Mehta v The State of Western Australia
[2023] WASCA 24
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: MEHTA -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 24
CORAM: QUINLAN CJ
MAZZA JA
BEECH JA
HEARD: 21 NOVEMBER 2022
DELIVERED : 8 FEBRUARY 2023
FILE NO: CACR 114 of 2021
BETWEEN: ROHIT MEHTA
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
FILE NO: CACR 116 of 2021
BETWEEN: ROHIT MEHTA
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
FILE NO: CACR 120 of 2021
BETWEEN: MANMOHIT SINGH SACHDEVA
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
FILE NO: CACR 121 of 2021
BETWEEN: MANMOHIT SINGH SACHDEVA
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: BARBAGALLO DCJ
File Number : IND 448 of 2019
Catchwords:
Criminal law – Appeal against conviction – Aggravated sexual penetration without consent – Jury – Whether juror's experience of sexual assault gives rise to reasonable apprehension of bias – Whether miscarriage of justice
Criminal law – Appeal against conviction – Jury – Whether jury provided with prejudicial material in relation to translation – Juror discharged – Whether reasonable apprehension of bias in relation to remaining jurors – Whether miscarriage of justice
Criminal law – Sentencing – Aggravated sexual penetration without consent – Co-offenders – Whether sentencing judge failed to consider additional hardship of imprisonment – Whether sentences plainly unjust or unreasonable – Parity principle
Legislation:
Criminal Code (WA), s 7, s 326
Result:
CACR 114 of 2021
Leave to appeal on ground 1 granted
Leave to appeal on ground 2 refused
Appeal dismissed
CACR 116 of 2021
Leave to appeal refused
Appeal dismissed
CACR 120 of 2021
Leave to appeal on grounds 1 and 2 granted
Appeal dismissed
CACR 121 of 2021
Application to adduce additional evidence refused
Application for extension of time refused
Leave to appeal on grounds 1 to 5 refused
Appeal dismissed
Category: A
Representation:
CACR 114 of 2021
Counsel:
| Appellant | : | D Grace KC & S Nigam |
| Respondent | : | G N Beggs |
Solicitors:
| Appellant | : | Nigams Legal Pty Ltd |
| Respondent | : | Director of Public Prosecutions (WA) |
CACR 116 of 2021
Counsel:
| Appellant | : | D Grace KC & S Nigam |
| Respondent | : | G N Beggs |
Solicitors:
| Appellant | : | Nigams Legal Pty Ltd |
| Respondent | : | Director of Public Prosecutions (WA) |
CACR 120 of 2021
Counsel:
| Appellant | : | G Papamihail |
| Respondent | : | G N Beggs |
Solicitors:
| Appellant | : | George Papamihail Barristers & Solicitors |
| Respondent | : | Director of Public Prosecutions (WA) |
CACR 121 of 2021
Counsel:
| Appellant | : | G Papamihail |
| Respondent | : | G N Beggs |
Solicitors:
| Appellant | : | George Papamihail Barristers & Solicitors |
| Respondent | : | Director of Public Prosecutions (WA) |
Cases referred to in decision:
Clarke v The State of Western Australia [2013] WASCA 67
Dunn v The King [2023] NSWCCA 1
Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
House v The King (1936) 55 CLR 499
I v The State of Western Australia [2006] WASCA 204
Juma v The State of Western Australia [2011] WASCA 54
Kabambi v The State of Western Australia [2019] WASCA 44
Lackovic v Insurance Commission of Western Australia [2006] WASCA 38; (2006) 31 WAR 460
LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178
Lindsay v The State of Western Australia [2010] WASCA 142
Maric v The Queen (1978) 52 ALJR 631
Musgrave v The State of Western Australia [2021] WASCA 67; (2021) 289 A Crim R 17
Narrier v The State of Western Australia [2008] WASCA 191; (2008) 38 WAR 161
Ngo v The Queen [2017] WASCA 3
North v The State of Western Australia [2020] WASCA 6
NTH v The State of Western Australia [2020] WASCA 22
Patel v The Queen [2012] HCA 29; (2012) 247 CLR 531
R v Clark [2000] WASCA 229
R v Goodall [2007] VSCA 63; (2007) 169 A Crim R 440
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
SJN v The State of Western Australia [2016] WASCA 215
Stanley v The State of Western Australia [2018] WASCA 229
The Queen v GH (No 3) [2018] NTSC 25
The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373
The State of Western Australia v Hussian [2020] WASCA 186
The State of Western Australia v Richards [2008] WASCA 134; (2008) 37 WAR 229
Thong v The State of Western Australia [2020] WASCA 182
VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1
Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41
Table of Contents
Introduction
State case at trial
Jury note as to sexual assault
Jury aid as to translation
Jury note as to translation
Mr Mehta's conviction appeal – CACR 116 of 2021
Legal principles
Mr Mehta's conviction appeal – disposition
Mr Sachdeva's conviction appeal – CACR 121 of 2021
Ground 5 – provision of prejudicial material to jury
Application to adduce additional evidence on appeal
Ground 5 – disposition
Ground 1 – failure to question jury as to discharged juror
Ground 2 – failure to direct the jury not to speculate
Ground 3 – failure to provide a full translation
Ground 4 – miscarriage of justice
Mr Sachdeva's conviction appeal – conclusion
Appeals against sentence – CACR 114 of 2021 and CACR 120 of 2021
Sentencing remarks
Ground 1 (Mehta) – additional hardship
Ground 2 (Mehta) and ground 1 (Sachdeva) – manifest excess
Ground 2 (Sachdeva) – parity
Conclusion
JUDGMENT OF THE COURT:
Introduction
Between approximately 11.20 pm and 11.40 pm on 26 July 2018, one of the appellants, Rohit Mehta, had sexual intercourse with a 47‑year‑old woman in a locked office at the back of a restaurant that he owned with the other appellant, Manmohit Sachdeva. Mr Sachdeva was present at the time that Mr Mehta had intercourse with the woman. Mr Sachdeva also engaged in some form of sexual activity with the woman.
The woman's daughter and her mother, who had been looking for her, entered the office shortly after Mr Mehta and Mr Sachdeva had engaged in the sexual activity. They found the woman semi‑naked and unresponsive. She appeared to be unconscious and began vomiting. The woman's daughter called an ambulance.
Whether the woman was unconscious at the time that Mr Mehta sexually penetrated her is unclear. What is clear is that the woman was extremely intoxicated by alcohol at the time. A blood test taken following her arrival at the Emergency Department of Fiona Stanley Hospital produced a blood alcohol result of 0.25%. Closed circuit television (CCTV) footage from the restaurant also showed the woman to be unsteady on her feet and disorientated. Immediately outside the office where the sexual activity took place, the woman fell to the ground and did not get up again. Mr Mehta picked her up and carried her into the office.
Mr Mehta and Mr Sachdeva were charged with sexually penetrating the woman without her consent by penetrating her vagina with Mr Mehta's penis, while they were in company with each other, contrary to s 326 of the Criminal Code (WA). Their trial was heard by Barbagallo DCJ and a jury from 14 June 2021 to 21 June 2021.
The woman gave evidence about the events of 26 July 2018 and was cross‑examined. She said that she had no recollection of any sexual activity with either of the appellants, although she did say that she neither wanted, nor asked to engage in, any such activity. She was cross‑examined to the effect that when her daughter and the paramedics arrived, she had pretended to be unconscious and that she had pretended that she had no recollection of the sexual activity.
The appellants were both convicted. The learned trial judge sentenced Mr Mehta to a term of 7 years and 6 months imprisonment and Mr Sachdeva to a term of 7 years imprisonment. They were both made eligible for parole.
The appellants now appeal both their convictions and sentences.
Mr Mehta appealed his conviction on the sole ground that the learned trial judge erred in not making enquiries with, or discharging, a juror who, according to another juror, had mentioned that she had been sexually assaulted as a teenager. Mr Mehta maintained that a reasonable bystander might apprehend that a juror who had previously experienced sexual assault might not bring an impartial mind to the resolution of the issues in the case, because such a juror would have 'a tendency to discount the defence of consent'.
For his part, Mr Sachdeva appealed his conviction on a number of grounds relating to certain exchanges between Mr Mehta and Mr Sachdeva in Punjabi, that can be heard on the CCTV footage. Expert evidence was called from an interpreter and translator, Mr Bhim Sen Nagpal, translating a number of the exchanges between the appellants from Punjabi into English. Two principal themes ran through Mr Sachdeva's grounds of appeal:
(a)first, he contended that the jury was incorrectly provided with a document that included a translation of exchanges between the appellants that were not the subject of evidence and which were prejudicial to the appellants; and
(b)secondly, he contended that a miscarriage of justice arose from the fact that one of the jurors could understand Punjabi. Following enquiries made of that juror by the learned trial judge, she was discharged and her Honour directed the remaining jurors that they were only to have regard to the exchanges in Punjabi that were interpreted in the courtroom. Mr Sachdeva submitted that this was an insufficient response to the juror's disclosure.
Mr Mehta's appeal against conviction must be dismissed. The learned trial judge did not err in failing to make enquiries with the juror about her prior experience with sexual assault or to otherwise discharge that juror. There was no basis to conclude that a fair‑minded observer might apprehend, based on the suggestion that a juror had previously experienced a sexual assault, that she might not bring an impartial mind to her role as a juror. A fair‑minded observer would appreciate that the juror would be true to her oath or affirmation and would follow the trial judge's directions to assess the evidence objectively and dispassionately.
Mr Sachdeva's appeal against conviction must also be dismissed. His allegation that the jury was incorrectly provided with a prejudicial document falls at the first hurdle. There is no basis whatsoever to conclude that the jury were in fact provided with such a document. Secondly, the learned trial judge did not err in dealing with the juror who could understand Punjabi. Her Honour properly enquired of the juror as to whether she had translated any of the appellants' exchanges to the other jurors. The juror advised that she had not and, in any event, the remaining jurors were specifically directed that they were only to have regard to the exchanges that were interpreted in the courtroom. There is no reason to doubt that the jury followed that direction.
Each of the appellants appealed their sentence on the basis that it was manifestly excessive. In addition:
(a)Mr Mehta contended that the learned trial judge failed to take into account that imprisonment would be more onerous to him, as he was a migrant with no family residing in Australia; and
(b)Mr Sachdeva contended that his sentence infringed the parity principle, by failing to adequately differentiate between the appellants' different roles in the offending.
The appeals against sentence must also be dismissed. There was no basis to conclude that imprisonment would be more onerous by reason of Mr Mehta's migrant status. Mr Mehta's counsel did not submit to the learned trial judge that imprisonment would be more onerous to him; indeed, he specifically submitted that Mr Mehta had a supportive partner and a supportive group of friends.
Nor were either of the appellants' sentences unreasonable or plainly unjust. Their offending was a very serious case of sexual assault, aggravated by their being in company with one another. The appellants planned their offending and executed that plan with complete disregard of the victim's autonomy and her humanity. They preyed on the victim's vulnerability for their own sexual gratification, and the offending had a significant effect on the victim and her family.
While Mr Mehta's offending was more serious than that of Mr Sachdeva, which justified some disparity between the appellants' sentences, the sentence imposed on Mr Sachdeva did not offend the parity principle. Mr Sachdeva was an active, involved and willing participant in the offending, who was no less callous in his disregard of the victim's dignity. His sentence of 7 years imprisonment, when compared with Mr Mehta's, was not such as to give rise to a legitimate or justifiable sense of grievance, nor to give the appearance in the mind of an objective observer that justice has not been done.
Before turning to each appeal in detail, it is necessary to set out those aspects of the proceedings at trial that are relevant to the appeals.
State case at trial
As at 26 July 2018, both Mr Mehta and Mr Sachdeva were 28 years of age. They owned a café style restaurant in Como called The Hangout on Preston. The restaurant, which was open in the evenings, had a liquor licence and served alcohol.
The complainant's daughter, who was then 18 years of age, was employed as a waitress at the restaurant. On 26 July 2018 she had been working at the restaurant for about two to three weeks. After she finished her shift earlier that day, the complainant's daughter suggested to the complainant that they go to the restaurant in the evening for a meal, which they did.
Much of what followed can be seen on CCTV footage tendered at the trial. References to particular times in what follows are taken from the CCTV footage.[1]
[1] Exhibit P7.
The complainant and her daughter gave evidence that they enjoyed a meal, during which the complainant drank approximately three glasses of wine. After their meal, they were joined by the appellants. Another patron, Mr D'Orazio, who had been sitting at an adjacent table, also engaged in conversation with the group.
From about 8.40 pm, both Mr Mehta and Mr Sachdeva provided the complainant with more alcohol, including wine and tequila (a bottle of which was produced by Mr Mehta at 8.39 pm). The complainant's daughter gave evidence that the complainant became increasingly drunk and that she (the daughter) became concerned and upset. She wanted to take the complainant home. The appellants encouraged the complainant to stay. Mr Sachdeva escorted the complainant's daughter outside the restaurant at 11.00 pm, following which the front door was locked.
In the meantime, the complainant remained in the restaurant. In her evidence the complainant said that after she drank the tequila, it started getting hazy and the next thing she remembered was waking up in hospital. She said that she had no memory of any sexual activity with either of the appellants.
The CCTV footage revealed a series of interactions between the complainant and the appellants after that point, including:
(a)on two occasions (approximately 10.53 pm and 11.00 pm), Mr Mehta can be seen kissing the complainant;
(b)at approximately 11.02 pm, Mr Mehta took the complainant into a small kitchen area, where they both stumbled down some steps, until the complainant landed on the ground;
(c)once inside the kitchen area, Mr Mehta can be seen to kiss and fondle the complainant, while she appeared passive and unable to stand upright. Mr Mehta pulled down both his and the complainant's pants and underwear and appears to push her head towards his groin. The complainant can be heard to say 'no, no';
(d)Mr Mehta then lifted the complainant onto the bench (her pants still down below her knees) and positioned himself between her knees. The complainant again said 'no' and fell off the bench. During this activity, Mr Sachdeva walked into the room and casually walked up to Mr Mehta and the complainant, where he stood watching them;
(e)Mr Sachdeva then unlocked the back door and both he and Mr Mehta led the complainant through an alleyway and into a garage. On a number of occasions the complainant can be seen to attempt to walk away from the appellants, before being pulled back in the direction of the garage;
(f)once inside the garage, at 11.06 pm, the complainant tripped over a barrier and fell to the ground. From that point on, the complainant remained on the ground and did not stand up on her own;
(g)while the complainant was on the ground, Mr Mehta said to Mr Sachdeva:
We've got to pick her up. She's fucked.
(h)Mr Mehta tried to pick the complainant up, in the course of which she said, 'Where am I?'. Mr Mehta ultimately picked the complainant up and carried her to an office area, out of the view of the CCTV camera;
(i)the appellants can be seen to return to the garage area where Mr Mehta remonstrated with Mr Sachdeva. The conversation is not in English. The expert evidence was to the effect that what Mr Mehta said to Mr Sachdeva included:[2]
You go first. You have a go first. I will go afterwards.
You have it and I will also have it.
(j)Mr Mehta then remained in the garage, while Mr Sachdeva went into the office. Mr Sachdeva went into the office at 11.11 pm and was alone in the office with the complainant until Mr Mehta joined him at 11.18 pm; and
(k)at 11.36 pm the complainant's daughter and her mother entered the garage and called out for the complainant on a number of occasions. When the office door was opened about three minutes later and they entered, the complainant's daughter can be heard to scream.
[2] Trial ts 761 ‑ 762.
The complainant's daughter gave evidence that when she walked into the office Mr Sachdeva was completely naked and Mr Mehta had only his underwear on. She said that the complainant was on a bed, curled up in a foetal position under a blanket. The complainant's daughter pulled the blanket off and observed that the complainant's shirt buttons were undone, her bra was lifted up exposing her breast, her pants were down to her knees and one of her shoes was on the floor. The complainant's daughter described the complainant as being unconscious. She then said that the complainant 'started spewing on her side and … was not responsive at all'.[3] She called an ambulance.
[3] Trial ts 565.
Dr Fiona Baxter, a forensic DNA scientist, gave evidence. She gave evidence that a high vaginal swab taken from the complainant revealed a mixed DNA profile that matched the profiles of the complainant and Mr Mehta. The blanket from the office revealed sperm cells that matched the DNA profile of Mr Sachdeva. A pillowcase taken from the scene contained DNA that matched both Mr Mehta and Mr Sachdeva.[4]
[4] Trial ts 780 - 784.
Neither of the appellants gave evidence at trial. Mr Mehta, however, formally admitted that he had sexually penetrated the complainant by penetrating her vagina with his penis. The State also adduced an electronic record of interview with Mr Sachdeva, which contained certain admissions that there was sexual activity between him and the complainant. He said that he achieved ejaculation by masturbating himself just before the complainant's daughter and her mother came in to the office.[5]
[5] BAB (CACR 120 of 2021; CACR 121 of 2021), 150.
Mr Sachdeva said that the complainant instigated all of the activity between her and the appellants and that she consented to it. For example, he said:[6]
She was the one who instigated all this. The moment she walked in, like she had plans. Like, she's, she's like, not being rude, she is forty‑seven years old. We are in our, you know, late twenties, and she, she just wanted to have fun.
…
[S]he just started making out with both of us. She started showing attentions, and that's all that happened … And that is just the reality of things. Now it's up to [the complainant] to admit what she did. Admit it or take the easy route out and ruin our lives. I don't know what pleasure she's going to get. I don't know what pleasure the police is gonna get, but end of the day we didn't do anything un, unconsensual. Now what your definition of unconsensual is might be a bit different to my definition of unconsensual. I will be very honest with that as well. But she was hundred per cent awake until the moment she walked in, then as she walked in she started acting like falling asleep.
Jury note as to sexual assault
[6] BAB (CACR 120 of 2021; CACR 121 of 2021), 148 ‑ 149 (minor transcription errors have been corrected in this extract).
After the luncheon adjournment on the third day of the trial, in the absence of the jury, the learned trial judge advised the parties that she had received a note from one of the jurors. Her Honour advised the parties that the note said:[7]
Your Honour, this morning at 9.45 am, whilst the jury was waiting in our room before coming into court, juror [number provided] mentioned at the table, in front of all other jurors, that she had been sexually assaulted as a young teenager. It was later brought to my attention by another juror, at morning break, that there is a concern and that this past event may cloud her judgment over this case and/or may influence other jurors. Could you please advise a course of action? Perhaps a reminder of the oath that personal experiences or from experiences are excluded. Thank you.
[7] Trial ts 735.
The prosecutor responded by observing that the particular juror had sworn an oath and had not raised any concerns as to her impartiality.
Counsel for Mr Mehta submitted that the juror should be discharged. He expressly said that he did not invite the learned trial judge to question the juror the subject of the note.[8]
[8] Trial ts 737.
Counsel for Mr Sachdeva invited the learned trial judge to remind the jury that if they did not think they could bring an impartial mind to the evidence, they should bring it to the court's attention and remind them that they should not have recourse to sympathy or prejudice.[9]
[9] Trial ts 738.
Following counsel's submissions, the learned trial judge stated that she would remind the jury of the need to approach the case impartially and that she would give that reminder at the conclusion of the evidence that day. Her Honour did not question or discharge the juror the subject of the note. In the course of her exchanges with counsel, it is apparent that her Honour considered that the circumstances were no different to any other juror who brought their life experience to their role as jurors and that there was no reason to apprehend that it might affect the juror's impartiality.[10]
[10] Trial ts 737 - 738.
At the conclusion of the evidence that day, after reminding the jury of their obligations not to research or discuss the case, the learned trial judge said:[11]
And just, of course, remembering that, you know, when you ultimately are to decide this matter, I will give you directions at the end of the trial.
But, of course, prejudice or sympathy plays no role in your verdicts. It must be on the evidence that you hear in this trial, consistent with everything I've been telling you now for three days. And you must bring an impartial mind to the evidence, so they're the things that I obviously want to remind you about three days into the trial. And reminding you again about your oath and your affirmation, your promise to bring in a verdict on the evidence impartially in this trial.
[11] Trial ts 744.
The learned trial judge returned to this issue in her directions to the jury on the final day of the trial. Her Honour said:[12]
In a trial which concerns allegations to (sic of) sexual assault, you may well have sensed an emotional response to something you heard or saw during the course of the trial. This could be a positive emotion such as empathy or compassion or a negative emotion such as prejudice or judgment. As jurors, you have sworn on oath or taken an affirmation to decide the case based solely on the evidence. While emotional responses to evidence are an inevitable part of human nature, as a juror, you must put them aside and decide the case only on the evidence that you have heard.
So I would ask that you keep being mindful of any emotional responses. It is your job to assess the evidence objectively and dispassionately and decide whether the State has proven the charge against Mr Mehta and Mr Sachdeva.
Jury aid as to translation
[12] Trial ts 921.
As noted above, Mr Nagpal was called to give expert evidence translating certain exchanges between the appellants that are recorded on the CCTV footage. The exchanges that were the subject of Mr Nagpal's evidence were those between the appellants in the garage outside the office after the complainant had been carried into the office by Mr Mehta. The substance of the exchanges were as to who would 'go first' and who would 'follow'. There was also evidence of phrases such as 'I'll slap you on the face' and 'No, you won't.'[13]
[13] Trial ts 761 ‑ 762.
The exchanges between the appellants on the CCTV footage was also the subject of a written transcription prepared by Mr Nagpal prior to trial, which was included in the prosecution brief. The whole document on the prosecution brief was six pages long and constituted pages 379 to 384 of the prosecution brief. The exchanges translated by Mr Nagpal in evidence, however, only related to the exchanges that appeared on the first page of Mr Nagpal's transcription, being page 379 of the prosecution brief. The State did not lead evidence in relation to the other exchanges, which contained some potentially prejudicial material.
In the course of his cross‑examination of Mr Nagpal, trial counsel for Mr Sachdeva asked for the written translation prepared by Mr Nagpal of the passages the subject of his evidence to be provided to the jury as an aide memoire. Following an invitation from the learned trial judge, the prosecutor agreed to arrange for copies to be made and distributed to the jury.[14]
[14] Trial ts 771.
The following morning, prior to counsel's addresses to the jury, the prosecutor provided copies of the transcription as requested. In doing so he said:[15]
Your Honour, before I forget, your Honour asked for copies of the – I think what was going to become an aid, a transcript of the translation. I've got copies here, I just hand them up. And just to confirm, that's brief page 379. (emphasis added)
[15] Trial ts 816.
The document was not referred to by the prosecutor in his address to the jury. It was, however, referred to by counsel for Mr Sachdeva in his address, who said:[16]
We have a foreign language being spoken, all of us now present in court, save for the accused, don't speak Punjabi. We're not privy to things that are said beyond the evidence led on that transcribed piece of paper by the State. And that's a classic example of having regard only to the evidence, isn't it? (emphasis added)
[16] Trial ts 862.
Later in his address, counsel returned to the document:[17]
Look carefully at the footage.
You have it. Both as to the words spoken by Mr Mehta and not spoken by Mr Sachdeva, and the body language of the two. And you have the full agreed translation of the portion of footage to look at between 10 past 11 and 12 minutes past 11.
Jury note as to translation
[17] Trial ts 871.
A further issue arose in relation to the issue of translation following the provision of the copy of the translation and during the prosecutor's closing address. Following a short adjournment in the course of the prosecutor's address, prior to which the prosecutor had just played portions of the CCTV footage from the garage (including what he described as 'whispering')[18] the learned trial judge received a note from one of the jurors in the following terms:[19]
I understand, read, write and speak Punjabi, including whispers. Kind regards.
[18] Trial ts 828.
[19] Trial ts 835.
Counsel for Mr Sachdeva submitted that the particular juror was privy to material that was not part of the evidence and in a different position to the other jurors. He submitted that the juror should be discharged and, in addition, to ask her whether she had told any other juror of anything she had heard in Punjabi that had not formed part of the evidence.[20] The prosecutor accepted that it would be appropriate to discharge the juror and make an inquiry of her.[21]
[20] Trial ts 839.
[21] Trial ts 840.
The learned trial judge acceded to the application to have the juror discharged and to inquire of the juror. The juror (Juror 260) was brought into the courtroom, where the following exchange occurred:[22]
[22] Trial ts 840 - 842.
BARBAGALLO DCJ: … Juror 260, thank you for your note. I received that and have read it.
Juror 260, can I ask you have you – in hearing the recordings, the CCTV that have been played have you been able to interpret material other than what has been interpreted in court?
JUROR 260: From time to time. Yeah. When it's played again. When it was played again. So I think that I could understand if it's played again and again.
BARBAGALLO DCJ: All right. Now - - -
JUROR 260: I think I could actually translate a lot of it.
BARBAGALLO DCJ: Yes. All right. Can I just ask you so up until this point here have you had any discussions with any of the other jurors about what else you heard other than what the translator has spoken about?
JUROR 260: Only to point out that some words were also in English and that in English there's a – in Punjabi there's – we mix English words with – you know, because that's what they are and you can actually hear, you know - - -
BARBAGALLO DCJ: The English words.
JUROR 260: Get – yes. You can hear the – the English words stand out, so you get the gist of the conversation, like, 'Divorce' and, '(Indistinct)' meaning, 'Baby'.
You know, that's pretty – pretty close. So anyway that was it. That was all I said. 'Did - - -
BARBAGALLO DCJ: All right.
JUROR 260: - - - you hear the English words?' But that's all I said. But they all know in there, you know, I lived in Amritsar.
BARBAGALLO DCJ: Yes.
JUROR 260: I've said, you know, I've lived there, gone to uni there. Married. I am – I'm Sikh, baptised Sikh. I am a baptised Sikh.
I used to be, you know – have long, long hair and I was Amritdhari Sikh about 30 years ago for about 10 years. And that requires a constant – constant devotion.
BARBAGALLO DCJ: All right. Well, Juror 260, in this trial here the evidence that the jury have to determine or make the verdict on is that, which they have heard in the trial, so the interpretation of that.
So the difficulty that I have as the trial judge is to ensure that the evidence that the verdicts come in on are only the evidence that's been heard and not any other translation that has occurred.
And so my concern is that your additional ability to do that might colour what you hear, because you'll naturally be interpreting.
So what I propose to do is I propose to discharge you from being on the jury, so that we have minds that don't have that skill that you have and be able to read – interpret or translate that which everyone else can't.
So I – it's regrettable that I am in this position, but I do that. And I do want to thank you for being on the jury and participating to this point in time, because it's - - -
JUROR 260: I – I agree that would be the case.
BARBAGALLO DCJ: And I do applaud you for bringing this to our attention. So - - -
JUROR 260: Yeah.
Counsel for Mr Sachdeva invited the learned trial judge to ask further questions of the juror in relation to her communications with other jurors. The following exchange took place:[23]
BARBAGALLO DCJ: I thought I had. Sorry, Mr Eyers.
So, Juror 260, in terms of your communication with other jury members on – just so it was – in terms of what you've said to other jurors have you interpreted any of the other CCTV footage and told them what it means other than what we've heard in court?
JUROR 260: No.
BARBAGALLO DCJ: No. So there's been no other material that you've translated and said to them, 'I could hear this and this is what it means'?
JUROR 260: No.
BARBAGALLO DCJ: No.
M[r] Eyers, is there anything else that you wanted me to ask?
EYERS, MR: No. Not beyond that.
[23] Trial ts 843.
After the juror was discharged, counsel for Mr Sachdeva invited the learned trial judge to ask the remaining jurors whether they had been assisted in their interpretation of words spoken on the 'transcript' by Juror 260, beyond the evidence led by the State on the 'transcript'.[24] Counsel for Mr Mehta joined in that submission. The prosecutor submitted that the issue could be dealt with by a direction to the jury.
[24] Trial ts 846.
The learned trial judge dealt with the matter in the manner submitted by the prosecutor. Her Honour did not question the jury. Rather, when the jury returned, the learned trial judge gave it the following direction:[25]
I received a note from Juror 260 and you will have seen she's no longer on (sic one)of your number now. I have discharged her.
What I want to reiterate at this point in time is this, is that the – your verdicts, when you go and deliberate and consider your verdicts the verdicts must be on the evidence that you hear in this courtroom.
So it can't be any matters extraneous. So if you are familiar with the language, Punjabi it's only that, which has been interpreted in this courtroom.
And so I really want to ensure that you understand that the only translation that's been made in this courtroom is that, which came from the expert witness. So above and beyond that there is no other translation.
So I just want to make that really clear at this point in time. So reiterating that your verdicts must be on the evidence and the evidence alone. I said that at the very beginning of the trial.
And you might remember every night I say to you, 'No inquiries of your own, nothing outside'. You can now appreciate how important that is and so I reiterate it again now.
[25] Trial ts 850.
As will be apparent from the chronology, counsel's statement to the jury at [39] above, to the effect that all of those present in the court, other than the accused, did not speak Punjabi, was made after Juror 260 had been discharged.
We turn to the appeals against conviction.
Mr Mehta's conviction appeal – CACR 116 of 2021
Mr Mehta initially appealed on a number of grounds, including the ground pursued by Mr Sachdeva concerning the jury aid as to Mr Nagpal's evidence. That ground and a ground alleging incompetence of Mr Mehta's trial counsel were abandoned prior to the hearing of the appeal. The remaining ground upon which Mr Mehta challenged his conviction, shorn of particulars, is as follows:
The learned trial judge erred in failing to make inquiries of the juror and/or discharge the juror the subject of the jury note provided to her Honour occasioning a miscarriage of justice (T735).
The ground concerns the juror who, according to another juror, had mentioned that she had been sexually assaulted as a teenager (see [28] above).
At the hearing of the appeal Mr Mehta contended that the learned trial judge should have discharged the juror the subject of the note because the nature of the note was such as to give rise to a reasonable apprehension of bias on the part of the juror, in the absence of inquiry of the juror.[26]
[26] Appeal ts 31 ‑ 32.
The relevance of the contention that there should have been an inquiry of the juror was first put on the basis that it could dispel the apprehension of bias. As counsel put it:[27]
If she says, 'Yes, I would be able to decide this case impartially,' that would be the end of it.
[27] Appeal ts 42.
Later in the submissions, however, when addressing how the reasonable bystander would apprehend that the juror might not bring an impartial mind to the case, counsel referred to a potential 'subconscious effect … which would be something that she was not necessarily cognisant of'.[28] In light of the apparent tension between the notion that the juror's own assessment of her impartiality would be 'the end of it' and the notion that she may be subject to a 'subconscious effect', counsel added that the trial judge 'might want to probe a little bit deeper into the previous sexual assault'.[29]
[28] Appeal ts 45.
[29] Appeal ts 46.
Returning to addressing how the reasonable bystander would apprehend that a juror with an experience of sexual assault might affect the juror's ability to decide the case on its merits, Mr Mehta's case was put on the basis that the juror 'would have a tendency to discount the defence of consent'.[30]
[30] Appeal ts 46.
In addition to this alleged tendency, Mr Mehta also relied upon an inference to be drawn from the note that two jurors (presumably the juror who wrote the note and the third juror referred to in the note) were concerned that the juror the subject of the note might not be able to bring an impartial mind to her judgment.[31]
[31] Appeal ts 29; Further Submissions on Behalf of the Appellant dated 2 December 2022 [8].
For reasons set out below, ultimately, in our view, the resolution of this ground depends upon whether the information in the jury note in this case, alone and without further inquiry, was such that the learned trial judge erred in not discharging the juror. Indeed, as had been observed on a number of occasions where a trial judge refuses an application to discharge a jury (and by extension a juror), an appeal by the accused is against the conviction and not against the exercise of the trial judge's discretion not to discharge the jury (or juror).[32]
[32] Maric v The Queen(1978) 52 ALJR 631, 634 (Gibbs ACJ; Mason and Jacobs JJ agreeing); Webb v The Queen[1994] HCA 30; (1994) 181 CLR 41 (Webb), 90 (Toohey J); Narrier v The State of Western Australia[2008] WASCA 191; (2008) 38 WAR 161 [31] (Buss JA; Martin CJ & Wheeler JA agreeing); Patel v The Queen [2012] HCA 29; (2012) 247 CLR 531 [67] (French CJ, Hayne, Kiefel & Bell JJ).
In the present case Mr Mehta's counsel at trial did not invite the learned trial judge to question the juror the subject of the note and her Honour did not do so. Whether there has been a miscarriage of justice therefore turns on whether the juror the subject of the note ought to have been discharged in the circumstances revealed by the note.
Before turning to that question, the applicable legal principles may be briefly summarised.
Legal principles
The applicable legal principles in relation to the power to discharge a juror for partiality are well‑settled and were summarised by this Court in VIM v The State of Western Australia[33] and NTH v The State of Western Australia.[34] Those cases identified the relevant test as being that set out by the High Court in Webb. The Court in VIM, summarised that test as follows:[35]
In Webb … the High Court held that the test to be applied for determining whether an irregular incident involving a juror warrants the discharge of the juror or, indeed, the whole jury, is whether the incident is such that, notwithstanding any proposed or actual warning of the judge, it gives rise to a reasonable apprehension or suspicion on the part of a fair‑minded and informed member of the public that the juror or jury has not discharged or will not discharge their task impartially.
[33] VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1 (VIM).
[34] NTH v The State of Western Australia [2020] WASCA 22 (NTH).
[35] VIM [247] (Wheeler & Roberts-Smith JJA, Miller AJA).
Webb itself was a case in which a juror had given a bunch of flowers to a person at the courthouse with a request that it be given to the deceased victim's mother. The trial judge dismissed an application to discharge the juror, stressing to the jury the need for them to have regard only to the evidence, which they were to consider in a dispassionate manner, putting all feelings of sympathy or emotion to one side. While the High Court concluded that the trial judge in Webb had applied an incorrect test, it nevertheless dismissed the appeal.
In dismissing the appeal in Webb, Mason CJ and McHugh J said:[36]
Although, by her own admission, the juror was an impulsive person and had disobeyed an earlier warning not to communicate with persons associated with the case, we think that a fair‑minded and informed person would not apprehend bias on her part. While her sympathy for the deceased's mother had caused her to act as she did, that sympathy had not manifested itself in any act of hostility towards the accused or of partiality to the Crown. Its significance lay in the fact that it indicated that the juror was or might be incapable of examining the evidence dispassionately and impartially. But the public ventilation of the incident, the juror's apology, the recognition of the seriousness of what she had done, the general attentiveness and diligence of the juror, and the strength and detail of the judge's second warning were countervailing factors of considerable strength. A fair‑minded person would assume that the juror would do her best to follow the judge's direction to look at the evidence 'coldly, dispassionately and above all, objectively and using [her] common sense'. When a fair‑minded observer also considered the opinion of the judge – the person on the spot – that the juror would be able to approach the issues dispassionately, we think that a fair‑minded person would not have an apprehension of bias or lack of impartiality on the part of the juror. It follows that this ground of appeal fails.
[36] Webb, 56 (Mason CJ & McHugh J). See also 88 (Toohey J).
While his Honour was in dissent as to the result in the case, Deane J's judgment in Webb provides a useful taxonomy of four distinct, albeit overlapping, 'main categories of case' covered by the doctrine of disqualification by reason of the appearance of bias. While not exhaustive, the categories identified by his Honour provide a useful tool for analysis of the kinds of cases that will ordinarily give rise to an apprehension of bias. The categories identified by Deane J were as follows:[37]
(a)disqualification by interest, namely 'cases where some direct or indirect interest in the proceedings, whether pecuniary or otherwise, gives rise to a reasonable apprehension of prejudice, partiality or prejudgment';
(b)disqualification by conduct, including published statements. This category consists of cases 'in which conduct, either in the course of, or outside, the proceedings, gives rise to such an apprehension of bias';
(c)disqualification by association, which consists of cases where 'the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings'; and
(d)disqualification by extraneous information, where 'knowledge of some prejudicial but inadmissible fact or circumstance gives rise to the apprehension of bias'.
[37] Webb, 74 (Deane J).
Webb itself was a case in the second category identified by Deane J, where the jurors conduct exhibited sympathy for the deceased victim's mother.
VIM was an example of the third and fourth categories identified by Deane J in Webb. A juror, who was also the foreperson, was discharged when it became apparent that she realised that she knew the complainants' brother (disqualification by association) and had said to the other jurors 'I think I might know something about the evidence' (disqualification by extraneous information). The Court rejected a submission that the balance of the jury should have been discharged because of the possible consequence of anything she may have said to the other jurors.[38]
[38] VIM [236], [250] (Wheeler & Roberts-Smith JJA, Miller AJA).
NTH was an example alleging the second category of case (disqualification by conduct). In that case the accused's daughter had overheard one juror saying to another juror (outside court), 'imagine that going on while your daughter is at Brownies' (some of the offending being alleged to have occurred after a complainant had been at Brownies). This Court concluded that fragment of conversation that was overheard fell well short of giving rise to a reasonable apprehension that the juror did not or would not discharge their task impartially and the circumstances did not call for the judge to question the juror concerning whether the juror had already formed a concluded view. The Court concluded, to the contrary, that to have done so would have been inappropriate.[39]
[39] NTH [85], [86] (Buss P, Mazza & Beech JJA).
In I v The State of Western Australia,[40] another case relied upon by Mr Mehta, after being sworn in, a juror realised that he knew the complainant's father. He said that he knew the family and had a preconceived view but 'not of this matter'. It was therefore a case in the third category identified by Deane J in Webb (disqualification by association). In that case Steytler P (Roberts‑Smith and McLure JJA agreeing) concluded that the trial judge had erred by not making additional inquiries with the juror. In that respect, his Honour observed that a trial judge can, and should, question a juror in order to ensure that the judge properly understands any situation that has arisen that raises the spectre of possible bias.[41] The circumstances that required that course in I v The State of Western Australia were as follows:[42]
It was plain from what he said that juror number 42 had a concern as regards his suitability to remain on the panel arising both out of his knowledge of the complainant's family and his 'preconceived opinion'. While it is true, as counsel for the respondent pointed out, that the preconceived opinion, whatever it was, was said by the juror not to be a concern about 'this matter', it seems to me to be plain enough that the opinion was one which the juror considered to be relevant to the matter.
[40] I v The State of Western Australia [2006] WASCA 204.
[41] I v The State of Western Australia [16] (Steytler P).
[42] I v The State of Western Australia [22] (Steytler P).
At the Court's invitation, Mr Mehta and the State also made submissions in relation to a decision of the Supreme Court of the Northern Territory, in The Queen v GH (No 3).[43] While a decision of a single judge (Grant CJ) in the course of a trial, it nevertheless has some analogues with the present case and provides a useful illustration of the application of the relevant principles.
[43] The Queen v GH (No 3) [2018] NTSC 25 (GH).
GH was a case concerning historical sex offences by the accused against his stepdaughters. A juror wrote a note to the following effect:
Could I please have a short private conversation with you in regards to my own history of sexual abuse?
I believe I can be impartial & unbiased but the jury would like me to get your clearance on the matter.
It does not appear that Grant CJ in GH made any further inquiries of the juror in question. His Honour nevertheless dismissed an application to discharge the jury on the grounds of apprehended bias.
In dismissing the application, Grant CJ addressed the general proposition as to whether a reasonable apprehension of bias could arise from the fact that a juror had previously experienced sexual abuse. His Honour rejected that proposition, saying that:[44]
[A] fair‑minded observer could not conclude that the juror was unable or unwilling to bring an unbiased and impartial mind to bear on the assessment of the evidence simply because that juror has previously experienced sexual abuse.
[44] GH [15] (Grant CJ).
In so concluding, Grant CJ referred to a decision of the Victorian Court of Appeal in R v Goodall.[45] In that case, Redlich JA (Buchanan AP and Neave JA agreeing) said:[46]
The special virtue of the institution of the jury is the collective deliberation process of a fair cross‑section of the larger community with the capacity to temper the dangers of irrational, unfair or ignorant reasoning.
Counsel argued that the juror's use of his own personal experience of abuse in evaluating the evidence would have been illegitimate because it was a matter extraneous to the trial which could not have been subject to any scrutiny by the parties. I do not accept that submission. This was not a case of an experiment conducted by a juror becoming a form of new evidence, or of the jury inadvertently receiving information which was not part of the evidence at trial. Rather, what is raised in this case is the possibility, albeit a speculative one, of a juror evaluating existing evidence by reference to a particular experience they have had. In my view this is something the juror would have been entitled to do.
The process of jury selection that is followed in most common law jurisdictions and the integrity of the jury system rest upon the rationale that a juror's life experiences or the use that a juror may make of such experience in evaluating the evidence does not give rise to a reasonable apprehension of bias in that juror. As a general rule it is assumed that jurors, who have had an experience such as the present juror, are able to give effect to their obligation to act impartially so that a reasonable apprehension of bias does not arise.
…
I do not accept the premise, which underlies much of the applicant's argument, that a fair‑minded observer would form a reasonable suspicion that a juror was not able to act impartially on the basis that the juror had been the victim of a crime of the kind with which the accused stood charged.
[45] R v Goodall [2007] VSCA 63; (2007) 169 A Crim R 440 (Goodall).
[46] Goodall [27] ‑ [29], [31] (Redlich JA).
In Neave JA's concurring reasons in Goodall, her Honour added the following remarks:[47]
I do not accept the submission that a person who has had a particular life experience cannot serve on a jury in a trial which concerns matters to which that experience is relevant. In this case the argument, put simply, amounts to the generalisation that victims of sexual assault are incapable of bringing an objective mind to the issues to be resolved in the trial of an accused for sexual offences, while other members of the jury who have not had such an experience are capable of doing so. It should not be assumed that a person who has been sexually assaulted is any more likely to be prejudiced against the accused than other jurors.
It is to be expected that juries will, at times, include persons who have been victims of crimes, just as they will include people who have had no experience of crime. As Professor Martha Minow points out in an excellent article on bias and impartiality, the purpose of selecting juries from a cross‑section of the community is intended to ensure they bring a variety of perspectives and experiences to the task of fact‑finding. In her words:
'We want … juries to be objective about the facts and the questions of guilt and innocence but committed to building upon what they already know about the world, … and human beings.'
This is reflected in directions to juries which instruct jurors to bring an impartial mind to the decision‑making process, but to draw on their own experience in drawing inferences and reaching conclusions on the facts in issue.
[47] Goodall [3] ‑ [5] (Neave JA).
Returning to GH, in that case Grant CJ also addressed a submission, similar to that made in the present case (see [55] above), that an inference should be drawn that other jurors had concerns as to whether the juror in question could be impartial. His Honour said:[48]
Counsel for the accused says the inference properly drawn is that some members of the jury harbour an apprehension of that matter. While a subjective view to that effect, even if it did exist on the part of some jurors, would not necessarily be determinative of a reasonable apprehension, I do not consider that the terms of the note sustain the inference which the accused seeks to be drawn. The note suggests only that the jurors considered the matter was properly brought to the attention of the trial judge. It is perfectly understandable why a conscientious, cautious and diligent jury comprised of members without legal qualifications might ask the question whether a juror's history of sexual abuse in a case involving charges of sexual abuse should be brought to the attention of the trial judge. This is not a case in which it is apparent there is any disputation between the jurors concerning bias, prejudgement, premature conclusions or any other matter involving deliberations. Accordingly, there is no factual basis on which to suggest that the juror in question is actually prejudiced against the accused, that the other members of the jury harbour any concern in that respect, or that there has been some resultant contamination of the jury.
[48] GH [20] (Grant CJ).
There are two final points to make in relation to the applicable legal principles in relation to the discharge of a juror. First, as will be apparent from the authorities referred to above, in considering whether a reasonable apprehension of bias exists it is necessary to consider the likely effect of the trial judge's directions to the jury (if any) as well as the alleged irregularity.[49]
[49] Webb, 53 (Mason CJ & McHugh J); I v The State of Western Australia [14] (Steytler P); VIM [251] (Wheeler & Roberts-Smith JJA, Miller AJA).
Secondly, while some leeway must be given to the decision of a trial judge (given his or her usually better appreciation of the circumstances in their context), ultimately this Court must decide for itself whether what occurred has given rise to a miscarriage of justice.[50]
[50] NTH [84] (Buss P, Mazza & Beech JJA).
It is to that issue that we now turn.
Mr Mehta's conviction appeal – disposition
The information in the jury note in the present case did not, and could not, give rise to a reasonable apprehension of bias on the part of the juror the subject of the note. Mr Mehta's appeal against conviction must fail.
The only matter revealed by the note is the suggestion that one of the jurors had been the subject of a sexual assault as a teenager. We use the word 'suggestion' because, of course, the note did not come from the juror who was the subject of the note. There is no suggestion from the note, or from any of the circumstances, that the juror herself considered that any prior experience that she may have had would, or might, affect her impartiality.
The fact that another juror, or jurors, saw fit to write the note does not suggest otherwise. As in the case of GH, in our view, their doing so suggested no more than that the jurors considered that it was a matter that was properly brought to the attention of the trial judge. That was, as Grant CJ said in GH, an understandable step for a conscientious, cautious and diligent jury comprised of members without legal qualifications to take. There is nothing in the note to suggest that the juror the subject of the note had said or done anything to indicate partiality. The case was not one falling within the second category identified by Deane J in Webb, involving conduct by the juror giving rise to an apprehension of bias. Indeed, while not determinative of the appeal, it will be apparent that the circumstances of the present case do not fall squarely within any of the categories identified by his Honour.
The issue then becomes whether the fact that a juror has experienced sexual assault in the past is itself a matter giving rise to an apprehension of bias. In our view, plainly it could not.
As Neave JA said in Goodall, it is to be expected that juries will, at times, include persons who have been victims of crimes, just as they will include persons who have little or no experience of crime. Indeed, given what is known as to prevalence of crime generally, it would be expected that many, if not most, juries comprised of 12 adult members of the community will include some jurors who have been victims of crime. It would be surprising if it were otherwise. There is no reason whatsoever to suppose that persons who have been victims of crimes are any less able to be objective and impartial than their fellow citizens who have not.
Persons who have experienced sexual assault are no different, in this regard, than any other person who has experienced crime in the past. The most recent official statistics from the Australian Bureau of Statistics report that 23% of women and 8% of men have experienced sexual assault.[51] The law of averages would therefore suggest that most juries of 12 persons will include one or more such persons. There is no basis to suspect or suppose that those persons would lack the objectivity or impartiality required of a juror.
[51] Australian Bureau of Statistics, Sexual Violence - Victimisation (2021) - Released 24 August 2021, Table 1. (>
In the present case, Mr Mehta's contention was that a juror with previous experience of sexual assault would, for that reason, 'have a tendency to discount the defence of consent'. That contention must be rejected. It rests on mere assertion. To the contrary, and consistent with the precepts and principles underlying the institution of the jury, as a general rule it is to be assumed that jurors, who have had an experience such as the juror in the present case, are able to give effect to their obligation to act impartially.
To accede to the notion that, by reason of having experienced sexual assault, a person would, for that reason alone, thereby have a 'tendency' to be unable to approach their duties as a juror other than objectively and impartially, or that such a person would have a 'tendency to discount the defence of consent', in our respectful view, would be to fall, erroneously, into the kind of myths and stereotypes in relation to persons who have experienced sexual assault that once bedevilled this area of the law.[52] A person who has experienced a sexual assault, or indeed any victim of crime, should not for that reason be assumed to lack the capacity for objectivity or impartiality that is to be expected of any other member of the community who has sworn an oath or made an affirmation to serve as a juror.
[52] As to which see Glanville Williams, Textbook of Criminal Law (1978), 196 ‑ 197.
It will be apparent from what we have said that we agree with the statements of principle in Goodall and GH referred to at [70] to [72] above. There is nothing in the circumstances of the present case to depart from the general assumption of impartiality and objectivity upon which the jury system rests.
The need for impartiality was reinforced by the learned trial judge on a number of occasions, including on the day upon which this issue was raised with her Honour. As the authorities make clear, it is necessary to consider the likely effect of the trial judge's directions in assessing whether a reasonable apprehension of bias exists. Her Honour's directions in this regard were entirely appropriate. There is nothing to justify a departure from the assumption that the jury will act in accordance with the directions of the trial judge.[53]
[53] Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414 [13] (Gleeson CJ & Gummow J); LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178 [333] (Buss JA).
As we have noted above, the ultimate issue raised by Mr Mehta's appeal against conviction was whether the juror should have been discharged from serving on the jury, rather than whether the learned trial judge erred in not questioning the juror.
Nevertheless, for completeness, we would record that, in our view, the circumstances did not call for the learned trial judge to question the juror the subject of the note. Unlike cases such as I v The State of Western Australia, there was nothing in the note which raised the spectre of bias or for which questions would be required in order for the trial judge to properly understand the situation. The situation was readily apparent from the note and it did not give rise to a reasonable apprehension of bias. Mr Mehta's appeal counsel's equivocation as to what, if any, further enquiries – beyond asking the juror whether she could bring an impartial mind to the task – is telling. While it should go without saying, it would have been wholly inappropriate for the trial judge to question this, or any other, juror, as to the details of any experience of sexual assault that they may have experienced in the past.
Mr Mehta's appeal against conviction is without merit. We would refuse leave to appeal on the sole ground and dismiss the appeal.
We turn to Mr Sachdeva's appeal against conviction.
Mr Sachdeva's conviction appeal – CACR 121 of 2021
Mr Sachdeva appeals his conviction on five grounds, which are as follows:
1.The learned trial judge erred in law by not inquiring of the jury whether the jury had been assisted in any way by one of the jurors being able to understand Punjabi, in circumstances where:
a.The prosecutor led CCTV evidence, which included audio recording;
b.The audio recording included conversation between the appellant and co‑offender that was in Punjabi;
c.The prosecutor adduced translation of only a small part of the recorded conversation that was in Punjabi; and
d.On the last day of evidence, a juror communicated to the judge that she could understand Punjabi.
2.The learned trial judge erred in law by failing to direct the jury that they were not to speculate on what was said in Punjabi between the appellant and the co‑offender, when that audio was played to the jury and not translated.
3.Further or alternatively, a miscarriage of justice occurred when the prosecutor led the CCTV evidence with audio, without the jury having the benefit of a full translation, and the small section of translated audio contained only inculpatory statements.
4.Alternatively, the grounds set out above cumulatively or in aggregation resulted in a miscarriage of justice in the trial overall.
5.A miscarriage of justice occurred by reason of the jury being provided with a document which contained evidence not led in court, in circumstances where:
a.The document had a transcription of conversations in Punjabi, together with translations into English;
b.The document was intended to only contain transcription of that portion of the Punjabi conversation that was actually played and translated in court;
c.The full transcription was prejudicial to the appellant and his co‑accused, in that it included statements from which the jury could have engaged in impermissible reasoning to reach a guilty verdict;
d.Neither the trial judge nor counsel had an opportunity to address the material that was not in evidence; and
e.A juror was fluent in Punjabi.
As will be apparent, there was a degree of overlap between the five grounds. Indeed, ground 4 is something of a compendium and adds nothing to the other grounds.
Ground 5 is based on the proposition that, contrary to what appears in the transcript of the trial (namely that the prosecutor prepared copies of page 379 of the prosecution brief as an aide memoire for the jury),[54] that the jury were in fact provided with the entirety of Mr Nagpal's transcription of the exchanges between the appellants (pages 379 to 384 of the prosecution brief), including potentially prejudicial material. As that ground includes, as its evidentiary foundation, an application to adduce additional evidence on the appeal, we propose to deal with it first.
[54] See [38] above.
Grounds 1 to 4 concern further issues arising from the exchanges between the appellants in Punjabi, including the learned trial judge's decision not to question the remaining jurors whether Juror 260 (who had been discharged) had assisted them in their interpretation of words spoken by the appellants. Those grounds will be addressed in turn.
Ground 5 – provision of prejudicial material to jury
As already noted, ground 5 contends that the jury were provided with Mr Nagpal's full transcription of the exchanges between the appellants (pages 379 to 384 of the prosecution brief), including potentially prejudicial material.
The record of the trial suggests that the jury were not provided with the full transcription but only with the first page, which contained the exchanges that were the subject of Mr Nagpal's evidence. That is apparent both from the prosecutor's identification of the document provided to the learned trial judge as being page 379 of the prosecution brief (see [38] above) and from the reference by Mr Sachdeva's counsel in his closing address to 'that transcribed piece of paper by the State' (see [39] above).
The success of this ground therefore depends upon Mr Sachdeva establishing, by additional evidence on the appeal, that the aide memoire to the jury consisted of more than page 379 of the prosecution brief.
It is to the additional evidence sought to be adduced on the appeal to which we now turn.
Application to adduce additional evidence on appeal
In exercising its discretion whether to admit additional evidence, this Court is ultimately concerned with whether it is just, in all of the circumstances, to admit the further evidence on appeal.[55] In the present case a number of witnesses were called, and exhibits received, on a provisional basis, such that the Court would determine application to adduce additional evidence in the context of determining the merits of the appeals.
[55] Lackovic v Insurance Commission of Western Australia [2006] WASCA 38; (2006) 31 WAR 460 [114] (Buss JA, Steytler P agreeing), [9] (Pullin JA).
Mr Sachdeva gave evidence on his own behalf in support of the appeal.
Mr Sachdeva said that he recalled the occasion upon which documents relating to the translation were handed to the jury 'just for reference'. He said that each jury member was given a copy. In that context he said:[56]
I saw it from the other side and when it was given to the jury, obviously it had multiple pages because I saw the jury flipping over the document.
[56] Appeal ts 15 ‑ 16.
Mr Sachdeva said that there was definitely more than two pages. He had no idea if they were one‑sided or double‑sided.
In cross‑examination, Mr Sachdeva agreed that he was not shown the document before it was provided to the jury. He said that the document was provided immediately after the translator had finished giving evidence and then he clarified that 'it was around the time the translator was giving evidence'. He said that he thought the translator was still present at the time.
The State called evidence from Michael Anthony Perrella and Lindsay Kade Rosenthal.
Mr Perrella was trial counsel for Mr Mehta. He said that he had an independent memory of some transcript being provided to the jury during the course of the trial. He was asked the following questions:[57]
And what is your recollection of that transcript?---My recollection is that the prosecutor, Mr Rosenthal, was the one who showed me and co‑accused counsel, Mr Anthony Eyers, the document. My recollection is that it was a single page, but it could have been two. I think three might have been a stretch, but the memory I have is it being probably one but maybe two pages.
And did you have a look at that document before it was provided to the jury?---I did, because my client made it clear to me in earlier proofing that there are parts in the translation of the CCTV footage which is inaccurate but also highly prejudicial. And so I was very conscious of that before looking at it and was keen to look at it, and I did read it before it was given to the jury.
[57] Appeal ts 19.
Mr Perrella said that he could not recall what part of the translations of the CCTV footage the transcript related to, although he recalled it not being the controversial or prejudicial part. He said that the portion of the transcript provided to the jury caused him no concerns whatsoever.
In cross‑examination, Mr Perrella said that he recalled the document being single‑sided. He said that he recalled reading it and that it did not take long to read and to discuss with counsel for Mr Sachdeva. Mr Perrella said he thought that there had been a reference to a page number of the brief, but he couldn't remember what the number was. He again said that his recollection was that it was one page, but it could have been two.[58]
[58] Appeal ts 20 - 21.
Mr Rosenthal was the prosecutor at trial. He swore an affidavit (marked as Exhibit 1 in the appeal) that he made 16 copies of page 379 of the prosecution brief, which he provided to the court so that it could be given to the jurors. Mr Rosenthal deposed that he did not provide the balance of the transcript, namely pages 380 to 384 of the prosecution brief.
In cross‑examination Mr Rosenthal was asked three questions by counsel for Mr Sachdeva. In response to the first question, he said that he could not be mistaken about the number of pages. Counsel for Mr Sachdeva asked him if he was certain it was only one page, to which Mr Rosenthal responded 'definite'. For good measure, counsel asked Mr Rosenthal if he was 'absolutely 100 per cent certain'. He was.[59]
Ground 5 – disposition
[59] Appeal ts 24.
Ground 5 is without any plausible basis. At the latest, following completion of the evidence, this ground should not have been advanced.
There is no basis to find that the jury were, in fact, provided with Mr Nagpal's full transcription of the exchanges between the appellants (pages 379 to 384 of the prosecution brief) or that the jury was provided with any prejudicial material. On the contrary, the only possible conclusion is that, consistent with the trial record, the jury was only provided with page 379 of the prosecution brief.
In that regard, we have no hesitation in accepting the evidence of Mr Perrella and Mr Rosenthal as being credible and reliable. The contrary was not, and could not be, suggested.
Mr Perrella clearly had a professional interest in ensuring that only the relevant portion of the transcription was provided to the jury. There is no reason to doubt that he discharged his professional duties conscientiously and diligently. While Mr Perrella quite properly accepted that there were limits to his memory in relation to certain details, his evidence was clear that the document provided to the jury caused him no concerns whatsoever. We accept his evidence.
Mr Rosenthal's evidence was consistent with that of Mr Perrella and consistent with the transcript of the trial. His evidence was, to say the least, unshaken in cross‑examination. We accept it in its entirety.
Mr Sachdeva's evidence, by contrast, did not, in our assessment, provide a plausible basis for suggesting that the jury were provided with more than page 379 of the prosecution brief. By his own account, Mr Sachdeva did not see the contents of the document provided to the jury. He had no particular reason to look at the document, or at the number of pages that were provided to the jury. Those were matters that could properly be, and were in fact, left to his counsel. Mr Sachdeva raised no concerns about the document at the time that it was provided to the jury. His evidence, well after the event, that there was something irregular about the document provided to the jury, in our view, has all the hallmarks of having been contrived to suit his case on appeal.
In addition, while not of great significance, Mr Sachdeva's evidence as to the detail as to when the document was provided to the jury was wrong. The document was not provided while the translator, Mr Nagpal, was present in court, nor was it provided to the jury later on that day. As is apparent from the trial record, the document was provided the following day after the close of the evidence.
In the circumstances, in our view, it is not in the interests of justice to admit Mr Sachdeva's additional evidence on the appeal. His evidence fell a long way short of providing any support for a finding that the aide memoire provided to the jury included anything other than page 379 of the prosecution brief. If and to the extent that Mr Sachdeva's evidence might have provided some meagre support for such a finding, the evidence of Mr Perrella and Mr Rosenthal removed any doubt about the matter.
The application to adduce additional evidence in the appeal is refused, as is leave to appeal on ground 5.
Ground 1 – failure to question jury as to discharged juror
Ground 1 contends that the learned trial judge erred in law by not inquiring of the jury as to whether the jury had been assisted by the juror who could understand Punjabi. Mr Sachdeva did not contend that her Honour ought to have discharged the jury. The ground of appeal was put on the basis that the failure to question the other jurors gave rise to a miscarriage of justice, as an inquiry of the jurors may have led to the discharge of the jury.[60]
[60] Appellant's Amended Submissions dated 15 June 2022 [35] (WAB 28).
Ground 1, nevertheless, concerns an allegation of reasonable apprehension of bias on the part of the remaining jurors and whether the circumstances sufficiently raised the spectre of possible bias so as to require the learned trial judge to question the remaining jurors in order to ensure that her Honour properly understood the situation. In that regard the principles to be applied are those set out at [59] to [75] above in relation to Mr Mehta's appeal against conviction.
The circumstances in which Juror 260 came to be discharged are set out at [41] to [47] above. The juror raised the issue during a short adjournment in the course of the prosecutor's address. Immediately prior to that adjournment the prosecutor had replayed portions of the CCTV footage from the garage. This explains why the juror raised the issue when she did. As Juror 260 said to the learned trial judge, she could interpret material 'when it was played again'. She said that she thought she could 'understand if it's played again and again'. The exhibit was, of course, yet to be provided to the jury to enable it to play it again in the jury room.
Juror 260 said that she had pointed out to the other jurors that there were English words mixed in with the Punjabi. The learned trial judge expressly asked her whether she had interpreted any of the other footage and told the other jurors what it meant. Juror 260 said that she had not and then confirmed a second time that there was no other material that she had translated.
The statements by Juror 260 that she had not translated material from the CCTV footage into English were clear and unequivocal. They were made by a juror who had appropriately volunteered her knowledge of Punjabi to the learned trial judge. There was no reason to doubt the veracity of what Juror 260 said and the learned trial judge was entitled to accept that what she said was true.
In those circumstances, in our view, there was no need for the judge to question the other jurors. This was a case in which Juror 260 had been discharged because she had access to extraneous information (Deane J's fourth category of disqualification in Webb). There was no material before the court to suggest that any other juror had access to extraneous information. The fact that Juror 260 had been a member of the jury was an insufficient basis for a further enquiry to be made of the other jurors. The position is similar, in that regard, to VIM, in which the foreperson was discharged due to an association with the complainant's brother, but had confirmed that she did not discuss the matter with the other jurors.
In any event, as in VIM, the learned trial judge gave the remaining jurors a clear and emphatic direction, after they returned, that (i) they could not take into account 'any matters extraneous'; (ii) if they were 'familiar with the language, Punjabi it's only that which has been interpreted in this courtroom'; and (iii) 'the only translation that's been made in this courtroom is that, which came from the expert witness'.
There is no reason to doubt that the jury would have fully complied with this direction. Taking into account Juror 260's disclosure, her responses to the learned trial judge and the likely effect of her Honour's directions to the jury, the circumstances were incapable of giving rise to a reasonable apprehension or suspicion on the part of a fair‑minded and informed member of the public that the jury (or any member of it) might not be impartial.
We would refuse leave to appeal on ground 1.
Ground 2 – failure to direct the jury not to speculate
Ground 2 contends that the learned trial judge erred in law by failing to direct the jury that they were not to speculate as to what was said in Punjabi between the appellants, when the audio was played to the jury and not translated.
The ground of appeal is misconceived. Not only did the learned trial judge give the jury a general direction that they were not to speculate,[61] her Honour gave specific directions in relation to the exchanges between the appellants in Punjabi, which stressed the importance of relying only upon the evidence, including any translations that were given by the expert evidence. In the circumstances, nothing more was required.
[61] Trial ts 921.
Ground 2 is without merit. Leave to appeal should be refused.
Ground 3 – failure to provide a full translation
Ground 3 contends that a miscarriage of justice occurred because the State led the CCTV evidence with audio, without a full translation, and the small section of translated audio contained only inculpatory statements.
Ground 3 is rather curious. It is, in its terms, entirely inconsistent with ground 1 and ground 5, which are founded upon the proposition that the jury may have had access to translations of the audio in the CCTV footage in addition to the translations the subject of Mr Nagpal's expert evidence. And yet ground 3 contends that the jury ought to have been provided with a 'full translation' of all of the audio, including, apparently, those parts that Mr Sachdeva contends were highly prejudicial. At one stage it appeared, from his written submissions, that Mr Sachdeva had abandoned this ground of appeal by reason of this inconsistency.[62] The ground was, however, revived at the hearing of the appeal.[63]
[62] Appellant's Amended Submissions dated 15 June 2022 [56] (WAB 31).
[63] Appeal ts 12.
In his oral submissions, counsel for Mr Sachdeva contended that what ought to have occurred is that the State ought to have tendered the CCTV footage, with the full translation, to which counsel could then take steps to make objection to any of the translation.[64]
[64] Appeal ts 68.
The contention is without merit. Mr Sachdeva's trial counsel clearly had access to all of the translations prepared by Mr Nagpal, which were disclosed as part of the prosecution brief. Mr Nagpal gave evidence, without objection, in relation to one set of exchanges between the appellants, following which Mr Sachdeva's trial counsel had the opportunity to cross‑examine Mr Nagpal in relation to any exchanges between the appellants that he saw fit, including any statement by Mr Sachdeva that counsel considered might be exculpatory. He did not do so. Nor, on appeal, did Mr Sachdeva identify any exculpatory statements in the CCTV footage that ought to have been put to Mr Nagpal in cross‑examination.
We would refuse leave to appeal on ground 3.
Ground 4 – miscarriage of justice
Ground 4 seeks to rely upon the 'aggregate' effects of the defects alleged in grounds 1 to 3. It will be apparent from what we have already said that there were no defects in the trial; ground 4 adds nothing to what we have already rejected.
We would refuse leave to appeal on ground 4.
Mr Sachdeva's conviction appeal – conclusion
Mr Sachdeva required an extension of time within which to appeal his conviction. None of the grounds of appeal have any merit. We would therefore refuse his application for an extension of time and refuse leave to appeal on each of the grounds. As a consequence, the appeal must be dismissed.
Appeals against sentence – CACR 114 of 2021 and CACR 120 of 2021
Mr Mehta appeals against his sentence of 7 years and 6 months imprisonment on two grounds, namely that:
(a)'[t]he learned sentencing judge made a specific error of law by failing to materially consider the fact that [Mr Mehta's] time in prison was likely to be more onerous on account of the fact that [Mr Mehta] is a migrant from India that has no family residing in Western Australia; and therefore, will not have any family visits/local supports, and that his prison time will be harder given those factors' (ground 1 (Mehta)); and
(b)'[i]n all the circumstances, the sentence imposed is manifestly excessive, having regard to the circumstances of the offence' (ground 2 (Mehta)).
Mr Sachdeva also appeals against his sentence of 7 years imprisonment on two grounds, namely that:
(a)'[t]he learned sentencing judge erred in law by imposing a sentence that was manifestly excessive' (ground 1 (Sachdeva)); and
(b)'[t]he sentence imposed by the learned sentencing judge on [Mr Sachdeva] infringed the parity principle, in circumstances where:
a.[Mr Sachdeva] was not charged as a principal offender;
b.[Mr Mehta] was found to have been the instigator of the offending;
c.[Mr Sachdeva's] role in the offending, as compared with [Mr Mehta], was such that [Mr Sachdeva] has a justifiable sense of grievance due to the lack of disparity between the sentence imposed on [Mr Sachdeva] and that imposed on [Mr Mehta]' (ground 2 (Sachdeva)).
There is considerable overlap between the grounds of appeal in the sentence appeals, in particular between ground 2 (Mehta), ground 1 (Sachdeva) and ground 2 (Sachdeva). In particular, the extent to which each of the appellants had different roles in the offending, and differing criminality, is relevant both to the whether their individual sentences were plainly unjust or unreasonable and to whether the parity principle was infringed.
It is first necessary to set out relevant aspects of the learned trial judge's sentencing remarks.
Sentencing remarks
The learned trial judge, having identified the maximum penalty for each appellant of 20 years imprisonment, made detailed findings as to the circumstances of the offending. A significant number of those findings were based on an extensive review of the CCTV footage. We too have carefully viewed that footage and, consistent with the learned trial judge's findings, have set out a description of parts of it at [23] above. We need not repeat what is set out there.
The learned trial judge found that the victim was generally enjoying her evening, and could be seen to be happy, engaging and engaged with those at her table, including the appellants. Her Honour said that the victim was clearly affected by alcohol and was 'an affectionate drunk'.[65]
[65] Trial ts 1059; BAB (CACR 114 of 2021; CACR 116 of 2021), 62.
At approximately 9.20 pm, the victim's daughter made clear to Mr Mehta that she wanted to take her mother home. In response, Mr Mehta said that he 'would not fuck her mother'. Her Honour found that this was such an odd thing to say to the victim's daughter that she concluded that, at that time, Mr Mehta had sex with the victim on his mind.[66]
[66] Trial ts 1060; BAB (CACR 114 of 2021; CACR 116 of 2021), 63.
The learned trial judge found that at around 11.00 pm, the victim was clearly intoxicated. Mr Mehta lured the victim behind a partition, while Mr Sachdeva took the victim's daughter outside. Mr Sachdeva locked the front door, preventing her from coming back in.[67]
[67] Trial ts 1061; BAB (CACR 114 of 2021; CACR 116 of 2021), 64.
The learned trial judge summarised the sexual activity that took place in the kitchen from 11.01 pm to 11.06 pm. The victim was not actively participating, she could 'barely stand upright under her own steam', was 'almost a dead weight' in Mr Mehta's arms and clearly very intoxicated. The only words from the victim were her repeated use of the word 'no'. The learned trial judge found that Mr Sachdeva's response to what was going on was telling. He was 'not at all fazed' by what he saw and remained up close to the victim and Mr Mehta.[68]
[68] Trial ts 1063; BAB (CACR 114 of 2021; CACR 116 of 2021), 66.
The learned trial judge then set out, as findings of fact, each of the matters referred to in [23] and [24] above. Her Honour found that the specific offending occurred between 11.18 pm and 11.39 pm when Mr Mehta penetrated the victim's vagina with his penis while Mr Sachdeva was present. Mr Mehta ejaculated inside of the victim, with no concern for her health or safety.[69]
[69] Trial ts 1067; BAB (CACR 114 of 2021; CACR 116 of 2021), 70.
The learned trial judge was satisfied that, while Mr Mehta was the instigator of the offending, the appellants came to an agreement that the sexual activity would take place. Her Honour was satisfied that there was an agreement, at the very latest, when Mr Sachdeva came into the darkened kitchen. Her Honour said that it was certain that the offending 'was not a spur of the moment decision' and that there were many occasions for both of the appellants to desist. Her Honour found that not only did they both ignore the many and various occasions where it was obvious that the victim was so intoxicated that she was not capable of consenting, but they both relied on her intoxicated state to offend in the way that they did.[70]
[70] Trial ts 1068; BAB (CACR 114 of 2021; CACR 116 of 2021), 71.
The learned trial judge found that Mr Sachdeva aided Mr Mehta by clearing the pathway into the office area, unlocking the door to the laneway, unlocking the roller door and opening the office. Her Honour found that Mr Sachdeva's own sexual activity with the victim, while not a separate charge, aggravated his offending. He actively participated in sexual activity with the victim in the full knowledge that she was not capable of freely and voluntarily consenting to such activity.[71]
[71] Trial ts 1069; BAB (CACR 114 of 2021; CACR 116 of 2021), 72.
The learned trial judge then made the following remarks, which bear repeating in full and which we endorse:[72]
Mr Mehta and Mr Sachdeva, a woman who chooses to drink, even to the point of becoming very intoxicated, does not put herself in a vulnerable position. She isn't asking for trouble. She is entitled, as any other person in the community, to engage in the consumption of alcohol to excess in the full knowledge that she is safe to do so.
She only becomes vulnerable and is only in trouble when men like you see a very intoxicated woman as an opportunity to prey on them and use them for their own sexual gratification.
Let me be clear. To reason that a woman who drinks to the point of intoxication puts herself in a vulnerable position or is asking for trouble is firstly blaming the victim for the weaknesses in others such as yourselves, and secondly, entirely takes away the responsibility of men like you to act appropriately.
I am not sure where that thinking ever came from, and goodness only knows that there is no place for that kind of thinking in our civilised society. A decent‑minded, respectful member of our community, whether male or female, would have done all they could to ensure this victim was safe and not preyed upon by anyone for their own sexual gratification as both of you did.
[72] Trial ts 1069; BAB (CACR 114 of 2021; CACR 116 of 2021), 72.
The learned trial judge respected the victim's request not to publish the contents of her victim impact statement, as do we. Her Honour nevertheless referred to the general ways that the long‑lasting and devastating effect that this kind of offending has on a victim.[73]
[73] Trial ts 1070; BAB (CACR 114 of 2021; CACR 116 of 2021), 73.
The learned trial judge found that each of the appellant's explanations for their offending exposed their failure to take any responsibility for their own actions. Her Honour rejected each of their assertions that they honestly believed the victim was consenting. Her Honour found that no reasonable person viewing the CCTV footage in its totality could honestly believe that the victim was consenting or even capable of consenting once she was in the kitchen area.[74]
[74] Trial ts 1071; BAB (CACR 114 of 2021; CACR 116 of 2021), 74.
The learned trial judge turned to the appellants' personal circumstances.[75]
[75] Trial ts 1071 - 1074; BAB (CACR 114 of 2021; CACR 116 of 2021), 74 - 77.
Mr Mehta was born, and completed school, in India. He left India when he was 19 years old, arriving in Melbourne in 2009, before moving to Perth in 2012. Mr Mehta came to Perth at the invitation of Mr Sachdeva, who was a childhood friend of his.
Following study in auto mechanical engineering and business management, Mr Mehta began working in restaurants. He purchased a pizza shop in 2015, working very hard to make the business work. In 2017 Mr Mehta's father passed away in India, following which he suffered from depression and anxiety. He assumed financial responsibility for his mother.
In December 2017, Mr Mehta went into business with Mr Sachdeva at The Hangout on Preston. The business ceased to be profitable after Mr Mehta was charged and the liquor licence cancelled.
Mr Mehta was in a healthy stable relationship with a partner who he intended to marry. He had no prior criminal convictions and so came to be sentenced as a person of prior good character. The learned trial judge referred to numerous character references which spoke of Mr Mehta's generosity and kindness, his thoughtfulness to employees and his positivity. Her Honour took those matters into account.
Mr Sachdeva was born, and completed school, in India. He described an impoverished upbringing which included physical abuse. Mr Sachdeva came to Australia when he was 18 years old, and was later joined by his younger brother.
Mr Sachdeva completed a diploma in welfare, following which he worked as a support worker for a non‑government organisation. He worked for six years in the mental health field, while also being in business with Mr Mehta. Mr Sachdeva had not worked since being charged.
Mr Sachdeva had also been diagnosed with depression and anxiety in the past. He had not enjoyed any long‑term intimate relationships. Mr Sachdeva had one prior criminal conviction and was also sentenced as a person of prior good character. Character references for Mr Sachdeva described him as a generous, supportive and caring friend, who was a dedicated support worker.
The learned trial judge found that neither of the appellants had shown any real remorse. Her Honour referred to the need for general deterrence and personal deterrence, which she said loomed large in the sentencing exercise. While not the worst example of the kind of offending, the learned trial judge described it as extremely serious. The only appropriate sentencing option was a term of immediate imprisonment.[76]
[76] Trial ts 1074 - 1075; BAB (CACR 114 of 2021; CACR 116 of 2021), 77 - 78.
The learned trial judge addressed the issue of parity. Her Honour was of the view that Mr Mehta's offending was more serious than Mr Sachdeva's for a number of reasons, including that he was the instigator of the offending, he was persistent in ensuring he was able to have sex with the victim and he ultimately did have sex with the victim without any thought or care for her health or welfare.[77]
[77] Trial ts 1076; BAB (CACR 114 of 2021; CACR 116 of 2021), 79.
The learned trial judge sentenced Mr Mehta to a term of 7 years and 6 months imprisonment and Mr Sachdeva to a term of 7 years imprisonment. They were both made eligible for parole and their sentences ordered to have commenced on 21 June 2021. Her Honour also imposed lifetime violence restraining orders on each appellant in favour of the victim.
We turn to the grounds of appeal in the appeals against sentence.
Ground 1 (Mehta) – additional hardship
Ground 1 in Mr Mehta's appeal against sentence may be dealt with quickly.
There is no substance to the suggestion that the learned trial judge erred in failing to consider that Mr Mehta's time in prison was likely to be more onerous by reason of him being a migrant without family or local supports.
There was no basis for the learned trial judge to conclude that Mr Mehta's time in prison would be more onerous for that reason (or any other reason). Mr Mehta did not submit to her Honour that it would be. On the contrary, he tendered multiple character references from his partner and friends (in Perth) who supported him.
It is well‑established that if the prosecution or an offender seeks to have the sentencing judge take a fact or circumstance into account when passing sentence, it will be for the party relying on the fact or circumstance to bring it to the judge's attention and, if necessary, call evidence about it.[78] No such step was taken in the present case in relation to any alleged additional hardship to Mr Mehta in being imprisoned.
[78] R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 [25] (Gleeson CJ, Gaudron, Hayne & Callinan JJ); North v The State of Western Australia [2020] WASCA 6 [32] (Buss P & Mitchell JA).
Ground 1 (Mehta) is without merit. Leave to appeal should be refused.
Ground 2 (Mehta) and ground 1 (Sachdeva) – manifest excess
Both ground 2 (Mehta) and ground 1 (Sachdeva) assert implied error. The relevant principles in that regard are well settled. They include the following matters, which are taken from the summary in Kabambi v The State of Western Australia.[79]
[79] Kabambi v The State of Western Australia [2019] WASCA 44 [21] (Buss P, Mitchell & Pritchard JJA).
Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
In order to determine whether a sentence for an individual offence is manifestly excessive or inadequate, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.
The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
There is no tariff for offences of aggravated sexual penetration without consent, just as there is no tariff for sexual offences generally. As Steytler P observed in The State of Western Australia v Akizuki,[80] the circumstances of sexual offending, and of sexual offenders, are almost infinitely variable, such that the sentence imposed in one case can provide only limited guidance in other cases. To this we would add, as Quinlan CJ said in Musgrave v The State of Western Australia,[81] that the impacts of the violation of human dignity inherent in sexual offences on each individual victim are as many and varied as the individual experiences of the victims themselves.
[80] The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373 [68] (Steytler P).
[81] Musgrave v The State of Western Australia [2021] WASCA 67; (2021) 289 A Crim R 17 (Musgrave) [7] (Quinlan CJ).
The wide variety of offending, offenders and victims in cases of sexual penetration without consent is reflected in the broad range of sentences customarily imposed in previous cases.
In that context, this Court (and the Full Court before it) have observed that a single count of penile penetration of the vagina can be expected to result in a term of imprisonment after trial of around 5 or 6 years imprisonment.[82] Those observations have been made in the context of offences committed without circumstances of aggravation, for which the maximum penalty is 14 years imprisonment. By contrast, the maximum penalty in the present case, for each appellant, was 20 years imprisonment. The previous cases have also emphasised that a sentence outside the range of 6 years imprisonment for a non‑aggravated sexual penetration will not necessarily be manifestly excessive or manifestly inadequate.[83]
[82] See R v Clark [2000] WASCA 229 [11] (Wheeler J, Kennedy & Pidgeon JJ agreeing); The State of Western Australia v Richards [2008] WASCA 134; (2008) 37 WAR 229 [49] (Steytler P, Martin CJ, McLure, Buss & Miller JJA agreeing); The State of Western Australia v Hussian [2020] WASCA 186 (Hussian) [119] - [120] (Buss P, Mazza & Beech JA); Musgrave [110] ‑ [113] (Buss JA).
[83] Hussian [120] (Buss P, Mazza & Beech JA); Thong v The State of Western Australia [2020] WASCA 182 (Thong) [221] (Buss P, Mazza & Beech JA).
One of the recent cases, Thong, concerned an offence of aggravated sexual penetration in which this Court dismissed an appeal from an individual sentence of 8 years and 6 months imprisonment. The circumstances of that case also involved a victim who was intoxicated, although in that case she retained some memory of the offence. The circumstance of aggravation in Thong was that the offender was armed with a knife and threatened to kill the victim.
It is, of course, difficult to compare the circumstance of aggravation in Thong with the circumstance of aggravation in the present case. At one level, it might reasonably be argued that being armed with threats of violence is more serious than being in company. Nevertheless, the seriousness of the circumstance of aggravation in the present case should not be underestimated. The fact that the appellants were in company with each other contributed significantly to each of their criminality. It served to emphasise the planning and predatory nature of their offending. It served to accentuate the vulnerability of the victim, who became isolated and trapped, in a locked room, with two adult men. It also led to some of the more grotesque aspects of the circumstances surrounding the offending, such as the appellants' discussion, in the absence of and in disregard of the victim, as to who would 'go first' and who would 'go afterwards'.
Moreover, while an aggravating factor rather than a circumstance of aggravation, in the present case, as the learned trial judge found, both the appellants relied on the victim's intoxicated state to offend as they did.
In any event, to the extent that the circumstances of aggravation in Thong were more serious than in the present case, it is necessary to recognise two important distinguishing features of that case. First, the sentence in Thong was of course higher than either of the sentences imposed upon the appellants. Secondly, the offender in Thong had the mitigating effect of youth at the time he committed the offences and he had also led a good and productive life in the 12 years that had elapsed between the commission of the offences and his convictions. Mr Thong was expressly sentenced on the basis that personal deterrence was not a sentencing consideration and that he posed a low risk of reoffending.[84]
[84] Thong [217] (Buss P, Mazza & Beech JA).
The same is not true of the appellants. Each of them being 28 years of age at the time of the offending, the appellants did not have the benefit of youth and personal deterrence, as the learned trial judge rightly said, 'loomed large' in the sentencing exercise. That is because the appellants' lack of any remorse demonstrated that they had learnt nothing from their offending. Even in the face of the CCTV footage, which was objectively inconsistent with any belief that the victim was consenting or capable of consenting, the appellants persisted in the submission that they honestly believed that the victim was consenting (an assertion that the learned trial judge rejected).[85]
[85] See [153] above.
The sentence of 8 years and 6 months in Thong, therefore, reveals no error in the sentences imposed in the present case. Indeed, having regard to the distinguishing features we have referred to, the sentences in the present case are, in our view, consistent with that imposed in Thong.
We turn to the appellants' individual submissions in support of their appeals on the grounds of manifest excess.
In his appeal, Mr Mehta referred to a number of previous decisions of this Court, some of which he submitted were less serious, and some of which he submitted were more serious, than the present case.
As to the former, Mr Mehta referred to the decision in SJN v The State of Western Australia,[86] in which the offender was sentenced to 5 years and 6 months imprisonment. The victim in that case was intoxicated by alcohol and cannabis to the point that she had 'passed out' before the offender sexually penetrated her. The victim became pregnant and gave birth to a child as a consequence of the offending. While undoubtedly very serious, the offending in SJN was not attended by the aggravating circumstance as that in the present case and the maximum penalty was 14 years imprisonment.
[86] SJN v The State of Western Australia [2016] WASCA 215 (SJN).
Mr Mehta's written submissions submitted that SJN could be distinguished from the present case 'in that it could not reasonably be said that the victim [in SJN] had any physical or sexual attraction towards the appellant'.[87] That submission, which implies that the victim in the present case could reasonably be said to have had a 'physical or sexual attraction' to Mr Mehta, must be specifically and emphatically rejected. The fact that the victim in the present case may have been, as the learned trial judge put it, 'an affectionate drunk', in no way reduces or mitigates the seriousness of Mr Mehta's calculated and predatory offending. SJN provides no indication of error in the sentence imposed on Mr Mehta in the present case.
[87] Appellant's Submissions dated 21 December 2021 [24] (WAB 76).
Turning then to the decisions that Mr Mehta submitted were more serious than the present case, but for which the offender received a similar or lesser sentence. Those decisions, which included Thong, Juma v The State of Western Australia,[88] Clarke v The State of Western Australia[89] and Lindsay v The State of Western Australia,[90] were cases in which the offender used actual or threatened violence against the victim in the course of the offending (in addition to the violence inherent in the act of sexually penetrating a person without their consent). The use of actual violence to subdue the victim, as opposed to subduing the victim through intoxication, is no doubt a distinguishing feature of those cases and a relevant sentencing consideration. The absence of such violence in the present case, however, must be seen in the context of, and weighed against, the matters that made Mr Mehta's offence such a serious case of its kind.
[88] Juma v The State of Western Australia [2011] WASCA 54.
[89] Clarke v The State of Western Australia [2013] WASCA 67.
[90] Lindsay v The State of Western Australia [2010] WASCA 142.
To briefly reiterate that seriousness: Mr Mehta's offending was planned and premeditated. As the learned trial judge found, he and Mr Sachdeva came to an agreement that they would take advantage of the victim's vulnerable position. He had contributed to that vulnerable position by providing the victim with alcohol, in his own business premises, where he was under a duty to care for his customers, not to prey on them. The victim was isolated and resisted his advances on a number of occasions, including by moving away from him and saying 'no'. Mr Mehta committed his offence with the assistance of, and in the presence of, Mr Sachdeva, adding to the victim's vulnerability. Mr Mehta did all of this with complete disregard of the victim's autonomy and her humanity. The victim's victim impact statement, to which the appellants have had access but which we do not repeat, speaks for itself.
Against all of those matters, the personal circumstances of Mr Mehta carried little weight.
So understood, none of the other cases relied upon by Mr Mehta lead to the conclusion that Mr Mehta's sentence was manifestly excessive.
In our view, it cannot be said that Mr Mehta's sentence of 7 years and 6 months imprisonment was unjust or plainly unreasonable. While we would grant leave on ground 2 (Mehta), the ground is not made out.
Turning, then, to Mr Sachdeva's contention that his sentence of 7 years imprisonment was unjust or plainly unreasonable. Having regard to what we have already said in relation to the sentences customarily imposed for this kind of offending, and the principles revealed by those sentences, a sentence of 7 years imprisonment for the offence of aggravated sexual penetration without consent is broadly consistent with the range of sentences customarily imposed.
The difference that Mr Sachdeva points to in this case is the fact that his guilt for the offence was established by reason of his having aided Mr Mehta to commit the act which constituted the offence. Mr Sachdeva contended that he was not 'charged as a principal offender'[91] and referred to his 'accessorial role in the offending'.[92] Those descriptions are only partly correct. While it is correct to say that Mr Sachdeva's liability for the offence was 'accessorial' in the sense that it arose by reason of s 7(c), rather than s 7(a), of the Criminal Code, he was nevertheless a 'principal offender' (as the heading to s 7 confirms). Mr Sachdeva was no less guilty of the completed offence than Mr Mehta.
[91] See particular (a) of ground 2 (Sachdeva) (WAB 67).
[92] Appellant's Submissions dated 1 November 2022 [28] (WAB 73).
Mr Sachdeva also submitted that 'his role as an aider was not substantial'.[93] That submission must be rejected. Mr Sachdeva's role in the offending was very substantial:
(a)he entered into an agreement with Mr Mehta for both of them to engage in sexual activity with a victim who was incapable of consenting, a matter that was very obvious to him;
(b)he executed that plan by clearing the pathway into the office area, unlocking the door to the laneway, unlocking the roller door and opening the office; and
(c)he was present in the office with Mr Mehta when Mr Mehta penetrated the victim's vagina with his penis.
[93] Appellant's Submissions dated 1 November 2022 [28] (WAB 73).
It is also clear, based on the learned trial judge's findings, that Mr Sachdeva's conduct was not merely to assist Mr Mehta in satisfying Mr Mehta's sexual gratification at the expense of the victim. Mr Sachdeva's participation in Mr Mehta's commission of the offence was to serve his own sexual gratification, as reflected in his active participation in sexual activity with the victim.
As the learned trial judge found, the CCTV footage demonstrates Mr Sachdeva's disregard of the victim's autonomy and her humanity. Two further examples will suffice.
First, as the learned trial judge found, Mr Sachdeva's response to what was going on in the kitchen 'was telling'. While Mr Mehta was clearly trying to engage in sexual activity with the unwilling victim, Mr Sachdeva, 'not at all fazed' by what he saw, stood quietly by until it was time to take her outside into the laneway and then into the office. Those actions illustrated Mr Sachdeva's casual disregard for the victim.
Secondly, after the appellants' discussion (in the victim's absence) as to who would go first, Mr Sachdeva went into the office and was alone with the victim from 11.11 pm until Mr Mehta joined him at 11.18 pm. There was no evidence, nor any finding, as to what Mr Sachdeva did with the victim during those seven minutes. It is clear, however, that Mr Sachdeva had ample opportunity to appreciate the vulnerable state that the victim was in, to come to his senses before she was further victimised and to ensure that she was safe. Instead, he let Mr Mehta back into the office, where the offence was then committed.
No doubt there will be cases in which the actions of a person who aids in the commission of an offence will involve significantly less criminality than would be the case if the person actually did the act which constitutes the offence. The assistance provided by the aider, while material, might be relatively small or short‑lived or it might be significant that the aider was not present when the offence was committed. In such a case, the person who aided in the commission of the offence might legitimately expect that their sentence will be substantially less than if they had done the act themselves. This is not such a case. On the contrary, in our view, Mr Sachdeva's participation in the offence against the victim in this case was substantial and his criminality was high.
While we are prepared to accept that the sentence imposed on Mr Sachdeva was high, it was not plainly unjust or unreasonable. While we would grant leave to appeal on ground 1 (Sachdeva), the ground has not been made out.
Ground 2 (Sachdeva) – parity
Ground 2 (Sachdeva) alleges a breach of the parity principle.
The principles in relation to the parity principle are also well‑settled. They were summarised by Buss P in Ngo v the Queen,[94] in a passage that has been adopted or reproduced in many subsequent decisions of this Court:
[94] Ngo v The Queen [2017] WASCA 3 (Ngo).
The object of the parity principle is to ensure appropriate consistency in the sentencing of co‑offenders. The critical question is whether disparity or lack of disparity in the sentencing outcome is capable of giving rise to a legitimate or justifiable sense of grievance, or to give the appearance in the mind of an objective observer that justice has not been done. See Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, 609 - 610 (Gibbs CJ), 613 (Mason J), 623 - 624 (Dawson J); Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 301 - 302 (Dawson & Gaudron JJ); R v Taudevin [1996] 2 VR 402, 404 (Callaway JA, Winneke P agreeing). The applicable test is objective not subjective. The application and effect of relevant sentencing principles must be taken into account in determining whether there is a legitimate or justifiable sense of grievance. See Jardim v The State of Western Australia [2011] WASCA 83 [12] - [13] (McLure P, Pullin JA agreeing).
An appellate court may interfere, on the ground of a marked and unjustifiable disparity or on the ground of an absence of a marked and justifiable disparity, with a sentencing judge's exercise of the sentencing discretion even though the sentence in question, viewed in isolation, would not necessarily be regarded as manifestly excessive or otherwise open to challenge. But parity of sentencing does not require a sentencing judge to be so lenient as to 'shock the public conscience' by imposing a sentence entirely disproportionate to the offence in question. See Billing v The State of Western Australia [No 2] [2008] WASCA 11 [11] - [12] (Steytler P, McLure JA agreeing).
In Green v The Queen [2011] HCA 49; (2011) 244 CLR 462, French CJ, Crennan and Kiefel JJ said:
(a) the parity principle is based upon the norm of 'equality before the law' [28];
(b) equal justice according to law requires, so far as the law permits, that 'like cases be treated alike' [28]; and
(c) equal justice also requires, where the law permits, 'differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law' [28].
Their Honours also said that an appellate court will refuse to intervene, on the basis of the parity principle, where disparity is justified by differences between co‑offenders; for example, differences in relation to age, background, criminal history, general character and the part each co‑offender has played in the relevant criminal conduct or enterprise [31].
The application of the parity principle involves a discretionary judgment to which the principles in House v The King[95] apply.[96]
[95] House v The King (1936) 55 CLR 499.
[96] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [32] (French CJ, Crennan & Kiefel JJ) (Green); Stanley v The State of Western Australia [2018] WASCA 229 [40]; Dunn v The King [2023] NSWCCA 1 [46] ‑ [48].
In the present case there was clearly a disparity between the sentence imposed on Mr Mehta and the sentence imposed on Mr Sachdeva. The learned trial judge expressly recognised that Mr Mehta's offending was more serious than that of Mr Sachdeva, which her Honour reflected in an additional 6 months imprisonment being imposed on Mr Mehta.
It therefore could not be concluded that the sentencing judge made any express error in the application of the parity principle. Mr Sachdeva did not suggest otherwise. Indeed, Mr Sachdeva submitted that the learned trial judge correctly found that Mr Mehta's offending was more serious, but that her statement that his role would be reflected in the sentence imposed was 'not borne out by the sentence imposed'.[97] Thus, ground 2 (Sachdeva) asserts implied error, namely that the degree of disparity between the sentence imposed on Mr Mehta and Mr Sachdeva was unreasonable or plainly unjust so as to reveal implied error.
[97] Appellant's Submissions dated 1 November 2022 [32] (WAB 75).
It will be apparent from what we have already said in relation to ground 1 (Sachdeva) that, while the learned trial judge was correct to characterise Mr Mehta's offending as more serious than that of Mr Sachdeva, Mr Sachdeva's criminality was nevertheless high. It was not, as Mr Sachdeva submitted in relation to this ground, a 'more minimal role'.[98]
[98] Appellant's Submissions dated 1 November 2022 [34] (WAB 75).
Having recognised the need for some disparity in their sentences, the degree of that disparity was, within the limits of a reasonable exercise of discretion, a matter for the discretionary judgment of the learned trial judge. The issue is not whether we would have exercised the qualitative and discretionary judgment in relation to parity differently. It is whether the result produced in this case was unreasonable or plainly unjust, such as to give rise to a legitimate or justifiable sense of grievance, or to give the appearance in the mind of an objective observer that justice has not been done. We are not satisfied that it was. In our view, it was open to the learned trial judge to impose sentences with the degree of disparity that her Honour did.
In our view ground 2 (Sachdeva) is not made out. We would grant leave to appeal, but would not uphold the ground.
Conclusion
For the foregoing reasons, we would make the following orders in each appeal.
In Mr Mehta's conviction appeal (CACR 116 of 2021):
(1)Leave to appeal on the ground of appeal is refused.
(2)The appeal is dismissed.
In Mr Mehta's sentence appeal (CACR 114 of 2021):
(1)Leave to appeal on ground 1 is refused.
(2)Leave to appeal on ground 2 is granted.
(3)The appeal is dismissed.
In Mr Sachdeva's conviction appeal (CACR 121 of 2021):
(1)The application to adduce additional evidence on the appeal is refused.
(2)The application for an extension of time within which to appeal is refused.
(3)Leave to appeal on grounds 1 to 5 is refused.
(4)The appeal is dismissed.
In Mr Sachdeva's sentence appeal (CACR 120 of 2021):
(1)Leave to appeal on grounds 1 and 2 is granted.
(2)The appeal is dismissed.
I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
SC
Principal Associate to the Honourable Chief Justice Quinlan
8 FEBRUARY 2023
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