McNally v The State of Western Australia - [2020] WASCA 126

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   MCNALLY -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 126
CORAM:   BUSS P
MAZZA JA
VAUGHAN JA

HEARD:   20 NOVEMBER 2019
DELIVERED          :   11 AUGUST 2020
FILE NO/S:   CACR 198 of 2018
BETWEEN:   NATHAIN MICHAEL MCNALLY
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   BURROWS DCJ
File Number            :   IND 1934 of 2017

Catchwords:

Criminal law - Appeal against conviction - Sexual offences - Appellant convicted after a trial by jury on two counts of sexual penetration without consent - Whether the trial judge erred in concluding that there was no evidentiary basis for the operation of s 24 Criminal Code (WA) - Whether the trial judge withdrew from the jury's consideration an issue of inconsistency relevant to the complainant's credibility - Whether the trial judge erred in failing to give the jury an adequate summary of the accused's case

Legislation:

Criminal Code (WA), s 24, s 319, s 325
Evidence Act 1906 (WA), s 21, s 22, s 79C

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	T F Percy QC & M McCormack
Respondent	:	R G Wilson

Solicitors:

Appellant	:	Timpano Legal
Respondent	:	Director of Public Prosecutions (WA)

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

Beamish v The Queen [2005] WASCA 62
Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434
Browne v Dunn (1893) 6 R 67 HL
Caratti v The Queen [2000] WASCA 279; (2000) 22 WAR 527
Cavill v The State of Western Australia [2008] WASCA 108
Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555
EPD v The State of Western Australia [2011] WASCA 264
Higgins v The State of Western Australia [2016] WASCA 142
JJS v The State of Western Australia [2014] WASCA 136
McNally v The State of Western Australia [2019] WASCA 93
MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329
NCH v The State of Western Australia [2013] WASCA 29
Pezzino v The State of Western Australia [2006] WASCA 131
Poland v The State of Western Australia [2015] WASCA 136
The State of Western Australia v Pollock [2009] WASCA 96
WCW v The State of Western Australia [2008] WASCA 232

JUDGMENT OF THE COURT:

This is an appeal against conviction.
The appellant was charged on indictment with three counts of sex offending against the complainant, G, all of which were alleged to have been committed on 22 May 2017 at G's home in a Perth suburb.
Count 1 alleged that the appellant sexually penetrated G, without her consent, by penetrating her anus with his penis.
Count 2 alleged that the appellant attempted to sexually penetrate G, without her consent, by attempting to introduce his penis into her mouth.
Count 3 alleged that the appellant sexually penetrated G, without her consent, by penetrating her vagina with his penis.
Counts 1 and 3 are offences contrary to s 325 of the Criminal Code (WA) (the Code). Count 2 is an offence contrary to s 325 read with s 552 of the Code.
The appellant pleaded not guilty to all counts.
The appellant stood trial before Burrows DCJ and a jury in the District Court between 28 and 31 May 2018. He was convicted of counts 1 and 3 and acquitted of count 2.
On 16 September 2018, the appellant was sentenced to 6 years' imprisonment for count 1 and 4 years' imprisonment for count 3. Her Honour ordered that the sentences be served concurrently and backdated to 31 May 2018. The total effective sentence was therefore 6 years' imprisonment. A parole eligibility order was made. On 2 July 2019, this court refused leave to appeal against sentence and dismissed the appeal.[1]
[1] See McNally v The State of Western Australia [2019] WASCA 93.
This appeal relies on five grounds. Ground 1 alleges, in relation to counts 1 and 3, that the trial judge erred by failing to leave to the jury the defence of honest and reasonable mistake, pursuant to s 24 of the Code. Ground 2 alleges that the trial judge erred by failing to direct the jury that they could accept statements made by G in notes taken by a medical practitioner, Dr O'Gorman, notwithstanding that Dr O'Gorman was not called as a witness at the trial. Ground 3 alleges that her Honour erred by failing to 'adequately' direct the jury in relation to the use they could make of prior inconsistent statements made by G to Dr O'Gorman. Ground 4 alleges that the trial judge erred by giving a Browne v Dunn[2] direction in relation to the failure of defence counsel to put to G her prior inconsistent statements to Dr O'Gorman. Ground 5 alleges that her Honour erred by failing to give the jury an 'adequate' summary of the appellant's case at trial.
[2] Browne v Dunn (1893) 6 R 67 HL.
On 4 February 2019, Buss P referred the question of leave to appeal on each ground to the hearing of the appeal.[3] For the reasons that follow, none of the grounds have merit. We would refuse leave to appeal on each ground and dismiss the appeal.
[3] WAB 4.

The State's case

The evidence adduced by the State at trial may be summarised as follows. In March 2017, G, a woman who was then aged 40, began using a dating website called 'Plenty of Fish'. Through that website, she met the appellant, a man who was 41 at the time. From 6 March 2017 to 22 May 2017, G and the appellant exchanged many text messages on a daily basis.[4] The chat logs tendered at trial were 131 pages in length. The chats were frequently sexually explicit. It was apparent from the text messages that both G and the appellant were looking to pursue a consensual sexual relationship.[5] It may be that G wanted more from the relationship. On many occasions, she referred to various personal problems that she was experiencing at the time. Some of the text messages from the appellant showed that he was looking to engage in penile/anal sexual intercourse. G responded to the effect that she did not wish to engage in anal sex. We will refer to these messages later in these reasons.
[4] Exhibit 1.
[5] ts 26 - 27.
G testified that she suffers from haemophilia. As a consequence of this condition, she did not want to engage in anal sex out of fear that she would suffer an injury which would cause her to bleed. She testified that, if she suffered an injury, she must inject herself with blood clotting material so that she did not haemorrhage.[6]
[6] ts 40.
Prior to 22 May 2017, G and the appellant spoke to each other by telephone and met on three occasions, but, according to G, did not engage in any sexual conduct.
On 22 May 2017, G and the appellant met at a BWS bottle shop near G's home. Following this, they drove to G's house, arriving there at around 1.00 pm.[7] After entering G's bedroom, they began kissing and hugging. G consensually performed an act of fellatio on the appellant and then engaged in a consensual act of vaginal sexual intercourse which lasted for approximately 10 minutes.[8]
[7] ts 48.
[8] ts 48 - 50.
Then, according to G, the appellant rolled her over and, while she was on her knees, he 'ram[med] his erect penis up [her] back passage'. When asked by the prosecutor how this act of penetration felt, she described it as 'very painful, it was like a hot knife and I was screaming and crying and asking him to stop'. She said that she twice told the appellant to stop.[9]
[9] ts 50.
G testified that she pulled herself away from the appellant after 'a couple of minutes' and tried to lie on her stomach. However, she said that the appellant grabbed her hips and 're‑entered [her] back passage'.[10] G said that, by this stage, she was screaming and that she told the appellant, loudly and more than once, that it was hurting too much and that she was in a lot of pain.[11] The appellant continued to penetrate her for 'a couple of minutes' until she managed to completely pull herself away from him.[12]
[10] ts 51.
[11] ts 51.
[12] ts 51 (count 1).
G testified that, after the appellant removed his penis from her anus, he grabbed her by the ponytail and told her 'to suck his dick'.[13] G told the appellant that she did not wish to perform oral sex on him and she did not, in fact, do so.[14]
[13] ts 50.
[14] ts 52 (count 2).
G testified that the appellant then pushed her backwards onto the bed and penetrated her vagina with his penis. As he did so, she said, 'No, I don't want this'. According to G, the appellant 'just kept going' until he ejaculated inside her. G said that she 'couldn't, like, remove [herself] from the situation'.[15]
[15] ts 52 - 53 (count 3).
Both the appellant and G showered after the commission of the alleged offences. G noticed that she was bleeding from her anus. In response, because of her haemophilia, she injected blood clotting material into her stomach. As she did this, the appellant called her a 'junkie'.[16]
[16] ts 54.
After the appellant and G dressed, they left G's home in separate cars. G explained that the appellant told her that he did not know how to get out of the estate in which she resided, so she drove through the estate until they reached an arterial road where G pointed out to the appellant the way to leave the area. He then drove off.[17]
[17] ts 54 - 55.
G testified that she sent text messages to the appellant and that she tried to telephone him, but received no reply. G said that she had tried to call him 'to ask him why he had done what he had done because we had discussed that it wasn't possible for me to engage in that kind of activity with him'.[18]
[18] ts 55.
Later that evening, G telephoned a friend and told her that she had been raped. She also telephoned the police. A police officer attended her house and she was taken to the Sexual Assault Resource Centre (SARC) where she was examined by a doctor.[19]
[19] ts 56.
G's friend, L, testified that, at about 8.30 pm on 22 May 2017, she was at home and received a telephone call from G.[20] L said G was 'crying unbelievably'. L testified that G said that she had been raped by 'Nathain', a guy from Rockingham.[21] According to L, G told her that the appellant had been at her house and that they were having sex and that 'he forced her to have sex anally'.[22]
[20] ts 141.
[21] ts 142.
[22] ts 142.
L said that she drove to G's house. When she got there she said that G was crying and took a long time to settle down. G told her at one point that the appellant 'took himself out of her bum' and 'tried to put a penis inside [G's] mouth'.[23] G also told L that, after the act of anal penetration, the appellant 'put himself into her vagina'.[24]
[23] ts 145.
[24] ts 146.
The medical examination upon the appellant was carried out by Dr Thomas O'Gorman. Dr O'Gorman was not available to give evidence at trial. Without objection, the State called another doctor employed at SARC, Dr Maire Kelly, to give evidence. Dr Kelly is a member of the British Royal College of Obstetricians and Gynaecologists and, in addition to her medical qualifications, she holds a Masters degree in clinical forensic medicine. At the time of the appellant's trial, she had worked in the field of obstetrics and gynaecology for 19 years and was the acting head of Clinical Forensic Medicine at SARC.[25] Dr Kelly prepared a report in relation to G, dated 15 September 2017, using the contemporaneous notes taken by Dr O'Gorman.[26] With the consent of defence counsel, the trial judge gave leave to Dr Kelly to refer to Dr O'Gorman's notes and her report when giving her testimony.[27] Dr O'Gorman's notes were not produced or tendered at trial. They have not been presented to this court.
[25] ts 121 - 122.
[26] ts 121 - 122.
[27] ts 122.
G told Dr O'Gorman that she had a condition known as Von Willebrand's disorder. Dr Kelly explained that Von Willebrand's disorder was the most common of the blood coagulation disorders. People with this disorder have 'a prolonged clotting time'.[28] Thus, if there is a cut or tear in the skin, bleeding may be more prolonged. Dr Kelly explained that the most common treatment for the condition is the administration by injection of a synthetic hormone called desmopressin.[29]
[28] ts 123.
[29] ts 124.
Dr Kelly testified that, based on the notes, Dr O'Gorman conducted an external examination of G, limited to her back. He did not observe any injury to that area.[30]
[30] ts 124.
Dr O'Gorman's notes revealed that he conducted an examination of G's anogenital area and found no injury to her external genitalia.[31] On examination of G's peri‑anal area he noted three 0.75 cm fissures or tears: two at the 12 o'clock position of the anus, that is, the position closest to the vaginal opening, and one at the 6 o'clock position, that is, the position closest to the back.[32] Dr Kelly said that any split or tears in the skin of the area of the anus would be acutely painful.[33]
[31] ts 124.
[32] ts 125.
[33] ts 125 - 126.
Dr Kelly testified, in substance, that if a sexual assault occurred to the vaginal area she would not necessarily expect to find any physical injury.[34] Similarly, where there has been penetration of the anus, she would not necessarily expect to find injuries to that area. She testified that studies conducted at SARC and elsewhere in relation to non‑consensual anal penetration revealed an injury rate of 27 - 28%.[35] Dr Kelly testified that the injuries that Dr O'Gorman observed to G's peri‑anal area were 'indicative of recent anal penetration'. Beyond this, she was unable to say whether the penetration was consensual or non‑consensual, nor whether it was effected by a penis, finger or object.[36]
[34] ts 126.
[35] ts 126.
[36] ts 126.
In cross‑examination, defence counsel referred Dr Kelly to a portion of Dr O'Gorman's notes under the heading, 'Nature of incident'.[37] Dr Kelly confirmed that Dr O'Gorman's notes recorded that G engaged in consensual sexual activity which included penile/oral penetration, oral/vaginal contact and penile/vaginal penetration in the 'missionary' position. Dr O'Gorman's notes also recorded non‑consensual acts of penile/anal penetration and digital/anal penetration of G.[38] Dr Kelly confirmed that this information was given to Dr O'Gorman by G.
[37] ts 132.
[38] ts 132 - 134.
The prosecutor, with the consent of defence counsel, read to the jury the statement of Dr Nicholas Tsokos in which he stated that, in October 2006, he performed a hysterectomy and vaginal repair upon G and, in June 2008, he performed a repeat vaginal repair upon her using dissolvable mesh material.[39]
[39] ts 154.
Detective First Class Constable Tamara Perry testified as to her contact with G on 22 and 23 May 2017. It is unnecessary to summarise the evidence that she gave about these events.
On 31 May 2017, Detective Perry arrested the appellant at his home. Later, she conducted a video record of interview with the appellant. An edited version of the interview was played to the jury and marked as exhibit 3.[40]

The appellant's video‑recorded interview

[40] ts 171.

The following is a summary of the video record of interview between Detective Perry and the appellant on 31 May 2017.
After the appellant was cautioned, Detective Perry informed him that she wished to speak to him about three counts of sexual penetration without consent which occurred on 22 May 2017. The appellant asked if he could write the dates down 'cause I didn't have sex with no‑one'.[41] A short time later he added, 'I did not have sex with anybody only my wife. Um, I have friends, yes, but I never had sex with anybody'.[42] Eventually, the appellant admitted that he went on a dating site where he met a woman. The appellant said that he 'did not have sex with her at all. I probably kissed her but that's about it'.[43]
[41] VROI, ts 7.
[42] VROI, ts 9.
[43] VROI, ts 10.
The appellant agreed that the dating site he went on was 'Plenty of Fish'.[44] It is clear that the woman the appellant said he met via this website was G.
[44] VROI, ts 11.
The appellant said that the only time he went to G's house was with his son and nephew for a period of about 10 minutes when she handed him an iPad. The appellant said that on this occasion he and G kissed in the kitchen, but that he did not go into her bedroom.[45]
[45] VROI, ts 25.
The appellant repeatedly told the police that he did not have sex with G.[46]
[46] For example, VROI, ts 26, 28, 32.
However, after the police showed the appellant CCTV footage of him and G at the BWS bottle shop on 22 May 2017, and informed him that they had a statement from G in which she said they had penile/vaginal sex that day, the appellant conceded that they 'probably did'.[47] The appellant explained that he had not admitted this earlier because 'I didn't want to say anything because my wife was there'.[48]
[47] VROI, ts 32.
[48] VROI, ts 32.
The appellant told the police officers that he and G engaged in 'normal sex', by which the appellant said they engaged in consensual penile/vaginal sexual intercourse.[49] The appellant said that he 'took off' because G 'started doing needles'. He said that he did not know 'if she's a user'. The appellant said that he asked G if she was okay and she told him, 'I'm fine'.[50] When the appellant was asked by the police if he had 'any other sex with [G]', the appellant replied, 'That day? Nothing left. Nothing more'.[51] However, a short time later in the interview, the appellant told the police that he and G engaged in mutual oral sex which the appellant described as 'a sixty nine'. Further, he said that he and G engaged in an act of anal sex. The appellant explained that G 'wanted it', adding that she told him that she and her husband did it.[52]
[49] VROI, ts 33 - 34.
[50] VROI, ts 33.
[51] VROI, ts 37.
[52] VROI, ts 38 - 39.
The appellant agreed that he and G had communicated online about anal sex. The appellant said that the act of anal sex was G's suggestion and that he told her that 'if it hurts we'll pull it out'. However, 'She didn't say anything to me'.[53]
[53] VROI, ts 39.
Detective Perry referred the appellant to the text messages in which G said that she did not wish to engage in anal sex because of a medical problem. The appellant admitted that he had received the text messages, but said, 'When I got there she wanted it. I wouldn't have done anything to her if she woulda said, no'.[54]
[54] VROI, ts 40.
Later in the interview, the appellant, in substance, emphasised that he did not engage in any non‑consensual sexual activity with G. He told the police that he understood that, 'No means no. I know the rules'.[55]

The defence case

[55] VROI, ts 42.

The appellant elected not to give or adduce any evidence in his defence.[56] In effect, he relied upon his video‑recorded interview.
[56] ts 179.

The closing addresses

In his closing address to the jury, the prosecutor submitted that the central issue in the case was not whether the alleged sexual acts or attempted sexual act occurred, but whether each occurred with G's consent.[57]
[57] ts 186.
With respect to count 1, the prosecutor took the jury through the text messages that the appellant and G exchanged on the subject of anal sex.[58] He submitted that G told the appellant that she did not want to engage in anal sex. The prosecutor submitted that there was not a single text message where G indicated her consent to anal sex.[59] The prosecutor submitted that the text messages 'very clearly' showed that G would not consent to an act of anal sex and were consistent with her evidence that she did not, in fact, consent to the act of anal penetration the subject of count 1.[60] The prosecutor emphasised G's evidence that, upon the appellant penetrating G's anus with his penis, she immediately screamed and told him to stop and, thus, she very clearly indicated that she was not consenting.[61]
[58] ts 187 -190.
[59] ts 190.
[60] ts 190 - 191.
[61] ts 191.
As to count 2, the prosecutor submitted that it was highly unlikely that G would consent to the appellant penetrating her mouth with his penis immediately after he had used his penis to penetrate her anus.[62]
[62] ts 191.

As to count 3, the prosecutor pointed to G's evidence that she clearly said, 'No', when the appellant engaged in penile/vaginal sex with her.[63]
[63] ts 191.
The prosecutor pointed to the recent complaint evidence of L and to L's evidence of G's demeanour when she saw her on the night of the alleged offences.
The prosecutor also relied upon the evidence given by Dr Kelly of the injuries Dr O'Gorman observed to G's peri‑anal area. The prosecutor submitted that these were acutely painful injuries and that it was unlikely that G would have engaged in consensual anal sex having suffered such injuries.[64]
[64] ts 192.
The prosecutor submitted that the appellant persistently lied to police in his video‑recorded interview. He contended that the appellant only admitted that he knew G and had sex with her when he was shown the CCTV footage taken from the BWS store.[65] The prosecutor argued that the jury should reject the account the appellant gave to the police to the effect that all of the sexual activity he engaged in with G was consensual.[66] He submitted that G's evidence was credible and that the jury should find that the sexual acts (and the attempted sexual act) the subject of the charges on the indictment occurred without G's consent.
[65] ts 199.
[66] ts 202.
In his closing address, defence counsel submitted that G was not generally a credible witness.[67]
[67] ts 209.
As to the issue of lack of consent in counts 1 and 3, defence counsel submitted, in substance, that there was an inconsistency between G's testimony and the entries made by Dr O'Gorman on her patient notes at SARC. Defence counsel observed that, contrary to entries made by Dr O'Gorman, G gave no evidence about the appellant inserting a finger in her anus, nor did she make any mention of the appellant engaging in cunnilingus.[68] Defence counsel also observed that, when she was asked in cross‑examination about the act of cunnilingus, she denied that it occurred.[69] Defence counsel submitted to the jury that these inconsistencies brought 'into question her accuracy and her reliability because … [Dr O'Gorman's notes are] different from what she told you'.[70]
[68] ts 210.
[69] ts 210.
[70] ts 210.
Defence counsel emphasised that, on G's account of events, the appellant forcefully engaged in the acts alleged in counts 1, 2 and 3, and yet there was no evidence that she had suffered any bruising to her body.[71]
[71] For example, ts 214.
Defence counsel submitted that G's delay (according to him, just under seven hours) in complaining to L was inexplicable and inconsistent with somebody who had been subjected to the 'horrific incident' she described.[72]
[72] ts 220.
With respect to the appellant's video record of interview, defence counsel conceded, 'He hasn't told the truth a lot of the time in that interview'.[73] Defence counsel submitted that the appellant's denials of having sex with G were because he did not want his wife to find out that he had been 'cheating with another woman'.[74]
[73] ts 222.
[74] ts 222.
Defence counsel urged the jury to examine G's attempts to contact the appellant after the commission of the alleged offences to further support the submission that the acts the subject of the indictment were consensual.[75]
[75] ts 215 - 216.

Ground 1 - should the trial judge have left to the jury a s 24 defence?

The trial judge did not leave to the jury the defence of honest and reasonable mistake pursuant to s 24 of the Code. By ground 1, the appellant alleges that this failure constituted an error of law.
Section 325(1) of the Code creates the offence the subject of counts 1 and 3. Relevantly, it provides:
A person who sexually penetrates another person without the consent of that person is guilty of a crime and is liable to imprisonment for 14 years.
The definition of 'consent', for the purposes of s 325 of the Code, is contained in s 319(2) of the Code, which relevantly states:
(2)For the purposes of this Chapter -
(a)consent means a consent freely and voluntarily given and, without in any way affecting the meaning attributable to those words, a consent is not freely and voluntarily given if it is obtained by force, threat, intimidation, deceit, or any fraudulent means;
(b)where an act would be an offence if done without the consent of a person, a failure by that person to offer physical resistance does not of itself constitute consent to the act[.]
The words 'without … consent' in s 325 concern the subjective state of mind of the complainant when the penetration occurs.[76]
[76] WCW v The State of Western Australia [2008] WASCA 232 [5].
Section 24 of the Code relevantly states:
A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist.
In the context of an offence of sexual penetration without consent, the defence under s 24 will not arise for determination unless there is, in fact, no consent. What is required is that there is some evidence, fit for the jury's consideration, that at the material time the accused had an honest and reasonable, but mistaken, belief that the complainant consented to the sexual penetration. Where such evidence exists, the burden of negativing the defence beyond reasonable doubt rests upon the prosecution.
The question to be answered in respect of ground 1 is whether, on the version of events most favourable to the appellant that was suggested by material in the evidence, a jury acting reasonably might fail to be satisfied beyond reasonable doubt that the appellant did not have an honest and reasonable, but mistaken, belief that G had consented to the sexual activity the subject of counts 1 and 3.[77]
[77] Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434[17], [36]; Higgins v The State of Western Australia [2016] WASCA 142 [24].
Whether the defence under s 24 of the Code was available to the appellant was an issue raised by defence counsel at the outset of the trial, albeit briefly and without elaboration.[78] However, after the closing addresses of both counsel, her Honour said that, having reviewed the evidence led at trial, including the appellant's video record of interview, she had reached the conclusion that there was no evidentiary basis to leave to the jury a s 24 defence in respect of the anal penetration the subject of count 1. Although her Honour did not expressly refer to count 3, it appears that her conclusion also applied to that count. Her Honour asked defence counsel if he sought to persuade her 'in any other way'. Defence counsel replied in the negative.[79] As we have said, her Honour did not leave to the jury a defence under s 24 of the Code in respect of counts 1 and 3.
[78] ts 8.
[79] ts 226.

The submissions

As refined in oral submissions at the appeal hearing, senior counsel for the appellant pointed to the following evidence which he submitted showed that there was an evidential basis for a defence under s 24 to be left to the jury for consideration:
(a)the contents of some of the conversations in the chat logs; and
(b)the consensual acts of sexual penetration which occurred on 22 May 2017 immediately prior to the acts said to constitute counts 1 and 3.[80]
[80] Appeal ts 4, 6, 8.
Senior counsel submitted that if there was insufficient evidence to leave a defence under s 24 of the Code in respect of count 1, that did not foreclose the issue on count 3. He argued that, even if there was insufficient evidence for a s 24 defence to be left in respect of count 1, there still remained sufficient evidence to leave the defence in respect of count 3, on the basis that the appellant and G had already engaged in a consensual act of penile/vaginal penetration and that, while G had told the appellant that an act of penile/anal penetration was 'not on', the appellant may have honestly and reasonably believed that G would consent and did consent to a further act of penile/vaginal penetration.[81]
[81] Appeal ts 7, 13.
Senior counsel for the appellant also submitted, albeit faintly, that a relevant factor to be considered when evaluating whether the appellant had an honest and reasonable, but mistaken, belief was his 'intellectual disability'.[82] This submission may be rejected immediately as there was no evidence before the jury that the appellant, in fact, has an intellectual disability.
[82] Appeal ts 11.
It was submitted by the respondent that there was no evidential basis for a s 24 defence to be left to the jury in respect of either count 1 or count 3. In respect of the chat logs, it was submitted that G unequivocally told the appellant that she would not engage in anal sex, having regard to her health. It was further submitted that the other evidence adduced at trial, including the consensual acts of sexual penetration which preceded the acts the subject of counts 1 and 3, did not provide a sufficient evidential basis for a defence under s 24 of the Code to be left to the jury. It was not in dispute at the trial that the act of anal penetration the subject of count 1 occurred before the act of vaginal penetration the subject of count 3. In respect of count 3, it was inconceivable that if the act of sexual penetration the subject of count 1 had occurred without consent, the appellant could have had an honest and reasonable, but mistaken, belief that G consented to the subsequent act of penile/vaginal penetration.
The respondent submitted that the real issue for the jury to determine in respect of counts 1 and 3 was whether the State had established that the acts the subject of those counts had occurred without consent. In effect, the defence case was unequivocally that they had occurred with the consent of G. On the evidence, there was no room for an alternative scenario that the appellant had an honest and reasonable, but mistaken, belief that G had consented.

Ground 1 - disposition

In our opinion, there was no evidential basis for a defence to be left to the jury under s 24 of the Code in respect of counts 1 and 3. Her Honour did not err as alleged in ground 1. Our reasons for these conclusions are as follows.
It is necessary to closely analyse the evidence adduced at trial relevant to the issue raised by this ground. We begin with the chat logs. Between 6 March 2017 and 19 April 2017, G clearly indicated that she was prepared to engage in sexual behaviour with the appellant, including penile/vaginal sexual intercourse. Up to 19 April 2017, there is no reference in the chat logs to the possibility that they would engage in penile/anal penetration.
The first reference to the possibility that the appellant and G might engage in anal sex was raised by the appellant on 19 April 2017.[83] G replied, 'The kids dad tried but it's way too painful for me'. G added that she had undergone a medical procedure which accounted for the pain.
[83] BGAB 89.
The appellant raised the possibility of anal sex twice on 22 April 2017.[84] On the first occasion, G responded, 'Ooohhh really Not my Ass that's a one way passage'. On the second occasion, G said, '… I can't do ass I bleed then I need to inject to stop it'. When the appellant persisted, G wrote, 'I dont want the pain or bled out of my bowel'. G then explained to the appellant that she suffered from haemophilia.[85]
[84] BGAB 92, 94.
[85] BGAB 95.
On 17 May 2017, G once again referred to her haemophilia.[86] After the appellant indicated that he wished to engage in an act of anal penetration with G, she replied, 'No ASS for u buddy', elaborating, 'Its to [sic] painful'.[87]
[86] BGAB 125.
[87] BGAB 125.
The appellant responded, 'Yes, I want your ass' and 'And I will get your ass'.[88] To which the appellant wrote, 'Really we will see'.
[88] BGAB 125.
On 21 May 2017, the day before the commission of the alleged offences, the appellant again raised the possibility of an act of anal sex. G wrote, 'Let's just talk about anal plz babe'.[89] Adding a short time later, 'It's very painful for me'.[90] The appellant immediately replied, '… I wont fuck you in the ass'.[91]
[89] BGAB 133.
[90] BGAB 134.
[91] BGAB 134.
Later on 21 May 2017, G wrote, 'Yes I cant wait to see you [tomorrow] then there's no pressure with having kids home'. The appellant responded, 'We can have a good fuck. Can we?'. G replied, 'Yeah why not'.
We immediately note that the clear effect of the abovementioned chat log entries is that G did not wish to engage in anal sex with the appellant as it is too painful for her and due to the risk that she might bleed as a result. In oral argument, senior counsel pointed to G's statement on 17 May 2017, 'Really we will see', in response to the appellant's statement, 'And I will get your ass', as indicating equivocation on G's part to the appellant's apparent desire to have anal sex with her. Senior counsel's interpretation of the exchange is not supported, having regard to the overall context of the chat logs on this subject. The response, 'Really we will see', is consistent with refusal on the appellant's part. Significantly, on 21 May 2017, G told the appellant that anal sex was 'very painful' for her and the appellant responded 'I wont fuck you in the ass'. In our view, the chat logs provide no support to the appellant's contention that there was an evidential basis to leave to the jury a s 24 defence on count 1. They support a contention that G was prepared to engage in consensual penile/vaginal penetration, as indeed occurred shortly before the commission of the offence the subject of count 1.
We now turn to G's testimony at trial which we have summarised at [12] ‑ [23] of these reasons.
It is clear that G accepted that on 22 May 2017 she engaged in consensual sexual activity with the appellant prior to the commission of count 1. However, the acts the subject of counts 1 and 3 occurred despite her expressly and unequivocally telling the appellant that she did not wish to engage in those acts. Moreover, in respect of count 1, G offered some physical resistance to the appellant and told him, more than once, that she was in pain. As to count 3, which occurred shortly after count 1, G's evidence was that the appellant forcefully pushed her backwards onto the bed and engaged in penile/vaginal penetration, notwithstanding G stating, 'No, I don't want this' and that she was suffering pain as a result of being anally penetrated. G did not resile in cross‑examination from her testimony as to the circumstances in which counts 1 and 3 occurred. There is nothing in G's testimony in respect of counts 1 and 3 that is capable of providing an evidential basis for a defence pursuant to s 24 of the Code.
In the appellant's video record of interview, he asserted that he did not engage in any non‑consensual sexual activity with G. Specifically, with respect to the act of anal penetration, the appellant testified that it occurred at G's suggestion and that it was she who 'wanted it'. Speaking generally, the appellant told the police that he understood that 'no means no' and that he knew 'the rules'. Given these clear statements, there is no basis upon which it could be said that the appellant had an honest, but mistaken, belief that G consented to the acts the subject of counts 1 and 3. Further, there is nothing that the appellant said to the police that is capable of supporting senior counsel's submission that the appellant may have honestly believed that G would consent and did consent to the penile/vaginal penetration the subject of count 3 after the act of anal penetration the subject of count 1.
Senior counsel for the appellant submitted that, while the accounts of G and the appellant were starkly different as to the element of consent in counts 1 and 3, it would have been open to the jury to find, for itself, that what occurred was different from the versions given by the appellant and G. In particular, the jury may have concluded that, while G did not actually consent to the acts of sexual penetration the subject of counts 1 and 3, the appellant honestly and reasonably believed that she was consenting.
While it is true that a jury is not bound to find that everything a witness said is true and that, in a particular case, the truth may lie somewhere between the competing versions given by witnesses, this course was not reasonably open in the present case. The real issue for the jury to determine in counts 1 and 3 was whether the State had proved beyond reasonable doubt that G had not consented. The position of each of G and the appellant was clear and unequivocal. G testified that she expressly refused her consent. The appellant said, in his visually‑recorded interview, that G did consent and, indeed, expressly gave her consent. The appellant exhibited no hesitation on this point and said nothing to suggest that he may have been mistaken in his assertion that G had given her consent. In relation to count 1, he asserted that it was G who had wanted to engage in anal sex with him. He said he understood that 'No means no'.
We do not accept senior counsel's submission to the effect that, even if the defence under s 24 should not have been left on count 1, it should have been left on count 3. Leaving aside, for one moment, that the appellant said nothing in his interview with the police to support this scenario, and assuming (without accepting) that the appellant may have had an honest belief that G was consenting, there was no basis in the evidence upon which it could be contended that any honest belief as to consent was reasonable. Any such belief could not have been reasonable in the circumstances where:
(a)shortly before the act of penile/vaginal penetration the subject of count 3, the appellant had committed the act of penile/anal penetration the subject of count 1 without G's consent;
(b)the expert medical evidence at the trial established that G had suffered three 0.75 cm fissures or tears in her peri-anal area;
(c)G's evidence was that she had expressly refused her consent to the act of penile/vaginal penetration the subject of count 3.
(d)in his video-recorded interview with police, the appellant's account of the act of penile/vaginal penetration the subject of count 3 was given in the context of his assertion that G had consented to and, indeed, had instigated the act of penile/anal penetration the subject of count 1; and
(e)none of the other evidence at the trial revealed any basis for contending that any honest belief the appellant may have had as to consent in relation to count 3 was reasonable.
Having considered all of the relevant admissible evidence at its highest in favour of the appellant, in our opinion the trial judge was correct not to leave a defence under s 24 to the jury.
Leave to appeal on ground 1 should be refused.

Grounds 2, 3 and 4 - issues arising out of statements recorded in Dr O'Gorman's notes

Grounds 2, 3 and 4 concern various issues arising out of statements recorded in Dr O'Gorman's notes. Before dealing with the grounds, it is necessary to set out the background.
As previously stated in these reasons, Dr O'Gorman did not give evidence at the appellant's trial. By agreement between the parties, Dr Kelly attended the trial and gave evidence regarding the report she had prepared, which was in part derived from the contemporaneous notes made by Dr O'Gorman.[92] Neither Dr O'Gorman's notes nor Dr Kelly's report were produced at the trial.
[92] ts 122 - 123.
Defence counsel cross‑examined Dr Kelly in relation to Dr O'Gorman's notes.[93] Defence counsel referred Dr Kelly to a part of Dr O'Gorman's notes headed, 'Nature of incident'.[94] Among the incidents recorded under this heading were two entries concerning the anal penetration of G. Dr O'Gorman ticked a box which was evidently part of a pro forma document that indicated that there had been penile penetration of the anus, followed by the letters 'NC', which meant that the penetration was non‑consensual.[95] Dr O'Gorman also ticked a box which indicated that there had been a digital penetration of the anus. The tick was again accompanied by the note 'NC'. Later, in the same section of Dr O'Gorman's notes, he ticked next to the word 'cunnilingus' and wrote 'C', to indicate that G had told him that the act had occurred consensually.[96] It may be inferred that G provided Dr O'Gorman with this information.
[93] ts 128.
[94] ts 132.
[95] ts 133.
[96] ts 133.

In examination‑in‑chief, G gave no evidence to the effect that the appellant digitally penetrated her anus or engaged in cunnilingus. In cross‑examination, defence counsel did not put to G that her failure to refer to these acts in examination-in-chief was inconsistent with what she had told Dr O'Gorman. However, defence counsel asked G if the appellant had engaged in cunnilingus, and she answered in the negative.[97] Defence counsel did not comply or attempt to comply with the requirements of s 21 and s 22 of the Evidence Act 1906 (WA) in respect of prior inconsistent statements and did not seek to tender Dr O'Gorman's notes pursuant to s 79C of that Act.
[97] ts 94.
Towards the end of the prosecution case, and in the absence of the jury, the trial judge raised with defence counsel his failure to put to G in cross‑examination that her statements to Dr O'Gorman, to the effect that the appellant had digitally penetrated her anus and had engaged in cunnilingus, were inconsistent with her evidence. Her Honour said:[98]
So I take it you're not going there as a prior inconsistent statement.
[98] ts 156.
In response, defence counsel told her Honour, in effect, that he made a deliberate forensic decision not to suggest to G that she had made a prior inconsistent statement to Dr O'Gorman.[99] Defence counsel did not in terms tell her Honour that he intended to put to the jury that the statements recorded in Dr O'Gorman's notes were a prior inconsistent statement, but as has been seen at [54] above, this is in fact how he put the matter to the jury. Defence counsel asserted that the rule in Browne v Dunn did not require him to put to G that she had made a prior inconsistent statement to Dr O'Gorman.[100] Defence counsel said:
Your Honour, I don't believe it is a requirement in Browne v Dunn. This is something that she has given - it's not my case. It's - this is something that - this is all from her, so she has given an account in a statement. She's then been seen by a doctor and given differing accounts.
It is a different version, and that's it. It's not my instructions. These are on the papers. These are differences that are there and in those circumstances I would be stupid to ask her so that she should confirm.
We've all … seen a number of people who cross-examine in things that are not in the statement and it's not my intention to cross-examine things in that are not in the statement, which are not to my advantage. And that's why I did not do it.
[99] ts 156 - 157.
[100] ts 159.
Having heard the submissions of both counsel on the point, her Honour said, in effect, that she would give the matter further consideration.[101]
[101] ts 159.
In the course of his closing address to the jury, defence counsel made the submissions referred to at [54] of these reasons.
In the course of her Honour's summing up, the trial judge referred to the evidence that Dr O'Gorman had ticked a box in relation to non‑consensual digital/anal penetration. She then directed the jury as follows:[102]
There's one other thing I need to talk to you about in relation to Dr Kelly's evidence. And you will recall there was evidence that Dr O'Gorman had ticked a box in relation to non-consensual digital/anal penetration.
Now, there's two things that you need to bear in mind. We didn't hear evidence from Dr O'Gorman in relation to this matter. There's been a box ticked in relation to that, but there's been no evidence as to what [G] said to him in relation to that because you haven't heard from Dr O'Gorman. And [G] was never asked about that at any stage in these proceedings.
It's been suggested to you that she has given - that the presence of that tick in the box represents an inconsistency in her evidence. You must bear in mind when you are considering whether or not you consider there has been an inconsistency in the evidence, the fact that we haven't heard from Dr O'Gorman and that [G] was never asked about it, as to whether or not you can actually consider it, whether there is any evidence of it or whether you can consider it an inconsistency in her evidence.
[102] ts 236.
It is to this direction, which we will refer to as the impugned direction, that grounds 2, 3 and 4 are primarily focused.
Later, when summing up the cases put by the defence, her Honour referred to the alleged inconsistency between G's evidence and the statements recorded in Dr O'Gorman's notes.[103]
[103] ts 257 - 258.
Defence counsel took no exception to the impugned direction.

Grounds 2, 3 and 4 - senior counsel's oral submissions and their merit

In his oral submissions, senior counsel for the appellant in effect recast grounds 2, 3 and 4. He submitted that the grounds boiled down to a proposition that, by the impugned direction, the trial judge withdrew from the jury's consideration an issue relevant to G's credibility, specifically that there was an inconsistency between her statements recorded in Dr O'Gorman's notes, that the appellant digitally penetrated her anus without her consent and performed a consensual act of cunnilingus, and her testimony at trial.[104] It was submitted that her Honour erroneously told the jury that there was 'no evidence as to what [G] said to [Dr O'Gorman] in relation to [the digital/anal penetration and the act of cunnilingus]' because the statements recorded in the notes constituted admissible evidence of what G had told him.[105] Senior counsel for the appellant asserted that her Honour had misconstrued the evidence and 'completely detracted from the defence'.[106] He encapsulated the argument in these terms:[107]
Well, that's the thrust of what we say in relation to the judge, effectively, emasculating that part of the defence, saying that there was no evidence as to what [G] said. That was just a wrong direction. It was wrong in law and it was wrong in fact.
[104] Appeal ts 24 - 26.
[105] Appeal ts 23, 27.
[106] Appeal ts 27.
[107] Appeal ts 30.
There is no merit to these submissions. Her Honour's direction did not misconstrue the evidence that was adduced at trial, nor did it have the effect of withdrawing from the jury's consideration the question of whether G's credibility was adversely affected by the asserted inconsistency. Senior counsel has taken her Honour's statement that there was 'no evidence' out of context.
The impugned direction must be considered against the following background, none of which was controversial at trial:
(a)Dr O'Gorman examined G and made contemporaneous notes of that examination. However, Dr O'Gorman was unavailable to give evidence at the appellant's trial.
(b)With the consent of the parties, Dr Kelly was permitted to testify, in part based on Dr O'Gorman's notes.
(c)Without objection, defence counsel, in the course of his cross‑examination of Dr Kelly, adduced from her the entries made by Dr O'Gorman concerning the statements made by G alleging non‑consensual digital/anal penetration and consensual cunnilingus.
(d)However, G gave no evidence at trial about the alleged non‑consensual digital/anal penetration, and in cross‑examination she denied that the appellant had engaged in cunnilingus. We will refer to these together as the inconsistencies.
(e)Defence counsel at trial did not put to G that any statement she made to Dr O'Gorman was inconsistent with her testimony at trial.
(f)In his closing address, defence counsel claimed that the inconsistencies reflected adversely upon G's credibility.
(g)The jury did not have any explanation from G about the alleged inconsistencies.
The impugned direction begins with the trial judge reminding the jury 'there was evidence that Dr O'Gorman had ticked a box in relation to non‑consensual digital/anal penetration'. While her Honour did not refer specifically to the act of cunnilingus, the jury would have understood the statement to apply to both of the inconsistencies.
Her Honour then reminded the jury that it had neither heard from Dr O'Gorman, nor G, about the relevant acts. Neither of these propositions were, or could be, in any way controversial. Her Honour's statement that 'there's no evidence …' reflects these two uncontroversial matters and is expressly linked to the fact that the jury had not heard oral evidence from Dr O'Gorman. The statement went to the jury's assessment of the weight that they might give to any inconsistency, given that G had not been asked about the alleged contradictions, and had not been given an opportunity to confirm, deny or explain them.
In the third paragraph of the impugned direction, her Honour expressly acknowledged that it had been suggested to the jury that the statements made in Dr O'Gorman's notes were inconsistent with G's evidence. Her Honour did not withdraw this argument from the jury's consideration. This is made crystal clear by her Honour's direction as to the matters the jury 'must bear in mind when you are considering whether or not you consider there has been an inconsistency in the evidence …'. Her Honour then proceeded to point out to the jury, in effect, that in considering this issue it was relevant that they had not heard from Dr O'Gorman and G on the issue. The absence of evidence from Dr O'Gorman and, particularly, G, was a relevant consideration for the jury in deciding whether inconsistencies in G's version of events had been made out and, if so, what weight should be given to them.
There are two other factors which point against senior counsel's submissions. First, when summarising the defence case, her Honour reminded the jury of defence counsel's submission to the effect that G's credibility was adversely affected by the inconsistencies.[108] If her Honour had withdrawn a consideration of this issue from the jury, it would have been unnecessary for her to say anything about it when summarising the defence case. Second, defence counsel took no exception to the impugned direction. While the failure to take exception to the direction is not, of itself, fatal, it is noteworthy that defence counsel, immersed in the trial, did not apparently understand her Honour to have withdrawn the issue from the jury's consideration.
[108] ts 258.
On the basis of the oral submissions put by senior counsel for the appellant, this would be sufficient to deal with grounds 2, 3 and 4. However, for completeness, we will briefly address each of these grounds separately.

Ground 2

Ground 2 alleges:
The learned trial judge erred by failing to direct the jury that they could accept as evidence the answers of [G] recorded in Dr O'Gorman's notes notwithstanding that Dr O'Gorman was not called as a witness at the trial.
In his written submissions, the appellant contended that Dr O'Gorman's notes were, pursuant to s 79C(3) [sic - s 79C(1) or s 79C(2a)] of the Evidence Act, 'admissible on their face as truth of the fact that [G] had given the answers in question and of their truth'. The appellant submitted that her Honour erred by not directing the jury to this effect.[109]
[109] Appellant's case, par 47.
There is no merit in these submissions or the ground of appeal.
It may immediately be observed that the appellant claims that the statements recorded in Dr O'Gorman's notes were admissible on their face, not only to prove that G had given the answers in question, but also as proof of their truth. Senior counsel for the appellant's assertion on appeal that the appellant would have wished G's statements to have been tendered at trial as evidence that the appellant had, in addition to the conduct the subject of the charges, also committed an uncharged, non‑consensual act of digital/anal penetration, is remarkable. Indeed, as defence counsel made clear at the trial, he did not want to cross‑examine into evidence that uncharged act.
In truth, the only conceivable purpose for adducing evidence of the statements recorded in Dr O'Gorman's notes was to base a contention that G's credibility was adversely affected because she gave no evidence about the matters recorded in the notes. This was, self‑evidently, a potentially risky forensic strategy, but it was a legitimate strategy that defence counsel wished to pursue. It was not essential to this strategy to seek the admission of the statements pursuant to s 79C of the Evidence Act, particularly when the relevant statements had been adduced by defence counsel in the cross‑examination of Dr Kelly.
Ground 2 can be disposed of on the basis that defence counsel never sought to adduce evidence of the statements recorded in Dr O'Gorman's notes for their truth, rather, he did so only to establish that the statements had been made. Defence counsel acted in pursuit of a rational forensic strategy.
However, the ground suffers from a fundamental flaw. Ground 2 is predicated on the assumption that the statements recorded in Dr O'Gorman's notes were admissible at the trial pursuant to s 79C of the Evidence Act. This assumption is incorrect.
Section 79C of the Evidence Act relevantly provides:
79C. Documentary evidence, admissibility of
(1)Subject to subsection (2), in any proceedings where direct oral evidence of a fact or opinion would be admissible, any statement in a document and tending to establish the fact or opinion shall, on production of the document, be admissible as evidence of that fact or opinion if the statement -
(a)was made by a qualified person; or
(b)directly or indirectly reproduces or is derived from one or other or both of the following -
(i)information in one or more statements, each made by a qualified person;
(ii)information from one or more devices designed for, and used for the purpose of, recording, measuring, counting or identifying information, not being information based on a statement made by any person.
(2)Where a statement referred to in subsection (1) is made by a qualified person or reproduces or is derived from information in a statement made by a qualified person, that person must be called as a witness unless -
(a)he is dead; or
(b)he is unfit by reason of his bodily or mental condition to attend or give evidence as a witness; or
(c)he is out of the State and it is not reasonably practicable to secure his attendance; or
(d)all reasonable efforts to identify or find him have been made without success; or
(e)no party to the proceedings who would have the right to cross‑examine him requires him to be called as a witness; or
(f)having regard to the time which has elapsed since he made the statement and to all the circumstances, he cannot reasonably be expected to have any recollection of the matters dealt with in the statement; or
(g)having regard to all the circumstances of the case, undue delay, inconvenience or expense would be caused by calling him as a witness; or
(h)he refuses to give evidence.
(2a)Notwithstanding subsections (1) and (2), in any proceedings where direct oral evidence of a fact or opinion would be admissible, any statement in a document and tending to establish the fact or opinion shall, on production of the document, be admissible as evidence of that fact or opinion if -
(a)the statement is, or directly or indirectly reproduces, or is derived from, a business record; and
(b)the court is satisfied that the business record is a genuine business record.
…
(3)This section makes a statement admissible notwithstanding -
(a)the rules against hearsay; or
(b)the rules against secondary evidence of the contents of a document; or
(c)that the person who made the statement or the person who made a statement from which the information in the statement is reproduced or derived is a witness in the proceedings, whether or not he gives evidence consistent or inconsistent with the statement; or
(d)that the statement is in such a form that it would not be admissible if given as oral evidence,
but does not make admissible a statement which is otherwise inadmissible.
(4)Notwithstanding subsections (1), (2) and (2a), in any criminal proceedings a statement in a document which was made in the course of or for the purpose of -
(a)the investigation of facts constituting or being constituents of the alleged offence being dealt with in the proceedings; or
(b)an investigation which led to the discovery of facts constituting or being constituents of the alleged offence; or
(c)the preparation of a defence to a charge for any offence; or
(d)the preparation of the case of the prosecution in respect of any offence,
shall not be rendered admissible as evidence by this section.
…
(6)For the purposes of this section a court may, in its discretion, reject a statement notwithstanding that the requirements of this section are satisfied with respect thereto, if the court is of the opinion that the probative value of the statement is outweighed by the consideration that its admission or the determination of its admissibility -
(a)may necessitate undue consumption of time; or
(b)may create undue prejudice, confuse the issues, or in proceedings with a jury mislead the jury.
The law with respect to the operation of s 79C of the Evidence Act has been analysed in a number of cases decided by this court and its predecessor, including Caratti v The Queen;[110] Beamish v The Queen[111] and Cavill v The State of Western Australia.[112] It is unnecessary to refer to these cases in any detail. We note that the point raised in the present case closely resembles one of the grounds of appeal which the court considered and rejected in Cavill.
[110] Caratti v The Queen [2000] WASCA 279; (2000) 22 WAR 527.
[111] Beamish v The Queen [2005] WASCA 62.
[112] Cavill v The State of Western Australia [2008] WASCA 108.
A statement in a document only becomes admissible under s 79C(1) or s 79C(2a) 'on production of the document'. The 'production' of a document under s 79C(1) or s 79C(2a) requires the formal presentation of the document to the court at the trial. The expression 'production of the document' in s 79C(1) and s 79C(2a) conditions the admissibility of the statements in question upon the production of the document to the court at the trial. See Poland v The State of Western Australia.[113]
[113] Poland v The State of Western Australia [2015] WASCA 136 [244] - [248].
The fundamental flaw in the appellant's argument is that not only did defence counsel not seek to rely upon s 79C of the Evidence Act, he never sought to produce Dr O'Gorman's notes. As the text of s 79C(1) and s 79C(2a) makes clear, admissibility under these subsections is dependent upon the production of the relevant document.
As s 79C of the Evidence Act had no operation in the present case, her Honour did not err as alleged.
We would refuse leave to appeal on ground 2.

Ground 3

Ground 3 reads:
The learned trial judge erred by failing to direct the jury adequately in relation to the use they could make of [G]'s prior inconsistent statements.
The appellant's written submissions in support of this ground assert that the trial judge ought to have given the jury specific instructions on how the answers might be used in assessing G's credit.[114] It is submitted that her Honour should have instructed the jury that the alleged inconsistencies were 'capable of being considered serious contradictions affecting G's credibility'.[115]
[114] Appellant's case, par 53.
[115] Appellant's case, par 55.
The appellant, in substance, claims that the impugned direction failed to inform the jury about the use they could make of G's alleged prior inconsistent statements.
In our opinion, the impugned direction was sufficient to alert the jury to the issue of the alleged prior inconsistent statements in Dr O'Gorman's notes. The jury would have understood that it was asserted on behalf of the appellant that the alleged inconsistencies adversely affected G's credibility. It was unnecessary for the trial judge to instruct the jury that the alleged inconsistencies were capable of being considered serious contradictions affecting G's credibility. Although it was ultimately a matter for the jury to decide, it is difficult to see how any inconsistency could be characterised as 'serious' when the inconsistency had not been put to G.

We would refuse leave to appeal on ground 3.

Ground 4

Ground 4 reads:
The learned trial judge erred by giving the jury a Browne v Dunn direction in relation to the failure of the accused['s] counsel to put to [G] her prior inconsistent statements to Dr O'Gorman.
It was submitted on behalf of the appellant that the rule in Browne v Dunn is centrally about fairness, and requires that a witness should have the opportunity to respond to matters concerning their credit. The appellant accepted that this involves the witness being given notice of the issue. The appellant contended that because the prosecution had access to Dr O'Gorman's notes prior to trial, G was taken to have been given notice of the issue. It was also submitted that the prosecutor could have led, in examination‑in‑chief, questions 'to clarify the inconsistency about the digital anal penetration and cunnilingus'.[116]
[116] Appellant's case, par 61; appeal ts 29.
In his oral submissions, senior counsel for the appellant explained that, as the prosecutor had not adopted this course, defence counsel was not bound to comply with the rule in Browne v Dunn.[117]
[117] Appeal ts 28 - 30.
It was submitted that, as defence counsel was not required to comply with the rule in Browne v Dunn, the part of the impugned direction directing the jury's attention to the effect that G had not been asked about the inconsistencies was erroneous.
The legal principles applicable to the rule in Browne v Dunn were explained by Buss JA in NCH v The State of Western Australia.[118] We adopt and repeat those statements of principle:[119]
[118] NCH v The State of Western Australia [2013] WASCA 29.
[119] NCH [99] - [105].
The rule in Browne v Dunncomprises two limbs. The first limb is that, unless notice has already clearly been given of the party's or cross‑examiner's intention to rely upon such matters, a party or cross‑examiner who intends to invite the court to disbelieve an opposing witness must put to the witness in cross-examination the grounds upon which the evidence is to be disbelieved. The second limb is that, unless notice has already clearly been given of the party's or cross-examiner's intention to rely upon such matters, a party or cross‑examiner must put to an opposing witness in cross-examination the nature of the case upon which it is intended to rely in contradiction of the witness's evidence, especially where that case relies upon inferences to be drawn from other evidence. See Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1; (1983) 70 FLR 447, 16, 18, 26 (Hunt J); Village Cay Marina Ltd v Acland [1998] BCC 417, 426 (Lord Hoffman, Lord Lloyd of Berwick, Lord Nolan, Lord Hope of Craighead & Sir Andrew Legatt agreeing); Williams v Dawson [2000] WASCA 205; (2000) 31 MVR 559 [32] (Parker J, Kennedy & Wheeler JJ agreeing); Merrey v The State of Western Australia [2010] WASCA 62 [9] ‑ [11] (McLure P, Owen JA & Jenkins J agreeing); Bale v Mills [2011] NSWCA 226; (2011) 282 ALR 336 [42] ‑ [48] (Allsop P, Giles JA & Tobias AJA).
The policy rationale that underpins the rule in Browne v Dunn is the securing of fairness in the conduct of adversarial proceedings. See R v Birks (1990) 19 NSWLR 677, 688 (Gleeson CJ, McInerney JJ agreeing); Adamson v Ede [2009] NSWCA 379 [56] ‑ [62] (Campbell JA, Giles & Hodgson JJA agreeing); Chanaa v Zarour [2011] NSWCA 199 [13] (Campbell JA, Bathurst CJ & Tobias AJA agreeing). The first limb is concerned with achieving fairness to witnesses and a fair trial between the parties. The second limb is concerned with the weight or cogency of evidence. See Bulstrode v Trimble [1970] VR 840, 846 ‑ 848 (Newton J); Allied Pastoral Holdings (18). The rule facilitates a court's assessment of the reliability and accuracy of the witnesses. See Rees v Bailey Aluminium Products Pty Ltd [2008] VSCA 244; (2008) 21 VR 478 [21] (Ashley & Redlich JJA and Coghlan AJA).
The rule in Browne v Dunn is not absolute. It must be applied with flexibility. In R v Birks, Gleeson CJ emphasised:
'It is plain that their Lordships [in Browne v Dunn], whilst recognising and affirming a rule of practice in the terms in which they expressed themselves, also recognised the need for flexibility in its application. That need arises from the very nature of the subject matter which it concerns. The central purpose of the rule is to secure fairness in the conduct of adversary proceedings. That consideration provides the best guide, both to the practical requirements of the rule in a given case, and to the consequences which may properly flow from its non-observance, including the remedies that are available to deal with a problem so created (688).'
Browne v Dunn involved civil litigation. The plaintiff brought an action for defamation. There was a trial before a judge and jury. None of the witnesses was cross-examined on the point in question.
Although it has been held that the rule in Browne v Dunn also applies in criminal proceedings, the rule must be applied with considerable care and circumspection in a criminal context, especially where the defence case has not been adequately put to [G] or another prosecution witness. The rule does not apply in the same manner or with the same consequences as in civil litigation. See MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329 [18] (Gleeson CJ & Heydon J), [40] ‑ [41] (Gummow, Kirby & Callinan JJ); R vCoswello [2009] VSCA 300 [7] (Nettle JA).
Where the rule in Browne v Dunn has been breached in a criminal trial, the manner in which the breach should be dealt with will depend on the nature and extent of the breach and the particular facts and circumstances generally. See R v Foley [1998] QCA 225; [2000] 1 Qd R 290, 291 ‑ 292 (de Jersey CJ, Thomas JA & Derrington J); R v Ferguson [2009] VSCA 198; (2009) 24 VR 581 [276] ‑ [278] (Maxwell P, Buchanan & Weinberg JJA); R v Morrow [2009] VSCA 291; (2009) 26 VR 526 [3] ‑ [6] (Nettle JA), [56] ‑ [70] (Redlich JA, Lasry AJA agreeing); Burke v Corruption and Crime Commission [2012] WASCA 49; (2012) 289 ALR 150 [191] (Buss JA, Martin CJ & Mazza JA agreeing).
Where the rule in Browne v Dunn has been breached in a criminal trial before a judge and jury, it will be necessary for the trial judge to decide how, in the particular circumstances and in the interests of justice, the breach should be dealt with. The authorities indicate that, depending on the particular circumstances, the discretionary responses available to a trial judge include:
(a)having a witness or witnesses recalled for cross‑examination or further cross‑examination;
(b)ruling that it is not fairly open to counsel who breached the rule to make a particular submission in his or her closing address;
(c)drawing to the jury's attention in summing up that a witness was not given the opportunity to respond to particular evidence led from another witness;
(d)informing the jury that the failure to put specified matters to a witness may be taken into account by the jury in assessing the weight to be given to the witness's evidence about those matters;
(e)if the trial judge is satisfied that the omission was the fault of defence counsel or the instructing solicitor and not the accused, informing the jury of the potential disadvantage to the State's case or other witnesses from the omission, and stating that this was defence counsel's or the instructing solicitor's fault and not that of the accused; and
(f)discharging the jury.
See Foley (292); Ferguson [277] ‑ [278]; Morrow [3] ‑ [6], [59] ‑ [70]; Merrey [17].
The argument that, because the prosecution had access to Dr O'Gorman's notes, it constituted prior notice under the two limbs of the rule in Browne v Dunn, cannot be accepted. The statements in question contained in Dr O'Gorman's notes were not to the prosecution case. G did not assert in her evidence that the appellant had digitally penetrated her anus without her consent or engaged in cunnilingus consensually. No charge was laid in respect of the former act. Evidence of the relevant statements made in the notes of Dr O'Gorman was inadmissible for any purpose relevant to the State's case. Contrary to the submissions made on behalf of the appellant, the prosecutor could not have been permitted to ask questions about the statements in question contained in Dr O'Gorman's notes. Such questions would have been irrelevant and, in respect of the digital/anal penetration, highly prejudicial to the appellant. G was the first witness for the prosecution. Dr Kelly did not give evidence until later in the trial. It was only in Dr Kelly's cross‑examination that the entries in question in Dr O'Gorman's notes were referred to.
Ordinarily, fairness requires that if the evidence of a witness is to be challenged, the basis of the challenge be put to the witness in cross‑examination. However, as Gummow, Kirby and Callinan JJ observed in MWJ v The Queen,[120] '[t]he rule in Browne v Dunn can no more be applied, or applied without serious qualification, to an accused in a criminal trial than can the not dissimilar rule in Jones v Dunkel'. It is necessary, in each particular case, to consider the applicability of the rule in Browne v Dunn (if any) having regard to the essentially accusatory character of a criminal trial.
[120] MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329 [41].
In the present case, the jury's task of evaluating the reliability and accuracy of G's evidence, and any inconsistency, was made more difficult because G had not been given the opportunity of acknowledging (or not) that she had made the relevant statements to Dr O'Gorman and, if so, what the content of those statements were and, if an explanation was required, what that explanation was. This was particularly so where the entries made by Dr O'Gorman involved no more than the ticking of boxes accompanied by an abbreviated entry.
Her Honour had a discretion as to how to deal with the circumstance that the alleged inconsistency had not been put to G. Her Honour's direction, which involved her pointing out that G had not been asked about the matter, was, in the circumstances, fair to the appellant and appropriate.
We would refuse leave to appeal on ground 4.

Ground 5

Ground 5 complains that:
The learned trial judge erred by failing to give the jury an adequate summary of the accused's case.
Senior counsel for the appellant submitted that her Honour's summary of the defence case was 'inordinately brief',[121] 'too cursory' and 'not expansive enough'.[122]
[121] Appeal ts 30.
[122] Appeal ts 31.
In the appellant's written submissions, it was submitted that the following matters were not, and should have been, referred to by her Honour in the summing up:[123]
(a)G's conduct in trading photographs of herself for money and asking the appellant for money;
(b)the reliability and 'creditability' [sic] of G's account, given that she had given a different version of events to Dr O'Gorman;
(c)the appellant's version that he and G had sex on a prior occasion and that there was a message between them that supported this version;
(d)that G was still willing to invite the appellant into her home with a view to having sexual intercourse, notwithstanding that he had indicated that he wanted to have anal sex with her; and
(e)G's conduct in injecting herself whilst naked, following the assault.
[123] Appellant's case, par 73.
The relevant legal principles are uncontroversial. In Domican v The Queen,[124] Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ said:[125]
[T]he requirement of fairness means that ordinarily the respective cases for the prosecution and the accused must be accurately and fairly put to the jury. But that requirement does not oblige the judge to put to the jury every argument put forward by counsel for the accused. This court has said that it 'is hardly necessary to say that as a reason for granting a new trial, after a conviction in a criminal case, it is not enough that the presiding judge has not mentioned to the jury all the matters which were set up on behalf of the accused as affecting probabilities'.
Whether the trial judge is bound to refer to an evidentiary matter or argument ultimately depends upon whether a reference to that matter or argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence. Consequently, the conduct of a case necessarily bears on the extent to which the judge is bound to comment on or discuss the evidence. Discussion or comment which is justified or required in one case may be neither required nor justified when a similar case is conducted in a different way. (citations omitted)
[124] Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555.
[125] Domican (561).
These principles have been applied in numerous cases decided in this court, including Pezzino v The State of Western Australia;[126] The State of Western Australia v Pollock;[127] EPD v The State of Western Australia[128] and JJS v The State of Western Australia.[129]
[126] Pezzino v The State of Western Australia [2006] WASCA 131 [26] ‑ [27].
[127] The State of Western Australia v Pollock [2009] WASCA 96 [147].
[128] EPD v The State of Western Australia [2011] WASCA 264 [102].
[129] JJS v The State of Western Australia [2014] WASCA 136 [163].
In EPD, Mazza JA made the following observations:[130]
It is impossible and undesirable to set out an exhaustive list of factors by which a trial judge's summing up of the defence case must be evaluated. However, such factors as the nature of the trial, the issue or issues in dispute, the length of the trial and its complexity will be relevant: R v Williams [1999] NSWCCA 9; (1999) 104 A Crim R 260 [39]. It is vital that the jury understand the critical issues and the accused's case in respect of those issues so that the jury can fairly decide them. Fairness will often be met by the trial judge accurately and succinctly reminding the jury of the case put by defence counsel in relation to the issues that are in dispute. Generally, in this State, the jury will have heard defence counsel's closing address immediately before the trial judge's summing up. The points made will generally be fresh in their minds. It will unduly test the patience and intelligence of juries and unnecessarily lengthen a summing up for the trial judge to repeat everything defence counsel just said to them.
[130] EPD [104].
The appellant's trial was short. The evidence concluded on the afternoon of the second day. Immediately after the conclusion of the evidence, trial counsel addressed the jury. The transcript reveals that the prosecutor addressed the jury for approximately 38 minutes, followed by defence counsel who addressed them for approximately 55 minutes. Each focused on G's honesty and reliability which was crucial to the determination of each charge. Each address was comprehensive.
Her Honour summed up the case the following morning. Her Honour summarised the cases put respectively by the prosecutor and defence counsel. Her summary of the prosecutor's submissions was spread over four pages of transcript,[131] and her summary of defence counsel's case was spread over three pages of transcript.[132]
[131] ts 254 - 257.
[132] ts 257 - 259.
She prefaced her summary of the respective cases in this way:[133]
I'm going to briefly review what both counsel said to you yesterday afternoon. I saw you were all listening very attentively and I'm not going to repeat word for word otherwise we will be here for a couple of hours, but I need to talk to you about their respective cases and just to summarise them to you.
[133] ts 254.
With respect to the defence, her Honour reminded the jury, by reference to defence counsel's address, that it was contended that G was not a credible witness. Her Honour referred to a number of matters, including:
(a)The absence of any physical injury to G.[134]
(b)The alleged inconsistencies between the statements noted in Dr O'Gorman's notes and G's testimony.[135]
(c)That the defence asserted that this was a case of consensual sex regretted later.[136]
(d)After the commission of the alleged offences, G behaved in a way which was inconsistent with someone who had been sexually assaulted. For example, G went to pick up her children from school.[137]
(e)G's failure to complain to the police immediately after the commission of the alleged offences.[138]
(f)The appellant's contention that he and G had had consensual sex on an occasion prior to 22 May 2017, as supported by one of the text messages.[139]
(g)The appellant's contention that the jury should be cautious about accepting the evidence adduced from L.[140]
[134] ts 256 - 257.
[135] ts 257 - 258.
[136] ts 258.
[137] ts 258.
[138] ts 258.
[139] ts 258.
[140] ts 259.
It is not suggested on appeal that her Honour's summary of the defence case was in any way inaccurate.
Her Honour accurately encapsulated the defence case as follows:[141]
At the end of the day he says there are so many holes and inconsistencies in the evidence of [G] and her evidence has changed that she's not an honest, accurate and reliable witness and you should not accept her evidence and you should have a reasonable doubt and acquit [the appellant] in relation to the charges that he faces.
[141] ts 259.
It may immediately be seen that, contrary to the submissions of the appellant, her Honour referred to the reliability and credibility of G's account by reference to the allegedly different version of events given to Dr O'Gorman and to the appellant's claim that he and G had engaged in consensual sex on an occasion prior to 22 May 2017.
We do not accept the submission that her Honour's failure to mention the other matters referred to in [139] could reasonably be said to have given rise to an unfair trial. Her Honour was not obliged to put to the jury every point made by defence counsel.
Having evaluated all of the relevant circumstances, her Honour fairly put the appellant's case. She provided the jury with as much information as they needed to adequately discharge their responsibility. It is relevant, but not decisive, that defence counsel did not take exception to the summing up on the basis that her Honour did not fairly put the defence case.
We would refuse leave to appeal on ground 5.

Conclusion and orders

None of the grounds of appeal have a reasonable prospect of succeeding. It is for this reason that we would not grant leave to appeal in respect of them. The appeal must be dismissed.
The orders that we would make are as follows:
1.Leave to appeal is refused on all grounds.
2.The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KS
Associate to the Honourable Justice Buss
11 AUGUST 2020