
The trial Judge then discussed with counsel and the jury what the sitting times would be for the following day and decided to start at 9.30 am. The jury departed for the day at 4.30 pm. There was then the following exchange between his Honour and counsel for the appellant (t/s 285 ‑ 286):
"NISBET DCJ:   Yes, the jury is gone. No problem with overnight bail again, Mr Hall?
HALL, MR:   No, your Honour.
NISBET DCJ:   All right then, Mr McKerlie, you have got overnight bail on the same terms and conditions. Do you want to talk with Mr O'Brien? Your surety was late last night or something. Feel free to take instructions, Mr O'Brien.
O'BRIEN, MR: That's perhaps workable, your Honour. I think last evening, as your Honour noted, the surety was a bit late and Mr McKerlie was (indistinct) and, yes, he thought it was today ‑ ‑ ‑
NISBET DCJ:   That's what I understood from the clerk of arraigns.
O'BRIEN, MR: Yes, he did. Your understanding is correct. The surety thought the trial was starting today and was duly here this morning but yesternight [sic] when I got in touch with him it was a bit late for formalities at Hakea. Perhaps if your Honour said he was to be released from Hakea instead of being held her [sic here] for half an hour. I think his concern is that his front door keys, personal property, money, that sort of thing ‑ ‑ ‑
NISBET DCJ:   But hasn't his bail - a release has been signed; he's released.
O'BRIEN, MR: Yes, I know that, your Honour.
NISBET DCJ:   The release is signed.
………………:   It's just a matter of travelling.
O'BRIEN, MR: It's just a matter of him getting to Hakea Prison.
NISBET DCJ:   Why does he have to get to Hakea?
O'BRIEN, MR: Because that's where his front door key and his money is.
NISBET DCJ: I see.
O'BRIEN, MR: Because he was held last night, you see.
NISBET DCJ:   I see. Okay, so you just want a variation to be able to go to Hakea.
O'BRIEN, MR: Yes.
NISBET DCJ:   Instead of going straight home. Is that all?
O'BRIEN, MR: Yes, instead of going straight home, that your Honour just say, 'Look, he be released from Hakea instead ‑ ‑ ‑'
NISBET DCJ:   There's no problem with that, Mr O'Brien.
O'BRIEN, MR: Much obliged.
NISBET DCJ:   We must be at cross‑purposes.
O'BRIEN, MR: Sorry, your Honour.
NISBET DCJ:   Yes, all right.
O'BRIEN, MR: Thank you.
NISBET DCJ:   I won't even make it a formal variation. Going straight home means via Hakea to pick up your keys so that you can get home. All right.
O'BRIEN, MR: Thank you, your Honour."
When the court resumed at 9.32 am the following morning, the trial Judge asked whether either counsel wished to raise anything with him before he invited the jury in. They both said there was not. Counsel then addressed the jury and the Judge gave his summing up.
The present application (which although not so expressed, is in reality an application to amend the Appellant's Case by adding proposed ground 4 as a new ground of appeal) was filed on 31 October 2006. In his affidavit in support made that day, Mr Meyer refers to certain documents annexed to the affidavit, being correspondence between the appellant and Mr Watters. Most, if not all of that, ought not to have been put before the Court. A good deal of it does not necessarily work to the benefit of the appellant.
The appellant relies upon what appears as items 7 and 8 in a letter from him to Mr Watters dated 11 April 2006. I will not set it out here. The substance of his complaint is that he was kept in custody overnight on 12 May 2004, the day before he was to give evidence on his trial, due to an administrative error. He writes that his surety attended the prison approximately 7 pm but the prison authorities would not release the appellant to bail because the bail papers required the signature of the clerk of arraigns and as that person was not available the appellant was held in custody overnight. He says this had a very serious effect on his physical and mental state, he was not given an opportunity to shave or shower before being taken to court the next morning and he had to give evidence in that condition. He says his condition was not explained to the jury and "it is reasonably possible that the jury interpreted [his] physical appearance as being a result of a consciousness of guilt".
The appellant writes that he had only a brief opportunity to speak to his counsel next morning before court, but did repeatedly tell him he did not want to give evidence looking the way he did. He says that rather than pursuing the appellant's concern, counsel told him he looked "okay". He concedes he did not tell counsel to apply for an adjournment, but says that counsel should have interpreted his reluctance to give evidence as being equivalent to that.
On the material before us, it is not possible to reach any definite conclusion as to how the appellant came to be kept in custody that night. What is clear, is that his counsel expected his surety to be available at the court that afternoon, but the surety was not there and did not get to the prison till about 7 pm.
I think the appropriate way to approach this proposed ground is to assume (but without deciding) what the appellant says about what happened is correct.
This proposed ground must be construed as asserting a miscarriage of justice in that by reason of his overnight incarceration (for whatever reason) the appellant did not receive a fair trial.
The notion of a fair trial was discussed by the High Court in Barton v The Queen (1980) 147 CLR 75.
In that case Gibbs ACJ and Mason J (at 95 ‑ 96) spoke of a trial which is unfair when judged by reference to accepted standards of justice.
In Jago v District Court (NSW) (1989) 168 CLR 23, Mason CJ spoke of the judicial discretion to prevent unfairness (26). He was referring to the right of an accused to receive a fair trial (29), but that was in the context of a discussion about the processes of the court lending themselves to unfairness to an accused. The application in that case had been for a permanent stay of proceedings due to undue delay. As Mason CJ explained, the focus was not simply on unfairness to the accused, but on the misuse of the court process (30).

The press release was in the following terms:
"DISCIPLINARY HEARING
REPORT OF PROCEEDINGS
COLIN ROBERT McKERLIE
On 15 August 2003 the legal Practitioners Disciplinary Tribunal resolved to submit a Report to the Full Court of the Supreme Court of this State with a recommendation that Colin Robert McKerlie be struck off the Roll of Practitioners. It also ordered that the practitioner be suspended from practice pending the resolution of this matter by the Full Court and that the practitioner pay the Committee's costs.
The Tribunal dealt with 16 References referred to it by the Legal Practitioners Complaints Committee concerning the practitioner. In general they alleged and the Tribunal found as fact that the practitioner:
•Failed to comply with Section 34 of the Legal Practitioners Act (the Act) by paying some money on account of costs to his general office account, rather than his trust account, before rendering bills of costs and at times without at any time, rendering bills of costs.
•Paid monies on account of costs to his trust account and transferred the monies to his general account or to his private account without sending an account to this client as required by Section 34 of the Act.
•Paid monies earmarked for other specific purposes in his trust account to himself without authority.
•Failed to respond to the Law Complaints Officer's requests concerning clients' complaints.
In the circumstances, Counsel for the Legal Practitioners Complaints Committee submitted that the Tribunal should submit a Report to the Full Court with a recommendation that the practitioner be struck off the Roll of Practitioners.
The practitioner explained that he ceased to practice in 1998 and is an undischarged bankrupt. He stated that he has been a successful prosecuting counsel in the past, but had difficulties with solicitors with whom he had practised when he came to Western Australia. He conceded that his accounting systems were faulty. He stated that on occasions, he had paid money which he had received on account of costs to his private account rather than his general office account because he needed money and it was likely that his cheques would not be met from his office account. In other matters he conceded that he had transferred money from his trust account for costs without having rendered a memo of costs. He indicated that he failed to respond to requests from the Law Complaints Officer in relation to complaints made by clients because he believed that he had not been dealt with in an even handed manner when compared with some other practitioners.
Apart from the fact of transferring money from his trust account to his general account without rendering an account of his costs: the more serious matter is when he transferred money from his trust account into his own account, which money had been paid for the purpose of paying a surveyor's report. He also transferred money from the trust account leaving it in deficit on two occasions.
The practitioner stated that he had established a set of Chambers called 'The Common Room' which ended as a financial disaster. He claimed that he continued to act for persons of small means and says that he had been let down badly by other solicitors with whom he had worked. He has had personal problems but conceded that he had not fulfilled his function as a legal practitioner and that for some period his own personal problems caused him to reach the stage where he ceased to practice.
The Tribunal found that the serious breaches of the basic obligations required of a practitioner under Section 34 of the Act, and the taking of trust monies held for payment to others, left it with no alternative but to accede to the request made by Counsel for the Complaints Committee."
Private inquiries made by a sentencing Judge affecting the imposition of sentence on an offender constituted departure from the common law judicial process. That point was made by the Court of Criminal Appeal of Western Australia in Tan v The Queen, unreported; SCt of WA; Library No 960188; 1 April 1996. The applicant had been convicted of a number of offences arising out of an incident in which he and four other men had gone to the victim's house and assaulted him. One ground of appeal was that the Judge had erred in law in causing inquiries to be made as to an issue of fact which had been raised in the course of the trial, in using the information so obtained to interrogate the applicant as part of the sentencing process and in allowing that information to form the basis of a conclusion adverse to him.
While being cross‑examined at trial the applicant had been asked whether he practised martial arts. He said he did so when he was a child in primary school. When asked if he still practised martial arts, his answer was in the negative. After the trial, and while the applicant was awaiting sentence, a letter or report from the principal of a kung fu school was either obtained by the Judge or sent to him. It stated, in effect, that the applicant was a life member of the school, that he had a yellow belt grading and that he had recently paid a grading fee.
When the applicant appeared for sentence, the Judge reminded him of what he had said during the trial and told him that his evidence to the effect that he did not still practice martial arts was incorrect. The Judge then told the applicant's counsel of the information which he had obtained and, at counsel's request, allowed him to see the document. Counsel took instructions about it from the applicant. He then informed the court that the information was correct but stressed that a yellow belt is the first belt obtained. In his reasons for sentence, the Judge did not refer to the applicant's experience in martial arts.
As to this ground, Heenan J (with whom Wallwork and Murray JJ agreed) said:
"It seems that the course taken by the learned trial Judge to inform himself as to the martial arts activities of the applicant was of an inquisitorial nature. To that extent it departed from the judicial role to which we are accustomed in our common law system, if only because it might suggest excessive zeal or even give rise to the apprehension that when sentencing the Judge would not perform his role with the necessary impartiality. It is a course which is unusual and it is a course which should not be taken. That leads us to consider whether the exercise of the sentencing discretion miscarried."
In that case the court concluded that the exercise of the sentencing discretion had not miscarried. Leave to appeal was granted, but the appeal was dismissed.
It may happen that information comes to the attention of a sentencing Judge inadvertently or for some reason other than as a result of some specific inquiry by the Judge. In R v Wise (2000) 2 VR 287 the offender had been released on a community based order after pleading guilty to attempted armed robbery and was brought before the county court for breach of that order. The Judge who was to resentence him was not the Judge who had passed the original sentence. At the resentencing hearing, neither counsel had a copy of the original sentencing remarks. Counsel for the offender, who had not appeared at the original hearing, said he knew nothing of the original offences except what he had been told. The resentencing Judge said he had a copy of the original sentencing remarks, which were part of the record of the court, but it was only available to Judges. He referred to parts of the original sentencing remarks in his own sentencing comments and resentenced the offender to 15 months' imprisonment and fined her $100 on the charge of breaching the community based order. An appeal against sentence was allowed.
The Court of Appeal held there had been a denial of natural justice.
Ormiston JA (Brooking and Chernov JJA agreeing) said at [20] ‑ [21]:
"20The critical matter here … is whether in fact procedural fairness was or was not afforded the applicant because the learned re-sentencing judge acted upon, and appeared to act upon, the basis of and in reliance on material not available to counsel for the present applicant (and indeed largely unknown to him). It is an elementary rule, whether in relation to civil or criminal proceedings, that a judge shall not determine any question without affording counsel for each party an opportunity to see and comment upon any material relevant to the issue before the court which is available to the judge and known not to be available to counsel: R v Carlstrom [1977] VR 366 at 367. As was emphasised by Kaye J in R v Licata and Regan (Unreported, Court of Criminal Appeal, 28 February 1977) referred to in an addendum to Carlstrom at 368, the withholding of material 'is repugnant to basic concepts of fairness and justice'. At 1. See also R v Hogan (unreported, Court of Criminal Appeal, 2 December 1993) at 5‑6 per Brooking J.
21Likewise a sentence should not be imposed if it is founded wholly or partly on material which has not come before the sentencing judge in open court: see R v Taitand Bartley (1979) 24 ALR 473; 46 FLR 386 (Full Federal Court). If any relevant material is gathered or obtained by the judge from private sources or sources not available to the parties, which is capable of being used adversely to the offender, then, unless that course is specifically agreed to by counsel for the offender, the sentence will ordinarily be set aside: ibid."
Section 15 of the Sentencing Act 1995 (WA) allows that in deciding on a sentence to be imposed, a court may inform itself in any way it thinks fit. Section 656 of the Criminal Code (which was its predecessor) was to substantially the same effect. Neither provision authorises a sentencing court to obtain information privately, not in a public hearing and without reference to the offender or his or her legal representative (Griekspoor v Scott (2000) 23 WAR 530, [47] ‑ [55]).
Nonetheless, the critical feature is not so much how the information comes before the sentencing Judge, but whether it is made known to the parties and they are given a proper opportunity to deal with it. That did not happen in Austin (2002) 132 A Crim R 537. In that case the prosecutor made it plain to the sentencing Judge that he was not submitting the appellant should be given an immediate custodial sentence. The Judge adjourned the proceedings, and without informing counsel, ordered a pre‑sentence report. When it arrived, the report said the appellant was unsuitable for a non‑custodial order. The report was not made available to counsel, who apparently heard of it for the first time when his Honour imposed sentence - that being a term of immediate imprisonment. On appeal, the respondent conceded that the failure by the Judge to apprise the appellant's counsel of the receipt of the report and his failure to invite submissions in relation to it, was a denial of procedural fairness. The appeal was allowed on that ground.
Here it is not possible to say what effect the information from the Board had on the sentence. It did not relate to matters which had any obvious relevance to the offences before the court. Yet it obviously had some significance in his Honour's mind because he expressly mentioned it. On its face, the information must have operated adversely to the appellant. However, his counsel was not apprised of it before sentencing, was not shown the media release, and was not given an opportunity to make submissions about it. His Honour ought not to have made a private inquiry of the Board. He could quite properly have asked for the information about the appellant's suspension from practice if he thought it had some relevance to the sentencing exercise, but that should have been done in open court, or alternatively by letter from his Honour's Associate with copies to the prosecutor and the appellant's counsel, who should also then have been given a copy of the media release and the opportunity to make submissions in respect of it.
The procedure adopted by his Honour was a denial of procedural fairness. This ground also has accordingly been made out.
Although the appellant has succeeded in making out his grounds of appeal, it does not follow that the appeal must be allowed.
This Court may allow an appeal against sentence only if it is of the opinion that a different sentence should have been imposed (s 31(4) Criminal Appeals Act 2004 (WA)). Unless an appeal is allowed under s 31(4), it must be dismissed (s 31(3)).
There is no tariff for offences of sexual penetration without consent. However, prior to the commencement of the Sentencing Amendment Act, the sentence for a single act of penetration of the vagina with the penis where the victim is over the age of 16 was (without regard to mitigating factors) in the range of 6 to 9 years (equivalent now to 4 to 6 years).
The dominant sentencing considerations are punishment and general and specific deterrence: R v Cleak [2004] WASCA 72 per Wheeler J (as her Honour then was) at [13]. In Podirsky (1989) 43 A Crim R 404, Malcolm CJ noted the seriousness of the offence of aggravated sexual assault, as was apparent from the amendments to the Criminal Code by Parliament in 1985.
That case was referred to by Wheeler J (as her Honour then was) in R v Clark [2000] WASCA 229. At [11] ‑ [12] she said:
"11 A single act of sexual assault, which involves penetration of the vagina by the penis, will commonly attract a sentence of about 6 years' imprisonment. Such an offence accompanied by a circumstance of aggravation, where that circumstance is that the complainant is under the age of 16 years, will generally attract a sentence of approximately 8 years. However, there is no tariff in relation to sexual assault offences: R v Podirsky (1989) 43 A Crim R 404 at 411 per Malcolm CJ.
12I would add that the mechanical application of a tariff in such cases would lead to the imposition of sentences which could be far too lenient in some cases and too severe in others. A very significant feature of the majority of sexual assault offences is the element of fear caused to the victim. Whether it is committed by a stranger or by a person known to the victim, the victim will almost inevitably have real fears about the degree of force to which the offender may resort in order to overcome resistance, or to further humiliate her, or to ensure her silence. Many victims fear for their lives and nearly all fear further violence of some kind. The experience is seen by the victim as a degrading one both at the time, and in recollection after the event, and this too is a significant feature of the offence. The extent to which the circumstances are likely to give rise to such fears and to such feelings will be significant factors in determining the seriousness of the particular offence ..."
Those factors relevant to the imposition of sentence for the offence of sexual assault were again raised by Wheeler J in R v Quartermaine [2000] WASCA 341. In that case the respondent had received an aggregate sentence of 4 years' imprisonment for two counts of sexual penetration and one count of unlawful and indecent assault. He was acquitted on a further count on the indictment. He was a 26‑year‑old male who had kissed a female acquaintance on the breast, forced her to perform fellatio and penetrated her vagina with his penis. These offences were committed in the early hours of the morning outside the complainant's house; she had been put into a state of fear by the respondent's aggressive behaviour earlier in the evening.
On appeal the sentence was increased to 7 years after consideration of aggravating factors such as the respondent's significant criminal record; his lack of remorse; the two acts of penetration; the atmosphere of fear, and the gratuitous humiliation of the complainant by requiring her to say she loved him.
Wheeler J stated (at [16] ‑ [18]):
"16 The maximum penalty prescribed for the offence of sexual penetration without consent in the absence of circumstances of aggravation is 14 years' imprisonment. While there is no 'tariff' for offences of sexual penetration without consent, and the cases show that sentences imposed vary substantially, the general range of sentences commonly imposed for a single act of penetration of the vagina with the penis where the victim is over the age of 16, remains of the order of about 6 years: R v Podirsky (1989) 43 A Crim R 404 at 411 per Malcolm CJ, Nelson v The Queen, unreported; CCA SCt of WA; Library No 950376; 1 June 1995 at 9 per Malcolm CJ. A sentence of this kind is generally at the lower end of the scale for offences of this type, and is often the sentence which is imposed after taking into account mitigating factors: Brockman v The Queen, unreported; CCA SCt of WA; Library No 970044; 4 February 1997 at 8 per Malcolm CJ. I have noted in R v Clark [2000] WASCA 229 factors which will be relevant to an evaluation of the seriousness of the offence (at [12]), and it may be that an evaluation of these factors leads to the view that the appropriate sentence in any case is well in excess of 6 years, while on other and generally less common occasions, it may be that the sentence called for will be less (perhaps even substantially less).
17I would emphasise that these are sentences imposed for a single act of penetration and that the commission of other offences at or about the same time, whether or not they may be regarded ultimately as part of 'one transaction', may well have the effect of significantly increasing the seriousness of the conduct so as to call for a sentence in excess of that commonly imposed.
18In the present case, there were two acts of penetration with the respondent's penis, one of the complainant's mouth and the other of her vagina. Questions of the way in which the appropriate sentences in respect of each of those acts come to be fixed arise. It is necessary for the court to 'fix an appropriate sentence for each offence' and then consider questions of cumulation or concurrence as well as totality (Pearce v The Queen (1998) 194 CLR 610 at 624 [45]). There are difficulties with adopting that approach in cases such as the present. Each act is clearly distinct and in the present case each was accompanied with its own degree of force which caused its own separate physical injury. However, other matters which make each of the acts more serious form part of the common background. In particular, there is the atmosphere of fear, to which her Honour referred, and the gratuitous humiliation of the complainant by requiring her to say that she loved the respondent. The fact that each was a separate act, each caused separate injury, and each no doubt played a cumulative part in the impact upon the complainant, would in my view call for the sentences to be cumulative upon each other. However, there is a risk that to approach each act separately against the background of the other events to which I have referred, may lead to excessive severity in the final result because of a form of 'double counting' of those background circumstances."
In the instant case, the offences were serious. The complainant was in the house in which she had just come to live, sharing with the appellant. She was obliged to trust him. There can be no doubt the appellant sought to seduce her. He created what he thought to be a "romantic" occasion. She was half his age and not sexually interested in him. He plied her with alcohol until she was so drunk she became nauseous. She made it plain she rejected his sexual approaches while dancing. She tried to avoid the situation by disappearing to her room. The first offence was committed in her own room. There was no question but that the appellant's attentions were unwelcome. Knowing that, he committed the first assault by exposing and sucking on her breast. By itself, in those circumstances, it was a serious offence.

Despite her forceful rejection of him, he returned later when she was in a stuporous sleep. He assaulted her again. He brought massage oil with him. He sat astride her while she was lying face down on her bed, and inserted his finger or thumb into her anus. She protested forcefully and loudly again, striking at him and telling him to get out.
Even then, sometime later, in the middle of the night, he sexually assaulted her again in her own bed. She was asleep, still affected by alcohol. He climbed onto her bed and sexually penetrated her from behind. As he did so she awoke to find his penis in her vagina. She again screamed at him to stop and to get out of her room.
These offences were together, extremely serious. The appellant well knew the complainant was rejecting his advances. He took advantage of her vulnerability and intoxication, which he had induced. The seriousness of his offending escalated on each occasion, culminating in penile penetration.
There is nothing mitigating in the circumstances of the offences themselves.
The appellant is obviously an intelligent man. That goes more against him here, than it goes in his favour, because he must have well understood the seriousness of what he was doing, yet he persisted.

He has no previous convictions. I put to one side, the information from the Board on which his counsel had no opportunity to make submissions.
There is nothing in the appellant's background or antecedents which could carry any significant mitigating weight. He does not have the benefit of any reduction of sentence on account of a plea of guilty. There is no demonstration of remorse.
In my opinion, having regard to the objective features of the offending, the inevitable effects on the complainant and the need for both specific and general deterrence in particular, the individual sentences of 12 months' imprisonment, 3½ years' imprisonment and 4 years 8 months' imprisonment, to be served concurrently, were well called for, as was the aggregate (equivalent to a pre‑amendment aggregate sentence of 7 years' imprisonment). I am not of the opinion that a different sentence should have been imposed.
Accordingly, although I would uphold each ground, I would dismiss the appeal.
PULLIN JA: I have read the reasons of Steytler P and Roberts‑Smith JA. I agree with them that the appeal against conviction should be dismissed for the reasons they give. I add the following comments regarding the proposed ground 3. The "new" evidence, in the form of telephone records, show that the complainant's phone was used to make two calls on 6 February 2002. These records therefore appear to contradict the complainant's evidence that her phone was not working, but this "new" evidence does not show that the appellant was innocent and does not establish that he should not have been convicted. This was not a case where the appellant had threatened violence so that the complainant was frightened to leave the premises to make a complaint about what had happened. As Roberts‑Smith JA explains, she remained in the premises because she was affected by alcohol, was sick, nauseous and did not know what to do, and did not know who she could contact, at least at that time of the night. She also feared that her boyfriend might kill the appellant if she told him what had happened. The fact that she could use her telephone does not affect any of that evidence which explains why she did not attend at the police station until the next day.
In relation to the sentence appeal, I agree that both grounds of appeal should be upheld. I wish to briefly comment on the use that the sentencing Judge made of the press release he obtained from the Legal

Practice Board. I assume that the sentencing Judge did this relying on s 15 of the Sentencing Act 1995 (WA). No submissions were made about the effect of s 15 but, whatever the section means, it does not authorise a Judge, when sentencing a person, to rely upon information which has not been disclosed to the parties. Procedural fairness requires that a Judge disclose information which he or she has obtained in order that the parties may decide whether they wish to refute it by evidence or other information, or wish to make submissions about it. With those additional comments, I agree with Roberts‑Smith JA's reasons in relation to the sentence appeal grounds.

I would allow the appeal against sentence in relation to counts 2 and 3 because, in my opinion, different sentences should have been imposed. These offences were not premeditated and planned, as the sentencing Judge erroneously concluded. The offence was not accompanied by threats of violence before or after the offence was committed, and the appellant had no prior record. In my opinion, an appropriate sentence on count 3, before the application of the transitional provisions, would have been a term of imprisonment of 6 years. The appellant should therefore be sentenced to 4 years' imprisonment in relation to that count. In relation to counts 1 and 2, I am of the opinion that 12 months' imprisonment was appropriate on the first count but that 2 years' imprisonment was appropriate on the second. I would order that all three sentences be served concurrently. The appellant should be eligible for parole, which means that the minimum time he would have to serve in custody before being eligible for parole would be 2 years from 14 May 2006.

[2006] WASCA 274

15 DECEMBER 2006

Key Legal Topics

Areas of Law

Criminal Law

Legal Concepts

Appeal

Breach of Contract

Admissibility of Evidence

Res Judicata

Sentencing

Jurisdiction